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

SLAPP Censorship - Part 158 Out of 200: Making Alliances With Men Arrested for Strangling Women Was Always a Terrible Strategy
They work for American slop companies
 
Links 22/08/2026: Prince Harry, Elton John and Others Pay High Price for Frivolous Litigation in the UK
Links for the day
'Voluntary' Mass Layoffs at IBM/Red Hat
IBM does not want people to notice what truly goes on there
Another Round of GAFAM Layoffs, This Time Apple
Now Apple "is shutting down an entire Vision Pro team focused on developing gaming features for the mixed-reality headset."
Gemini Links 22/08/2026: The Bodyguard (1992), Minimalism, Backups, and IPFS
Links for the day
Links 22/08/2026: TikTok Settles With Feds, Harms Caused by Social Control Media Gaining Attention
Links for the day
New Data Shows Microsoft's XBox is Really Dying
XBox is a "burning platform"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, August 21, 2026
IRC logs for Friday, August 21, 2026
Sources-First Publication
Thank you for keeping us on track
Ubuntu is Not Linux
I was one of the first users of Ubuntu
Links 21/08/2026: Outrage Over Politicians Who Support Slop-Feeding Data Centres, "America Is About to Get More Expensive"
Links for the day
Gemini Links 21/08/2026: Rain Coming Back and "Small Internet"
Links for the day
Mass Layoffs at IBM, But Mostly in Secret (PIPs and 'Voluntary' Redundancies)
Gerstner laid off a record number of people; Krishna tries to find 'innovative' new ways to cause workers to leave
Slop-ware: Nobody Knows What Code Goes Into Linux and Most Developers Cannot Understand the Rust Code (Even If They Tried)
So nobody is in charge
The Slop Pyramid Scheme (Not Boon!) Isn't Good for GNU/Linux, Even If the Plagiarism Engines (Framed as "Training" or "Intelligence") Almost Always Run GNU/Linux
We need the slop pop - we need the bubble to pop
North America: GNU/Linux Measured at 13%-15% Every Night
many (north) Americans use GNU/Linux at home and are using it to access the Web in the small hours of the morning
Links 21/08/2026: "Silicon Valley’s Billionaire Cults Are Coming for Democracy" and "Who’s Raking it in as the National Debt Explodes?"
Links for the day
SLAPP Censorship - Part 157 Out of 200: What is a 'Defamation Troll'?
"Defamation Mill" also
Northern Europe Leads the Pack in Abandoning Windows After Threats Made to Greenland (Says Clownflare Data)
Clownflare has a vast trove of data, so it cannot be easily dismissed as pure nonsense
Clownflare: In Past 12 Months Microsoft Windows Fell From ~80% to ~75% on Desktops/Laptops in Asia
Microsoft is deep in debt
Secret Layoffs at Microsoft, Apparently More Sites Will Shut Down Entirely
vindicates us and serves to affirm what we've said for over a month
The State of Slopfarms About "Linux" in August 2026
The Web needs serious cleanup, which curation can help deliver
IBM Offers Workers Some Money to Fire Themselves, It's Called "Next Step" and It's Allegedly 'Extended' (Not Enough Fools Have Fired Themselves)
Will IBM executives - including the CEO - ever be held accountable?
£5 Million Unsolicited/Undisclosed Bribes and What That Means to British Politics
It still remains unknown (disclosure denied) who helps fund the £1 million lawfare against us
[Satire] Pocock, Binface & nobodies vs Farage: defamation before UK High Court
Reprinted with permission from Daniel Pocock
The IBM Censorship Team, PIPs (Silent Layoffs) in IBM Europe
There seem to be many de facto layoffs going on at IBM right there
SLAPP Censorship - Part 156 Out of 200: Brett Wilson LLP Becoming Wilson FC
Now acting almost like one-person shop (lots of staff has fled this past year)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, August 20, 2026
IRC logs for Thursday, August 20, 2026
Gemini Links 21/08/2026: "Ensmallening the BigWeb", "Rust Dependencies"
Links for the day
Links 20/08/2026: 'Linux' Foundation Promoting Slop Hype for Money (Hype as a Service), Malaysia’s Exports Jump 38% Year-on-Year
Links for the day
Gemini Links 20/08/2026: A "Break From Routine" and "Modem Was the Problem"
Links for the day
Clownflare Reckons GNU/Linux is on Almost 1 in 10 Laptops/Desktops in Western Europe
Western Europe and China are leaving more of GAFAM behind them
Looking Ahead at September
Rianne and I look forward to a productive September
Links 20/08/2026: Facebook "Ran Ads for an App That Promised to Nudify Female Politicians" and Facebook Faces "Social [Control] Media Addiction Trial"
Links for the day
Clownflare Sees GNU/Linux at 16% Market Share on Desktops/Laptops in Tajikistan
in Tajikistan it seems like adoption of GNU/Linux is exceptionally high, based on a very large data set associated with Web access
The Demise of Social Control Media Continues
Entering (anew) social control media in 2026 seems foolish
SLAPP Censorship - Part 155 Out of 200: Throwing Stones in Houses Made of Glass
character-assassination-as-a-service
Gemini Links 20/08/2026: Planners, Pantsing, Vinylyssee
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, August 19, 2026
IRC logs for Wednesday, August 19, 2026