Bonum Certa Men Certa

Eligibility Analysis Based on Section 101 Ought to Invalidate All Software Patents and Repel Further Applications

Limits exist (and are being actively enforced) for a reason

A rejection



Summary: 35 U.S.C. €§ 101 does not seem to matter to examiners as much as it should; this means that courts and the Patent Trial and Appeal Board (PTAB) are typically left to clean up the mess or a clutter of wrongly-granted abstract patents

THE USPTO is still granting patents on software. It shouldn't, but it does. All it accomplishes is lower legal certainty for US patents; how will that turn out at the end?



Alluding to computer games he once liked, patent maximalist Dennis Crouch wrote about prior art as a patent eligibility barrier:

A new petition for writ of certiorari focuses attention again on patent eligibility and the law-fact interplay. Real Estate Alliance Ltd. v. Move, Inc., SCT Docket No. 18-252.

The original focus of patent law is to “promote the Progress of . . . useful Arts.” In that vein, patents have long been awarded for inventions with concrete and practical uses — and barred to invention claims that are merely abstract ideas.

[...]

In this particular case, the courts have seen this issue as a question of law and have not really considered any hard evidence. The patent at issue is directed to a user interface that shows the geographic location of for-sale properties — using a zoomable interface. Although this idea might seem well understood today — the application claims priority back to 1986 — graphics were not so easy back then. (See Conan – my favorite game back then). U.S. Patent No. 5,032,989.


Prior art aside, there's also Section 101 that essentially voids (or ought to void) pretty much all software patents.

A few days ago we learned about a patent on "game-like exercises to give a workout to the neuromodulatory systems in the brain that control mood."

It was published as a promotional press release. Well, patents on computer games are just software patents (games are computer programs) so these are likely bunk patent pursuits. Did the USPTO really grant such patents? Maybe because they added big words like "neuromodulatory" and made the games sound like a science?

"Prior art aside, there's also Section 101 that essentially voids (or ought to void) pretty much all software patents."We are sad to see and regret to say that the USPTO still isn't taking Section 101 seriously enough. See this other new press release [1, 2] from Numerify. Greed at the USPTO means that it keeps granting totally bogus software patents, in this case alluding to "AI and Machine learning capabilities" (still software). Seems like a game of buzzwords. This may spread elsewhere. See Thomas Prock's new article about "medical app patents" -- an article which was published with terms like "machine learning" and speaks of the UK. Never mind if British courts do not quite permit software patents so "medical app patents" would likely not be valid patents (even more so in the US after Alice/Section 101).

"Defining what constitutes technical innovation as far as apps go," Prock wrote, "and what doesn’t, isn’t always easy, though based on well-established principles. Generally speaking however, the most patentable apps will be those that find technical solutions to the technical challenges of utilising healthcare data. It is expected that machine learning will play a significant role in this."

"We worry that if the USPTO doesn't get its act together and learns to reject software patents, then certainty, value and reputation of US patents will only decline further."As is typical in Europe, the word "technical" is grossly overused and the term "app" is used instead of software. But what's being described there has nothing to do with health ("healthcare data" is a case of trying to frame algorithms as "life-saving" because of data they can be applied to). There's this other new report (cross-posted even [1, 2]) about an "Insulin Optimization System"; this one is at least not about software. We've already seen, e.g. at the EPO, attempts to associate software with "medical" just for the sake of tricking examiners. It's the last case Patrick Corcoran dealt with before Battistelli crushed his career.

Speaking of "medical" patents, the notion that patents are inventions that improve lives (or are trophies) overlooks the fact that people invest in them with the intention to threaten, sue etc. The USPTO didn't stay true to the goal of rewarding innovation; instead it's about litigation and its new chief (the Director) is a litigation person, not a scientist. His appointment raises questions.

Patents are like an 'insurance policy' for corporations; when they have nothing left (but patents) they start to sue. ResMed must be failing pretty badly if it resorts to litigation like this, over facial masks patents. Among roundups of news we found this announcement [1, 2] late in the week:

ResMed (NYSE: RMD) (ASX: RMD), the world’s leading tech-driven medical device company and innovator in sleep apnea and respiratory care, today filed a petition with the United States International Trade Commission to stop the infringement of its patented technology by New Zealand-based medical device manufacturer Fisher & Paykel Healthcare.


So that's what it boils down to: lawsuits. More money for lawyers.

The capital of patent trolls (east Texas) is meanwhile bragging about low-quality patents -- software patents included -- that are granted to potentially enable more patent blackmail. We worry that if the USPTO doesn't get its act together and learns to reject software patents, then certainty, value and reputation of US patents will only decline further.

