Bonum Certa Men Certa

Some of the USPTO's Most Ridiculous Patents Are Scrutinised by “Above the Law” While Dennis Crouch Attempts to Tarnish Alice



Whereas Charles Duan (below) compares patents to monopolies

Charles DuanSummary: Controversies over patent scope and level of novelty required for a patent; as usual, public interest groups try to restrict patent scope, whereas those who make money out of abundance of patents attempt to remove every barrier

THE declining quality of European Patents (EPs) is a real issue at the EPO. But that pales in comparison to some of the patents granted by the US patent office. USPTO patents include a method of swinging a swing, for example. Sideways. Yes, it's a patent!



"Ever tried swinging from side to side on a swing instead of back & forth? Turns out, that method is patented," United for Patent Reform wrote, linking to this article from earlier this month. It's a pretty infamous patent which we mentioned here before.

"There's also a patent for the "comb-over"," one person reminded me today. This too we mentioned here a very long time ago.

From the article at “Above the Law”:

The United States Patent and Trademark Office (USPTO) has granted some pretty ridiculous patents over the years. It makes me wonder about the quality of patents they’re not granting. If you’re interested in patent policy, you should really read the Electronic Frontier Foundation’s (EFF) “Stupid Patent of the Month” column (EFF actually has the Mark Cuban Endowed Chair to Eliminate Stupid Patents), which is exactly what it describes itself to be: an incredible collection of outrageous, low-quality, obvious claims that USPTO somehow deemed worthy of monopoly protection. While some of these have since been revoked or overturned, just remember that they were once granted. Note that the Supreme Court in recent years has—often unanimously—overturned several patents, clarifying patentability criteria, which should impact the number of stupid patents being granted. And, I note that the collection of ridiculous patents below does not include items that actually meet patentability thresholds, but are just crazy ideas; instead, they cover things that probably should never have been granted a patent to begin with.



How about the other picks from the EFF?

"Unfortunately, the negligent USPTO will issue patents to people like this. Here's one on a mundane training regime," the EFF's Daniel Nazer wrote about this patent and there's more in Twitter (in this thread, for context).

Why did the examiners at the USPTO accept these applications and how did that slip through the system without adequate safeguards? This is why things like PTAB (to be covered separately) are required.

Earlier today we also stumbled upon this truly ridiculous article from the National Law Review. It wants us to think of methods as objects and the headline is a loaded question: "Why Can’t A Method Be Sold, Just Like Any Other Invention?"

U.S. Patent and Trademark Office guidelines do not currently allow patentees to directly claim software inventions, thereby encouraging use of other claim types such as method claims. As a result, the patent office has issued many patents with method claims directed to software inventions. But patentees who rely on method claims to protect their software inventions — and indeed all patentees with method claims — face a significant obstacle that has been imposed by the Federal Circuit.

Specifically, the Federal Circuit has held for purposes of infringement that method inventions are not considered made or sold even if they are necessarily used by or embodied in products that are made or sold. This has the effective result of helping infringers to exploit patented method inventions by selling products that make use of the invention — even in ordinary and expected usage of the product — while evading legitimate attempts by the patentee to remedy the infringement. Below, we suggest that the Federal Circuit’s position is incorrect and unnecessarily hampers protection and enforcement of method inventions, disproportionately affecting software. The Federal Circuit should change course and clarify that methods can be sold just like any other invention in certain circumstances.



The first paragraph says "software inventions" three times. It's obvious that people who never developed software can't quite grasp that programming isn't "invention".

We assume that many law professors still deliberately misunderstand software development and incidentally, there's this new article today about Judge William H. Alsup of the northern district of California learning how to code in order to better understand the Oracle v Google case (copyrights and patents).

Earlier today Dennis Crouch wrote about the Federal Circuit, claiming that on Alice the "Turnstile Keeps Spinning" even though nowadays (this year) the court almost always invalidates software patents. It's becoming more consistent over time, but to lobbyists like Crouch (promoting patent maximalists' and trolls' agenda) it's a "Turnstile", apparently. To quote:

In a split opinion, the Federal Circuit has affirmed the district court’s judgment on the pleadings – R. 12(c) – that the asserted claims of SSI’s four patents are invalid under Section 101 for claiming an abstract idea. U.S. Patent Nos. 7,566,003, 7,568,617, 8,505,816, and 8,662,390. (Claim 14 of the ‘003 patent – covering a method for validating entry to a city bus or train – is reproduced below).

[...]

As the Supreme Court has done in its 101 analysis, Judge Linn linked his work back to cases such as Le Roy, Mackay, and Funk Bros. The language of those cases focus on “fundamental truths” and “hitherto unknown phenomenon of nature.” In Benson and Alice, the court also explained “Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”

For Judge Linn, a method of charging a bank-card at a bus-turnstile does not fit into those expansive definitions.

Judge Linn’s opinion recognizes that his concern directly stems from the Supreme Court’s approach in Alice and Mayo. He writes: “The problem with this test, however, is that it is indeterminate and often leads to arbitrary results.” His solution is that the two part test should not be “applied in a legal vacuum divorced from its genesis” and the three exceptions should be treated consistently. Patents should not be struck down simply because they “seemingly fail the Supreme Court’s test.” Rather, the focus should be on whether the patents “attempt to appropriate a basic building block of scientific or technological work.”

