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

IBM Lost Nearly 33% in "Value" in 3 Months (Shares Down $100), But Nobody Held Accountable
This is a truly dysfunctional company
 
At GitLab, "AI" is "All India"
It says "as much as 30%," but they also hire and it's clear what demography is targeted
Verified Accounts of Microsoft Offering 'Retirement' (Layoffs) to People in Their 40s, Over Two Decades Earlier Than Retirement Age
It's not even about performance, it's about age (or "cost" as well as location; they cheapen the labour)
Links 13/05/2026: Slop Turns Into 2008-Style Subprime Bubble, Mass Layoffs at Starbucks
Links for the day
They Don't Like the Layoffs, So They Are Rebranding Them
Layoffs are layoffs
IBM Downgraded as the Shares Sink to New Lows
The current strategy of IBM is financial engineering, wage reductions, and mass layoffs that the corporate media refuses to even write about
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, May 12, 2026
IRC logs for Tuesday, May 12, 2026
Gemini Links 13/05/2026: TUIs and Internet Radio
Links for the day
How the European Patent Office Became a Crime and Corruption Hub, One of Europe's Biggest
incomplete outline
Techrights at 19.5 (We Started in 2006, Days After the Microsoft/Novell Deal)
When Novell bought Ximian (run by the "best friend" of Graveley) it brought trouble to all of us, not just to Novell
In Croatia, Microsoft Windows Share Sank From 98% to All-Time Low of 67% (or 28% If One Counts Android)
statements made last week (and last month) by Microsoft's CEO confirm that Windows is rapidly losing users
SLAPP Censorship - Part 75 Out of 200: All True, All Verifiable, Unlike Garrett and Graveley Lying to at Least Three High Court Judges About What They Did
A lot of what I said a year ago not only turned out to be correct; it was moreover affirmed by Garrett after he had sworn on the Bible and put himself at risk to his liberty
The Corrupt Lecture the Non-Corrupt - Part XXI - EPO President Campinos Bribing to Buy His Seat, But Cautions Staff Against Bribery
This isn't a democratic institution
Gemini Links 12/05/2026: Spring Cleaning and New GemText Software
Links for the day
Links 12/05/2026: Samsung Sued by Dua Lipa (Publicity Rights), ‘Savage Love’ Copyright Infringement Lawsuit
Links for the day
IBM Falls to One-year Low
At one point or threshold does the Board (controlled by the CEO) sack the CEO?
Gemini Links 12/05/2026: On Astronomy and Stargazing, Coyote Time, and Freenom
Links for the day
Links 12/05/2026: Data Centres Destroying Neighbourhoods, "Care Workers Are Saying No to 24-Hour Workdays"
Links for the day
Richard Stallman to Give Public Talk in Erlangen, Germany (Next European Tour)
Seems like a large room
Google "Hey Hi" (Slop) Having a Stroke, Thinks I am Married to the Grandmother of My Grandfather
Seriously!
If IBM Suddenly Vanished in the 1980s, There Would be Chaos. Not Anymore.
IBM's management has rendered IBM more irrelevant than ever before
Beehiiv and Substack Are Platform Lock-in (Similar to Vendor Lock-in), Don't Use Beehiiv and Substack (and the Likes of These)
Proprietary platforms are a problem. Some people "get it" sooner than others.
Gitlab is in Trouble and Its Shares Have Collapsed
Down almost 80% since it began [...] The real issue has nothing to do with slop, it is a lack/loss of customers and erosion of the company's theoretical "value"
Microsoft: Mass Layoffs Are "Offers" (Like "Job Offers"), Culling Experienced and Highly-Paid Staff is "Softer Workforce-reduction Strategy"
Media sites that play along with those lies don't do journalism, they're in the PR industry
Under IBM, Mass Layoffs at Red Hat No Better Than Oracle Under Larry Ellison (Treating Workers Like Disposables - Even Enemies - Overnight)
under IBM the respect for the worker (or peer) does not exist
The Slop-Amplified Fear of Privilege Escalation (Local, Not Remote) in Linux, the Kernel
we are meant to assume this is no better and no worse than Microsoft intentionally putting back doors in everything, even encryption
Jim Zemlin/Linux Foundation Selling Anthropic Slop After Getting Bribed for Slop Marketing ('Linux' Foundation is a Pay-to-Say For-Profit Marketing Company That Buys and Manipulates the Media Based on False Pretences)
Look what they've done to Steven Vaughan-Nichols (SJVN)
GitLab the Latest Company to Do Mass Layoffs and Use Slop as the Go-to Excuse (GitLab Users Should Worry Too)
This round of layoffs (disguised as something else) has nothing to do with slop ("hey hi"). It's about commercial problems.
