01.21.18

Gemini version available ♊︎

Software Patents Are Still Dropping Like Flies in 2018, Thanks to Alice v CLS Bank (SCOTUS, 2014) and Section 101 (USPTO)

Posted in America, Law, Patents at 5:15 pm by Dr. Roy Schestowitz

Keep software out of the patent system, except as tool/aid(e) for patent examiners

Old wires

Summary: Section 101 (§ 101) is thriving in the sense that it belatedly throws thousands of patents — and frivolous lawsuits that depend on them — down the chute; the patent trolls and their allies in the patent microcosm are very furious and they blame PTAB for actually doing its job (enforcing Section 101 when petitioned to do so)

THE changes at the USPTO are well received by many software companies. They can finally waste less money on patents and litigation; instead they can focus on actual work (research and development).

“So why even bother with software patents at all?”The patent microcosm is still trying to scare companies into pursuing patents (lots of events, seminars, webiners, forums, presentations etc. to that effect) and this new article (just promoted by IBM’s patent chief) is a good example of it. It’s that same old patent advocacy, albeit it acknowledges upfront that “Alice Corporation Pty. Ltd. v. CLS Bank International set new limits on the breadth of patent claims.”

So why even bother with software patents at all? Well, to IBM it’s the (almost) last remaining asset, having spent decades applying for a humongous number of software patents. Here are the relevant paragraphs from the article:

During our patent review, patent laws in the United States changed. Shortly after we filed our application, the supreme court’s verdict in Alice Corporation Pty. Ltd. v. CLS Bank International set new limits on the breadth of patent claims. Patents could no longer just encompass an abstract idea.

We had written our application based on previous laws (as one does). But when laws change, your application is reviewed based on the new laws — not the laws of your filing date. We then had to amend our application, which added more delays.

Again, always remember to over budget your time and money.

Does it not seem obvious already that software patents are a waste of both money and time? No matter how one ‘dresses them up’, patents on algorithms are software patents, even if they’re described as “AI” or “machine learning” or whatever. These terms are not new and they are not particularly exciting. They’re a new loophole for software patenting and some patent attorneys now justify them for automatically-generated patents. From down under today (regarding Section 101):

In the United States, 35 USC 101 states that ‘[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor…’ – a provision that is ultimately authorised by Article I, Clause 8, Section 8 of the US Constitution, which grants Congress the power ‘[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.’ Article 60(1) of the European Patent Convention provides that ‘[t]he right to a European patent shall belong to the inventor or his successor in title.’ Section 15 of the Australian Patents Act 1990 stipulates that a patent may only be granted to ‘a person who … is the inventor’, or persons (natural or legal) who legitimately derive the right from the inventor.

So what? So you want to throw millions or billions of computer-generated patent applications for manual assessment by human examiners? Or by robots? Should the system be reduced to such lunacy? There used to be jokes over a decade ago, back when scientists produced computer-generated academic papers and many were accepted for presentation at conferences (after peer reviewers wasted their time assessing mumbo-jumbo). It was known as SCIgen.

“So you want to throw millions or billions of computer-generated patent applications for manual assessment by human examiners? Or by robots? Should the system be reduced to such lunacy?”Over the past week we have seen many rants about Alice. Blog posts about it are led by exclamation marks and defenders of patent trolls vent their anger at PTAB. Here’s one of the worst mocking a decision; It’s a “PTAB decision rejecting game modeling using sensor data under 101″ and here’s another with all caps: “FACTS? WHO NEEDS FACTS?” Here he is accusing PTAB of “laziness in assessing 101 eligibility” and more of that habitual mockery of PTAB. Remember that this guy cooperates with a large patent troll. On another Section 101 rant he said: “THEY CAN DO THAT?”

“Over the past week we have seen many rants about Alice.”Anger management 101 seminar might be of some help here. A friend of his similarly complained about Section 101 “in Rejection of Facebook Patent Application” and then about “amino acid sequence of a soluble glycopeptide held patent ineligible under 101/Mayo by the PTAB…”

Section 101 again intercepted (at PTAB) a “Robert Bosch Patent Application” and “PTAB affirmed 101 rejection by Examiner of Change HealthCare patent application” (see the trend yet?).

This latter person likes to say that Section 101 “Kills” (or “Killed”) patents, misusing militaristic narratives as if patents are people. That makes as much sense as claiming teachers who fail their students to be “killers” of children. “PTAB Killed Wireless Communication Patent under Alice,” he wrote.

