Bonum Certa Men Certa

The Patent Microcosm is Losing the Fight Over Software Patenting and Now It Plays Dirty

Camp collection



Summary: New evidence suggests that software patents continue their plunge in the United States and those who make money from software patents cannot help shooting the messengers (in the media) and smearing those who simply do their job by applying the criteria agreed upon by the US Supreme Court

TECHRIGHTS has been watching very closely matters pertaining to software patents for about a decade (I've watched them much longer than that, predating this site's existence). After so much activism we finally see tremendous progress; they're dropping like flies and litigation involving software patents is so uncertain (for the plaintiff who takes a huge risk) that numbers indicate a sharp decline if not dampening. Only a fool would spend money pursuing new software patents; reckless patent holders would dare have them subjected to scrutiny by a court (the higher the court, the higher the risk, thus suing deep-pocketed players is riskiest).



“The number of some types of software patent lawsuits in the US has taken a nosedive since the 2014 decision in Alice v CLS Bank.”
      --WIPR
the numbers are on our side. As WIPR put it the other day (note the use of the word nosedive): "The number of some types of software patent lawsuits in the US has taken a nosedive since the 2014 decision in Alice v CLS Bank.

"This is the finding of Patexia, an online patent research platform, which reported that software patent suits have declined heavily, although the fall was not equal across all software patent classification codes.

"Patexia identified 14 different US classes that describe some sort of software-related system or process.

“Patexia identified 14 different US classes that describe some sort of software-related system or process.”
      --WIPR
"These classes covered more than 14% of the 22,791 unique patents involved in patent suits from 2010 through to the first half of 2016."

We are pleased to see that even insiders, such as Patexia, recognise the trend and write about it. Patent law firms prefer not to talk about it because it discourages their clients (or prospective/possible clients). Writing for "Canadian Lawyer Magazine", one person gave 10 reasons you need a Canadian Lawyer (the real headline is "Ten reasons you need a Canadian patent"). This is an example of marketing/advertising in the form of an "article". To quote from this -- cough -- article: "You may have heard that it’s not worthwhile to patent your company’s technology in Canada, with its smaller market, its conservative judicial remedies and its skepticism toward software-based patents."

Well, recall i4i v Microsoft (Canadian company) and how things worked out [1, 2, 3, 4, 5]. They pretty much risked going out of business after wasting years in court bickering over software patents. They still have a Web site which is active (last news item was a week ago), but we have not seen them in the media for literally more than half a decade. Recently, another Canadian company chose to turn into a patent troll down in Texas. This failing company, falling back on its patents, is Blackberry. How has it worked out so far? Any better than Nokia, which is still arming patent trolls in pursuit of cash? A lot of these patents are totally worthless, more so after Alice (Nokia -- or Symbian at the time -- had a famous software patent case in the UK nearly a decade ago).

"A lot of these patents are totally worthless, more so after Alice (Nokia -- or Symbian at the time -- had a famous software patent case in the UK nearly a decade ago)."Lexology, a site for lawyers, has just reposted (verbatim) an analysis from Fenwick & West LLP. It's an analysis which we mentioned and also cited here the other day, showing a trend of invalidation of software patents in the US. It's not looking good for software patents and it's not getting any better, irrespective of what patent law firms are trying to tell us (by blatantly selective coverage of events or overt cherry-picking).

Dealing with a particular CAFC case, a pro-software patents propaganda site (for a long time) says it's "keenly awaited" (by the vultures maybe) and that it relates to Alice. Expect it to change nothing at all, even if it somehow ends up in favour of a software patent (like in Enfish). CAFC rules against software patents around 90% of the time, so there's probably no more of Enfish in the pipeline. Two years and about 3 months after Alice it’s effectively the end of software patents in the United States. Wait and watch how patent law firms (and their media mouthpieces) continue to deny this, hoping to convince the readers (or clients) that all is "business as usual…"

It's not.

"It's not looking good for software patents and it's not getting any better, irrespective of what patent law firms are trying to tell us (by blatantly selective coverage of events or overt cherry-picking)"When pro-software patents propaganda Web sites want to undermine the importance/relevance of Alice they typically resort to insulting those who apply Alice (even judges are insulted!). To quote IAM: "In December last year the Court of Appeals for the Federal Circuit heard oral arguments in McRO Inc., DBA Planet Blue v Bandai Namco Games America et al, a case that many, particularly in the software industry, hoped would bring some much needed clarity to the issue of subject matter eligibility."

Nonsense. It has nothing to do with clarify, that's just what lobbyists for software patents -- people like David Kappos -- like to say while they simply object to Alice and the Justices at the Supreme Court. Oh, the vanity!

