Bonum Certa Men Certa

The Latest Evidence of the Demise of Software Patents in the United States

Just because something is possible does not mean it's legal

Dead treeSummary: Even though some software patents continue to be granted, courts in the U.S. almost always reject these, signaling the end of software patents as a potent tool (unless there's an out-of-court settlement, usually because the defendant is too poor)

WE have always been focused on software patents. It's a subject we understand, not just from the perspective of software development but also the legal perspective (which we spent over a decade studying).



Anyone who still thinks that software patents are worth pursuing does so at his/her own peril. They're worthless. Sometimes they're worse than worthless because pursuing litigation with such patents can cost the plaintiff dearly. Recently, plaintiffs not only wasted money on lawyers (all in vain) but were also forced to cover all the legal fees of the defendant/s. How about that for a deterrent?

"Recently, plaintiffs not only wasted money on lawyers (all in vain) but were also forced to cover all the legal fees of the defendant/s."Demand for such litigation has understandably fallen. The 'industry' associated with such litigation suffers profoundly because the number of plaintiffs and defendants is falling. This new article, titled "Cost of Patent Infringement Litigation Falling Sharply," has just mentioned Alice and speaks of "the invalidation of hundreds of software patents for covering ineligible abstract ideas." In reality, by extension, about a hundred thousand patents (or a lot more) may not be invalid; they just haven't been tested in a court (or PTAB for that matter) yet and might never be tested either. Patent holders don't want to risk seeing such invalidations, having spent a fortune pursing these patents as though these were valuable trophies.

Here's more from that article, which focuses also on PTAB (covered a lot this morning):

The PTAB process, known as inter partes review, gives someone accused of infringing a patent another route, in addition to court, for defending themselves by attacking a patent’s validity. With the availability of this less-expensive route, “some of the older knock down and fight to the death litigation is not happening,” Chow said.

[...]

The Supreme Court’s 2014 ruling in Alice Corp. v. CLS Bank Int’l resulted in the invalidation of hundreds of software patents for covering ineligible abstract ideas.


Worth remembering is the fact that the US is where these patents got started. If the US gives up on such patents, why won't every other country? The US, one might say, learned from its mistakes. Software patents were like a failed experiment.

Sudhanshu Ayyagari from Baldwins wrote about the subject a few days ago, knowing darn well that there are no software patents in New Zealand (where Baldwins operates and is looking for 'business'); Software patents are not allowed there, albeit using some loopholes these can sometimes be granted (not necessarily the same as being upheld by courts). Here is what Ayyagari wrote:

This article is the first of a two-part series on the state of software patents in New Zealand and Australia. We begin by examining the guidelines and current practice of software patentability in New Zealand, and comparing this with other major jurisdictions including Europe and the United States.

In most jurisdictions worldwide there is debate over the extent to which patents should be allowed for computer implemented inventions. This has occurred because patent applications targeted towards computers and computer programs allow inventions, previously considered unpatentable to, arguably, become patentable.

[...]

It is apparent that there are a number of areas in which computer programs remain patentable inventions in New Zealand. However, the Patents Act 2013 has increased the difficulty of obtaining broad protection for some computer implemented technologies. It appears that it will be difficult to use computer program implementations (or computer implemented inventions) to obtain patent protection for ideas which are not tied to a particular apparatus or device(s) that contribute in a patentable field of technology.


That's exactly the same loophole that was adopted by the EPO yet does not guarantee anything in a court of law. The USPTO continues to make it rather easy to get software patents, but how many of these patents have a chance in court? Or even at PTAB?

A case which was mentioned here before (3 days ago to be precise) is now turning from a press release into some press coverage [1, 2] (as we hoped but not necessarily expected), reminding us that software patents are a dying breed (with CAFC reaffirming PTAB's decisions again). The judges are signaling this and those who refuse to pay attention would likely listen to law firms and continue to have faith in software patents.

From one such news article:

The U.S. Court of Appeals for the Federal Circuit affirmed the Patent Trial and Appeal Board's (PTAB) February 2016 decision invalidating all three patents in Audatex's patent infringement lawsuit asserted against Mitchell, agreeing that the Audatex patents are abstract and not inventive.

Audatex sued Mitchell in February 2012, alleging that Mitchell's WorkCenter software infringed three Audatex patents. The Audatex patents detailed a business process for using the internet to process insurance claims including total loss valuations.

Before the PTAB, Mitchell asserted that the Audatex patents simply use well-known technology to generate valuation reports for damaged cars, and are not directed to improving a computer's functionality.


Here is another one:

The U.S. Court of Appeals for the Federal Circuit has affirmed a February 2016 ruling by the U.S. Patent Trial and Appeals Board that invalidated all three patents in Audatex North America’s patent-infringement lawsuit against Mitchell International.


So CAFC is slashing many software patents (in a court, not just a panel) while the patent microcosm is trying to slow the judges down.

Why believe the patent microcosm when every piece of evidence so far this summer indicates that software patents have no feet, so to speak?

