Bonum Certa Men Certa

Software Patents in the United States: It's a Lot More Difficult, But Patent Examiners Must Watch Out for Buzzwords and Hype/Marketing

Patent lawyers/applicants try to describe algorithms in terms which are deliberately misleading

Pep vibrates
Anxious to see if they can mislead the examiners



Summary: A roundup of announcements and news pertaining to software patents in the US, including some of the latest 'trendy' ways for bypassing Alice/Section 101 (in effect a ban on abstract patents, such as patents on algorithms)

THE USPTO does not grant software patents as easily or as frequently as it did before. Sure, many of these slip in and of course the courts (and PTAB) throw many of these away. We happen to be watching (and have watched) patent lawsuits and grants. We try to understand what's going on. Several months ago we habitually showed the many cases/situations where PTAB thwarted patent grants just before the grant; Section 101 was cited quite a lot back then. But PTAB's capacity is limited, so there aren't always appeals. PTAB rarely gets involved at this particular stage (when it does, as happens more over time, a grant typically gets denied).

A few days ago this press release came out, bragging about nothing but new patent grants. Some of these patents are software patents based on my fast reading of the press release. It's likely that patent law (e.g. assessment by PTAB) would render them worthless. From the press release: "Covering a spectrum of technologies including: vehicle-to-grid power integration, vehicle controls software, exportable power, and unique powertrain architectures, these recent patent grants further strengthen the international IP position for EDI."

"Several months ago we habitually showed the many cases/situations where PTAB thwarted patent grants just before the grant; Section 101 was cited quite a lot back then."Based on another new press release, Bigbelly continues in its patent lawsuits expedition/campaign, using what seems like software patents. Techrights covered this quite a few times in the past. Bigbelly seems like somewhat of a troll. The press release says that "the cloud-connected Bigbelly smart waste and recycling system combines smart, sensing, compacting stations with real-time software." (yes, they say software)

Another litigious firm, 3Shape, uses patents -- apparently software patents included [1, 2] -- to harass a rival. It's doing it again. Its press release says:

3Shape A/S today announced that it has filed a patent infringement complaint asserting its Patent No. US 9,962,244 B2: Focus Scanning Apparatus Recording Color against Align Technology, asserting that Align Technology's ITero Elements intraoral scanner infringes the 3Shape patent.


We've already explained why at least some of these patents seem to cover software.

If lawsuits aren't bad enough, how about patent-induced embargo (ish) over "motion sensor hardware, software and/or design" (which might be deemed invalid if actually properly assessed)? To quote this days-old announcement:

The District Court has issued an injunction against PPG and its principals, officers, directors, shareholders, employees, affiliates, agents, successors and assigns are, as of May 9, 2018, enjoined from making, using, selling, importing, or offering motion sensor hardware, software and/or designs that operate (and/or would enable products to operate) in the same or substantially similar manner as the PPG technology accused of infringing multiple claims for U.S. Patent No. 8,903,521.This injunction shall continue until the expiration of the ’521 patent or until modified by the Court.


There are even patents that mention software explicitly, e.g. [1, 2] in recent days. 'Cloudwashing' and other buzzwords such as "IoT" are exploited to patent software as well. Such patents are bunk, void, rubbish, but here they go again with "Internet of Things" in the headline (4 patents). CloudTrade too does not seem to be aware that software patents are nowadays pretty much void and invalid, worthless at best. It still brags about these. To quote: "CloudTrade's patent-protected software uses unique rules-based technology with backward tracking search, to interpret, validate, and extrapolate semantic meaning from complex documents, of any type."

"We certainly hope that examiners know better than hype waves and buzzwords; software remains software (code), no matter what label/marketing term one 'slaps' onto it."We should probably note that Alice-dodging has become rather common a practice -- one that we'll cover separately in a later post. Among the tricks? Having software disguised using "AI", "Internet of Things", or "blockchain" hype (there are many others). Here is a new example of it -- one wherein bunk patents and likely worthless patents are painted/framed as "blockchain". On April 24th the patent maximalists wrote about "blockchain patent trends" (basically software patents). "Johan StÃ¥hlberg and Isabel Cantallops Fiol of Valea AB consider developments in the field of blockchain patents, examining the number of blockchain patents applied for and granted in various jurisdictions and fields," said the summary. Weeks later colleagues like Karry Lai in Hong Kong wrote about "blockchain and AI". "The chief IP counsel of the fintech leader tells Managing IP about the challenges of blockchain and AI patent filing," says the summary. They actively promote all this hype and they avoid speaking about software (which is, inherently, what all those things boil down to). Software patents are bunk, even if one labels algorithms “AI” or "blockchain" or whatever.

