Bonum Certa Men Certa

The US Supreme Court Cemented the End of Software Patents by Rejecting Them and Refusing to Revisit the Subject After Alice

Turning a blind eye to the highest court in the United States is unwise

Blind leading the blind
Blind leading the blind



Summary: An update regarding the sordid state of patents on software in the US, where one has to rely on examiners and/or judges ignoring the US Supreme Court in order to have these granted/upheld

Software patents have always been the primary topic here. Longtime readers can attest to that. Thankfully, after Alice (2014), no imminent resurgence of software patents is expected, at least not in the near future. Several months ago when it was predicted that the SCOTUS (US Supreme Court) would deal with low-quality design patents of Apple we noted that no SCOTUS case was bound to reconsider the patentability of software. There wasn't even another Bilski in the pipeline.



"Thankfully, after Alice (2014), no imminent resurgence of software patents is expected, at least not in the near future."According to this new SCOTUS preview from Patently-O, only design patents would be questioned. Nothing would change when it comes to software patents, at least not at SCOTUS. To quote Patently-O: "When the Supreme Court’s October 2016 Term begins in a few weeks, its first patent hearing will be the design patent damages case of Samsung v. Apple. In Samsung, the Court asks: Where a design patent is applied to only a component of a product, should an award of infringer’s profits be limited to those profits attributable to the component? The statute at issue – 35 U.S.C. €§ 289 – indicates that, someone who (without license) “applies” the patented design (or colorable imitation thereof) to an article of manufacture, “shall be liable to the owner to the extent of his total profit.” Up to now, courts have repeatedly held that the “profits” are profits associated with the product (i.e., the article of manufacture) being sold, but Samsung is asking that the profits be limited only to components of the product closely associated with the patented design. Although Apple’s position is supported by both the text and history and is the approach easiest to calculate, I expect that many on the Court will be drawn to the potential unjust outcomes of that approach. Apple wins in a 4-4 split. Oral arguments are set for October 11, 2016."

We previously explained why design patents are similar if not overlapping software patents (the user interface angle in particular). We therefore hope that Apple will lose this case -- a case which we wrote about nearly half a dozen times so far this year.

"When it comes to software patents, empirical evidence typically shows that their existence harms innovation and causes more harm than good.""Professors Feldman and Lemley are well-known for their skepticism about the current form of the patent system," wrote Neil Wilkof yesterday in IP Kat. It's not a bad post and here is what it says about the seminal/cited paper: "The authors make a basic distinction between ex ante and ex post with respect to technology transfer and licensing. A significant amount of meaningful technology transfer is “ex ante”, namely it takes place before the patent issues, and sometimes even before it is filed. To the contrary, licensing demands and litigation leading to payment for freedom to operate, occurs “ex post”, after the patent is issued, sometimes long after grant. Even in the life sciences field, where one might expect more evidence that technology transfer would be taking place, the authors found that the “modal license” was primarily for payment for freedom to operate rather than technological transfer of the underlying technology."

When it comes to software patents, empirical evidence typically shows that their existence harms innovation and causes more harm than good. "Despite Alice," Benjamin Henrion wrote yesterday, "specialized patents courts keeps issuing software patents in the US" (known issue), but as long as the Supreme Court repudiates such nonsense we're probably OK in the long run. Upon appeals, e.g. to CAFC (a bit pricey), software patents almost always die. Lower courts need to heed the warning and stop ignoring policies imposed (or handed down) from above.

"Suffice to say, "open source software" as the above names it (Free/libre software) is not compatible with software patents."Dropbox, according to this page, has "4 new DROPBOX patent applications," to quote Fresh Patents. They are pursuing software patents (the titles suggest so) on all sorts of basic Web operations. Will USPTO examiners be negligent enough to grant in spite of prior art and Alice? We shall see. One sure thing is, the courts (the higher, the better) won't tolerate these.

We recently wrote about Blockstream making a patent pledge despite having no patents. This new report suggests that Blockchain technology faces patent-related problems. To quote IP Watch: "Blockchains, such as the well-known bitcoin, are not yet well-defined but are creating a lot of hype, speakers at a 23 August Intellectual Property Owners' Association webinar said. Two things are clear so far, they said: the technology is in its infancy, and there are lots of unresolved questions about what is patentable and how IP laws intersect with the mostly open source software used in the systems."

"If the Supreme Court was to be respected rather than ignored for convenience (or maximisation of profit), there would no longer be trials over software patents, let alone new grants of software patents."Suffice to say, "open source software" as the above names it (Free/libre software) is not compatible with software patents. Neither are APIs (lesser form of "open source"), yet according to this new patent survey, there are more than 23,414 API patents. To quote D-Zone: "After looking through the 23,414 API related patents from between 2005 and present day from 4,283 companies, it is clear that the API patent game will be all about which companies decide to litigate using their "intellectual property." There is definitely a lot of education that could occur across all industries where these patents will be put to work, and hopefully we can see some reforms at the USPTO regarding how important it is to the economy that the APIs themselves to remain open and reusable, but I think that ultimately the world of API patents will be hammered out in courts across the United States, and other countries around the world."

Oracle now claims copyrights on APIs, in a case which involves a mixture of software patents and copyrights inherited from Sun upon acquisition. We hope that readers are able to see just how profound an impact all these efforts to apply 'IP' to code can have. When can developers go back to coding in peace? Well, hopefully when all courts and patent examiners pay attention to Alice and apply the corresponding test. If the Supreme Court was to be respected rather than ignored for convenience (or maximisation of profit), there would no longer be trials over software patents, let alone new grants of software patents.

Recent Techrights' Posts

Gemini Links 16/07/2025: Tmux and OCC25 Working TLS
Links for the day
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
 
Why I am Suing the Serial Strangler From Microsoft, Alex Balabhadra Graveley, in the UK High Court This Week
Out of respect to the process and to the Court, I shall not share any pertinent details about the case
Links 16/07/2025: China’s Economy Grows Steadily, France Takes Action Regarding Harm to Children by GAFAM and Fentanylware (TikTok)
Links for the day
It is Not About Politics
Beware the people who try to make this about politics
Good Journalism Saves Lives
a shocking number of women die or get seriously hurt every day due to violence from a partner
Recognition of Women's Contributions to Free Software
Being passive is not an option when bad things are happening
Slopfarms Are Going to Perish Because Public Opinion is Changing
Many slopfarms will simply go offline
19 Years of Standing Up for Justice, Equality, and Truth
This week we shall take it up a notch
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 15, 2025
IRC logs for Tuesday, July 15, 2025
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
Gemini Links 15/07/2025: Smolweb and Alhena 5.1.7
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
XBox is Rapidly Turned Into a Slopfarm by Microsoft
Slop isn't about efficiency and saving money
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
Microsoft's Halloween Documents and systemd, Wayland, Etc.
Maybe one day Wayland will be widespread. Or maybe not.
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