Bonum Certa Men Certa

The Demise of US Software Patents Continues at the Federal Circuit

Courts decline and the judiciary rejects such patents, leading to a decline in such patent grants as well

A decline



Summary: Software patents are rotting away in the United States; it remains to be seen when the U.S. Patent and Trademark Office (USPTO) will truly/fully honour 35 U.S.C. €§ 101 and stop granting such patents

THE situation in 2018 is probably worse for software patents than it has ever been (except before such patents were introduced, a few decades after software itself had emerged). The Federal Circuit continues to affirm inter partes reviews (IPRs) undertaken by the Patent Trial and Appeal Board (PTAB) at the USPTO in (re)assessing software patents, so why does the USPTO still grant any such patents? That merely harms confidence is US patents and collectively reduces their value.



"That merely harms confidence is US patents and collectively reduces their value."As we often note here, the USPTO continues granting far too many abstract patents because of tricks like calling these "apparatus" (examples from yesterday) and buzzwords like "AI". In spite of knowing courts would void these, examiners let them be. See this day-old survey of newly-granted patents; many of them sound very abstract and here's why they're still being granted. There's more money in granting than in rejecting, but what would be the fate of the office if it kept granting patents only for them to be rendered invalid later?

"it seems like CAFC is pretty consistent in such rulings and it's therefore unsurprising that the patent microcosm attacks CAFC and its judges. These maximalists cannot think of any other strategy."In the United States' patent courts -- not Office (PTO) -- software patents are pretty much dead, but it's expensive to show this. Invalidation rates are already very high (if it gets to district courts and/or PTAB) and if one is wealthy enough, then CAFC offers even higher invalidation rates for software patents. It's about access to justice. All about money. It's just better for the rich, deep-pocketed firms. That in its own right is a profound issue.

In any case, there's some good news this week as CAFC decides to throw another bunch of software patents by the wayside. Dennis Crouch has mentioned a Microsoft case, Enfish, in relation to this. The patents are on database software (they're inherently a kind of software and the same goes for blockchains) and as one might expect these too are bunk. CAFC agrees as usual. Quoting Crouch:

On appeal here, the Federal Circuit affirms a lower court ruling that the claims of BSG’s three asserted patents are invalid as ineligible under 35 U..S.C. €§ 101. U.S. Patent Nos. 6,035,294, 6,243,699, and 6,195,652.

The claims relate to indexing a database according to “relative historical usage information.” Thus, in an automobile database with a “model” parameter, the system could display index by the popularity of the various models. In the claims, the popularity is measured by prior users of the system. Note here – the claims don’t technically require indexing by the frequency, only being able to access that information.

[...]

Enfish was a similar case — also involving a self-referential database structure. That case, the court determined that the focus was on database function and machine efficiency. Here, on the other hand, the historical information is stored just like any other data. “The claims do not recite any improvement to the way in which such databases store or organize information analogous to the self-referential table in Enfish or the adaptable memory caches in Visual Memory.”


This is fantastic news for software developers who wish to develop in peace without nuisance patent lawsuits.

Patent maximalist [1, 2] Matthew Bultman (Law360) wrote about these patents being invalidated at around the same time. To quote:

The Federal Circuit on Wednesday ruled three indexing software patents that BuySeasons Inc. was accused of infringing are invalid for claiming nothing more than an abstract idea, upholding a ruling from a judge in the Eastern District of Texas.

The appeals court, in a precedential opinion, found U.S. District Judge Robert Schroeder III correctly granted BuySeasons summary judgment that each of the asserted claims in Plano, Texas-based BSG Tech LLC’s patents are invalid.


They tried Texas, as usual.

Bultman's Law360 colleague, RJ Vogt, wrote about another case, one filed by Mirror Worlds Technologies LLC, probably not even a real company based on its registration. To quote Law360's article:



A New York federal judge has ruled that Mirror Worlds Technologies LLC failed to show that Facebook Inc. infringed three of its patents covering digital data organization technology, finding that the social media giant’s news feed and other features did not use a “main stream” as described by the patents.

The patents, issued between 1999 and 2012, protect the “Scopeware” system for file sharing, which organizes emails, documents, calendar items, software and other data into searchable chronological streams designed to replace traditional “desktop” folder interfaces that...


Finally, yesterday in PR Newswire (a press release by Diebold Nixdorf) CAFC was said to have voided another bogus patent granted by the USPTO:

Diebold Nixdorf (NYSE: DBD) announced today that the U.S. Court of Appeals for the Federal Circuit reversed the decision issued by the International Trade Commission (ITC) against the company in a patent dispute against Nautilus Hyosung. The Federal Circuit agreed with Diebold Nixdorf that Hyosung's sole remaining patent in its case against the company is invalid and unenforceable. The Federal Circuit's decision is a victory for the company, reversing the judgment of the ITC that Hyosung's patent was valid and infringed by Diebold Nixdorf.

The patent found to be invalid, U.S. Patent No. 8,523,235, relates to certain automated teller machines (ATMs) with Diebold Nixdorf's ActivMediaâ„¢ module. The underlying investigation at the ITC began with four patents, but Hyosung dismissed three of the patents after Diebold Nixdorf provided evidence that Hyosung had simply copied technology that had already been introduced by Diebold Nixdorf and other prominent manufacturers.

[...]

In that first ITC Investigation, the administrative law judge found that nearly all of Hyosung's deposit automation-enabled ATMs and modules infringe two Diebold Nixdorf patents. In fact, the administrative law judge specifically noted evidence showing that "Nautilus had knowledge of Diebold's patented technology, copied it, and encouraged its customers to use it in an infringing way." Diebold Nixdorf intends to seek damages in a jury trial in U.S. District Court for Hyosung's infringement.


