Bonum Certa Men Certa

The Greedy USPTO Leaves Loopholes, “Per Se”, for Patenting of Software in the United States Despite the Alice Case

No loopholes "as such", just loopholes "per se"

USPTO subject matter



Summary: The US patent office, USPTO, is still trying to sidestep rulings from the law setters in the United States, probably because of greed and no quality control motivations

THE United States' Supreme Court was pretty clear about abstract patents and the USPTO very begrudgingly took this into account, only after courts have time after time thrown in the wastebasket patents granted by the USPTO, where quality control is worse than black comedy (is any examination being done at all or just stamping for a fee?).



"Unsurprisingly, in this extremely unregulated system, the patent office does the very minimum to realign as per court rulings and it leaves many loopholes for patenting of abstract software ideas."Based on this page about "Patent Subject Matter Eligibility", the USPTO does not want to actually obey the law as interpreted by the Supreme Court. Unsurprisingly, in this extremely unregulated system, the patent office does the very minimum to realign as per court rulings and it leaves many loopholes for patenting of abstract software ideas. The term "per se" is mentioned at least 5 times in this page and Benjamin Henrion (FFII) rightly said that the "USPTO is abusing the "per se", as the EPO has abused "as such" to render software patentable at the end" (these words are like vague exceptions to each rule).

"Patents," wrote a patents-centric person, "New entrant in €§ 101 (subject matter eligibility) tome. When do they update MPEP?"

Henrion, who will speak about similar issues pertaining to software patents in Europe tomorrow in Brussels, responded to the above by saying "that's written by legalese guys that want to exploit loopholes."

“USPTO is abusing the "per se", as the EPO has abused "as such" to render software patentable at the end”
      --Benjamin Henrion
Another person who opposes software patents wrote: "Interpreting the Law to serve themselves? In order to obtain fees?"

Henrion later called it "EPO style power money grab" (recall how the EPO does this).

They are rendering software patents "acceptable" (or implicitly allowed) so as to grab more power and money at at the expense of citizens. This is just wrong. It shouldn't be done. These organisations have .org and .gov domains, but they operate like greedy corporations and serve the greediest corporations, not citizens.

Writing about the Court of Appeals for the Federal Circuit (CAFC), this pro-software patents site (of patent lawyers) wrote yesterday that CAFC "Did Not Abuse Its Discretion To Allow Defendant’s €§ 101 Defense After Alice; Claims for “Anonymous Load Shopping” Using Generic Computer Technology Are Abstract And Unpatentable."

It also said that "the plaintiff moved to strike the re-asserted invalidity defense under €§101 as not made with good cause and as unfairly prejudicial. The defendant argued that the change was made in view of the Supreme Court’s €§101 decision in Alice v. CLS Bank, which was decided two months before the final invalidity contentions were served. The district court agreed that the Alice decision was sufficient cause to re-assert the €§101 defense in the final invalidity contentions. The district court later granted summary judgment of invalidity under €§101. The plaintiff appealed."

As can be seen here, the USPTO grants patents on software, but as per Supreme Court rulings, these patents are ruled invalid. This means that the USPTO no longer does what's lawful and the wordings above ("per se") help show that it's not even interested in obeying the law. It just wants to exponentially grow the number of granted patents (the number doubled in a matter of a few years!).

This extreme greed means that a patent bubble is being created (leading to incorrect valuations of some companies) and it will inevitably explode/burst, causing a lot of damage to the US economy. It wouldn't be so bad for patent lawyers when it finally happened.

Australian patent lawyers, in the meantime, try to figure out how to patent software in the US and in Australia. Lawyers' media has just published "Business Method and Software Patent Eligibility: Australian and U.S. Standards" and it says:

RPL held that “[i]t is not a patentable invention simply to ‘put’ a business method ‘into’ a computer to implement the business method using the computer for its well-known and understood functions.” Stated another way, the computer cannot be “a mere tool in which the invention is performed,” but rather “must involve the creation of an artificial state of affairs where the computer is integral to the invention . . . .” The inventive aspect (“ingenuity” as termed by the Australian court) must be “in the way in which the computer is utilised,” not in the scheme, plan, or process that is being implemented.

At first blush, this sounds similar to the guide posts present in the U.S. Supreme Court’s decision in Alice Corp. v. CLS Bank Int’l. The Supreme Court held that “a mere instruction to ‘implement’ an abstract idea ‘on a computer’ . . . cannot impart patent eligibility.” Instead, citing prior cases, Alice held that the invention may be patent eligible where it “improve[s] the functioning of the computer itself,” or “effect[s] an improvement in any other technology or technical field.”


More and more places around the world, including Europe, rule/deem software patents invalid, at least when they reach the courts. It's time for the public to pressure patent offices and patent lawyers whom they interact with (all for the accumulation of money), demanding that they stop ignoring the law. They shouldn't be pursuing software patents. They are a big part of plenty of today's problems. If patents are being compared to "products" and maximisation of "sales" (to clients/customers, not applicants) is the goal, no wonder we ended up in an increasingly horrible, sordid mess.

“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway."

