08.12.17

The Latest Evidence of the Demise of Software Patents in the United States

Posted in America, Patents at 7:01 am by Dr. Roy Schestowitz

Just because something is possible does not mean it’s legal

Dead treeSummary: Even though some software patents continue to be granted, courts in the U.S. almost always reject these, signaling the end of software patents as a potent tool (unless there’s an out-of-court settlement, usually because the defendant is too poor)

WE have always been focused on software patents. It’s a subject we understand, not just from the perspective of software development but also the legal perspective (which we spent over a decade studying).

Anyone who still thinks that software patents are worth pursuing does so at his/her own peril. They’re worthless. Sometimes they’re worse than worthless because pursuing litigation with such patents can cost the plaintiff dearly. Recently, plaintiffs not only wasted money on lawyers (all in vain) but were also forced to cover all the legal fees of the defendant/s. How about that for a deterrent?

“Recently, plaintiffs not only wasted money on lawyers (all in vain) but were also forced to cover all the legal fees of the defendant/s.”Demand for such litigation has understandably fallen. The ‘industry’ associated with such litigation suffers profoundly because the number of plaintiffs and defendants is falling. This new article, titled “Cost of Patent Infringement Litigation Falling Sharply,” has just mentioned Alice and speaks of “the invalidation of hundreds of software patents for covering ineligible abstract ideas.” In reality, by extension, about a hundred thousand patents (or a lot more) may not be invalid; they just haven’t been tested in a court (or PTAB for that matter) yet and might never be tested either. Patent holders don’t want to risk seeing such invalidations, having spent a fortune pursing these patents as though these were valuable trophies.

Here’s more from that article, which focuses also on PTAB (covered a lot this morning):

The PTAB process, known as inter partes review, gives someone accused of infringing a patent another route, in addition to court, for defending themselves by attacking a patent’s validity. With the availability of this less-expensive route, “some of the older knock down and fight to the death litigation is not happening,” Chow said.

[...]

The Supreme Court’s 2014 ruling in Alice Corp. v. CLS Bank Int’l resulted in the invalidation of hundreds of software patents for covering ineligible abstract ideas.

Worth remembering is the fact that the US is where these patents got started. If the US gives up on such patents, why won’t every other country? The US, one might say, learned from its mistakes. Software patents were like a failed experiment.

Sudhanshu Ayyagari from Baldwins wrote about the subject a few days ago, knowing darn well that there are no software patents in New Zealand (where Baldwins operates and is looking for ‘business’); Software patents are not allowed there, albeit using some loopholes these can sometimes be granted (not necessarily the same as being upheld by courts). Here is what Ayyagari wrote:

This article is the first of a two-part series on the state of software patents in New Zealand and Australia. We begin by examining the guidelines and current practice of software patentability in New Zealand, and comparing this with other major jurisdictions including Europe and the United States.

In most jurisdictions worldwide there is debate over the extent to which patents should be allowed for computer implemented inventions. This has occurred because patent applications targeted towards computers and computer programs allow inventions, previously considered unpatentable to, arguably, become patentable.

[...]

It is apparent that there are a number of areas in which computer programs remain patentable inventions in New Zealand. However, the Patents Act 2013 has increased the difficulty of obtaining broad protection for some computer implemented technologies. It appears that it will be difficult to use computer program implementations (or computer implemented inventions) to obtain patent protection for ideas which are not tied to a particular apparatus or device(s) that contribute in a patentable field of technology.

That’s exactly the same loophole that was adopted by the EPO yet does not guarantee anything in a court of law. The USPTO continues to make it rather easy to get software patents, but how many of these patents have a chance in court? Or even at PTAB?

A case which was mentioned here before (3 days ago to be precise) is now turning from a press release into some press coverage [1, 2] (as we hoped but not necessarily expected), reminding us that software patents are a dying breed (with CAFC reaffirming PTAB’s decisions again). The judges are signaling this and those who refuse to pay attention would likely listen to law firms and continue to have faith in software patents.

From one such news article:

The U.S. Court of Appeals for the Federal Circuit affirmed the Patent Trial and Appeal Board’s (PTAB) February 2016 decision invalidating all three patents in Audatex’s patent infringement lawsuit asserted against Mitchell, agreeing that the Audatex patents are abstract and not inventive.

Audatex sued Mitchell in February 2012, alleging that Mitchell’s WorkCenter software infringed three Audatex patents. The Audatex patents detailed a business process for using the internet to process insurance claims including total loss valuations.

Before the PTAB, Mitchell asserted that the Audatex patents simply use well-known technology to generate valuation reports for damaged cars, and are not directed to improving a computer’s functionality.

Here is another one:

The U.S. Court of Appeals for the Federal Circuit has affirmed a February 2016 ruling by the U.S. Patent Trial and Appeals Board that invalidated all three patents in Audatex North America’s patent-infringement lawsuit against Mitchell International.

So CAFC is slashing many software patents (in a court, not just a panel) while the patent microcosm is trying to slow the judges down.

Why believe the patent microcosm when every piece of evidence so far this summer indicates that software patents have no feet, so to speak?