To quote further from IAM: "As with any 101 case, in the McRO suit there’s not only the matter of the law but also of the Federal Circuit’s complicated relationship with the Supreme Court. A string of decisions from SCOTUS, which have reversed the lower court, has helped create much of the uncertainty around patent eligible subject matter. According to former CAFC Chief Judge, Paul Michel, the stark divisions that have clearly arisen between members of the judiciary, might be the reason for the delay in the McRO decision."

"When pro-software patents propaganda Web sites want to undermine the importance/relevance of Alice they typically resort to insulting those who apply Alice (even judges are insulted!)."That's another pattern of FUD we have come across. Proponents of software patents like to scandalise the status quo and pretend there is a fight -- if not actually ignite one -- between different divisions, courts, boards, etc. It's typically a fictitious framing that seeks to discredit the system and shake/destablise Alice, making it seem too "controversial" a decision to refer to/cite as precedent.

These software patents proponents, usually patent law firms that never wrote any software, are actively trying to undermine the US Supreme Court. Shame on them for doing that. Watchtroll, with its big mouth, is attacking PTAB again (it won't stop until they're gone). They're like a gang of hyenas. Writing about PTAB, MIP has two more articles on the latest trends. One is titled "Don’t Estop Me Now" and the latter is a subtle attempt to discredit PTAB by associating it with "patent trolls" (again, total fiction!). Making money by trashing patents granted in error by the USPTO (for quick monetary gains) does not make one a "patent troll" and it has nothing whatsoever to do with the definition of "patent troll". Watch this headline, "Hedge funds and reverse patent trolls" (nothing to do with trolls).

"These software patents proponents, usually patent law firms that never wrote any software, are actively trying to undermine the US Supreme Court."To quote MIP: "A big story last year was the emergence of hedge funds and other entities using the Patent Trial and Appeal Board. While Kyle Bass is seeing his IPRs through to final decision, other entities are acting as reverse patent trolls, a phenomenon that is predicted to gather pace" (again, nothing to do with trolls and probably a good thing that will compel the USPTO to do its job properly).

Patent lawyers and their mouthpieces reject the term "patent troll" (denying such a problem exists, a lot like those denying global warming), but suddenly, when someone kills bad patents, then they adopt the term and call the actors that. How pathetic and self-serving. Fish & Richardson P.C., which represents patent trolls, pretends patent trolling is all just a myth (published almost a decade ago, but revisited now via Patent Buddy, who is a pro-software patents attorney). To quote the author from Fish & Richardson: "A new breed of companies has emerged, and they are being called patent trolls. A patent troll is a person or entity who acquires ownership of a patent without the intention of actually using it to produce a product. Instead, it licenses the technology to an entity that will incorporate the patent into a product, or it sues an entity it believes has already incorporated the technology in a product without permission. The government, corporate America, and the media are fervently acting against these trolls. New proposed legislation, a blizzard of Supreme Court cases involving trolls, and endless newspaper and magazine articles are all trumpeting the same story line: Patent trolls are bad for society and must be stopped."

Well, that is very different from those who use IPRs at PTAB to correct the USPTO's errors (spurious granting of patents). But this kind of distortion of terminology certainly would not bother those with dishonest agenda.

"Put another way, they're protesting against PTAB because to them -- the patent microcosm -- less litigation would be a corporate disaster (litigation is their most expensive product, whether as defendants or plaintiffs)."AIA (Leahy-Smith America Invents Act) gave us PTAB, which demolishes software patents by the thousands, so now it's considered "trolling" to apply quality control to patents and prevent these from going to court? Here is a new Bloomberg piece (titled "Five Years In: The AIA’s Effects on Patent Litigation (Perspective)") in which it's stated upfront that "The authors are IP lawyers at a large law firm." The article is by Daniel Zeilberger, Michael Stramiello, Joseph Palys, and Naveen Modi from Paul Hastings LLP. Their conclusion is as follows: "AIA-created post-grant proceedings are changing the landscape of patent litigation. Complaints and declaratory judgment actions are down. Potential cost savings for accused infringers are huge. And PTAB outcomes historically disfavor patent owners, who have appeared willing to settle a large percentage of disputes. It remains to be seen whether these trends will continue as PTAB practice evolves, guided by an expanding body of caselaw and potential legislative tweaks."

