Bonum Certa Men Certa

Alice/Section 101 Still Spelling Doom for Proponents of Software Patents, Including Some Patent Law Firms

The demise of software patents everywhere, in slow motion...

Thumbs up



Summary: The industry formed around the patenting of algorithms is suffering a rapid decline, as people everywhere realise that software patents in the US are worthless, even if they are somehow granted in the first place

THE TRANSITION into a software patents-free US is costing a lot of money to patent law firms all the around the world. They have become accustomed to telling clients to pursue US patents on software, but this doesn't work anymore. These clients know a little better, in spite of misleading and selective 'analyses' from patent law firms.



Following the lines of pro-software patents blogs like "Bilski Blog", the "Section 101 Blog" attempts to perpetuate the illusion of software patents potency in the US, soon to be cited by Bastian Best, who promotes software patents in Europe. Almost 3 weeks later these people are still obsessing about McRO -- or about one single patent -- obviously while ignoring the latest CAFC decisions because these weaken their case. We wrote about it yesterday (almost nobody else wrote about, much as we predicted because of cherry-picking, or lies by omission). Professor Dennis Crouch wrote about it yesterday as well. To quote:

The big news from Intellectual Ventures v. Symantec (Fed. Cir. 2016) is not that the court found IV’s content identification system patents invalid as claiming ineligible subject matter. (Although that did happen). Rather, the big event is Judge Mayer’s concurring opinion that makes “make two points: (1) patents constricting the essential channels of online communication run afoul of the First Amendment; and (2) claims directed to software implemented on a generic computer are categorically not eligible for patent.”

[...]

Declaring that software implemented on a generic computer falls outside of section 101 would provide much-needed clarity and consistency in our approach to patent eligibility.


This decision cites even Microsoft. It's one of the large majority of decisions which show that CAFC is still very hostile towards software patents (more so than district courts), thanks to SCOTUS (notably the Alice decision).

Alice is causing layoffs and shutdowns of patent law firms that depend on software patents or the perception that they're worth something, as covered here a month ago (high profile examples). Here we have a new example of this (often a blog that promotes software patents). One attorney moves from software patents to actual development of software and Benjamin Henrion told him last night "welcome back to software development."

The explanation for this move is as follows:

The US Supreme Court issued a decision, in Alice, that has (perhaps unintentionally) granted US patent examiners and the lower courts effective carte blanche to reject claims to any computer-implemented invention they do not like the look or smell of. In around 2010, IP Australia decided that it was time to crack down on claims directed to certain computer-implemented business methods, and created a monster that ultimately resulted in the decision of a Full Bench of the Federal Court of Australia in the RPL Central case and similarly rendered a broader range of subject matter effectively unpatentable. More recently, the Australian Government’s Productivity Commission published a draft report in its enquiry into Intellectual Property Arrangements which contained a recommendation ‘to explicitly exclude business methods and software from being patentable subject matter’ in Australia.

Do I think that all computer-implemented innovations should be patentable? No. Are there still many software-based inventions that remain patentable despite the recent developments? Yes, of course there are. Do I think that the pendulum has swung too far against patent-eligibility in the US and Australia? Well, yes, I do. But what I think about all this is not really the issue right now.

The fact is that, rightly or wrongly, the law has shifted, and as a result the nature and value of advice that I provide to clients in the software space has changed as a result. I simply cannot add value to businesses in this area that I could when the boundaries of patent-eligibility were clearer and more stable. Whether I think it should be this way or not, the end result is still that my skills, knowledge and experience are now under-utilised as a patent attorney. Aside from anything else, this is highly demotivating, and I have come to believe that my talents might be put to better use elsewhere.

Or, to put it more bluntly, what is the point of me if the things I do best are of limited value to clients?


"Based on EPO insiders, they now allow patenting of software as long as it's combined with something (like a car in this case)."Well, maybe they just realise that they lie to the public and to clients, and they have a guilty conscience over it. That's what we have been saying for years. The world needs more software development, not more software patents. It needs more development and innovation, not more protectionism and lawsuits.

The above alludes to the situation in Australia, where patents are not worth that much because of the small population size and hence US patents are often pursued. This morning in the Indian press we have some articles [1, 2] that speaks of a company called Rivigo, which is pursing software patents in the US. To quote: "Rivigo has developed algorithms that deal with managing fuel efficiency and pilferage, availability of drivers in the relay system, and loading plans to help reduce damages to products carried by its trucks."

"It often feels like the only way to get something out of software patents is to go to Texas -- something which even BlackBerry (Canadian) has begun doing."Well, the company went to the US to patent software because these patents are not permitted in India, but such patent would be invalided by courts or boards in the US as well, especially because of Alice. Just because the USPTO (or Battistelli's EPO for that matter) accept some application doesn't mean the claimed invention is novel and innovative. Based on EPO insiders, they now allow patenting of software as long as it's combined with something (like a car in this case). The courts wouldn't quite fall for it and therefore it seems safe to say that software patents everywhere are just a slowly-imploding bubble.

