Bonum Certa Men Certa

Good News: US Supreme Court Rejects Efforts to Revisit Alice, Most Software Patents to Remain Worthless

Summary: 35 U.S.C. €§ 101 will likely remain in tact for a long time to come; courts have come to grips with the status quo, as even the Federal Circuit approves the large majority of invalidations by the Patent Trial and Appeal Board's (PTAB) panels, initiated by inter partes reviews (IPRs)

2017 and 2018 have been very good years. Irrespective of what the U.S. Patent and Trademark Office grants as patents (more on that in a separate post), courts do a good job. They're a lot tougher than before.



"Irrespective of what the U.S. Patent and Trademark Office grants as patents (more on that in a separate post), courts do a good job."As Karl Auerbach put it some days ago: "The supreme court and the IP bar have gotten a lot smarter about software, so they are far more able to recognize that a huge portion of software patents are simply old ideas rewrapped as code and are thus not eligible for patent protection.."

Here's the full comment (a reply I received):

I do not accept the mantra that “software is math”. Sure, computers operate through the application of the laws of physics, via the emergent properties of electronics and electro-mechanical devices. But so do procedures in chemistry. The act of using a hammer to pound a nail is ultimately “mathematical” in the sense that it is an expression of the laws of force and mass and velocity - all of which are usually expressed in mathematical form. That would make a patent on a novel and non-obvious use of a hammer and nails to be unpatentable.

Some software is, indeed, used to computer mathematical expressions. So are pencils. And pencils are not unpatentable because they are mathematics. (Pencils are unpatentable because they or no longer novel or non-obvious.)

The analogy with gears is to counter the argument that software has no physical reality - which is not true given that once it is reduced to its basic form it consists of charges in electronic circuits that, when combined with electrical time pulses, turns into a very physical machine - but with electrical charges interacting rather then gears meshing.

The main problem that has existed with software patents is that they fail the required test of being non-intuitive to someone practiced in the art of computer programming. The US patent office for decades refused to hire computer people, so it made itself intentionally stupid and thus thought that every chunk of software was non-intuitive. The head of the USPTO during much of that time was a total jerk - he even was booed by a bunch of IP lawyers at a meeting I attended.

The supreme court and the IP bar have gotten a lot smarter about software, so they are far more able to recognize that a huge portion of software patents are simply old ideas rewrapped as code and are thus not eligible for patent protection. But no court has said that a patent, just because it is expressed in the form of a computer programs, is by virtue of that expression, not patentable.


The way things stand, technology companies gained leverage over law firms. It's still not ideal. As Benjamin Henrion put it the other day in light of this report ("Google, Amazon Invited to Talk Patent Eligibility With Lawmakers"): "Software developers and small companies not invited to discuss software patents, only large companies and patent lawyers..."

The above report comes from a lawyer's section, too. "If you have no money," I told Henrion, "then your opinion does not matter. You're disposable "workforce"..."

The above talk, however, did not deal with courts directly. They're separate. So what do courts say? The decision to reassess Helsinn v Teva (several days ago) was put in our daily links as it's pretty irrelevant to us (it's not at all about patent scope/quality). As proponents of patents on life put it, "Supreme Court Hears Oral Argument in Helsinn v. Teva" (mentioned here before in passing).

"The way things stand, technology companies gained leverage over law firms."So SCOTUS will look at Helsinn v Teva, but as expected Carl M. Burnett v Panasonic Corporation goes nowhere. It's another small victory for us programmers who've long campaigned against software patents and now have 35 U.S.C. €§ 101. The Office cannot bully judges. It cannot force Justices (at SCOTUS) to challenge 35 U.S.C. €§ 101. Days ago the USPTO published yet another talk of Iancu. He can moan about 35 U.S.C. €§ 101 all he wants, but courts won't care.