--Marshall Phelps, Microsoft

Recent Techrights' Posts

[Meme] 9AM Meeting at Brett Wilson LLP
Brett Wilson LLP in space
 
Yes, Your Mastodon Instance Will Also Shut Down
Few people run a one-person instance in the Fediverse
The Demise of GAFAM Necessitates Greater and Broader Awareness
Morale at Microsoft is really bad
Free Software Foundation Reaches 75% of Funding Goal
Not bad for this "Fosschild"
Slopwatch: 7 New Examples of Fake 'Linux' Slop Pieces (Plagiarism With Misinformation)
Serial Sloppers need to be shunned
Links 19/07/2025: Kapo-berg Settles, Software Patents Challenged
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 18, 2025
IRC logs for Friday, July 18, 2025
Links 18/07/2025: Peace With PKK and Connie Francis Dies
Links for the day
Gemini Links 18/07/2025: Alhena 5.1.8 and Bornhack 2025
Links for the day
How to Top Up a "Limited Liability" With Even More Limitations (Dodging Accountability in the UK)
Some people call it a "shell game". Sometimes it's done for tax evasion purposes.
Free Software Foundation, Inc. (FSF) Inches Towards 75% of Fund-Raising Target
Will the cutoff date be extended again?
Gemini Space (or Geminispace) Grows, But Usage of Certificate Authority Let's Encrypt Drops Further
Ideally, all Gemini capsules should use self-signed certificates
Links 18/07/2025: More Microsoft Layoffs in Activision, The New Stack (Sponsored by Microsoft) Complains About Openwashing
Links for the day
Gemini Links 18/07/2025: OCC25 Gnus for Reading Usenet and RSS Feeds, Small Web Updates
Links for the day
Listing as Staff People Who Left the Company More Than Six Years Earlier
There are apparently no laws against that
Brian Fagioli Shovels Up LLM Slop (Plagiarism) Onto Slashdot, Then Uses Slashdot for Affirmation or as Badge of Honour
Notice how some of his latest slop is presented ("as featured on Slashdot")
Social Control Media Productivity
Snapping photos of the bone
The Law Firm SLAPPing Us For the Microsofters Lost 72% of Its Tangible Assets in the Past Year, According to Its Own Reports
That might help explain why they're willing to tolerate serial stranglers from Microsoft as clients
Slopwatch: LinuxSecurity.com Slopfarm and Slopfarms Propped Up by Google News
"As LLM slop is foisted onto the WWW in place of knowledge and real content, it now gets ingested and processed by other LLMs, creating a sort of ouroboros of crap."
Links 18/07/2025: Weather Events and Health Hazards
Links for the day
Microsoft's All-Time Low in Finland
Microsoft is in a freefall
Security: Shane Wegner & Debian statement of incompetence
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 17, 2025
IRC logs for Thursday, July 17, 2025
Gemini Links 17/07/2025: "Goodreads for Gemini" and Defence of "The Small Web"
Links for the day
Links 17/07/2025: Anger and Morale Issues at Microsoft, Wars and Conflicts Get Digital
Links for the day
CALEA / CALEA2 is the Real Problem, Not Chinese Operatives Exploiting CALEA / CALEA2 (as Any Other Nation Can)
CALEA / CALEA2 is more of a front door than a back door
99.99% Uptime in First Half of 2025
Since January there was only one noticeable outage
Nils Torvalds and Anna "Mikke" Torvalds (née Törnqvis) Hopefully Use GNU/Linux by Now
"Torvalds Family Uses Windows, Not Linus’ Linux"
Attack of the Slopfarms
FUD-amplifying bots with slop images, slop text (LLM slop)
When People Call a Best/Close Friend of Bill Gates a "Serial Rapist"
Good thing that the Linux Foundation keeps the "Linux" trademark ("Linux Mark") clean
Not My Problem, I Don't Care
Context/inspiration: Martin Niemöller
Honest Journalism About the European Patent Office Ceased to Exist After SLAPPs and Bribes to the Media
The EPO is basically a Mafia
Microsoft Bankruptcy in Russia, Shutdown in Pakistan, What Next?
It seems possible that in 2025 alone Microsoft will have laid off over 50,000 workers
Life Became Simpler When I Stopped Driving and I Don't Miss Driving When I See "Modern" Cars
Gee, wonder why car sales have plummeted...
Why I Believe Brett Wilson LLP and Its Microsoft Clients Are All Toast
So far our legal strategy has worked perfectly
EPO Jobs Are Very Toxic and Bad for One's Health
Health first, not monopolies
Response to Ryo Suwito Regarding the Four Freedoms
the point of life isn't to make more money
Microsoft's Morale Circling Down the Drain
Or gutter, toilet etc.
What Matters More Than "Market Share"
The goal is freedom, not "market share"
Tech Used to be Fun. To Many of Us It's Still Fun.
You can just watch it from afar and make fun of it all
Links 17/07/2025: "Blog Identity Crisis" and Openwashing by Nvidia
Links for the day
Greffiers and the US Attorney of the Serial Strangler From Microsoft
The lawsuit can help expose extensive corruption in the American court system as well
Credit Suisse collapse obfuscated Parreaux, Thiébaud & Partners scandal
Reprinted with permission from Daniel Pocock
The People Who Promoted systemd in Debian Also Promote Wayland
This is not politics
UK Media Under Threat: Cannot Report on Data Breach, Cannot Report on Microsoft Staff Strangling Women
The story of super injunction (in the British media this week, years late)
Victims of the Serial Strangler From Microsoft, Alex Balabhadra Graveley, Wanted to Sue Him But Lacked the Funds (He Attacked Their Finances)
Having spoken to victims of the Serial Strangler From Microsoft
Links 17/07/2025: Science, Hardware, and Censorship
Links for the day
Gemini Links 17/07/2025: Staying in the "Small Web" and Back on ICQ
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 16, 2025
IRC logs for Wednesday, July 16, 2025