Bonum Certa Men Certa

The Fall of Software Patents Continues, But Should Not be Taken for Granted

Summary: A roundup of news about software patents in the face of aggressive lobbying from patent law firms that depend on them

THE STATUS of software patents in the US is very iffy right now. If software patent/s cases are revisited and rulings are appealed a sufficient number of times to reach CAFC (sometimes even SCOTUS), they simply won't survive. It makes one wonder if patents on software only exist on paper (but not in practice) in the United States and whether it's worth suing anyone using software patents anymore.



The case of Amdocs v Openet received a lot of attention recently. Patent law firms used it to pretend to themselves (or to clients) that CAFC was softening its stance on software patents, but that's just wishful thinking -- the kind of thinking (or optimism) now embraced by Fish & Richardson PC, a frequent litigator that we covered here a great deal in the past.

"It makes one wonder if patents on software only exist on paper (but not in practice) in the United States and whether it's worth suing anyone using software patents anymore."Prof. Crouch recently counted citations of Mayo and Alice (the SCOTUS-level cases) and found that these go through the roof, typically invaliding bad patents by means of precedence. The graphs can be seen in this post. So, if anything, the impact of Alice is growing. It's possible that only patents with very high certainty of validity would be asserted at this stage; this in effect can tilt the statistics and distract somewhat from the overall trend. What proportion of patents on software would the CAFC deem valid if it had to reassess each and every one of them (there are hundreds of thousands of them, so this is infeasible)?

A very recent article by Grant Langton and Joseph Teleoglou from Snell & Wilmer has a loaded headline: "Software Patents – Not a Waste of Money After All?"

Actually, they are a waste of money, assuming they are abstract and have no merit for a grant (the USPTO would probably grant these anyway because it's greedy and impatient, unlike the courts). To quote Langton's and Teleoglou's shameless self-promotion: "Since the Supreme Court ruling in Alice Corp. v. CLS Bank International, that a specific software algorithm was ineligible for patent protection, rumors abound that all software-related inventions are unpatentable. Although the Alice decision made it more difficult to obtain software patents, clever patent attorneys continued to find ways to secure software patents for their clients. Recently, the Federal Circuit Court of Appeals (Federal Circuit) made their job easier by issuing software-friendly rulings in at least three cases."

"What proportion of patents on software would the CAFC deem valid if it had to reassess each and every one of them (there are hundreds of thousands of them, so this is infeasible)?"Well, maybe they find tricks or loopholes for tricking the examiners, but what happens if these patents reach CAFC? Less than a handful of such cases this year were ruled in favour of the patent/s -- a fact that patent law firms would rather we overlook.

We were somewhat amused to see this pro-software patents attorney reaching out to an old case by writing: "How a TB Diagnostic Test Patent Survived a 101/Alice/Mayo Challenge: http://www.newenglandipblog.com/files/2016/10/75-2016-08-31-Report-and-Recommendation.pdf …"

It's a PDF that is rather old by now (August) and there is also this new tweet about a decision from July (CAFC). To quote: "Online Merchandise Customization Methods Were Not Patentable--Affm'd by the CAFC w/Rule 36: http://www.chicagoiplitigation.com/2016/07/online-merchandise-customization-methods-were-not-patentable/ …"

Could he not find any recent or new cases with which to bolster such a narrative? Surely not because, as Watchtroll recently put it, more people landed on a moon than patents on software accepted by CAFC (or something along these lines). The latest articles from Watchtroll are still head-scratching nonsense about CAFC (how to bamboozle judges into thinking that software patents are not abstract). Separately, Watchtroll asserts that Trump will give the upper hand to patent maximalists, but there is no evidence to support that with. For all we know, it can take years before anything changes at all. There is political turmoil in the US right now and patent policy is hardly on the agenda at all. It's nowhere as urgent as Constitutional matters.

"There is political turmoil in the US right now and patent policy is hardly on the agenda at all."Not only are patents on software fading away these days; patent litigation is, in general, going down. Here is an article with a misleading headline from Michael Loney. The headline should say something like "October patent litigation down for 4th year in a row" (based on the data), but instead it says "US patent litigation picks up in October" (as if it's reasonable to compare different months of the year). To quote Mr. Loney, "October district court patent case filing was above average for the year, but 2016 is still greatly down on recent years. The entity filing the most cases in the month was a new entity suing broadcasters and publishers, with the EFF already labelling its patent the “Stupid Patent of the Month”..."

Prof. Crouch's Web site, in the mean time, shows how the growing number of low-quality patent applications affected pendency.

Both data points (Mr. Loney's and Prof. Crouch's) serve to reinforce our belief that litigation falls as a function of software patents going away, which is correlated also to the number of troll cases/litigation (they typically use software patents).

