Bonum Certa Men Certa

Ignoring the Bascom Hype and the Federal Circuit's Built-in Bias, Software Patents Still Dying in US Courts

Software patents invalid
Credit: Robert R. Sachs



Summary: The trend which suggests software patents fade away in the United States, in spite of all the lobbying, remains largely uninterfered

AT TIMES when the USPTO does not care about patent quality (apathetic at best) and the Supreme Court is giving more power to CAFC, the originator of software patents in the United States, one must pay close attention to enemies of software development, i.e. those who promote software patents.



According to lawyers' media (earlier this week), "At Federal Circuit, Death of Software Patents Exaggerated". To quote the article's basis for this headline: "The U.S. Court of Appeals for the Federal Circuit continues to carve out a sliver of room for software patents.

"Alice is a lot stronger (Supreme Court) than most precedents and Enfish has proven to be rather useless in practice.""A three-judge panel on Monday found that a Texas federal judge jumped the gun when she ruled that software designed to filter internet content was ineligible for patent protection under the Supreme Court’s Alice decision.

"Judge Raymond Chen acknowledged that the patent claimed an abstract idea and that the claim limitations, taken individually, recite generic computer, network and internet components."

It's not just this one. Patent lawyers continue to worry about Alice killing software patents and any time there's an exception to that they leap at the opportunity, as they did yesterday [1, 2, 3] (the second one is also here) after CAFC had thrown a bone [1, 2, 3, 4]. It is not too shocking that the court which brought software patents to the US and has become rather notorious for corruption is throwing a bone to patent lawyers. Here is MIP's coverage of the case. "The Federal Circuit has found a software patent valid for the third time since Alice, ruling in Bascom v AT&T that “an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces”," says the summary.

Does this mean that people can now just say Halo, Enfish or Bascom in order to overturn decisions in favour of software patents? Well, not really. Alice is a lot stronger (Supreme Court) than most precedents and Enfish has proven to be rather useless in practice. As the National Law Review put it the other day: "Ever since the Supreme Court’s decision in Alice Corp. v. CLS Bank shifted the contours of patent-eligible subject matter, district courts have wielded the two-part test set forth in that decision to dispatch scores of business method patents as being directed to unpatentable abstract ideas. In a recent example, the Massachusetts district court invalidated a patent relating to inventory forecasting software using the Alice test."

"Alice not only prevent new software patents from being asserted (or granted, if the USPTO actually decides to follow the rules rather than chase gold); it also retroactively devalues or revokes old software patents."This is generally the trend nowadays, as statistics serve to show. Software patents continue to drop like flies and there is no sign (at least not yet) of the Supreme Court reversing its course of action. Regarding Yahoo, which was destroyed by Microsoft, someone finally says the obvious about its patents, which are being put on sale. Yahoo's patents may be worthless because they're primarily software patents or in the words of a Forbes blogger: "The Yahoo patents being marketed cover a number of different technology areas, including e-commerce, search, messaging, and cloud computing. However, over 80% of these IP assets are categorized as software or business method patents."

Alice not only prevent new software patents from being asserted (or granted, if the USPTO actually decides to follow the rules rather than chase gold); it also retroactively devalues or revokes old software patents. Speaking of which, yesterday the EFF's Nazer presented the "Stupid Patent Of The Month: Storage Cabinets On A Computer" (as the name/title implies, this too is a software patent).

To quote Nazer: "How do you store your paper files? Perhaps you leave them scattered on your desk or piled on the floor. If you're more organized, you might keep them in a cabinet. This month's stupid patent, US Patent No. 6,690,400 (the '400 patent), claims the idea of using "virtual cabinets" to graphically represent data storage and organization. While this is bad, the worse news is that the patent's owner is suing just about anyone who runs a website.

"With few exceptions here and there (including some from CAFC) we remain quite confident that the trend remains phasing out of software patents in the United States.""The '400 patent is owned by Global Equity Management (SA) Pty. Ltd. ("GEMSA") which seems to be a classic patent troll. GEMSA is incorporated in Australia and appears to have no business other than patent litigation. The patent began its life with a company called Flash VOS. This company once offered a product that allowed users to run multiple operating systems on personal computers with x86-compatible processors. The '400 patent describes a graphical user interface for this system. The interface allows users to interact with "graphical depictions of cabinets" that represent memory partitions and different operating systems."

The nice thing is, many patents that are like that and can be described in physical terms (or analogies) would quite likely be deemed too abstract to be patentable. With few exceptions here and there (including some from CAFC) we remain quite confident that the trend remains phasing out of software patents in the United States. Software patents proponents like patent lawyers would have us believe otherwise because they're trying to find customers and sell their services.