Recent Techrights' Posts

On the Internet, Nobody Knows Microsoft and Windows Are Becoming Niche Players Until Data is Shown Correctly, Not Microsoft-Sponsored Articles in Microsoft Publishers
Microsoft controls a lot of publishers and thus it controls information
 
Search in 2025 (Age of DDoS Attacks Under the Guise of "AI" "Innovation")
One common concern when things go "live" is that any random bot out there can execute queries, pumping up RAM and CPU usage, as happened when we used MediaWiki and WordPress
Using Slop for Images Does Not Make Your Site Look Advanced or Witty, It Just Makes Your Whole Work Look Like Presumed Plagiarism
Lazy slobs and Serial Sloppers use the guise/excuse of "AI" to plagiarise and spam the Web
Financing of the "Hey Hi" (AI) Bubble by Those Who Profit From Planetary Destruction (Global Warming)
It's about personal gain, too
Richard Stallman Will Speak in Ethereum Cypherpunk Congress
it's good to see that the FSF pays considerable respect to it founder, who is moreover invited to speak at events
(At Least) Second Wave of Mass Layoffs in Microsoft This Month
This is not the first time this month that Microsoft has mass layoffs
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, August 20, 2025
IRC logs for Wednesday, August 20, 2025
IBM Operatives Inside The Register MS and More Shady Money to Follow
The Register MS bites every banknote it can sink its teeth into
Slopwatch: Serial Sloppers and Slopfarms in Google News (e.g. Linux Journal and WebProNews)
Google plays an active role (if not deliberately then through utter neglect and carelessness) in plagiarism
Links 20/08/2025: Mass Surveillance Framed as "Artificial Intelligence" (All Old Things Reworded to Misframe Old Computer Issues), Europe Resists Capitulation to US(SR)
Links for the day
Gemini Links 20/08/2025: Trips and Permacomputing
Links for the day
Links 20/08/2025: Oracle Layoffs in India, "AI" Scammers/Profiteers Admit It's a "Bubble", Softbank-Saudi (Oil) Control Tech Companies
Links for the day
Social Control Networks Give You False Metrics to 'Addict' You To Them
Leaving social control media may seem hard, but the same is true for any other addiction
A Lot of What Happened in Twitter Was Bots, Botfarms, and Troll Farms. It's Even Worse Now (Under X.com) and People Are Noticing.
Last month we said the same was happening in YouTube
Microsoft May Have Become - at Least Partially - Like a Boiler Room Scam
Giving imaginary salaries using imaginary tokens based on imaginary value (with restrictions on conversion to cash)
In Vietnam, Microsoft's Search Engine "Market Share" Fell to Almost 0%, CocCoc More Than 5 Times Bigger
Why are people still investing in this company?
All That's Left of MSNBC (Microsoft-NBC) is Microsoft NOW
When plutocrats and large corporations (even deep in debt) buy all the communication channels
The Register MS, Paid to Promote "AI" Hype, Does "Sez" (Says) Pieces
every bubble-funded "news" site tries to make it a story about "AI"
Many Companies Are Run by Liars Who Ride Other People's Money
Or steal it
Before CoreAI There Was Builder.ai
GitHub isn't about "AI" (just a bunch of lies and storytelling for shareholders' patience)
Microsoft Windows in Croatia at New Lows
We've been keeping track of this trend for a while
Using the Best Tool/s for the Job: RSS Feeds and RSS Readers
Use RSS feeds. Reject those "modern" Web things
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, August 19, 2025
IRC logs for Tuesday, August 19, 2025
Gemini Links 20/08/2025: Neovim, XML, and Alhena 5.2.9
Links for the day
Accessibility Isn't Overrated
Making things simpler typically means better accessibility
The Register's Slopfest
Remember when The Register UK (yes, UK) had better standards?
Latest Version of Windows (Vista 11) is a Failure 4 Years After Its Fake 'Leak'
Vista 11 became more scarce this month
Improving Our Archives
Our old archives are still accessed a lot. Making them better is well worth the investment.
Things One Learns as a Litigant in Person at the UK High Court
Don't fear the official manuals
Slopwatch: Lots of Fake Articles From Fake "Linux" Sites and About "Linux"
Google says it's committed to "AI" (it means slop, not AI); that seems like an excuse to dodge accountability
Links 19/08/2025: "Eavesdropping on Phone Conversations Through Vibrations" and Air Canada in Chaos
Links for the day
Gemini Links 19/08/2025: Niche Spaces and "AI Pasta Sauce"
Links for the day
Links 19/08/2025: "NASA Is Giving Up on Climate Change Science" and "Earth's Continents Are Drying Out at an Unprecedented Rate"
Links for the day
Microsoft said “GitHub and its leadership team will continue its mission as part of Microsoft’s CoreAI organisation.” But it's just an empty shell created earlier this year.
In short, it's not too clear what Microsoft has just done except dumping GitHub - i.e. mostly a Web site that loses a ton of money (it always lost money) - into some mysterious new bucket
Phil Wyett evidence & Debian Zizian plagiarism, modern slavery tendencies
Reprinted with permission from Daniel Pocock
IBM Layoffs in MCC, or Marketing, Communications and Corporate Social Responsibility (CSR)
IBM and Microsoft inflate their share price by circular financing
In Many Countries People Move Away From Vista 11
Vista 11 has been available for download for 4 years already, but adoption has been poor
Desktops/Laptops Fall to All-Time Lows in the UK, So Why Does British Media Quote a Famous Criminal on "End of the Smartphone Era"?
mobile usage (for Web access) has never been higher, based on an Irish surveyor, statCounter
The Groklaw Web Site Has Been Hijacked by Scammers
Groklaw.net isn't a safe site to access at this time
The Register MS gets Lazy, Uses Slop
Unlike 3-D renderings or "Classic" CG, slop images aren't quite original and definitely not fair use
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, August 18, 2025
IRC logs for Monday, August 18, 2025
Online Safety Act Does Not Tackle the Worst (and Biggest) Culprits
if our governments are serious about tackling online harms, then they need to look closely at GAFAM and social control media giants
Chat Control (1 and 2) in the European Union Sends the Wrong Message
This is an EU law
Slopwatch: Google News and Serial Sloppers (Fake Articles About "Linux")
Calling out the culprits
Gemini Links 19/08/2025: Digital Legacy and Chat Control
Links for the day