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

In Central African Republic Windows Has Pretty Much Fallen to Zero
We need to focus on Software Freedom
Microsoft Windows Down to 8.5% in South Africa
South Africa and Egypt are strategic in Africa
New Series: A Deep Dive Into the Severe Corruption of the Open Source Initiative (OSI), Nowadays a Front Group and Lobbyist of Microsoft
There's a lot to show
Doing Free Software for a Living in an Era or a Time of Abundance of Code (and Fast Internet to Pass It Around Freely) or Writing When the Web is Attacked by LLM Slop
Tailoring code to needs is the key
The UEFI hype and Microsoft's lies
By Sami Tikkanen
 
Links 03/03/2025: Europe Rallies Behind Ukraine, Measles Flourishes in US Again
Links for the day
After Fund-raising Campaign the Free Software Foundation Still Raises About $13,000 Per Week (Without Campaigning for New Donors/Members)
Richard Stallman in the Board is not a liability
Links 03/03/2025: 'Monetisation' Myth' and Microsoft's LLMs Helping Criminals
Links for the day
The New Series About the Open Source Initiative (OSI) and the Microsoft Entryism in OSI is Closely Related to the SLAPP Against Techrights
Also based on the leading publication that they want removed
Links 03/03/2025: Mass Layoffs in IBM China, Intel Still in Trouble
Links for the day
3 Out of 4 in Cuba Use Linux to Access the Web
Maybe change does come about...
Links 02/03/2025: Day Off, POWER9, Console Challenge
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 02, 2025
IRC logs for Sunday, March 02, 2025
Microsoft Windows Falls to All-Time Low in Thailand
We're seeing many all-time records like these so far in 2025
Gemini Links 02/03/2025: Snowdrop Flower and Hostile Leaders
Links for the day
Links 02/03/2025: Microsoft Outlook Goes Offline, Foreign-Owned Social Control Media Interfering With Fair Elections
Links for the day
According to statCounter, Windows Falls Off a Cliff in Maharlika, GNU/Linux Surges to 5%
But mobile is king
New Video Clip of Richard Stallman's Latest Visit to and Talks in Italy
Richard Stallman or RMS giving his latest talk last week
Windows Used by Only One in Six Asians to Access the Web, According to statCounter
maybe more governments in Asia should move away from Microsoft
GNU/Linux Reaches 5% in Brazil, an All-Time High According to statCounter
There are hundreds of millions of people in that country
Google Already Dominates the Global South (via Android/Linux)
If one puts aside Russia and east Europe, not many countries exist that still connect to the Web from Windows more than from Android
GNU/Linux Widespread in Finland, Sweden, and Norway
Sweden has many Chromebooks in schools3 nations
Germany's Incoming Leader Said He'd Seek More Independence from the US, GNU/Linux Soars to 6%
Last month it was 5%
For the First Time GNU/Linux is Measured at Over 4% in Europe (Not Counting ChromeOS/Chromebooks)
Europe, on average, is now estimated to have GNU/Linux on 1 in 25 Web-connected laptops/desktops
Over 2 Years of LLM Hype and Nothing to Show for It
People still use search, not chatbots
Apple's iOS Almost Bigger Than Windows Now (Internationally), Windows Falls to 22% According to statCounter
Without Windows domination, there's not much left going for Microsoft
Putin's Loyal DOGE
We hereby crown Arvind Krishna "Putin's DOGE"
The Media Barely Reported This (Late Friday): IBM Lays Off About 2,000 More Workers, Effective Hours Ago
Maybe some diversity programs can help IBM recruit slaves or grossly-underpaid staff
Microsoft Money Being Spent to Bully Techrights Only Legitimises Techrights
The longer it goes on for, the greater the Streisand Effect
Suing One's Way Out of Real Trouble Won't Work (It Merely Increases the Trouble)
"Guns for hire" in London can only issue "legal" threats
Microsoft Writing Articles About Microsoft, Using Microsoft LLMs
Right now there are many articles about Microsoft Outlook being down completely
Gemini Links 02/03/2025: OFFLFIRSOCH 2025 and Programming
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 01, 2025
IRC logs for Saturday, March 01, 2025
Another Day and Another LLM Slopfest From Madame Day at the Slopfarm LinuxSecurity.com
Can't take a break, can she?
Sucking Up to Fascists (Like IBM's Watson Sucked Up to Adolf Hitler in the 1930s) Did Not Help IBM
IBM could stick to better principles, but instead it treats the Free software community and even its own staff like trash
Links 01/03/2025: GB News Loses Over 100 Million Pounds, Zelensky Wins World's Sympathy
Links for the day
Getting Serial Sloppers to Knock the Habit of Plagiarism by LLM Slop
All in all, the fewer the slop objects, the better
As Prices Soar and Services Shut Down (Even YouTube Starts Demanding Money for the Original or a Tolerable Experience) It's Time to Explore the Real Alternatives
https://inv.nadeko.net is the most viable instance of Invidious these days
Gemini Links 01/03/2025: Amends and GNU/Linux
Links for the day
Links 01/03/2025: Scam Altman's Latest Excuse, Google Price Hikes
Links for the day
Justice Will Find Its Way at the End
We deserve an award, not SLAPP, for what we've done
March Already, Rumours of IBM Layoffs in Brazil
Red Hat might be impacted too
Links 01/03/2025: Squashing Software Patents, USPTO Facing Additional Cuts
Links for the day
Links 01/03/2025: UNM Gopher and Getting One's Pages on gemini://
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, February 28, 2025
IRC logs for Friday, February 28, 2025