Bonum Certa Men Certa

The Demise of East Texan Courts and the Ascent of PTAB, Alice and a SCOTUS-Compliant CAFC May Mean That US Software Patents Are Officially 'Dead'

In the US and in Australia we're seeing signs that software patents have been left behind, whereas SIPO (China) and the EPO remain stuck in the past

Sam Houston
Sam Houston, going back to away from Houston?



Summary: Companies come to grips with the need to divest and distance themselves from abstract patents; such patents are simply not tolerated by courts anymore (even if patent offices continue granting many such patents for the sake of profit)

THE USPTO is the world's most influential patent office, so it's hardly a surprise that we dedicate so much time (and words) to it. We watch it very closely.



"Courts in East Texas (the Eastern District of Texas, abbreviated TXED/EDTX) aren't getting anywhere near the filings they used to get."Yesterday we saw this article about patents on cars -- surely a physical thing. What about software patents? As we wrote yesterday, some continue to be granted. But do courts accept them? If so, which courts? After TC Heartland we've been seeing different district courts getting involved (before the Federal Circuit is even invoked).

“The inventive concept appears to be based almost exclusively in the software. That is, the invention is a system in which software is used to do something different with signal generators than what was done before – the software enables the clinician to program the signal generator to send high-frequency signals, whereas in prior systems the software enabled the clinician to program the signal generator to send lower-frequency signals.”
      --New Judgment
Courts in East Texas (the Eastern District of Texas, abbreviated TXED/EDTX) aren't getting anywhere near the filings they used to get. We mean lawsuit filings in the docket, not patent applications or Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs). Here's yesterday's example from the Eastern District of Texas, one wherein:

The court denied plaintiff's motion for summary judgment that its wireless communication patent was not invalid for improper inventorship on the grounds that defendant could not identify a purported inventor.


With some double negation there it may be hard to digest, but ever since TC Heartland (summer of 2017) the number of lawsuits collapsed even further; there's not much assurance of positive results for the plaintiffs, who are often classic patent trolls.

"...ever since TC Heartland (summer of 2017) the number of lawsuits collapsed even further; there's not much assurance of positive results for the plaintiffs, who are often classic patent trolls."The Australian Financial Review has meanwhile published this article about Rokt's highly misguided lawsuit. Bruce Buchanan is angry at IP Australia (Australia's patent office) because Australia correctly rejects software patents (it should!). From the article:

Former Jetstar chief executive and current CEO of fast-growing Australian marketing technology start-up Rokt Bruce Buchanan has hit out at IP Australia for discouraging innovation through its approach to software patents, saying the government agency doesn't properly understand the tech industry.

Rokt is considered to be one of the country's next potential tech unicorns, having raised $34.5 million in venture funding last year, but is heading to a court battle with IP Australia over a patent it attempted to lodge to protect a method it has developed to sequence messaging between retailers and shoppers in e-commerce transactions.


So in Australia -- like in the US -- software patents are hopeless. They're not even worth pursing. We recently wrote several dozens of articles about court decisions and legislation in Australia. They're moving well away from software patents -- a fact that only upsets those who bet their 'farm' on patent litigation (with software patents).

"They're moving well away from software patents -- a fact that only upsets those who bet their 'farm' on patent litigation (with software patents)."We have meanwhile found this new article from Mass Device. It's about "Nevro’s patent spat with Boston Scientific" -- a spat which seems to involve nothing but software patents. “The inventive concept appears to be based almost exclusively in the software," the Judge rightly asserted, rejecting the claims. Here's the relevant part, in the judge's own words:

“The inventive concept appears to be based almost exclusively in the software. That is, the invention is a system in which software is used to do something different with signal generators than what was done before – the software enables the clinician to program the signal generator to send high-frequency signals, whereas in prior systems the software enabled the clinician to program the signal generator to send lower-frequency signals. Yet, in most of the asserted system claims, there is no mention of the programming function – no mention of the one aspect of the system that is actually inventive,” he wrote.


They are trying to pass off algorithms as "medical" (we gave several examples over the past month alone). I've seen these tricks in my profession, I saw that in Patrick Corcoran's last decision 4 years ago and it's a trick that all patent examiners need to become familiar with. US patent number 10,000,000 uses a similar trick and should therefore be invalidated, based on Alice/Section 101. If all one does is pick some signals/inputs from some "devices" and then processes that using a computer program, this program is then still abstract; the "devices" (which the program is oblivious to) do not add a "physical" element to the patent. In fact, they're irrelevant to it because they're not at all part of the supposed "innovation" or "inventive step".

"If one is unable to demonstrate that the skin itself is a human invention (it's not, it's just part of life/nature), then we're likely dealing here with that same old loophole and judges won't fall for it (not in higher courts anyway)."2 patents of ARANZ Medical have just been bragged about [1, 2] in yesterday's press release, perhaps attempting to conflate programs with "skin" (or "skin surface").