"Another one bites the Alice dust," wrote this patent maximalist from Watchtroll, linking to an opinionated Watchtroll report about last Monday's decision:

On Monday, December 3rd, the U.S. Supreme Court denied a petition for writ of certiorari in Carl M. Burnett v. Panasonic Corporation, declining to take up the case on appeal from the Court of Appeals for the Federal Circuit. This is now the latest case involving questions of patent-eligibility for an invention under 35 U.S.C. €§ 101 declined by the nation’s highest court. In this case, however, the Supreme Court hasn’t addressed the patentability of the relevant subject matter, namely electronic data and electromagnetic analog and digital signals, since 1853.


SCOTUS has also just rejected SSL Services v Cisco and it's hilarious to see the response from patent extremists who loathe PTAB and love software patents. They're losing their minds as courts gradually restore/impose sanity on the patent system. Here is what Watchtroll said: "On Monday, November 19th, the U.S. Supreme Court issued a list of orders regarding pending cases where the Court refused to take the appeal. The Supreme Court on that day denied the petition for writ of certiorari to take up SSL Services, LLC v. Cisco Systems, Inc. on appeal from the Federal Circuit. In denying certiorari, the Supreme Court refused to answer whether the Patent Trial and Appeal Board (PTAB) erred in instituting an inter partes review (IPR) proceeding in the face of federal statute barring institution of an IPR based on similar arguments and prior art raised in a previous validity challenge."

"At the end of the day, when it all boils down to Alice, these patents are still unlikely to withstand judges' scrutiny."Watchtroll can be hilarious in the sense that it has nothing left but judge-bashing and as we'll mention again later, the founder and editor steps down. A month later these people still bring up Ancora v HTC. They're living in the past, cherry-picking rare case outcomes in desperate efforts to somehow revive software patents in US courts. Watchtroll suggests adding "Technical Solutions" and King & Wood Mallesons's Veg Tran and Esme Wong argue you should say “an improvement in the computer”; anything to hopelessly fool examiners and judges into software patents?

At the end of the day, when it all boils down to Alice, these patents are still unlikely to withstand judges' scrutiny. That's just the way it is; there's no point pretending that adding some catchphrases will help as if it's all about words. It's about the underlying claims, not semantics.

"The bottom line is, software patents are bygones; even the lawyers know it, but they still try to attract applicants, i.e. money/legal bills."James Fussell, Nikko Quevada and Vincent Violago, three people who do 'patents' for a living (nothing else actually) say "Alice Must Be Revisited In View Of Emerging Technologies" (published 5 days ago); they just worry they'll become unemployed as they will need to find a real job. They start their articles with a bunch of meaningless buzzwords: "The increasing convergence of artificial intelligence, the internet of things, robotics and other emerging technologies are expected to generate various novel legal issues that courts will soon have to grapple with..."

Yes, "artificial intelligence" or "internet [sic] of things" and so on. Why not add "cloud" and "smart" and other nonsense?

The bottom line is, software patents are bygones; even the lawyers know it, but they still try to attract applicants, i.e. money/legal bills.

Recent Techrights' Posts

GNU/Linux is Replacing Microsoft Windows. But We Need to Eradicate Microsoft, It's a Hub of Crime.
I have been writing about Microsoft since the 1990s when I was in school
Microsoft Staff Harassing Women, Strangling Women, Telling Women to Kill Themselves and Worse? Not a Problem!
Two women have left Brett Wilson LLP
 
