Bonum Certa Men Certa

The Era of Fake Patents (or Software Patents) is Upon Us

The fast lane for abstract patents disguised as "AI" and other hype waves

Bahnhof



Summary: The 'patent lust' which prevails in profit-driven patent offices is backfiring; many granted patents turn out to be 'fake' if not just worthless as courts reject them based on/citing underlying laws

THE EPO and USPTO have both decided to engage in shameless promotion of software patents using buzzwords like "AI". We've written about it more than a dozen times before, including last weekend. As recently as a day ago Patent Docs promoted this "Webinar on Patenting Machine Learning and AI Innovations" ("AI Innovations" as in algorithms). This is in the US, but under António Campinos (as President of the EPO) similar tricks are used and similar events are being organised, even by the Office itself. They actively encourage applicants to say "AI" while compelling examiners to grant "AI" patents. It's all about granting as many patents as possible, no matter what the EPC says. Over the weekend El Peruano reported that Campinos had gone to Peru. Not because Peru has lots and lots of European Patents (EPs). Last year 3 EPs were granted to Peru and the year prior just a single one. The EPO may be trying to change that by lowering the bar. It won't work, however, as the more patents they grant, the less these will be worth. They devalue them and merely dilute the patent pool. They fail to heed the warning from the US or even from China.

"...the more patents they grant, the less these will be worth. They devalue them and merely dilute the patent pool."As we've mentioned the other day/week, China's patent examination lenience nowadays backfires. They even allow software patents (explicitly so) and this ushered in an epidemic of patent trolls. Glyn Moody explains the reality of low-quality patents and what they accomplish in practice (waste and lack of productivity) in view of China:

Most Chinese Patents Are Being Discarded By Their Owners Because They Are Not Worth The Maintenance Fees To Keep Them



[...]

The discard rate varies according to the patent type. China issues patents for three different categories: invention, utility model and design. Invention patents are "classical" patents, and require a notable breakthrough of some kind, at least in theory. A design patent could be just the shape of a product, while a utility model would include something as minor as sliding to unlock a smartphone. According to the Bloomberg article, 91% of design patents granted in 2013 had been discarded because people stopped paying to maintain them, while 61% of utility patents lapsed within five years. Even the relatively rigorous invention patents saw 37% dumped, compared to around 15% of US patents that were not maintained after five years.

This latest news usefully confirms that the simplistic equation "more patents = more innovation" is false, as Techdirt has been warning for years. It also suggests that China still has some way to go before it can match the West in real inventiveness, rather than the sham kind based purely on meaningless patent statistics.


A lot of these patents are not even worth the paper they're put on. We found it rather amusing how Watchtroll (Gene Quinn and Steve Brachmann) responded to the seminal report. It's just amusing to see Watchtroll trying to defend China's patent maximalism, which led to a lot of fake patents. They sometimes think it's not OK for China to do it, yet highly desirable when the USPTO does it? "On Wednesday, September 26th," they said, "business news publication Bloomberg published an article providing data analysis on Chinese patent applications to claim that, while China receives more patent applications than any country, “most are worthless.” Although the data supports the fact that a large number of Chinese design and utility patent applications are abandoned, the article misses the larger point that such an attrition rate is a natural result of China’s attempts to build a thriving patent system over a long period of time."

"A lot of these patents are not even worth the paper they're put on."As we've said over the past couple of years, China probably foresaw trade wars and therefore aspired to create the impression of domestic innovation, even if by rushing to patent lots of trivial things; the proportion of Chinese patents in the US and Europe remains notably small (smaller than South Korea's and a lot smaller than Japan's). In our view, a lot of what China does in the area of patenting, domestically at least, can be dubbed 'fake'. They try to fake growth in the same way Battistelli did at the EPO.

We'd like to present similar examples from the US, based on the past week's news. IBM, for instance, is still pursing bogus software patents while lobbying through IPO for such fake patents. Here's a news report titled "IBM Granted US Patent for Blockchain Security System"; it's about last Tuesday:

On Tuesday (October 2), it was revealed by the US Patent and Trademark Office (USPTO) that the tech giant had been granted a patent for a blockchain solution to detect security breaches in a network.