A few days ago Susan Y. Tull from Finnegan (Finnegan, Henderson, Farabow, Garrett & Dunner LLP) wrote about "machine learning" and said that “[n]ewly published patent application and granted patents reveal applications of artificial intelligence software” (notice the word software).

She correctly attributed this kind of 'trick' to IBM, which nowadays calls many of its software patents "cloud" or "AI" (we covered this before). To quote:

In 2017, IBM received a patent for drug discovery using machine learning.

[...]

Software and software applications are increasingly being applied to the medical device and health tracking fields. Apple recently obtained a patent directed to an “electronic device that computes health data.” U.S. Patent No. 9,723,993 is directed to an electronic device including a camera and sensors to compute the health data of the user. Of note, the patent’s illustrations show Apple’s iPhone performing this function. Oxygen saturation, pulse rate, and perfusion index are among the tracked conditions identified in the patent.


When they speak about stuff like "computes health data" they talk about data processing using algorithms; they want the readers to think that supposed "intelligence" (as in AI) somehow makes that an invention and therefore patent-eligible. We certainly hope that examiners know better than hype waves and buzzwords; software remains software (code), no matter what label/marketing term one 'slaps' onto it.

Recent Techrights' Posts

Not a Security Expert If You Cannot Manage to Keep Online a Simple Two-User Mastodon Instance Somebody Else Built
From uptime of ~99% to maybe 80%
Microsoft Has All the Symptoms of a Dying Company (Mass Layoffs of the People Who Built the Company)
the company's debt is going through the ceiling
For Effective 'Finlandisation' (Not Digital Sovereignty) to Be Replaced by Autonomy Finland Needs to Think Like GNU (Software Freedom), Not Linux (Openwashing Source, Plus LLM Slop and Killswitches)
What is 'Finlandisation'?
IBM's Kyndryl in Trouble: Mass Layoffs, Payroll Problems, Buybacks (in Company Whose Debt is Almost Twice Its Total Value), and Soon $9 Per Share (Down Over 80%)
Kyndryl is done. Stick a fork in it.
ICYMI: GNU/Linux Did Not Start in Finland
If we're honest/true to ourselves, we need to recognise history for what it is, not what some corporations (like GAFAM) want it to be
Codecs and Software Patents - Part VII - Entering Phase II, the Battle Against Companies That Normalise Taxed (by Patents on Mathematics) Codecs
In the next few part we'll deal with the impact on Free software, including the GNU Project
 
LLM Slop is Not Reliable, Constitutes No Process of 'Thinking'; There's No Thought Process at All, No Grasp or Understanding, Let Alone Context
Lies have become the "business model" [...] More people ought to talk about it and explain to other people what LLMs really are
Focus is Important, Focus is Everything
We are still running 6 multi-part series in tandem
Guest Post on False Marketing and PR Blitzes by Anthropic
A lot of people my age are just tired of the nonsense
Links 15/05/2026: UK antitrust regulator is officially investigating Microsoft Office, Anthropic’s Fraudulent Lies About Mythoslop Don't Withstand Scrutiny
Links for the day
IBM is Googlebombing the Media With Fake Numbers to Promote Fake Technology
a classic example of why much of today's media cannot be trusted (anymore)
Up to 10,000 Microsoft Layoffs in a Couple of Months
Many ways to skin a cat
Truth Hurts. People Hurt by Truth Aren't Entitled to Compensation.
Family members aren't exempt
SLAPP Censorship - Part 77 Out of 200: They Never Knew How to Handle Women (Except to Attack Them)
The case against us was really quite simple
Update on Sirius Open Source in 2026 (When Your Former Employer Commits Crimes and Nobody is Held Accountable)
I did not envision myself spending several years (even 4 years after leaving that company) challenging the system for tolerating and even covering up corruption
The Corrupt Lecture the Non-Corrupt - Part XXIII - Cocaine Use at the EPO's Top-Level Management "Adds Up" and Worsens Things "Over Time"
"cocaine use knocks the IQ down permanently a tiny bit with each use. Over time that adds up."
Gemini Links 15/05/2026: Slop Fatigue and Banning LLM Use
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 14, 2026
IRC logs for Thursday, May 14, 2026
Links 14/05/2026: Health Science, Cheeto Meets Pooh, and Facebook Staff Loathing the CEO
Links for the day
Gemini Links 14/05/2026: Early Morning Practice and Number to Roman Numeral Converter
Links for the day
FSF Advertises the Father of Software Freedom Giving a Talk in Germany (a Digital Sovereignty Interest Hub, Sponsor of Free Software)
Free Software vs malware and the need for reverse engineering
Cybershow (UK) Shaping Up to be a Neat and Very Large Gemini Capsule
If only more platforms did the same, plenty of energy would be spared, "old" machines would be totally suitable (even with 20 tabs open), as we'd focus on substance, not bells and whistles
SLAPP Censorship - Part 76 Out of 200: The Problem With the United Kingdom Allowing Americans to File Lawsuits by Proxy (Relayed by "Hired Guns")
Solicitors in UK warned not to act as ‘hired guns’ to silence critics of super-rich
When Microsoft's LinkedIn Goes Offline All Your Fake Friends/Connections and Manufactured 'Status' Will be Gone
Many people quit social control media because they recognise it for what it truly is
Major Setback for IBM in the Courtroom, the Demolition of IBM is Proving Costly
Kyndryl is a sign of how IBM ("mother ship") is run and where IBM is heading
Links 14/05/2026: Willful Ignorance and Mass Layoffs at Microsoft
Links for the day
Gemini Links 14/05/2026: Rewatching V for Vendetta, JPEG XL, and Platform Migrations
Links for the day
The Corrupt Lecture the Non-Corrupt - Part XXII - What the Science Says About Cocaine in the Workplace (EPO President, Mr. Campinos, Please Take Note)
What the science says
European Patent Office (EPO) President, Mr. Campinos, Ignoring Its Staff While Protecting His Friends
the President is covering up cocaine use while ignoring his own workers
Slop Cannot Replace Everybody (the Story of Perl and Universities)
Quantity where abundance exists is without merit; quality is what people opt for as they have limited time and patience
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 13, 2026
IRC logs for Wednesday, May 13, 2026
Links 13/05/2026: Sudan War Enters Fourth Year and Strait of Hormuz Leaves Safe Passage a Gamble
Links for the day
Gemini Links 13/05/2026: Useless Protests and Foofaraw on Geminispace
Links for the day
Mainstream Media: Microsoft Says No Layoffs. Microsoft: OK, There Are Layoffs.
Where is Waggener Edstrom/Frank Shaw now?
IBM's Kyndryl Down Almost 20% in 5 Days, IBM Down 35% in About 6 Months, Further 'Staff Reductions' at Red Hat (Problems Paying Salaries!)
Will this year's festivities be Krishna's last?
More Mass Layoffs at Microsoft, Only Weeks After the "Buyout" Nonsense (Glorified Severance to Highest-Paid American Staff)
Next up it is LinkedIn
IBM is in a Freefall, When Will IBM's CEO Fall on His Sword?
Since he controls the Board, is anyone in a position to fire him?
At GitLab, "AI" is "All India"
It says "as much as 30%," but they also hire and it's clear what demography is targeted
Verified Accounts of Microsoft Offering 'Retirement' (Layoffs) to People in Their 40s, Over Two Decades Earlier Than Retirement Age
It's not even about performance, it's about age (or "cost" as well as location; they cheapen the labour)
Links 13/05/2026: Slop Turns Into 2008-Style Subprime Bubble, Mass Layoffs at Starbucks
Links for the day
They Don't Like the Layoffs, So They Are Rebranding Them
Layoffs are layoffs
IBM Downgraded as the Shares Sink to New Lows
The current strategy of IBM is financial engineering, wage reductions, and mass layoffs that the corporate media refuses to even write about
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, May 12, 2026
IRC logs for Tuesday, May 12, 2026
Gemini Links 13/05/2026: TUIs and Internet Radio
Links for the day
How the European Patent Office Became a Crime and Corruption Hub, One of Europe's Biggest
incomplete outline