Bonum Certa Men Certa

Post-AIA, Post-Alice/€§ 101 USPTO Still Granting Software Patents in Defiance of the (Case)Law

Nationality or sovereignty defined by one's patent scope; the danger is, by granting patents in error they associate their patents with weak enforceability

Some questions



Summary: The patent microcosm, which looks for new ways to patent algorithms (in spite of Alice), actually dooms the US patent system by filling it up with invalid patents -- software patents that are just waiting to be thrown out by courts which can better assess subject matter (no financial incentive to grant aplenty)

THE LITIGATION climate the US became renowned/notorious for is no more; at least as far as patent litigation is concerned. As we said yesterday, a lot of the litigation drifts eastwards to Europe and China, owing to patent maximalism at the EPO and SIPO. It's estimated that this year -- by year's end -- the USPTO will have marked a decline in patent filings.



"We are sadly seeing a failure to reject software patent applications, which eventually perish somewhere like the Federal Circuit or Patent Trial and Appeal Board (PTAB) — at a vastly higher cost!"The improving patent quality is good news; it's bad news to lawyers, but they're just a tiny minority or a non-producing, unproductive niche. Based on yesterday's advertisement of an upcoming "webinar" of theirs, they're trying to come up with new patenting tricks (getting patents on what otherwise would get rejected). The Practising Law Institute (PLI), a patent maximalists' group, will cover "35 U.S.C. Sections 101/102/103" and "35 U.S.C. 101: The Complete Guideline Breakdown of Alice, Myriad and Mayo" (basically what places restrictions on abstract patents). There's also this upcoming "webinar" about rejections and the Intellectual Property Owners Association (IPO), which acts as a front for IBM in promoting software patents, has this "webinar" about patents on nature/life. IBM's Manny Schecter has meanwhile said: "Inventions can be implemented in hardware or software; both should be patentable" (in the US).

"Watch this new list of newly-granted patents; some of them sound like classic software patents. We already know that such patents, even if granted by the patent office, may perish in courts (or even PTAB).""Software requires hardware (i.e. non-physical) to run," I told him, "so focus on the hardware, leave abstract patents out..." (he never replies)

We are sadly seeing a failure to reject software patent applications, which eventually perish somewhere like the Federal Circuit or Patent Trial and Appeal Board (PTAB) -- at a vastly higher cost!

The other day we became aware of this new lawsuit by USAA [1, 2]. The underlying patent sure sounds like a software patent. To be invalidated soon? Here are the details:

USAA has filed an intellectual property lawsuit against Wells Fargo for unspecified damages, alleging Wells has infringed on USAA’s remote deposit capture patents.

More than a year ago, San Antonio-based USAA, which says it is the inventor of remote deposit capture, started to seek licensing fees from banks using the technology.

“We’ve been abundantly patient with Wells Fargo,” Nathan McKinley, a USAA vice president and its head of corporate development, said in an interview Friday. “Now is the time for us to get the court's assistance."


There's nothing seemingly physical in this so-called 'invention'. The lawsuit may go nowhere, but maybe its sole purpose/intention is to increase the pressure on Wells Fargo (to abandon this feature or shell out money).

2020NOW, based on this new press release, is pursuing patents only for the sake of litigation. Expect lawsuits to come:

20/20NOW, the pioneer and innovator of Ocular Telehealth, has initiated legal action and other efforts to protect its patents against infringement. 20/20NOW has filed a lawsuit in New York Eastern District Federal Court against Digital Optometrics, claiming infringement of 20/20NOW's intellectual property. The company also intends on filing for a Post Grant Review of Digital Optometrics Patent with the U.S. Patent Office. The company is confident that the recently issued Digital Optometrics Patent will be found invalid.


We actually found this under "software patents" (we do not look randomly at patents); they aren't necessarily patenting anything physical here. Here's another new example, this time from Acuant. "The patent focuses on remote image acquisition and the processing of ID documents," it says (classic software patent?). "Acuant currently has more than 20 issued patents."

But so what? Are these all valid? Have these ever been proven in a courtroom? Watch this new list of newly-granted patents; some of them sound like classic software patents. We already know that such patents, even if granted by the patent office, may perish in courts (or even PTAB). Several days ago we saw Jorge Sagastume giving bad advice as though software is still patentable. He wrote:

Depending upon the reason behind your need to hand your software to someone else, you may wish to take measures to protect your intellectual property. Patents can be used to protect the factual aspects of software, while software copyright can be used to protect the “artistic” side of things, including your code. While handing your code to another party is a relatively common behavior in the software world, it never hurts to be prepared, to be aware of the risks and to protect yourself throughout the process.


It's really not clear what Sagastume meant by "factual aspects of software" (it sounds like mumbo-jumbo), especially as we know that software as a whole is abstract and thus patent-ineligible, e.g. under Alice.

We keep watching these things closely because ideally examiners will just stop issuing software patents; then and only then will PTAB and other tribunals not be demonised for simply applying the law as examiners ought to have done.

