Bonum Certa Men Certa

The USPTO Continues to Snub the US Supreme Court and Issues Software Patents That Are Totally Bogus

US courts are constantly rejecting software patents, but the USPTO doesn't seem to care and continues to issue them anyway

"LinuxFest Northwest 2016: Software Patents After Alice: A Long and Sad Tail" [via Montana Linux, which says "Deb Nicholson talked about the state of software patents after the United States Supreme Court's ruling in the landmark Alice vs. CLS Bank case."]

Summary: The 'production line' which the USPTO has devolved into (just accepting nearly everything that comes in) passes costs of spurious litigation to the public (externality to be taxed by monopolists, trolls, and patent lawyers) and new information serves to highlight this gross injustice which is motivated by USPTO greed and corporate control (vendor captivity)

Professor Dennis Crouch, still keeping abreast of "Pending Supreme Court Patent Cases" (there are interesting SCOTUS-level patent cases on their way), brings updates about USPTO adaptations to rulings such as Alice, which basically brought the end to a lot of software patents (the USPTO should obey court rulings and end software patents, but it's too greedy to do so). The articles composed by Dennis Crouch are actually quite informative and they help us track how things are changing (Crouch's work is academic/scholarly, so he hasn't much to personally gain from patent maximalism). Writing about the latest in the Fitbit case, a patent lawyers' site says: "As an update to our April 13, 2016 blog post, US International Trade Commission administrative law judge (ALJ) Dee Lord has granted summary determination that the asserted claims of two of Jawbone’s remaining patents in its Section 337 action against Fitbit are directed to ineligible subject matter under 35 U.S.C. €§ 101."



"It’s not hard to see why large corporations are up in arms."This is basically the latest high-profile legacy of Alice, which the USPTO (unlike courts, SCOTUS included) is still trying to ignore. The USPTO is still having discussions about the subject. According to a new bit of text found by Benjamin Henrion a few days ago, the USPTO says "Functions that are not generic computer functions and therefore amount to significantly more than an idea" (PDF therein).

Does the USPTO intend to ever obey court rulings? Or is it too rogue to accept that things have changed? Its former director, David Kappos, is now actively lobbying against the Supreme Court on behalf of huge corporations -- a move which contributes to the perception of corruption in this whole system.

"Another new analysis from Crouch reinforces the idea that the patent office should enforce patent boundaries, restrict scope."It's not hard to see why large corporations are up in arms. Dennis Crouch, the pro-patents scholar, has done some research and plotted charts which show that what the patent system was created for ain't so anymore. Crouch's analysis is showing how large corporations get the lion's share of patents (first author plus bosses etc. and people who want to get some of the credit), not independent developers (same in Europe) and he adds the following interpretation of the numbers/chart:

The primary goal of the patent system is to encourage innovation – “promote the Progress of Science and useful Arts.” For me, the nature of inventorship is a fascinating pursuit: what are the factors that lead to invention and what are the results of invention?

A major shift over the past few decades in terms of inventors listed on U.S. patents is the rise of team-based inventorship. Back in 1975, the vast majority of U.S. patents were issued to a single inventor. Since that time, there has been a steady trend toward more inventors-per-patent. Around 1990 we reached a point where, for the first time, more than than half of US patents listed multiple inventors. That trend toward more inventors per patents continues today.

Drilling down, the increase is seen in patents with three or more inventors. The chart below shows the percentage of utility patents with either one listed inventor (downward sloping double line) or three+ listed inventors (upward sloping line). The drop in the first almost exactly correlates with the rise in the second. Throughout this time, the percentage of two-inventor patents has remained steady at around 25%.


Another new analysis from Crouch reinforces the idea that the patent office should enforce patent boundaries, restrict scope. But his focus, however, is the number of claims per patent, showing a very sharp decline about a decade ago (patent barriers perhaps falling far too low, allowing virtually every patent application through, or more than 90% of them). He calls this "Right Sized Patents" and adds:

Many progressive policies focus on reducing disparities (income, wealth, education, and opportunities) that reflect some social injustice between those at the top and those at the bottom of our social spectrum. Conservatives often recognize the gaps but disagree about whether the result qualifies as injustice as well as about government’s role in redistribution.

Patent policy is often easier to implement than social policy (especially compared with other property law changes) because a new generation of patents emerges every twenty years and the old generation does not hang-around protecting and directing wealth but instead melds into the Soylent of the public domain.

In some ways though, patents are bucking the social trend and becoming more standardized and less diverse – at least by some outward measurements such as document size, claims per patent, and prosecution pendency.


To rephrase that last sentence (above), patents are bucking the corporate trend and becoming low quality and more trivial. It means that those who are poor will be further impoverished and those who are rich and powerful will have more ammunition with which to marginalise the small guys (or girls). More and more small guys (or girls) are under more threats from more patents and more corporations. This means they lose control; they're being dominated. Bogus patents that are possible to invalidate in a court are too expensive to invalidate, and those whom they're asserted against don't face huge damages which can justify the legal bills (so they settle or close down the shop). Is this what the patent system was created for? Surely the opposite. The saddest thing is that the EPO too is gradually becoming more like that.

