Bonum Certa Men Certa

Ignoring the Bascom Hype and the Federal Circuit's Built-in Bias, Software Patents Still Dying in US Courts

Software patents invalid
Credit: Robert R. Sachs



Summary: The trend which suggests software patents fade away in the United States, in spite of all the lobbying, remains largely uninterfered

AT TIMES when the USPTO does not care about patent quality (apathetic at best) and the Supreme Court is giving more power to CAFC, the originator of software patents in the United States, one must pay close attention to enemies of software development, i.e. those who promote software patents.



According to lawyers' media (earlier this week), "At Federal Circuit, Death of Software Patents Exaggerated". To quote the article's basis for this headline: "The U.S. Court of Appeals for the Federal Circuit continues to carve out a sliver of room for software patents.

"Alice is a lot stronger (Supreme Court) than most precedents and Enfish has proven to be rather useless in practice.""A three-judge panel on Monday found that a Texas federal judge jumped the gun when she ruled that software designed to filter internet content was ineligible for patent protection under the Supreme Court’s Alice decision.

"Judge Raymond Chen acknowledged that the patent claimed an abstract idea and that the claim limitations, taken individually, recite generic computer, network and internet components."

It's not just this one. Patent lawyers continue to worry about Alice killing software patents and any time there's an exception to that they leap at the opportunity, as they did yesterday [1, 2, 3] (the second one is also here) after CAFC had thrown a bone [1, 2, 3, 4]. It is not too shocking that the court which brought software patents to the US and has become rather notorious for corruption is throwing a bone to patent lawyers. Here is MIP's coverage of the case. "The Federal Circuit has found a software patent valid for the third time since Alice, ruling in Bascom v AT&T that “an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces”," says the summary.

Does this mean that people can now just say Halo, Enfish or Bascom in order to overturn decisions in favour of software patents? Well, not really. Alice is a lot stronger (Supreme Court) than most precedents and Enfish has proven to be rather useless in practice. As the National Law Review put it the other day: "Ever since the Supreme Court’s decision in Alice Corp. v. CLS Bank shifted the contours of patent-eligible subject matter, district courts have wielded the two-part test set forth in that decision to dispatch scores of business method patents as being directed to unpatentable abstract ideas. In a recent example, the Massachusetts district court invalidated a patent relating to inventory forecasting software using the Alice test."

"Alice not only prevent new software patents from being asserted (or granted, if the USPTO actually decides to follow the rules rather than chase gold); it also retroactively devalues or revokes old software patents."This is generally the trend nowadays, as statistics serve to show. Software patents continue to drop like flies and there is no sign (at least not yet) of the Supreme Court reversing its course of action. Regarding Yahoo, which was destroyed by Microsoft, someone finally says the obvious about its patents, which are being put on sale. Yahoo's patents may be worthless because they're primarily software patents or in the words of a Forbes blogger: "The Yahoo patents being marketed cover a number of different technology areas, including e-commerce, search, messaging, and cloud computing. However, over 80% of these IP assets are categorized as software or business method patents."

Alice not only prevent new software patents from being asserted (or granted, if the USPTO actually decides to follow the rules rather than chase gold); it also retroactively devalues or revokes old software patents. Speaking of which, yesterday the EFF's Nazer presented the "Stupid Patent Of The Month: Storage Cabinets On A Computer" (as the name/title implies, this too is a software patent).

To quote Nazer: "How do you store your paper files? Perhaps you leave them scattered on your desk or piled on the floor. If you're more organized, you might keep them in a cabinet. This month's stupid patent, US Patent No. 6,690,400 (the '400 patent), claims the idea of using "virtual cabinets" to graphically represent data storage and organization. While this is bad, the worse news is that the patent's owner is suing just about anyone who runs a website.

"With few exceptions here and there (including some from CAFC) we remain quite confident that the trend remains phasing out of software patents in the United States.""The '400 patent is owned by Global Equity Management (SA) Pty. Ltd. ("GEMSA") which seems to be a classic patent troll. GEMSA is incorporated in Australia and appears to have no business other than patent litigation. The patent began its life with a company called Flash VOS. This company once offered a product that allowed users to run multiple operating systems on personal computers with x86-compatible processors. The '400 patent describes a graphical user interface for this system. The interface allows users to interact with "graphical depictions of cabinets" that represent memory partitions and different operating systems."

The nice thing is, many patents that are like that and can be described in physical terms (or analogies) would quite likely be deemed too abstract to be patentable. With few exceptions here and there (including some from CAFC) we remain quite confident that the trend remains phasing out of software patents in the United States. Software patents proponents like patent lawyers would have us believe otherwise because they're trying to find customers and sell their services.