The documents, which were first filed last September, state that breaches are detectable with its blockchain technology by connecting multiple monitors in a chain configuration in a shared log.


That's just software; if tested more properly, it would almost certainly be invalidated, e.g. by PTAB or a court. So we can presume/assume the above patent to be 'fake'.

Watchtroll asks, "Is the Presumption of Validity Dead in Substitute Claims Issued as a Result of Motions to Amend After PTAB Proceedings?"

No, it's "dead" due to patent maximalists like Watchtroll that pushed fake patents into the US patent office. They discredit the very concept of patents.

"That's just software; if tested more properly, it would almost certainly be invalidated, e.g. by PTAB or a court."Meanwhile, ZitoVault too is patenting software on the face of it. The USPTO plays along even though such patents are bunk, bogus. There's this puff piece and press release [1, 2] about it. Did Ian Barker from BetaNews decide to become a PR buddy to ZitoVault or does he voluntarily promote bogus software patents for them? It says "ZitoVault Granted Patent for Prediction of Impending Security Threats Using Behavioral Analysis" (purely algorithmic).

We're still undecided as to whether this too, Maxta's press release in Business Wire (a press releases site), refers to an abstract patent that should be rendered invalid/bunk based on Section 101 (it's definitely abstract based on their press release, maybe not the patent itself).

How about Webomates paying to brag (in a press release) about software patents that are likely bunk and would be rejected by courts? "In addition to the granted US patent number #20180239688," it says, "Webomates already has three more patents pending. It is evident that the innovation process is just starting to catch speed in Webomates."

"The USPTO plays along even though such patents are bunk, bogus."But what if all these patents turn out to be invalid under Section 101? Similiarly, why does Compuverde pay for a press release about software patents that are likely bunk and would be rejected by courts? This was spread through several sites/wires [1, 2] and we fail to see how that's not invalid as per Section 101 (35 U.S.C. €§ 101 to be precise). Only days ago we saw a high-profile case in which AlphaCap not only lost its case (patent invalid under Section 101) but was asked to pay the legal fees of the accused. This was covered here several times before (it's an Eastern District of Texas case) and Michael Borella belatedly speaks of CAFC's take on 35 U.S.C. €§ 285 (Section 285). It was initially invoked successfully, which means that as the case was "exceptional" (exceptionally bad) the bully in the Eastern District of Texas will be penalised severely:

Almost two years ago, we covered a dispute in the Southern District of New York (which began in the Eastern District of Texas) involving plaintiff AlphaCap, a non-practicing entity [troll] that aggressively asserted its patents against a number of targets, including Gust. In short, when Gust didn't quickly settle, AlphaCap offered to dismiss its claims. But Gust wanted AlphaCap to pay its attorneys' fees or assign AlphaCap the patents. After some back-and-forth between the parties, the District Court dismissed the case but awarded Gust attorneys' fees under 35 U.S.C. €§ 285. Gutride Safier LLP, attorneys for AlphaCap, were held jointly and severally liable for these fees and costs under 28 U.S.C. €§ 1927.

Notably, the District Court stated that the case was "exceptional" under €§ 285 because the Supreme Court's Alice Corp. v. CLS Bank Int'l opinion "gave AlphaCap clear notice that the AlphaCap Patents could not survive scrutiny under 35 U.S.C. €§ 101." The basis of this conclusion was that "the claims were directed to crowdfunding, a fundamental economic concept and way of organizing human activity, and that this was an abstract idea." The District Court further held that "the claims did not include an inventive concept sufficient to render the abstract ideas patent eligible under Alice."


AlphaCap’s epic €§ 285 debacle was also covered by Watchtoll shortly afterwards (albeit in relation to the Southern District of New York):

The Federal Circuit recently reversed a decision of the Southern District of New York holding Gutride Safier LLP (“Gutride”), a firm representing the plaintiffs, AlphaCap Ventures, LLC (“AlphaCap”), jointly and severally liable for all expenses including attorneys’ fees and costs incurred by the defendant, Gust, Inc. (“Gust”) in a patent infringement suit. The district court found the case exceptional under 35 U.S.C. €§ 285 because, during litigation, the Supreme Court issued the Alicedecision which gave clear notice that AlphaCap’s patents directed toward crowdfunding were unpatentable under €§ 101. The district court further concluded Gutride was jointly and severally liable for Gust’s attorneys’ fees under 28 U.S.C. €§ 1927 because of its unwillingness to settle pursuant to Gust’s terms despite knowing Alice doomed the claims and its statement that the case was “not worth litigating.” See Gust, Inc. v. AlphaCap Ventures, LLC, No. 2017-2414 (Fed. Cir. Sept. 28, 2018) (Before Wallach, Linn, and Hughes, J.) (Opinion for the court, Linn, J.)


