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Software Patents a Dead End in the United States, But Some Large Companies and Trolls Can't Help Trying (and Failing) to Float Them

Even East Texas, which advertises itself as plaintiff- and troll-friendly, might not tolerate software patents for much longer

Rodney Gilstrap



Summary: Examining some of the latest software patents that make this week's headlines and what we can learn from these

SOFTWARE patents are dying in the US, owing largely to ۤ 101 (post-Alice). Patent lawyers, as expected, are in denial about it (misleading customers in order to maintain demand) and there is a new article today/this week about ۤ 101 analysis. Mentioned therein is a "conclusion that the claims at issue fail to meet the standard for patent eligibility under ۤ 101."



"The significance of this outcome is that once again (as before) we see software patents -- once challenged enough, scrutinised properly and reassessed sufficiently -- falling short."The de facto ban on "abstract" software patents (that ought to cover all software patents) does not deter everyone, especially not deep-pocketed companies which simply hoard thousands (if not tens of thousands of patents) and then cross-license or shake down companies in bulk. According to dozens of news reports from yesterday (e.g. [1, 2, 3]), Amazon continues to patent software (this patent for audio surveillance) and today we learn that Disney tries patenting foot surveillance in parks. Talk about lack of ethics... Amazon has pushed software patents as far as Europe in spite of the clear exclusions.

As we mentioned here briefly at the start of this week, VirnetX's software patent attack on Apple is falling short, as does the stock of VirnetX [1, 2, 3, 4, 5, 6]. VirnetX is a patent troll whose existence (or worth) is little more than software patents, so the loss of the case (or at least a $625,000,000 award) was big news yesterday [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15], not just in Apple-centric sites.

The significance of this outcome is that once again (as before) we see software patents -- once challenged enough, scrutinised properly and reassessed sufficiently -- falling short. Time to leave East Texas for a balanced venue? It's probably a waste of time (and money) trying to assert these patents in a court of law, especially against large companies that can afford to withstand/endure lots of motions and appeals. That's why the main victims of software patents (and patent trolls) are small businesses; they would often settle rather than risk the high cost of never-ending legal proceedings. The SCO case has gone on for 13 years because IBM can afford this and SCO, whose only remaining existence is this one case, goes to the grave (well past bankruptcy) in a desperate effort to extract some money (much like VirnetX).

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