EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

09.02.18

Eligibility Analysis Based on Section 101 Ought to Invalidate All Software Patents and Repel Further Applications

Posted in America, Europe, Patents at 11:46 pm by Dr. Roy Schestowitz

Limits exist (and are being actively enforced) for a reason

A rejection

Summary: 35 U.S.C. § 101 does not seem to matter to examiners as much as it should; this means that courts and the Patent Trial and Appeal Board (PTAB) are typically left to clean up the mess or a clutter of wrongly-granted abstract patents

THE USPTO is still granting patents on software. It shouldn’t, but it does. All it accomplishes is lower legal certainty for US patents; how will that turn out at the end?

Alluding to computer games he once liked, patent maximalist Dennis Crouch wrote about prior art as a patent eligibility barrier:

A new petition for writ of certiorari focuses attention again on patent eligibility and the law-fact interplay. Real Estate Alliance Ltd. v. Move, Inc., SCT Docket No. 18-252.

The original focus of patent law is to “promote the Progress of . . . useful Arts.” In that vein, patents have long been awarded for inventions with concrete and practical uses — and barred to invention claims that are merely abstract ideas.

[...]

In this particular case, the courts have seen this issue as a question of law and have not really considered any hard evidence. The patent at issue is directed to a user interface that shows the geographic location of for-sale properties — using a zoomable interface. Although this idea might seem well understood today — the application claims priority back to 1986 — graphics were not so easy back then. (See Conan – my favorite game back then). U.S. Patent No. 5,032,989.

Prior art aside, there’s also Section 101 that essentially voids (or ought to void) pretty much all software patents.

A few days ago we learned about a patent on “game-like exercises to give a workout to the neuromodulatory systems in the brain that control mood.”

It was published as a promotional press release. Well, patents on computer games are just software patents (games are computer programs) so these are likely bunk patent pursuits. Did the USPTO really grant such patents? Maybe because they added big words like “neuromodulatory” and made the games sound like a science?

“Prior art aside, there’s also Section 101 that essentially voids (or ought to void) pretty much all software patents.”We are sad to see and regret to say that the USPTO still isn’t taking Section 101 seriously enough. See this other new press release [1, 2] from Numerify. Greed at the USPTO means that it keeps granting totally bogus software patents, in this case alluding to “AI and Machine learning capabilities” (still software). Seems like a game of buzzwords. This may spread elsewhere. See Thomas Prock’s new article about “medical app patents” — an article which was published with terms like “machine learning” and speaks of the UK. Never mind if British courts do not quite permit software patents so “medical app patents” would likely not be valid patents (even more so in the US after Alice/Section 101).

“Defining what constitutes technical innovation as far as apps go,” Prock wrote, “and what doesn’t, isn’t always easy, though based on well-established principles. Generally speaking however, the most patentable apps will be those that find technical solutions to the technical challenges of utilising healthcare data. It is expected that machine learning will play a significant role in this.”

“We worry that if the USPTO doesn’t get its act together and learns to reject software patents, then certainty, value and reputation of US patents will only decline further.”As is typical in Europe, the word “technical” is grossly overused and the term “app” is used instead of software. But what’s being described there has nothing to do with health (“healthcare data” is a case of trying to frame algorithms as “life-saving” because of data they can be applied to). There’s this other new report (cross-posted even [1, 2]) about an “Insulin Optimization System”; this one is at least not about software. We’ve already seen, e.g. at the EPO, attempts to associate software with “medical” just for the sake of tricking examiners. It’s the last case Patrick Corcoran dealt with before Battistelli crushed his career.

Speaking of “medical” patents, the notion that patents are inventions that improve lives (or are trophies) overlooks the fact that people invest in them with the intention to threaten, sue etc. The USPTO didn’t stay true to the goal of rewarding innovation; instead it’s about litigation and its new chief (the Director) is a litigation person, not a scientist. His appointment raises questions.

