Bonum Certa Men Certa

Post-AIA, Post-Alice/€§ 101 USPTO Still Granting Software Patents in Defiance of the (Case)Law

Nationality or sovereignty defined by one's patent scope; the danger is, by granting patents in error they associate their patents with weak enforceability

Some questions



Summary: The patent microcosm, which looks for new ways to patent algorithms (in spite of Alice), actually dooms the US patent system by filling it up with invalid patents -- software patents that are just waiting to be thrown out by courts which can better assess subject matter (no financial incentive to grant aplenty)

THE LITIGATION climate the US became renowned/notorious for is no more; at least as far as patent litigation is concerned. As we said yesterday, a lot of the litigation drifts eastwards to Europe and China, owing to patent maximalism at the EPO and SIPO. It's estimated that this year -- by year's end -- the USPTO will have marked a decline in patent filings.



"We are sadly seeing a failure to reject software patent applications, which eventually perish somewhere like the Federal Circuit or Patent Trial and Appeal Board (PTAB) — at a vastly higher cost!"The improving patent quality is good news; it's bad news to lawyers, but they're just a tiny minority or a non-producing, unproductive niche. Based on yesterday's advertisement of an upcoming "webinar" of theirs, they're trying to come up with new patenting tricks (getting patents on what otherwise would get rejected). The Practising Law Institute (PLI), a patent maximalists' group, will cover "35 U.S.C. Sections 101/102/103" and "35 U.S.C. 101: The Complete Guideline Breakdown of Alice, Myriad and Mayo" (basically what places restrictions on abstract patents). There's also this upcoming "webinar" about rejections and the Intellectual Property Owners Association (IPO), which acts as a front for IBM in promoting software patents, has this "webinar" about patents on nature/life. IBM's Manny Schecter has meanwhile said: "Inventions can be implemented in hardware or software; both should be patentable" (in the US).

"Watch this new list of newly-granted patents; some of them sound like classic software patents. We already know that such patents, even if granted by the patent office, may perish in courts (or even PTAB).""Software requires hardware (i.e. non-physical) to run," I told him, "so focus on the hardware, leave abstract patents out..." (he never replies)

We are sadly seeing a failure to reject software patent applications, which eventually perish somewhere like the Federal Circuit or Patent Trial and Appeal Board (PTAB) -- at a vastly higher cost!

The other day we became aware of this new lawsuit by USAA [1, 2]. The underlying patent sure sounds like a software patent. To be invalidated soon? Here are the details:

USAA has filed an intellectual property lawsuit against Wells Fargo for unspecified damages, alleging Wells has infringed on USAA’s remote deposit capture patents.

More than a year ago, San Antonio-based USAA, which says it is the inventor of remote deposit capture, started to seek licensing fees from banks using the technology.

“We’ve been abundantly patient with Wells Fargo,” Nathan McKinley, a USAA vice president and its head of corporate development, said in an interview Friday. “Now is the time for us to get the court's assistance."


There's nothing seemingly physical in this so-called 'invention'. The lawsuit may go nowhere, but maybe its sole purpose/intention is to increase the pressure on Wells Fargo (to abandon this feature or shell out money).

2020NOW, based on this new press release, is pursuing patents only for the sake of litigation. Expect lawsuits to come:

20/20NOW, the pioneer and innovator of Ocular Telehealth, has initiated legal action and other efforts to protect its patents against infringement. 20/20NOW has filed a lawsuit in New York Eastern District Federal Court against Digital Optometrics, claiming infringement of 20/20NOW's intellectual property. The company also intends on filing for a Post Grant Review of Digital Optometrics Patent with the U.S. Patent Office. The company is confident that the recently issued Digital Optometrics Patent will be found invalid.


We actually found this under "software patents" (we do not look randomly at patents); they aren't necessarily patenting anything physical here. Here's another new example, this time from Acuant. "The patent focuses on remote image acquisition and the processing of ID documents," it says (classic software patent?). "Acuant currently has more than 20 issued patents."

But so what? Are these all valid? Have these ever been proven in a courtroom? Watch this new list of newly-granted patents; some of them sound like classic software patents. We already know that such patents, even if granted by the patent office, may perish in courts (or even PTAB). Several days ago we saw Jorge Sagastume giving bad advice as though software is still patentable. He wrote:

Depending upon the reason behind your need to hand your software to someone else, you may wish to take measures to protect your intellectual property. Patents can be used to protect the factual aspects of software, while software copyright can be used to protect the “artistic” side of things, including your code. While handing your code to another party is a relatively common behavior in the software world, it never hurts to be prepared, to be aware of the risks and to protect yourself throughout the process.


It's really not clear what Sagastume meant by "factual aspects of software" (it sounds like mumbo-jumbo), especially as we know that software as a whole is abstract and thus patent-ineligible, e.g. under Alice.

We keep watching these things closely because ideally examiners will just stop issuing software patents; then and only then will PTAB and other tribunals not be demonised for simply applying the law as examiners ought to have done.

Recent Techrights' Posts

New XBox Leaks Probably Serve to Confirm XBox's Collapse (Many More Layoffs)
It's very much consistent with what many other sites have reported lately
 
Noteworthy Claim That IBM is Firing a Lot of Lawyers This Week (RAs in the Legal Department)
A lot of what they do is patent 'trolling' or lawyering up against their own staff (e.g. HR disputes)
Links 10/10/2025: US Judge Bars Attacks by ICE On Journalists and Protesters; “We Took The Freedom of Speech Away” Says the President
Links for the day
Slopwatch: Serial Sloppers, Google News Gifting Slopfarms, and Fake News/Plagiarism About "Linux"
Google itself is a slop pusher these days
Qualcomm, the New Owner of Arduino, Blasted for Its Software Patents Tax on 'Smartphones'
A lot of Qualcomm's patents are on software. We wrote about this in prior years.
XBox Layoffs Rumours, Downtime, and Criticism From XBox Co-Founder
"everyone is ditching the xbox."
Links 10/10/2025: Honoring The Legacy Of Robert Murray-Smith, Many Articles on the Hey Hi (AI) Bubble
Links for the day
Gemini Links 09/10/2025: October Gothic and Reading Middle Earth Role Playing; C and Ada
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 09, 2025
IRC logs for Thursday, October 09, 2025
Links 09/10/2025: Farewell to Jane Goodall, California Bans Algorithmic Price-Fixing
Links for the day
Gemini Links 09/10/2025: Lost Wages and a Saga Of Continuing To Use Palm PDAs
Links for the day
Richard Stallman's Talk in Helsinki is Done. Tomorrow Göteborg.
There are scarce details in Finnish about Dr. Stallman's talk
The Slop Song
The train wreck marches on
LLM Slop/Advanced Plagiarism Flooding the Zone With Capital That Does Not Exist
Many publishers out there still participate in this bubble instead of calling it what it is
Links 09/10/2025: Sacked Microsoft Workers Make "Sackbird", IBM Taps CockroachDB for PostgreSQL
Links for the day
"Happy Hacking Day" Richard Stallman Talk This Afternoon (From 14:00 to 16:00) at Haaga-Helia University in Pasila
Richard Stallman in Helsinki, Finland
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 08, 2025
IRC logs for Wednesday, October 08, 2025
Links 09/10/2025: Impact of Microsoft Layoffs, More Data Breaches
Links for the day
Gemini Links 09/10/2025: Autumn Blues and C IRC Bot
Links for the day
Slopwatch Appreciated by Real Authors of GNU/Linux Articles
We do try to keep on top of those things
Upgraded R.R.R.R.R.R. Today
The Web of 2025 is full of garbage, not limited to slopfarms
Freedom From Proprietary Prisons
Forking always an option
IBM's Watson Died in 1956, Now Watson Dies Again
IBM is becoming just a reseller of GAFAM and other stuff
Slopwatch: LinuxSecurity, UbuntuPIT, and Google News
We've also just noticed more slop from UbuntuPIT
Microsoft Says That Constant Mass Layoffs Are Success, the Media Isn't Buying This Microsoft Narrative Anymore
If people in the media feel an obligation to repeat whatever lies Microsoft tells, what point will there be to the media?
Links 08/10/2025: "Mali Puts Free Speech on Trial" And Apple Enforces Dictatorship
Links for the day
Links 08/10/2025: ‘Death to Spotify’ and Law to Ban Loud Commercials on Streaming (Dis)Services
Links for the day
Links 08/10/2025: Real Innovation and Nina.chat is Dead
Links for the day
Links 08/10/2025: Y2K38 Bug is a Vulnerability, Chat Control in Europe a Threat
Links for the day
Microsoft Windows is No Longer an Operating System, It's Surveillance Project
Why is this even legal to preload on PCs outside the US?
How and Why Once-Legitimate Sites Turn Into Slopfarms
Many sites will go offline and many social control networks will shut down once they realise or even openly admit they spend money and time gardening a bunch of bots and slop
UbuntuPIT Became a Slopfarm and Gnoppix Tarnishes Its Own Brand With Slop
It fits all the characteristics of mildly-edited (if at all) slop
Slopwatch: Linux Journal and Other Slopfarms
GAFAM needs to go the way of the dodo
Gemini Links 08/10/2025: "Seek Seek Revolution" and Gradient Backgrounds
Links for the day
Qualcomm Arduino Takes Aim at Raspberry Pi
Qualcomm is a Microsoft partner
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 07, 2025
IRC logs for Tuesday, October 07, 2025
Stagnation of the Economy and What Free Software Can (or Could) Do For It
If your economic model is based on a pyramid of lies, it won't last very long
Social Control Media is Sinking
it would rightly seem like the era of centralised "social" sites (they're not social, they're about controlling the users) is ending, not overnight but gradually