Bonum Certa Men Certa

Post-Alice, the Patent Microcosm is Up in Arms and Scraping the Bottom of the Barrel for Anti-Alice Material

Summary: In search of new ways to justify software patents, those who are in the legal 'industry' seek to twist cases and cherry-pick cases from the lowest possible courts, relying perhaps on lack of research and blind trust in the legal 'industry' with its so-called 'articles' (marketing disguised as news)

IT IS always nice to see the patent microcosm losing its mind over the end of software patents (Alice/Section 101). This new blog post (Carl Oppedahl on Carol Bidwell) shows how procedural issues creep in and drive them nuts, too. In fact, one patent maximalist asked: "Why would @uspto be trusted to make it easier for prosecutors? Or, practitioners in general?"



"This just served to show the sort of privilege/entitlement the patent maximalists sense that they have. ""Their job or task is not to make it easier for prosecutors," I told him. It developed into a conversation. This just served to show the sort of privilege/entitlement the patent maximalists sense that they have. If they apply for a monopoly and get rejected, that does not make them an unhappy customer but a failing applicant. People who go to job interviews, for instance, are not customers and there's no customer service when they get rejected/declined. Anyway, from the Oppedahl/Bidwell post:

An Examiner made such an objection a couple of days ago in one of our cases. We will be able to force the Examiner to withdraw the objection.

Before explaining why it is that we will have no difficulty forcing the Examiner to withdraw this objection, let’s ask ourselves how such an objection could even arise.

The requirement that the Abstract commence on a separate sheet was imposed over a decade ago, and it was for a very simple purpose — to make life easier for Reed Tech (a LexisNexis company), which is the government contractor that carries out the printing of US patents. Almost every detail of the way that you and I file and amend US patent applications is spelled out in USPTO rules that are designed to make life easier for Reed Tech.

[...]

Of course this Abstract in our case, in the form in which the USPTO computer system obtained it from the WIPO computer system, was on the front page of a published PCT application. So it was not on a page by itself. It shared a page with lots of other things such as the title and the names of the inventors.


What matters is the substance of patent applications. It has already emerged, based on EPO insiders, that many patents now get rejected only on structural grounds (like the above) rather than actual assessment of patents (because there's not enough time to actually do the job). But this post isn't about EPO. We just want to highlight similarities.

"It has already emerged, based on EPO insiders, that many patents now get rejected only on structural grounds (like the above) rather than actual assessment of patents (because there's not enough time to actually do the job)."Either way, there's danger that USPTO examiners now rush to reject patents not based on prior art etc. (which takes time and effort to find and ascertain) but based on glaring technical errors in the structure. This way examiners can fake supposed 'production' or 'productivity' (when the yardstick is number of patents processed, i.e. accepted/rejected). We certainly hope that USPTO administration staff pays attention to these things.

It has meanwhile emerged that Watchtroll moved from endless PTAB and Alice bashing to webinars in which Watchtroll was/will be promoting UPC and software patents. These people strive for a "grant everything" policy (wherein all decisions are to be made in courts where they make plenty of money through legal bills). It is appalling when they also meddle in Europe. The other day Watchtroll wrote about the Court of Appeals for the Federal Circuit (CAFC), noting that CAFC may have touched Alice again. The headline is somewhat misleading; look at the body:

In Inventor Holdings the Federal Circuit affirmed an award of attorneys fees under Octane Fitness against a business method patentee who filed suit before the Supreme Court decided Alice. The Federal Circuit affirmed the award because Inventor Holdings did not “reassess” its case in light of Alice and at that point decide sua sponte that its claims were “objectively without merit”. This was done despite the fact that business methods are not unpatentable per se and, as Inventor Holdings itself argued, it was still reasonable post-Alice to believe its patent covered eligible material because Section 101 “was, and is, an evolving area of law and… the €§ 101 inquiry in this case was therefore difficult.”

