Bonum Certa Men Certa

Alice, Which Turns Four, Has Saved Billions of Dollars Previously Wasted on 'Protection' Money (Notably Patent Trolls)

And we're only a few days away from the eighth anniversary of the Bilski case



Summary: Alice has turned 4 (just five days ago) and software patents have never looked weaker (close to impossible to enforce in high courts in the United States), lowering the incentive to pursue such patents in the first place

THIS weekend we'll focus on USPTO matters, notably software patents. Those aren't doing particularly well, no matter how one attempts to spin it. Even Watchtroll has quit writing about it, having said virtually nothing on the subject this past week (yesterday the only "101" he wrote about wasn't Section 101 but "Patent Applications 101"). Lawyers are meanwhile trying to figure out how to draft or prepare "Software Patent Applications," alluding to Alice and Berkheimer, which we'll revisit separately later. "Register now for our free #CLE webinar, "From Alice to Berkheimer: Practical Tips for Preparing Software #patent Applications," on June 27, featuring guest speakers Wood IP LLC partners Ted Wood and Archie Williams Jr," this new tweet says. It was found and highlighted last night, thanks to Benjamin Henrion (FFII).

"It's worth noting that we're only a few days away from Bilski case turning 8."Yesterday we wrote about U.S. Patent No. 10,000,000, which would also be invalid under Alice, according to Benjamin Henrion. He took a look at it and said that "it is mostly a computer program making some calculations about data coming from a sensor. Could be challenged under Alice."

"Maybe Unified Patents should file an IPR, even just to make a statement about US patent 10,000,000," I responded. U.S. Patent No. 10,000,000 is epic in the sense that it can serve to show what low quality US patents have sunk to. But here comes Dennis Crouch, a patent maximalist, glorifying the said patent. How long will they obsess over the number?

Either way, Alice (marking demise of software patent in the US at the Supreme Court) has just turned 4 and the software patents boosters at Fenwick & West still moan about it. A few days ago Greg Hopewell wrote:

Stepping back, it has now been exactly four years to the day of the Alice decision (June 19, 2014) and four more since Bilski (June 28, 2010). While it has become almost stereotypical to end many discussions of this subject with a call for a legislative solution, this case and others highlight the continuing difficulty in reliably applying the “directed to” and “something more” tests. Even if the application of these tests were reliable to experts who have read a great many 101 cases and could agree on resolving particular claims, the everyday patent examiner, judge, and inventor does not have the time to develop the judgment and expertise to reliably apply such a nuanced test. As reflected in the recent denials for en banc review of Aatrix and Berkheimer, there continues to be a need for clearer, easy-to-apply boundaries that could be resolved legislatively.


It's worth noting that we're only a few days away from In Re Bilski turning 8.

A few days ago the EFF gave some statistics related to Alice:

In the 4 years since the Alice v CLS Bank decision, - R&D spending on software & Internet development has increased - Employment growth for software developers has outpaced other sectors - Over 400 incredibly abstract software patents have been invalidated

This has since then been mentioned and "retweeted" by a lot of people, linking to this new article from Daniel Nazer. To quote: (also via)

This week marks the fourth anniversary of the Supreme Court’s decision in Alice v. CLS Bank. In Alice, the court ruled that an abstract idea does not become eligible for a patent simply by being implemented on a generic computer. Now that four years have passed, we know the case’s impact: bad patents went down, and software innovation went up.

Lower courts have applied Alice to throw out a rogues’ gallery of abstract software patents. Counting both federal courts and the Patent Trial and Appeal Board, there are more than 400 decisions finding patent claims invalid under Alice. These include rulings invalidating patents on playing bingo on a computer, computerized meal plans, updating games, and many more. Some of these patents had been asserted by patent trolls dozens or even hundreds of times. A single ruling threw out 168 cases where a troll claimed that companies infringed a patent on the idea of storing and labeling information.

EFF’s Saved By Alice project collects stories of small businesses that used the Alice decision to defend themselves against attacks by entities asserting abstract software patents. Our series includes a photographer sued for running a website where users could vote for their favorite photo. Another post discusses a medical startup accused of infringing an extremely broad patent on telehealth. Without the Alice ruling, many of these small businesses could have been bankrupted by a patent suit.

Meanwhile, software innovation has thrived in the wake of Alice. R&D spending on software and Internet development shot up 27% in the year following the Supreme Court’s decision and has continued to grow at a rapid rate. Employment growth for software developers is also vastly outpacing growth in other sectors. At the end of 2017, PwC concluded that the “computer and software industries still shine in the R&D stakes, outperforming all other organizations in terms of billions spent.” A recent paper found evidence that the increase in software R&D was linked to the Alice decision.


It wasn't just the EFF taking note of this 'anniversary'. Engine wrote: "VC funding for software and internet companies has increased by 88% since #SCOTUS's #Alice decision on software #patents. Happy Birthday, Alice! Spot her in our new video: https://youtu.be/uKlc-SOBQsA #InnovateWithoutFear"

"Alice has been a nightmare to the patent microcosm but a blessing to companies which actually make something."No software patents (or a de facto ban on them) celebrated by a front group of technology companies. Alice just means more peace of mind and safety for software developers, less risk no matter the company's size. HTIA then joined in: "We love this video by @EngineOrg ! #SCOTUS's #Alice decision improves #patent quality! #IP #InnovateWithoutFear"

HTIA too is a front group of technology companies. They have a common cause with us in the sense that they support the Patent Trial and Appeal Board (PTAB).

Alice was also mentioned by CCIA's Josh Landau. It's another front group of technology companies, both large and small. Landau says "More Evidence Is In—Alice Has Been Good For R&D," alluding to "a recent paper [which] has provided evidence that Alice’s impact on R&D investment has been positive." From the Patent Progress blog:

Tuesday marked one milestone—utility patent number 10,000,000. But it also marked a far more important milestone—the 4-year anniversary of the Alice decision. Looking back on those 4 years, Alice has been a clear success in eliminating patents that never should have issued. It’s had a very limited impact on patent prosecution, with most applications entirely unaffected and affected applications as likely to be allowed as not. And a recent paper has provided evidence that Alice’s impact on R&D investment has been positive.

[...]

The paper suggests a primary mechanism for this is the ability of companies to shift spending away from defensive patenting into R&D. In other words, with the risk of being sued on a low quality patent reduced by Alice, firms were both able and willing to spend more money on R&D.

Contrary to the predictions at the time of Alice and contrary to unsupported statements made more recently, Alice has not only not been “the death of hundreds of thousands of patents” or “devastated” research, but in fact appears to have helped the software industry and R&D in general develop even faster.


So there it is. Alice has been a nightmare to the patent microcosm but a blessing to companies which actually make something. Whose plea is more important?

Recent Techrights' Posts

There Are Likely Over a Thousand Internet Relay Chat (IRC) Networks Online, Net Gain of 16 Seen This Month by Andreas Gelhausen's netsplit.de
It's good that they're still tracking that sort of stuff
SLAPP Censorship - Part 194 Out of 200: The Court Needs to Also Look Into Microsoft-Controlled Restricted Boot Advanced by An American (Garrett) to Promote Monopoly and Back Doors Everywhere
Kill switch sold as 'security' is like euthanasia sold as a cure
Linux Kernel Becoming a Slopfest - Part 7 - Infested With or Plagued by Bot-Generated Slop, Committed by Microsofters
Slop is a security threat; even the person committing slop to Linux might not be aware that there's a back/bug door in the code
Edward Snowden Lost His Voice, Then His Leaks Lost Exposure (Access Denied)
When states want to deny people access to some information they have many tools at hand
 