Put another way, they're protesting against PTAB because to them -- the patent microcosm -- less litigation would be a corporate disaster (litigation is their most expensive product, whether as defendants or plaintiffs). They might actually have to find another job -- one in which they produce something other than paperwork for monopoly and litigation. One thing we have noticed is, the authors of pro-software patenting pieces are sometimes choosing to write anonymously. Apparently they're too shamed of their self-serving lies that they want to hide behind pseudonyms or no name/s at all.

Expect more attacks on PTAB (which needs to be defended from them) and expect a lot more attacks on Alice. These attacks typically come from patent bullies, their lobbyists, and their law firms. "A decade of court decisions has shaken the basis of patent law," says this new article, sending across the message that this is terrible news when fewer cases go to court. To quote:

Earlier this summer, the U.S. Supreme Court made it easier for patent holders to seek larger damage awards when their patents are infringed.

For patent watchers, however, the high court’s ruling was only just the latest in a particularly active decade of major patent litigation.

Beginning in 2006, the Supreme Court ruled that holders who license their patents cannot win an injunction to stop third parties from infringing on their patent. That lawsuit, eBay v. MercExchange, L.L.C., changed the way patent lawsuits could be waged, altering incentives along the way.

“eBay substantially changed the world of patent litigation by limiting almost every verdict solely to monetary damages,” Robert W. Morris and Michael R. Jones, attorneys at Eckert Seamans Cherin & Mellott L.L.C., wrote in March.

[...]

“The effect is harshest on individuals and smaller businesses that depend on the value of intellectual property for their livelihoods; these are the same inventors that have, for decades, produced many of our greatest technological advances,” MCM argues.


That last part promotes a myth, unless they speak of patent trolls. Those who benefit the most from the status quo are patent bullies like IBM and the only small entities to also benefit (as a side effect) are trolls, not startups that actually produce things.

"We hope that more people will recognise the problem with software patents and react accordingly."In the area of militarism, arms manufacturers (or war contractors) have taken over the system and became a burden (or a parasite) inside it. The same goes for the area of patent, but the products are patents and lawsuits rather than weapons and wars. We hope that more people will recognise the problem with software patents and react accordingly.

Recent Techrights' Posts

Journalists Should be Ashamed for Parroting False Claims From IBM Management About "Quantum Computing", Say IBM Insiders Who Work on "Quantum Computing"
IBM is a buzzwords vendor. International Buzzwords Machines.
Exposing Corruption Using a Highly Resilient Platform
Growing levels of trust, based on our track record, help us attract whistleblowers
FOMO (Fear Of Missing Out) Has Weakened If Not Ruined What's Left of Big Media
Many things that have existed for decades are now being rebranded as "AI"
SLAPP Censorship - Part 97 Out of 200: Garrett in Hiding (From the Simple Observable Fact He's Closely Connected to the Microsofter Who Strangles Women, Tells Women to Kill Themselves, and Worse)
They use one another; they are coordinating this via the SLAPP industry in another continent
Rust Outsources its Financing (or Financial Control) to Microsoft
How long before the third "E"?
IBM's Shares Fell Nearly 13% in One Day (Including After Hours)
its main product is false promises
European Patent Office (EPO) Series: "Operation Influencer"
Costa's political career was far from finished
GNU/Linux Usage Rising Among Gamers, But "Hardware Survey Data Not Available."
Not anymore, not for now anyway
Quantum Quantum Quantum Quantum (Pump, Then Dump)
What has IBM become?
 
