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

When Some Footage Causes Your 'Company' to Lose Almost Half a Trillion Dollars in 'Value' in a Few Minutes Your Company is Fictionally Valued
stock slips 8% because the CEO cheats on the wife
Intercontinental Brigading - Part XXXXV - The Brand (and Reputation)
"Russell Brand sentenced to 10 years and six months for rape and sexual assault"
Links 09/11/2026: Nvidia CEO Jensen Huang Cheats on Wife With A Suspected Chinese Spy, "400,000 Russians Killed in Battle Since 2022 Invasion"
Links for the day
Digitalisation Is Not Inevitable or Unavoidable
Nor inescapable
Intercontinental Brigading - Part XXXXIV - Why the Swatting Failed
After that we only ever heard from or spoke to cops when we invited them to our home to collect evidence
 
IBM: From Illegal NDAs to Illegal Secret Settlements (Money in Exchange for Promise Not to Sue)
Insiders also explain why RAs may come weeks from now [...] IBM has marked 40,000 workers it wishes to get rid of
Links 09/11/2026: 'Humanitarian' Putin Knocks 600,000 Civilians Off the Grid, Eminem’s Publisher Sues Suno
Links for the day
Like Crooked Politicians, The Register MS is Selling "Dinners" (Access, Sponsors)
Talk about "hey hi".
The Register MS is Not Objective Regarding "AI", It's Paid by Pushers of the Pyramid Scheme (including Nvidia)
Some time soon we'll name some companies that pay millions to The Register MS in order to cement their role in the house of cards (while it lasts)
GAFAM Moribund
A lot of what we say about Microsoft in respect to debt is equally applicable to the rest of GAFAM
NVIDIA as a Scam Company Run by Scammers Who Fake Demand for Their Waste of Energy (Subsidising GPU Sales for Use Cases That Don't Exist)
First they targeted gamers, then fake 'currencies' (which turned out to be a bust), now it's slop (obfuscation of plagiarism using brute force and fusion) [...] We're quite glad that Huang publicly broadcasts how untrustworthy he is
Zero Tolerance for Slop
very few sites that dabbled in slop ended up well off (for it)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, November 08, 2026
IRC logs for Sunday, November 08, 2026
Gemini Links 09/11/2026: "The Blue Wave Won't Save Us" and "Discoverability Is Only Solved If You Can Be Discovered"
Links for the day
IBM 'Robbery': No More Car Allowance in the UK, Severance Shredded, CEO Pay Up 51% in One Year While Thousands Laid Off in Secret
Why does a CEO reward himself so much when the company does so badly?
Gemini Links 08/11/2026: "Back", Zot, and Information Overload
Links for the day
“Concerned Microsoft Workers” Say “Working at Microsoft Has Become Joyless and Demoralizing.” (That's What Microsoft Wants, More Will Leave That Way)
Many Microsoft employees are going to leave
The Register MS is Losing Hundreds of Thousands of Pounds a Year While Directors Pay Themselves Hundreds of Thousands of Pounds a Year in Dividends
they take money from slop pushers and have clearly compromised some journalistic standards in the process
GNU/Linux Measured at 7.4% in the UK This Weekend: Clownflare Radar
I hope that one day GNU/Linux will be everywhere here
Never a One-Person Project
Just because I'm the main "public face" of the site (who takes all the insults and SLAPPs) doesn't mean I deserve all the credit
“I Always Expect to Lose. I Fight Anyway, and Sometimes I Win.” — Richard Stallman
To change the world meaningfully people must think big
Stop Looking for News About "Layoffs", Layoffs Are Over (They've Been Rebranded)
To properly assess the status quo we need other yardsticks
Links 08/11/2026: Bosses Who Were Forcing Their Workers to Use Slop Change Mind, "Rapper RBX Files Ninth Circuit Appeal in Fraud-Focused Class Action Lawsuit Against Spotify"
Links for the day
Links 08/11/2026: Why Vikings Stayed in Iceland and "TikTok Accused Of Promoting Sex Industry To Young Girls"
Links for the day
Gemini Links 08/11/2026: "Before Sunrise" and LLM Scrapers Versus Self-Hosting (or Web in General)
Links for the day
Intercontinental Brigading - Part XXXXIII - Weaponising Cops in Another Continent (Europe), Knowing They Cannot Come to Your Home in America, While Threatening Women
This year it culminated in death threats
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, November 07, 2026
IRC logs for Saturday, November 07, 2026
The Decade Ahead, a Decade of Suppressed Stories
Our stories aren't discouraged or considered taboo because of racism or "toxic politics" or anything like that; they just hurt powerful people and corporations
Solicitors Regulation Authority (SRA) Inaction and Incompetence - Part V - "Reports Closed Without the Evidence Being Examined."
Totally what the SRA did regarding Brett Wilson LLP
Gemini Links 07/11/2026: Illusion Garden and Lagrange 2
Links for the day
Complexity is the Tyrant's Friend
Slop is for feeble minds and cheaters
IBM Firings (or Silent Layoffs) After Bluewashing; "IBM’s Employment History is More Troubling Than its Patriotic Marketing Suggests"
"It has zip to do with race but everything to do with the greed of the 1% who have been doing all they can to destroy the middle class..."
“Week van de Werkstress” and Work-Related Stress at the EPO, Where Staff is Bullied Into Granting Illegal Patents for Foreign Monopolists
"poor working environments, including discrimination and inequality, excessive workloads, low job control and job insecurity pose a risk to mental health"
Czech Republic: GNU/Linux Rises Above 5% in Desktops and Laptops
A year ago it was somewhere around 4%
EPO's Local Staff Committee The Hague Says Almost or About a Third of Staff Assembled to Organise at "a Time of Continued Social Unrest"
They speak of "circa 850 staff members in attendance" (in The Netherlands there are about a couple thousand)
Suggestions That XBox Will be Offloaded by Microsoft, Rather Than Shut Down, Make the False Assumption XBox is Profitable (It's Not, It's a Liability)
Microsoft has serious financial troubles
Which "Smart" "Phone", Which "Social" "Media", and Which "Cloud" "Storage"?
Let's take back control of the language
State of the (Linux) Slop, Late 2026 Edition
Google News (Gulag Noise) is a plagiarism booster
Year 21
It's 5PM here
Links 07/11/2026: "Flock Cameras Got Eviscerated by the Midterms" and Joshua Wong Shows China is Highly Repressive and Fully Controls Hong Kong
Links for the day
At The Register MS the Net Liabilities Doubled in One Year, Tangible Assets Down About 35% in One Year
signed off in 2026
Intercontinental Brigading - Part XXXXII - Running One's Mouth
British Police told me "making a false complaint to police is a crime" in relation to Lozza
Another 20 Years of Exposing Corruption
We'll focus on carrying on what we do
EPO Budget and Finance Committee (in Very Recent Meeting) Increases Bribes to People Who Vote on Campinos Reappointment ("Cooperation Activities")
Buying 'elections' to protect the cocaine-stained regime in Europe's second-largest institution
Links 07/11/2026: London's SLAPP Industry Now Targets Kirkenes (Northern Norway) at the Behest of Corrupt Thieves in Russia and Microsoft’s 'Buyout' Offer Crashes Microsoft Systems
Links for the day
Links 07/11/2026: "The Moon is Waning Crescent", Homeworlds, and "Can't Handle The AVIF!"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, November 06, 2026
IRC logs for Friday, November 06, 2026