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

Snooping EPO Management, Sniffing Up Every Staff Action
It this a problem for whistleblowers? Of course.
Don't Do That
Options do exist. People should exercise freedom.
Iran Has Debunked GAFAM and Cloud Computing as Safety of Data
Cloud of smoke?
SLAPP Censorship - Part 188 Out of 200: Used, Then Discarded, by Microsoft (as We Predicted All Along, It's Always Like That)
The longer they carry on with it, the more scandalous this will get
43rd Anniversary of the GNU Project Announcement
Coming soon
SLAPP Censorship - Part 187 Out of 200: Reminding Ourselves of the Great Damage Garrett Did to Linux (for Microsoft)
he rejects freedom
 
Illegal and Unconstitutional Tribunal That SLAPPs Critics Does the Illegal and Unconstitutional: It "Rubberstamps Software Patents"
This is not a legal system. This is mafia.
Privilege in 'Linux' Foundation (Double Standards) and What the FSF Should Avoid Doing
If RMS can talk about politics, others too should be able to talk about politics
Seems Like Many Microsoft Layoffs Are Going On Right Now (Forever Layoffs)
Like IBM, Microsoft hopes shareholders will not know of morale and financial problems
More Threats From the Person of Restricted Boot Infamy
Remember this is the man who is the principal purveyor of restricted boot and who landed restricted boot in Linux
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, September 17, 2026
IRC logs for Thursday, September 17, 2026
Linux Kernel Becoming a Slopfest - Part 3 - Besieged by LLM Bots, Now Hiding Behind a Wall of JavaScript
The series began 3 days ago
Gemini Links 18/09/2026: Modern Linguistic, Boxing, Turning 40, and Solar MiniServer
Links for the day
Links 17/09/2026: Studio Closures and Negative Rumours About Microsoft XBox Again
Links for the day
What's Wrong with Microsoft's GitHub, New Article by Jacob Bachmeyer and Richard Stallman
licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License
EBay is Going to Die Soon
Users will flee
Red Hat PIPs. The Only Question is, How Many?
Insiders know what's coming soon
This Week The Register MS Published a Page With "AI" 34 Times in It and It Was, as Usual, Paid SPAM!
Does The Register MS understand that it is doing harm to its audience (for temporary gains)?
General Assembly (Meeting of All Staff) Starts in Hour Ago to Discuss Strikes at Europe's Second-Largest Institution (EPO), Strikes to Last Until End of 2026 (If Not Further)
The media absolutely does not cover this and that's intentional
Cancel Culture is a Cancer That Harms Democracy, Justice, and Science. It's Designed to Help Corporations Vanish Their Critics.
"Codes of Conduct" sounds benign; in practice, however, it is not
Links 17/09/2026: Class Action Lawsuit Over GAFAM's "NameTag" and Automattic Hides What It Did to CEO Mullenweg (or Why)
Links for the day
Gemini Links 17/09/2026: Google Signals the End, ROOPHLOCH Coverage, EBay Uses Offensive Bots to Falsely Accuse Users of Stuff
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 16, 2026
IRC logs for Wednesday, September 16, 2026
IBM's Anderon Another Opportunity for Debt-Loading, Publicity Stunts, Maybe Hidden Layoffs
Anderon is like Theranos
In Praise of 7 Years of Alex Oliva in the FSF, Not IBM
Thank you, Mr. Oliva, for 7 years of uncompressing advocacy and perseverance
SLAPP Censorship - Part 186 Out of 200: Love (Always Commands)
This coming Friday we celebrate our wedding anniversary
With Half of September Finished Clownflare Radar Sees GNU/Linux at 7% "Market Share"
On desktops/laptops
Linux Kernel Becoming a Slopfest - Part 2 - Bribes From Slop Pushers Divide Us
Money can and does divide people
Gemini Links 16/09/2026: Cards, Nature, and Conspiracy Theorists
Links for the day
Links 16/09/2026: Proprietary Chatbots Company Lets Humans Moderate Chatbots, "Putin Looking to See How Far he Can Push NATO"
Links for the day
The Only Still-Supported Version of Windows Breaks Itself (Again), the Microsoft Layoffs Will Carry on in Secret
In the US they marked about 7% for removal just this past summer
Wikileaks Turns 20 Just 18 Days From Now
it's fair to say they've endured online, but aren't lively/active
The Cyber Show Debunks the Alleged Intelligence in Slop
It's shorter than usual
Expecting Failure
Some things would not happen to technology (tech) experts because they know how things work and what to expect (or watch out for)
Links 16/09/2026: US Running Low/Out of Some Ammo Due to Wars, Slop Bots "Are Using an Outrageous Amount of Electricity"
Links for the day
"AI Slowdown" is Code Word for Bubble Imploding (Trying to Make This Slowdown Seem Wilful, an Act of Safety and Responsibility)
They help one another by inflating the bubble and making false excuses when expansion stalls
SLAPP Censorship - Part 185 Out of 200: What Reputation?
Helping monopolies and working for monopolies never made anybody popular
Gemini Links 16/09/2026: Slovenia, Catastrophe Ethics, and ROOPHLOCH 2026
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 15, 2026
IRC logs for Tuesday, September 15, 2026