Bonum Certa Men Certa

The USPTO and Legal System Are Tightening Patent Scope, Which Means Virtually No Software Patents Anymore

...Not even if the algorithms are run on some “general purpose computer” (whatever that means!)

Time is tight



Summary: Software patents and lawyers who depend on them are running out of time and running low on spin/cherry-picking/excuses

YESTERDAY we wrote about video streaming patents and a notorious podcasting patent getting invalidated, with admission from the USPTO that it granted in error (prior art, not just Alice). Some software patenting proponents caught up with it and posted a link to the full decision: "Dist. Of DE Kills 2 Video Streaming Patents with Alice/ 101: http://assets.law360news.com/0824000/824998/04313306922.pdf …"



The word "kills" is intended to give this a negative connotation, just like "attacks" and "death squad" (same person uses these words a lot).

This wasn't a CAFC decision and that's actually noteworthy because nowadays the Court of Appeals for the Federal Circuit (CAFC) is a lot more likely to invalidate/reject software patents based on Alice. Speaking of CAFC, a new article by Dennis Crouch speaks of scope limitation induced by “consisting of” inside patents. To quote:

Although our attention over the past few years has focused more on eligibility and definiteness issues, claim construction continues to befuddle the courts. In MultiLayer Stretch Cling Film v. Berry Plastics (Fed. Cir. 2016), the Federal Circuit has offered a split interpretation of the patent’s Markush group claim element.

The asserted cling-film claim requires “five identifiable inner layers with each layer being selected from the group consisting of LLDPE, VLDPE, ULDPE, and mLLDPE resins.”


So here we have another example of tightening patent scope, other than what's related to Alice.

Speaking of Alice and CAFC, Troutman Sanders LLP wrote in the software patenting proponents' site earlier today, noting that according to CAFC, "Software means plus function claims Indefinite for failure to disclose algorithm," or in other words software patents are not "function [if you] then disclose a “general purpose computer” as the structure performing that function."

This is noteworthy because efforts to pass/sneak in software patents in India, Europe and New Zealand have relied on attempts to ascribe physical properties to software by stating in the patent application that it runs on some machine (typically just some ordinary off-the-shelf PC or server). To quote the funnier part from the above: "The Court also affirmed that the this means-plus-function term was indefinite. In the case of computer-implemented functions, the specification must disclose an algorithm for performing the claimed function. The patents-in-suit did not disclose an operative algorithm for the claimed “symbol generator.” The function of generating symbols must be performed by some component of the patents, but the patents did not describe this component."

So the patent/s did not even describe an algorithm, let alone pseudo-code!

It definitely looks as though patent lawyers are growing nervous, seeing year after year how more and more abstract patents get thrown down the toilet/wastebasket, essentially devaluing the remainder (those not tested in the court or in PTAB, which we shall write about next).

Recent Techrights' Posts

Politicians Ought to Invite Dr. Richard Stallman and Prof. Eben Moglen to Speak About Policies, Licensing, Digital Sovereignty
Is there something in Europe other than RMS' talk this coming Monday (that we're not yet aware of)?
Good Explanation of Why IBM Has Chosen to Conceal Mass Layoffs (of 'Expensive' Staff) as "R.T.O." (Even For People Who Never Worked at the Office to Which They're Ordered to "Return")
Many remaining IBM (or Red Hat) workers in Europe are in "cheaper" places such as Brno
Microsoft's Serial Strangler and Matthew J. Garrett Join Forces in Trying to Gag Techrights (for Exposing Microsoft Corruption and Crimes Against Women)
Whose terrible idea was it?
 
Censored: Debian Zizian transgender vigilante comparisons in open source Linux communities
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, February 22, 2025
IRC logs for Saturday, February 22, 2025
Links 22/02/2025: OpenAI Plans to Possibly Abandon Microsoft, Facebook Doubles Execs' Bonuses While Sacking Thousands
Links for the day
Gemini Links 22/02/2025: Weekend Chill and Programming Thoughts
Links for the day
Links 22/02/2025: Labour Department Investigates Microsoft Infosys Amid Mass Layoffs, Large Law Firms Caught Red Handed With LLM Slop (Defrauding Clients and Courts)
Links for the day
Gemini Links 22/02/2025: Analog Stuff, Sigil, and SSGs
Links for the day
Microsoft's Market Share in Cameroon Falls to New Lows
This means a lot of Android users (iOS is about 4 times smaller), but Android does not mean freedom
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, February 21, 2025
IRC logs for Friday, February 21, 2025
The Streisand Effect is Real
So don't be evil. Also, don't strangle women.
Links 21/02/2025: Linux Foundation Openwashing, Microsoft Copilot Goes Down
Links for the day
Links 21/02/2025: Doomscrolling and European Ham Radio Show
Links for the day
Free University of Bozen-Bolzano Proud to Host Free Software Talk by Richard Stallman
ahead of Monday's talk
Slopwatch: Anti-Linux Machine-Generated FUD (LLM Slop) From GBHackers, CybersecurityNews, and Guardian Digital, Inc (Google News Promotes Slop Plagiarism, Misinformation)
Companies that lie try to drown out the signal with falsehoods
Links 21/02/2025: TikTok Layoffs, WebOS Software Patents in Bad Hands
Links for the day
Gemini Links 21/02/2025: Web Browsers, Mechanical Shortcuts, and Internet Hygiene
Links for the day
Richard Stallman 'Only' Founded the FSF
there's no reason to be upset at the FSF for keeping their founder in the Board
Techrights Disconnected From the United States Two Years Ago
Did people really need to wait for the US government to become this hostile towards the media before recognising the threat?
Before Trying Censorship by Extortion the Serial Strangler From Microsoft Literally Begged Us to Delete Pages
This is very clearly just a broad campaign of intimidation
Hype Watch: Weeks After Microsoft Disappointed Investors With "Hey Hi" It's Trying Some "Quantum" Hype (Adding Impractical Vapourware to Accompany This Hype and Even LLM Slop in 'News' Clothing)
Remember "metaverse"? What happened to media hype about "blockchain" and "IoT"?
Report About February Mass Layoffs at Microsoft (Third Wave of Microsoft Layoffs in 2025) Comes Back From the Dead
Yesterday we wrote about an article in CRN (reporting Microsoft layoffs) being removed without any reasons specified
Links 21/02/2025: Myanmar Scam Centre and Disruptions at USPTO
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, February 20, 2025
IRC logs for Thursday, February 20, 2025