Bonum Certa Men Certa

Software Patents Deathwatch: Panic in the Patent Microcosm as “Since Alice, the Reject Rate for Patents for Payment Technologies is Above 90 Percent.”

"Look! Dead dolphins!" (how the patent microcosm tries to frame the demise of bad patents)

Dead dolphin



Summary: With the Patent Trial and Appeal Board (PTAB, part of AIA), the International Trade Commission (ITC), the Court of Appeals for the Federal Circuit (CAFC) and even the Supreme Court (SCOTUS) showing disdain for software patents time is running out for patent examiners and lower courts that still pretend such patents sometimes have merit

THE USPTO's examiners now face the challenge of PTAB. It's professionally embarrassing to be proven to have granted patents in error, so the examiners cannot simply ignore Alice, not any longer. "On USPTO Oversight," Patently-O wrote yesterday: "I am generally in favor of additional Congressional oversight of the U.S. Patent & Trademark Office – this is especially true because members of the House and Senate Judiciary Committees tend to be smart, well informed, and act with intention to improve the patent system.* Although partisan politics do come into play, much of the focus tends to be on real issues and real solutions. The oversight process forces additional USPTO transparency and is the standard mechanism for getting information from Executive Agencies. On this point, I will note that the information exchange is often done in the background lead-up to the actual hearing — thus, although a hearing might not be too exciting or informative, the associated deadlines force the new communications."



We are overwhelmingly in favour of having oversight affecting examiners at every patent office, as otherwise the profit motive takes over and quality control is virtually abolished (until the late and expensive stage which is a lawsuit in the court/s). Management of every patent office too needs to be subjected to scrutiny. The USPTO's former Director, for example, has become somewhat of a lobbying giant, disgracing not only the Office but the entire system (he is now lobbying on behalf of large corporations in favour of software patents and against Alice, i.e. against a Supreme Court's ruling).

"Management of every patent office too needs to be subjected to scrutiny."According to Mr. Loney from New York, "143 PTAB petitions [were] filed in August, down from 157 in July and 2016 high of 176 in June. Monthly average for year now 140.8 petitions." Here is his full analysis (partly behind paywall), showing that PTAB activity has been increasing over the years, throwing out a lot of software patents (which courts would throw out anyway). As time goes on it ought to become apparent also to holders of such patents (not just their rivals) that these patents are worthless piles of paper and not even PTAB will be needed to prove it, let alone the courts. "The number of Patent Trial and Appeal Board petitions filed in August was slightly above 2016 average," Loney wrote. "The month also saw notable Federal Circuit decisions on common sense, motions to amend and claim construction [...] The 143 Patent Trial and Appeal Board petitions (PTAB) filed in August was down from 157 in July and the 2016 high of 176 in June. The monthly average for the year is now 140.8 petitions."

Up-to-date statistics regarding software patent invalidations in the courts of the United States (mostly lower ones, i.e. friendlier to plaintiffs than CAFC) got published last night. "June, July and August showed an uptick in the number Section 101 decisions from April and May, the majority of these being motions to dismiss and judgments on the pleadings," the expert notes (he has been tracking this closely for years). "The rates of invalidity holdings continue to be steady: 70% overall, and 66.3% in the district courts. Success on motions on the pleadings is up to 68.1%. We've recently started tracking ITC proceedings as well, as shown above in the last row. Three of the five holdings of invalidity recorded above involved direct competitors and counterparties, Fitbit and Jawbone. In March 2016, Fitbit invalidated Jawbone's fitness tracking patents in an ITC proceeding brought by Jawbone (ITC 337-TA-963). In July, Jawbone returned the favor and successfully invalidated Fitbit's patents (ITC 337-TA-973); the ITC judge in the latter decision even relied upon Fitbit's arguments that it made in its own motion against Jawbone."

"That seems like wonderful news, but sites of patent law firms portray that as terrible news (to them it is)."We previously covered these rulings from the ITC, which certainly seems to be software patents-hostile. According to this new article, "above 90 percent" of patents on payment technologies (such patents are a subset of software patents) are dead/dying. Thanks to Alice! "Since Alice," says the article, "the reject rate for patents for payment technologies is above 90 percent. This is a development that many contend has been crippling the innovation in this space. However, one company CardinalCommerce has secured one, and according to many lawyers, if someone can manage to get an e-commerce patent in this environment, it is worth a lot."

That seems like wonderful news, but sites of patent law firms portray that as terrible news (to them it is).

Here is a new paid-for article, published in MIP by the patent industry last night. Having seen MIP becoming somewhat of a Battistelli/EPO platform, we worry they're going to do more of those "Sponsored posts" (at least this time there's disclosure). This one particular article speaks of telematics patents post-Alice and says "the patentability of such inventions could be impacted by the Supreme Court’s 2014 decision in Alice Corp Pty v CLS Bank Int’l, because inventions that arguably can be performed by humans are not patent-eligible subject matter under 35 USC €§ 101 (134 S Ct 2347, 2354-55 (2014))."

Well, so be it. These patents should never have been granted in the first place. If patents (applications) never get granted, then they cannot be used for litigation or even for shakedowns, where the accused fears having to go to court not because of the outcome but because of the legal fees, obviously prohibitive unless one works for a large company.

Recent Techrights' Posts

Under the Guise of "MIT Technology Review Insights" the Site MIT Technology Review Posts Corporate Spam as 'Articles'
Some of the articles aren't even articles but 'hit pieces' against Free software and some are paid advertisements
Brett Wilson LLP Has Track Record in Scam Coin Cases (e.g. Craig Wright and More), Now It Works for 'Crypto' Scam Purveyors
But wait, it gets worse
Will Brett Wilson LLP Handle Its Own Winding Up Petition or be Struck Off for Overt Abuse of Process?
Today we sue not only the first Microsofter
Ubuntu Becomes Microsoft GitHub, Based on Decision Made by British Army Officer
You're hopeless, Canonical
Sharing Code and Recipes
It helps explain the triviality of software freedom
How Many Women Has Microsoft's Alex Balabhadra Graveley Already Strangled and Where Does That End?
If you too are a victim of this man and wish to share information, contact us
"We Might Save Somebody's Life"
I follow the example of my father
 
Links 17/07/2025: Science, Hardware, and Censorship
Links for the day
Gemini Links 17/07/2025: Staying in the "Small Web" and Back on ICQ
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 16, 2025
IRC logs for Wednesday, July 16, 2025
Exclusive: corruption in Tribunals, Greffiers, from protection rackets to cat whisperers
Reprinted with permission from Daniel Pocock
Links 16/07/2025: Chip Bans and Microsoft’s “Digital Escort” Program
Links for the day
Revolving Doors: One Day You're a Judge, the Next Day You're an Attorney Paying Public Officials and Working for Violent and Dangerous Microsoft Employees
how the US justice system works
Slopwatch: Noise, Plagiarism and Even Fear, Uncertainty, Doubt/Fear-mongering/Dramatisation
What are we meant to do to prevent a false association or misleading connotations? Game the LLMs? No. Boycott slopfarms.
Gemini Links 16/07/2025: BaseLibre Numerical System and Simple Web Browsing with TLS
Links for the day
Links 16/07/2025: Fascist Slop Takes "Intelligence" Clothing, New Criminal Case Against MElon
Links for the day
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
Gemini Links 16/07/2025: Tmux and OCC25 Working TLS
Links for the day
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
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
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