Bonum Certa Men Certa

The USPTO Continues to Snub the US Supreme Court and Issues Software Patents That Are Totally Bogus

US courts are constantly rejecting software patents, but the USPTO doesn't seem to care and continues to issue them anyway

"LinuxFest Northwest 2016: Software Patents After Alice: A Long and Sad Tail" [via Montana Linux, which says "Deb Nicholson talked about the state of software patents after the United States Supreme Court's ruling in the landmark Alice vs. CLS Bank case."]

Summary: The 'production line' which the USPTO has devolved into (just accepting nearly everything that comes in) passes costs of spurious litigation to the public (externality to be taxed by monopolists, trolls, and patent lawyers) and new information serves to highlight this gross injustice which is motivated by USPTO greed and corporate control (vendor captivity)

Professor Dennis Crouch, still keeping abreast of "Pending Supreme Court Patent Cases" (there are interesting SCOTUS-level patent cases on their way), brings updates about USPTO adaptations to rulings such as Alice, which basically brought the end to a lot of software patents (the USPTO should obey court rulings and end software patents, but it's too greedy to do so). The articles composed by Dennis Crouch are actually quite informative and they help us track how things are changing (Crouch's work is academic/scholarly, so he hasn't much to personally gain from patent maximalism). Writing about the latest in the Fitbit case, a patent lawyers' site says: "As an update to our April 13, 2016 blog post, US International Trade Commission administrative law judge (ALJ) Dee Lord has granted summary determination that the asserted claims of two of Jawbone’s remaining patents in its Section 337 action against Fitbit are directed to ineligible subject matter under 35 U.S.C. €§ 101."



"It’s not hard to see why large corporations are up in arms."This is basically the latest high-profile legacy of Alice, which the USPTO (unlike courts, SCOTUS included) is still trying to ignore. The USPTO is still having discussions about the subject. According to a new bit of text found by Benjamin Henrion a few days ago, the USPTO says "Functions that are not generic computer functions and therefore amount to significantly more than an idea" (PDF therein).

Does the USPTO intend to ever obey court rulings? Or is it too rogue to accept that things have changed? Its former director, David Kappos, is now actively lobbying against the Supreme Court on behalf of huge corporations -- a move which contributes to the perception of corruption in this whole system.

"Another new analysis from Crouch reinforces the idea that the patent office should enforce patent boundaries, restrict scope."It's not hard to see why large corporations are up in arms. Dennis Crouch, the pro-patents scholar, has done some research and plotted charts which show that what the patent system was created for ain't so anymore. Crouch's analysis is showing how large corporations get the lion's share of patents (first author plus bosses etc. and people who want to get some of the credit), not independent developers (same in Europe) and he adds the following interpretation of the numbers/chart:

The primary goal of the patent system is to encourage innovation – “promote the Progress of Science and useful Arts.” For me, the nature of inventorship is a fascinating pursuit: what are the factors that lead to invention and what are the results of invention?

A major shift over the past few decades in terms of inventors listed on U.S. patents is the rise of team-based inventorship. Back in 1975, the vast majority of U.S. patents were issued to a single inventor. Since that time, there has been a steady trend toward more inventors-per-patent. Around 1990 we reached a point where, for the first time, more than than half of US patents listed multiple inventors. That trend toward more inventors per patents continues today.

Drilling down, the increase is seen in patents with three or more inventors. The chart below shows the percentage of utility patents with either one listed inventor (downward sloping double line) or three+ listed inventors (upward sloping line). The drop in the first almost exactly correlates with the rise in the second. Throughout this time, the percentage of two-inventor patents has remained steady at around 25%.


Another new analysis from Crouch reinforces the idea that the patent office should enforce patent boundaries, restrict scope. But his focus, however, is the number of claims per patent, showing a very sharp decline about a decade ago (patent barriers perhaps falling far too low, allowing virtually every patent application through, or more than 90% of them). He calls this "Right Sized Patents" and adds:

Many progressive policies focus on reducing disparities (income, wealth, education, and opportunities) that reflect some social injustice between those at the top and those at the bottom of our social spectrum. Conservatives often recognize the gaps but disagree about whether the result qualifies as injustice as well as about government’s role in redistribution.

Patent policy is often easier to implement than social policy (especially compared with other property law changes) because a new generation of patents emerges every twenty years and the old generation does not hang-around protecting and directing wealth but instead melds into the Soylent of the public domain.

In some ways though, patents are bucking the social trend and becoming more standardized and less diverse – at least by some outward measurements such as document size, claims per patent, and prosecution pendency.


To rephrase that last sentence (above), patents are bucking the corporate trend and becoming low quality and more trivial. It means that those who are poor will be further impoverished and those who are rich and powerful will have more ammunition with which to marginalise the small guys (or girls). More and more small guys (or girls) are under more threats from more patents and more corporations. This means they lose control; they're being dominated. Bogus patents that are possible to invalidate in a court are too expensive to invalidate, and those whom they're asserted against don't face huge damages which can justify the legal bills (so they settle or close down the shop). Is this what the patent system was created for? Surely the opposite. The saddest thing is that the EPO too is gradually becoming more like that.

