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 ActivMedia™ 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

Father of XBox Says What Microsoft Does Not Want to Hear About XBox (They All Know It's Dead)
Microsoft just worried shareholders will find out Sharma is "just a face" and an undertaker
France Needs to Focus on Software Freedom, Not Flags
We need more SIP advocacy!
Combatting Censorship in the "Civilised World": The Media Blackout Surrounding EPO Strikes and Other Large-Scale Actions
We - collectively speaking - cannot afford to keep the Office in the hands of a "Mafia"
EPO Strike Actions and Other Industrial Actions Are Effective When Management Fears the Staff and Staff No Longer Fears Any Managers
'António the unready' should get ready to be ousted
IBM Did Not Fall Because of COBOL Vapourware, IBM Still Collapses Because It's Worthless, Way Overvalued, and Very Likely Cooks the Books
language-to-language conversion (in the context of programming) is nothing new
 
Links 25/02/2026: 'Hybrid Warfare' and "Boycott the State of the Union"
Links for the day
IBM (and Red Hat) Can Disappear in the Coming Years, Along With Kyndryl (Debt Twice as Big as Its 'Worth')
No wonder Red Hat workers tell us they hate IBM
Software Freedom is Science, But It Also Sustains Life
In some sense, Software Freedom can be explained in the context of nourishing people
“Xbox, like a lot of businesses that aren’t the core AI business, is being sunsetted."
There has been a lot of narrative control lately, including at 9PM on a Friday
3,300 Capsules Known to Lupa and Currently Accessible
Gemini Protocol turns 7 this summer
When it Comes to Firmware, the FSF and Its Founder RMS Won the Argument (But Not the Fight, Yet)
The "whataboutism" tactics are physiological manipulation means of discouraging those who move in the correct direction
Austria Tackles Digital Weapon Disguised as "Social" and/or "Media"
Are we seeing the end days of Social Control Media?
Nothing Over the Horizon for XBox
XBox is not even being sold in many places anymore
Solicitors Regulation Authority (SRA) Contradicting Itself: You Can Use Slop to Cheat Clients, But You Can Also Face Disciplinary Actions Over Slop
Where does the SRA stand on the matter?
In Praise of Eben Moglen
Hopefully Professor Moglen will be with us for many decades to come and become an active speaker on issues such as Software Freedom
Sunsetting IBM (for the Benefit of Few Corrupt Officials and Wall Street Speculators)
IBM will not (and cannot) survive for much longer [...] The issue is bad leadership, not any particular nationality/race
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 24, 2026
IRC logs for Tuesday, February 24, 2026
Gemini Links 25/02/2026: Rise of Solar in 2025 and Smallnet Protocols
Links for the day
HR Blunder at IBM or IBM Struggling With Money?
Weird for such an allegedly rich company to be so stingy
Gemini Links 24/02/2026: x86 Computer In-Browser and Administration
Links for the day
Envy is the #1 Enemy of Richard Stallman
Whenever you see someone mocking Richard Stallman, ask yourself: does this person have a reason to be jealous of Richard Stallman?
Life is Sweeter When Less Means More
People need to think "small", not "big" (as in capital)
Championing a Cause
Probably over 100 million GNU/Linux users on laptops/desktops
Balmoral rape cult & Debian suicide cluster indifference, community
Reprinted with permission from Daniel Pocock
Can Much Longer Can the Financial 'Press' (Pump-n-Dump Megaphone) Cheer for IBM's Accounting Enigma?
IBM has fallen almost 25%
Religious or Not, Consider Quitting Social Control Networks (All of Them) This Season
Lent is a good time to quit addiction such as social control media
Liberating the Self From the Invisible Prison of Plutocrats-Controlled Media and Social Control Media
Can you always see the full picture or does something (someone powerful) obstruct it?
Links 24/02/2026: Drug Cartel Decapitated, Jeffrey Epstein-Connected 'Linux' Foundation Promotes Slop and Buzzwords at MWC Barcelona 2026
Links for the day
2023: Layoffs Are Because of "AI". 2024: Shares Up Owing to "AI". 2025: Shares Recently Fell Due to "AI". 2026 Forbes (Paid by IBM): Shares Falling is Good!
"AI" is smoke and mirrors
Bitcoin: Code of Conduct stifled open source concerns
Reprinted with permission from Daniel Pocock
Slop Boosters and 'Hype Agents' Render Themselves Irrelevant and the General Public Becomes Incredulous Due to "Bros Who Cry Wolf!"
It won't age well
"Half-baked Vibe Code Shipped Full of Errors"
Seems timely after our latest article
Links 24/02/2026: Copyright Litigation Over Anne Frank’s Diary, "Arrogance of Developers"
Links for the day
Another New Low for Solicitors Regulation Authority (SRA): Authorising Slop Disguised as "Legal Advice"
SRA is a lapdog - not a watchdog - of the "litigation industry"
EPO "Cocaine Communication Manager" - Part IV - "Many Jobs Were Given to Spanish Employees for No Related Skills At All"
The EPO's fate might be similar to that of the XBox
Gemini Links 24/02/2026: Hardware Tinkering and Slop Bots Attacking the "Small Web"
Links for the day
Quitting Reddit (Social Control Media Controlled by Conde Nast)
There is a new post in Reddit
IBM is the World Champion at Layoffs and There Are Reportedly More Layoffs in IBM This Month (EU)
IBM fired 60,000 in 1993
Free Software is for Everyone
Young and old, rich and poor etc.
Gemini Links 24/02/2026: Voltage Divider on Slide Rule and Many Raspberry Pi Projects
Links for the day
Links 24/02/2026: Telephone Turns 150, Political News Catchup, and Rearmament
Links for the day
Asha Sharma "a Palliative Care Doctor Who Slides Xbox Gently Into the Night"
2026 will probably be the last year of XBox
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, February 23, 2026
IRC logs for Monday, February 23, 2026
Probably IBM's Worst Day in Wall Street in Well Over a Decade
They try to blame some Anthropic slop, but that's just a distraction from IBM having nothing to offer
The Monday After the 9PM-on-Friday Prepared Puff Pieces-Under-Embargo Microsoft Strategy for XBox Collapse
There are more layoffs ahead at Microsoft's XBox
Kyndryl Also in a Freefall Today, James Kavanaugh's Accounting Skills Seem to be Based on Pumping and Dumping
What is the real value of Kyndryl when its debt is about twice its alleged "worth"?
Not Much Left to "Pump" in This Slop Bubble
let's hope that by the end of the year the whole bubble fully implodes
IBM Common Stock Crashes Hard (Almost $100 Below the Levels of February's Beginning)
Another Kyndryl?
Links 23/02/2026: Withdrawal From Slop and Ukraine Invasion Enters Fifth Year
Links for the day
Gemini Links 23/02/2026: Moving to Gentoo, Wake-on-LAN Script
Links for the day
Kyndryl Fell by About 50% in One Day, IBM Fell 23% in 20 Days
the IBM Titanic
Security and blobs, by Alex Oliva (GNU Linux-Libre)
Reprinted with permission from Alex Oliva
Trusting the Evil Maids
Don't listen to liars and frauds
Aaron Swartz Has Already Explained What Reddit/Conde Nast Meant to Him and Why We Should All Avoid Reddit If We Value Software Freedom
Aaron Swartz did not start Reddit
Valnet's Good Legacy of GNU/Linux Advocacy in Journalism Form
Let's hope they carry on like this
Techrights Thanks Every Single EPO Worker Who Went on Strike Today
We have so much in common
Coders and Thinkers
I used to be a hyper-productive coder; these days I do more thinking and writing
Slop (So-called 'genAI') is Not a Skill, Slop Gets You Suspended or Even Sacked, It Can Eventually End Your Career
Benj Edwards, a so-called 'Senior' so-called 'AI' so-called 'Reporter'
There is No Such Thing as "AI Skills", "AI Competency", "AI Fluency" Etc.
Slop does not give anybody an advantage
EPO Staff Union: The Strike Actions and Other Industrial Actions "Have Already Delivered Measurable Gains."
SUEPO Munich has just issued a statement to staff
Links 23/02/2026: "What Boston Will Cost Me" and Women as Hostages
Links for the day
IRC Usage Levels Seem to be Rebounding This Year
it looks like the total count (tally) of users increased a lot lately
Microsoft Tricked the Media Into Lying About Microsoft Layoffs in January. Now It Does the Same (in February).
Microsoft has got the media by the wallet (or balls)
Free Software Projects Become Slow Due to Slop
It does not improve efficiency or productivity, it reduces both
EPO Strike Has Begun (or Resumed)
The EPO status quo is untenable
Links 23/02/2026: US Surrenders to Climate Change (to Benefit Oil Companies and Slop), UK Court of Appeal to Hear Mazur
Links for the day
GAFAM Jobs No Longer Lucrative
Those days are long gone
Based on Insider Leaks, Asha Sharma's Job is to Kill XBox While Talking About "AI"
They cite SneakerSO
Germans Recognise the Contagion is Digital, Not Racial
How to dismantle or neutralise those weapons? Turn them off
Free Software (or Software Freedom) Ain't No Religion
It's hardly surprising that some of the loudest opponents of Software Freedom and its luminaries also disregard or bend facts
Dr. Andy Farnell Explains Why the Slop Industry is Like Trespassers and Thieves
interesting new article about robots.txt files
The Demise of the Solicitors Regulation Authority (SRA) and Profession Based Around Bullying With SLAPPs and Empty Threats
For press to survive and thrive in the UK we need the hired gun to be submerged
Linux Kernel 7.0 Release Candidate Comes Out, Stallman Turns 73 in Three Weeks
It predates Microsoft and Apple
In Greenland, Firefox's Gecko and KHTML (KDE, But Bastardised by Apple) Bigger Than Chrome
Are those Danes recognising the risk of monoculture?
Gemini Links 23/02/2026: Imperfect Journal, Evil, and "Progress Goes Boing!"
Links for the day
“Power is a Thing of Perception. They Don't Need to be Able to Kill You. They Just Need You to Think They are Able to Kill You” ― Julian Assange
When leadership becomes corrupt enough to lose a sense of authority its days are numbered; it'll be replaced
IBM Has Already Admitted 2026 Mass Layoffs (in 4Q Earnings Call)
We showed this earlier this month, but some people bring that up again
Reasons to Go on Strike in the European Patent Office (EPO)
If you live in Europe and don't work for the EPO, you can still help
First speech of Chanellor Hitler, Andreas Tille & Debian denounce Branden Robinson
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, February 22, 2026
IRC logs for Sunday, February 22, 2026