SLAPP Censorship - Part 98 Out of 200: Microsoft Threatening Real Security Researcher With Criminal Investigation for Talking About Microsoft's Bug Doors/Back Doors
The crime should be the back doors (deliberate attack on every user's data protection), not talking about those back doors
Microsoft Would Get Away Even With Pedophilia
"Microsoft should never be above the law"
Free Software is Nourishment to Software Users, Unlike Proprietary Software
Quit treating "mere users" of software "like animals"
The "Peanut Gallery" of GAFAM Has Infiltrated Free Software Projects or Disrupts Free Software Communities
They contribute nearly nothing and do substantial damage; they're freeloaders who attack the most productive members of projects
Coding is Not a Quantity Game (It Never Was!)
"less is more"
Mass Layoffs Expected at Microsoft in July 2026
They're preparing more "lists" of people
Reflection on EPO Leadership That Harbours Cocaine, IBM Leadership That Pumps-and-Dumps the Shares, and More
ManCity replaced Manuel Pellegrini with a more famous manager it didn't envision winning 20 titles in 10 years (it could only hope) [...] Team-building is something that "Pep" seemed to be good at, as was Jürgen Klopp
Pump and Dump by IBM Insider Traders: Nickle LaMoreaux, Gary Cohn, James Kavanaugh, Arvind Krishna, Robert Thomas, and Others
the shares are already collapsing
Links 04/06/2026: Microsoft Threatening Security Researcher for Naming Back Doors in BitLocker, "Demand is Booming for" Old Tech
Links for the day
Gemini Links 04/06/2026: "Word Vomit", Slop", and Moving to Gopher/Gemini
Links for the day
"Format Sovereignty" Can Only be Accomplished With LaTeX or OpenDocument Format (ODF) or Vendor-Neutral Standards for Editable Documents
Microsoft is, in effect, above the law
The Cyber Show on the Importance of Software Freedom and Why GNU/Linux Could Not be Stopped
an excellent article
Drew DeVault Can Still Redeem His Reputation. Revisiting His Attacks (and Attack Site) on Richard Stallman Might be a Good Start.
DeVault has openly apologised (this past spring)
The Register MS is Publishing Paid SPAM; Some of It is Designed to Prop Up the "AI" Pyramid Scheme
The Register MS participates in scams
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 03, 2026
IRC logs for Wednesday, June 03, 2026
Jumping Up and Down on the Shoulders of Giants, Never Talking About What Bill Gates Did
We're back to 2019
Despite LLM Slop or Chatbots, Our Traffic Has Doubled Since We Moved Everything to the UK (in 2023)
The demise of news sites was not what we thought it would be
Software Developers Attacked by Plagiarism Engines Because These Developers Can Teach People How to Exercise Control, Not Outsource to Monopolies of Slop and Back Doors
"Universities should be telling industry what is to be done next, not the other way about. Present education policy has the tail wagging the dog."
Communicating With Freedom - Part I - Developing “Quibble” and Improving GNU LibreJS in the Process
In the next part we shall examine where things currently stand
Quantum Computers Are "All the Rage" (35 Years Ago, What IBM Promises This Year is What People Promised When the CEO Was in His 20s)
"Quantum" hype is high on the agenda
How IBM Removes 15% of Its Staff Without Even Checking Performance of Staff (or Calling That "Layoffs")
Performance Improvement Plan (PIP) as veiled RAs
Links 03/06/2026: Mobile Systems, Openwashing, and New Antenna
Links for the day
Canonical as Reseller of Back Doors in "Ubuntu" Clothing
Microsoft is the antithesis of security and autonomy
Romania Used to be Windows Stronghold, But That's No Longer the Case
Windows was once upon a time so ubiquitous that institutions didn't bother supporting anything except it
KDE Has Long Used Dragons, and Dragons Come From Hatched Eggs
That Microsoft Lunduke tries to paint this as some "trans agenda" thing says a lot about Microsoft Lunduke and his COVID-19-damaged brain
IBM Announces 5 Billion Dollars "Invested" in "AI", in "Security", and 10 Billion Dollars for "Quantum", But IBM Does Not Have This Kind of Money (It's Fake News to Manipulate the Share Price)
IBM has fast-growing debt and liabilities, it does not intend to invest this kind of money, it's a smokescreen and false promises timed to alleviate the sagging share price (52-week low)
When Science and Religion Are on the Same Side, United Against Slop Pushers
The "Mathematics Pope" (sometimes known as "Pope Pi") brought together science and religion, united against technofascists who are mostly college drop-outs who abhor women
Links 03/06/2026: "In Turkey, Criticizing a Corporation Can Land You in Jail" and "Court Bans X Account of Turkey's Oldest Newspaper"
Links for the day
Web Censorship Benefits the Corrupt and the Criminal
More so when corrupt politicians are in charge
Have a "Lifetime" Without Microsoft
The online rage over this is still ongoing
Internet Archive’s Wayback Machine Undoing Censorship of Corporate Wrongdoing
That won't go away anymore
"For Entertainment Purposes Only" But Everyone Must Adopt It for Work and Governance, Say Anti-Scientific Technocrats
"The present mentality around "AI" is like driving to the gym to use a treadmill - it's walking for people who hate fresh air and beautiful changing scenery."
