Bonum Certa Men Certa

Courts Are Being Showered With Motions to Invalidate Software Patents, Former USPTO Officials Like Kappos and Stoll in a Panic

Officials-turned-lobbyists freak out as courts finally do something to combat USPTO greed

Heritage Foundation and Robert L. Stoll



Summary: Representatives of large corporations' interests, who used to actually hold key positions at the USPTO, are not particularly happy about the avalanche of software patents (slipping down the cliff)

Another death of software patents (in the US) was recently reported, but not much media attention has been paid to it. That's pretty much what we expect when the media is controlled or steered by particular interests. It should be noted that software patents are dying in bulk in the US and the 'mess' this creates (more requests for invalidation) clogs up the system. As Law 360 put it the other day:



Three federal judges from California and Delaware speaking Tuesday at a symposium to honor retiring U.S. District Judge Ronald Whyte criticized the U.S. Supreme Court’s Alice ruling, saying it has spurred hundreds of patent invalidity motions in their districts, and its two-part test for analyzing patent validity is too subjective.


As a proponent of software patents put it, "Fed. Judges Report that Their Dockets Are Clogged by 101/Alice; Test Too Subjective to Use..." (that latter part is made up, it's not even in the headline or the article, at least outside the paywall).

"Don't think that lobbyists and think tanks of large corporations will just stay idle and watch this without a reaction."What's worth emphasising, verbatim from the above, is: "hundreds of patent invalidity motions in their districts" (good news!)

Don't think that lobbyists and think tanks of large corporations will just stay idle and watch this without a reaction. Watch how in the David Kappos years patent quality in the USPTO sank to gutter level (we wrote about this many times before). This new chart speaks for itself. "In the end," remarks the author, "the Patent Office was able to ramp-up production enough to end FY2016 with the most utility patents issued in any fiscal year in history – 304,500 utility patents!"

What they mean by "production" is what Battistelli means by production. It's a distortion of the whole patent system for the sake of short-term profit gains. Battistelli basically repeats the mistakes of Kappos, who is nowadays a paid lobbyist for software patents. "In Europe" according to IAM, "they have not degraded patents like in the US, says Kappos #LESAM16"

Actually, they are now. Battistelli fancies himself another Kappos. As Benjamin Henrion said in response, "he means corrupt and malicious EPO still grants software patents?"

Well, it has certainly gotten there. Insiders told us this too.

"Don't let the USPTO decide on patent scope."So while the US moves away from software patents, having ejected this disaster who was David Kappos, Europe under Battistelli turns patent examination into a production line with minimal quality control -- the very thing that the US Government Accountability Office recently warned about.

According to this very recent post, Kappos took his lobbying to AIPLA and "Director Lee is likely nearing the end of her term as USPTO Director." Here is the part which mentions Kappos: "USPTO Director Michelle Lee offered a set of Remarks at the October 28, 2016 AIPLA Luncheon. As a presidential appointee, Director Lee is likely nearing the end of her term as USPTO Director. Although the likely election of fellow Democrat Hillary Clinton suggests a smooth transition that could extend her term beyond January 2017, I expect that she will step-down prior to that point and that Deputy Director Russ Slifer will step-up as Acting Director."

According to this post from IAM, the USPTO improves patent quality somewhat (Mayo/Alice) and associated fees go up. A sign of improvement to come? Here is how Patently-O put it:

From the USPTO: The U.S. Department of Commerce’s United States Patent and Trademark Office (USPTO) today announced that as part of its effort to solicit input from the public regarding the legal contours of patent subject matter eligibility, it will be holding two roundtables, one in November and one in December.

“In recent years, the jurisprudence on the very basic issue of what is patent eligible subject matter has been evolving requiring adjustments by innovators, businesses, lower courts and administrative agencies such as the USPTO,” said Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office Michelle K. Lee. “Our goal is to minimize any uncertainty in the patent system by ensuring we not only continue to apply the statute and case law in this area as faithfully as possible, but also understand the impact of the jurisprudence on innovation by assessing what, if any, changes might be helpful to further support innovation.”


