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

XBox is Rapidly Turned Into a Slopfarm by Microsoft
Slop isn't about efficiency and saving money
Reboots Should Never be Necessary
"BUT WHAT ABOUT SECURITY!!"
Microsoft's Halloween Documents and systemd, Wayland, Etc.
Maybe one day Wayland will be widespread. Or maybe not.
 
Gemini Links 15/07/2025: Smolweb and Alhena 5.1.7
Links for the day
The Danes Want GNU/Linux
David Heinemeier Hansson recently moved to GNU/Linux
Cory Doctorow Explains Why Software Freedom Matters, Whereas "Open Source" Misses the Point and Helps Monopolies
It's a very long article
BillPR (EpsteinGate-Bribed NPR) is Turning Into a Partial Slopfarm that Promotes Slop
"I went on a date with a chatbot!"
Two Weeks Passed Since Latest Large Wave of Microsoft Layoffs, More Expected Next Month
Blaming the debt on "AI" is just self-serving storytelling
There's Still Hope for the World Wide Web
Let's hope that the trajectory of the Web won't be leading us to over-reliance on Google, nor will it reward worthless slopfarms
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 14, 2025
IRC logs for Monday, July 14, 2025
Gemini Links 15/07/2025: Gemini "Style Sheets" and Switching From Microsoft GitHub to Codeberg
Links for the day
Coming Soon: Another OSI Scandal, This One Implicating Molly de Blanc
OSI has been fairly quiet lately
Outreachy & Debian pregnancy cluster, Meike Reichle evidence
Reprinted with permission from Daniel Pocock
Again, "Lunduke is Actually Sending His Audience to Attack People"
Microsoft Lunduke is not trying to "protect" Linux
One of the Most Hilarious Things About the Microsoft SLAPPs
It's so ridiculous
Financial Support for the Free Software Foundation or the GNU Project
The FSF has extended until Friday its fund-raising campaign
Illegally Hiding (or Demanding Secrecy Around) Illegal Requests or Attempts at Extortion
unlawful communications like threats
Gemini Links 14/07/2025: BOFH Archive, Updating Old Palm PDAS, and Nginx vs Slop Bots
Links for the day
Ubuntu is Becoming GAFAM-Like
What does that say about Canonical and Ubuntu?
Slopfarms Which Take Real Articles About GNU/Linux and Turn Them Into Copycats Which Are False
Even before the LLM hype those were quite common
The Firm That Picks on Techrights is Accustomed to Working With Criminals
Techrights never did anything illegal. So why is it being picked on by people who work with criminals?
Microsoft Said the Mass Layoffs Were for "Investment" in "AI", But It's Also Laying Off the "AI" and "Copilot" Staff
Months ago we showed many so-called "AI" people were getting the boot and this time it's the same
DryDeadFish is Dead, Long Live DryDeadFish
We kept checking, hoping it can recover from some temporary technical issue
For Quite Some Time Already Microsoft Attracts Crackpots, Scams, and More
Occasionally we talk about the situation at IBM as there are many parallels
Links 14/07/2025: Chatbots Broken Again, McHire LLM Shows Limits of the Hype
Links for the day
Changing One's Name Won't Change One's Past
People who have earned a bad reputation are not magically "entitled" to reset
People Who Assault Women Are Not Victims of "Distress"
It seems like an American tradition. In a country with almost 50 presidents, not even one was a female.
Slashdot Media Turned Linux Journal Into a Slopfarm and Now Slashdot Actively Promotes Anti-Linux Slopfarms
Yes, "no-nonsense" apparently means actual nonsense
Adoption of Gemini Protocol Still Growing
Gemini Protocol is being obscured by the media - it doesn't help that Google 'hijacked' the word "Gemini" - but people still manage to find out about it, download a client, and use it
Links 14/07/2025: Arresting Photographers, Threats to Revoke US Citizenship Over Criticism
Links for the day
More EPO Leaks on the Way
We hope that Mr. Rowan will actually try to refute what we say and show, not merely point the finger at the messengers
Decommodification is a Corporate Strategy Against Communities
systemd is led by Microsoft and hosted by Microsoft
copyleft.org 'Hijacked' by the People Who Attack the Person Who Created Copyleft
So far there's nothing "tasteless" in copyleft.org, but that can change at any time in the future
Asking People to Take Down Articles and Videos Only Makes These More Popular and "Viral"
If you do something bad, one of the worst things you can possibly do it try to silence those who speak about it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 13, 2025
IRC logs for Sunday, July 13, 2025
Two-Thirds Towards FSF Goal, Richard Stallman to Give Talks in Europe
There are 67 left before reaching the target
Brett Wilson LLP "Takes it Personal" (Character Assassination, Not Professionalism). Everybody Can See That.
On behalf of violent men
Gemini Links 14/07/2025: Politicised Tech and "Leaving GitHub"
Links for the day
Pissing Contests and Pissing Off Everyone
people who came from Microsoft are trying to vex and divide the community
Microsoft Repeats the Mistakes Made by the EPO After We Exposed a Major Microsoft/EPO Scandal 10 Years Ago
That scandal was all over the media, not just in English
The Demise of LLMs
We've just checked BetaNews again. They've dropped all the slop and went back to human authors.
Gemini Links 13/07/2025: Sonpo Museum of Art and FCEUX
Links for the day
Links 13/07/2025: UnitedHealth's Censorship Campaign, Australia Wary of China
Links for the day
Firing Away With Nonsense
Or fighting fire with fire
Links 13/07/2025: Climate Crisis, GAFAM Poisoning the Water
Links for the day
Turns Out LLMs for Code Don't Save Time and Don't Improve Quality
Neither legal nor useful
The Microsofters Will Have an Obligation to Compensate Us
This story isn't just about Microsoft. It's also about corruption, there are many women victims, there is abject "abuse of process", and many more scandals to be illuminated in years to come.
Reproducing at the EPO Instead of Producing Monopolies for Foreign Monopolies With Their Price-Fixing Cartels
Does the EPO recognise the need of well-educated Europeans to bear kids?
Valnet Inc. Dominates Real (Not LLM Slop) GNU/Linux Coverage in 2025
And likely in prior years, too
Free Software Foundation (FSF) Fund Raiser Goes on
Later this month we'll expose another OSI scandal
EPO Staff Representatives Issue a Warning About Staff's Health and Inadequate Care
Even the EPO's own stakeholders (money sources) are openly protesting against what the EPO became
Links 13/07/2025: Partly Assorted News From Deutsche Welle and CBC
Links for the day
Gemini Links 13/07/2025: Board Games and Battle Styles
Gemini Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 12, 2025
IRC logs for Saturday, July 12, 2025