Recent Techrights' Posts

Yes, Microsoft is the Problem
"I am no MS shill."
Another Failed Use Case for Chatbots (LLM): Legal Advice and Analysis
They're just some self-discrediting toy that costs way too much to operate
Nonfree Software in My Bank, by Richard Stallman
Updated 8 hours ago
 
Someone Should Remind Microsoft Lunduke That Microsoft Hires Many Sexual Criminals and Pedophiles as Well
Microsoft Lunduke on an "expedition" to find one or more perverts, then generalise to everyone in the "community"
Cash Machines (ATMs) Make Mistakes and They're Proprietary Software
Correcting mistakes is a colossal challenge
We Cover Topics Other Sites Are Too Afraid to Cover (Even When They Know the Facts)
It's not that they doubt the truth, they just realise there may be consequences for talking about it
They Try to Tell Us the Free Software Foundation Inc is Dying, But Its Revenue Doubled Since the Dot-Com Bubble Burst
Being in "Activism" is never easy; but it does positive things for society
It's About the Cost of Workers, Not the Fictional Skills Shortage (That Does Not Exist, the Media Spreads False and Sometimes Self-Fulfilling Narratives)
This issue isn't limited to computing, some dub it "globalism"
Links 29/07/2025: More Pushbacks Against Slop and More Praises of Tom Lehrer
Links for the day
Gemini Links 29/07/2025: Purple Yarrow and Understanding Op Amps
Links for the day
This Monday WebProNews Absolutely Flooded the Web With Fake (LLM Slop) 'Articles' About "Linux", Google News Promoted Them as Legitimate
All of the following are fake articles attributed to pseudonyms or authors that don't exist; the images are also slop. Why does Google promote these?
Linuxiac is Not a Slopfarm, But at Least Some of Its Articles Are Machine-Generated Fakes
what we said about it was correct
Expect More Microsoft Layoffs
"Are more job cuts coming?"
Microsoft Behaving Like It's Running Out of Money to Pay Salaries
Does that seem like the behaviour expected from a company which claims it is "worth" trillions?
LWN Downtime Due to Linode, Not LLM Bots
"I’ve received an email letting me know that there is a potential for data loss."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 28, 2025
IRC logs for Monday, July 28, 2025
Links 28/07/2025: Science, Health, and Conflicts
Links for the day
Gemini Links 28/07/2025: Healthy Self-Image With Autism and a "New Life"
Links for the day
Links 28/07/2025: COVID-19 Sped up Brain Aging, "Circumvention is More Popular Than Compliance"
Links for the day
Richard Stallman is Usually Right Because He Thinks "Outside the Box"
he is able to observe society (mores and norms) as somewhat of an outsider
LWN Has Been Down for a Long Time, Another Casualty of LLM Bots?
Time will tell. How much time though?
Slopfarms Versus 'Linux' (and Against People Who Write Real Articles About GNU/Linux)
LLM slop in slopfarms by Brian Fagioli and Redazione RHC
Gemini Links 28/07/2025: Bila Yarrudhanggalangdhuray and Running pkgsrc in a FreeBSD Jail
Links for the day
Microsoft Turns News Sites Into Spamfarms
Is the site The Register MS the next IDG?
The Register MS/The Register US
On Saturday I contacted them for a comment (before issuing criticism)
Hacking revelations at Vatican Jubilee of Digital Missionaries
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 27, 2025
IRC logs for Sunday, July 27, 2025
The Week to Come
Planning ahead
LLM Slop Has Only Been a Boon for Misinformation Online
The very same companies that were supposed to maintain quality (again, not limited to Google with PageRank) are now actively participating in generating and spreading slop
When They Tell You It's Free, Does That Mean No Charges (If So, Who's Paying and Why)?
there's "no free lunch"
We're Going to Focus Less on the Molotov Cocktail-Throwing Microsofters and More on Patents
We can get back to focusing on what we wanted to focus on all along
Just Trying to Keep Web Sites Honest (Journalistic Integrity)
the latest articles in LinuxIac are real
Links 27/07/2025: Political Affairs, Data Breaches, Attacks on Freedom of the Press
Links for the day
Gemini Links 27/07/2025: Hot in Japan and Terminal Escape Codes
Links for the day
Links 27/07/2025: More Microsoft Layoffs Coming, Science and Hardware News
Links for the day
Links 27/07/2025: FSF Hackathon and "Hulk Hogan Was a Very Bad Man"
Links for the day
Gemini Links 27/07/2025: DAW Mixer Chains and Simple Software
Links for the day
The Register MS is Inventing or Giving Air Time to New Conspiracy Theories so as to Distort the Narrative As High-Profile Agencies Fall Prey to Microsoft Holes
But the problem is holes, i.e. Microsoft making bad products; the problem is Microsoft
Most Editors at The Register Are American, Including the Editor in Chief, a Decade-Long Microsoft Stenographer (Writing Prose to Sell Microsoft)
It's not easy to tell where the site is based (we tried) because it's hiding behind ClownFlare and CrimeFlare hasn't been well lately
Pushers of systemd Rewrite History (Richard Stallman Said UNIX "Was Portable and Seemed Fairly Clean")
Unlike systemd
"New Techrights" Soon Turns 2 (A Few Days Before the FSF Turns 40)
We have a lot more to say about LLM bots
When Silence Says So Much
Garrett, a 'secure' boot pusher, will need to defend himself in the UK High Court
The Register in Trouble
There is not much that can be done at this point
Trajectory of The Register: From News Site/s Into "B2B"... and Into Microsoft Salespeople
Something isn't right at The Register
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 26, 2025
IRC logs for Saturday, July 26, 2025
Misinformation in Social Control Media
Social control media passes around all sorts of tropes
Slopwatch: Fake Linux 'Articles' and Slopfarms With "Linux" in Their Names/Domains
throwing bots at "Linux" to make some fake articles