Bonum Certa Men Certa

Post-Alice €§ 101 Eliminates Most Software Patents, But Amid Heavy Lobbying €§ 101 is Not Secured

...nor is the Patent Trial and Appeal Board (PTAB)

EagleSummary: A glance at the latest moves against Alice and in favour of patent maximalism, which means endless litigation, patenting everything under the sun etc.

THE progress made towards abolishing software patents is profound. Even at the USPTO. We hardly believed we would ever get there.



"Litigants continue to use Alice and its progeny as a powerful tool to invalidate business method and software patents," this article said yesterday. Being a site of the patent microcosm, it's a complaint rather than a celebration. Here are some of the more relevant parts:

Litigants continue to use Alice and its progeny as a powerful tool to invalidate business method and software patents. That’s what happened recently in Mantissa Corp. v. Ondot Systems, Inc., et al, when Magistrate Judge Palermo of the Southern District of Texas invalidated fifty-two claims asserted by a software company from two of its patents (U.S. Patent Nos. 7,779,456 and 8,353,027) covering a “method of protecting use of an entity’s identity, the method being executed on electronic computer hardware in combination with software,” i.e., identity protection software for banking cards. In invalidating the claims under €§ 101, Judge Palermo relied heavily on comparisons to claims invalidated as abstract ideas in previous cases, including Alice, and ultimately found that the patent claims at issue covered merely a computer-implemented method of preventing identity theft—an idea that has “existed since the dawn of civilization.”

[...]

Turning to the second part of the Alice analysis, Judge Palermo found there was no “‘inventive concept’ sufficient to ‘transform’ the abstract idea into a patent-eligible application”—the standard from Alice. She examined the claim limitations individually (an analysis too in-depth for this article) and as an ordered combination, and found them insufficient under both analyses. Mantissa attempted to proffer additional limitations from the patent specifications to strengthen its inventive concept argument, but Judge Palermo was not swayed. Instead, she properly stuck to the claims themselves and noted that many of Mantissa’s proffered limitations weren’t even in the claims, let alone would they render the claims patentable. One factor that played a large role in her decision, and that should be familiar to patent attorneys post-Alice, was that the use of a computer network to implement the identify theft prevention method did not add a sufficiently inventive concept. She found that identity theft and the solution provided by the asserted claims were “decidedly technology-independent” and that the claims “[d]id not require doing something to computer networks, they require[d] doing something with computer networks.” Consequently, Judge Palermo concluded that the asserted claims failed to recite an inventive concept under step two of the Alice analysis, and so were not eligible for patent protection under €§ 101.


Alice is impossible to undo, only override in the form of another (newer) decision from SCOTUS, potentially overturning decisions from lower courts. So an alternative approach among the patent 'industry' has been to attack PTAB. Yesterday, or just before the weekend, PTAB bashers were at it again. See new tweets like this one, which stalks PTAB and says "Medical tech innovator denied patent bc PTAB says determining doseage with computers is apparently not technical..."

"Do they want billions of patent applications composed by computers to then be assessed by other computers?"Yet more PTAB bashing came from Crouch, who still cherry-picks the rare cases where CAFC vacates PTAB's invalidations. "In a split decision," he wrote, "the Federal Circuit has vacated the PTAB ruling that Stepan’s claims are not patentable." But that's the exception rather than the norm. His colleague, David, has just promoted more patent maximalism if not patent radicalism; now they peddle the idea of semi-computer-generated patent applications -- a subject we wrote a lot about earlier this year (as it had surfaced in the press). "In light of all of the above," David wrote, "if you take into account the increasing need for speedier issuance (and the need to file first under the AIA), the need for speedier drafting is obvious. The capacity of AI to satisfy that need is here, and its role will increase. (I’ve read about memo drafting services that area already in operation, for example. That’s coming on fast, too.)"

What he means to say is, patents will increasingly be generated by machines, or at least partly by machines. Do they want billions of patent applications composed by computers to then be assessed by other computers? Is this the future they have in mind? In the financial market it's stuff like this which crashes entire economies.

Suffice to say, we need to keep watching the interventions from the patent microcosm, which seeks to undermine all the progress made in recent years. According to this posting from yesterday, Watchtroll is organising a think tank-like session, probably in order to bash Alice, PTAB, and obviously to promote software patents, as usual

Much ink has been spilt over the chaos that is the law of patent eligibility in the United States, and rightfully so. Having said that, the Alice/Mayo problems that many applicants face have been confined primarily to a certain limited number of Art Units in the biotechnology and computer software areas.


What the above dubs "chaos" is actually the very opposite of chaos because the legal chaos that prevailed due to software patents is no more. A lot of firms no longer bother suing. Litigation dropped sharply and many trolls go out of business. Shouldn't that be celebrated?

