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

Like Microsoft and IBM, the 'Alicante Mafia'-Governed EPO Does PIPs Nowadays (at the EPO, It's "Professional Incompetence Procedure")
So "PIPs" are definitely in the EPO and we saw letters sent to staff
Time for Change, More New Articles, Less Curation
The oligarchy wants to gut the real press and replace media with slop and social control media (or social control media with slop in it, i.e. their own voices, mechanised)
Almost 1,600 EPO Employees Went on Strike Last Week
There is another strike coming 2.5 weeks from now
Over at Tux Machines...
GNU/Linux news for the past day
You Know Microsoft's "Value" is 100% Fictional When in One Single "Trading" Day in Wall Street It Loses THREE TIMES More in "Value" Than It Was 'Worth' in 2009
Microsoft does not behave like a company riding trillions but like a company that struggles with payroll
Better Outcomes When Facing the Discomfort of Conflict
Don't take the easy way out when the "hard way" is the right way and it can result in positive revelations
Leaving the United States 3 Years Ago Was the Best Decision We Made
A lot of stuff is being consolidated
 
Links 05/02/2026: Canadian Government Uses US LLMs to Override Expert Opinions, NVIDIA Troubles Due to Enablement of Mass Plagiarism ('Piracy') Misleadingly Obscured as "Hey Hi"
Links for the day
Explaining the Letter From JUDGE SYKES FRIXOU, Threatening Me Around the Time GNOME's Nat Friedman Lost His CEO Job at Microsoft GitHub and His Best Friend Got Arrested for Strangulation
this letter (with annotation) is critical
Linuxiac Not Rehabilitated, It's Still Full of LLM Slop (Part of a Trend)
The Web as a resource/source of information is perishing
"Sponsored by Azul" to Write Fake 'Article' About Azul, Quoting Azul Itself
The "journalism" industry [sic] became so utterly corrupt
JuristGate is for sale: three billion Swiss francs for a domain name
Reprinted with permission from Daniel Pocock
Gemini Links 05/02/2026: Coercion, Antibiotics, and LVDT Project
Links for the day
IRC Proceedings: Wednesday, February 04, 2026
IRC logs for Wednesday, February 04, 2026
Links 04/02/2026: Extreme Malice in Microsoft's Visual Studio Code on GNU/Linux, More Hey Hi (AI) Chaos
Links for the day
Sexism & GNOME: shaming men, hiding women, Sonny Piers update
Reprinted with permission from Daniel Pocock
Gemini Links 04/02/2026: Humanity and Animality, systemd (Controlled by Amutable, a Proxy of Microsoft) Moves on to "Extinguish" Phase
Links for the day
Certificate Authority Let's Encrypt Used to be Widely Used in Geminispace, Now It's Down to Just 0.2% of the Whole
Let's Encrypt is not your friend
What IBM Does Is Clearly Illegal in the US: Tying Severance Packages to NDAs (Non-Disparagement Agreement/Clause)
The NDAs make things worse; they keep people isolated and silent
Microsoft's Giant Snowball of Layoffs and PIPs (in 2026)
They would delay until March or April if they wanted to, but then we can expect numbers exceeding 10,000 layoffs (Microsoft always low-balls the real figure/s)
Mozilla Turned Firefox Into Shovelware, Adding 'Kill Switch' for Slop Still Means Mozilla is Participating in a Pyramid Scheme, Plagiarism, Grifting
Mozilla is still a slop pusher
Links 04/02/2026: "Laws of Succession" and Microsoft's VS Code as Code-Stealing Malware
Links for the day
BillBC (BBC) Covered Up Pedophilia, Now It's Covering Up for Its Sponsor Bill Gates by Reprinting His Lies, Which His Own Wife Disputes
Is Bill Gates having orgies (group sex)?
Phoronix Swims With the Real Trolls, People Who Fancy Proprietary Software and Back Doors
If Larabel begins to actively participate in provocation with the "Microsoft GitHub fans club", what does this tell us about Phoronix?