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

This post is also available in Gemini over at:

gemini://gemini.techrights.org/2017/08/12/patent-microcosm-swpats-end/

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Five Years of António Campinos Coverage in Techrights (We Correctly Predicted His Presidency in March 2016)

    We've warned about António Campinos since March of 2016; well, António Campinos isn't just EPO President right now but he's also an oppressor who demonises the union of the EPO's staff



  2. In 2021 the EPO Works for Parasites Instead of Scientists (and It Cannot Even Hide That Anymore)

    Europe's second-largest institution is working for those who attack instead of create (or those who attack actual creators, with lousy and sketchy patents as ammunition)



  3. Links 1/3/2021: Manjaro ARM 21.02 and First Linux 5.12 RC Released

    Links for the day



  4. IRC Proceedings: Sunday, February 28, 2021

    IRC logs for Sunday, February 28, 2021



  5. On Gangstalking and Victim-Blaming

    Reprinted with permission from Daniel Pocock



  6. If the Web Can Be Increasingly Replaced (or Complemented) by Gemini and IPFS Etc., Then Large Monopolists Will Try to Dominate Those

    Monopolists and sociopaths won't be clapping and cheering for whatever stands a chance of replacing the Web (or Big Banks); if they ever embrace those replacements, it'll be to dominate and in turn undermine these



  7. Links 28/2/2021: Nitrux 1.3.8 and Kraft 0.96

    Links for the day



  8. Techrights Over 3 Internet Protocols and From the Command Line, Using Either Curl/Wget/Text Editor (Over WWW) or IPFS or Gemini

    A quick demo of how Techrights can be accessed without a browser, either over gemini:// or over http://



  9. The Command Line for Weather and Football Scores, Among Other Stuff

    A lot of stuff can be done from the command line and productivity (not to mention privacy) enhanced by automation and scripting over the Web (or even Gemini, as we shall show in a future video)



  10. You Know Gemini Space is Getting a Lot Bigger When You Need to Implement DDOS Protection

    Techrights is currently working on tools or programs that help detect and respond to DDOS attacks (or abusive over-consumption of pages) over gemini://



  11. The Fall of The Register

    A word of caution about The Register, a British publisher that nowadays does a lot of reputation laundering for Microsoft and Bill Gates (instead of news about actual technology, as opposed to clown computing, big brands, and oligarchs)



  12. IRC Proceedings: Saturday, February 27, 2021

    IRC logs for Saturday, February 27, 2021



  13. Links 27/2/2021: IPFS 0.8, OnionShare 2.3.1, and New Stuff in KDE

    Links for the day



  14. The Internet After Social Control Media (and Maybe After the World Wide Web Too)

    There seems to be a growing trend of protests and backlash against centralised Internet disservices; there's also growing dissatisfaction over bloat and spyware, which the Web rendered a 'norm'



  15. SCO's Darl McBride is Finished (Bankruptcy)

    Some news about the site and about the long-forgotten SCO, whose infamous old (and sacked) Darl McBride (responsible for decade-long attacks on Linux) loses everything, based on fresh legal documents



  16. IRC Proceedings: Friday, February 26, 2021

    IRC logs for Friday, February 26, 2021



  17. Links 26/2/2021: Wine 6.3, Genode OS Framework 21.02

    Links for the day



  18. Links 26/2/2021: GNU Poke 1.0 is Out and Rocky Linux Leaves Microsoft GitHub

    Links for the day



  19. Microsoft's Status in Web Servers is So Bad That It Has Fallen Off Charts, is Now Partly Delisted

    In several categories or criteria Microsoft is no longer even listed by Netcraft; the share has become rather minuscule during the pandemic, which convinced more companies to explore expense-cutting moves



  20. We Take Away Your Freedom for Your Own Safety...

    People are herded like cattle and protest/dissent will be demonised as part of the new norm; what will be the cost of the pandemic and will resistance to the status quo ever be permitted to resume?



  21. EPO President Pushes Illegal Software Patents in South America (Over the Telephone With a Misleading New Puff Piece)

    The EPO's "news" section has become worse than a form of distraction (from the EPO's internal rot); it celebrates illegal and unlawful practices, spreading them to other continents



  22. The Free Software Foundation Warns Against Using Twitter

    Richard Stallman said Twitter was OK because it was possible to use it without proprietary software; that's no longer the case, so the Free Software Foundation (FSF) speaks out against it. It speaks about it more than 3 months after the problem became a known one and also an irreversible one (maybe Twitter would have reversed the decision if the media or the FSF actually spoke about it early enough).



  23. IRC Proceedings: Thursday, February 25, 2021

    IRC logs for Thursday, February 25, 2021



  24. Stéphane Bortzmeyer Explains Gemini Protocol (February 2021)

    A recent talk from Stéphane Bortzmeyer about Gemini and what it is for (or why)



  25. Links 26/2/2021: Istio 1.7.8 Announced, Blender 2.92, Firebird 3.0 Language Reference, FSF Against Twitter

    Links for the day



  26. Special Thanks to Mogz

    Credit where it's due to Mogz



  27. Modifying WordPress to Include Gemini Links in All Articles (Assuming a Canonical URL Form)

    In order to promote the departure from the World Wide Web (where possible and suitable; sites with text don't typically need Web-like features) one can promote the analogous pages in one's Gemini capsule; we suggest a way of doing so in WordPress (the most widely used CMS)



  28. Links 25/2/2021: RHEL for Open-Source Infrastructure, GNOME 40 Beta, LXPanel 0.10.1

    Links for the day



  29. IBM and Qt Don't Understand Free Software and They Now Impose Terms and Conditions on Who Qualifies for Use of Free Software Free of Charge

    IBM and Qt Don't Understand Free Software and They Now Impose Terms and Conditions on Who Qualifies for Use of Free Software Free of Charge



  30. Techrights Gemini Capsule, Now With Over 35,000 Pages and Files

    Blog posts combined with static (plain text) files are now 36,000+ in number, just for Gemini protocol alone; that number keeps growing as our conversion proceeds and evolves (our software will be released under terms of the AGPLv3)


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts