Bonum Certa Men Certa

The Efforts to Work Around 35 U.S.C. €§ 101 and Why IBM is So Afraid of €§ 101

IBM's actual business has been sent to China (notably Lenovo)

Lenovo notebook



Summary: €§ 101, which invalidates the lion's share of software patents in the US, is still the subject of most Internet debates; that's because restriction/limit on patent scope and almost nothing else really worries the patent microcosm

THE decline/demise of software patents is really hurting IBM because IBM invested/wasted a lot of its cash reserves on a pile of worthless software patents, which are basically worse than worthless. Those patents are bunk, more so after Alice.



We are not arguing that the USPTO stopped issuing software patents. It still issues them (it's just harder), but courts typically reject these. Yesterday we saw this article titled "Materialise makes software that powers 3-D printing" in which it said that "Materialise now has 165 patents for its software, manufacturing and medical device products."

How many of these allude just to software and are thus worthless? There's also an attempt to characterise software patents using all sorts of buzzwords and hype. From the past week alone: "Now Trending in Patent Examination: Cryptocurrencies and Blockchain Technology", "Filing figures suggest blockchain-related patents boom" and "Financial Services Companies Are Rushing to Patent Blockchain Solutions". Disguising software patents as "blockchain" isn't so novel a concept. The applicants or the law firms try to get examiners to say, "well... OK, I don't get it, I'm not sure what that means, so I'll grant a patent."

Here's one from the weekend: "FOSDEM 2018 blockchain devroom raises questions and discusses #Patents #Povery #Law #Energy #Diversity and #Inclusion aspects of blockchain technology."

Well, blockchain is software, so forget about patents. Sure, these get granted, but as far as we're aware, none have been tested in court (yet).

Then there's the "AI" wave, which IBM keeps riding with publicity stunts like "Watson". Nobody invented "AI" and its buzzword 'branches' (data-driven training/learning). The concepts are very old, but over time there's more computing power at hand. The corporate media really ought to stop using the "AI" hype because it is being exploited for patent propaganda, such as this from today.

There's a constant effort to work around Alice and patent software. Watchtroll, for instance, published this thing yesterday, claiming to have come up with new loopholes. It says that the USTPO "recently issued a bulletin explaining that on January 25th, a revised MPEP — Ninth edition (Revision 08.2017) of the Manual of Patent Examining Procedure (MPEP) was made available on the USPTO website."

None of this really changes anything. They're talking about semantics. So does Charles Bieneman, who days ago wrote that "CAPTCHA Patent Claims Survive Alice Challenge," albeit only at a district court (i.e. the lowest possible level). To quote:

Patent claims directed to “generating a completely automated test to tell computers and humans apart” – i.e., improvements to what you’ve seen on the Internet as “CAPTCHA” – have survived a motion to dismiss alleging patent-ineligibility under 35 USC €§ 101 and the Alice abstract idea test. Confident Technologies, Inc. v. AXS Group LLC, No. 3-17-cv-02181 (S.D. Cal. Jan. 23, 2018).


If they want to seriously debate €§ 101, then they ought to look at higher courts, such as the Federal Circuit.

Regarding an IBM patent recently rejected under €§ 101, one troll friend wrote: "Its ]sic] Tuesday, so of course IBM has #patent application improperly rejected under €§101 at PTAB, by ignoring 90% of language and boiling them down to simply claiming "logical parsing of information" https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017008361-01-30-2018-1 …"

IBM has been losing a lot of software patents lately. PTAB invalidates them every week. "IBM is the only operating company that breaks the top-10," Patently-O wrote the other day in "Firms with the Most Registered Patent Attorneys and Agents". Well, IBM is operating less and less over time. Dan Gillmor recently called IBM “a company that basically invented patent trolling and employs platoons of patent lawyers,” having watched the company for decades.

From Patently-O:

According to these records, Finnegan has the most total practitioners while Knobbe has the most patent attorneys. IBM is the only operating company that breaks the top-10. The top 25 firms represent ~8% of all registered patent practitioners. The newest patent attorney on the list is Hallie Wimberley, a first-year associate at Reed Smith. My former firm (MBHB) is now up over 100.


Janice Mueller, writing in Twitter the other day, said: "Delicious irony that IBM now #6 on this list. They were one of the anti-software patent leaders in 1970s. Times do change."

"IBM is now the biggest lobbyist for software [patents] everywhere," I replied, "not just the US" (she agreed on that). IBM is like a troll almost. It's not there yet, but it's already feeding trolls.

Can €§ 101 put an end to most of IBM's aggression? We certainly hope so. €§ 101, based on this tweet, is still being used a lot by PTAB. Another €§ 101 tweet noted that it's not €§ 101 but €§ 103 that did the trick: "Examiner's Rejection of Philips Imaging Patent Application Claims under 101 Was Reversed by PTAB; 103 Rejection Affirmed: https://storage.googleapis.com/pbf-prod/pdfs/2018-01-23_13260533_175904.pdf …"

Charles Bieneman's colleague, Kevin Hinman, wrote about 35 U.S.C. €§ 112. There's also this new post regarding €§ 112 ("aspirational claiming") and regarding Crane Security Technologies, Inc. et al v Rolling Optics AB €§ 287 got brought up in the Docket Navigator. There's more than just €§ 101 at play; here's €§ 287 as explained by Hunton & Williams LLP's Daniel G. Vivarelli, Christopher J. Nichols and Suzanne P. Hosseini. This too falls under AIA:

The Leahy-Smith America Invents Act (AIA) made various changes to the “marking statute” (35 U.S.C. €§ 287(a)) to permit virtual marking of patent numbers, effective for any lawsuit that was pending on or commenced after September 16, 2011. The purpose of marking an article is to provide constructive notice to the public that it is patented. More importantly, failure to mark an article can preclude the tolling of legal damages for patent infringement until effective notice is given. Ultimately, “[a patentee] is entitled to damages from the time when it either began marking its product in compliance with section 287(a) [i.e., providing constructive notice], or when it actually notified [the accused infringer] of its infringement, whichever [is] earlier.” Thus, in the event of a failure to mark, €§ 287(a) provides that “… no damages shall be recovered by a patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice.”


Yesterday (or last night) Watchtroll also wrote about €§ 121: "The safe-harbor provision of 35 U.S.C €§ 121 is a defense against a double patenting rejection. If it applied, the ‘272 and ‘195 patents could not be used as prior art against the ’471 patent."

On €§ 102 (AIA) Gregory Sephton and Anna Schoenfelder (Kramer Levin) wrote:

Over the last few decades, the United States has been incrementally harmonizing its patent law with the rest of the world. Those efforts continued with the signing of the America Invents Act (“AIA”) in 2011. For example, the AIA created a first inventor-to-file patent system, while all but eliminating the best mode requirement. One area where we have not moved as far towards harmonization with the passing of the AIA as some initially thought is patent invalidity based on an “on sale” bar.


What's worth noting here is that the patent microcosm is typically focused on just one section, namely 101. This is what typically tackles abstract patents such as software patents. What does that obsession imply? They're mostly concerned/infatuated with patent maximalism, more so than matters like "damages". That says a lot about them.

Recent Techrights' Posts

SLAPP Censorship - Part 194 Out of 200: The Court Needs to Also Look Into Microsoft-Controlled Restricted Boot Advanced by An American (Garrett) to Promote Monopoly and Back Doors Everywhere
Kill switch sold as 'security' is like euthanasia sold as a cure
Linux Kernel Becoming a Slopfest - Part 7 - Infested With or Plagued by Bot-Generated Slop, Committed by Microsofters
Slop is a security threat; even the person committing slop to Linux might not be aware that there's a back/bug door in the code
Edward Snowden Lost His Voice, Then His Leaks Lost Exposure (Access Denied)
When states want to deny people access to some information they have many tools at hand
 
SLAPP Censorship - Part 195 Out of 200: Two Years Since Garrett, Graveley and Lozza Worked in Parallel to Censor Techrights
It began in September 2024, shortly after we had sued Garrett
Linux Kernel Becoming a Slopfest - Part 8 - In Conclusion
this can invite more SCO-like problems in the future
Germany, Like Switzerland, Will Dump Microsoft's Proprietary Software and Disservices, Then Dump Windows for GNU/Linux
This impacts not only the Windows revenue; this corrodes any "rents" Microsoft was getting from "subscriptions"
Microsoft Shuts Down More Studios, Morale Low, More Mass Layoffs Ahead of Reports
They pretend it's not happening or that it's a lot smaller than it actually is
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 22, 2026
IRC logs for Tuesday, September 22, 2026
Gemini Links 23/09/2026: Ljubljana, Poetry, and FORTRAN
Links for the day
The EPO's Central Staff Committee (CSC) Shows Job Insecurity at Europe's Second-Largest Institution
Who would want to join a company with such low job security?
There Are Thousands More Microsoft Layoffs (Including Silent Layoffs), Not Hundreds
Microsoft does have layoffs and today is no exception (except Microsoft talks about it)
Gemini Links 22/09/2026: Disability Studies, Slop Boosters, and TkInter
Links for the day
Links 22/09/2026: Flock is Collapsing Amid Mass Backlash and Internet Society Collaborates With the 'Epstein Class' (Trafficking of Women)
Links for the day
Raspberry Pi Has Microsoft Secrets Inside, Now DRM
now we deal with SBCs that have DRM in them, put there for commercial reasons
2 Hours Ago The Register MS Published a Page That Says "AI" 42 Times Because It Was Paid to Do So
Still inflating the bubble for money
Gemini Links 22/09/2026: Scout Night, Cybernetic Capitalism, and Thoughts on Companies Forcing People to Adopt Plagiarism Engines
Links for the day
Links 22/09/2026: "An Arsenal of Surveillance" and Slop Bots Suggest Starting Wars
Links for the day
SLAPP Censorship - Part 193 Out of 200: Breaks GNU and Linux, Tries to Silence Critics, Loses All Money, Looks for Microsoft Allies and Sponsors
The latest emotional knee-jerk reactions serve to confirm what we have long said
Things Will Only Get Better (as We Go Backwards)
It only gets better. If you go back in time.
UK High Court Shows SRA is Totally Useless in Curbing SLAPPs, This Has Impact on Our Reporting on the SRA Next Week
We'll carry on our coverage and soon finish the current series that so we can get on with more time-sensitive ones
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 21, 2026
IRC logs for Monday, September 21, 2026
Links 21/09/2026: "Lies of the Hey Hi (AI) Industry" and Solar Power Is Getting Cheap
Links for the day
Gemini Links 21/09/2026: Equinox and Beginner's Guide to Gemini
Links for the day
Links 21/09/2026: "Back On My Bicycle" and American Regime's War on Media Escalates Further
Links for the day
SLAPP Censorship - Part 192 Out of 200: The Hired Guns of Garrett and Graveley Sent Us USB Sticks (One to Me, One to My Wife) Showing Lozza Talking to Garrett About Censoring/Deplatforming Techrights the Same Time Graveley Was Copy-Pasting Garrett's Lawsuit
Next year we plan to bring this matter to the Court of Appeal
Linux Kernel Becoming a Slopfest - Part 6 - Seeing Who Contaminates Linux With Slop (And Also Admits It)
Today we begin looking at some culprits
2026: The Year Galleries Realised the Need to Flag or Cull Slop Images
Society needs to shun slopfarms, people who use LLM slop (for anything at all), companies that use bots (which they dub "agents"), and so-called 'coders' who volley garbage into project and software hubs
Software Freedom Day Celebrated in 5 or 6 Continent
Software Freedom Day (SFD) 2026 was big this year
SLAPP Censorship - Part 191 Out of 200: Garrett, Graveley and Lozza
They talk to and coordinate with one another
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 20, 2026
IRC logs for Sunday, September 20, 2026
Gemini Links 21/09/2026: Digital Hoarder, GTD, Minimalism vs Digital Minimalism, Rejection of LLMs
Links for the day