Bonum Certa Men Certa

Software Patents Decreasingly a Threat in the United States, But IBM and Microsoft Lobby for a Rebound

David Kappos as lobbyist
Source: David Kappos interview with Intellectual Property Magazine (2010), modified by us



Summary: Software patents are not as scary as they used to be (because many are effectively found to be of no value, or ruled invalid by US courts), but patent aggressors including IBM and Microsoft work towards a software patents comeback, aided by well-connected officials such as David Kappos (above)

THE reality behind software patents in the United States (or patent policy in general) isn't just shaped by the USPTO, which grants patents too sparingly, but also by the courts, which increasingly demonstrate that the USPTO isn't doing its job (which should be examination and thus elimination of weak applications).



"Judging by the Bilski case, it might take another decade before Alice is shaken at all (if at all)."According to this new examination of upcoming SCOTUS cases, there is no imminent challenge to Alice. Judging by the Bilski case, it might take another decade before Alice is shaken at all (if at all). "Following its April 15 Conference," wrote Patently-O, "the Supreme Court denied certiorari in a set of cases, including Vermont v. MPHJ; Limelight v. Akamai; Hemopet v. Hill’s Pet Nutrition; and Tas v. Beachy. In its April 1 Conference, the Court denied cert in Retirement Capital v. US Bancorp. That case had questioned whether subject matter eligibility under 35 U.S.C. €§ 101 is a ground specified as a condition for patentability under 35 U.S.C. €§ 282(b)(2)."

It seems like very good news, unless you're some patent lawyer or patent aggressor such IBM or Microsoft (they both pay the former Director of the USPTO to discredit SCOTUS rulings and restore the fangs of software patents by altering €§ 101). Over in Texas (capital of patent trolls, see yesterday's article to that effect) the press now bemoans Alice, i.e. the death of many software patents in the United States. The article was composed by patent lawyers (surprise surprise!) and it says:

Yes, we’re being a bit dramatic here but Alice has been killing patents, and especially software patents, at an impressive clip. In this case, Alice refers to the 2014 U.S. Supreme Court opinion Alice Corp. v. CLS Bank. In that opinion, the Court announced a new two-step process to determine whether an idea is patentable and, ever since, this two-step process has been applied by courts and the Patent Office to disallow patents at an unprecedented rate. Law360 calculated that courts are granting around 70 percent of Alice motions. In raw numbers, there were more patents killed in the 14 months after Alice than in the five years before it.


It all sounds like good news, unless one is a greedy patent lawyer, especially from a place like Texas. Decline in proactive activity which invalidates software patents in the US has just been reported by MIP. To quote: "A total of 118 petitions were filed at the Patent Trial and Appeal Board (PTAB) in March, down from 150 in February but up on the 99 in January. In contrast, 145 petitions were filed in March 2015."

"It all sounds like good news, unless one is a greedy patent lawyer, especially from a place like Texas."Perhaps -- and we are only guessing here -- after Alice-led challenges (which ultimately killed patents at the knock of a gavel) more companies realise that software patents would not survive the courts anyway. It means that there's less incentive to sue at all. Suing can lead to loss of patents. As MIP put it in another article, "Patent Trial and Appeal Board (PTAB) petition filing in the first three months of 2016 fell to its lowest quarterly figure for two years."

What matters, however, is rate/ratio of invalidation.

So less than two years after PTAB's formation it seems to have become less necessary because the core issue, which is patent scope (or quality), is being addressed/tackled by Alice.

FOSS Force, a site which deals with Free/Open Source software (FOSS) matters, has just run a poll about software patents and here is what it came up with (see charts in page). To quote the author: "In recent years software patents haven’t been nearly as much in the news as they once were. This is partly due to the Supreme Court’s ruling in Alice Corp. vs. CLS Bank which took a slew of patents off the table. Also, thanks to the efforts of companies such as Newegg to duke it out in court instead of rolling over and settling, many patents that had been successfully leveraged by the trolls for years have been invalidated."

"Both are aggressive patent predators amid layoffs which threaten their very monopolistic existence."It sure seems like things are improving in the US, but don't take that for granted. Companies like IBM and Microsoft (or more recently Apple) hire lobbyists in an effort to restore the old state of affairs, enabling more patent extortion against small companies. Recall what Microsoft is still doing against FOSS distributors (using patents on software for coercion and taxation) and then consider IBM's controversial joining. Both are aggressive patent predators amid layoffs which threaten their very monopolistic existence.

As we noted here some days ago, having maliciously destroyed Yahoo, Microsoft might now go after Yahoo’s patents, which MIP says aren't that expensive anyway. To quote: "It identified 2,000 US patents currently assigned to Yahoo that are active and in-force. Yahoo’s 2015 10-K reveals the company reported almost $300 million in gains related to patent sales between 2013 and 2015."

As for IBM, there's some new patent propaganda (just published for IBM marketing), femmewashing its patents and wrongly equating them with "invention".⬆

Recent Techrights' Posts

The Register MS Helps Prove the "AI" Frenzy in the Media is Evidence of Compromised Media, Not Legitimate "Revolution"
Ignore the hype and carry on
Microsoft Insiders on "Effectively Being Silently Laid Off From Microsoft"
People are laid off by the thousands without the media uttering a word or the companies confirming anything
Microsoft's XBox CEO Asha Sharma Tells Staff That Many Thousands of Layoffs Are in Fact "Return to Growth"
Get it? Layoffs are "growth".
 
