Bonum Certa Men Certa

The Greedy USPTO Leaves Loopholes, “Per Se”, for Patenting of Software in the United States Despite the Alice Case

No loopholes "as such", just loopholes "per se"

USPTO subject matter



Summary: The US patent office, USPTO, is still trying to sidestep rulings from the law setters in the United States, probably because of greed and no quality control motivations

THE United States' Supreme Court was pretty clear about abstract patents and the USPTO very begrudgingly took this into account, only after courts have time after time thrown in the wastebasket patents granted by the USPTO, where quality control is worse than black comedy (is any examination being done at all or just stamping for a fee?).



"Unsurprisingly, in this extremely unregulated system, the patent office does the very minimum to realign as per court rulings and it leaves many loopholes for patenting of abstract software ideas."Based on this page about "Patent Subject Matter Eligibility", the USPTO does not want to actually obey the law as interpreted by the Supreme Court. Unsurprisingly, in this extremely unregulated system, the patent office does the very minimum to realign as per court rulings and it leaves many loopholes for patenting of abstract software ideas. The term "per se" is mentioned at least 5 times in this page and Benjamin Henrion (FFII) rightly said that the "USPTO is abusing the "per se", as the EPO has abused "as such" to render software patentable at the end" (these words are like vague exceptions to each rule).

"Patents," wrote a patents-centric person, "New entrant in €§ 101 (subject matter eligibility) tome. When do they update MPEP?"

Henrion, who will speak about similar issues pertaining to software patents in Europe tomorrow in Brussels, responded to the above by saying "that's written by legalese guys that want to exploit loopholes."

“USPTO is abusing the "per se", as the EPO has abused "as such" to render software patentable at the end”
      --Benjamin Henrion
Another person who opposes software patents wrote: "Interpreting the Law to serve themselves? In order to obtain fees?"

Henrion later called it "EPO style power money grab" (recall how the EPO does this).

They are rendering software patents "acceptable" (or implicitly allowed) so as to grab more power and money at at the expense of citizens. This is just wrong. It shouldn't be done. These organisations have .org and .gov domains, but they operate like greedy corporations and serve the greediest corporations, not citizens.

Writing about the Court of Appeals for the Federal Circuit (CAFC), this pro-software patents site (of patent lawyers) wrote yesterday that CAFC "Did Not Abuse Its Discretion To Allow Defendant’s €§ 101 Defense After Alice; Claims for “Anonymous Load Shopping” Using Generic Computer Technology Are Abstract And Unpatentable."

It also said that "the plaintiff moved to strike the re-asserted invalidity defense under €§101 as not made with good cause and as unfairly prejudicial. The defendant argued that the change was made in view of the Supreme Court’s €§101 decision in Alice v. CLS Bank, which was decided two months before the final invalidity contentions were served. The district court agreed that the Alice decision was sufficient cause to re-assert the €§101 defense in the final invalidity contentions. The district court later granted summary judgment of invalidity under €§101. The plaintiff appealed."

As can be seen here, the USPTO grants patents on software, but as per Supreme Court rulings, these patents are ruled invalid. This means that the USPTO no longer does what's lawful and the wordings above ("per se") help show that it's not even interested in obeying the law. It just wants to exponentially grow the number of granted patents (the number doubled in a matter of a few years!).

This extreme greed means that a patent bubble is being created (leading to incorrect valuations of some companies) and it will inevitably explode/burst, causing a lot of damage to the US economy. It wouldn't be so bad for patent lawyers when it finally happened.

Australian patent lawyers, in the meantime, try to figure out how to patent software in the US and in Australia. Lawyers' media has just published "Business Method and Software Patent Eligibility: Australian and U.S. Standards" and it says:

RPL held that “[i]t is not a patentable invention simply to ‘put’ a business method ‘into’ a computer to implement the business method using the computer for its well-known and understood functions.” Stated another way, the computer cannot be “a mere tool in which the invention is performed,” but rather “must involve the creation of an artificial state of affairs where the computer is integral to the invention . . . .” The inventive aspect (“ingenuity” as termed by the Australian court) must be “in the way in which the computer is utilised,” not in the scheme, plan, or process that is being implemented.

At first blush, this sounds similar to the guide posts present in the U.S. Supreme Court’s decision in Alice Corp. v. CLS Bank Int’l. The Supreme Court held that “a mere instruction to ‘implement’ an abstract idea ‘on a computer’ . . . cannot impart patent eligibility.” Instead, citing prior cases, Alice held that the invention may be patent eligible where it “improve[s] the functioning of the computer itself,” or “effect[s] an improvement in any other technology or technical field.”