If one is unable to demonstrate that the skin itself is a human invention (it's not, it's just part of life/nature), then we're likely dealing here with that same old loophole and judges won't fall for it (not in higher courts anyway).

Recent Techrights' Posts

Comparing U.E.F.I. to B.I.O.S. (Bloat and Insecurity to K.I.S.S.)
By Sami Tikkanen
New 'Slides' From Stallman Support (stallmansupport.org) Site
"In celebration of RMS's birthday, we've been playing a bit. We extracted some quotes from the various articles, comments, letters, writings, etc. and put them in the form of a slideshow in the home page."
Thailand: GNU/Linux Up to 6% of Desktops/Laptops, According to statCounter
Desktop Operating System Market Share Thailand
António Campinos is Still 'The Fucking President' (in His Own Words) After a Fake 'Election' in 2022 (He Bribed All the Voters to Keep His Seat)
António Campinos and the Administrative Council, whose delegates he clearly bribed with EPO budget in exchange for votes
Adrian von Bidder, homeworking & Debian unexplained deaths
Reprinted with permission from Daniel Pocock
Sainsbury’s Epic Downtime Seems to be Microsoft's Fault and Might Even Constitute a Data Breach (Legal Liability)
one of Britain's largest groceries (and beyond) chains
Matthias Kirschner, FSFE analogous to identity fraud
Reprinted with permission from Daniel Pocock
 
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 18, 2024
IRC logs for Monday, March 18, 2024
Suicide Cluster Cover-up tactics & Debian exposed
Reprinted with permission from Daniel Pocock
Gemini Links 19/03/2024: A Society That Lost Focus and Abandoning Social Control Media
Links for the day
Matthias Kirschner, FSFE: Plagiarism & Child labour in YH4F
Reprinted with permission from Daniel Pocock
Linux Foundation Boasting About Being Connected to Bill Gates
Examples of boasting about the association
Alexandre Oliva's Article on Monstering Cults
"I'm told an earlier draft version of this post got published elsewhere. Please consider this IMHO improved version instead."
[Meme] 'Russian' Elections in Munich (Bavaria, Germany)
fake elections
Sainsbury's to Techrights: Yes, Our Web Site Broke Down, But We Cannot Say Which Part or Why
Windows TCO?
Plagiarism: Axel Beckert (ETH Zurich) & Debian Developer list hacking
Reprinted with permission from Daniel Pocock
Links 18/03/2024: Putin Cements Power
Links for the day
Flashback 2003: Debian has always had a toxic culture
Reprinted with permission from Daniel Pocock
[Meme] You Know You're Winning the Argument When...
EPO management starts cursing at everybody (which is what's happening)
Catspaw With Attitude
The posts "they" complain about merely point out the facts about this harassment and doxing
'Clown Computing' Businesses Are Waning and the Same Will Happen to 'G.A.I.' Businesses (the 'Hey Hi' Fame)
decrease in "HEY HI" (AI) hype
Free Software Needs Watchdogs, Too
Gentle lapdogs prevent self-regulation and transparency
Gemini Links 18/03/2024: LLM Inference and Can We Survive Technology?
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 17, 2024
IRC logs for Sunday, March 17, 2024
Links 17/03/2024: Microsoft Windows Shoves Ads Into Third-Party Software, More Countries Explore TikTok Ban
Links for the day
Molly Russell suicide & Debian Frans Pop, Lucy Wayland, social media deaths
Reprinted with permission from Daniel Pocock
Our Plans for Spring
Later this year we turn 18 and a few months from now our IRC community turns 16
Open Invention Network (OIN) Fails to Explain If Linux is Safe From Microsoft's Software Patent Royalties (Charges)
Keith Bergelt has not replied to queries on this very important matter
RedHat.com, Brought to You by Microsoft Staff
This is totally normal, right?
USPTO Corruption: People Who Don't Use Microsoft Will Be Penalised ~$400 for Each Patent Filing
Not joking!
The Hobbyists of Mozilla, Where the CEO is a Bigger Liability Than All Liabilities Combined
the hobbyist in chief earns much more than colleagues, to say the least; the number quadrupled in a matter of years
Jim Zemlin Says Linux Foundation Should Combat Fraud Together With the Gates Foundation. Maybe They Should Start With Jim's Wife.
There's a class action lawsuit for securities fraud
Not About Linux at All!
nobody bothers with the site anymore; it's marketing, and now even Linux
Links 17/03/2024: Abuses Against Human Rights, Tesla Settlement (and Crash)
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 16, 2024
IRC logs for Saturday, March 16, 2024
Under Taliban, GNU/Linux Share Nearly Doubled in Afghanistan, Windows Sank From About 90% to 68.5%
Suffice to say, we're not meaning to imply Taliban is "good"
Debian aggression: woman asked about her profession
Reprinted with permission from Daniel Pocock
Gemini Links 17/03/2024: Winter Can't Hurt Us Anymore and Playstation Plus
Links for the day