Bonum Certa Men Certa

The American Software Patents Lobby Has Died

No comment necessary

Watchtroll comments



Summary: Voices of US law firms (i.e. patent maximalists) have become quieter and rarer; applications for US patents have decreased in number, patent litigation numbers have collapsed entirely, and patent maximalists have moved on

FOR FIVE HOURS over the past weekend I monitored news about patents worldwide, spending much of the time assessing outcomes of cases (the Federal Circuit in particular), new patent grants from the U.S. Patent and Trademark Office (USPTO), and Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs). It seems like the only "good" news patent maximalists have had was one or at most a couple of instances of PTAB overturning an application's rejection (examination level, akin to appeal or opposition). It's just about the lowest form of a "win" for them and it is quite revealing. We also saw some law firms bringing up Berkheimer one year later, as expected. I saw quite a few court outcomes against software patents and just about nothing for (in favour of) them. Links are omitted because, as we said at the end of last year, we would rather not focus much on the US anymore; the critical issues are at the European Patent Office (EPO). As for east Asia, Korea and Japan have curtailed software patents somewhat, whereas China creates additional appeal courts, perhaps having realised that many Chinese patents lack merit, hence safety nets for defendants are needed.



Last night we saw this new comment in IP Kat, which suppresses discussion about EPO scandals. It's about getting around the EPC to patent things which were clearly not meant to be worthy of a patent (or eligible for one):

Article 53(c) EPC does not allow the patenting of methods for treatment, which is what a use claim would be.

To compensate, the legislator initially introduced what is now Article 54(4) EPC and, with EPC 2000, added Article 54(5) EPC. These provisions allow the patenting of a known "substance or composition" for a new first or second medical use. In these particular cases (only), a new use does make the product new (and potentially inventive).


A few hours ago a succinct reply was posted.

An expansion of the scope of patents has always been problematic; we see this in the domain of software patents; António Campinos (or Team Campinos) nowadays refers to such patents as "AI" or "blockchain" or whatever, adding to Battistelli's "4IR", "ICT" and Brimelow's (or predecessors') "CII" etc.

We intend to focus a lot more on this subject in the coming year if not years. As a software developer myself, the subject matters to me and I have a reasonably OK grasp/understanding of it (technically, not legally). It's worth noting that software patents proponents have been muted. They've willfully become mute if not also deaf (to courts' arguments against such patents). Watchtroll seems to be dying. The front page of the site reveals no comments (open to all, unlike other sites), at least on the past few posts (weekend) and I reckon they'll be another shelved domain in a few years. The patent maximalists will need a career change (like this site's founder, who stepped down from his role last month after 20 years). He started a job at some law firm.

IAM has meanwhile mostly vanished behind an aggressive paywall, its Twitter account sees not much activity, and fellow patent maximalism sites have become either entirely dormant or rarely active (once in a few months). Patent Docs is about 70% ads now. Patenty-O? Ha. Barely active compared to a year or two ago. Its latest post deals with a case that concerns not software but dental stuff. "This approach here is properly seen as a patent drafting trick rather than an improved disclosure or invention," it says. In broader context:

In the first decision in this case, the district court considered the claims, specification, and prosecution history and found that the claims should be interpreted to require a double pass — even though not expressly required by the claims. Because the accused infringers only used a single-pass, non-infringement was then an easy finding.

On appeal, the Federal Circuit has rejected the narrow claim construction. As is its process, the court began with the claim language — finding that ” at least based on the plain language, the claims are not limited to a repeated desmear process.” Moving then to the specification, the court found no “clear and unmistakable disclaimer” of the claim scope covering a single-pass method. For the court here, the deciding factor appears to be the patent attorney’s care in drafting the specification. Here, the specification calls double desmear “one technique” that the invention “can be carried out” and “for example” rather than calling the approach “the invention.”

This approach here is properly seen as a patent drafting trick rather than an improved disclosure or invention.


The bottom line is, we're extremely pleased to see software patents defeated in the US and proponents of software patents 'moving on' to other things. We shall therefore focus more on Europe.

Recent Techrights' Posts

Firehose of Spam (Fake News) From The Register MS Today
This is how awful the state of news sites really is
Natural Disasters and Personal Disasters
Thank you, Om Malik, for the positive memories
Microsoft Already Closing Down Studios, According to Some Publishers
It is being compared to what happened in Intel
IBM PIP Stories Told in Public, Fake IBM News (Fabricated Claims) Drown Media Sites
IBM is seeding fake news to help justify the bailout
The Register MS is Promoting a Pyramid Scheme for Money, But It Is Over 6 Million Pounds in Debt
How much lower can the reputation of this publisher sink?
The Cyber Show on How Data is Misused and Broadcast is Abused to Crush Resistance to Harmful Technology
We recently published a number of articles about how Computer Science is coming under attack
Assessing the "Worth" of a Life
Don't let blunt plutocrats decide whether Venezuelans deserve sympathy or not
 
