Bonum Certa Men Certa

Alice/€§ 101 is Improving the Quality of Patents in the United States and Patent Law Firms Are Panicking

If code, then invalid patent

Code



Summary: Patent maximalists in the United States not only freak out over Alice but also distort the outcome of recent court cases (Federal Circuit) in order to make it seem as though Alice is going away

THE likelihood of receiving software patents from the USPTO is decreasing. The Patent Trial and Appeal Board (PTAB) nowadays gets involved in mere patent applications, not just patent grants or already-granted patents. We gave many examples of that last month and earlier this month. We suppose that PTAB is going to break another record, whereas reliable sources say that the number of patents granted by the USPTO will have decreased by year's end. It's not a bad thing but a sign of improved patent quality/scrutiny.



"We suppose that PTAB is going to break another record, whereas reliable sources say that the number of patents granted by the USPTO will have decreased by year's end. It's not a bad thing but a sign of improved patent quality/scrutiny."Look at Taiwan. It has a very strong economy (a lot stronger than China's). According to this post/rant from IAM, the number of patents in Taiwan is decreasing, not increasing, unlike China with SIPO. Lessons for EPO and USPTO? It's OK to grant fewer patents, the important thing is quality, not quantity. It's always about quality, not numbers. China amasses patents by the millions, but that doesn't mean China is ahead. Litigation is China in soaring and it's not necessarily a good thing (unless you work for a law firm). In Taiwan the number of granted patents has been decreasing for a number of years, so there's a trend. Nobody seems to be upset about it except the patent trolls' and maximalists' lobby (IAM). Here is what it wrote:

New figures released by the Taiwan IP Office show that mainland Chinese firms are playing a greater role than ever in the local patent environment. Both resident and non-resident firms upped their filing rates in 2017 as the island managed to reverse several years of falling applications. Among the biggest corporate TIPO users, invention patent filings increased by nearly 25%.

The last year in which Taiwan patent applications increased year-over-year was 2012, when they reached a peak of 51,189. The headline figure from 2017 was well below that figure – coming in at 46,122 – but it did represent 5% growth over a 12-month period. Both resident and non-resident applicants were more active.


IAM keeps speaking about "growth", but a growth of what? Monopolies? One can easily grant millions of monopolies overnight. Would that be a positive thing? Would that add value to the economy and improve people's lifestyles? Of course not.

"One can easily grant millions of monopolies overnight. Would that be a positive thing? Would that add value to the economy and improve people's lifestyles? Of course not. "We were watching with scepticism and restrained disdain this latest nonsense from Bilski Blog, best known for Alice spin and promotion of software patents. These Big Litigation lobbyists (Fenwick & West) are, as usual, using cases that aren't about software patents to promote an illusion/lie. Christopher King even names Core Wireless (GUIs, not algorithms). But these lies are profitable to them. To quote the core basis for the flawed hypothesis (the headline says "Thawing in the 3600s? An Updated Look at Allowance Rates Post Alice"):

Although even with the increases in 2017 the allowance-to-abandonment ratios are still far below their pre-Alice levels, the statistics suggest that a sea change may have begun, with the PTO starting to loosen somewhat in the wake of a series of pro-eligibility cases such as Enfish, BASCOM, McRO, Thales, Trading Technologies and Visual Memory. More recent pro-eligibility cases such as Finjan, Core Wireless, Berkheimer and Aatrix will presumably further bolster this trend.


A lot of these cases aren't about software!

But just as we expected, facts don't matter to these people. Here's Amol Parikh from McDermott Will & Emery mentioning Core Wireless in relation to software again (title says "Concrete Solution to Computer Problem Is Patent Eligible").

"A lot of these cases aren't about software!"Then there's yesterday's lie from the American Enterprise Institute (AEI). These cases aren't about software patents and hardly about Alice (wrong case for the subject at hand), but then again AEI is a very nefarious front group, so this kind of slant is expected.

It names Aatrix and Berkheimer -- two cases which we recently emphasised (almost a dozen times in a dozen articles) were not about software. To quote AEI:

First, in Berkheimer v. Hewlett-Packard, the Federal Circuit upended a lower court’s entry of summary judgment — a pre-trial legal ruling — that the patent (for processing and archiving files in a digital asset management system) was ineligible under Alice.

[...]

Just a week later, in a similar case, Aatrix v. Green Shades Software, the Federal Circuit again vacated a lower court’s early rejection on eligibility grounds, this time of a patent on “designing, creating, and importing data into a viewable form on a computer so that a user can manipulate the form data and create viewable forms and reports.”


This is misleading, but their goal is to comfort applicants and cushion applications, urging for more of both. They just want lots and lots of software patents at a time when they're simply a waste of time and money (but monetary gain to lawyers).

"They just want lots and lots of software patents at a time when they're simply a waste of time and money (but monetary gain to lawyers)."Watch this new article from LeClairRyan's Gunnar Leinberg and Bryan Smith. These patent extremists are really very nervous about Alice, as it dooms their hopes of profit from software patents. "Drafting Strategies to Avoid Subject Matter Eligibility Issues and to Minimize the Risks of Having a Section 101 Dismissal Based on Recent Federal Circuit Decisions" is the title of their article. They're just trying to work around €§ 101 (rather than simply accept it, which would be the rational thing to do).

How about Patently-O with "What are the Rules for Assessing Patent Eligibility?"

In Front Row Tech. v. MLB Advanced Media, the patentee has filed a petition for writ of certiorari – asking the Supreme Court flip the lower court rulings on its sports-data-app patents.


The Supreme Court has repeatedly (for years) rejected such petitions for writ of certiorari. It's not interested in revisiting a subject it already dealt with nearly 4 years ago.

Over at Watchtroll, the most extremist of patent advocacy sites, an event's introduction started thusly: "Is there hope for Alice? What recent Federal Circuit decisions mean for drafting and litigating software patents in the U.S..."

"The Supreme Court has repeatedly (for years) rejected such petitions for writ of certiorari. It's not interested in revisiting a subject it already dealt with nearly 4 years ago."Maybe they meant "Is there hope for bypasing Alice?" rather than "Is there hope for Alice?"

Perhaps they live in a mythical planet where Alice no longer matters at all. Maybe that's how they try to seduce people to attend another lobbying event. Watchtroll meanwhile (selectively) recalls Google losing at PTAB, under the headline "A Google Opponent Actually Wins an IPR Battle with the Tech Giant" (conveniently never covering any of the cases where Google's IPRs were successful).

Let's just face the facts; Google tackles low-quality patents with assistance from PTAB. Who other than patent attorneys (like Watchtroll) stands to lose from elimination of patents that oughtn't have been granted?

"Their motivations are tainted by their sheer greed and their judgment is clouded by desire rather than reason."Kluwer Patent Blog recalled Arendi's case against Google some days ago. "The Patent Trial and Appeal Board correctly determined that all 79 claims of a patent related to a computerized method for identifying and substituting information in an electronic document were invalid for obviousness," said the summary. Maybe Watchtroll should write a little more about such cases.

The bottom line is, Alice isn't really challenged in any meaningful way, but people who make a living by 'selling' the illusion that software patents are worth pursuing always find excuses to claim otherwise. Don't listen to them. Their motivations are tainted by their sheer greed and their judgment is clouded by desire rather than reason.

Recent Techrights' Posts

Legal Letters Are Not Postcards
It seems like intimidation, nothing more
European Patent Office (EPO) Strikes Persist, EPO Management Tries to Give False Impression of "Happy Staff"
EPO is trying to broadcast to the world a totally phony image of itself
The End of FOSSPost (fosspost.org), It Has become an LLM Slopfarm Like FOSSLinux
These sites will never get lucky with slop. These experiments always end badly.
 
Government Bailouts Won't be Enough to Save IBM
Bailouts from taxpayers in the US
Links 23/05/2026: Social Media Bans and Demise of Userbase of LLM Chatbots
Links for the day
SLAPP Censorship - Part 85 Out of 200: The United Kingdom's Rating for Press Freedom Has Improved, But We Can Do Even Better
we see the US at #64
Sites Realise That Becoming More Active by Using Bots (LLM Slop) is Self-Destructive
We'll soon (maybe next year) also show that some of the 85+ KG of legal papers sent our way are computer-generated garbage, which might run afoul of some rules
Gemini Links 23/05/2026: Patience, LLM Chatbts Being Bad, and Unexpected Computer Surgery
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, May 22, 2026
IRC logs for Friday, May 22, 2026
Links 22/05/2026: Ebola Crisis and Samsung Averts a Walkout With Big Bonuses
Links for the day
Links 22/05/2026: Inflation Fears and Thailand Tightens Visa Rules for Tourists From Dozens of Nations
Links for the day
EPO Staff Representation Speaks of This Week's Discussion With the EPO's Budget and Finance Committee (BFC) Amid Mass Strikes
The Central Staff Committee's outline (prepared in a rush) or the "flash report"
SLAPP Censorship - Part 84 Out of 200: New Legislation Against SLAPPs on the Way (After We Reached Out to Ministers)
They dealt with the matter individually too, but we won't share this in public, at least not at this time
The Corrupt Lecture the Non-Corrupt - Part XXX - Where Was "The Ethics and Compliance Team" When the Family of EPO President Campinos Was Caught Doing Cocaine?
It remains to be seen if national delegates will tolerate this in future meetings
Gemini Links 22/05/2026: Esperanto Music History, Suspicious Adoption of Signal, and Unauthorised LLM Slop in Code
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 21, 2026
IRC logs for Thursday, May 21, 2026
Links 21/05/2026: "Declining America" and Why Slop 'Code' is Made to Fail
Links for the day
Techrights and Tux Machines Subjected to Cyberattacks for Several Weeks
In the past I spoke to the cybercrime unit of British Police. Maybe it's time to do so again.
The Register MS Has Become a 'Content' Farm Promoting Slop for Hostile Corporations
Now they call it "PARTNER CONTENT" - not "SPONSORED" - as if semantics make the difference
Latest Example of Widespread Fake Assertions (False News) About "Hey Hi"
The false narrative of "Hey Hi layoffs"
Links 21/05/2026: Facebook Rewarded With Tax Breaks to Destroy the Environment and Cause Global Warming, Shortages, Pollution; SpaceX (SPCX) Continues Losing Billions of Dollars
Links for the day
Codecs and Software Patents - Part VIII - GNU Audio/Video Team Has Chosen the AV1 Video Codec and It Explains Why (They've Researched Their Options)
AV1 video codec will be used to encode and share GNU videos online
Dr. Stallman Helps Establish Free Software Advocacy Outside the Free Software Foundation (FSF) as Well
The ideals or principles of Free Software needn't be centralised or monopolised; they can be federated
22 Years of Tux Machines and a Community Stronger Than Ever Before
We've already received some feedback from the community and improved it accordingly
Microsoft Under Investigation for Breaches of Law in the UK
Just like the Microsofters
More Microsoft Layoffs on the Way (June and July 2026)
with or without PIPs
LWN Sponsored by the Linux Foundation (Monopolies)
We must be able to casually point this out
The Corrupt Lecture the Non-Corrupt - Part XXIX - European Patent Office (EPO) Tells Staff "Speaking up" is Good, But Not When the "Brother-in-law" of EPO's President Does Cocaine
Do we still have a functioning democracy and potent press?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 20, 2026
IRC logs for Wednesday, May 20, 2026
Gemini Links 21/05/2026: Immigration, Slop, and Slop 'Code' Suggestions Infesting Code Repositories
Links for the dayGemini Links 21/05/2026: Immigration, Slop, and Slop 'Code' Suggestions Infesting Code Repositories