Bonum Certa Men Certa

In the Age of Alice and PTAB There is No Reason to Pursue Software Patents in the United States (Not Anymore)



Summary: The appeal board in the US (PTAB) combined with a key decision of the Supreme Court may mean that even at a very low cost software patents can be invalidated upon demand (petition) and, failing that, the courts will invalidate these

Unwired Planet (formerly known as Openwave) is a patent troll that's controlled by Ericsson. It is very malicious and it has already targeted the UK too. According to this (more reports from this event can be found at IP Kat), the troll was discussed in Australia and Ruschke from PTAB was there too. Here is the relevant section:



Arguing before a jury is second nature for experienced US patent trual lawyers. According to PTAB Chief Judge David Ruschke, that fact accounts for one of the biggest mistakes parties make in IPRs. Those same trial lawyers are still trying to figure out how best to argue at PTAB proceedings, Ruschke told a panel on post-grant procedures around the world. “You’re not talking to a jury, you’re talking to a panel of technology and law experts," the judge reminded practitioners. “Some counsel try to tell a story like they would tell to a jury, but then can’t answer fundamental technical questions,” he observed. Ruschke said he was well aware that the PTAB has received what he called “challenging press” and assured attendees that he does not turn a blind eye to it. But he emphasised that the post-grant system is still very much in a transition period.


That's almost the equivalent of the EPO's appeal board (albeit there are fundamental differences).

PTAB is a very important subject right now because it has managed to squash software patents a lot faster than courts, and at a vastly lower cost. No wonder the trolls' lobby wants so badly to squash PTAB itself.

According to yesterday's press release from StrikeForce, it managed to escape PTAB's scrutiny. The funny thing is, this company actually paid money to brag that it had managed to dodge scrutiny of its crappy patents (which would probably have been trashed by PTAB, based on their description which invokes Alice).

"PTAB is a very important subject right now because it has managed to squash software patents a lot faster than courts, and at a vastly lower cost."Also yesterday there was this press release from FatPipe Networks, which calls itself "the inventor and multiple patents holder of software-defined networks" (i.e. software patents).

Unless they can pretend that the software is somehow physical (an impossibility), these patents are likely worthless.

Eric Lavallee from Lavery de Billy LLP has just published this article, openly urging people to disguise software patents as something else like "AI" (a fashionable buzzword these days even though the concept is far from new). To quote:

The initial instinct of many entrepreneurs would be to patent their artificial intelligence processes. However, although in some instances such a course of action would be an effective method of protection, obtaining a patent is not necessarily the most appropriate form of protection for artificial intelligence or software technologies generally. Since the major Supreme Court of the United States decision in Alice Corp. v. CLS Bank International, it is now acknowledged that applying abstract concepts in the IT environment will not suffice to transform such concepts into patentable items. For instance, in light of that decision, a patent that had been issued for an expert system (which is a form of artificial intelligence) was subsequently invalidated by a U.S. court.2


Law firms are just trying to 'dress up' software patents as "AI" to bypass the simple law that renders them worthless.

When will the wider public realise that software patents are virtually dead now? It's very hard to actually enforce these in a court of law.

"When will the wider public realise that software patents are virtually dead now? It's very hard to actually enforce these in a court of law.""Software patents provided some limited protection," yesterday's article from Venturebeat said, "but feature wars rage on."

Programs live or die based on their features, not based on patents that are basically dead now (no leverage to gain from them).

Let's face the simple fact that Alice changed everything. Last night the EFF published yet another story about Alice, this time regarding blackmail by "My Health". To quote some portions:

Alice Saves Medical Startup From Death By Telehealth Patent



[...]

When Justus received the demand letter, he was shocked. He read the patent, and it seemed incredibly mundane. It didn’t offer any of the technical detail that Justus knew went into building a complex product like the one offered by MyVitalz. It gave no explanation on how to accomplish any of the goals it claimed. Instead, it seemed to claim the idea of telehealth itself. Justus thought, “I put in four years of work to build my product, and this patent seems so basic.”

"It almost felt as though my business was being blackmailed," Justus says. "Sure, I could make the threat go away with a payment that would be less than the cost of litigation. But I refused to pay just to be able to keep running my business which I'd devoted my life to building."

Justus scoured the Internet for information that could help him with My Health’s demand. He tried to figure out how he could defend himself, knowing that to do so would likely mean selling his personal assets to afford a lawyer.

[...]

Thanks to Alice, Justus never heard from My Health again. He’s now back focusing on what matters most: helping people get better health care.


Patent filings at the USPTO are still growing, but legal actions have collapsed. In the coming years we can expect further reduction in the number of patent cases, bringing the system closer to its roots (and further away from extortionate litigation).

Recent Techrights' Posts

IBM May be Sued for Mass Layoffs Via PIPs
Some whole threads (with all the long comments in them) recently got nuked by thelayoff.com
GNU/Linux is a Platform for Work (Usage Surges in Daytime)
GNU/Linux 15% in daytime
What I Learned in London
some ministers still help us in our fight for press freedom in the UK
At IBM, Workers 'Expire' Early ("Next Step" is 'Voluntary' Layoffs Decades Before Retirement Age)
It seems like the "new normal" is layoffs not existing or barely existing because companies hide them
 
