Bonum Certa Men Certa

Instead of Worrying About Alice, the Patent Microcosm Ought to Accept That Software Patents Have Been Rendered Obsolete by Software Copyrights

They are still trying to come up with loopholes around Alice

An Ontological Model for Determining Section 101 Patent Eligibility under Alice
An Ontological Model for Determining Section 101 Patent Eligibility under Alice [PDF]



Summary: While it is widely recognised -- at least among technical people -- that it is not worth pursuing patents on software (courts if not examiners would crush hopes of assertion/enforcement), the patent microcosm continues to sing a different tune in order to sell services

TECHRIGHTS soon enters its twelfth year. It's a milestone because the site has run nonstop throughout these years. Software patents were always the primary issue. Here we are at the end of 2017 and as we noted some days ago, the higher courts in the US (including the Federal Circuit) have effectively ended software patents. Those which were granted by the USPTO don't make it far; upon challenge, sometimes citing Alice, these patents get discarded. Throughout 2017 the high courts were very consistent on this.

"Here we are at the end of 2017 and as we noted some days ago, the higher courts in the US (including the Federal Circuit) have effectively ended software patents."The patent microcosm, which got accustomed to making money from software patents, keeps moaning that abstract patents are rejected outright. Get used to it.

Rather than accept defeat and pursue something else, these stubborn people try to utilise and master new 'tricks'; they want to pursue software patents in spite of Alice, irrespective of what courts (with expert testimonies and other scrutinisers) may inevitably say.

DLA Piper LLP's Larissa Park has just published this article in which she insinuates that software can be patented. Not so constructive an advice...

"The patent microcosm, which got accustomed to making money from software patents, keeps moaning that abstract patents are rejected outright."Software is not patentable. It's no longer worth pursuing in the US. Want some software patents in spite of it? Then go to China...

Want to protect software developers from plagiarism? Then rely on copyright instead. It already does the job pretty well, for both proprietary and Free/libre software developers. Enforcement or compliance is accomplished differently, but it works. To quote Park:

If your product or service involves software, you should explore the possibility of filing for and obtaining a software patent. While copyright can protect your actual code from being copied; copyrights cannot prevent others from independently (i.e., without copying) developing the same software. On the other hand, a patent can permit you to exclude others from practicing the functional aspects of the software claimed in your patent, even if the other party independently developed the software. See our corresponding article on patents.

The federal government grants patents on new, useful and non-obvious inventions. While features and functions of your software may be new and non-obvious, the biggest hurdle to obtaining patent protection can be overcoming the useful requirement, that is, whether your new and nonobvious software is even eligible for a patent.

[...]

Software can be protected with copyright and trade secret. As noted above, copyright will protect you from someone copying your actual code. However, you will not be protected if that person independently develops his or her own code that performs similar functions. More details on copyright protection can be found in our corresponding blog post on copyrights. Trade secrets can protect the structure and methodology of your software, but will require you to implement confidentially procedures to keep the material secret. Once the information you are attempting to protect with a trade secret becomes public, it will no longer be protected by trade secret law. More details on trade secret protection can be found in our corresponding article on trade secrets.


Park is correct only in the sense that software can be reimplemented to work around copyright issues, e.g. in a different programming language. The issue she fails to address, however, is that in a world with hundreds of thousands (perhaps millions) of software patents developers won't be able to safely write any code at all. Since she and her colleagues rarely (if ever) claim to have developed software, perhaps the reality of it conveniently evades them*. Moreover, they may simply not care about software development at all; for them, the important thing is maintaining litigation and an atmosphere of hostility. They profit from it.

"Since she and her colleagues rarely (if ever) claim to have developed software, perhaps the reality of it conveniently evades them."What's also absent (or lacking emphasis) in the article from Park is Alice. In the dawn of 2018 it makes absolutely no economic sense to invest in software patents; companies should, instead, form a strategy around copyrights (or copyleft). The world is changing and one must move on with the times...

The new journal article at the top is Alan Gocha’s paper on “Section 101 patent eligibility under Alice.” Patently-O mentioned it a few days ago and so did a few other people. To quote Patently-O:

Alan Gocha’s new article focuses on patent eligibility and provides “an ontological model for determining section 101 patent eligibility under Alice.” I think the most important contribution that Gocha makes is to categorize abstract ideas into those that are “inherently abstract” (preexisting fundamental truths) from those that are only “temporally abstract” (longstanding practices).


Alan Gocha is not a software developer but an attorney or law professional. So these people tend to speak of software from a more philosophical or theoretical perspective, not practical or professional. Gocha, in this paper of his, repeats the patent microcosm's talking points, e.g. that there's lack of "clarity" or "clarification". Gocha says that the "Supreme Court and Federal Circuit [two of the most software patents-hostile courts nowadays] case law can be synthesized to provide a comprehensive set of rules to help guide the Alice analysis." It's an effort to find new loopholes, that's all it is.

"The patent microcosm likes to demonise technology companies as if law which leans towards technology companies is an abomination -- almost as though the law is intended to protect the lawyers rather than developers.""Test Wording" is the title of one section, which says that "[a] claim is directed at an abstract idea if a theoretical being that has errorless and unlimited computative capacity could essentially duplicate the claimed invention in its mind."

That can be done with any algorithm; the author then alludes to "non-tangible ideas for which can be entirely performed in the mind—i.e. purely cognitive processes" and again -- this applies to virtually any algorithm, which can be tackled/solved using pen and paper.