Notice the trend. Also notice what the ITC had done before CAFC got involved.

We've not cherry-picking cases here; it seems like CAFC is pretty consistent in such rulings and it's therefore unsurprising that the patent microcosm attacks CAFC and its judges. These maximalists cannot think of any other strategy.

Recent Techrights' Posts

Skype Fell Off a Cliff (Microsoft Killed It), All Microsoft Has Left Now is Slop and Spaghetti Code
"This isn’t about AI. This is a puppet show to drive stock prices up and down."
Slopfarms (Machine-Generated Fake News Sites Authored by Bots With Slop Images) Spread GNU FUD
This isn't about Linux (GNU doesn't run just on Linux)
United States Federal Government's Digital Analytics Program (DAP): GNU/Linux Users Represent Close to 6% of Visitors This Year
How far has GNU/Linux gotten? Very far!
The "LLM Ouroboros of Shit" is Complemented by Even Worse Phenomena Caused by Microsoft's Contribution of SPAM and Pollution
Microsoft became a world leader in promotion of LLM slop
The LLM Ouroboros Phenomenon
Fact #1: over time slop gets worse (training set is like some blurry JPEG). Fact #2: People's "smell" for slop improves over time, as they 'train' on slop and can detect it based on prior encounters. Put 1 and 2 together.
How We Defeated DDoS Attacks
One of the best things one can do is migrate to an SSG
Microsofters Issuing Threats to Microsoft Critics Who Blog About Microsoft
So far we see that their "legal strategy" revolves around trying to discredit people like Theodore Ts'o
 
Microsoft a Top Sponsor at Red Hat Summit (IBM Selling Proprietary Spyware and Back Doors in a "Red" Trench Coat)
They both work for Microsoft
The Official SUSE Blog Uses LLM Slop to Compose Fake Articles Promoting Microsoft and Azure
even a little slop spoils the broth
Links 19/05/2025: Charges of Blackmailing Over Son Heung-min, Chad Opposition Leader Detained
Links for the day
Gemini Links 19/05/2025: Ableism, Silicon Monkeys, and More
Links for the day
Links 19/05/2025: Political Catchup and CISA Advisories
Links for the day
TheLayoff.com Has Begun Deleting Trolls/AstroTurfers Infesting the IBM Section to Discourage On-Topic Discussion About Culls and Maladministration (Bad Strategy)
Moderators have realised there's a problem
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, May 18, 2025
IRC logs for Sunday, May 18, 2025
Gemini Links 18/05/2025: Five Years on Gemini and Atom Feeds over Gopher
Links for the day
Links 18/05/2025: F.D.A. More Sceptical of COVID-19 Vaccines, UK Charges 3 Iranian Nationals In Alleged Attack Plot Against Journalists
Links for the day
Gemini Links 18/05/2025: "Finally Upgraded" and "Rebooting"
Links for the day
There Are Days or Occasions Where gemini:// Requests Almost Exceed http(s):// and Gemini Protocol Isn't Even 6 Yet
Gemini Protocol turns 6 one month from now
Abundance of Good Code, "Just Like Air."
Richard Stallman's seminal manifesto and foundational (practical) work on GNU gave us a very solid system that facilitates productive work without concerns over spyware
Messages in TheLayoff.com Drowned Out by LLM Slop (Comments Focused on Replying to Bot-Generated Provocation)
apparently shaking hands with nazis isn't as bad as calling your git repository's main branch "master"
The Importance of Full Disclosure and Transparency Online
there will be full transparency, as always
Slopwatch: Slopfarms and Serial Sloppers Still at It
Apparently Google is too understaffed to figure that out
Links 18/05/2025: Decreased Prospects of Science Careers, Disappearance of Journalists
Links for the day
Microsofters Have a Long History Trying to Take Down Techrights by Sending Threats to Webhosts
picking on women
Links 18/05/2025: Science, Censorship and European Commission Taking on Monopoly Abuse by Microsoft
Links for the day
Gemini Links 18/05/2025: Šibenik and SFJAZZ Historical Archive
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, May 17, 2025
IRC logs for Saturday, May 17, 2025
Links 17/05/2025: Microsoft Kills "Surface Laptop Studio" (More Canceled Products/Units), Groups Caution About Harms of Social Control Media
Links for the day
Gemini Links 17/05/2025: Sympathy Algorithm and SSH on Alternative Ports
Links for the day
Inviting the Founder of GNU/Linux to Events (It Only Costs His Travel Expenses) and Recalling the True Origins
It's reassuring to see belated recognition
Slopwatch: Microsoft's Anti-Linux Propaganda and Cover-up, Slopfarms Clogging Up Google News
slop-tracking activities that observe googlebombing of "Linux"
AstroTurfing by IBM in thelayoff.com is Highly Risky (and Likely Outsourced)
Microsoft did this in Reddit (and got caught), so why won't IBM too?
Links 17/05/2025: Stabber of Salman Rushdie Sentenced to 25 Years in Prison
Links for the day
The Microsofters Have Just Shared Privileged Trial Data With Microsoft
There are serious ramifications for liability accountability as Microsoft salaries sponsor these SLAPPs
Trolls With LLM Slop Are Disrupting Communications About Mass Layoffs at IBM
LLM slop to drown out the signal
Gemini Links 17/05/2025: Happier on Gemini and Manipulating Reddit
Links for the day
ComEd and Microsoft: A Mess of Spaghetti Held Together By Circus Clowns
Reprinted with permission from Ryan Farmer
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, May 16, 2025
IRC logs for Friday, May 16, 2025