Therein lies the danger of actually asserting fake patents. They oughtn't be granted in the first place.

"The moral of the story is, patent offices need to think carefully whether granting fake patents will be worth it."David Hricik wrote about it several days ago, remarking on what worries the patent bullies' 'industry' (litigation pipeline) quite a lot. What really scares them is the prospect they will need to compensate the victim of their bullying. To quote:

As I’ve written, district courts are beginning to hold that if a case is exceptional under 285, fees can be imposed on, not just the losing patentee or infringer, but its lawyers (and principals). I’ve written before that I have grave doubts this is permitted by the statutory text, and some courts so hold, but others are interpreting 285 to allow for it. (If an opposing party seeks to shift fees onto you under 285 consider the conflicts that it creates, as discussed in my prior posts.)

[...]

The opinion provides an interesting possible way to, perhaps, deal with the chilling effect that Octane Fitness creates on lawyer advocacy while reasonably allocating liability. These clauses will be scrutinized closely, and I’m not certain they would be accepted in every jurisdiction.


It was bad enough when the USPTO granted patents it knew would not withstand the scrutiny of the courts. How about when these patents cost the awarded party not only legal costs of its own litigation but also the accused's (defendant's)? What good is a patent system like this?

The moral of the story is, patent offices need to think carefully whether granting fake patents will be worth it. They groom themselves for their own demise by doing so.

Recent Techrights' Posts

FOMO (Fear Of Missing Out) Has Weakened If Not Ruined What's Left of Big Media
Many things that have existed for decades are now being rebranded as "AI"
SLAPP Censorship - Part 97 Out of 200: Garrett in Hiding (From the Simple Observable Fact He's Closely Connected to the Microsofter Who Strangles Women, Tells Women to Kill Themselves, and Worse)
They use one another; they are coordinating this via the SLAPP industry in another continent
Rust Outsources its Financing (or Financial Control) to Microsoft
How long before the third "E"?
IBM's Shares Fell Nearly 13% in One Day (Including After Hours)
its main product is false promises
European Patent Office (EPO) Series: "Operation Influencer"
Costa's political career was far from finished
GNU/Linux Usage Rising Among Gamers, But "Hardware Survey Data Not Available."
Not anymore, not for now anyway
Quantum Quantum Quantum Quantum (Pump, Then Dump)
What has IBM become?
KDE Has Long Used Dragons, and Dragons Come From Hatched Eggs
That Microsoft Lunduke tries to paint this as some "trans agenda" thing says a lot about Microsoft Lunduke and his COVID-19-damaged brain
IBM Announces 5 Billion Dollars "Invested" in "AI", in "Security", and 10 Billion Dollars for "Quantum", But IBM Does Not Have This Kind of Money (It's Fake News to Manipulate the Share Price)
IBM has fast-growing debt and liabilities, it does not intend to invest this kind of money, it's a smokescreen and false promises timed to alleviate the sagging share price (52-week low)
 