“This latter person likes to say that Section 101 “Kills” (or “Killed”) patents, misusing militaristic narratives as if patents are people.”Notice how every time Alice and/or Section 101 get brought up the patent/s is/are finished. The PTAB judges are finally cleaning up the mess.

Well, surveillance “on a mobile device” is not a patent-eligible, apparently. Same cause; Section 101.

Then there’s this: [via]

Soil Sample Tracking Patent Not Invalid Under 35 U.S.C. § 101

The court denied defendant’s motion for summary judgment on the ground that plaintiff’s soil sample tracking patent encompassed unpatentable subject matter because the asserted claims were not directed toward an abstract idea.

It sounds like a very stupid patent, but not pertaining to software directly or even indirectly. Hence it endured the likely irrelevant test (in the Indiana District Court). Alice/Section 101 is no magic wand as some frame it; it’s only useful when applied to actually “abstract” patents on mere ideas like algorithms.

Alice/Section 101 is no magic wand as some frame it; it’s only useful when applied to actually “abstract” patents on mere ideas like algorithms.”R+L is apparently pestering the Supreme Court over Alice even though the decision is a “done deal” and nothing to do with commercial agenda. As Patently-O put it the other day: “In its newly filed petition, R+L asks the Supreme Court to add further depth to the abstract-idea analysis. Namely, the the patentee asks whether Step 1 of Alice can be performed “without analyzing the requirements of the individual claim steps?” The petition also raises the important question of whether the eligibility analysis allows for any factual inquiry.”

Well, it has certainly helped those who actually create and invent things; the only complaints about Alice seem to come from lawyers and trolls. The patent microcosm, as usual, is cherry-picking quotes to harm PTAB. Even though the attacks of PTAB subsided over the past week, there are still some efforts to ‘scandalise’ it. We’ll keep an eye on that. PTAB is by far the biggest enforcer of Section 101 and with growing numbers of rulings/petitions we can expect 2018 to be a very dark year for software patents.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. IRC Proceedings: Friday, December 03, 2021

    IRC logs for Friday, December 03, 2021



  2. Links 4/12/2021: EndeavourOS Atlantis, Krita 5.0.0 Beta 5, Istio 1.11.5, and Wine 6.23; International Day Against DRM (IDAD) on December 10th

    Links for the day



  3. Another Gemini Milestone: 1,500 Active Capsules

    This page from Balázs Botond plots a graph, based on these statistics that now (as of minutes ago) say: “We successfully connected recently to 1500 of them.” Less than a fortnight ago more than 1,800 capsules overall were registered by Lupa, almost quadrupling in a single year



  4. [Meme] António Campinos and Socialist Posturing

    Staff of the EPO isn’t as gullible as António Campinos needs it to be



  5. António Campinos as EPO President is Considered Worse Than Benoît Battistelli (in Some Regards) After 3.5 Years in Europe's Second-Largest Institution

    The EPO's demise at the hands of people who don't understand patents and don't care what the EPO exists for is a real crisis which European media is unwilling to even speak about; today we share some internal publications and comment on them



  6. Media Coverage for Sale

    Today we're highlighting a couple of new examples (there are many other examples which can be found any day of the year) demonstrating that the World Wide Web is like a corporate spamfarm in "news" clothing



  7. Links 3/12/2021: GNU Poke 1.4 and KDDockWidgets 1.5.0

    Links for the day



  8. IRC Proceedings: Thursday, December 02, 2021

    IRC logs for Thursday, December 02, 2021



  9. Links 3/12/2021: Nitrux 1.7.1 and Xen 4.16 Released

    Links for the day



  10. Links 2/12/2021: OpenSUSE Leap 15.4 Alpha, Qt Creator 6

    Links for the day



  11. The EPO's “Gender Awareness Report”

    There’s a new document with remarks by the EPO’s staff representatives and it concerns opportunities for women at the EPO — a longstanding issue



  12. IRC Proceedings: Wednesday, December 01, 2021

    IRC logs for Wednesday, December 01, 2021



  13. EPO Staff Committee Compares the Tactics of António Campinos to Benoît Battistelli's

    The Central Staff Committee (CSC) of the EPO talks about EPO President António Campinos, arguing that “he seems to subscribe to the Manichean view, introduced by Mr Battistelli…”



