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12.12.17

The End of Software Patents and PTAB’s Role in Enforcing That End

Posted in America, Patents at 7:47 pm by Dr. Roy Schestowitz

It’s finally finished

It's finished

Summary: Software patents are fast becoming a dying breed and the appeal board (PTAB) of the USPTO accelerates this trend, irrespective of patent immunity attempts

A FEW hours ago Patently-O carried on with its Alice-bashing cartoons, showing the site’s overt support for software patents and growing fear of Alice. It will soon be 4 years since that decision, which earlier today was recalled within this article about ‘apps’. Notice the Alice part:

Utility patents protect inventions for a term of twenty years from filing. The good news is that apps are treated no differently than other types of software inventions, and can thus be protected by utility patents. The bad news, however, is that apps are treated no differently than other types of software, and are thus subject to the same undefined and poorly understood “abstract idea” exception to patentability created by the Supreme Court in Alice Corporation Pty. Ltd. v. CLS Bank International. Since the 2014 Alice decision, many software patents were invalidated, and many patent applications were rejected, for being directed to abstract ideas. But not all software inventions are abstract ideas, and applications on software continue to be allowed, and patents on software continue to be sustained.

The more time goes on, the stronger Alice will become. It has not been effectively challenged by anything. Earlier today FatPipe again showed off its “patents for software-defined networks,” perhaps not realising how silly those patents look in light of Alice.

“4 years ago we could only dream that software patents would be invalidated at this scale and efficiency.”Also revealed earlier today was this PTAB decision citing Alice and doing the usual. Basically it’s like a daily routine. PTAB has just eliminated an abstract patent (yet again) [PDF] and the patent booster responded with “PTAB Rejects Patent Application Directed to Tracking Changes in Patent Ownership with 101/Alice” (abstract).

There’s no escaping PTAB either. As Managing IP pointed out this afternoon, Allergan’s “scammer” is trying to claim otherwise:

The lawyer behind Allergan’s controversial transfer of patents to a Native American tribe says others are “lining up to do deals”. But, Michael Loney asks, will the PTAB rule that sovereign immunity applies in these types of deals?

No. In fact, courts/judges and politicians already move to close the potential loophole. Nobody will be exempted from PTAB, hence any software patent ever granted (and not expired yet) can be subjected to elimination at any time (subject to petition or “IPR” as they call it).

It’s pleasing to see just how quickly things can change. 4 years ago we could only dream that software patents would be invalidated at this scale and efficiency.

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