Bonum Certa Men Certa

Software Patents Are Dying, But 'Cloudwashing' of Patents Lets Some Slip in and Marks & Clerk Offers Bad Advice

Marks & Clerk



Summary: In spite of the gradual death of software patents, those who profit from them maintain the illusion that everything is alright, IBM hoard them and attacks with them, law firms mislead small and vulnerable businesses to entice them into these worthless 'assets'

A LOT of time has passed since we last covered the USPTO, but it doesn't mean that it's all good news. The other day, for example, we warned that a terrible person, Randall Rader, wants to become the Director of the USPTO (still a self-serving hopeful, in spite of the widely-covered scandals) and software patents, which have been stubbornly pushed forward by Mr. Rader, are now dying, more so -- or a lot faster -- since he got the boot (or resigned in disgrace from CAFC).

What's Up is Down?



On a couple of occasions in recent days the article "Software Patents Get Struck Down After Alice" got bumped up. To quote one copy of this new article:

Many software-oriented patents are being struck down as a result of Alice and Section 101. Some people say this leaves legal departments with more budgets to sue competitors more than they have in the past.


This is bizarre 'logic' and facts do not support it. First of all, the demise of software patents has led to far fewer lawsuits, as has been repeatedly proven by several different data sources (we covered these). Secondly, if your existing patents (never mind new ones that are harder to be granted) are less potent, what is the point or motivation for suing?

One large firm that continues to be aggressive with software patents is IBM. It not only applies for a lot of patents but it also attacks with them (by "attack" we mean suing small rivals that can barely defend themselves, unlike the patent microcosm which describes invalidation of bogus patents as an "attack" -- inverting the narrative).

"Cloudwashing"



As we noted here a month ago, IBM is now cloudwashing all sorts of dubious patents (trying to pass them off as novel using buzzwords like "cloud" -- a word which in itself does not make them eligible). IBM is basically a thug company; it's a company that collects these (hoarding) for the purpose of litigation and shakedown in bulk (Microsoft does the same thing and targets vulnerable companies like TomTom amid deep financial issues). IAM, which fancies litigation and bullying (proudly so), called it "Big Blue’s new groove" in its latest issue, but we just call it anything but "groove" or groovy. It's despicable and it makes IBM look fiendish.

Citing the Gartner Group (a dubious firm), the following new article mentions patent trolls but calls them "NPEs", just as it cloudwashes software patents. Have a look:

Cloud Computing: Software Patent Claims and the Risks to Service Availability



[...]

As the public cloud services market continues to mature and grow – up from $178bn in 2015 to $209bn in 2016 according to research company Gartner[1] – the concentration of computing resources into cloud data centres is increasingly attracting the attention of NPEs as a target for patent litigation. At a time when data security and privacy risks are front of mind for cloud service providers (CSPs) and their users, the intellectual property (IP) risks to cloud service availability posed by NPE patent claims are rising up the business agenda.

NPEs (Non-Practising Entities) are businesses that assert patents through litigation to achieve revenues from alleged infringers without practising or commercialising the technology covered by the patents they hold. NPEs are uniquely well placed to monetise their patents at each stage of the litigation cycle. They have access to capital and all necessary forensic and legal resources; and an NPE doesn’t practise its patents so is immune to a counterclaim that a defendant might otherwise be able to bring against a competitor, or a cross-licence that the defendant could otherwise offer.


The term "cloud" is meaningless rubbish that alludes to particular server arrangements. It's not a growing market; not necessarily; it's just an exercise in rebranding and liars for hire (Gartner) exploit this kind of nonsense to make their false predictions a self-fulfilling prophecy (by merely redefining what "cloud" means as they go along). The second part alludes to "cross-licence"; this is what IBM is trying to accomplish, with a money flow going into IBM's coffers without them lifting a finger. One might therefore start to describe IBM as somewhat of a large patent troll, akin in fact to Microsoft's (more on that in a separate post, scheduled for later today).

Insulting the Intelligence of SMEs



It is troubling to see that IBM's patent aggression is making a comeback (it's not entirely new) and it's saddening to see that using all sorts of buzzwords attorneys and their clients are hoping to receive new software patents. Marks & Clerk, a proponent of software patents (obviously, as they profit from it!), recently said that the EPO now makes it easier to get software patents (than at the USPTO). The other day the firm advised small companies to pursue patents and it alluded even to software patents. To quote the relevant part (with our remarks in square brackets]: "An invention doesn’t even need to be a product to be considered patentable [in other words, a troll too can pursue patents]. Many people think that software is unpatentable. That is incorrect [depends where]. If software achieves a technical effect and is new and inventive, it is patentable. The most famous example of a software patent is the patent that covers Google’s “Page Rank” algorithm (i.e. the algorithm which powers Google’s search engine and which transformed the company into a tech unicorn) [but that's an old patent predating Alice]. You or your business might have developed exciting software which does something that no one else has thought of. A patent might be just what’s needed to convince investors that your concept is the “next big thing” or alternatively provide you with an asset that can be sold or licenced for additional revenue [or waste of money, paid to lawyers at Marks & Clerk who cannot even win a case over software patents]."

That's putting aside the fact that a small (practicing) firm's chances of successfully suing a giant like IBM are slim, unless getting sued by IBM (in retaliation) is something it thinks it can afford.