The solution for Judge Linn: Focus on the language of the claims and each limitation when determining whether a claim is directed to an abstract idea – “a basic building block of scientific or technological activity” or instead to a “tangible application” that serves a “new and useful end.”


Crouch is hoping to scandalise Alice like he does PTAB. Earlier this year it became ever more evident that Crouch is more like an activist (for trolls) than a scholar. He's no longer good at concealing it. Earlier today he published a guest post by Charles Duan of Public Knowledge. This, for a change, gave an illusion of balance, comparing patents to monopolies:

Are Patents Monopolies? It Depends on the Relevant Century



The question of whether patents are monopolies is one of ongoing debate. But an important aspect of that debate is the correct meaning of the word “monopoly.” A change in the word’s meaning over the last few centuries can explain at least some of the differing opinions on the question.

Today, the word “monopoly” refers to a concentration of economic market power in a single firm or entity. But up through the early 19th century, that was not the accepted definition. In that time period, a monopoly was a government grant of an exclusive right, more akin to a franchise or government contract.


As we showed earlier this year, Crouch keeps misleading the readers about what patents are. He uses the language of patent maximalists.

Recent Techrights' Posts

Speed of GNU/Linux
The media seldom speaks of the dangers of "proprietary software"
Proprietary Windows Versus "Linux" News (Trying to Keep People on Windows, Never Exploring GNU/Linux)
Good editors know better how to recognise threats and not give them lip service
Ensuring That Every Computer User Anywhere in the World Can Take Control of All His or Her Computers
We must fight the people who attack general-purpose computing, in particular those who push this agenda very aggressively inside Linux
Gemini Links 28/04/2025: Autism and Structural Navigation
Links for the day
What Happened to the Open Source Initiative (OSI) Elections: The Purge, the Cover-up, and the Witch-hunts
OSI has gone "full Microsoft"
 
Links 28/04/2025: Canada's Election, Pakistan-India Conflict
Links for the day
Glue Inside Your Pizza (or Why People Will Get Fed Up With Slop)
People are given "answers" from non-intelligence word dumpsters
Links 28/04/2025: Cyberattacks Happening, Chatbots Disappointing, and "Free Speech Under Fire"
Links for the day
Phone Adoption Very Low in Vatican, Windows Usage Fell Nonetheless
Even in places where people still use desktops/laptops most of the time (and have access to these) Windows is gradually losing ground
GNU/Linux 9% in Cuba, Vista 11 Waning, Android Dominant
Microsoft has pretty much lost Cuba
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 27, 2025
IRC logs for Sunday, April 27, 2025
In 24 Countries Observed by statCounter Vista 11 is Still Less Than a Quarter of Windows Users Despite All Other Versions Being 'Expired'
They ought to move to GNU/Linux
Links 27/04/2025: Pope Goodbyes, "Politics of Fear", Slop Redux and More Google Shutdowns (Google Debt Had Grown This Year)
Links for the day
Links 27/04/2025: Serenity Dialectics, Hockey Jersey Ethics, and More
Links for the day
Links 27/04/2025: Death of Nest Thermostats, Death of Metaverse
Links for the day
Links 27/04/2025: Projects Workflow and Discovering Technology
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, April 26, 2025
IRC logs for Saturday, April 26, 2025
Microsoft Isn't on the Map in USSR
To them, it's either Google or Yandex
In Central America Windows Became a Small Force
These are countries where Windows used to have well over 95% of the "market"
What's Very Vexing to GAFAM, EPO and Others Is That It's Incredibly Hard to Censor Us (and Nobody Ever Successfully Did That Before)
resist, do not capitulate
Site May be Even Faster Now
It basically takes less than a tenth of a second to serve the page
Receiving SLAPPs and Collecting Them Like Trophies (the SLAPPs Always Fail)
People who file lawsuits bring even more attention to themselves (or to embarrassing statements about them)
Year of GNU/Linux on the Laptop?
It's not happening only in Lenovo
What People Must Understand About the Open Source Initiative (OSI)
some facts about the Open Source Initiative (OSI)
Many of the Scandals Are Interconnected (Overlapping People and Corporations)
We're only getting started
More Copyright Lawsuits Against LLM Slop Providers and Suppliers of LLM Slopfarms Would Benefit Society
It's not just bad for the Web and for society; it's also legally dangerous
Links 26/04/2025: General Assassinated in the Town of Balashikha, US Promoting Seafloor Mining
Links for the day
Links 26/04/2025: Facebook Layoffs Again, Remembering What's Real, and Say No to Mass Surveillance
Links for the day
Links 26/04/2025: NOAA Budget Cuts and "Dog Days Ahead"
Links for the day
In defence of JD Vance, death of Pope Francis
Reprinted with permission from Daniel Pocock
Three Years in Prison for Disney Employee’s ‘Menu Hacking’: The Economic Fallout of Digital Menus
Reprinted with permission from Ryan Farmer
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 25, 2025
IRC logs for Friday, April 25, 2025