Bonum Certa Men Certa

Post-Alice, the Patent Microcosm is Up in Arms and Scraping the Bottom of the Barrel for Anti-Alice Material

Summary: In search of new ways to justify software patents, those who are in the legal 'industry' seek to twist cases and cherry-pick cases from the lowest possible courts, relying perhaps on lack of research and blind trust in the legal 'industry' with its so-called 'articles' (marketing disguised as news)

IT IS always nice to see the patent microcosm losing its mind over the end of software patents (Alice/Section 101). This new blog post (Carl Oppedahl on Carol Bidwell) shows how procedural issues creep in and drive them nuts, too. In fact, one patent maximalist asked: "Why would @uspto be trusted to make it easier for prosecutors? Or, practitioners in general?"



"This just served to show the sort of privilege/entitlement the patent maximalists sense that they have. ""Their job or task is not to make it easier for prosecutors," I told him. It developed into a conversation. This just served to show the sort of privilege/entitlement the patent maximalists sense that they have. If they apply for a monopoly and get rejected, that does not make them an unhappy customer but a failing applicant. People who go to job interviews, for instance, are not customers and there's no customer service when they get rejected/declined. Anyway, from the Oppedahl/Bidwell post:

An Examiner made such an objection a couple of days ago in one of our cases. We will be able to force the Examiner to withdraw the objection.

Before explaining why it is that we will have no difficulty forcing the Examiner to withdraw this objection, let’s ask ourselves how such an objection could even arise.

The requirement that the Abstract commence on a separate sheet was imposed over a decade ago, and it was for a very simple purpose — to make life easier for Reed Tech (a LexisNexis company), which is the government contractor that carries out the printing of US patents. Almost every detail of the way that you and I file and amend US patent applications is spelled out in USPTO rules that are designed to make life easier for Reed Tech.

[...]

Of course this Abstract in our case, in the form in which the USPTO computer system obtained it from the WIPO computer system, was on the front page of a published PCT application. So it was not on a page by itself. It shared a page with lots of other things such as the title and the names of the inventors.


What matters is the substance of patent applications. It has already emerged, based on EPO insiders, that many patents now get rejected only on structural grounds (like the above) rather than actual assessment of patents (because there's not enough time to actually do the job). But this post isn't about EPO. We just want to highlight similarities.

"It has already emerged, based on EPO insiders, that many patents now get rejected only on structural grounds (like the above) rather than actual assessment of patents (because there's not enough time to actually do the job)."Either way, there's danger that USPTO examiners now rush to reject patents not based on prior art etc. (which takes time and effort to find and ascertain) but based on glaring technical errors in the structure. This way examiners can fake supposed 'production' or 'productivity' (when the yardstick is number of patents processed, i.e. accepted/rejected). We certainly hope that USPTO administration staff pays attention to these things.

It has meanwhile emerged that Watchtroll moved from endless PTAB and Alice bashing to webinars in which Watchtroll was/will be promoting UPC and software patents. These people strive for a "grant everything" policy (wherein all decisions are to be made in courts where they make plenty of money through legal bills). It is appalling when they also meddle in Europe. The other day Watchtroll wrote about the Court of Appeals for the Federal Circuit (CAFC), noting that CAFC may have touched Alice again. The headline is somewhat misleading; look at the body:

In Inventor Holdings the Federal Circuit affirmed an award of attorneys fees under Octane Fitness against a business method patentee who filed suit before the Supreme Court decided Alice. The Federal Circuit affirmed the award because Inventor Holdings did not “reassess” its case in light of Alice and at that point decide sua sponte that its claims were “objectively without merit”. This was done despite the fact that business methods are not unpatentable per se and, as Inventor Holdings itself argued, it was still reasonable post-Alice to believe its patent covered eligible material because Section 101 “was, and is, an evolving area of law and… the €§ 101 inquiry in this case was therefore difficult.”

But in so holding, the Federal Circuit also provided some very useful language that could be used by patent prosecutors and litigators alike in an attempt to overcome Alice:


So it's basically some vague loophole about a case which actually predates Alice. CAFC has consistently rejected software patents throughout the year, so Watchtroll scrapes the bottom of the barrel in search of some "good news" (for patent predators like Watchtroll).

"They just try to 'sell' the idea that software patents are still worth pursuing (it's their business after all)."Other elements of the patent microcosm have meanwhile looked at district courts (lower than CAFC) for some "good news" and found the District of Minnesota denying Alice as applicable/relevant. To quote: "The District of Minnesota recently issued its fourth post-Alice decision, this time addressing the question of patent subject matter eligibility for a check processing patent. After analyzing a representative claim using the two-step Alice framework, the Honorable Susan Richard Nelson held that the claims were not directed to an abstract idea, and even if they were, provided an inventive concept. The Court also granted summary judgment in favor of Solutran, Inc. (Solutran), finding that U.S. Bancorp’s Electronic Check Service system infringed the asserted patent. For businesses that rely on check processing technology, the decision and breadth of the patent could have significant implications."

