07.25.17
Gemini version available ♊︎In 2017 Software Patents Are Barely Valid in the United States
Summary: Today’s simple reality is, even if the USPTO grants (or granted) a software patent, the prosecution certainty is notoriously low
THE past two days were spent covering Alice-type cases from the summer (so far, i.e. late May to present). As we showed, software patent cases where the patent/s got accepted/upheld were so rare; we found just one example and it was from a low court. It certainly seems sane to say that software patents lost any momentum and/or potency. Not many patent holders would be brave enough to litigate with these. Sometimes — even increasingly — the plaintiff is forced to pay the defendant’s legal fees, too.
A week ago there was this press release about Clay Cover. “He holds four software patents and has three more pending,” it said. So they’re probably worthless after Alice. Not so much to brag about.
“Unless one can settle out of court (i.e. the patents not examined by a judge at the PTAB or assessed by a court), the likelihood of software patents accomplishing anything is very low.”Last night a Microsoft-connected site wrote about Facebook and Snap, saying that the latter “Desperately Tries to Prevent Copycats” [1, 2] (copied elsewhere later, to another domain). “Ultimately,” it argued, “the hires will probably do little to nothing to stop Facebook from copying. Think about all the controversy surrounding software patents over the decades. This is an issue that the tech industry has tried to grapple with since the 1960s, with no clear conclusion. Software patents typically cover a specific way to implement an idea, not the idea itself; some argue the idea should be included in the patent. The Supreme Court ruled unanimously in 2014 that “abstract ideas” cannot be covered by a software patent.”
Yes, that’s a good thing.
Unless one can settle out of court (i.e. the patents not examined by a judge at the PTAB or assessed by a court), the likelihood of software patents accomplishing anything is very low. This is why patent trolls, for example, tend to target small businesses that cannot afford going to court or have too small an incentive going to court (the settlement or ‘protection’ money tends to be proportional to the size of the business).
So, as long as software patents still exist (even if they are worthless) the trolls can still operate. We need them stopped too. TC Heartland is one small step towards that, but we wait for the giant leap. █
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