Bonum Certa Men Certa

Software Patents in the United States as Explored in Light of Some of the Latest Cases

Justice John Marshall Portrait of Chief Justice John Marshall, 1862



Summary: The patentability of software in United States (US) continues to be challenged by courts and by PTAB (Patent Trial and Appeal Board), with no signs of the Supreme Court (SCOTUS) changing that any time soon

In order to better understand the evolution or devolution of the USPTO, we must rely on sources that are both knowledgeable and reasonably objective (or make their biases known upfront). Justin Blows' useful blog (authored by an Australian patent lawyer) is all about software patents and it now covers many recent examples of software patent cases in the US [1, 2, 3, 4, 5, 6]. Among these examples this morning we see this lawsuit from a Microsoft-connected mega-troll, Intellectual Ventures, a lawsuit from Trading Technologies, which has been stockpiling software patents, and a lawsuit from IBM, a proponent of software patents and patent aggressor. What all 9 have in common (all of them were published at 6 AM GTM) is that they involve software patents used offensively in the courts, irrespective of their outcome, which Mr. Blows is trying to analyse in order to assess prospects of software patents in the US.



"...we must rely on sources that are both knowledgeable and reasonably objective (or make their biases known upfront)."A firm of patent lawyers has just released a paper in support of software patents and calls it a "Comprehensive Study" (probably for perceived legitimacy). It has been advertised using a paid press release and based on the title alone we can see the bias ("Enforcing Software Innovation" is gobbledygook).

"Are Software Patents Relevant?"

That's the title of this good new article which states:

While proponents (usually with deep pockets) have touted their benefits, software patents have also been used in the software industry to suppress innovation, kill competition, generate undeserved royalties, and make patent attorneys rich. So I ask, are software patents still relevant?

It’s no secret that the engineering software business is extremely competitive, as it always has been. The engineering software business has also proven to be a very fertile ground for lawsuits regarding patent infringement, reverse engineering, and outright copying and pasting blocks of code.


The software industry is very different (or unique) for a lot of reasons, including pace of innovation, code reuse, reducibility to maths/logic, difficulty of tracking/enforcement, 'export', zero-cost copying and so on. Patents are completely inadequate for this area/domain. Virtually every well-informed software developer would attest to that.

"Patents are completely inadequate for this area/domain.""A rare instance of PTAB finding patent-eligible subject matter in a covered business method case," wrote a patent lawyer about this article regarding PTAB. It says that the "The U.S. Patent Trial and Appeal Board (PTAB) recently found a business method patent eligible under 35 U.S.C. €§ 101, in one of the first such decisions since the institution of Covered Business Method (CBM) Patent Reviews and the Supreme Court’s decision in Alice Corp. Pty Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014)."

Bear in mind that for patents on software or business methods to survive Alice is the exception now. As Bilski Blog has just put it (publishing new charts and figures): "It's difficult to say whether we've reached a steady state as to the boundaries of patent eligibility. The high rates of ineligibility decisions is likely to incent patent defendants to continue to argue against more traditional types of software. At some point, the courts will likely say enough is enough, and start to hold the line. Attempting to time the market is a fool's errand."

"The very existence of software patents makes the job of programming (coding/development) uncertain if not impossible."Alice/€§ 101 has changed so much for the better. It's a rare case of SCOTUS versus patent lawyers (greed) and lobbying from large corporations. Based on this updated list of upcoming SCOTUS patent cases, there's still nothing that can annul or undo Alice, however there will be a decision regarding design patents.

Speaking of €§ 101, this new article says that yesterday "the Court [was] scheduled to consider grant of certiorari in Retirement Capital Access Management Co. LLC v. U.S. Bancorp, No. 15-591, where the firstQuestion Presented asks “[w]hether subject matter eligibility under 35 U.S.C. €§ 101 is a ground specified as a condition for patentability [for post-grant review] under 35 U.S.C. €§ 282(b)(2).”"

Things do change in the US and they certainly change for the better when it comes to software patents. If only more groups, such as the EFF (focused on trolls), worked towards the same goal...

Intuitively speaking -- and studies serve to reaffirm this -- no software developer really wants software patents. The very existence of software patents makes the job of programming (coding/development) uncertain if not impossible.

"The Moral Law tells us the tune we have to play: our instincts are merely the keys."

--C.S. Lewis

Recent Techrights' Posts

Brian Kernighan, "Only Third to Dennis Richie and Ken Thompson" (UNIX), Agreed With Someone Who Said Rust Was Just Hype, Should Not Replace C
17 hours ago
Reminder: Microsoft's "Secure Boot" Certificate for "Linux" Will be Expired in One Week
Many PCs won't manage to 'rotate' to another certificate
 