It's very rare for US courts (especially like CAFC or higher ones) to not accept Alice, so when it happens the patent microcosm amplifies it. The headlines can sometimes be misleading. They just try to 'sell' the idea that software patents are still worth pursuing (it's their business after all).

Recent Techrights' Posts

Have a "Lifetime" Without Microsoft
The online rage over this is still ongoing
Social Control Media Does Not Improve Reach, It Wastes a Lot of Time
many people still think that no presence in Social Control Media necessarily means invisibility
Links 02/06/2026: New York Times Debunks "Hey Hi (AI) Layoffs" (Excuse, False Narrative), Sheinbaum Publicly Bemoans US Meddling
Links for the day
What Efforts to Cancel Richard Stallman Ought to Teach Us About the Media, Including Very Large British Publishers
Richard Stallman is like a modern-age Alfred Dreyfus
 
IBM Announces 5 Billion Dollars "Invested" in "AI", in "Security", and 10 Billion Dollars for "Quantum", But IBM Does Not Have This Kind of Money (It's Fake News to Manipulate the Share Price)
IBM has fast-growing debt and liabilities, it does not intend to invest this kind of money, it's a smokescreen and false promises timed to alleviate the sagging share price (52-week low)
When Science and Religion Are on the Same Side, United Against Slop Pushers
The "Mathematics Pope" (sometimes known as "Pope Pi") brought together science and religion, united against technofascists who are mostly college drop-outs who abhor women
Links 03/06/2026: "In Turkey, Criticizing a Corporation Can Land You in Jail" and "Court Bans X Account of Turkey's Oldest Newspaper"
Links for the day
Web Censorship Benefits the Corrupt and the Criminal
More so when corrupt politicians are in charge
Internet Archive’s Wayback Machine Undoing Censorship of Corporate Wrongdoing
That won't go away anymore
"For Entertainment Purposes Only" But Everyone Must Adopt It for Work and Governance, Say Anti-Scientific Technocrats
"The present mentality around "AI" is like driving to the gym to use a treadmill - it's walking for people who hate fresh air and beautiful changing scenery."
Gemini Links 03/06/2026: Ian Murdock's Ex-wife Footprint in Debian and Alhena 5.6.1 Released
Links for the day
Irish Company statCounter Recognises It Overestimated Microsoft Windows' Market Share in Ireland
it seems like the Irish people are gradually moving away from Windows
Corporate Media Participates in the Lie That Mass Layoffs at GitLab and Loss of Geographic Footprint in More Than a Third of Countries is "AI" and Thus "Success Story"
There's no way to spin this as positive news
Slop Prompting is Not a Coding Skill and Slop Deserves Shunning
Red Hat is hypocritically shunning the very same thing it keeps promoting
IBM colleagues "handed out a PIP and then right after the end date they are gone"
Some go into early 'retirement' to save face
SLAPP Censorship - Part 96 Out of 200: When You Receive Death Threats From Anonymous Sockpuppets/Burner Accounts Connected to People Who Strangle Women and Tell Women to Kill Themselves
Women are not objects and my wife ought not be mentioned in "threats to kill" (how cops have described this)
European Patent Office (EPO) Series: A Tale of Two Antónios - Introducing the Other António
António Costa
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 02, 2026
IRC logs for Tuesday, June 02, 2026
Advertisements as Articles in The Register MS
Trust in media
Despite Mass Layoffs and Culls Dubbed "Buyouts" Google's Debt Doubled in a Year and It's Desperate for Money (to Pay Salaries and Bills)
Google and GAFAM in general have mass layoffs because they have no clear route towards profitability
Gemini Links 02/06/2026: Arch Linux WriterDeck and Papyrix Reader
Links for the day
Bloggers Still Have Considerable Impact on This Planet
Nowadays, in academia almost anywhere in the world, there's growing expectation that lecturers will spend not much of the time doing research or even teaching
The Firing Line Against Techrights
Tomorrow we'll tell a story about campaigns to intimidate us with death threats
The Cyber Show on the Fight Against Technofascism
It's very long (all combined), but nevertheless refreshing
After Threats to Greenland Northern Europe Seems to be Moving Away From Microsoft Windows Even Faster
The facts on the ground are, more people/businesses/institutions "get the message"
Claim of 500+ IBM Red Hat Layoffs With Termination Next Month