Happy Independence Day to Our American Readers
Maybe tomorrow will be a good opportunity to explain to American people - in terms of concepts, not brands - which tools respect their independence
Slopwatch: Linux Journal, Linuxsecurity, and Google News Getting Even Worse (More Slopfarms Added Which Attack Linux With Bruce-Force SPAM)
Google News is part of the same problem
Links 03/07/2025: More Cuts and Cancellations at Microsoft Revealed
Links for the day
Gemini Links 03/07/2025: Favourite Child and Launching WikiGem
Links for the day
Mystery Surrounding the PCLinuxOS Sites and PCLinuxOS Magazine
Let's hope this isn't something major
People and Companies Do Learn Some Lessons From Their Mistakes (Stubborn Ones Don't)
Brett Wilson LLP is an example of one that would rather drown in mistakes
Links 03/07/2025: 'Hey Hi' Slop Ridiculed Some More and Microsoft's Layoffs Tally for 2025 Reaches About 29,000 in Just 6 Months (Almost 5,000 Per Month)
Links for the day
The Slopfarms Are Losing the Plot (and Google is Propping Up Rogue Sites)
Google is part of the attack on the Web, on information, and on technology
New BetaNews Realises There's No Potential or Future in Slopfarms, Prior Editor Wayne Williams is Back
They realise that slop (so-called "AI") cannot replace humans
Claims That Microsoft Looks for Staff That Works More and Gets Paid Less (or Can Only Code by Grabbing Other People's Code, Under the Guise of "AI")
People can form their own opinion
Richard Stallman Was Right About Reasons Not to Use Microsoft
last updated 2017
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 02, 2025
IRC logs for Wednesday, July 02, 2025
Gemini Links 03/07/2025: No to Cloudflare and Small Web July
Links for the day
Links 02/07/2025: Deep Microsoft Cuts, Macron Speaks to Putin
Links for the day
Confirmed: Microsoft Shutdowns Today, Not Only Mass Layoffs
"The Initiative is the only studio closure planned today, although some other teams have seen cuts of varying degrees."
Microsoft Windows Nosedives in Switzerland While GNU/Linux Leaps Above 6%
sooner or later they might have to make the move anyway
Anxiety at Microsoft: Many Workers (Maybe Over 10,000) Still Don't Know They're Being Laid Off Just Before US Independence Day
"Has anyone gotten the notification yet?"
Microsoft "Declined to Say How Many People Would be Laid Off," According to Associated Press
Some other prominent publications said they reached out for comment from Microsoft and received none
The X War is Over and the "Wayland People" Lost
People will gravitate towards what works for them
20 Years Since My Thesis
It's still online
GNU/Linux is Replacing Windows in Laptops/Desktops
The world will move on while Windows and Microsoft shrink
Now Comes the Expected Webspam, Framing Microsoft Layoffs as "Hey Hi" Success Story (False Marketing That's Piggybacking the Layoffs)
falsely marketed as "intelligence"
Hungary: Microsoft Windows Sinks to 17% "Market Share"
In many nations in Europe it seems like the era of Windows is coming to an end
Microsoft Media Operatives and Bill Epsteingate-Funded Sites Said Microsoft Lays Off 9,000, But Other Sites Say More (Including 2,300 in Redmond Alone)
We might never know the real number/s (Microsoft will keep the cards close to its chest) until there are leakers or unless there are whistleblowers with hard proof
Microsoft Layoffs in Spain, Portugal Record for GNU/Linux
in Portugal we see GNU/Linux at record levels
GNU/Linux Reaches All-Time High in the United States of America
Windows is trending down
Yes, Microsoft is Again Using Its Favourite Liars (Stenographers) to Seed Fake Layoff Numbers, Much Lower Than What's Really Happening
It is Jordan Novet again, just as we predicted
Will Microsoft Once Again Choose Its Favourite Liar to Spread Lies About Today's Layoffs, Quickly to be Replicated and Spread by Slopfarms?
What lies is Microsoft briefing its media moles to tell today?
"OSS Fetishism" Wins After Ferenc Zsolt Szabó Ousted (Microsoft Mole From Capgemini)
Many people said 2025 would be the "year of Linux on the desktop"
There is Nothing That LLMs Can Offer Honest People
