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11.12.17

Alice (De Facto Ban on Software Patents) Remains Untouched in 2017 and Likely in 2018 As Well

Posted in America, Courtroom, Patents at 4:42 am by Dr. Roy Schestowitz

No cases that involve software patents are being revisited by the US Supreme Court

Upset

Summary: The patent microcosm (people like Dennis Crouch) is trying to find cases that can contradict Alice (at the higher levels, especially the US Supreme Court) but is unable to find them; as things stand, suing anyone with a software patent seems like a losing/high-risk strategy

WE have been observing with keen interest the patent cases that may somehow reach the US Supreme Court. We don’t want to see any case there which can somehow override Alice. So far, since 2014, no such case has been tabled at the Supreme Court and Bilski is so far/distant in the past that barely anyone mentions it anymore. It is still being cited, but nowhere as frequently as Alice

“So far, since 2014, no such case has been tabled at the Supreme Court and Bilski is so far/distant in the past that barely anyone mentions it anymore.”Patently-O‘s Dennis Crouch is still hoping for a miracle. He tried hard to undermine Alice for a number of years (the mask fell off and he no longer masquerades his agenda as well as he used to) and days ago he wrote about Recognicorp v Nintendo — a case that we covered here in recent months. “The patent at issue here is U.S. Patent No. 8,005,303 that is generally directed toward a mechanism for creating a composite image,” Crouch explained.

“After reading through this claim,” he continued, “I’ll give this petition approximately 0% of winning.”

Patently-O‘s Dennis Crouch is still hoping for a miracle.”For the time being, software patents remain dead in the US. Attempts to find opportunities to override Alice (and re-open the gate to software patents) have not been successful and “so many patents are being invalidated under Section 101,” in the words of Patently-O.

That’s a good thing actually. The full paragraph states this:

The petition here is timely – not only because so many patents are being invalidated under Section 101 – but also because the Supreme Court in SCA Hygiene (2017) reaffirmed the power of Section 282(b) — holding that laches was not a congnizable defense under the provision.

Dennis Crouch has mentioned another case, noting that “[t]he district court sided with the patentee – Prism Tech’s – finding the user-authentication claims eligible under section 101. Important for the petition here, the district court relied upon substantial expert testimony as well as other documentary evidence in concluding that the claims were enforceable.”

“The outcome of this battle will depend on actions taken by the public, not just public officials. More software developers ought to get involved.”But these are district courts. The higher up such cases go, the less likely the judges are to deem abstract patents to be valid. We generally note a trend here; as time goes on there’s less “Alice denial” (like climate change denial) and more attempts to just sabotage Alice.

Will Alice ever be challenged and precedence overturned? Well, judging by the retreat from software patents everywhere but SIPO (China) and the EPO, it is not software patents — not their critics — that face an uphill battle. The outcome of this battle will depend on actions taken by the public, not just public officials. More software developers ought to get involved.

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