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

Criminalising Opposition to Fraud
slop causes social issues
 
SLAPP Censorship - Part 199 Out of 200: An American Burden on the British Legal System
A year ago (October 2025) the head of media (Jointly in Charge of the Media and Communications List), the judge in the Garrett case, said that this case was a waste of the court's money
EPO Management Wants Everything to be Done in Microsoft Spyware
In reality, this management should be ousted for normalising cocaine at the Office
The Register MS Does Not Properly Flag Its SPAM About Slop
Signs of desperation
Gemini Links 25/09/2026: Ljubljana, Tanana River, and Curse of Slack
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, September 24, 2026
IRC logs for Thursday, September 24, 2026
Supporters of winding-up process staking claims against Reform UK Party (CR-2026-007405)
Reprinted with permission from Daniel Pocock
Winding-up petition leaked before service on Reform UK Party Limited / Nigel Farage
Reprinted with permission from Daniel Pocock
Gemini Links 24/09/2026: Laziness, Outdoor Seating, "AngelNova’s Interview Malware and Its North Korea Connection"
Links for the day
Links 24/09/2026: Slop "Linked to Disturbing Culture of Sexual Assault"; "Zelensky Warns Russia’s War Will Expand if It Is Not Ended Soon"
Links for the day
Winding-up petition served on Reform UK Party Limited (Nigel Farage)
Reprinted with permission from Daniel Pocock
Appliances Should be Dumb
Any "Smart Home Appliance" is basically a thing that does not last long, does not work as advertised, and is generally unfit for purpose
SLAPP Censorship - Part 198 Out of 200: It Sounds Like Garrett is Now Sending People to Silence Critics (Including His Own Spouse)
This week Garrett is having a somewhat karmic experience
Links 24/09/2026: Slop Contaminating KDE, Slop-Focused Data Centres Have Severe Environmental Impact
Links for the day
SLAPP Censorship - Part 197 Out of 200: Garrett Became So Poor That He Wants Others (in Another Continent) to Pay for His Own Legal Work Being Faulty
They lie to courts
The Register MS Has Become a Slopfest
This is the behaviour of a perishing publisher
Gemini Links 24/09/2026: Requiem for a Season, Philosophy, Rube-Goldberg Machine, ROOPHLOCH 2026, and Git over Gemini
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 23, 2026
IRC logs for Wednesday, September 23, 2026
IBM Grapevine: Development Outsourced to LLM Slop and It Results in Many Bugs
IBM is circling down the drain and every insider knows it
Microsoft Gives Many People the 'Booty' This Week, Not Counting PIPs (Silent Layoffs and 'Voluntary' Layoffs)
Microsoft PIPs allegedly target "20-25% in some teams."
Nearly 1,000 People at EPO 'Met' to Plan Further Strikes and Impending Action to Dethrone Corrupt Leadership
Exploring the purchasing "power" of EPO leadership (buying elections while doing cocaine in public)
Links 23/09/2026: Pax Silica Hub Ruins a Country for a Pyramid Scheme (Slop), Convicted Felon's Press Block Resembles Iran, Russia, China
Links for the day
Gemini Links 23/09/2026: Stuck, Gambling, Fury Road, IPFS, and More
Links for the day
The Register Got Paid Today to Spew Out "AI" Almost 50 Times (Keeping the Pyramid Scheme Buzzing in Headlines)
paid-for spam
SLAPP Censorship - Part 196 Out of 200: Sending Someone to Our Doorstep to Ship Approximately 5 KG of Legal Papers (Instead of to Our Representatives)
it is not about law, this is lawfare
IBM's Anderon Already Smells Like a Fraud and IBM Insiders Heckle the Lies From the Management
Sabine Hossenfelder recently made some videos which explain in simple terms why IBM is lying and has already lied about this for years
Links 23/09/2026: Mass-Surveillance by Clownflare and "Data Centre" Crunch Commences
Links for the day
Same Name/Brand, Not the Same Project/Product
What is Linux becoming?
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
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 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