Patents are like an ‘insurance policy’ for corporations; when they have nothing left (but patents) they start to sue. ResMed must be failing pretty badly if it resorts to litigation like this, over facial masks patents. Among roundups of news we found this announcement [1, 2] late in the week:

ResMed (NYSE: RMD) (ASX: RMD), the world’s leading tech-driven medical device company and innovator in sleep apnea and respiratory care, today filed a petition with the United States International Trade Commission to stop the infringement of its patented technology by New Zealand-based medical device manufacturer Fisher & Paykel Healthcare.

So that’s what it boils down to: lawsuits. More money for lawyers.

The capital of patent trolls (east Texas) is meanwhile bragging about low-quality patents — software patents included — that are granted to potentially enable more patent blackmail. We worry that if the USPTO doesn’t get its act together and learns to reject software patents, then certainty, value and reputation of US patents will only decline further.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 28/5/2020: OpenSSH 8.3, New Mesa Release, Raspberry Pi 4 News, Fedora 32 Elections

    Links for the day



  2. The EPO Became a Very Radical Institution

    Projection tactics are doomed to say more about the people who utilise them than about anybody else; the EPO has become so autocratic and corrupt that corruption is seen as normal and workers who explain this corruption are framed as "irrational" or "crazy" or "radical"



  3. IRC Proceedings: Wednesday, May 27, 2020

    IRC logs for Wednesday, May 27, 2020



  4. Allegations That Microsoft Will Ruin Besieged Clinics and Hospitals to Retaliate Against Those Who Name the Culprit

    With a broader picture coming into view, as per the above index, we're starting to wrap up the series while issuing a call for more stories and eyewitness testimonies, exposing the nature of attacks on hospitals (those almost always target Microsoft and others' proprietary software, which is technically unfit for purpose)



  5. Microsoft Has Ideas...

    Based on the pattern of media coverage, composed by Microsoft MVPs and Microsoft-affiliated blogs/sites, confusing the public about the meaning of GNU/Linux is reminiscent of an "Extend" phase



  6. ZDNet Proves Our Point by Doing Not a Single Article About Linux (RC7), Only About Linus and Windows Clickbait Junk

    It seems abundantly clear that nobody wants to cover the actual news about Linux and instead it’s all about which PC Linus Torvalds is using (gossip/tabloid); ZDNet‘s latest two articles are an example of this…



  7. UPC Lies That Make One Laugh...

    IP Kat and Bristows (overlaps exist) are still pretending that the UPC is coming because reality doesn’t seem to matter anymore, only self-serving agenda



  8. Canonical Continues to Help Promote Windows Instead of GNU/Linux or Ubuntu

    Thrice in the past week alone Canonical used the official “Ubuntu Blog” to help Microsoft instead of GNU/Linux and it is part of a disturbing trend which lends credibility to jokes or rumours about a Microsoft takeover; it's not like many people use this thing, either (Canonical helps Microsoft shore up a dying/languishing EEE attempt)



  9. Links 27/5/2020: CoreOS Container Linux Reaches Its End-Of-Life, 2020 GNOME Foundation Elections Coming

    Links for the day



  10. IRC Proceedings: Tuesday, May 26, 2020

    IRC logs for Tuesday, May 26, 2020



  11. GNEW Seedlings vs. Free Software Deforestation

    “The idea of the GNEW Project really is about keeping the goals of the GNU Project alive — hopefully, they won’t destroy or co-opt too much of the GNU Project, that people like the Hyperbola devs can’t fix it with BSD.”