Recent Techrights' Posts

Watch the FSF Party Live (via Livestream)
It's in WebM format, which is widely supported by now
Advocacy of Software Freedom Changed, LUGs Became Less Relevant
The way we see it, support groups like LUGs sort of outlived their usefulness when it became easier to install GNU/Linux
For the Second Time in a Few Weeks Microsoft Lunduke Makes False Accusations Against Senior Red Hat Staff to Incite a Despicable 'Troll Army'
Nothing that Microsoft Lunduke claims or says can be trusted
Compromised by NVIDIA Proprietary Library
Meanwhile in Boston there are "[r]oundtable talk with FSF volunteers (both in-person and online)"
How Software Patents Were Viewed or Their General Status Changed Over Time
A rough summary
 
"Bullshit Generators" (What RMS Calls LLMs) and Fake Images Already Target the FSF
Why does Google News promote fake articles about the FSF while omitting all the real ones?
Software Patents as a Bubble
Don't invest resources in hype; if you detect a bubble, run away from it
Links 05/10/2025: Political Leftovers, Climate Change, and Security Incidents
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, October 04, 2025
IRC logs for Saturday, October 04, 2025
When Microsoft "Integrates" Something With "AI" It Means It's Losing Money and Is Generally Hopeless
how did Bing fare after 36 months of LLM slop being hyped up as "replacement" for search?
Most Certificates Don't Improve Security, They Mostly Increase Downtime (for No Good Reason)
The 'Gemini sites' (capsules) are a growing force
The statCounter Site Has Data Integrity Problems
Maybe we'll get back to statCounter when its data becomes more "stable" again
10 Ways to Combat Software Patents
software patents are loathed also by proprietary software developers
"Just a Little Bit of Meat..."
Free software "absolutism" is not a radical stance, more so if the only "radical" belief the user possesses is that he or she must be in control of his or her software, and by extension his or her computer
Red Hat is Ignoring the Free Software Community, It's a "Fortune 1000" Vendor
Red Hat's blog also participates a lot in promoting of Wall Street's latest pump-and-dump "AI" scheme
Free Software Foundation Party Has Begun
We shall be focusing a lot on software patents today
Former Head of the Federal Trade Commission (FTC) Lina Khan Knows Whatever Microsoft Touches Will Die
Just like Skype (as recently as months ago) [...] When Microsoft grabs things, or when it buys things, it almost never ends well
Slopwatch: Fake Articles About LibreOffice in Austria and Wine 10.16
very short
Links 04/10/2025: "attempted Coup" Noted in Facebook, Russia Kills Journalists via Drones
Links for the day
Gemini Links 04/10/2025: Anesthesia and Baudpunk
Links for the day
Links 04/10/2025: "Privacy Harm Is Harm", Criticism Outlawed in US
Links for the day
Garmin Uses Linux for Some of the Garmin Products, Now It's Sued by Strava Using Software Patents
Software patents should never have been granted in the first place
Richard Stallman Will Give a Talk in Sweden in 6 Days
Dr. Stallman, despite his battle with cancer is still alive and mentally sharp
FSF Turns 40
We'll be focusing on patent-related topics this weekend
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 03, 2025
IRC logs for Friday, October 03, 2025
Gemini Links 04/10/2025: Distro Hopping and "Part Time"
Links for the day
We Are Turning 19 in One Month, FSF Turns 40 in 3 Hours (CET)
For our anniversary next month we still have no concrete plans
Patent Docs (or PatentDocs) Learned the Wrong Lessons From the Death of TypePad
Had they gone ahead with an SSG, they'd become a lot more future-proof
USPTO Patent Bubble Already Imploding, After Decades of Artificial Inflation, Entire Offices Close for Good
we can deduce that financial pressures (lack of "demand" for monopolies) play a role
TikTok is Not Harmless (Being CheeTok in the US Will Advance Orange Agenda)
Social control media isn't "fun and games"; it's a digital weapon that lets hostile groups or nations infiltrate others, then turn them against themselves
Andy Farnell and Helen Plews Explain What "Modern" Tech Does to Old People
Imposing terrible tech "religion" on people is not helping them
Tomorrow the Free Software Foundation (FSF) Turns 40 and Its Web Site is Still Slow Due to DDoS by LLM Slop Bots
For an advocacy group, uptime is important (for its message to remain accessible)
Slopwatch: Google News as a Firehose of LLM Slop About "Linux"
Google News is really bad
Datamation, Where I Used to Publish Articles, Appears to Have Been Sold to TechnologyAdvice Only to Become a Slopfarm
I'd prefer to not associate with that site anymore
Links 03/10/2025: "NPR’s Economics Lessons Come With Neoliberal Spin" and Canada Post at Risk
Links for the day
Gemini Links 03/10/2025: Panic Attacks and Food Adulteration
Links for the day
Links 03/10/2025: Lawyers Caught Using LLM Slop Explain Why They Did It, LibreSSL 4.1.1 and 4.0.1 Released
Links for the day
FSF Board Grew 50% Since Last Year, Has New President, Turns 40 in Two Days
It's a good move for the FSF and - by extension - for software freedom
Links 03/10/2025: Conflicts, Death of TypePad, and TikTok/CheeTok Gives a Boost to Far Right Groups in Europe
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 02, 2025
IRC logs for Thursday, October 02, 2025
Slopwatch: Linux Journal, Google News, and LinuxSecurity
They carry on polluting the Web with fake articles
Gemini Links 02/10/2025: Kubernetes With FreeBSD and robots.txt
Links for the day