Mass Layoffs Expected at Microsoft in July 2026
They're preparing more "lists" of people
Reflection on EPO Leadership That Harbours Cocaine, IBM Leadership That Pumps-and-Dumps the Shares, and More
ManCity replaced Manuel Pellegrini with a more famous manager it didn't envision winning 20 titles in 10 years (it could only hope) [...] Team-building is something that "Pep" seemed to be good at, as was Jürgen Klopp
Pump and Dump by IBM Insider Traders: Nickle LaMoreaux, Gary Cohn, James Kavanaugh, Arvind Krishna, Robert Thomas, and Others
the shares are already collapsing
Links 04/06/2026: Microsoft Threatening Security Researcher for Naming Back Doors in BitLocker, "Demand is Booming for" Old Tech
Links for the day
Gemini Links 04/06/2026: "Word Vomit", Slop", and Moving to Gopher/Gemini
Links for the day
"Format Sovereignty" Can Only be Accomplished With LaTeX or OpenDocument Format (ODF) or Vendor-Neutral Standards for Editable Documents
Microsoft is, in effect, above the law
The Cyber Show on the Importance of Software Freedom and Why GNU/Linux Could Not be Stopped
an excellent article
Drew DeVault Can Still Redeem His Reputation. Revisiting His Attacks (and Attack Site) on Richard Stallman Might be a Good Start.
DeVault has openly apologised (this past spring)
The Register MS is Publishing Paid SPAM; Some of It is Designed to Prop Up the "AI" Pyramid Scheme
The Register MS participates in scams
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 03, 2026
IRC logs for Wednesday, June 03, 2026
Jumping Up and Down on the Shoulders of Giants, Never Talking About What Bill Gates Did
We're back to 2019
Despite LLM Slop or Chatbots, Our Traffic Has Doubled Since We Moved Everything to the UK (in 2023)
The demise of news sites was not what we thought it would be
Software Developers Attacked by Plagiarism Engines Because These Developers Can Teach People How to Exercise Control, Not Outsource to Monopolies of Slop and Back Doors
"Universities should be telling industry what is to be done next, not the other way about. Present education policy has the tail wagging the dog."
Communicating With Freedom - Part I - Developing “Quibble” and Improving GNU LibreJS in the Process
In the next part we shall examine where things currently stand
Quantum Computers Are "All the Rage" (35 Years Ago, What IBM Promises This Year is What People Promised When the CEO Was in His 20s)
"Quantum" hype is high on the agenda
How IBM Removes 15% of Its Staff Without Even Checking Performance of Staff (or Calling That "Layoffs")
Performance Improvement Plan (PIP) as veiled RAs
Links 03/06/2026: Mobile Systems, Openwashing, and New Antenna
Links for the day
Canonical as Reseller of Back Doors in "Ubuntu" Clothing
Microsoft is the antithesis of security and autonomy
Romania Used to be Windows Stronghold, But That's No Longer the Case
Windows was once upon a time so ubiquitous that institutions didn't bother supporting anything except it
When Science and Religion Are on the Same Side, United Against Slop Pushers
The "Mathematics Pope" (sometimes known as "Pope Pi") brought together science and religion, united against technofascists who are mostly college drop-outs who abhor women
Links 03/06/2026: "In Turkey, Criticizing a Corporation Can Land You in Jail" and "Court Bans X Account of Turkey's Oldest Newspaper"
Links for the day
Web Censorship Benefits the Corrupt and the Criminal
More so when corrupt politicians are in charge
Have a "Lifetime" Without Microsoft
The online rage over this is still ongoing
Internet Archive’s Wayback Machine Undoing Censorship of Corporate Wrongdoing
That won't go away anymore
"For Entertainment Purposes Only" But Everyone Must Adopt It for Work and Governance, Say Anti-Scientific Technocrats
"The present mentality around "AI" is like driving to the gym to use a treadmill - it's walking for people who hate fresh air and beautiful changing scenery."
Gemini Links 03/06/2026: Ian Murdock's Ex-wife Footprint in Debian and Alhena 5.6.1 Released
Links for the day
Irish Company statCounter Recognises It Overestimated Microsoft Windows' Market Share in Ireland
it seems like the Irish people are gradually moving away from Windows
Corporate Media Participates in the Lie That Mass Layoffs at GitLab and Loss of Geographic Footprint in More Than a Third of Countries is "AI" and Thus "Success Story"
There's no way to spin this as positive news
Slop Prompting is Not a Coding Skill and Slop Deserves Shunning
Red Hat is hypocritically shunning the very same thing it keeps promoting