More and more places around the world, including Europe, rule/deem software patents invalid, at least when they reach the courts. It's time for the public to pressure patent offices and patent lawyers whom they interact with (all for the accumulation of money), demanding that they stop ignoring the law. They shouldn't be pursuing software patents. They are a big part of plenty of today's problems. If patents are being compared to "products" and maximisation of "sales" (to clients/customers, not applicants) is the goal, no wonder we ended up in an increasingly horrible, sordid mess.

“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway."

--Marshall Phelps, Microsoft

Recent Techrights' Posts

IBM Has Taken Control of GNOME
Don't expect a successor to be found any time soon
IRC Proceedings: Saturday, August 30, 2025
IRC logs for Saturday, August 30, 2025
 
Autumn Has Come
Autumn should be exciting in all sorts of ways; it'll also mark our anniversary
The UEFI 9/11 - Part IV - External Interference
They all seem to be playing a role in crushing Software Freedom and self-determination for users
Writing and Coding Isn't Always Enough
Last year we had to assume a role we didn't have before: litigants
Links 31/08/2025: Baggage Claim Scams, an Insurrectionist’s War on Culture, and a Sudden Robotics Hype
Links for the day
Gemini Links 31/08/2025: Reviewing Netsurf and Slightly Less Historic Ada Design
Links for the day
Links 31/08/2025: Google Gmail Data Breach and LF Puff Pieces for Pay
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
This is What Google News Has Become
Moments ago
The Slopfarm WebProNews Has Turned Google News Into a Laughing Stock Full of Plagiarism by Slop
If Google News dies of neglect, that's one thing. It's starting to seem like active neglect by Google is a form of participation.
Do What is Moral, as What's Legal Isn't Always Moral
Do what's objectively moral, no matter the costs and the risks
Slopwatch: Google News Assisting Plagiarism and Anti-Linux FUD, Serial Slopper Rips Off Linux-Centric Journalists
This makes the Web a much worse place and lessens the incentive to do journalism
Links 30/08/2025: NVIDIA Fakes Results to Hide a Bubble Already in Implosion Phase, Data Breaches Galore, Important Win for Workers' Union in Canada
Links for the day
Representing and Speaking for Animals
If I ever choose to take this matter to tribunal with animals-centric NGOs on my side, it'll get some press coverage for sure
The UEFI 9/11 - Part II - Campaign of Censorship and Defamation Against Critics
In dictatorships, humour serves an important role. It's tragic.
In Kazakhstan, Yandex Estimated to be 20 Times Bigger Than Microsoft
Bing is measured as down this month
Shutterstock Not Enough? The Register MS Uses Slop Images in Articles (Seemingly More and More Over Time)
Cost-saving trajectory amid office shutdown?
Gemini Links 30/08/2025: Games, PostmarketOS, and Slop
Links for the day
Links 30/08/2025: Imgur Uproar and Many Ukraine Updates (Mediazona Reports Over 200,000 Russians Died for Putin)
Links for the day
How Not to Build Software
code forges that need a Web browser perhaps fill some 'niche' demand
GAFAM and "MATA"
The use of dark humour there hopefully helps illuminate what a lot of "modern" technology became like and how it interacts with human civilisation (to what ends and whose gain)
Birds Are Not "Pests and Vermin", Privacy is Not a Crime, and GNU/Linux is Not 'Hacking Platform'
I could not help but think of Free software analogies
The Sites Should Be Very Fast Again
That issue is now resolved
Flying in 2025
worse than ever before
Activists, Including Technical Activists, Need Not Pursue Affirmation
Techrights doesn't play or participate in a "popularity contest"
The UEFI 9/11 - Part III - Chaos is Scheduled to Happen Second Thursday of September (No Matter What the Microsofters Tell You)
The clock is ticking
Downplaying the Impact of "UEFI 9/11" is a Losing Strategy
we won't publish much whilst on holiday
Government Sites Should Run Free Software
Not proprietary bloatware with buzzwords
LLM Slopfarms Take No Breaks
When people run sites by bots they don't need to worry about "breaks"
GNOME Having a Meltdown Again
Thanks and farewell to Steven Deobald
Gemini Links 30/08/2025: Low Tech and Hunchbin 1.0.6
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, August 29, 2025
IRC logs for Friday, August 29, 2025