Recent Techrights' Posts

BetaNews Has More or Less Died After Experiments With LLM Slop, Is Linuxsecurity Next?
It doesn't seem like BetaNews knows what it's doing, let alone what it talks about
Links 13/06/2025: Journalists Targeted by Cracking, China-Japan and Israel-Iran Tensions Grow
Links for the day
 
Links 14/06/2025: Wars and L.A. Distortion Effect
Links for the day
Gemini Links 14/06/2025: Historic Ada Design and GeminiSpace.Club to Expire
Links for the day
Links 14/06/2025: India Plane Crash and Middle-Eastern War
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 13, 2025
IRC logs for Friday, June 13, 2025
Gemini Links 13/06/2025: (Not)virtues and Project Yeet Broadband
Links for the day
Links 13/06/2025: US Reduces Nonessential Staff at Baghdad Embassy Ahead of Strikes in Iran, Invasion of California Debated
Links for the day
X11 is Free Software
Whether you agree (e.g. on politics) with the person/s forking it doesn't matter
The More Time Passes, the Better Our Advice on Social Control Media Seems
At the end of the day, any platform you do not control yourself is working for someone else
Twitter (X) is Dying, Now It's Just Like a Mafia-Type Operation of the Man Who Does Nazi Salutes in Public
a form of extortion
UK High Court Blasts Brett Wilson LLP for Misusing "GDPR" After Failed Efforts to Censor Critics Using 'Libel' Claims
No wonder this firm is rapidly shrinking
Recent Blunders in Microsoft GitHub (e.g. Slop-Generated Bug Reports or GPL Violations 'as a Service') Taking Their Toll?
Put bluntly, if you still use Microsoft GitHub, then you're slave to Microsoft
American Imperialism and Microsoft Plagiarism
Techrights will therefore do what Microsoft does not want it to do: it'll write even more about Microsoft
When They Have Nothing Left to Help Advance Abusive Litigation for Microsoft People... Other Than Throwing ~500 Pages of Someone Else's Work Into a PDF
Microsoft is having a very tough year
The Price of Exposing Corruption in Poland (and Elsewhere)
It's easier to participate in corruption than to merely do the right thing and oppose it
Slopwatch and Yet More Holes in 'Secure Boot' (as Usual!), Promoted Inside Linux by the Man We Are Suing
Today's Slopwatch will be short
Gemini Links 13/06/2025: People You've Left Behind, Life Update and OS Changes
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 12, 2025
IRC logs for Thursday, June 12, 2025
Links 12/06/2025: Portland Homeless Deaths Quadruple, COVID Cases Surge in Asia
Links for the day
Abuse Inside the Polish Patent Office (UPRP) - Part IX: Minimum Wages For You (Experienced Scientist), Alicante/EU Paydays For Me (Unproductive, Corrupt Official)
Does UPRP maladministration extend to the false belief that qualified and experienced scientists can play the role of circus clowns?
"The Liberating Power of Simply Telling People the Truth."
'polite' bullying
Who Imitates Who? Plagiarist as Client (From Microsoft), 'Plagiarism' at the Law Firm?
let's revisit the subject
EPO's Gareth Lord Asked About "Quality and Productivity" or, Put Another Way, Why the EPO Keeps Granting So Many Invalid/Illegal Patents
letter to Lord
EPO's Central Staff Committee (CSC) Scrutinises the Man Who Illegally Grants (and Forces Others to Illegally Participate in Granting) Software Patents in Europe
EPO compels examiners to break the law in the name of obeying illegal "rules" or "orders"
The Latest Rumour Says The Next (as Correctly Predicted Before) Wave of Layoffs at Microsoft is 3 Weeks Away, "Larger Than the First Wave"
Step 2
TV Licensing Used to SPAM Your Postbox, Now It Does the Same to E-mail
First they ask for your E-mail address; then they start nagging you via E-mail
The Toxic Playbook
Either you support Prince Mohammed bin Salman or you're a nazi
It's Possible That BetaNews Got Cracked, But Nobody Talks About It, The Site Contains an Outdated Old Image, No Activity
It's possible that they will never explain what happened to the site and users' accounts
Links 12/06/2025: Beach Boys’ Brian Wilson Dies
Links for the day
Gemini Links 12/06/2025: Video Game Diegesis and Steam Next Fest
Links for the day
Why the Militants Have Lost Every Battle Since 2022 (When Attacking My Wife and I in Various Ways, Even Attacking Our Employers)
This takes patience, sure, but at the end most evildoers face the consequences for their actions
Our Priority is Still Tackling Software Patents and Corruption in Patent Offices
Meanwhile we got compliments on our recent articles, which means that they are effective
Politics Will Impact Software Choices
Will those systems respect users' freedom?
EPO: Neglecting Children to Promote American Monopolies by Shielding Them From European Competition
Yesterday the Central Staff Committee at the EPO spoke about another "reform" at the Office
Slopwatch: Another Day, Another Slopfest, LLM Slop Scrapers Slow Down Our Site
We too have some slop issues; this past day this site and the sister site had to answer about 2.5 million requests (not counting Gemini Protocol) and it's slowing things down for everybody
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 11, 2025
IRC logs for Wednesday, June 11, 2025