IBM is doing great... at hiding internal affairs
Slop Did Not Rewire Democracy, It's a Giant Flop
we already see slop giants accepting they'll never make money
The Register MS Embeds in Articles "SPONSORED LINKS" That Link to "AI" Ponzi Scheme/Scam
The circular financing giants are allocating budget for the spam, as do the banks (lenders)
Many Countries Divest From Microsoft
new numbers at statCounter today
European Patent Office (EPO) Series: A Tale of Two Antónios - On the Campaign Trail in Brussels
Part 1
SEO is an Acronym That Stands for Slop Engine Orientation
The Web changed a lot when Web directories, portals, and then social control media gained popularity
IRC Network OFTC is Shedding Off Servers
Down to 17
Julian Assange's Counsel Jennifer Robinson Has Just Won an Award
Jennifer Robinson is relatively young
Schweizerische Bundesbahnen (Swiss Federal Railways) and Richard Stallman
It seems like RMS is receiving endorsement or at least belated recognition from very high-profile institutions
Almost 30 Years After Rob Malda Made Slashdot It Still Inspires New Implementations
Maybe the issue isn't Slash per se, just the complexity of it (which SoylentNews complained about in the past)
Links 02/06/2026: "The Infosec Phrasebook", 'Perfect Randomness' and "Leaving the Tech World Professionally"
Links for the day
Faking Demand for Slop: Google's Search Prompt Becomes Slop Prompt (Bait, Switch, Fake Usage)
If there is no consent, then it's unsustainable
When You Give People (or Companies) Money to Buy Your Own Products and Then Call It "Revenue"
A lot of modern "economics" don't benefit ordinary people (all they get is high inflation rates); they're devaluing money by faking economic activity
IBM is Self-Detonating, the Cheeto-Infused Rally is Another Con by Don
pump and dump
"Quantum" as the "Next Big" Bubble
disappointing and delivering nothing
Links 02/06/2026: "$1.5 Trillion Defense Budget Benefits Billionaire Cheeto Mussolini Supporters", US "Plans to Criminalize Sleeping Outside"
Links for the day
Gemini Links 02/06/2026: Organising Oneself and Killing Off Distracting "Notifications"
Links for the day
SLAPP Censorship - Part 95 Out of 200: The Growing Risk of Tolerating Men Who Abuse and Physically Assault Women
FOSS should not be a "safe harbour" or "hideout" for criminals
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 01, 2026
IRC logs for Monday, June 01, 2026
Rust is a Disaster for Both GNU and Linux, But 'Linux' Foundation (GKH) Keeps Promoting It Despite the Problems
And non-GPL licences
IBM's CEO and his "pump and dump scheme" ("Arvind's lies about quantum")
Don't be misled by Wall Street
Gemini Links 01/06/2026: Xylophone Essay, Ham Radio, and Slop Contaminating USENET/Newsgroups
Links for the day
How to Tackle Corruption Effectively and Gradually
In my personal, humble experience
European Patent Office (EPO) Series: A Tale of Two Antónios
"Campaign for the Re-Appointment of the President"
Links 01/06/2026: Patent Applicant Disclosures Drop After the January 2025 IDS Surcharge, "China Exports Surveillance"
Links for the day
Links 01/06/2026: Irreversible GAFAM Bans and "The Pirate Bay Remains Resilient"
Links for the day
Running and Writing Sites for People, Not Bots (Including Search Engines)
Had those sites spent more time focusing on RSS feeds (not social control media "games") and less on SEO (trying to game search engines), they wouldn't be sobbing now
SBB, the Swiss Railroads, Want to Hear Richard Stallman
Can Dr. Stallman persuade key decision makers to adopt not only "Linux" but also Software Freedom (not the same thing), as he did in South American before? Or like he did in Kerala?
Resumes and Vanity Pages
Wikipedia is fast becoming a glorified marketing company
Trusting Microsoft is Foolish
Mr. Rossmann says they "gaslight customers" in their Web site, but it goes a lot further than this
Techrights in a Nutshell, in Very Generic Terms
"for dummies"
SLAPP Censorship - Part 94 Out of 200: SLAPP by Garrett's Litigation Buddy Started 20 Months Ago, He Has Not Even Put in His Defence Yet!
This is what happens when one deals with incels and misogynists who promote slop and Microsoft
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, May 31, 2026
IRC logs for Sunday, May 31, 2026
Gemini Links 01/06/2026: Buckingham Palace Garden Party, TUI Annoyances, Lateral Thinking with Withered Technology
Links for the day