BASIC Predates Microsoft by Over a Decade, Microsoft-Controlled Sites Like The Register MS Don't Want You to Know This
The state of the media is really bad when it relies a lot on oligarchs' money and is appointing editors who are working for oligarchs
Analogies for "Memory Safety" in Rust
Don't worry, it's Rust! It can do anything!
"Many of the Red Hat Employees Are Still Looking for Work"
Shame on IBM's CEO
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, September 04, 2025
IRC logs for Thursday, September 04, 2025
Microsoft Started With Code Literally From The Trash, Nothing Has Improved Since
The reality is, there are systems and code that are reliable. But they're not Microsoft's.
Hypothesis That New McKinsey/Microsoft Executive Inside Red Hat Will Outsource Research and Development Operations to India (Like They Do in IBM)
IBM is floundering
Slopwatch: Scams, Fake Articles About "Linux", Plagiarism, and Worse
Perhaps some time soon the LLMs or the "Big LLMs" will run out of money (to borrow) and go offline, leaving those slopfarms in a tough place
Gemini Links 04/09/2025: Means of Production and Rusting Out
Links for the day
Links 04/09/2025: Science, Hardware, and Eyes on China
Links for the day
Gemini Links 04/09/2025: Digital Minimalism and Social Control Media
Links for the day
IBM's GNU/Linux Divestment, Based on Hard But Anecdotal Evidence (IBM Fails to Recognise How Much Money It Made and Can Still Make From "Linux")
Love us or hate us, a lot of what we've been saying about Red Hat under IBM turns out to be rather accurate
Links 04/09/2025: Massive Microsoft Staff Cuts (Barely Reported), "Strange Conspiracy Theory Is Reportedly Spreading Inside OpenAI"
Links for the day
Activists Can Win, But Keep an Eye on the Ball and on the Trophy
GitHub is dying, it was a loss-making trap, not free hosting
Gemini Links 04/09/2025: Katrina Remembered, Distracted Driving, and Virtual Economics
Links for the day
At This Point It's No Longer Matthew Garrett But People Who Fund Matthew Garrett (or Companies That Fund His SLAPPs Against My Wife and I)
The only thing worse than misogynists are misogynists who fail to respect other people's right to go on holiday
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 03, 2025
IRC logs for Wednesday, September 03, 2025
The UEFI 9/11 - Part VI - This Serious Harm Was Planned for Over a Decade, Not an Accident or Merely Some Misfortune
The term "Serious Harm" is legally meaningful here
GNOME Unfit for Diversity and Inclusion
GNOME's leadership is using "bad words"
Brodie Robertson Addressing the Recently-Discovered Comments
Most people probably knew nothing about this until he wrote a response
Red Hat QA Team "Had Shrunk by Half Over the Past Year." (After IBM Divestment)
If Red Hat's workforce is being moved to the East, then RHEL can become a national security problem
Slopwatch: "Open Source" and "Linux" News Faked, Made by Bots and Entered Into Google News
Spam combined with slop about "Linux" has entered Google News
Links 03/09/2025: Microsoft Causes Mass Layoffs Outside Microsoft Also, "Google Can Keep Paying for Firefox Search Deal"
Links for the day
Gemini Links 03/09/2025: calendar.txt, Alhena 5.3.1, and ROOPHLOCH
Links for the day
The Theory That the Man From McKinsey, Whom Red Hat Took From Microsoft a Month Ago as Executive, Wants 'Efficiency' (Lower Salaries)
So far... no "official" word
When Your Site's Articles Are Being 'Cheapened' by Slop as Feature Images
Dr. Farnell should become an advisor to The Register MS
Certificate Authority Let's Encrypt Drops to Only Half a Dozen Capsules and 0.2% of the Whole in Geminispace, Self-Signed is the Way to Go
It used to have hundreds, according to Lupa
Doing to Red Hat What They Already Did (and Still Do) to IBM
there seems to be a drive to hire cheaper staff, and it may be led by somebody Red Hat hired from Microsoft
Links 03/09/2025: Salesforce's Latest Mass Layoffs, 93% in Large Poll at The Register MS Say UK Government Should Dump Microsoft
Links for the day
Preparations for Our 19th Anniversary Have Already Begun
When we get back we'll probably sort out some balloons and venue for the next party
Pleased After 2 Years With team.blue
Moving from a Content Management System (CMS, dynamic) to a Static Site Generator (SSG) was a wise decision that made life so much easier
The Free Software Foundation (FSF) is Being Attacked by Organisations Jealous of Its Principled Stance and Longevity
Nobody is perfect, but imperfection does not instantaneously imply sinister intent
If You Reject the Google Verdict in the US, Then You Should Also Reject the "Modern" Web (Do Something About It)
Gemini Protocol is still open; it cannot be hijacked or subverted because it's frozen by design and by intention
Open Source Initiative IRS Filing: Almost All the Money is Corporate, Stefano Maffuli (Executive Director) Takes About a Quarter of That Money for Openwashing of "AI" Ponzi Scheme
OSI is currently little but a PR/marketing agency of Microsoft
Many People Are "Leaving" Red Hat, Even High-Level Managers
Something is definitely going on at Red Hat
Techrights Has Been Subjected to Calls of Violence (and Death Threats), It Never Condoned Violence
I have no sympathy for people who call violence "free speech" and then get in trouble
Condoning Violent Behaviour and "Free Speech"
perhaps Microsoft Lunduke lost touch with what constitutes violence
Takeaway From the Google Verdict: GAFAM Has Too Much Control (Even Over the US Government and Courts With Government Appointees)
Many people feel disappointed but hardly surprised by the verdict
The Free Software Foundation (FSF) Turns 40 in One Month
As noted a few days ago, several times in fact, many people now recognise the importance of the FSF's mission, even if most people don't know what the FSF is
Many Microsoft "Assets" Are Fabricated Baloney (to Game the Numbers)
At times it seems like what we deal with are many weak patents (on algorithms), valuations or speculations based on hype ("hey hi"), and stocks held by Microsoft and its own staff
"Voluntary" Layoffs at Microsoft (to Game the Numbers, Sugar-Coating a Crisis)
"Employees interested have until the end of October to volunteer."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 02, 2025
IRC logs for Tuesday, September 02, 2025