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

[Video] Time to Acknowledge Debian Has a Real Problem and This Problem Needs to be Solved
it would make sense to try to resolve conflicts and issues, not exacerbate these
Daniel Pocock elected on ANZAC Day and anniversary of Easter Rising (FSFE Fellowship)
Reprinted with permission from Daniel Pocock
Ulrike Uhlig & Debian, the $200,000 woman who quit
Reprinted with permission from disguised.work
Girlfriends, Sex, Prostitution & Debian at DebConf22, Prizren, Kosovo
Reprinted with permission from disguised.work
 
[Video] Debian's Newfound Love of Censorship Has Become a Threat to the Entire Internet
SPI/Debian might end up with rotten tomatoes in the face
Joerg (Ganneff) Jaspert, Dalbergschule Fulda & Debian Death threats
Reprinted with permission from disguised.work
Amber Heard, Junior Female Developers & Debian Embezzlement
Reprinted with permission from disguised.work
[Video] IBM's Poor Results Reinforce the Idea of Mass Layoffs on the Way (Just Like at Microsoft)
it seems likely Red Hat layoffs are in the making
IRC Proceedings: Wednesday, April 24, 2024
IRC logs for Wednesday, April 24, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Links 24/04/2024: Layoffs and Shutdowns at Microsoft, Apple Sales in China Have Collapsed
Links for the day
Sexism processing travel reimbursement
Reprinted with permission from disguised.work
Microsoft is Shutting Down Offices and Studios (Microsoft Layoffs Every Month This Year, Media Barely Mentions These)
Microsoft shutting down more offices (there have been layoffs every month this year)
Balkan women & Debian sexism, WeBoob leaks
Reprinted with permission from disguised.work
Martina Ferrari & Debian, DebConf room list: who sleeps with who?
Reprinted with permission from Daniel Pocock
Links 24/04/2024: Advances in TikTok Ban, Microsoft Lacks Security Incentives (It Profits From Breaches)
Links for the day
Gemini Links 24/04/2024: People Returning to Gemlogs, Stateless Workstations
Links for the day
Meike Reichle & Debian Dating
Reprinted with permission from disguised.work
Europe Won't be Safe From Russia Until the Last Windows PC is Turned Off (or Switched to BSDs and GNU/Linux)
Lives are at stake
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 23, 2024
IRC logs for Tuesday, April 23, 2024
[Meme] EPO: Breaking the Law as a Business Model
Total disregard for the EPO to sell more monopolies in Europe (to companies that are seldom European and in need of monopoly)
The EPO's Central Staff Committee (CSC) on New Ways of Working (NWoW) and “Bringing Teams Together” (BTT)
The latest publication from the Central Staff Committee (CSC)
Volunteers wanted: Unknown Suspects team
Reprinted with permission from Daniel Pocock
Debian trademark: where does the value come from?
Reprinted with permission from Daniel Pocock
Detecting suspicious transactions in the Wikimedia grants process
Reprinted with permission from Daniel Pocock
Links 23/04/2024: US Doubles Down on Patent Obviousness, North Korea Practices Nuclear Conflict
Links for the day
Stardust Nightclub Tragedy, Unlawful killing, Censorship & Debian Scapegoating
Reprinted with permission from Daniel Pocock
Gunnar Wolf & Debian Modern Slavery punishments
Reprinted with permission from Daniel Pocock
On DebConf and Debian 'Bedroom Nepotism' (Connected to Canonical, Red Hat, and Google)
Why the public must know suppressed facts (which women themselves are voicing concerns about; some men muzzle them to save face)
Several Years After Vista 11 Came Out Few People in Africa Use It, Its Relative Share Declines (People Delete It and Move to BSD/GNU/Linux?)
These trends are worth discussing
Canonical, Ubuntu & Debian DebConf19 Diversity Girls email
Reprinted with permission from disguised.work
Links 23/04/2024: Escalations Around Poland, Microsoft Shares Dumped
Links for the day
Gemini Links 23/04/2024: Offline PSP Media Player and OpenBSD on ThinkPad
Links for the day
Amaya Rodrigo Sastre, Holger Levsen & Debian DebConf6 fight
Reprinted with permission from disguised.work
DebConf8: who slept with who? Rooming list leaked
Reprinted with permission from disguised.work
Bruce Perens & Debian: swiping the Open Source trademark
Reprinted with permission from disguised.work
Ean Schuessler & Debian SPI OSI trademark disputes
Reprinted with permission from disguised.work
Windows in Sudan: From 99.15% to 2.12%
With conflict in Sudan, plus the occasional escalation/s, buying a laptop with Vista 11 isn't a high priority
Anatomy of a Cancel Mob Campaign
how they go about
[Meme] The 'Cancel Culture' and Its 'Hit List'
organisers are being contacted by the 'cancel mob'
Richard Stallman's Next Public Talk is on Friday, 17:30 in Córdoba (Spain), FSF Cannot Mention It
Any attempt to marginalise founders isn't unprecedented as a strategy
IRC Proceedings: Monday, April 22, 2024
IRC logs for Monday, April 22, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Don't trust me. Trust the voters.
Reprinted with permission from Daniel Pocock
Chris Lamb & Debian demanded Ubuntu censor my blog
Reprinted with permission from disguised.work
Ean Schuessler, Branden Robinson & Debian SPI accounting crisis
Reprinted with permission from disguised.work
William Lee Irwin III, Michael Schultheiss & Debian, Oracle, Russian kernel scandal
Reprinted with permission from disguised.work