Recent Techrights' Posts

IBM and Microsoft Hiding Layoffs in Similar, Overlapping Ways
Performance Improvement Plans aplenty
IBM is a Cancer That Attaches Itself to Everything
Red Hat should have remained an independent company
Plot Twist: Microsoft MSN Relays Articles Hinting at or Pointing to Mass Layoffs Soon, Other Gossip
the narrative from Microsoft's "PR bunny" (Shaw) is showing mold already
'Vibe Coding' is Not "AI", It's a Sewer, It is Junk
Linus Torvalds was wrong. 'Vibe coding' isn't good for anything.
GNU/Linux May be Approaching 10% "Market Share" in Montenegro
The surge started around 2021
More IBM Layoffs in India
If IBM cannot afford to retain workers in India, then something is truly "out of control" at IBM
Dr. Richard Stallman Has Done No Harm to the GNU Project or the FSF (He Had Benefited Both, Always, Even After the Attacks on Him Began)
Some people try to prevent Dr. Stallman from speaking or having a platform where many people can hear him
Microsoft Isn't Denying the Mass Layoffs
Still silence from Microsoft
In Western Africa GNU/Linux Flirts With 5% Market Share
there's a gradual increase in GNU/Linux usage there
Gemini Links 09/01/2026: Pro1 X Repair and the Mercury Protocol
Links for the day
No, Microsoft Did Not Deny the Q1 Mass Layoffs (Microsoft Can Delay These)
Maybe they disperse or delay the layoffs (changing plans), but the layoffs are going to happen
 
EPO People Power - Part XXX - New Year Starts, Cocainegate Still Discussed a Lot, António Campinos Desperate for Distraction From It
Why the sudden change or 'generosity'? [...] Actual cocaine addicts caused nervous breakdowns among sober people
2026 Might be the Year Microsoft Replaces Layoffs With Mass Firings (No Severance Payments to Dismissed Staff)
It's hard to "see" PIPs unless insiders blow the whistle
Links 10/01/2026: STV Layoffs (Scottish TV), “CBS Evening News” in Chaos (Culls and Censorship by the US Regime)
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, January 09, 2026
IRC logs for Friday, January 09, 2026
Gemini Links 10/01/2026: Blackout, E-Waste, and Secondary Smartphone
Links for the day
Links 09/01/2026: Google and Character.AI Implicitly Accept Chatbots Kill Kids and GLP-1 ‘Slimming Pens’ Turn Out to be a Lot Worse Than Advertised
Links for the day
At IBM, "Employee Reviews" (or Appraisals in the UK) Are a "Trojan Horse" for RAs (Mass Layoffs), a Waste of Time
comments from IBMer serve to suggest that appraisals can be precursors
Links 09/01/2026: Technical Blogging Lessons Learned and Google's Gmail Getting a Lot Worse
Links for the day
Escaping GAFAM Colonialism Requires Homegrown Free Software
GNU/Linux now measured at 3% in Zambia
GNU/Linux at 4% in Saudi Arabia, Says statCounter
Some years ago Windows fell to a "market share" of just 11% there
Links 09/01/2026: Cambodia and China Extradition, "NATO’s High-risk Patrols Near Ukraine"
Links for the day
Only One Person in Charge of Fedora is Not IBM Staff
This is not a community project, it's just a way for IBM to onboard unpaid volunteers
This Is Not a Drill, GNU/Linux is Really Going 'Mainstream' on Laptops (and Desktops)
It is important to explain to people software freedom
IBM Albany Layoffs
not only did many in the site lose their job; there's more to come "and likely another one in February" (weeks from now)
EPO Workers' Industrial Action to Include Many Strikes, to Last Several Months
In some ways, The Hague and Bavaria are becoming almost indistinguishable from Moscow
EPO People Power - Part XXIX - Getting DER SPIEGEL, FAZ, Deutschlandfunk and Sueddeutsche Zeitung (SZ) to Cover EPO Scandals
We kindly ask our readers to contact their local media and urge it to cover the scandals
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, January 08, 2026
IRC logs for Thursday, January 08, 2026
Gemini Links 08/01/2026: "New Year, Old Plans" and Alex's "Butlerian Jihad"
Links for the day
LLM Slop About "Linux" Scarce and of Very Low Quality
At this rate, we reckon there may be one (or zero) per day by year's end
IBM's "Forever Layoffs" (to Bypass Warnings or Notices as Required by WARN Act)
There is a bunch of speculations about when the next "major round" of RAs will be
Attempts to Undermine This Site's Latest Series Using Intimidation, Threats, and Presumptuous Accusations
threatening language is less effective when everyone is an alibi
Links 08/01/2026: "Golden Smartphone" Scam and Riseup Account Issues
Links for the day
Links 08/01/2026: Possible "Collapse of NATO Over Greenland"; Journalistic Malpractice and "US Voters Hate Slop"
Links for the day
EPO People Power - Part XXVIII - A Sensitive Issue for Germany and The Netherlands
If Germans who read this series can communicate this to public officials or to their media, maybe they can strike a nerve and get the ball rolling
Age Discrimination at IBM Discussed Amid Mass Layoffs (Especially in the United States)
Workers are anxious. Are they next to face the axe?
Gemini Links 08/01/2026: Potentiometer Calculator, Power Outages, Why You Should Abandon Discord for IRC (e.g. Ergo), and Formatting Gopher Posts
Links for the day
Links 08/01/2026: More Software Patents Squashed, White House Repeats Misinformation From the Kremlin
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, January 07, 2026
IRC logs for Wednesday, January 07, 2026