Recent Techrights' Posts

Slopwatch: Brian Fagioli, Google News, and Other LLM Slopfarms
Why does Google News keep promoting these fake articles?
Links 29/10/2025: Amazon Kept "Data Center Water Use Secret", "Abuse of Power" Against Media
Links for the day
Gemini Links 29/10/2025: "My Hardware Specs" and "Goodbye Debian…"
Links for the day
EPO Cocainegate: Feedback and Clarifications
Part III will come out soon
Links 29/10/2025: "US Military Is Destroying the Planet Beyond Imagination" and Boat Strikes Deemed Unlawful
Links for the day
Quality Comes First (Techrights Search)
It's generally working already, but we wish to polish it some more
Techrights Party Countdown
Late next week we'll be holding a party near our home
European Parliament and Council Directive on Privacy is Vanishing
"edited / censored some time more recently"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 28, 2025
IRC logs for Tuesday, October 28, 2025
Slopwatch: The March of Slopfarms, From UbuntuPIT to Linux Journal and to Various Fake Sites Still Promoted by Google News
It's so worrying to see what the Web has become
Links 29/10/2025: CISA, Ukraine, and Amazon Problems
Links for the day
[Teaser] The EPO's Spokesperson, a Cocaine User, Fancies Young Women
How's that for "optics" in the EU and Europe's second-largest institution?
How Will António Campinos Respond to the EPO's 'Cocainegate'?
That's the same thing we saw and still see when the press deals with enablers and partners of Jeffrey Epstein
Join Us Now and Share the News - Part IV: There Cannot be Free Software Without Free Press and Free Information
One day, one can hope, more people will recognise that for Software Freedom we need free press and free thinkers
Join Us Now and Share the News - Part III: Principled Stance Is Never Cheap
Protecting the truth and insisting that the general public is made aware of things that really happened isn't cheap
Join Us Now and Share the News - Part II: Because Scarcity of Accurate Information Breeds Collective Ignorance
we too will strive to share information that's aggressively suppressed
Gemini Links 28/10/2025: More New Arrivals at Geminispace, xkcd on "Document Forgery"
Links for the day
Join Us Now and Share the News - Part I: Defence of the Truth
This year we make a very strong, firm statement for truth, even if that means explaining our work to the top media judge in the country
Links 28/10/2025: Meta and Fentanylware (CheeTok) Age-Restricted Down Under, "Britain Needs China’s Money"
Links for the day
Links 28/10/2025: Mass Layoffs at Amazon and Charter to Cut 1,200 Jobs
Links for the day
The Cocaine Patent Office - Part II: The Person Who Planted Paid-for Fake News for the European Patent Office (EPO) is a Cocaine User, Friend of António Campinos, Now on Record as Having Been Arrested
Background: High-level manager at the European Patent Office caught in public with cocaine, arrested
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 27, 2025
IRC logs for Monday, October 27, 2025
Google News Drowning in Slop (and Slopfarms That Hijack About Half the Results)
Google News seems to be drowning in this stuff
Gemini Links 28/10/2025: "How to Maximize Your Positive Impact" and ASCII Art and Artist Attribution
Links for the day
PETA and Activism
Being staff or volunteer in PETA isn't easy
Big Blue, Huge Debt
debt will soar again
Links 27/10/2025: Mass Surveillance Sold as "AI", People Reluctant to Lose Physical Media
Links for the day
Parties and Milestones Again
we've begun putting up about 40 balloons
Techrights' 19th Anniversary: Bronze
Time to go back to preparing for this anniversary
Our Latest European Patent Office (EPO) Series Will Last Several Weeks, Will Ask the EPO Management and the European Union (EU) Very Difficult Questions
If nobody loses a job (or jobs) over this, then the EU basically became no better than Colombia or Nicaragua
Slopwatch: LinuxSecurity, UbuntuPIT, Brian Fagioli, and Google News
We focus on stories that are fake or LLM slop that disguises itself as "news" about Linux
Links 27/10/2025: Wikipedia Vandalism, Bruce Perens Opens up on Childhood
Links for the day
This Site Could Not be Done by LLMs Even If It Wanted to (Because It's Not a Parrot of What Other Sites Say)
LLMs have no knowledge or deep understanding
Microsoft is Disloyal Towards Its Most Loyal Employees
Against its most faithful enablers
19 Years, No Censorship
No factual information is ever going to be removed, more so if it is in the public interest
We Are Not a Conventional Site, That's Why They Hate (or Love) Us
Throughout the week this week we'll be focusing on the EPO
Following the Line of Cocaine All the Way to the Top
Even a million denials and spin-doctoring won't distract from the core issue
The Cocaine Patent Office - Part I: António Campinos Brought Corruption and Nepotism to the EPO, Then Came the Cocaine
High-level manager at the European Patent Office (EPO) caught in public with cocaine, the Office has some answering to do
Purchasing/Possessing Computers Isn't the Same as Controlling Computers
Let's strive to put computers back under the control of their users, no matter who purchased these (usually the users)
Gemini Links 27/10/2025: Alhena 5.4.3 and Fixing Bash
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 26, 2025
IRC logs for Sunday, October 26, 2025
Thankfully We've Made Copies of More Interesting Data From statCounter
If statCounter (the Web site or the 'webapp') vanished overnight, we'd still have something left of it
More Silent Layoffs at IBM/Red Hat
when the media counts such layoffs or presents tallies the numbers are very incomplete