Bonum Certa Men Certa

Software Patents in the US and the European Loopholes Revisited

FRAND (in a standard) or "on a device" loophole

A device



Summary: While the United States distances itself from patent maximalism and moves further away from software patenting, the issue is still unresolved in Europe, which traditionally rejected such patent applications upfront

SOFTWARE patents are certainly a dying breed of patents in the United States, especially after Alice. Those who deny these trends are typically lobbyists of the software patents interest groups/profiteers. This report which was authored by Charles Bieneman, says that even the Court of Appeals for the Federal Circuit (CAFC), originator of software patents in the United States, walks back on the issue and "Maintains Unpredictability of the Law of Patent-Eligibility". To quote Bieneman: "The Federal Circuit vacated a summary judgment of invalidity under 35 U.S.C. €§ 101 after disagreeing with a district court that claims of U.S. Patent No. 7,604,929 were “directed to a patent-ineligible law of nature–that hepatocytes [liver cells] are capable of surviving multiple freeze-thaw cycles–and that the patented process lacks the requisite inventive concept.” Rapid Litigation Management, Ltd. V. Cellzdirect, Inc., No. 2015-1570 (Fed. Cir. July 5, 2016). Reading this case for broader lessons on Section 101 validity – as I read all cases that implement the Mayo/Alice patent-eligibility test – the main lesson to be drawn here is that outcomes under Section 101 remain highly situational. Patent-eligibility determinations, even more than other questions of patent law, frustratingly depend on the context of the litigation, specific words that may or may not be included in a patent claim, and, let’s be honest, the particular judge or judges hearing the case."



"The courts which actually count and are not known for corruption quite unequivocally reject software patents."At the CAFC, as noted here many times before, trial misconduct is common. It's a corrupt process. Consider the recent BASCOM case which is still mentioned in the news this week. SCOTUS, which bypasses CAFC, continues to reject challenges to Alice, e.g. the Sequenom case -- a subject which was also revisited earlier this week. The courts which actually count and are not known for corruption quite unequivocally reject software patents.

Europe, on the other hand, risks going in the very opposite direction.

According to last week's blog post from Cambridge Wireless Blog (based in the UK), "not all software is patentable, and never has been. But this is generally true: not everything is patentable. As straightforward examples, you cannot patent a piece of art, or a book, or a theme or story for a book, say. These are regarded as “non-technical”. Likewise, you cannot patent a pure business method, again in essence because they are regarded as “non-technical” and for policy reasons. You also cannot patent “scientific theories” or “mathematical methods”, again essentially for policy reasons: no-one should be allowed to patent what is already “out there”, waiting for humans to uncover it."

""fluffy" software is not patentable but "hard" software is," Benjamin Henrion noted about the premise of the above. "There is no such thing as hard software," he added. This is perhaps where the EPO loophole comes into play. If one pretends that the software is tied or combined with a device, then suddenly the software is deemed patentable. Another loophole for software patenting in Europe has been FRAND. We wrote about this for nearly a decade. FRAND has been a vector of software patents injection into standards, even where software patents are not at all valid. "FRAND And The Clash Of Industries," an article published earlier today, says the following:

They use open source licenses to handle the copyrights and patents, community governance to handle trademarks and other patents and public benefit entities to protect everyone from everyone else. Each participant in the collaboration works at their own expense in order to achieve a shared outcome that benefits all, including themselves. When they create an enhancement, fix a defect, participate in a design, they are not “working for free” or “donating their work” so much as they are “participating in co-development”. It’s a new way to leverage IP for greater benefit than directly monetising its scarcity.

[...]

But that’s not the case in markets where collaboration happens at the level of specifications and de jure standards rather than code and de facto standards, such as the telecommunications industry. Decades of comfort with SEPs and FRAND terms have resulted in a heavy investment in patents licensed in such a way that they create mutually-assured control. Telecommunications standards are so heavily encumbered with SEPs that patent pools and cross-licensing have become the norm. That in turn has created a barrier to newcomers that has made the telecommunications industry a cartel of giants.

That cartel of giants now sees its mesh of complex physical technologies coming to a lifecycle point where software dominates. The rise of apps and smart devices for the user and of software-defined and implemented infrastructure for operators, means that there is more and more of an incentive to move in to the computer and software technology markets. This in turn has created an impetus to adopt the working practices of that industry, which notably today means collaboration over shared implementation rather than just over mutually essential specifications. As a result, they seek to introduce open source into their business.

[...]

So will we create a new opportunity with regulations like EIF, or allow an existing industry to hobble another as the two collide? That’s the real question about FRAND terms for SEPs. Trying to force-fit FRAND into open source by mistakenly asserting it’s just a matter of compliance is sure to fail. Despite the name, FRAND is always discriminatory.