We recognise that it's hard for the patent microcosm to let go; it probably made billions of dollars (altogether) from the terrible decision to permit software patents since decades ago; but things have changed and the way software gets developed and distributed changes very rapidly owing to the Internet. These people ought to focus on copyright/copyleft if they want to remain relevant. The paradigm is inherently different (even if they still refer to it by the misleading term "IP"), but this is what software developers actually want. The patent microcosm likes to demonise technology companies as if law which leans towards technology companies is an abomination -- almost as though the law is intended to protect the lawyers rather than developers. That's just sheer Hubris. _____ * Gene Quinn (Watchtroll) got very irritated after he had claimed that he writes code and once asked for proof of it he was unable to produce or even name any. Instead, he blocked me to avoid further interaction. In other words, it's unlikely that he ever wrote any computer program and he continually demonstrated that he does not understand how computers even work. Actual software developers started mocking him for it and he could not deal with it. If these are the sorts of people who lobby the hardest for software patents, we are in serious trouble. They lack the most basic understanding of digital operations and tools, such as compilers, assemblers, interpreters, and processors.

Recent Techrights' Posts

Links 17/04/2025: Calling Whistleblowers at Microsoft, Slop Doing More Harm Everywhere
Links for the day
Trump Authority (CA) With a Trump NSA is All About Security, But Whose?
A "turnkey tyranny", as the NSA whistleblower Thomas Drake loved to call it
You Should Probably Self-Host Your E-mail and Never Use a Web Browser for Mail
Does anyone still believe Gmail is "free"?
StatCounter Shows the Market Share of Vista 11 is Decreasing in Ukraine This Year
Microsoft abandoning Vista 10 users would be a victory for Vladimir Putin
 
Open Source Initiative (OSI) Privacy Fiasco in Detail: In Conclusion and Enforcement Action Proceeds Against OSI at the California Privacy Protection Agency (CPPA)
There's too much to cover in one single part
When You Fail to Filter Your Clients You End Up SLAPPing Reporters on Behalf of Bad People From Microsoft in Another Continent
“American Psycho”
Links 17/04/2025: LayoffBot and Tesla Cheats Buyers
Links for the day
Gemnini Links 17/04/2025: Role of Language and Back to Mutt for E-mail
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 16, 2025
IRC logs for Wednesday, April 16, 2025
Confirming IBM Shutdowns and Layoffs Today
It's not over yet
Gemini Links 16/04/2025: The 2010s Are Calling and Why "Tools Will Not Liberate Us"
Links for the day
Links 16/04/2025: Cliff Lynch RIP, More Attacks on Science (NASA)
Links for the day
Google Promotes Fake Articles (LLM Slop) Instead of Originals, Relaying Microsoft's Linux FUD Emanating From Microsoft LLMs
Shame on Google for participating in the slopfest
In Some Countries the Largest OEMs Already Dump Microsoft Windows
Windows at 18.9%, Android 60.2%
The "Gold" Rule: Taking Money for Reputation Laundering and Openwashing Under the "Linux" Banner
Seller of expensive toilet paper, Jim Zemlin
LLM Slop Says Slop is "coming for white-collar jobs. Microsoft’s layoffs are just the start"
Look what the Web has become
Microsoft Down From 100% to 10% in Myanmar/Burma
only about 4% of Web requests in Myanmar/Burma come from Vista 11, soon to be the only "supported" version of Windows
Reporting Facts About Violence Against Women Deserves Awards, Not Frivolous Lawsuits and Threats
What is Microsoft's stance on women's safety?
Linux.com as Spamfarm of the Linux Foundation, Partner of the Gates Foundation
They no longer publish articles
When Fedora Said It Was Looking to Integrate "AI" It Meant Promoting Microsoft's Proprietary Spyware and GPL-Violating Slop
When they say "AI" they mean Microsoft
Slopwatch: The Typical Slopfarms and the 'Brian Fagioli Dilemma'
To the Web and to society (exposed to the Web) LLMs are a net negative
It Used to be IBM, Now It's Microsoft (Why You Need to Fire Microsofters or CIOs Working for Microsoft)
Typically the only effective solution is to identity and remove Microsofters from one's project/organisation (before they can bring more Microsofters in)
IBM Closes Offices and Labs in the United States to Open New Ones in India
It's not layoffs per se; they're substituting/swapping veteran employees for lesser-paid ones
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 15, 2025
IRC logs for Tuesday, April 15, 2025
Gemini Links 16/04/2025: IndieWeb Carnival, Tinylog RFC, "Focus, the Web and Gemini"
Links for the day
Links 15/04/2025: Touchable Volumetric Display and Resistance to American Spying Firms
Links for the day
Links 15/04/2025: Some People Cannot Read and Re-discovering of 'Web 1.0'
Links for the day
Links 15/04/2025: China Admits Targetting Critical Infrastructure Using CALEA Back Doors, NASCAR Cracked by Windows Usage
Links for the day
Why We Support Carole Cadwalladr (Even If We Don't Agree With Everything She Said)
I first became aware of Cadwalladr's work a long time ago
Microsoft's Serial Strangler Chose to Attack Techrights With SLAPP When Over 400 Victims of Mohamed Al Fayed Complained About Media's Role in Enabling Him
There is a strong element of "free press" here
A Coalition or a Coup of Sexism
In the Free software community it's hard to avoid this issue
statCounter Sees GNU/Linux at New High of 6% in Bosnia and Herzegovina
GNU/Linux is measured at all-time high
To Celebrate Git Turning 20 Linus Torvalds is 'Selling Out' to Microsoft and Proprietary Software Which Attacks Git (E.E.E.)
He makes it seem like he's endorsing his attackers
Gemini Protocol Milestone (3,000 Active Capsules)
and a total of nearly 4,500
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, April 14, 2025
IRC logs for Monday, April 14, 2025