Bonum Certa Men Certa

2018 Will be an Even Worse Year for Software Patents Because the US Supreme Court Shields Alice

Positive vision for the year ahead (if you develop software)

Eye vision



Summary: The latest picks (reviewed cases) of the Supreme Court of the United States signal another year with little or no hope for the software patents lobby; PTAB too is expected to endure after a record-breaking year, in which it invalidated a lot of software patents that had been erroneously granted

THE first year of Donald Trump (anniversary 4 days from now), surprisingly enough, did not have much impact on the patent world or the patent landscape in the United States*. Congress barely did anything. One thing Trump did was, he appointed a new Justice.



Prof. Timothy Holbrook of Emory Law wrote about the US Supreme Court's decision to look into WesternGeco. From his introduction:

Patent law remains hot at the Supreme Court. The Court on January 14, 2018, agreed to review WesternGeco LLC v. ION Geophysical Corp. WesternGeco joins two other patent cases at the Supreme Court (so far) for its October 2017 term.


We wrote about this very briefly towards the end of the weekend. The good news is, no case regarding software patents or anything remotely like it will be looked at. There won't even be another Mayo. It means that we can expect no imminent changes/alterations in Section 101 and the USPTO, for the time being, has only an interim Director. He is actually the recipient of a lawsuit, Bosch v Matal, on which Kluwer remarked yesterday by saying: "The Board [PTAB] erred, however, in denying the patent owner’s request to substitute 16 amended claims for the original claims. The Board impermissibly assigned the burden of proof on patentability of the proposed amended claims to the patent owner."

This is a CAFC case regarding PTAB. CAFC cases may have some significance, but they hardly set the law at the USPTO. However this ends, it won't have any impact on PTAB. What can have impact is Oil States at the US Supreme Court (oral hearings already started). It looks, based on the proceedings so far, like all/most Justices will side with PTAB, which is widely supported (also in briefs from industry). Watchtroll's daily PTAB bashing carries on unabated (not a day without it, even on Sundays, even yesterday on MLK day). They are propping up patent trolls' agenda like a lobbying group, knowing quite well that Oil States is likely a losing game for them.

PTAB is important because -- with or without a trial -- it can invalidate any US patent at any time (if petitioned to do so). It has been a serial enforcer of the Alice test and this is why PTAB has been so scary to proponents of software patents. We still see some of these patents in the news**, but they pose a far lesser threat as long as Section 101 remains in tact and PTAB has the capacity to deal with thousands of petitions per year. Sometimes one can find another basis for thwarting litigation. In this new case, for instance, there was "future promise to assign patent rights" (“I hereby do assign” versus “I will assign”) and this meant that the whole lawsuit was baseless if not an act of misconduct (asserting or leveraging patents that aren't even one's own). Newman is standing out from the crowd and dissenting as usual. "Judge Newman dissented," it says, "believing that the employment agreement was sufficient to transfer ownership of the invention to Ms. Hsiun’s employer."

The bottom line is, the US Supreme Court (SCOTUS) will look only at WesternGeco and will thus not challenge Alice any time soon. We can therefore expect software patents to erode further and further, more so after TC Heartland (keeping litigation away from district courts that are software patents-friendly). ________ * According to IAM, Trump's regressive tax policy, or tax 'cuts' (to billionaires), will help people who price medicine out of patients' reach. "Analysts at Goldman Sachs predict a $160 billion windfall for the pharmaceuticals industry, with Abbott Laboratories, Johnson & Johnson, Amgen and Merck & Co named among those with most to gain," it said.

** More software patents, which would be deemed invalid under Alice/Section 101, still make it into the news. This one is the "over the Internet" type:

Packets are the carriers of data on the internet; they consist of user data (a payload), and also of control information about where the data should go (a header). A packet identifies its sender and addressee by their IP addresses but (currently) does not include any information about the sender’s or addressee’s physical location (geolocation); while IP addresses may indicate, generally, a geographical location, they are not an exact and perfectly reliable determinant of the location – for reasons that include, among other things, the possibility of spoofing IP addresses.