It is sad that so many years down the line, nearly a decade after Microsoft lobbied via groups like the Business Software Alliance, this subject remains unaddressed and FRAND remains a big barrier, even in Europe. There is much work to be done in Europe, even if the US gradually ends the era of software patenting.

Recent Techrights' Posts

Windows is an Unnatural Disaster, It is Also Avoidable
there's a wide window of opportunity opening
Killing the News With Spam and Slop Benefits Those Whose Desire is an Uninformed Population
adoption of Free software depends indirectly on political activities/activism
Open Source Initiative (OSI) Privacy Fiasco in Detail: An Introduction
Perhaps tomorrow or perhaps next week we'll share more information about what happened and what was reported to the California Privacy Protection Agency
IBM's BS (Bait, Switch) Regarding Ways to Stay Onboard
PIPs, RTOs, and forced relocations are just an illusion of choice (or ability to recover)
Banned evidence: Ars Technica forums censored email predicting DebConf23 death, Abraham Raji & Debian cover-up
Reprinted with permission from Daniel Pocock
 
Links 30/03/2025: "Quantum Randomness" and "F-1 Visa Revoked" in US
Links for the day
Gemini Links 30/03/2025: US as a Threat, Returning to the WWW
Links for the day
Links 30/03/2025: Judge Blocks Dismantling Of VOA, Turkey Arrested Many Journalists
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 29, 2025
IRC logs for Saturday, March 29, 2025
Judges Would Never Rule for Men Who Strangle Women or Against Women Who Merely Wrote Articles About Abuse They Had Received From Men
We don't intend to do "trial by media", so we won't be disclosing claims and defences until it's over
Gemini Links 29/03/2025: Less YouTube and More Station
Links for the day
In Some Countries, Such as Thailand, Firefox is Already Measured at Less Than 2% (One Day Firefox Will Get Blocked, Not Only Lack Support)
Web consolidation around Chrom-isms will doom the Web as we know it
Links 29/03/2025: Trademarks Battles, Fires Destroy More Than 3,000 South Korean Homes
Links for the day
Links 29/03/2025: More Crackdowns on Science, "Hey Hi" Slopping is Flopping
Links for the day
Costa Rica Almost Bankrupt Because of Microsoft
the incidents in Costa Rica are Windows incidents
Gemini Links 29/03/2025: Art of Looking, Wireguard, EMacs
Links for the day
Links 29/03/2025: Attacks on Social Security and War Updates
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 28, 2025
IRC logs for Friday, March 28, 2025
Intimidation, Threats, and Bullying Not Tolerated by Techrights
When it comes to our reporting, safety always comes first
A World Without Rules
We're long insisted on better laws and actual enforcement of them (applicable to all, not selectively applied)
statCounter Sees Microsoft Windows Falling to New, Unprecedented Lows in Palau
Taking Android into account, Windows is now down to an all-time low of 14%
Google News Lost the Fight to LLM Slop (While Google Itself Sells Slop, Nowadays Under the Name "Gemini")
Many people say that "Google is getting worse"; that's almost an understatement
Links 28/03/2025: AirAsia Trouble Again, UMich Culls All DEI Programs
Links for the day
Gemini Links 28/03/2025: Alexa is for Gullible People, Rant About Feature Overload
Links for the day
The SLAPPs From the Microsoft Strangler (and Sidekick) No Better Than Patent Trolling
one must never settle with trolls
Something to Celebrate in Gemini Protocol
More capsules and users join in
Links 28/03/2025: Last Reminder "to Delete Your 23andMe Data", "UK's First Permanent Facial Recognition Cameras Installed"
Links for the day
Microsoft Canonical Continues Its FUD (Fear, Uncertainty, Doubt) Campaign, Reveals Google Too Sponsored It
They're paid-for lies from a Chinese company that takes GAFAM money to write puff pieces about them
Android Rises Above 76% in Mozambique, Leaving Windows in the Dust
Windows may soon be measured as smaller than Apple's iOS
IBM, Red Hat and Microsoft Probably Also Manipulate Metrics (It Helps Con the Shareholders)
Wall Street's credibility will depend on enforcement of "checks and balances"
Slopwatch: trendhunter.com and Other Pure Junk From "Google News"
The need to vet sources is hardly new; anyone can spew out anything, anywhere. There's a need for vetting.
Gemini Links 28/03/2025: Rewatching The X-Files, Slop Concerns, and NOSTR Censorship
Links for the day
Links 28/03/2025: Australia at Risk, EPO Grants Illegal Patents With Illegal Effect
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 27, 2025
IRC logs for Thursday, March 27, 2025