Don't let the USPTO decide on patent scope. It's not their job and they are biased because more patents mean job security for them, at the expense of the public that's attacked by patent trolls and taxed at every corner by low-quality patents. As a cautionary tale look at the EPO.

Meanwhile, the Wall Street media gives a platform to the former USPTO patent commissioner -- a broad platform in which to promote patent maximalism, as usual. Here is what Robert L. Stoll wrote earlier this month:

In conclusion, after a long spell of bad news, Planet Blue—along with decisions like Bascom and Enfish—provides software innovators, applicants and owners with not only increased clarity, but also concrete evidence that the courts are working to address the challenges arising from the Alice test and that we're not headed for a software patent apocalypse (as some have claimed).

I, for one, remain optimistic that the courts and PTO are fully committed to a healthy patent system and will continue working to resolve the remaining issues around patent eligibility and to ensure that effective patent protection is available to innovations in software (and every other field of technology).


Why does Stoll call the end of software patents "bad news"? Is he -- like Kappos -- a former USPTO official that's now de facto lobbyist on patent scope, where the goal is just maximising everything with little or no regard to public interests? See our previous article, the one about Stoll's meddling in policy.

For those who may be wondering about Intellectual Ventures v Symantec, it will be the subject of our next few posts (later tonight). It's a game changer that may have really heralded the very irreversible death of software patents in the US.

Recent Techrights' Posts

SLAPP Censorship - Part 64 Out of 200: Not Amused by Repeated Threats (to "Shut Down" My "Existence" While Mentioning My Wife Too)
it's about censorship
The NHS is Under Attack by Anthropic and Microsoft (or Their Lemmings That Infect the NHS)
They are kidding themselves if they seriously believe Web-facing source code repositories are the real threat to patients
cPanel is Not Linux, cPanel is Proprietary Software
It's fair to say I've used cPanel for 23 years
Storage and Memory Prices Are Rising Not Because of High Demand (Production Can Match Demand), It's Partly Because of Price-Fixing (Same as Food Price Increases)
Sophisticated robberies are still robberies
Thousands of Layoffs at IBM, So IBM Pays Mainstream Media to Claim That IBM is Hiring (Paid Lies)
This is a story about the media failing us, not just IBM failing as a company
A Look at DataStax Bluewashing (IBM and Layoffs)
IBM is a place that many people leave or get pushed out of
 
