Bonum Certa Men Certa

2017: The Year Software Patents Died Even in the Court Which Started Them

Software patents (1968 -- 2017)

Room that's dying



Summary: Software patents are a dying breed as high US courts tackle them, IP Australia pretty much bans them, and UPC goes the way of the dodo

THE emergent reality that software patents are somewhat of "a thing of the past" was reaffirmed this year by the Court of Appeals for the Federal Circuit (CAFC), which had introduced/affirmed these patents in the first place. When even CAFC says "no!" that ought to really mean something. What will 2018 bring? We don't know for sure, but PTAB will likely get more backing, this time from the Supreme Court. Alice will not be challenged by the Supreme Court.



Software patents and UIs are not patentable or at least not assert-able in a court of law. Apple should know that, but it keeps pursuing such patents based on these new reports. These patents are bunk, they're worthless now. Why bother? Are these just 'trophies' or something to be used/sold in bulk? Digimarc has just just claimed to have been "rank[ed] third for its patent portfolio in the computer software category," even though the criteria/yardstick is ludicrous, as are these patents. Those are software patents, i.e. worthless patents. Some of today's software patents have been 'dressed up' using buzzwords like "AI". There's even this article about it in Korean media, which asserts that South "Korea Files Third-largest Number of AI Patents" and continues:

South Korea has filed the third-largest number of patents and the seventh-largest number of dissertations related to artificial intelligence (AI) technology over the past 12 years, according to a state-run information and communications promotion agency. The country has the base to take off in the AI sector in terms of sheer bulk.

According to information technology (IT) industry sources on December 21, the Institute for Information and Communications Technology Promotion (IITP) said its finding is based on AI-related technologies applied to patent bodies in the United States, Japan, China, the European Union and South Korea from January 2005 to September of this year. The U.S. ranked No. 1 in terms of AI patents, followed by Japan, South Korea, Germany, China, France, the Netherlands, Canada, the United Kingdom and Taiwan.


But so-called 'AI' is a branch of algorithms and is thus unlikely to withstand the scrutiny of a court, not just in the US but also in Korea (similar restrictions). We believe that China remains more or less the only resort/stronghold left for such patents. Even Australia, long regarded as a haven for software patents, changed its policy. We wrote about it earlier this year and last year. IP Kat wrote about the changes last week, but the author/blogger neglected to cover the fact that IP Australia is getting tougher on software patents, instead focusing on the innovation patent system:

They were meant to be the cheaper, faster alternative to standard patents, intended to protect lower level or incremental inventions and promote innovation by SMEs. Yet just like the petty patent system which came before it, the innovation patent system is set to be abolished (or rather 'phased out'). An innovation patent provides fast protection and lasts for 8 years from the filing of the application. An innovation patent must meet the same novelty test as a standard patent, but only needs to possess an 'innovative step' (a lower threshold than the 'inventive step' required for a standard patent). The PC recommended that the innovation patent system be abolished because it does not achieve its objectives and protects innovations that are of low social value.

The proposed amendments will take effect 12 months after the amending Act receives Royal Assent – most likely some time in 2019. The proposed amendments mean that IP Australia will no longer be able to (1) grant an innovation patent on an application having an effective filing date on or after the day the amendments take effect or (2) certify a claim of an innovation patent having a priority date on or after that day (an innovation patent must be certified before it can be enforced). The current regime will continue to operate for existing applications. Also, the existing rights to file divisional applications and convert a standard patent to an innovation patent will remain for any patent/application that was filed before the amendments take effect. So fear not, innovation patent enthusiasts – there will still be innovation patents in effect for up to 8 years after the amendments commence.


The bottom line is, China strengthened patenting of software (and all sorts of other things), whereas everywhere else in the world -- including the US (birthplace of software patents) -- these patents are on their way out. With the UPC collapsing, the EPO's ambitions of spreading software patents to every country in the EU will collapse as well. Merry Christmas and Happy New Year!