Gemini Links 03/06/2026: Ian Murdock's Ex-wife Footprint in Debian and Alhena 5.6.1 Released
Links for the day
Irish Company statCounter Recognises It Overestimated Microsoft Windows' Market Share in Ireland
it seems like the Irish people are gradually moving away from Windows
Corporate Media Participates in the Lie That Mass Layoffs at GitLab and Loss of Geographic Footprint in More Than a Third of Countries is "AI" and Thus "Success Story"
There's no way to spin this as positive news
Slop Prompting is Not a Coding Skill and Slop Deserves Shunning
Red Hat is hypocritically shunning the very same thing it keeps promoting
IBM colleagues "handed out a PIP and then right after the end date they are gone"
Some go into early 'retirement' to save face
SLAPP Censorship - Part 96 Out of 200: When You Receive Death Threats From Anonymous Sockpuppets/Burner Accounts Connected to People Who Strangle Women and Tell Women to Kill Themselves
Women are not objects and my wife ought not be mentioned in "threats to kill" (how cops have described this)
European Patent Office (EPO) Series: A Tale of Two Antónios - Introducing the Other António
António Costa
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 02, 2026
IRC logs for Tuesday, June 02, 2026
Advertisements as Articles in The Register MS
Trust in media
Social Control Media Does Not Improve Reach, It Wastes a Lot of Time
many people still think that no presence in Social Control Media necessarily means invisibility
Links 02/06/2026: New York Times Debunks "Hey Hi (AI) Layoffs" (Excuse, False Narrative), Sheinbaum Publicly Bemoans US Meddling
Links for the day
Despite Mass Layoffs and Culls Dubbed "Buyouts" Google's Debt Doubled in a Year and It's Desperate for Money (to Pay Salaries and Bills)
Google and GAFAM in general have mass layoffs because they have no clear route towards profitability
Gemini Links 02/06/2026: Arch Linux WriterDeck and Papyrix Reader
Links for the day
Bloggers Still Have Considerable Impact on This Planet
Nowadays, in academia almost anywhere in the world, there's growing expectation that lecturers will spend not much of the time doing research or even teaching
The Firing Line Against Techrights
Tomorrow we'll tell a story about campaigns to intimidate us with death threats
The Cyber Show on the Fight Against Technofascism
It's very long (all combined), but nevertheless refreshing
What Efforts to Cancel Richard Stallman Ought to Teach Us About the Media, Including Very Large British Publishers
Richard Stallman is like a modern-age Alfred Dreyfus
After Threats to Greenland Northern Europe Seems to be Moving Away From Microsoft Windows Even Faster
The facts on the ground are, more people/businesses/institutions "get the message"
Claim of 500+ IBM Red Hat Layoffs With Termination Next Month
IBM is doing great... at hiding internal affairs
Slop Did Not Rewire Democracy, It's a Giant Flop
we already see slop giants accepting they'll never make money
The Register MS Embeds in Articles "SPONSORED LINKS" That Link to "AI" Ponzi Scheme/Scam
The circular financing giants are allocating budget for the spam, as do the banks (lenders)
Many Countries Divest From Microsoft
new numbers at statCounter today
European Patent Office (EPO) Series: A Tale of Two Antónios - On the Campaign Trail in Brussels
Part 1
SEO is an Acronym That Stands for Slop Engine Orientation
The Web changed a lot when Web directories, portals, and then social control media gained popularity
IRC Network OFTC is Shedding Off Servers
Down to 17
Julian Assange's Counsel Jennifer Robinson Has Just Won an Award
Jennifer Robinson is relatively young
Schweizerische Bundesbahnen (Swiss Federal Railways) and Richard Stallman
It seems like RMS is receiving endorsement or at least belated recognition from very high-profile institutions
Almost 30 Years After Rob Malda Made Slashdot It Still Inspires New Implementations
Maybe the issue isn't Slash per se, just the complexity of it (which SoylentNews complained about in the past)
Links 02/06/2026: "The Infosec Phrasebook", 'Perfect Randomness' and "Leaving the Tech World Professionally"
Links for the day
Faking Demand for Slop: Google's Search Prompt Becomes Slop Prompt (Bait, Switch, Fake Usage)
If there is no consent, then it's unsustainable
When You Give People (or Companies) Money to Buy Your Own Products and Then Call It "Revenue"
A lot of modern "economics" don't benefit ordinary people (all they get is high inflation rates); they're devaluing money by faking economic activity
IBM is Self-Detonating, the Cheeto-Infused Rally is Another Con by Don
pump and dump
"Quantum" as the "Next Big" Bubble
disappointing and delivering nothing
Links 02/06/2026: "$1.5 Trillion Defense Budget Benefits Billionaire Cheeto Mussolini Supporters", US "Plans to Criminalize Sleeping Outside"
Links for the day
Gemini Links 02/06/2026: Organising Oneself and Killing Off Distracting "Notifications"
Links for the day
SLAPP Censorship - Part 95 Out of 200: The Growing Risk of Tolerating Men Who Abuse and Physically Assault Women
FOSS should not be a "safe harbour" or "hideout" for criminals
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 01, 2026
IRC logs for Monday, June 01, 2026