Also mentioned yesterday was this case against Apple down in Texas (we last wrote about the corrupt Texas courts yesterday). It often feels like the only way to get something out of software patents is to go to Texas -- something which even BlackBerry (Canadian) has begun doing.

Recent Techrights' Posts

Brett Wilson LLP "Takes it Personal" (Character Assassination, Not Professionalism). Everybody Can See That.
On behalf of violent men
Pissing Contests and Pissing Off Everyone
people who came from Microsoft are trying to vex and divide the community
Microsoft Repeats the Mistakes Made by the EPO After We Exposed a Major Microsoft/EPO Scandal 10 Years Ago
That scandal was all over the media, not just in English
Turns Out LLMs for Code Don't Save Time and Don't Improve Quality
Neither legal nor useful
 
Adoption of Gemini Protocol Still Growing
Gemini Protocol is being obscured by the media - it doesn't help that Google 'hijacked' the word "Gemini" - but people still manage to find out about it, download a client, and use it
Links 14/07/2025: Arresting Photographers, Threats to Revoke US Citizenship Over Criticism
Links for the day
More EPO Leaks on the Way
We hope that Mr. Rowan will actually try to refute what we say and show, not merely point the finger at the messengers
Decommodification is a Corporate Strategy Against Communities
systemd is led by Microsoft and hosted by Microsoft
People Who Assault Women Are Not Victims of "Distress"
It seems like an American tradition. In a country with almost 50 presidents, not even one was a female.
copyleft.org 'Hijacked' by the People Who Attack the Person Who Created Copyleft
So far there's nothing "tasteless" in copyleft.org, but that can change at any time in the future
Asking People to Take Down Articles and Videos Only Makes These More Popular and "Viral"
If you do something bad, one of the worst things you can possibly do it try to silence those who speak about it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 13, 2025
IRC logs for Sunday, July 13, 2025
Two-Thirds Towards FSF Goal, Richard Stallman to Give Talks in Europe
There are 67 left before reaching the target
Gemini Links 14/07/2025: Politicised Tech and "Leaving GitHub"
Links for the day
The Demise of LLMs
We've just checked BetaNews again. They've dropped all the slop and went back to human authors.
Gemini Links 13/07/2025: Sonpo Museum of Art and FCEUX
Links for the day
Links 13/07/2025: UnitedHealth's Censorship Campaign, Australia Wary of China
Links for the day
Firing Away With Nonsense
Or fighting fire with fire
Links 13/07/2025: Climate Crisis, GAFAM Poisoning the Water
Links for the day
The Microsofters Will Have an Obligation to Compensate Us
This story isn't just about Microsoft. It's also about corruption, there are many women victims, there is abject "abuse of process", and many more scandals to be illuminated in years to come.
Reproducing at the EPO Instead of Producing Monopolies for Foreign Monopolies With Their Price-Fixing Cartels
Does the EPO recognise the need of well-educated Europeans to bear kids?
Valnet Inc. Dominates Real (Not LLM Slop) GNU/Linux Coverage in 2025
And likely in prior years, too
Free Software Foundation (FSF) Fund Raiser Goes on
Later this month we'll expose another OSI scandal
EPO Staff Representatives Issue a Warning About Staff's Health and Inadequate Care
Even the EPO's own stakeholders (money sources) are openly protesting against what the EPO became
Links 13/07/2025: Partly Assorted News From Deutsche Welle and CBC
Links for the day
Gemini Links 13/07/2025: Board Games and Battle Styles
Gemini Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 12, 2025
IRC logs for Saturday, July 12, 2025
Plunder at the Second-Largest Institution in Europe
cuts, neglect, health problems, even early deaths
Links 12/07/2025: Political Developments, Attack on Opposition, Climate Actions
Links for the day
Gemini Links 12/07/2025: Melodic Musings and Small Web July
Links for the day
Links 12/07/2025: Jail in China for Homoerotica, South Korea Discriminates Against Old Workers
Links for the day
If Only Everything Was Rewritten in Rust, We'd Have No More Security Issues?
Nope.
Links 12/07/2025: Birdwatching and Fake/Misleading Wall Street 'Valuation' Figures
Links for the day
Gemini Links 12/07/2025: How to Avoid Writing, Apps for Android
Links for the day
Using SLAPPs to Cover Up Sexual Abuse and Strangulation
The exact same legal team of the Serial Strangler from Microsoft and Garrett already has a history fighting against "metoo"
EPO Staff Committee on Harassment in the Workplace
slides
Adding the Voice of Writers to UK SLAPP Reform
The journey to repair antiquated (monarchy era) laws will likely be long
EPO Takes More Money From Staff for Speculation (Pensions), Actuarial Study Explains the Impact
"The key change in this year’s Actuarial Study, due to cascading the new “risk appetite” from the financial study, is a significant increase of the total pension contribution rate of 5.7 percentage points, up to a total of 37.8%. This is driven by an unprecedented decrease in the discount rate of 105 bps down to 2.2%."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 11, 2025
IRC logs for Friday, July 11, 2025