Microsoft Layoffs Have Already Begun in Its PR Department
It is called Waggener Edstrom
Techrights Community as Litigants in Person (LIPs)
Unwittingly and due to circumstances we're had to step in to protect women abused by monstrous men who lack empathy
European Patent Office (EPO) Series: Rest and Recuperation on the Adriatic Coast
The EPO President's connections with the Croatian SIPO date back to his days as head of the EU trademark agency EUIPO
Slopfarms Becoming Scarce and Few (or Inactive)
we'll try to refrain from even giving the remaining slopfarms any visibility
The Register MS Promotes Things That Do Not Exist... for Money
How much more ZTE spam will come out before 5PM?
Links 26/06/2026: RIP, Om Malik, 1966-2026
Links for the day
Memory Leaks Suck
Slop ('vibe') coding means lots of bad programs
Gemini Links 25/06/2026: Life Philosophy and Misery
Links for the day
GAFAM Became a Mainstream Term, and Why Words Matter
Conveying problems in useful terms [...] Impairing propaganda attempts (e.g. calling parrots "intelligence", back doors "confidential", and outsourcing "cloud") should be the first step
European Patent Office (EPO) on Strike Today, Next Week Another Historic Week
If you live in Europe, contact your delegates today
FSF FreeJS Project (Part of the GNU Project's Goals) Advanced Further in 2026
They're moving to reduce dependence on anything to do with Microsoft
SLAPP Censorship - Part 119 Out of 200: Our Suggestions to Our Politicians and Heads of State
coverage about SLAPPs and related matters
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 25, 2026
IRC logs for Thursday, June 25, 2026
Microsoft Falls to Lowest Value Since 2023
Microsoft can come back down to somewhere below $100
This Could be the Start of Microsoft's Biggest Wave of Layoffs in 50+ Years
This is what it looked like for Intel a few years ago
Gemini Links 25/06/2026: Unix-like People and NeoGeo
Links for the day
Members of the Delegations in the EPO's Administrative Council Told That Amid Unrest Campinos Must Go; a Year of EPO Strikes Means It's Time to Change Leadership
Which strategy is needed for the European Patent Organisation?
Increasing Participation Rates in Staff Representatives' Elections at the European Patent Office (EPO)
The industrial actions seem to have brought colleagues closer together
Microsoft's Mass Layoffs Have Already Begun (Could Not Wait 'Til July)
Microsoft's biggest layoffs round in 50+ years?
Planning 20-Year Techrights Event
Interested people can contact us in IRC
Links 25/06/2026: Earthquakes Strike Venezuela, Conflict of Interest in Kangaroo Court UPC
Links for the day
More Weight of IBM's Stock is Ascribed to Lies and Things That Do Not Exist
Turning stones into gold?
SLAPP Censorship - Part 118 Out of 200: Exposing Crimes is Not a Crime, It is a Public Service
We will soon enter the sixth year of lawfare
Links 25/06/2026: "Why We Need Seed Legislation" and XBox Chaos Predicted by Insiders
Links for the day
Gemini Links 25/06/2026: Hobbies Change, Young love, Strange Encounter, and Raspberry Pi Zero W
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 24, 2026
IRC logs for Wednesday, June 24, 2026
Don the Con Meets the Conman From IBM, Shares of IBM Continue Sliding Some More
The "Quantum" hype did not last long [...] PIPs are the new layoffs
Retaliatory Whistleblowing Expected at Microsoft During or After the Mass Layoffs
Retaliatory behaviour by Microsoft will backfire
Gemini Links 24/06/2026: Heatwave, Steam Next Fest, and Year of Buying Guitar Pedals
Links for the day
Links 24/06/2026: China Tops "TOP500", Impact of Microsoft’s Massive Layoffs Extends Further, Internet Society's Community Snapshot
Links for the day
While Thousands at IBM Lose Their Jobs ("Silent Layoffs") IBM's CEO Goes Begging the Dictator for Bailouts, Based on Deliberate Lies About "Quantum"
Many who claim to be retiring are only in their 40s and 50s. They're too proud to publicly admit what IBM did to them.
European Patent Office (EPO) Series: London Calling...
EPO Vice-President in charge of the "Patent Granting Process" is likely to have been a pay-off for the support which the UK gave to Campinos in 2017
Faking Productivity With Slop and Wasting Money on Faking 'Productivity': A Microsoft Story
If the quality of everything at Microsoft goes down
IBM Sends Workers 'Packing', Sometimes With the "Low Performer" Label That Imperils Their Future
To many people out there, IBM correlates with deceit
Links 24/06/2026: Four-Day Workweeks, GM Cut 1,000 Workers at Its EV Plant, 21,000+ Oracle Layoffs
Links for the day
A Step in the Right Direction (EU) in the Fight Against LLM Slop From GAFAM (US)
We've already mentioned this in Daily Links, but let's discuss this a little further
SLAPP Censorship - Part 117 Out of 200: Libel Tourism or Defamation Forum-Shopping in the United Kingdom Condemned by the European Union (EU)
Last week we reminded readers that the EU had criticised UK defamation law
Demonstration Next Week at the European Patent Office (EPO), Administrative Council Seen as Complicit
Corruption in Europe hurts all of us
IBM is Now Hinged on False Accounting and False Promises
This is the legacy of the current CEO
"PARTNER CONTENT" or 'Content Farms' That Promote Slop and Misinformation (The Register MS)
The Register MS represents a big part of the problem we all face
Wikipedia - Like Some Free Software Projects Infiltrated and Bribed - Bans Its Own Founder
Over the years we've named (not shamed) some projects and organisations that got corrupted by money and ended up banning their own founders
Turn Off the Slop, It's Wasting Energy and Destroying the Planet (the Only Planet We Have)
Right now we see lots of headlines about energy shortages and drained-up reserves
Lessons From Almost 30 Years of Site-Building Activities
We still strive to become faster and lighter
Do Not Outsource (the Seductive Mirage)
Abandoning so-called 'conventional wisdom'
Media Complicit in IBM Fraud Meant to Prop Up the Share Price Based on Lies, Fabrications
Even IBM insiders are fuming at this
The “Aktion T4” at the European Patent Office (EPO) Saves Money for the President's Own Purse
Call for parents of children with special needs
In Some Countries, Windows Has Lost Its Monopoly
Windows fell to an all-time low globally this month
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 23, 2026
IRC logs for Tuesday, June 23, 2026
Gemini Links 24/06/2026: Motivation, PostScript Printer, and Why Hyperscalers and the Smolnet are Compatible
Links for the day