Recent Techrights' Posts

Michael “Monty” Widenius: It Started in 1983 With Richard Stallman (RMS)
The other co-founder of MySQL is a bit notorious for confronting RMS rather viciously
For the Second Time in a Few Weeks Microsoft Lunduke Makes False Accusations Against Senior Red Hat Staff to Incite a Despicable 'Troll Army'
Nothing that Microsoft Lunduke claims of says can be trusted
 
Links 03/10/2025: Lawyers Caught Using LLM Slop Explain Why They Did It, LibreSSL 4.1.1 and 4.0.1 Released
Links for the day
FSF Board Grew 50% Since Last Year, Has New President, Turns 40 in Two Days
It's a good move for the FSF and - by extension - for software freedom
Links 03/10/2025: Conflicts, Death of TypePad, and TikTok/CheeTok Gives a Boost to Far Right Groups in Europe
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 02, 2025
IRC logs for Thursday, October 02, 2025
Slopwatch: Linux Journal, Google News, and LinuxSecurity
They carry on polluting the Web with fake articles
Gemini Links 02/10/2025: Kubernetes With FreeBSD and robots.txt
Links for the day
Links 02/10/2025: 'Open' 'AI' Resorting to Gimmicks and Fake Funding, Europe’s ‘Drone Wall’ Discussed
Links for the day
Links 02/10/2025: Brave Passes 100M Users Milestone, Kodak Selling Its Own Film Again
Links for the day
su lisa && rm -rf /home/ibm/power
Novell was ruined by another person from IBM, Ronald Hovsepian
A Record Demand at Microsoft: Demand to Cancel
What we're witnessing is a very ungraceful destruction of XBox
Microsoft is Losing Europe
Hence all the "support" and "discount" offers that are limited to Europe
The Free Software Foundation Starts Fund-raising for 40th Anniversary
New pop-up 2-3 days ahead of the 40th anniversary event
Systemd Breaks Networking in Debian and Microsoft Staff Rushes to Make Face-Saving Excuses in LWN
Microsoft's bluca is already there in the comments, his Microsoft money pays for LWN to let him leave comments early
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 01, 2025
IRC logs for Wednesday, October 01, 2025
What the End of XBox Will Look Like: a Fiery Crash
XBox is the next Skype. It won't last much longer. Expect many more layoffs.
Richard Stallman is Going to Finland to Give a Talk Next Thursday
A day later he speaks in Sweden
Gemini Links 02/10/2025: SMTP Pipelining and End of ROOPHLOCH 2025
Links for the day
Slopwatch: Plagiarism, Fake Articles, and FUD About Linux
not a day goes by without Google News feeding FUD from slopfarms
Gemini Links 01/10/2025: Chat Control and End of Life
Links for the day
Links 01/10/2025: Long Covid Risk Reiterated, "Bitcoin Queen" Caught
Links for the day
Links 01/10/2025: EA $55 Billion Deal is Debt and Slop "Raises Vishing Risks"
Links for the day
Bluewashing at Red Hat Means Redundancies
The man who sold Red Hat to IBM meanwhile became a Microsoft Mono booster
After Killing OpenSource.com, IBM ('Red Hat') and OSI Told Us OpenSource.net Would Replace It (But That Didn't Happen)
Now it's time to move on, perhaps tarnishing the "Open Source" label some more (for whatever sponsor wants this)
Linux is Not a Community Project, It's a Wall Street Product
The core goal should be freedom
Bad Actors Abusing the Free Software Community, Vandalising It Using Rogue Politics and Old Tactics
Oil giants have long attempted to do this; now, the digital equivalent of Big Oil does this in technology
Social Control Media Isn't the Future, The Federation or Fediverse Isn't Growing, People's Accounts Vanish for Good
users' accounts will get deleted, not just become inactive
IBM is Failing, This Helps Show Wall Street is Entirely Detached From Actual Commercial Performance
IBM is unable to grow, it's just constantly shrinking
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 30, 2025
IRC logs for Tuesday, September 30, 2025
Clerical Aspects of Publishing and Development
In Free software, the management aspects are considerably reduced
Slopwatch: Fake Articles and Google News Promoting "Linux" Spam or Bot-Generated Fear, Uncertainty, Doubt (FUD)
These slopfarms help misplace blame
Third Wave of Microsoft Layoffs in September, This Time Many in Liverpool Affected
Be ready for more waves of layoffs ahead of the so-called "results" in late October