Germany, Like Switzerland, Will Dump Microsoft's Proprietary Software and Disservices, Then Dump Windows for GNU/Linux
This impacts not only the Windows revenue; this corrodes any "rents" Microsoft was getting from "subscriptions"
3 Years Divorced From Americans
Next year we plan to pursue the UK's Court of Appeal
The Register MS Uses Slop About Slop (in Images)
Months ago we caught The Register MS using slop for text as well
SLAPP Censorship - Part 195 Out of 200: Two Years Since Garrett, Graveley and Lozza Worked in Parallel to Censor Techrights
It began in September 2024, shortly after we had sued Garrett
Linux Kernel Becoming a Slopfest - Part 8 - In Conclusion
this can invite more SCO-like problems in the future
Microsoft Shuts Down More Studios, Morale Low, More Mass Layoffs Ahead of Reports
They pretend it's not happening or that it's a lot smaller than it actually is
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 22, 2026
IRC logs for Tuesday, September 22, 2026
Gemini Links 23/09/2026: Ljubljana, Poetry, and FORTRAN
Links for the day
The EPO's Central Staff Committee (CSC) Shows Job Insecurity at Europe's Second-Largest Institution
Who would want to join a company with such low job security?
There Are Thousands More Microsoft Layoffs (Including Silent Layoffs), Not Hundreds
Microsoft does have layoffs and today is no exception (except Microsoft talks about it)
Gemini Links 22/09/2026: Disability Studies, Slop Boosters, and TkInter
Links for the day
Links 22/09/2026: Flock is Collapsing Amid Mass Backlash and Internet Society Collaborates With the 'Epstein Class' (Trafficking of Women)
Links for the day
Raspberry Pi Has Microsoft Secrets Inside, Now DRM
now we deal with SBCs that have DRM in them, put there for commercial reasons
2 Hours Ago The Register MS Published a Page That Says "AI" 42 Times Because It Was Paid to Do So
Still inflating the bubble for money
Gemini Links 22/09/2026: Scout Night, Cybernetic Capitalism, and Thoughts on Companies Forcing People to Adopt Plagiarism Engines
Links for the day
Links 22/09/2026: "An Arsenal of Surveillance" and Slop Bots Suggest Starting Wars
Links for the day
SLAPP Censorship - Part 193 Out of 200: Breaks GNU and Linux, Tries to Silence Critics, Loses All Money, Looks for Microsoft Allies and Sponsors
The latest emotional knee-jerk reactions serve to confirm what we have long said
Things Will Only Get Better (as We Go Backwards)
It only gets better. If you go back in time.
UK High Court Shows SRA is Totally Useless in Curbing SLAPPs, This Has Impact on Our Reporting on the SRA Next Week
We'll carry on our coverage and soon finish the current series that so we can get on with more time-sensitive ones
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 21, 2026
IRC logs for Monday, September 21, 2026
Links 21/09/2026: "Lies of the Hey Hi (AI) Industry" and Solar Power Is Getting Cheap
Links for the day
Gemini Links 21/09/2026: Equinox and Beginner's Guide to Gemini
Links for the day
Links 21/09/2026: "Back On My Bicycle" and American Regime's War on Media Escalates Further
Links for the day
SLAPP Censorship - Part 192 Out of 200: The Hired Guns of Garrett and Graveley Sent Us USB Sticks (One to Me, One to My Wife) Showing Lozza Talking to Garrett About Censoring/Deplatforming Techrights the Same Time Graveley Was Copy-Pasting Garrett's Lawsuit
Next year we plan to bring this matter to the Court of Appeal
Linux Kernel Becoming a Slopfest - Part 6 - Seeing Who Contaminates Linux With Slop (And Also Admits It)
Today we begin looking at some culprits
2026: The Year Galleries Realised the Need to Flag or Cull Slop Images
Society needs to shun slopfarms, people who use LLM slop (for anything at all), companies that use bots (which they dub "agents"), and so-called 'coders' who volley garbage into project and software hubs
Software Freedom Day Celebrated in 5 or 6 Continent
Software Freedom Day (SFD) 2026 was big this year
SLAPP Censorship - Part 191 Out of 200: Garrett, Graveley and Lozza
They talk to and coordinate with one another
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 20, 2026
IRC logs for Sunday, September 20, 2026
Gemini Links 21/09/2026: Digital Hoarder, GTD, Minimalism vs Digital Minimalism, Rejection of LLMs
Links for the day