The Corrupt Lecture the Non-Corrupt - Part XX - EPO Management's Unified (One) Voice or Policy is, Doing Cocaine is OK When You're a Friend and/or Family of President Campinos
The management needs to resign to save the Office
Technology Not Meant to Last
A society apathetic towards declining production (or manufacturing) standards will end up ripped off
statCounter Cannot 'See' Chinese Operating Systems That Gain Many Millions of Users Per Month
There is no way for statCounter to recognise or show the market share of HarmonyOS
SLAPP Censorship - Part 74 Out of 200: The Basis of My Lawsuit Against Alex Graveley, Who Helps Garrett Stack the Docket in Another Continent
claim against the Serial Strangler from Microsoft
Update on Slop About "Linux"
"Linux" is a term many people are interested it, so it's not shocking that slopfarms target it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, May 11, 2026
IRC logs for Monday, May 11, 2026
GAFAM (Microsoft) "Cloud Computing" Means Another Country's Military Accesses All Your Data
reminder that confidentiality and Clown Computing are complete opposites
Another Discrimination Lawsuit Against IBM and Workers Say IBM Culls Older Workers (Just Like Microsoft)
If IBM fails to retain some of the smartest people, then what is the future of IBM?
Gemini Links 12/05/2026: Android Nostalgia and Switching to Guix
Links for the day
Links 11/05/2026: Another Oracle Setback and Mass Layoffs in Iran
Links for the day
Gemini Links 11/05/2026: Older Can Be Faster and Textmode Workflow
Links for the day
Links 11/05/2026: The Solicitors Regulation Authority (SRA) Admits It Only Reacts When It's Too Late (Damage Already Done), Ombudsman’s Animal Cruelty HK Report
Links for the day
If It Takes You a Second to Serve (or Receive) a Page, That's Definitely Too Slow
For speeds at milliseconds (e.g. for pages to fully load in a tenth of a second) the pages must be ready to be sent as soon as they're requested
It's Not About Speed, It is About Patience and Adherence to Truth, Principles, Scientific Integrity
attacks on us only ever made us stronger - a lesson that our adversaries have learned the hard way
Cyber Show Does it Like Techrights: Static and Gemini Protocol as 'First-Class Citizen'
HTML and GemText (over Gemini Protocol) would be rendered in tandem
Libya's Share on the Web: 5.2% GNU/Linux
GNU/Linux has hit an all-time high there
SLAPP Censorship - Part 73 Out of 200: Microsoft's Graveley and Garrett Remain Closely Connected in May 2026 ("Tag-Teaming" Against Bloggers in Another Continent)
The phrase "judge a person by their friends" seems applicable here
Codecs and Software Patents - Part VI - The European Patent Office, Nokia, Microsoft, Sisvel, and More
Whatever Nokia used to be, it's certainly not an ally and a lot of the turmoil at the EPO is the fault of companies like Nokia
Discussions About When the Axe Falls at IBM/Kyndryl (11,000 Layoffs Estimated)
"Kyndryl restructuring should reduce overhead functions and reduce the number of managers that lack technical knowledge"
A World After Microsoft (and GAFAM) and After GitHub Shuts Down
the only growth area is debt
Fake News, Propaganda, and Misinformation: Microsoft Investing Money It Does Not Have in "Hey Hi" (for "Entertainment Purposes" Only)
This will not end well
Today the Whole European Patent Office (EPO) is on Strike and Next Monday an Even Bigger Strike
the media refuses to cover these and is thus complicit
The Corrupt Lecture the Non-Corrupt - Part IXX - EPO Management Speaks of Reputation and Integrity While Putting Cocaine Addicts in Management
If the EPO values its "reputation", then it needs to start by ousting the management
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, May 10, 2026
IRC logs for Sunday, May 10, 2026
Links 11/05/2026: Security Breaches, Politics, and Energy Crunch
Links for the day
Gemini Links 10/05/2026: "Accidental Cameras" and "Addictive" Interfaces in Social Control Media
Links for the day