Not only the courts are shooting down software patents in their country of origin/birth. PTAB does this too and based on this report, as expected, PTAB is being increasingly influenced by the vultures, the PTAB Bar Association (patent law firms). As MIP put it: "The PTAB Bar Association was announced on September 16 – the five-year anniversary of the America Invents Act. It was founded by more than 45 law firms with the mission "to promote the highest professional and ethical standards among lawyers and stakeholders who appear before the PTAB". The association, which is incorporated in Virginia and based in Washington DC, will provide a forum for communications between the legal community and PTAB officials and administrative patent judges. The association noted it wants to "particularly share best practices and stay abreast of the rule making, procedure and jurisprudence emanating from the PTAB.""

"Lobbyists and bullies like Watchtroll keep shaming judges and boards, PTAB itself is being infiltrated and vilified by them, and just about every dirty trick in the book is attempted these days in a desperate last effort to Make Software Patents Great Again."Think of the PTAB Bar Association as an annoying bunch of lobbyists -- people who represent the interests of patent maximalists such as law firms, not scientists like those who work at PTAB. We worry that the growing and escalating veracity of attacks on PTAB's legitimacy can eventually ruin it. Attempts to undermine PTAB have already been brought before the court (CAFC), but fortunately these are failing yet again. Prof. Crouch's blog has put it like this: "Today, the Federal Circuit denied SAS’s en banc request challenging the USPTO’s approach to partial-institution of inter partes review petitions. In a substantial number of cases, the PTO only partially agrees with the IPR petition and thus grants a trial on only some of the challenged claims. In the present case, for instance, SAS’s IPR Petition challenged all of the claims (1-16) found in ComplementSoft’s Patent No. 7,110,936, but the Director (via the Board) instituted review only on claims 1 and 3-10. [...] In what appears to be a 10-1 decision, the Federal Circuit has denied SAS’s petition for en banc review. Although the majority offered no opinion, Judge Newman did offer her dissent (as she did in the original panel decision)."

We oughtn't take the death of software patents for granted. Lobbyists and bullies like Watchtroll keep shaming judges and boards, PTAB itself is being infiltrated and vilified by them, and just about every dirty trick in the book is attempted these days in a desperate last effort to Make Software Patents Great Again.

Recent Techrights' Posts

[Video] Richard Stallman's Talk in Sweden, Attended by Nearly 700 People, is Now Online
The Web page is in Swedish, but the talk is in English
Coping With the Site Going More Mainstream
Fame is no laughing matter
 
Why Microsoft Became the Layoffs Leader
The corporate media is projecting or signalling its own dishonesty when it tells us that Microsoft is a very "valuable" company while the data shows Microsoft is also a "market leader" in layoffs
Speaking for Ourselves and Letting the Facts Speak for Themselves
we've already published over 50,000 pages
For Second Time in a Day The Register MS Takes Money From Private Companies to Sell a Ponzi Scheme
Do not have empathy for those who have zero empathy towards you
IBM is Misleading IBM Shareholders
IBM is still all about vapourware and buzzwords
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 24, 2025
IRC logs for Friday, October 24, 2025
The Serial Slopper Starts Up - or Restarts - His Plagiarism Machine (LLMs)
Serial Sloppers like these don't belong in news sites. That's why he got sacked by BetaNews.
Links 24/10/2025: Esperanto Music History, Anxiety, and New Portals
Links for the day
Slopwatch: LinuxSecurity.com, Linux Journal, and Pet Slopfarms of Google News
Why does Google News still advance these fake sites to the top of search results?
Links 24/10/2025: Inequality Grows, Billion-Dollar Scam Center Industry
Links for the day
Links 24/10/2025: "Independent Media in Cambodia is Collapsing" and Serious F5 Breach
Links for the day
They Never 'Put Down' Corporations
There are "pests" that are traded in Wall Street
21 Pages in Less Than 7 Hours is No Joking Matter
We've become a lot more effective and efficient
Correct Information is a Valued Asset in the Age of Slopfarms and Public Relations (PR) or Spin
Publishing suppressed facts is never easy
The Register MS Continues to Bag Money to Promote a Ponzi Scheme, Even Money From China
Today in the front page
analytics.usa.gov: The Only Supported Version of Windows (This Past Week) is Only Used by About 13.9% of People in the US, the Home Base of Windows
Even Vista 7 is still used more
Rust is Very Secure
If only Rust itself is secure
Who Will be Held Accountable for Breaking Ubuntu by Imposing Rust on Otherwise-Functional Programs, in Effect Replacing GNU With Proprietary Microsoft (GitHub)?
they're practical people who merely point out that a bunch of buffoons not only ruin Ubuntu but also every future distro based on Ubuntu
Generation Chaff - Phase VIII: In Summary
Like "Science" with a capital "S", what we see here commercial interests usurping everything
Generation Chaff - Phase VII: Curtailing Alternative Media
There was always an obligation - a collective duty of sorts - to uphold independent journalism
Generation Chaff - Phase VI: Centralisation of Information (X, Cheetok/Fentanylware)
Would you trust information when controlled by such people?
Generation Chaff - Phase V: Censorship of Dissent (Painted as Harassment or Terrorism)
Censorship is all around us now
Generation Chaff - Phase IV: Apps Only Few Companies Decide On
Tools are being collectively confiscated, under the premise or false prospect of "security"
Generation Chaff - Phase III: Slop and Plagiarism
A lot of the current so-called 'economy' is built upon false valuations
Generation Chaff - Phase II: "Cloud", Blockchains and Other Hype
For those of us who turned down those propositions there was a struggle; we needed to justify not having skinnerboxes or "social" accounts in some site run by a private company
Generation Chaff - Phase I: Social Control Media
IRC predates the Web
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 23, 2025
IRC logs for Thursday, October 23, 2025
More Clues Shed on Collapse of Microsoft XBox
XBox is basically circling down the drain as Microsoft implements 2-3 waves of layoffs each month
'Vibe Coding' Doesn't Work
In a lot of ways, so-called 'Vibe Coding' is already considered vapourware or a passing fad promoted in the media by managers who try to justify mass layoffs, especially ridding companies of "very expensive" software engineers
Links 24/10/2025: Microsoft's Killing of XBox Connected to Revenue/Profit Problems, "How Elon Musk Ruined Twitter"
Links for the day
Gemini Links 24/10/2025: 86,400 Seconds and "Society's Task"
Links for the day
Slopwatch: Google News and Slopfarms That Relay Nonsense From LLMs
Google News, which once prioritised or used to care about provenance and quality, is feeding slopfarms
Links 23/10/2025: More Health Concerns Over Dumb Chatbots (LLMs) and "Talking Cars" as Latest Buzz
Links for the day
Gemini Links 23/10/2025: Daylight Savings Time and Duration Shorthand
Links for the day
Links 23/10/2025: LLM 'Hallucinations' (Defects) in Practical Code 'Generation', China Becomes More Economically and Technologically Independent
Links for the day
Why We Support Richard Stallman and You Probably Should Too
It's not about being "Richard Stallman fan", it is about maintaining the right to hold positions (on technology) like his
Linux Foundation Uses LLM Slop to Promote Microsoft in Linux.com (Again), Rendering It a Linux-Hostile Slopfarm
Openwashing with slop by "Linux.com Editorial Staff", which basically seems to be a bot
Some Large German Media Covers Richard Stallman's Talks in Germany Earlier This Week
LLM-based chatbots are just "bullshit generators" (as he has long called them)
Links 23/10/2025: Windows TCO Galore and "The Internet Is Going to Break Again"
Links for the day
Trouble in Red Hat/IBM and a Retreat to Ponzi Economics in Search of Wall Street Market Heist
Would you invest your life savings in this kind of crap?
Who Asked Software in the Public Interest (SPI) for a Refund? ($100,000, Resulting in Losses of $267,201 in 12 Months, Highest-Ever Losses)
The IRS does not reveal who or what's tied to this refund (or the cause/reason)
Social engineering attack: Debian voted to trick you on binary blobs
Reprinted with permission from Daniel Pocock
Techrights Will Always Stand for Women's Rights
We even invest money - personal savings that it - in our principles
Certified Lawyers Should Know Better (Than to Intimidate Us With Man Who Drives on Motorcycle Through a Really Bad Storm Between Distant Cities, Then Collects Photos of Our Home)
Mentioning someone was in prison for bad things isn't a crime, it's a public service
The "AI" (Slop) Bubble is Already Imploding
"ChatGPT Usage Has Peaked and Is Now Declining, New Data Finds"
The So-called "Sexy" Buckets (AI, Quantum) Cannot Save IBM From Reality, Shares Tank
"No matter how much financial hocus-pocus they use to reclassify revenues to land in the "sexy" buckets (AI, Quantum), it still smells old and musty - just like this company."
Paul Krugman is Wrong About the Scope of Mass Layoffs in the United States
A few years ago society was accelerating its journey towards feudalism, boosted by COVID-19
Links 23/10/2025: Proprietary Blunders and CISA's Latest Disclosure of Holes
Links for the day
Gemini Links 23/10/2025: Fast Past (F1), 99.9% Uptime
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 22, 2025
IRC logs for Wednesday, October 22, 2025