LLMs are a passing fad; they're expensive and offer poor "value" for energy; they usually offer no value at all unless you are a cheater, spammer, and liar
What statCounter Shows Today Helps Explain Microsoft's Helplessness, Mass Layoffs
Since many US journalists are already away on holiday almost nobody will dare ask the difficult questions or give a voice to whistleblowers
Microsoft Gets the Chop in South America
The notion of digital sovereignty gained a lot of popularity
Europe Has an 'Exit'
Let's see what happens the rest of this year
El Presidente Talks, Canada Walks (Away From Windows)
GNU/Linux rising
Cities in France and Germany Move to GNU/Linux and statCounter Detects Big Differences
Will governments lead by example?
Microsoft Lost Its Foothold in Africa
How many of these are "old" Windows machines converted to GNU/Linux? Probably a lot.
Led by Europe, GNU/Linux Makes Big Gains This Month
statCounter started showing new/fresh stats
Links 02/07/2025: Massive Microsoft Layoffs About to Commence, "Tesla's Robotaxi Program Is Failing"
Links for the day
Why the Microsoft People Who Started SLAPPs Against Techrights Could Very Well be Sent Back to Prison
White-collar crime is also a crime
The Company Run by Former (and Last Proper) Red Hat CEO, Promoting Microsoft Mono, Faces Shock as Senior Partner Jailed for 33 Sexual Offenses Including Pedophilia
"As reported by The Oxford Mail in April 2025, the offenses include rape, sexual assault, engaging in non-penetrative activity with a child, and more."
Microsoft Lost 29% of Windows Users, Based on Microsoft, Now Come Massive Layoffs
Microsoft collapse is today
Slopwatch: Google Serves to People Linux Slop and Linux FUD (Made by Bots)
"Slopwatch" finds it difficult to ignore Google's role in encouraging LLM slop
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 01, 2025
IRC logs for Tuesday, July 01, 2025
"Wayland People" Behave Like the Googles and Microsofts of This World
Published yesterday by Igor Ljubuncic
Gemini Links 02/07/2025: Arch Linux and Fulfillment in Gemini
Links for the day
Links 01/07/2025: "Independence Day in Taiwan", Bounties on Software Patents
Links for the day
What Happens When Your Law Firm is Preoccupied With Harassing and Trying to Extort a Humble Couple in Manchester, Even on Behalf of Violent Microsoft Staff From Another Continent
It's good to see that law firms which operate in bad faith are perishing
Lawyer X, Law Firm X and Elon Musk's X: scandals linked by Old Xaverian
Reprinted with permission from Daniel Pocock
Gemini Links 01/07/2025: Distraction-Free Writing and Hytale Mismanagement
Links for the day
Links 01/07/2025: "Beauty of Blogging" and "Etiquette of Collapse"
Links for the day
Microsoft Uses LLM Slop to Defraud (or Rob) Shareholders
Microsoft is basically defrauding its shareholders by LLM slop
The Web is a Dead End
We need to adopt alternatives
When Words Lose Their Intended Meaning
examples of words that, at least in the technical spheres, don't mean what they sound like
People Who Disagree With You on Technical Matters May or May Not Agree With You on Political Things (But Usually They Do)
What bothers me a great deal is seeing left-leaning people accusing other left-leaning people of being "nazis"
"Too Much Choice" and "Too Many Programming Languages"
What IBM and its apologists aim for was attempted in the 1930s and it failed
Microsoft Lost 400,000,000 Windows Users, According to Microsoft
more people adopt smaller computers and many people replace Windows with GNU/Linux, as they don't really need a new computer
The "Davos Effect": Tarnishing the Reputation of Places Not by Overtourism But by Oligarch Infestation
The last Venice needs is an affiliation with Venetian oligarchs
Half a Year Gone, What's to Come Next
In the second half of 2025 we expect to be done with the Microsoft SLAPPs
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 30, 2025
IRC logs for Monday, June 30, 2025
People at the Very Top of Microsoft Know How Bad Things Really Are
There's no product that can replace the former profitability of Windows licensing and stuff that went on top of Windows
Gemini Links 01/07/2025: Mid Year and a Tour of Old Languages
Links for the day