But in so holding, the Federal Circuit also provided some very useful language that could be used by patent prosecutors and litigators alike in an attempt to overcome Alice:


So it's basically some vague loophole about a case which actually predates Alice. CAFC has consistently rejected software patents throughout the year, so Watchtroll scrapes the bottom of the barrel in search of some "good news" (for patent predators like Watchtroll).

"They just try to 'sell' the idea that software patents are still worth pursuing (it's their business after all)."Other elements of the patent microcosm have meanwhile looked at district courts (lower than CAFC) for some "good news" and found the District of Minnesota denying Alice as applicable/relevant. To quote: "The District of Minnesota recently issued its fourth post-Alice decision, this time addressing the question of patent subject matter eligibility for a check processing patent. After analyzing a representative claim using the two-step Alice framework, the Honorable Susan Richard Nelson held that the claims were not directed to an abstract idea, and even if they were, provided an inventive concept. The Court also granted summary judgment in favor of Solutran, Inc. (Solutran), finding that U.S. Bancorp’s Electronic Check Service system infringed the asserted patent. For businesses that rely on check processing technology, the decision and breadth of the patent could have significant implications."

It's very rare for US courts (especially like CAFC or higher ones) to not accept Alice, so when it happens the patent microcosm amplifies it. The headlines can sometimes be misleading. They just try to 'sell' the idea that software patents are still worth pursuing (it's their business after all).

Recent Techrights' Posts

China Says Goodbye to Microsoft
It is hardly surprising that Windows is shedding off userbase all around the world
Evri (HermesUK) is Now Run by Bots and Hallucinating Scammers
Years ago they virtually removed support and tried chatbots instead
 
Laos Leaving GAFAM Behind, Gradually
Yesterday evening it was measured at 10% for GNU/Linux at one point
They Were Wrong All Along
Two women combined won't deliver a healthy baby in just 4.5 months
A "Tech Journalist" Would Not Cover Vote on LLMs as a Sex Issue
For a moment there you have to pause and wonder, is this a "Tech Journalist" or the Daily Stormer?
20,000 by Year's End
The "New Techrights" will have 20,000 pages by year's end
Last Night GNU/Linux Measured at 9% in Africa
Nighttimes in Africa are times when GNU/Linux usage on desktop/laptop devices typically surges, based on Clownflare [...] It changes in favour of GNU/Linux
Gemini Links 18/08/2026: Google Bait and Switch (Getting College People 'Hooked' on 'Cheap' Storage, Then Backups Gone), a "Question of E-mail"
Links for the day
Bluesky is in Trouble
Bluesky is a private company (unlike Bluesky Digital Assets Corp. in Toronto, that one runs a pyramid scheme!), so it's hard to know for sure just how much money it is losing
Links 18/08/2026: US Abandons South Korea, New Legal Disputes Over Slop Plagiarism in the Music Scene
Links for the day
Linux Losing Interest in Users' Freedom, Pursues DRM Instead
"Linux" is (or was, as GNU/Linux) meant to empower - not artificially restrict - the users
GNU/Linux in Ecuador and Colombia: Growing, Still Below International Average
locals turn away from Windows and try GNU/Linux instead
IBM is Dead or Dying. Now It Asks Workers to 'Resign' Voluntarily.
To save face, to pretend no layoffs are happening (as it might alarm shareholders) [...] We keep hearing more and more stories like that
Links 18/08/2026: Sergey Brin Controlling State Policies, "Dario Amodei's (Anthropic) Wife Is Closely Linked to Jeffrey Epstein"
Links for the day
SBS News Interviews Daniel Pocock
The locals say this PR stunt (by the bigot, Farage) was a waste of money
Clownflare Sees One in 7 Web Requests in Libya Originating From GNU/Linux
GNU/Linux has taken a (foot)hold there
Openwashing and Manifestos Composed in Private by Dictators With Deliberately Addictive (and Subsidised, Bundled) 'Tech'
It's long, so make a cuppa first
SLAPP Censorship - Part 153 Out of 200: Decades of Debt, Weaponising Borrowed Money to Try to Put Their Critics in Debt
they've always had a financial report by now
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, August 17, 2026
IRC logs for Monday, August 17, 2026
Gemini Links 18/08/2026: Solar Power, Kipple and Impermanence, Catastrophe Ethics
Links for the day
Less Technology, More Life
Technology is being associated (sometimes rightly) with physical and mental problems
Google Search Has Gotten Worse (a Lot Worse)
getting worse
Birthday in 80 Days
we'll start decorating and party online with our community
Loans and Massive Debt at Microsoft, This Won't End Well.
Microsoft running out of money to pay salaries (to the point of paying people for 'voluntary' layoffs) is a positive sign?
Gemini Links 17/08/2026: Life in Plain Text, Mimicking KARL, Release of Jugulans, Avoiding Slop
Links for the day
Clown Storage Without Backups
Setting up several reliable copies of the data, plus several off-site backups (this data is nowhere as sensitive as medical data), should only cost a few grand
FreeCAD is Becoming Slop-ware, Use LibreCAD Instead
It has regular releases and "Qt5 is mandatory" now [...] they at least audit what they add
Cuba and Venezuela High in Adoption of GNU/Linux
some of the "communist" nations
Links 17/08/2026: Myanmar’s Cholera Outbreak, China Sends Commercial Vessels Through Arctic
Links for the day
GAFAM Loyalty Has Come to an End, Morale Low, People Whose Future is Uncertain Choose to Become "Lifers"
morale is low and there's no loyalty anymore
SLAPP Censorship - Part 152 Out of 200: Injunctions Do Not Cover Criticism, They Have Scope
self-incriminating communications
Clownflare Sees About Quarter of Web Requests in Ireland Coming From GNU/Linux
Well, in Ireland it seems like many people adopted GNU/Linux
Clownflare: In Australia and New Zealand GNU/Linux Peaks at Over 10% During Working Hours
That right there is interesting in its own right
Slowing Down by Intention
At the moment we have 6 or 7 ongoing series
Gemini Links 17/08/2026: Chamboree, Partial Solar Eclipse, Lady Macbeth
Links for the day
Links 17/08/2026: "Bluesky Is Down Again!" and "Anti-Social Media"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, August 16, 2026
IRC logs for Sunday, August 16, 2026
A Vortex of Beacons (or "Bluetooth Everywhere" Vision)
If someone (or someones) calls you paranoid for taking about "beacon"-like functionality, there will be no lack of authoritative citations (e.g. Web links) they can be provided to prove them wrong
Falkland Islands: GNU/Linux Elevated to 6%
GNU/Linux usage seems to have increased a lot there
Links 16/08/2026: Reading Outside, Going Offline More, and Art of Computer Programming
Links for the day
The Question of Patience
Is there a lesson here somewhere?
IBM May be Sued for Mass Layoffs Via PIPs
Some whole threads (with all the long comments in them) recently got nuked by thelayoff.com
Links 16/08/2026: Ceuta Reports Social Control Media Used as a Weapon
Links for the day
Links 16/08/2026: Europe in Crisis of Droughts While Energy- and Water-Consuming, Pollution-Emitting Chatbots Are Spread by GAFAM (US) to Keep a Ponzi Scheme Going
Links for the day
GNU/Linux is a Platform for Work (Usage Surges in Daytime)
GNU/Linux 15% in daytime
We Need Rain, Not Chatbots
There's no "anti-AI" (it's not even AI), there's opposition to fraud, to plagiarism, and to companies that profit more when there's global warning (caused in part by their business activities)
SLAPP Censorship - Part 151 Out of 200: Dealing With Sleazy People and Companies That Steal (While Employing These Sleazy People)
we offer a quick summary and we're reflecting
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, August 15, 2026
IRC logs for Saturday, August 15, 2026
Gemini Links 16/08/2026: Sterrenkijker Releases, Solar Gemini Server
Links for the day