Recent Techrights' Posts

European Patent Office (EPO) Series: The Centre (in Portugal) Falls Apart…
Luís Montenegro became embroiled in a conflict-of-interest controversy
Links 10/06/2026: More Microsoft Layoffs, Sweden to "Ban Mobile Phones in Schools"
Links for the day
 
SLAPP Censorship - Part 103 Out of 200: Telling People What They Know and Don't Know About Death Threats They Receive
patronising letters sent on behalf of the Serial Strangler from Microsoft
IBM Genies in the Bottle
for ordinary people working who at at IBM, it's not hard to see that IBM is floundering
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 10, 2026
IRC logs for Wednesday, June 10, 2026
Links 11/06/2026: LF Openwashing of Slop and "Azerbaijan Bans TikTok and Other Social Media Apps in School"
Links for the day
IBM Lost About 18% of Its "Market Value" This Month
In IBM's case, a lot of the latest "pump" was Arvind's "quantum" hype/fantasy
Gemini Links 10/06/2026: Signal to Noise, Cancer, and Permacomputing
Links for the day
Communities and "Prosumers."
today's meetup will be about community
Gemini and Gopher Links 10/06/2026: Roasting, Changes, and Harms of Slop
Links for the day
Microsoft Azure Shrinking With More Mass Layoffs
"Reports suggest the layoffs will impact close to 200 out of 400 workers, who are set to cease employment at Azure on July 6"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 09, 2026
IRC logs for Tuesday, June 09, 2026
European Patent Office (EPO) Series: The Centre-Right "Social Democratic Party" in Portugal
Quite an achievement for a former Maoist radical and aspiring champion of the Portuguese proletariat to be invited to join Goldman Sachs
SLAPP Censorship - Part 102 Out of 200: Maybe One Day Whistleblowers From Brett Wilson LLP Will Tell Us What Really Happened
Maybe one day some former staff of Brett Wilson LLP will also approach us to blow the whistle
What LibreOffice and TDF Get Right About Document Formats (and What They Get Wrong)
OOXML is a phantom - it is something nobody implements, not even Microsoft!
Gemini Links 09/06/2026: "The Mist of the Lands Between", Board Game Concept
Links for the day
2026: The Year Slop Companies "Made an Exit" (Threw in the Towel Over to Wall Street)
Remember 2026 as the year two major slop companies (which we won't name) sought an IPO
Links 09/06/2026: NSO Group still cracking, "FOI tribunal throws out £14k costs claim against journalist Barnie Choudhury"
Links for the day
Links 09/06/2026: "Smartphones Broke Dating" and "EU Open Source Strategy"
Links for the day
Cannot Speak About IBM Wrongdoing or Jobs Being Sent Overseas (Lower Salaries)
IBM has long attacked the media, the whistleblowers, and even online forums
European Patent Office (EPO) Series: The CIA-Funded Centre-Left in Portugal
In the political turmoil which followed the fall of the old regime, the communists seemed to be acquiring a dominant position and there was a very real risk that Portugal could end up aligned with the Eastern Bloc if they were not stopped
This Coming Friday
Richard Stallman (RMS)
Yesterday Afternoon The Register MS Published a Fake Article That Says "AI" 31 Times Because It Got Paid to Do This
What will happen when all those loans for slop (Ponzi scheme) stop and companies' marketing budgets - which include media bribes for hype campaigns - are no more?
Extraordinary General Meeting of Staff Union of the European Patent Office Ahead of Intensifying Strikes
We will, in the meantime, run a series about EPO corruption, which is now connected to corruption in Portugal and to corruption inside the EU
Several Slopfarms That Target "Linux" Seem to Have Died
Or perished severely
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 08, 2026
IRC logs for Monday, June 08, 2026
Gemini Links 09/06/2026: Tanana River, Cassette Beasts, and Emacs
Links for the day