IBM colleagues "handed out a PIP and then right after the end date they are gone"
Some go into early 'retirement' to save face
SLAPP Censorship - Part 96 Out of 200: When You Receive Death Threats From Anonymous Sockpuppets/Burner Accounts Connected to People Who Strangle Women and Tell Women to Kill Themselves
Women are not objects and my wife ought not be mentioned in "threats to kill" (how cops have described this)
European Patent Office (EPO) Series: A Tale of Two Antónios - Introducing the Other António
António Costa
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 02, 2026
IRC logs for Tuesday, June 02, 2026
Advertisements as Articles in The Register MS
Trust in media
Social Control Media Does Not Improve Reach, It Wastes a Lot of Time
many people still think that no presence in Social Control Media necessarily means invisibility
Links 02/06/2026: New York Times Debunks "Hey Hi (AI) Layoffs" (Excuse, False Narrative), Sheinbaum Publicly Bemoans US Meddling
Links for the day
Despite Mass Layoffs and Culls Dubbed "Buyouts" Google's Debt Doubled in a Year and It's Desperate for Money (to Pay Salaries and Bills)
Google and GAFAM in general have mass layoffs because they have no clear route towards profitability
Gemini Links 02/06/2026: Arch Linux WriterDeck and Papyrix Reader
Links for the day
Bloggers Still Have Considerable Impact on This Planet
Nowadays, in academia almost anywhere in the world, there's growing expectation that lecturers will spend not much of the time doing research or even teaching
The Firing Line Against Techrights
Tomorrow we'll tell a story about campaigns to intimidate us with death threats
The Cyber Show on the Fight Against Technofascism
It's very long (all combined), but nevertheless refreshing
What Efforts to Cancel Richard Stallman Ought to Teach Us About the Media, Including Very Large British Publishers
Richard Stallman is like a modern-age Alfred Dreyfus
After Threats to Greenland Northern Europe Seems to be Moving Away From Microsoft Windows Even Faster
The facts on the ground are, more people/businesses/institutions "get the message"
Claim of 500+ IBM Red Hat Layoffs With Termination Next Month
IBM is doing great... at hiding internal affairs
Slop Did Not Rewire Democracy, It's a Giant Flop
we already see slop giants accepting they'll never make money
The Register MS Embeds in Articles "SPONSORED LINKS" That Link to "AI" Ponzi Scheme/Scam
The circular financing giants are allocating budget for the spam, as do the banks (lenders)
Many Countries Divest From Microsoft
new numbers at statCounter today
European Patent Office (EPO) Series: A Tale of Two Antónios - On the Campaign Trail in Brussels
Part 1
SEO is an Acronym That Stands for Slop Engine Orientation
The Web changed a lot when Web directories, portals, and then social control media gained popularity
IRC Network OFTC is Shedding Off Servers
Down to 17
Julian Assange's Counsel Jennifer Robinson Has Just Won an Award
Jennifer Robinson is relatively young
Schweizerische Bundesbahnen (Swiss Federal Railways) and Richard Stallman
It seems like RMS is receiving endorsement or at least belated recognition from very high-profile institutions
Almost 30 Years After Rob Malda Made Slashdot It Still Inspires New Implementations
Maybe the issue isn't Slash per se, just the complexity of it (which SoylentNews complained about in the past)
Links 02/06/2026: "The Infosec Phrasebook", 'Perfect Randomness' and "Leaving the Tech World Professionally"
Links for the day
Faking Demand for Slop: Google's Search Prompt Becomes Slop Prompt (Bait, Switch, Fake Usage)
If there is no consent, then it's unsustainable
When You Give People (or Companies) Money to Buy Your Own Products and Then Call It "Revenue"
A lot of modern "economics" don't benefit ordinary people (all they get is high inflation rates); they're devaluing money by faking economic activity
IBM is Self-Detonating, the Cheeto-Infused Rally is Another Con by Don
pump and dump
"Quantum" as the "Next Big" Bubble
disappointing and delivering nothing
Links 02/06/2026: "$1.5 Trillion Defense Budget Benefits Billionaire Cheeto Mussolini Supporters", US "Plans to Criminalize Sleeping Outside"
Links for the day
Gemini Links 02/06/2026: Organising Oneself and Killing Off Distracting "Notifications"
Links for the day
SLAPP Censorship - Part 95 Out of 200: The Growing Risk of Tolerating Men Who Abuse and Physically Assault Women
FOSS should not be a "safe harbour" or "hideout" for criminals
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 01, 2026
IRC logs for Monday, June 01, 2026