Gemini Links 02/05/2026: Strange Psychosis and TUIs
Links for the day
Links 02/05/2026: Microsoft Has Begun Rebranding Vista 11 as 'XBox' (Because the Console is Dying), Slop Rejected by Oscars
Links for the day
IBM's CEO 10 Years Ago in IBM-Sponsored Forbes: "For those willing to embrace [blockchains], the future will indeed be bright."
How well did this prediction materialise?
RightsCon Cancellation as a Data Point in a World Gone Astray
RightsCon should not even be controversial
Links 02/05/2026: Gen Z is Turning Against Slop and OpenAI/Microsoft Rift Explained
Links for the day
Gemini Links 02/05/2026: Leaving Session, Alhena 5.5.7, and Slop Failing Customers
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, May 01, 2026
IRC logs for Friday, May 01, 2026
Links 01/05/2026: Microsoft 'Headcount' Decreasing, Apple Quietly Killing Vision Pro
Links for the day
Oracle's Debt Grew by Over 50 Billion Dollars in 6 Months
Larry Ellison spent a lot of money buying a lot of the corporate media
In Praise of Debian
30 hours ago we began an upgrade
What Linus (Torvalds, the Linux Dude) Meant by "Show Me the Code"
"Show Me the Code" is a common cultural reference
Yes, GNU/Linux Can Run on Playstation 5, But Don't Buy It, Learn From Sony's Past of Rootkit and PS3 Betrayal
Millions of Playstation 3 owners will never forget what Sony did to them
XBox Will Not Last Much Longer, XBox Chief Admits Problems
Microsoft's latest "results"
Dealing With Demagogue in Free Software
Don't spread their ideology and never participate in any of their projects
What May 1 Means to Us (and to Many Others)
To me, May 1 means something
Microsoft Lunduke is 'Pulling a Garrett' by Turning Technical and Legal Debate Over Rust Into a 'Trans Debate'
Don't fall for the demagogue
Links 01/05/2026: Regulatory Trouble for Apple, Now Even Mozilla Pushes Back Against Google
Links for the day
Microsoft "Buyout" Offer is Less Than One Year's Salary
So our assumption about this was correct
The Corrupt Lecture the Non-Corrupt - Part X - European Patent Office Managers Have Crossed Red Lines, According to Themselves
The girlfriend of the President of the European Patent Office (EPO) is trying to muzzle EPO critics
Techrights is Still Growing, Attacking Techrights Does Not Weaken the Community
Bullying us for 2+ years does not result in fear, it results in us feeling more emboldened and motivated
SLAPP Censorship - Part 63 Out of 200: Graveley as a Stripped-Down Version of Garrett in the Particulars of Claim (5RB Barrister Could Do This in One Minute)
Lazily and sloppily, it looks like the barrister took Garrett's claims and tweaked them a little (shortened) for Graveley
Lots of People Leave IBM, Today IBM Has About 1,000 Workers Fewer Than Yesterday
Confluent "last day" for 800+ people
Been a Very Busy Week
Next week, as we have no upgrades to prepare for, we should be able to publish at the usual pace of 20+ pages per day
In New Letter Sent to Chair and Heads of Delegation of the Administrative Council of the European Patent Organisation the Staff Union Explains How to End European Patent Office Strikes
If Campinos continues to behave as he does right now, the Council can show him the door
Links 01/05/2026: Poems and Continuous Privacy Policy
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 30, 2026
IRC logs for Thursday, April 30, 2026
Microsoft Debt Rose Almost $50 Billion Since We Moved to Debian
GAFAM has a new name for debt
Google News Sloppy Again
Today was disappointing
European Patent Office Management Mocked for Trying to 'Bribe' Staff With a Little Food
The Office is having a crisis; a little breakfast treat won't solve it
SLAPP Censorship - Part 62 Out of 200: Garrett and Graveley Issue Astounding Copy-Paste Masterpiece Asserting Publicly-Accessible Embarrassing Facts Must Remain Hidden
Are Garrett and Graveley twins separated at birth but joined by GNOME and Microsoft?
Links 30/04/2026: Barrage of Lawsuits Against Slop, Microsoft's Stock Crashes
Links for the day
Microsoft Says Mass Layoffs Are Coming and Puts a Price on Them
Microsoft will shrink
The Corporate Media Intentionally Overlooks How Google's Debt Trebles in Just Over a Year
We'll soon see how much more money Microsoft has borrowed
(Trigger Warning) Jeremy Bicha & Debian-Edu, TecKids, Ubuntu incest scandal at DebConf25
Reprinted with permission from Daniel Pocock
Upgrade Successful
we had a downtime of only 1-2 minutes overall (for two reboots)
Links 30/04/2026: Slop Industry Cannot Keep Up With Bills, "The World Is Getting Too Hot to Feed Itself"
Links for the day
Then Come the DDoS Attacks
Is someone trying to 'kill' Techrights?
The Corrupt Lecture the Non-Corrupt - Part X - Deliberately Violate European Patent Convention (EPC), Tolerate Cocaine Use in Management, Hide That From Staff and Stakeholders
The "Alicante Mafia" (as staff calls it) is a disgrace to Europe
The Register MS Running Spam Pieces for Huawei, a Banned Company
Money does not excuse bad behaviour
Apparently Last Day for Nearly 1,000 Confluent Workers IBM Laid Off Last Month
IBM is a dying company pretending to be strong because of its age
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 29, 2026
IRC logs for Wednesday, April 29, 2026
Gemini Links 30/04/2026: Outdoor Time, Old Computers, and Joining Geminispace
Links for the day