Recent Techrights' Posts

Where Microsoft's Bing Cannot Even Reach 1% "Market Share"
Looking at "I" countries
Links 16/02/2026: Barack Obama Responds to Racist Cheeto and Benjamin Mako Hill Studies Online Communities
Links for the day
IBM Reduces the Thresholds for Acceptance (and the Salaries)
Are chatbots good enough as IBM staff?
When It Comes to Rust, Keep All the Eyes on the Ball (Technical and Legal Perils, Sustainability Questions)
It's not about security or politics
 
Only One in 50 Saudis Would Use Microsoft for Search, Almost Same as Would Use Russia's Yandex
If statCounter is to be trusted
Microsoft's "AI" Concerns Are All Indian (or Low-Paid Workers Who Work Extra Hours Unpaid)
portraying charlatans and frauds like they're some kind of visionaries and luminaries
Microsoft Turned Bing Into Censorship Machine of China, But Bing Is Pegged at a Mere 2% in Asia, Yandex is Bigger
Expect many Bing layoffs some time soon (like in past years)
Just Like The Register MS, Conde Nast's Ars Technica Has Just Publicly Admitted That It Published Fake Articles (Slop) Made by LLMs About Serious Subjects
Conde Nast might shut Ars Technica down to escape the bad publicity/association
Solicitors Regulation Authority (SRA) Way Too Slow to Respond to Financial Fraud at Law Firms, in Effect Helping Those Law Firms Defraud Many More People (Fleecing Clients)
Who will hold the SRA accountable for this?
Techrights Became a Hub for News That IBM/Red Hat Doesn't Want You to See (and Pays Mainstream Media to Distract From)
the more viciously the notorious organisation attacks the reporter, the greater the interest in what the reporter has to say
EPO's Central Staff Committee on Fourth Technical Meeting, Two Days Before First of (At Least) 4 Winter Strikes at the Second-Largest European Institution
“future orientations on the salary adjustment procedure”
IBM's Collapse Continues, Half of EU Countries to Have Mass Layoffs, "IBM Clearly Disinvests From Europe" Says IBM European Works Council
Recent publication
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, February 16, 2026
IRC logs for Monday, February 16, 2026
Gemini Links 17/02/2026: Alpenglow Industries' Closure and Gemini Server Issues
Links for the day
The Southern California Linux Expo (“SCALE”) or SCALE 23x Becomes Microsoft
It's not supporting the event, it is buying it.
Microsoft to Focus on Name-Dropping Buzzwords to Distract From Declining Business, IBM RAs (Layoffs) With Staff Stack-Ranked
Calling everything cloud or reclassifying as "AI"
Another EPO Strike One Week From Now, Local Staff Committee Munich to Discuss It This Week
Campinos MIA while Office staff goes on strike at least 4 times
Gemini Links 16/02/2026: Task Completed by Avoidance and "Playing Again With Akkoma"
Links for the day
Happy Birthday (or Anniversary) to SoylentNews
"Happy Birthday SoylentNews"
Techrights' Architecture
Stability is the main goal
Linux Foundation Continues Falling Off a Cliff in Geminispace
Gemini Protocol will turn 7 this summer
Links 16/02/2026: cURL’s Daniel Stenberg Asserts That Slop is DDoSing Free Software, But Still Uses a Plagiarism and GPL-Violating Blender (Microsoft GitHub)
Links for the day
The Techrights Community Never Needed Money, Only Goodwill
We accomplish things by a track record of suppressed facts
"AboutCode" is a Microsoft Proxy and Microsoft's Acquisition of the OSI Advances Via OSI Moles
presenting direct evidence anybody can verify
Social Control Media is Just a Digital Weapon
Social control media is not social and not media
They Will Call Smart People "Luddites"
Is society "seeing the light"?
Microsoft Amutable Already Reveals That Its Focus Is Not Linux, It'll Promote "Remote Attestation"
This is basically an attack on Software Freedom, even if they toss around the brand "Linux"
More People in Chad Move to GNU/Linux
Last year we began to see GNU/Linux rising there - a trend which continues this year
Dr. Andy Farnell on How Universities and Culture of Education Got Crushed by "Technofascist Nightmare"
Farnell says he "already soft-quit in [his] mind"
Debt of Broadcom Grew by More Than 50%, Broadcom is Deeper in Debt Than Google
Expect many more cuts
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, February 15, 2026
IRC logs for Sunday, February 15, 2026
Links 15/02/2026: Slop, Politics, and Gemini
Links for the day
Small is Beautiful (in Cascading Style Sheets/Inheritance Rules)
If done correctly, pages can take a tenth of a second to fully load
Microsoft Has Fallen to New Lows in Hong Kong This Year
That Windows "market share" falls there is perhaps expected
Free Software Foundation (FSF) Raised About 1.5 Million Dollars This Winter, Almost 50% More Than in All of 2024 Combined
Verbal advocacy goes a long way
Spread the Word About EPO Strikes and Patent Injustices in Europe
Corruption in Europe is a real thing
The Register MS is Promoting Slop, Promotion Connected to Microsoft (Trying to Replace Judges With Microsoft)
marketing spun as "science"
He Did Not Have Enough Souls
A lot of the subjects we cover here no other site dares touch
"Mix Vale" is a Slopfarm
3 "articles" about "ubuntu"
Links 15/02/2026: Roy Medvedev Dead at 100, Rise of "YouTube Politicians"
Links for the day
Links 15/02/2026: How Alexey Navalny Was Executed by Putin, Erdogan Helping Iran
Links for the day
IBM Fedora Keeps Promoting Slop, Red Hat Has Been Turned Into Chaff and Trash to Help IBM's Stock (With "AI" Storytelling)
Red Hat's Fedora is an old brand (20+ years). It no longer stands for what it meant to people in the Fedora Core days (I was a Fedora user back then).
What IBM Said About 2026 Layoffs and What's Happening in Practice
t'll leave IBM at the very bottom, in due course (customers will notice something profound has changed)
Gemini Links 15/02/2026: "Already Midway February" and Loadbars Remembered
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, February 14, 2026
IRC logs for Saturday, February 14, 2026