Recent Techrights' Posts

Hopefully Slopwatch is Dying
Some of the offending sites we used to keep abreast of descended into a lull
 
Gemini Links 07/12/2025: "Lazy Saturday" and Kubernetes With FreeBSD
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, December 06, 2025
IRC logs for Saturday, December 06, 2025
Links 06/12/2025: Science, Hardware, and Slop Fatigue
Links for the day
Contact Your National Representatives (Delegates) at the EPO, Here Are All the E-mail Addresses
We'll say more about this next week
Links 06/12/2025: Panic in the Slop (Chatbots) Industry and Perplexity Sued by New York Times for Plagiarising Articles Under Guise of "AI"
Links for the day
European Patent Office Issues: Points to Raise or Factoids to Share With Delegates of the EPO's Administrative Council
use their native language/tongue
European Readers, Get Ready to Contact Your National Representatives (Delegates) in the EPO's Administrative Council
Perfect timing might be Sunday or Monday
Why We'll Continue Our IBM/Red Hat Focus in 2026
There will be many more departures not only later this month but also next month
Links 06/12/2025: Slop's "Jeopardy Phenomenon" and RAM Shortage
Links for the day
Gemini Links 06/12/2025: Memories, "Sweetness and Burn", and Hope
Links for the day
Every Site That Uses Clownflare Had Worse Downtime/Uptime Record Than Ours
And the same goes for Azure and AWS
Software Freedom Conservancy (SFC) Does Not Work for Freedom, It Works to Secure the Massive Salary of Its President And Executive Director
We must be very effective then
Why (and When) I Become an 'Activist' Against Corruption and Abuse
The dictatorship bans criticism of the dictatorship. That's when there's a deadlock.
EPO Call for Action: Get Ready to Contact Your National Delegates, We Need to Remind Them That They Represent People
Today or tomorrow we'll publish contact details for national representatives in nearly 50 European nations
Links 05/12/2025: More Restrictions on Social Control Media and Slop, "Hype Can Turn to Backlash"
Links for the day
Like With Red Hat and Other IBM Acquisitions, the RAs (Layoffs) Seem to Already Extend to HashiCorp
Of course it is possible that HashiCorp staff just got PIP'ed or saw the writings on the wall and left [...] IBM is just a dying giant
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, December 05, 2025
IRC logs for Friday, December 05, 2025
Massachusetts Institute of Theft (MIT) Nowadays in the Business of Selling SPAM to Prop Up Fashionable Pyramid Schemes
There is nothing benign about it, more so when they misuse the MIT brand to lend credibility to elaborate schemes or scams
Many IBM Departures Today (Last Friday)
Way to go, IBM leadership
The Administrative Council of the European Patent Organisation Has More Reasons Than Cocainegate to Vote for Real Change in the European Patent Office
This is about democracy and accountability in Europe
Gemini Links 05/12/2025: Need for Simpler Systems, Molecular Dynamics, and More
Links for the day
Slopwatch: Not Much Today, Same as in Recent Weeks
Google News got 'conned' (maybe willingly) by one operator of several (at least 3) slopfarms that trash "Linux"
On IBM: "More Layoffs in Minnesota Are Coming" (Unverified Hearsay, for Now)
IBM is having loads of layoffs before the holidays
Links 05/12/2025: Openwashing by Microsoft's 'Open Source' Initiative, Unauthorised War Without Boundaries/Borders Waged by US
Links for the day
Finnish Politician Aura Salla Says Finland Must Dump Microsoft, Citing Security and Control Reasons, Not Costs
She says Finland should quit using Microsoft
Does This Pass the NDA "Sniff Test" at IBM?
In many companies, those who suck up to management get ahead
Links 05/12/2025: Slop Harming Democracy/Elections, More Bans Around the World on Kids' Use of Social Control Media
Links for the day
IBM Has No Layoffs, According to IBM, and According to the Media Parroting IBM
Another day of parrots (losers) who call themselves "journalists"
IBM Will Make You Unemployed On Christmas Eve
lists of people to cull
Within Weeks, Clownflare Has Collapsed Again, Time to Dump Clownflare
It's run by amateurs who, even if you maintain your site perfectly well, will render it inaccessible without prior notice
Cars Getting Worse and More Lethal
Who will be held accountable?
To "Take Back Control" Start With Actions Against 'Tech' (Mass Surveillance, Mass Censorship, Mass Control) Monopolies
collusion, price-fixing, a "cartel" of sorts
Beyond the Hype: Almost Nobody Uses Chatbots, Not Even 1% of Activity Online
3 years ago when Scam Altman (Microsoft) acted as if Google (search) was doomed a lot of the press got paid to pretend this was true
Rumour That Another IBM Round of Mass Layoffs (RAs) in Preparation Before the Current One is Even Completed
IBM still has strong brand recognition (because of its age and past might), but that won't last forever
Techrights Publication Pace to Increase Next Year
one is encouraged to stay indoors
Upgrading the Site
Debugging might be needed, so feedback helps
Why Microsoft is Panicking
Keep advocating (or "marketing") GNU/Linux to Vista 10 (or Vista 7) users... there are still over a billion of them "out there".
Web Developers in the US Can Already Disregard Mozilla, Firefox, and Firefox Users
"Last month, Firefox turned 21"
The Fate of "Blockchains" and "Metaverse" as a Sign of Things to Come for Slop ("AI")
Doesn't that tell us a lot about the modus operandi of these companies?
A Year After the Owner of X (Twitter) Performed Several Nazi Salutes on Stage the Germany-Based and Microsoft-Funded 'FSFE' Decides to Exit X (Twitter)
Will the real Free Software Foundation (FSF) follow suit?
EPO: What Comes Next
European media seems to have been sedated by soft bribes from cocaine addicts
Slopwatch: The Volume of Slop Has Certainly Gone Down a Lot Lately, Slop Image Providers Abandoned/Changed
It's a big improvement compared to past months
Thousands Laid Off at IBM, "Last Day" Yesterday
IBM is a dying company. This is a problem for Red Hat.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, December 04, 2025
IRC logs for Thursday, December 04, 2025
Gemini Links 05/12/2025: Espressif ESP32-C5 UEXT Module, Pixelfed, and the Web Getting Much Worse
Links for the day