Recent Techrights' Posts

Improving Daily Links by Culling Spam, Chaff, and LLM Slop
the Web is getting worse
[Meme] EPO Targets
Targets mean nothing if or when you measure the wrong thing
The EPO is Nowadays Trying to Trick Staff Into Settling Instead of Solving the Underlying Problems of Corruption and Injustice
This seems like a classic case of "divide-and-rule" or using misled/weak people to harm the whole group (or "the village")
Richard Stallman 'Unveils' His January 20 Talk in Montpellier, France
It's free (gratis)
Links 19/01/2025: Gaza Ceasefire and PR Stunt by Fentanylware (TikTok), Faking It by "Going Dark" to Incite American Addicts (Users)
Links for the day
 
Daniel Pocock's ClueCon 2024 Presentation Was Also Streamed Live in YouTube and Later Removed by Google, Citing "Copyrights". Now It's Back.
The talk covers social control media, Debian, politics, and more
Google 'Cancels' RMS
Is the talk happening?
Microsoft Revisionism Debunked by Microsoft's Own Words About “the Failure of OS/2”
The Register on “the failure of OS/2”
Links 20/01/2025: Indonesia to Prevents Kids' Access to Social Control Media (Addiction and Worse), Climate News Catchuo
Links for the day
EPO Union Says Monopoly-Granting Targets at EPO "Difficult to Achieve Without Compromising [Staff] Health, Personal Time or the Quality of the Final Products" (Products as in Monopolies, Not Real Products)
To those of us (over 99.999% of people impacted by this) who do not work at the EPO the misuse of words like "products" (monopolies are not products) should be disturbing
Links 20/01/2025: More PR Stunts by ByteDance and MLK’s Legacy Disrespected
Links for the day
Gemini Links 20/01/2025: Magnetic Fields, NixOS, and Pleroma
Links for the day
BetaNews Spreads Donald Trump Propaganda, Promotes Scams, and Publishes Fake 'Articles' About "Linux"
This is typical BetaNews
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, January 19, 2025
IRC logs for Sunday, January 19, 2025
[Meme] Hardware RAID and Hardware Raid
We're expecting attacks on the press in Trump's second term (no need to impress anyone for another election cycle) to be far worse than the first
What's Running on the Laptops
12 months have passed
They Won't Buy Vista 11 PCs or "Hey Hi" Copilot+++++++ PCs of Microsoft (With TPM)
Windows at 8%
No Time Left for President Biden to Pardon Julian Assange
At least they tried
[Meme] 404, Not Found
Kuhn: I'd like to interject for a moment, we made an alliance with the Microsoft-dominated LF to outsource projects to Microsoft GitHub and rich people gave us money to do this
Total Lock-down Ambitions - Part IV - The Latest Examples and the Perils (in Summary)
For further reading take a look at Musial's nice outline
FOSDEM is Called "FOSDEM" Because of Richard Stallman (RMS)
The overlap there seems timely; yesterday RMS spoke in French-speaking (in part) Switzerland where questions in French were accepted
Links 19/01/2025: TikTok (Fentanylware) Now Banned in the US, Convicted Felon Talks to Fentanylware CEO and Pooh-Tin About Undoing the Ban Despite the Supreme Court Unanimously Upholding It
Links for the day
FTC Realises Microsoft Buying Fake 'Clients' to Fake "Revenue" (Microsoft 'Buying' Services and Products From Itself!)
Ponzi scheme
Total Lock-down Ambitions - Part III - The Web Browser as DRM Pusher
A lot of "streaming" stuff is DRM
Video: University in Peru Honours Richard Stallman
Tomorrow, January 20, Richard Stallman speaks in France
IBM Termination Story and Information From Microsoft About Mass Layoffs
In 2 weeks of 2025 Microsoft already had 2 waves of layoffs
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, January 18, 2025
IRC logs for Saturday, January 18, 2025
Links 18/01/2025: Restoring the Great Wall of China and Economic Expansion in China
Links for the day
Guardian Digital (linuxsecurity.com) is Spamming the Web With Microsoft's Promotional LLM Slop About UEFI 'Secure' Boot (Which is Against Real Security)
This is an attack on honest journalism
Links 18/01/2025: TikTok's Endgame, "Car Freedom", and Spying in Cars 'Fines' GM (Settlement)
Links for the day
January 20: Richard Stallman Talk in Europe
evening time in Europe, around midday in the United States and Canada
Links 18/01/2025: Apple Getting Out of Hey Hi (AI) Slop (Too Much Misinformation), Chaffbots/Chatbots Try to Settle Copyright Infringement Lawsuits
Links for the day
What Fake News Sites Are Doing to GNU/Linux
The LLM slop about Linux serves two purposes
Links 18/01/2025: Microsofters Upset at Microsoft's Ridiculous Rebrands (Excuse for Massive Price Hikes), Chaffbot Company ('Open'AI) Faces More Lawsuits
Links for the day
Gemini Links 18/01/2025: Surge in Illnesses, ctags, and Gemsync
Links for the day
Slopwatch: Too Lazy to Write Real Articles, Offloading to Chatbots Instead (LLM Slop About "Linux")
The Web was already full of garbage before the LLM frenzy. Now it's even worse.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, January 17, 2025
IRC logs for Friday, January 17, 2025