  12. Joi Ito Already Admitted on the Record That Bill Gates Had Paid MIT Through Jeffrey Epstein

    An important exhibit for the accurate historical record (because MIT has been trying to deny truth itself)



  13. It's Convenient to Call All Your Critics Nuts and/or Jealous

    Bill Gates antagonists are not motivated by hatred or jealousy but a sense of injustice; spoiled brats who break the law aren’t a source of envy any more than mass murderers are subject of admiration



  14. Real History of Microsoft and How It Became 'Successful'

    New video that contains a portion about the history of Microsoft -- the part paid-for 'journalists' (paid by Microsoft and Bill Gates) rarely or never speak about



  15. Hostility and Aggression Towards Staff That Does Not Use Windows After Windows Takes Entire Hospital Down

    Microsoft Windows, with NSA back doors, continues to take hospitals offline (with records copied by criminals if not stolen by effectively locking the originals out of reach for ransom money); but guess who’s being punished for it…



  16. They Came, They Saw, We Died...

    It cannot be overstated that we're under attack (or a "Jihad" against Linux as Bill Gates himself put it) and failing to act upon it will be costly as time may be running out and our groups are being 'bought off' by Microsoft in rapid succession, as per the plan/strategy



  17. The GitHub Takeover Was an Extension of Microsoft's War on GPL/Copyleft (Because Sharing Code to Anyone But Microsoft is 'Piracy')

    Licences that make it easier for Microsoft to 'steal' (or a lot harder for Free software to compete against proprietary software) are still being promoted by Microsoft; its GitHub tentacles (see GitHub's logo) further contribute to this agenda



  18. ZDNet is Totally a Microsoft Propaganda Machine

    The site ZDNet has become worse than useless; it lies, defames and launders the reputation of famous criminals (that's the business model these days)



  19. When Microsoft's Mask Falls (or When Times Are Rough)

    Microsoft loves Linux in the same sense that cats love mice (they might play with them until they get hungry)



  20. Careers in Free Software Aren't Careers in the Traditional Sense

    With historic unemployment rates and people 'stranded' inside their homes there's still demand and need for technology; these times of adaptation present an opportunity for Software Freedom



  21. Embrace, Extend, Extinguish 2020 Edition

    Embrace, Extend, Extinguish (E.E.E.) is alive and well, but the corrupt (paid by Microsoft) media isn't talking about it anymore; in fact, it actively cheers and encourages people/companies to enter the trap



  22. Links 26/5/2020: SHIFT13mi GNU/Linux Tablet, Linux Kodachi 7.0 and Some Qt Releases

    Links for the day



  23. EPO Propaganda on Steroids (or on EPO)

    What EPO management is saying and what is actually happening



  24. Breton (EU) 'Joins' Team UPC to Help His Buddy Battistelli... Again

    As expected, Breton acts as little but an EPO tool, looking to prop up supremacy of patent litigation over science and innovation



  25. Removing Free/Libre Software as an Inadequate Response to Microsoft Windows (With Back Doors) Getting Compromised, Killing People

    GNU/Linux takes the blame (in a sense) for incidents that are purely the fault of Microsoft and its deficient software with deliberate back doors; it's believed that this boils down to opportunistic retaliation against those looking for a solution to the problem (or merely speaking about the problem)



  26. IRC Proceedings: Monday, May 25, 2020

    IRC logs for Monday, May 25, 2020



  27. Under Distributed Denial of Service Attacks Lately, But We're Too Robust For Those

    Efforts to take Techrights offline have been ramped up lately; but it's not working and it hardly even distracts us from publishing



  28. The Art of Giving: Why Free Software Will Inevitably Survive Attacks Against It

    Societies that share and look after their peers/neighbours will always be better off than predatory societies, which breed exploitation, distrust, discord and eventually systemic collapse



  29. 'Journalism' in 2020: Far More Articles About What Computer Linus Torvalds Bought Than About Linux Releases

    Yesterday's (or late Sunday's) Linux announcement (RC7) is symptomatic of a broader issue we've long spoken about; it restricts people's ability to express an opinion, which can cloud any meritorious and substantial debate about technical matters journalists cannot grasp or comment on (it takes more effort and research)



  30. Links 25/5/2020: Wrapland Redone, DebConf20 Plans, Many More Games

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts