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

Security is Desirable, But Not When the Term Security is Misused to Imply Centralisation of "Trust" (Whose?)
'Security' is not an excuse for vendor lock-in
The Media Helps Microsoft, Amazon and Others (GAFAM and Beyond) Lie About Mass Layoffs Amid Valuation Bubble
The media, instead of saying that there's an "AI bubble" crashing the economy might instead choose the narrative of "jobs replaced by AI"
Bad Tempered? You Might Have Just Given Away That You're Losing the Argument
Brett Wilson LLP is fully aware that it is being investigated
 
Slopwatch: LinuxSecurity, Linux Journal (Slashdot Media), UbuntuPIT, and Google News (Noise)
egregious plagiarism
Links 17/10/2025: Better Answers Sought After Air Crashes, "China Fans Patriotic Sentiment as Trade War With U.S. Heats Up"
Links for the day
Links 17/10/2025: Fentanylware (CheeTok) Causing Problems, Japanese Government Blasts Slop
Links for the day
The Linux Foundation Seems to Have Turned Linux.com Not Only Into a Spamfarm But Also LLM Slopfarm
it's polluting the Web, even important domains like Linux.com, with spam and LLM slop
Links 17/10/2025: UK’s Largest Breach Penalty and Windows TCO Examples
Links for the day
Go Watch Video About Librephone, Get Microsoft Ads
Very ethical company...
Campaign of Defamation Against the People Who Built NixOS (and Are Now Pushed Out From Their Own Project)
We've already grown familiar with - and resistant to - such tactics
Links 17/10/2025: Nestlé Crisis, Canada Post Versus 'Gig Economy' [sic] and Vista 11 Breaks Itself
Links for the day
Tux Machines Has Helped Separate Opinions/Analysis From News
In September 2023 we decided to split things apart and not repeat links in both sites
Tux Machines Has Improved Navigation of GNU/Linux and BSD News
Some more 'wiring' work
What a World Would Look Like If Everyone Used Free Software Only
Freedom is what matters, not "Open".
Richard Stallman (RMS) is a Target of Defamation Campaigns Because of His Views on Software (But Politics Are the Excuse for Defaming Him)
Here in this site we try to refrain from politics, except in Daily Links
End of Vista 10 and Rise of GNU/Linux as Client Side Operating System
It seems certain GNU/Linux will grow in popularity over time
Taking Stock of a Week's Worth of EPO Leaks
We remain committed to exposing EPO corruption as long as it keeps happening
Mathieu Parreaux claims FINMA knew since day one
Reprinted with permission from Daniel Pocock
Calumny, Libel, Joerg Jaspert & debian-private untouchable cyberbullies
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 16, 2025
IRC logs for Thursday, October 16, 2025
Techrights Turns 19 in 3 Weeks
coverage of suppressed topics and protecting all sources/whistleblowers
International E-Waste Day Same Day as End of Vista 10
message from Akira Urushibata
The EPO's Central Staff Committee Presents Evidence That Staff Compensation Lowered While the Office Increases Income by Illegally Granting Invalid Patents
These people become millionaires by doing illegal things
Second or Third Wave of Microsoft Mass Layoffs in October 2025, This Time Portugal
Those are just the ones we know about, there may be several more
'Help Net Security' (helpnetsecurity.com) May Have Become a Slopfarm as Well
Zeljka Zorz, Editor-in-Chief at Help Net Security, was reported to us
Gemini Links 17/10/2025: Rant About Network Solutions, Strange Anomaly on Lagrange
Links for the day
EPO Staff Representation Lacks Social Dialogue With Relevant Management, Controversial and Sometimes Illegal Policies Implemented Without Necessary Input
"In this open letter, the CSC requests that the President submits an agenda item in the next available General Consultative Committee (GCC) meeting on setting up regular meetings between the CSC and the higher management of DG1."
Links 16/10/2025: Political Leftovers and Gemini Protocol Links
Links for the day
Lies Need to be Corrected
the Court never invited us
Slopwatch: Guardian Digital (linuxsecurity.com), Slashdot, Google News, and More
Maybe one day, once the bubble pops completely, Google News will just outright delist all slopfarms
Lufthansa Modern Slavery, Joerg Jaspert (ganneff) & Debian NSB Softwareentwicklung charade
Reprinted with permission from Daniel Pocock
Links 16/10/2025: US Starting More Trade Wars With China, CIA War on Venezuela
Links for the day
SUSE Blog is Still LLM Slop, Marketing Manager at SUSE Cannot Write
Would you buy from a company or seek support from a company that cannot even write (or fakes writing)?
Pretend You're Not Dead: Microsoft Spent Almost Two Decades Rebranding Things as "Cloud, Then "AI", Now "XBox" and "Quantum"
"AI" bubble pops, Microsoft harping about "quantum" already
IBM Allegedly Found New Tricks for Silent Layoffs: LPI, Then MIS (Not PIP)
Remember that "Red Hat layoffs" won't be reported after the bluewashing
Links 16/10/2025: Red Lines and Feeding of Microsoft Trolls
Links for the day
MIT as a Propaganda Mill of GAFAM, Paid by GAFAM
"the news" today
Links 16/10/2025: Lies Euphemised as ‘Dueling Versions of Reality’ and Microsoft "Open" "Hey Hi" Resorts to Porn as No Business Model Was Found
Links for the day
The Local Staff Committee Munich (Representation of the EPO's Staff) Explains When Cluster of Pregnancies May Result in Reduced Pay
"...even one week of part-time working is sufficient to reduce the salary you perceive during the entirety of your maternity leave."
Another Black Eye for 'Secure Boot', Microsoft Media Tries to Blame "Linux"
It enables Microsoft to remotely control computers, even computers that don't run Windows and never had any Microsoft software installed
Slopwatch: UbuntuPIT, linuxsecurity.com, and Various Slopfarms in Google News Attacking "Linux"
A new survey of the Web said that the majority of the Web is now slop (that's being said in the news this week)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 15, 2025
IRC logs for Wednesday, October 15, 2025
Links 16/10/2025: Increased Use of Social Control Media Surveillance in US, French Rage Over Pensions
Links for the day
Links 15/10/2025: Qantas Airways Loses Control of Sensitive Data and Software Patents Are Being Thrown Out
Links for the day
Vista 10 is 'Dead', Here's Why People Should Move to GNU/Linux (or the BSDs)
Today we try to make an outline of reasons move away from Windows to GNU/Linux
Our Sites Continue to Improve
LLM slop has had no noticeable impact on us
Gemini Links 15/10/2025: Neovim, Helix Compared and Gemlog.blue Now Closed
Links for the day
Links 15/10/2025: Mass Layoffs at Amazon, OneDrive Spyware Revved Up, More 'Gen Z Protests'
Links for the day
The EPO's Staff Engagement Survey 2025 is Already Tainted by Intimidation by EPO Management (Trying to Influence Outcomes by Scaring Genuine, Honest Critics)
"[W]e have received reports that, following the previous survey, teams with negative responses were reproached or questioned about their answers..."
The DDoS Attacks by Microsoft's Scam Altman and Other Slop Charlatans and Frauds is Hurting the FSF, Delinking It From Copyleft Projects
This impacts a lot more than access to the licences
Microsoft Scanning Faces in Photos People Upload to Microsoft (Even Unconsciously), Slashdot Turns Report About It Into "Microsoft Sez" (Says)
Or "let's repeat the lies from a PR person/Microsoft's publicist"
[Teaser] Angel Aledo Lopez the Manipulator (Nepotism, Poll Rigging, and Other EPO Corruption)
We'll discuss this later today or tomorrow, based on internal EPO material
Attacks on Techrights Are Only Making Techrights Bigger and Even More Popular
A week ago they offered to settle with us
Epic Metaphor for End of IBM: "The IBM Demolition is Down to the Last Shards!"
Nothing lasts forever
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 14, 2025
IRC logs for Tuesday, October 14, 2025
Proprietary and DRM Prisons Spiralling Down the Sinkhole? Not Just Yet.
Let's hope that more people will flee to GNU/Linux
The European Patent Office (EPO), the Second-Largest Institution in Europe, is Cracking Down on Recreational Activities
Without AMICALE activities, and as staff already says it's pressured to work more for less, how can the EPO recruit bright people?
Transparency: FSFE financial reports exclude speaker fees and expenses
Reprinted with permission from Daniel Pocock