They Know Microsoft Layoffs Are About to Hit Them Hard
The gaming division at Microsoft is a complete catastrophe, lots of money (debt) down the drain [...] Buying Activision was all about misleading shareholders or hiding the deep trouble/problems XBox was having
Red Hat is Not a Linux Company, It's IBM's Ponzi Scheme Enabler
Had we still been stuck in 2021, perhaps IBM would plaster "NFT" or "metaverse" all over RedHat.com
Keep Grinding
"Don't let the bastards grind you down"
Mobbing at the European Patent Office (EPO) - Part III - Who's Going to Pay for the EPO's Corruption? (Aside From European Citizens)
Some people inside the EPO reached out to us
"Investors Are Concerned About an AI Bubble" (That GAFAM and IBM Ride)
A few decades from now IBM will only be remembered in the same sense many so-called 'AI' companies will be remembered
EPO Staff Union: "Very High Strike Participation on Friday 30 January", Another Strike Starts 19 Days From Now
EPO management in a bit of a panic
Censorship/Free Speech and Social Control Media
It's important to have a grasp of how contemporary censorship works and how to tackle it
Google News as Slop Booster
this is what Google links to
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 03, 2026
IRC logs for Tuesday, February 03, 2026
Gemini Links 04/02/2026: "Raspberry Pi Relaxes the Rules for Its RP2040 Hacking Challenge" and "Long Web Society"
Links for the day
IBM Falls by Over 10%
a recipe for disasters like accounting fraud
Links 03/02/2026: Windows Copies GNU/Linux, Windows TCO Shown Again
Links for the day
Gemini Links 03/02/2026: Alhena Turns One, Slop Rejected, and Max Roy Carrouges Recalled
Links for the day
How to Identify Demonisation or Dehumanisation Tactics Against Interesting Figures or Luminaries in Free Software
Rather than in general or generally in technology
We Should Learn From Bulgaria
Why can't European companies and government recognise and react to a threat (when they see one)?
Dr. Andy Farnell on Why and How European Authorities Can Adopt Free Software, Parenting in the Age of Digital Abundance
Will Europe use technology that Europe controls (not the hegemon), for a change?
Canonical: Ubuntu is GAFAM (US), We're Resellers of American Proprietary Software
They want people to pay for a licence
Seems Like IBM Trolls Use Chatbots to Vandalise Platform That Discusses IBM's Secret Layoffs, Forever Layoffs
Not for the first time either
You Know Your Company is Dead or Basically a Pyramid Scheme When Jim Cramer Keeps Promoting Its Stock
How much does IBM pay for "puff pieces" or "fluff" about QC?
Red Hat (Under IBM) Works for Microsoft (Proprietary Software) and Slop
Yesterday Red Hat's official site, redhat.com, published exactly 5 new blog posts
IBM is Dying (More Layoffs), Red Hat Will Continue to Suffer From the Acquisition
Financial engineering
Colombia Adopting GNU/Linux Even Faster (at Microsoft's and Apple's Expense)
Do politics play any role in this?
An Effort to Tackle Slavery in 'Open Source' Clothing
"a civil rights lawsuit to examine the concerns of censored developers in the free, open source software ecosystem"
$15 billion lawsuit: Ubuntu, Google & Debian crowdfunding campaign launch
Reprinted with permission from Daniel Pocock
The Solicitors Regulation Authority (SRA) Delusion - Part II - Why We Need to Expose the SRA to More Daylight, Public Scrutiny
SRA is neither effective nor regulated
Links 03/02/2026: "Distraction is a Sin" and Fake "Encryption" (Surveillance With Good Marketing)
Links for the day
400-Page US Federal Court Against Abuses by Google, Microsoft and Front Groups That Abuse Volunteers for American Corporations
There are 386 pages in total (in the US claim)
Corporate Influence Never Impacted Us
There's no reason to assume we'll ever "sell out"
Growth of GNU/Linux in Cuba
Right now a lot of the world drafts or already implements a GAFAM exit plan
A Day After EPO Strikes an Escalation to Heads of Delegations to the Administrative Council
They rely on the European media playing along, helping them to hide major blunders, even crimes
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, February 02, 2026
IRC logs for Monday, February 02, 2026
Gemini Links 03/02/2026: Stargazing, Development Boards, and Tcl/Tk Slop
Links for the day