  14. Prof. Thomas Jaeger in GRUR: Unified Patent Court (UPC) “Incompatible With EU Law“

    The truth remains unquestionable and the law remains unchanged; Team UPC is living in another universe, unable to accept that what it is scheming will inevitably face high-level legal challenges (shall that become necessary) and it will lose because the facts are all still the same



  15. Links 1/12/2021: LibrePlanet CFS Extended to December 15th and DB Comparer for PostgreSQL Reaches 5.0

    Links for the day



  16. EPO Cannot and Will Not Self-Regulate

    The term financialisation helps describe some of the activities of the EPO in recent years; see Wikipedia on financialisation below



  17. [Meme] Germany's Licence to Break the Law

    Remember that the young Campinos asked dad for his immunity after he had gotten drunk and crashed the car; maybe the EPO should stop giving diplomatic immunity to people, seeing what criminals (e.g. Benoît Battistelli) this attracts; the German government is destroying its image (and the EU’s) by fostering such corruption, wrongly believing that it’s worth it because of Eurozone domination for patents/litigation



  18. EPO Dislikes Science and Scientists

    The EPO's management has become like a corrupt political party with blind faith in money and monopolies (or monopoly money); it has lost sight of its original goals and at this moment it serves to exacerbate an awful pandemic, as the video above explains



  19. Links 1/12/2021: LibreOffice 7.3 Beta, Krita 5.0, Julia 1.7

    Links for the day



  20. Links 1/12/2021: NixOS 21.11 Released

    Links for the day



  21. IRC Proceedings: Tuesday, November 30, 2021

    IRC logs for Tuesday, November 30, 2021



  22. Links 1/12/2021: Tux Paint 0.9.27 and WordPress 5.9 Beta

    Links for the day



  23. [Meme] EPO Administrative Council Believing EPO-Bribed 'Media' (IAM Still Shilling and Lying for Cash)

    IAM continues to do what brings money from EPO management and Team UPC, never mind if it is being disputed by the patent examiners themselves



  24. The EPO's Mythical “Gap” Has Been Found and It's Bonuses for People Who Use Pure Fiction to Steal From Patent Examiners

    The phony president who has the audacity to claim there's a budget gap is issuing millions of euros for his enablers to enjoy; weeks ahead of the next meeting of national delegates the Central Staff Committee (CSC) tells them: "Events show that the delegations’ concerns about functional allowances have materialised. The lack of transparency and inflation of the budget envelope gives rise to the suspicion that high management is pursuing a policy of self-service at the expense of EPO staff, which is difficult to reconcile with the Office’s claimed cost-saving policy, and to the detriment of the whole Organisation."



  25. Video: Making the Internet a Better Place for People, Not Megacorporations

    Following that earlier list of suggested improvements for a freedom-respecting Internet, here's a video and outline



  26. Links 30/11/2021: KDE Plasma 5.23.4, 4MLinux 38.0, Long GitHub Downtime, and Microsoft's CEO Selling Away Shares

    Links for the day



  27. A Concise Manifesto For Freedom-Respecting Internet

    An informal list of considerations to make when reshaping the Internet to better serve people, not a few corporations that are mostly military contractors subsidised by the American taxpayers



  28. Freenode.net Becomes a 'Reddit Clone' and Freenode IRC is Back to Old Configurations After Flushing Down Decades' Worth of User/Channel Data and Locking/Shutting Out Longtime Users

    Freenode is having another go; after “chits” and “jobs” (among many other ideas) have clearly failed, and following the change of daemon (resulting in massive loss of data and even security issues associated with impersonation) as well as pointless rebrand as “Joseon”, the domain Freenode.net becomes something completely different and the IRC network reopens to all



  29. Jack Dorsey's Decision is a Wake-up Call: Social Control Media is Just a Toxic Bubble

    The state of the World Wide Web (reliability, preservation, accessibility, compatibility etc.) was worsened a lot more than a decade ago; with social control media that’s nowadays just a pile of JavaScript programs we’re basically seeing the Web gradually turning into another Adobe Flash (but this time they tell us it’s a “standard”), exacerbating an already-oversized ‘bubble economy’ where companies operate at a loss while claiming to be worth hundreds of billions (USD) and generally serve imperialistic objectives by means of manipulation like surveillance, selective curation, and censorship



  30. IRC Proceedings: Monday, November 29, 2021

    IRC logs for Monday, November 29, 2021


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts