Bonum Certa Men Certa

Software Patents in the United States as Explored in Light of Some of the Latest Cases

Justice John Marshall Portrait of Chief Justice John Marshall, 1862



Summary: The patentability of software in United States (US) continues to be challenged by courts and by PTAB (Patent Trial and Appeal Board), with no signs of the Supreme Court (SCOTUS) changing that any time soon

In order to better understand the evolution or devolution of the USPTO, we must rely on sources that are both knowledgeable and reasonably objective (or make their biases known upfront). Justin Blows' useful blog (authored by an Australian patent lawyer) is all about software patents and it now covers many recent examples of software patent cases in the US [1, 2, 3, 4, 5, 6]. Among these examples this morning we see this lawsuit from a Microsoft-connected mega-troll, Intellectual Ventures, a lawsuit from Trading Technologies, which has been stockpiling software patents, and a lawsuit from IBM, a proponent of software patents and patent aggressor. What all 9 have in common (all of them were published at 6 AM GTM) is that they involve software patents used offensively in the courts, irrespective of their outcome, which Mr. Blows is trying to analyse in order to assess prospects of software patents in the US.



"...we must rely on sources that are both knowledgeable and reasonably objective (or make their biases known upfront)."A firm of patent lawyers has just released a paper in support of software patents and calls it a "Comprehensive Study" (probably for perceived legitimacy). It has been advertised using a paid press release and based on the title alone we can see the bias ("Enforcing Software Innovation" is gobbledygook).

"Are Software Patents Relevant?"

That's the title of this good new article which states:

While proponents (usually with deep pockets) have touted their benefits, software patents have also been used in the software industry to suppress innovation, kill competition, generate undeserved royalties, and make patent attorneys rich. So I ask, are software patents still relevant?

It’s no secret that the engineering software business is extremely competitive, as it always has been. The engineering software business has also proven to be a very fertile ground for lawsuits regarding patent infringement, reverse engineering, and outright copying and pasting blocks of code.


The software industry is very different (or unique) for a lot of reasons, including pace of innovation, code reuse, reducibility to maths/logic, difficulty of tracking/enforcement, 'export', zero-cost copying and so on. Patents are completely inadequate for this area/domain. Virtually every well-informed software developer would attest to that.

"Patents are completely inadequate for this area/domain.""A rare instance of PTAB finding patent-eligible subject matter in a covered business method case," wrote a patent lawyer about this article regarding PTAB. It says that the "The U.S. Patent Trial and Appeal Board (PTAB) recently found a business method patent eligible under 35 U.S.C. €§ 101, in one of the first such decisions since the institution of Covered Business Method (CBM) Patent Reviews and the Supreme Court’s decision in Alice Corp. Pty Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014)."

Bear in mind that for patents on software or business methods to survive Alice is the exception now. As Bilski Blog has just put it (publishing new charts and figures): "It's difficult to say whether we've reached a steady state as to the boundaries of patent eligibility. The high rates of ineligibility decisions is likely to incent patent defendants to continue to argue against more traditional types of software. At some point, the courts will likely say enough is enough, and start to hold the line. Attempting to time the market is a fool's errand."

"The very existence of software patents makes the job of programming (coding/development) uncertain if not impossible."Alice/€§ 101 has changed so much for the better. It's a rare case of SCOTUS versus patent lawyers (greed) and lobbying from large corporations. Based on this updated list of upcoming SCOTUS patent cases, there's still nothing that can annul or undo Alice, however there will be a decision regarding design patents.

Speaking of €§ 101, this new article says that yesterday "the Court [was] scheduled to consider grant of certiorari in Retirement Capital Access Management Co. LLC v. U.S. Bancorp, No. 15-591, where the firstQuestion Presented asks “[w]hether subject matter eligibility under 35 U.S.C. €§ 101 is a ground specified as a condition for patentability [for post-grant review] under 35 U.S.C. €§ 282(b)(2).”"

Things do change in the US and they certainly change for the better when it comes to software patents. If only more groups, such as the EFF (focused on trolls), worked towards the same goal...

Intuitively speaking -- and studies serve to reaffirm this -- no software developer really wants software patents. The very existence of software patents makes the job of programming (coding/development) uncertain if not impossible.

"The Moral Law tells us the tune we have to play: our instincts are merely the keys."

--C.S. Lewis

Recent Techrights' Posts

Reboots Should Never be Necessary
"BUT WHAT ABOUT SECURITY!!"
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
Gemini Links 15/07/2025: Smolweb and Alhena 5.1.7
Links for the day
XBox is Rapidly Turned Into a Slopfarm by Microsoft
Slop isn't about efficiency and saving money
Microsoft's Halloween Documents and systemd, Wayland, Etc.
Maybe one day Wayland will be widespread. Or maybe not.
 
Links 15/07/2025: LLM Pollution and Pushback in Ukraine
Links for the day
Gemini Links 15/07/2025: xkcd, New Cert, and Alhena Gemlog
Links for the day
Links 15/07/2025: Press Freedom at Risk and New Facebook Blunders
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
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