Falkland Islands: GNU/Linux Elevated to 6%
GNU/Linux usage seems to have increased a lot there
Links 16/08/2026: Reading Outside, Going Offline More, and Art of Computer Programming
Links for the day
The Question of Patience
Is there a lesson here somewhere?
Links 16/08/2026: Ceuta Reports Social Control Media Used as a Weapon
Links for the day
Links 16/08/2026: Europe in Crisis of Droughts While Energy- and Water-Consuming, Pollution-Emitting Chatbots Are Spread by GAFAM (US) to Keep a Ponzi Scheme Going
Links for the day
We Need Rain, Not Chatbots
There's no "anti-AI" (it's not even AI), there's opposition to fraud, to plagiarism, and to companies that profit more when there's global warning (caused in part by their business activities)
SLAPP Censorship - Part 151 Out of 200: Dealing With Sleazy People and Companies That Steal (While Employing These Sleazy People)
we offer a quick summary and we're reflecting
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, August 15, 2026
IRC logs for Saturday, August 15, 2026
Gemini Links 16/08/2026: Sterrenkijker Releases, Solar Gemini Server
Links for the day
EPO "Cocaine Communication Manager" - Part XVI - The German State Does Not Enforce the Law Against European Patent Office Officials
It's not acceptable that Europe's second-largest institution can get away with crime time and time again
Germany's National Broadcaster (DW English) to Air Julian Assange Film This Coming Week
It seems rather sad that we live in a world where rich thugs can get away with so many horrible things
WordPress is Bloatware and Bloated Software Guarantees Security Incidents
This site turns 20 in about 11 or 12 weeks from now and it was never cracked, not even when it ran WordPress
Too Many Chiefs (or Chefs) at IBM, They Don't Know How to Run a Company (With a 100+ Year or Century-Old Brand Recognition Advantage)
It seems like a consensus opinion; some line managers or middle managers are too selfish or self-deceiving
Bluetooth and Wi-Fi on Gym Equipment Can Endanger Several Parties
Joy oh joy! Give us more "smart" things
Microsoft Silent Layoffs This Month (PIPs and More "Buyouts", Driving Out the Workforce), According to Insiders
They know it's happening because they see it and fellow workers talk about it, even if the media keeps mum
Clacton's Election Was a 'Show Election'
At least some people squeezed out some "free press" out of this charade [...] That the media kept boosting parodies as the alternative/s to the bigot is a topic we wrote about a great deal over the past 3 weeks
Omarchy is Already Dying
Same as the life cycle of slopfarms
A Vortex of Beacons (or "Bluetooth Everywhere" Vision)
If someone (or someones) calls you paranoid for taking about "beacon"-like functionality, there will be no lack of authoritative citations (e.g. Web links) they can be provided to prove them wrong
Windows is Burning
Windows is the "burning platform" of the year
Gemini Links 15/08/2026: Stress, Jetlag, and GPU Hype (Waste of Energy for Amusement, Fake 'Currencies', and Now for Mass Plagiarism)
Links for the day
Links 15/08/2026: XBox Rotting Further, "France’s Top Court Strikes Down Ban on Social Media for Children"
Links for the day
SLAPP Censorship - Part 150 Out of 200: Always Independently Verify What People Claim to Be (or Find Yourself in a Jason Arday-Type Moment/Dilemma)
I'm not a cardiologist and Garrett was never a security expert
Links 15/08/2026: "There Is No A.I." (Slop Plagiarism Isn't Intelligence) and Its "Impact on the Environment Is Absolutely Horrifying"
Links for the day
Gemini Links 15/08/2026: Gratitudes, "Microflier" Drones, and Literate Programming
Links for the day
IBM's PIPs and RAs (Layoffs) Going on, Interns as 'Scabs'
It seems like a consensus (also in Reddit, we took a quick look)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, August 14, 2026
IRC logs for Friday, August 14, 2026
Gemini Links 14/08/2026: Slower Internet, Logging Off Made Easy, and Human Code
Links for the day
Links 14/08/2026: "Mystery of Dark Oxygen", People Despise Slop, and Backlash Grows Against Fake Currencies (Energy-Wasting Scam Like Slop)
Links for the day
Free Publicity
They say there's no such thing as "bad press" or that every publicity is good publicity, sometimes free publicity
Farage's fears, media hijacked by-election, what really happened in Clacton
Reprinted with permission from Daniel Pocock
It's Friday. A Ton of People Departing From IBM and Red Hat.
A mere subset of people who announce this in public at Microsoft's LinkedIn
GNU/Linux and ChromeOS Beyond 11%
Combined with ChromeOS, it's already past and beyond 11%
Chatbots/LLMs Are the Next "Clown Computing", Pure Hype, a Serious Mistake
Programs that scan text and emit something similar (but full of errors)
Links 14/08/2026: Slop 'Music' Causing Problems, Slop Data Centre Contractor Unpaid (Massive Debt), and The Cyber Show Says We're "Colonised By Wankers"
Links for the day
Fake Growth of Social Control Media is Misleading
nowadays people look for alternatives - ones not controlled by MElon, CPC, and Kapo-Berg
statCounter: Windows Down to All-Time Low of 25%, Android Leads the Pack, GNU/Linux About to Leapfrog Apple, Overtaking MacOS
The situation was very different in past years
Microsoft's Mass Layoffs (Including 'Voluntary' Secret Layoffs) Take Their Toll on Seattle
How much longer can they hide their crises?
Planet Fedora ("Fedora People") is Just IBM Staff, Former IBM Staff, and LLM Slop
this is what Fedora boils down to now
Explanation of What Will Happen to Red Hat (and Other Acquired Companies) After August
In short, a lot will be scuttled; history shows it happens over and over again
SLAPP Censorship - Part 149 Out of 200: It Took a Long Time to Show What Jason Arday (at Cambridge) and Harvey Weinstein (in Hollywood) Really Were
Really bad when society endures abuse because the abusers silence their exposers
Gemini Links 14/08/2026: 32-bit RISC-V and BlackBerry
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, August 13, 2026
IRC logs for Thursday, August 13, 2026