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

Perpetuating the Lie of "No Red Hat Layoffs" Because of the Bluewashing (Red Hat Became Just "IBM")
Many Red Hat employees were pushed out and/or removed lately
EPO People Power - Part XIII - If the EPO's Chief Propagandist (Berenguer) Told the Police He Was a Spanish Tourist (or Similar) or That He Does Not Reside in Munich, Then He May Have Lied to the Police (in Addition to Doing Cocaine in Public)
Lying to the police in Germany is a criminal offense
GAFAM "doesn't depend on any sort of lock-in, humans just don't want to be free anymore," according to MinceR
As many readers are aware, our criticism of UEFI (restricted boot in particular) attracted a lot of online harassment against us, including stalking and libel
 
'Crypto' 'Currencies' Are a Ponzi Scheme. So Is "AI". Both Destroy the Planet, Not Just the Economy.
Believe it or not, millions of these GPUs just sit there boxed, unopened, unconnected, unused
The Register MS Has Just Been Paid to Promote the Ponzi Scheme Some More ("AI" Keyword Stuffing)
This won't end well for The Register MS
Microsoft Colonialism in Africa is Not Sustainable
Microsoft's situation in Nigeria is not
Links 15/12/2025: Chromebooks as Work Machines, "Americans [Who] Moved to Australia" to Avoid Cheeto
Links for the day
Breaking Your Proprietary Router in the Name of "Security"
Each time they "patch" the router something that previously worked OK is likely to just break
IBM May be Breaking the Law to Silence Staff It Laid Off
Observation to add regarding IBM layoffs
Demonisation Attacks on Richard Matthew Stallman (RMS) - Including Antisemitic Attacks - Have Not Worked
Name-calling doesn't work
Slop ("AI") Will Replace People and Take Away Jobs, Say the Slopfarms With Fake (LLM-Generated) Text and Slop Images
"AI" often means slave labour in a poor country
More Than a Million Bytes Should be Enough for Most Computer Programs
Who said computing would improve over time?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, December 14, 2025
IRC logs for Sunday, December 14, 2025
Another "AI" (Slop) Use Cases Turns Out to be a Fraud
Those who talk about this fraud get SLAPPed
They Say Rules Are Made to be Broken, at Microsoft That Became an Imperative (e.g. Accounting Fraud, Bribery and So on)
Its biggest client is itself
In Russia, Microsoft is Already a Dying Breed Online
A lot of Europe also dumps Microsoft. Europe is a big revenue source of Microsoft.
The Future of News on the World Wide Web
No "greener pastures" on the Web
𝐈𝐁𝐌 𝐂𝐄𝐎 𝐀𝐫𝐯𝐢𝐧𝐝 𝐊𝐫𝐢𝐬𝐡𝐧𝐚: Proof That at IBM People Fall Upwards
IBM is collapsing
EPO People Power - Part XII - The Mobbing Got So Bad People Were Unable to Work
What's at stake here isn't just the EPO or the patent system
Links 14/12/2025: "Chile to ban smartphones in classroom" and "Portugal updates cybercrime law to exempt security researchers"
Links for the day
Gemini Links 14/12/2025: "GUI TUI CLI" and EmacsConf 2025 Video
Links for the day
Links 14/12/2025: Tensions in Asia, US Making Deals With Belarus
Links for the day
A Utopian and Very Dumb Vision of Technology, Based on Accounting Fraud
the "industry" has become insane and a lot of "the media" is going along with it
Links 14/12/2025: "The Slop of Things to Come", Goldman Sachs Nervous About Slop Bubble
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, December 13, 2025
IRC logs for Saturday, December 13, 2025
Google News is Google Noise
Google News is really hopeless, even on weekends
IBM: We Pay You to be Obedient or Deny You What You're Entitled to If You Don't Act Obediently
Good luck starting legal battles with a company that has almost as many lawyers (including aggressive patent lawyers) as it has geeks
Links 13/12/2025: Jimmy Lai and Media Freedom on Trial, "OpenAI Researcher Quits, Saying Company Hiding the Truth"
Links for the day
Gemini Links 13/12/2025: Extensive Catchup With Gopherholes
Links for the day
Deliberate Lies or Glaring Distortions
Calling Torvalds anything "Soviet" or "Russian" would overlook the fact he comes from Finland and has Swedish roots
Canonical and Ubuntu: Working for Microsoft, Promoting Proprietary Surveillance (Dis)Services
Canonical started with a rich and overambitious Debian Developer. He wanted to become richer.
Russian "Hybrid Attacks" Are Typically Microsoft TCO and/or Windows TCO (Total Cost of Ownership)
Information-related warfare relies a lot on computer systems
EPO People Power - Part XI - The Media in Europe is Ill and Complicit in Ills
We must all recognise that there's a problem here
Running With Technology
At least they always run Linux (all of them, since 2015)
Dealing With "Tech Cults"
If you think you identified a "Tech Cult", walk away
It Seems Like IBM is Firing 'Everybody' (Anywhere, Any Age, No Matter What Team)
Healthy companies would sack IBM's management (sacked by Board, bylaws etc.) but IBM is a sick company
Latest Stallman Talk (Event in Argentina) Published
Less than a day ago they released his talk
GAFAM is a Financial Problem and Sovereignty Risk, a Policy-Level (National Level) Boycott is Needed
Europe has plenty of skilled computer engineers
LLM Slop Becoming Rarer
Today we've found no LLM slop in our RSS feeds regarding "Linux"
2026 Could Very Well be Last Year of XBox, Microsoft Dropped the Ball
It would be shocking is XBox can stage any kind of comeback
Links 13/12/2025: Social Control Media Bans and "Could Finland be Hiding a Blue Zone?"
Links for the day
Expecting Mass Layoffs, More Microsoft Workers Join Unions
they see tough times ahead
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, December 12, 2025
IRC logs for Friday, December 12, 2025