Gemini Links 08/10/2026: Economical Thrashing, How I Killed the Earth, and Thoughts on Gemini
Links for the day
Links 08/10/2026: Wikimedia Bemoans Chaffbot Slop (Bots Sold as 'Agents') That Sabotage It, ICC's Taliban Warrants
Links for the day
Links 08/10/2026: Slop Scammers (Pushers) Inflate Hosting Bills and "YouTube Testing Everything"
Links for the day
London Became Synonymous With the Royal Courts of Justice
London used to be a place where we go on holiday/retreat/break; nowadays we have only one destination there
Brigading Against Women - Part XXIII - Extremism in the Mix and Getting the Police Involved
In 2012 I was getting heckled a lot for opposing back doors in Linux; it has not stopped since
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 07, 2026
IRC logs for Wednesday, October 07, 2026
Gemini Links 07/10/2026: On Feeling Guilty Leaving the US, Multinet, and Limiting Net Usage
Links for the day
The Cyber Show Explains the Concept of "Data Rape"
a metaphor some might find crude
FREE BEER is Still Online, But Barely Active
25 years ago or even 20 years ago many spoke of open/free beer (or "COLA")
Syria: GNU/Linux Has Surged to 8% "Market Share"
I don't have a convincing explanation for this
IBM Dimming Down the Lights on IBM Consulting, No Knowledge or Experience Required
They just "ride" the (old) brand, that's all
Statement on American SLAPP
Crossposted from schestowitz.com
Today The Register MS Published "SPONSORED FEATURE" and "SPONSORED POST" With "AI" 31 Times in Them
This isn't a "Reality" or "Era of AI", it's a paid-for spam campaign
Gemini Links 07/10/2026: Nostalgia, Neutral Map, and Shorthanding
Links for the day
Links 07/10/2026: Unrest in France and Rumours of Plague in Russia
Links for the day
Brigading Against Women - Part XXII - The Lozza Problem (in Length)
Garrett's case was a waste of the Court's money
JavaScript in Richard Stallman's Web Site
For search he is using CGI, not JavaScript
EPO's Local Staff Committee The Hague (LSCTH) Plans Presentation Next Week (Coinciding With Apparent Coronation of 'Cocaine King' Campinos)
They've outsourced this session to the dictator's spying eye
The GNOME Foundation's Code of Conduct Has Been Misused to Hide Corruption
People who value free speech and freedom of expression won't touch social control media with a 10-foot bargepole
Voting for Freedom of the Press
American elections happen every 4 years
What Brett Wilson LLP and Matt Garrett Don't Want People to See/Read
Book-burning is counterproductive
Book-Burning Mindset Does Not Work
It makes the suppressed voices more widely known
Microsoft's XBox in 'Freefall'
XBox is practically finished
Slop is Plagiarism
Plagiarism is not "theft" and copyright infringement is not "piracy"
IBM is Almost Defunct
IBM is doomed. It just tries to test how much more patience the shareholders have.
Criminalisation of Journalism
"Journalist Derya Okatan arrested in Turkey for allegedly possessing classified material"
Brigading Against Women - Part XXI - Hiding Behind the Veil of "Privacy" After Telling Nazi Things in IRC Channels of Techrights and Physically Threatening People
To merely explain an abuse (or crime) requires naming people; that's a fundamental tenet of reporting
Links 07/10/2026: Quitting Smartphone and "Meta's Muse Is Spying on All Your Friends and Family"
Links for the day
Gemini Links 07/10/2026: Greed, In Praise of Zotero, and The de-Google Path
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 06, 2026
IRC logs for Tuesday, October 06, 2026
Microsoft Hiring Only on the Cheap
Much of the same can be said about GAFAM and IBM
Gemini Links 06/10/2026: Nightfall Express, Shorthanding, and Raspberry Pi Desktop Gets a Debian Trixie Refresh
Links for the day
20th Anniversary Next Month
We are currently trying to agree on a plan for next month's celebrations
Taking Photos With Richard Stallman (RMS)
What's the point?
GAFAM Attack on FreeDesktop
Now they push lots of LLM slop into Linux
EPO Union Bemoans Lack of Social Dialogue as Dictator Wishes to Govern Forever (No Elections, No Rivals), Hide the Many Issues
"Exchange of open letters"
GNU/Linux Has Risen in France Since the Order to Adopt GNU/Linux (in Public Services)
We can expect the same in countries like Denmark, Switzerland, Germany, and The Netherlands
On Microsoft Hiring Freeze or No Permanent Jobs at Microsoft Anymore (Amid Many Silent Layoffs)
Microsoft has changed what it can offer workers
IBM Cannot Hide the Layoffs Forever
we welcome whistleblower to tell us more and send us documents related to that
EPO's Central Staff Committee Asking The Council to Get Rid of Corrupt Campinos
We'll be covering EPO scandals around the time of that meeting
Gemini Links 06/10/2026: EU Kids Act, Practicality of Gemini, and Games
Links for the day
Links 06/10/2026: Data Breaches Epidemic and Turkey Blocking Journalists
Links for the day
The Whole Point of Computing is That Computers Are Deterministic (Speed With Predictable Accuracy)
Unlike stochastic parrots that stochastically utter out lies
It's Not a Linux Back Door If It's an Unpatched Device
"Linux Backdoor" is a glaring misfit, a possibly 'obscene' term
What is a Conditional Fee Agreement (CFA)? When Law Firms Become the Litigants.
And the Solicitors Regulation Authority (SRA) needs to be more serious about tackling this
Brigading Against Women - Part XX - Attempts by Lozza to Deplatform Techrights and Tux Machines Only Days After I Sued Garrett and My Wife Also Sued Garrett (Shortly Before the Serial Strangler From Microsoft Joined)
in 2024
Links 06/10/2026: A Year Since "NSA Whistleblower Reality Winner Released From Prison", World Tries to Deal With El Niño
Links for the day
"SIRIUS CORPORATION LIMITED" as Evidence of the Financial Shell Games in the UK
Rianne and I still have some fond memories of the time the ex-wife of the CEO treated us like human beings
Lots of Silent Layoffs at IBM Last Week, Employees Explain Patterns of Those Impacted
It wasn't just gossip, it actually happened even if the media chose to look the other way (as usual)
Gemini Links 06/10/2026: Fighting for Purpose, Gemlogs, and Gemtext
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 05, 2026
IRC logs for Monday, October 05, 2026