Bonum Certa Men Certa

In the US Patent System, Evolved Tricks for Bypassing Invalidations of Software Patents and Getting Them Granted by the USPTO

https://twitter.com/Anthony/status/563858797526265856

Summary: A roundup of news about patents in the US and how the patent microcosm attempts to patent software in spite of Alice (high-impact SCOTUS decision from 2014)

THE EPO has been so full of scandals and lies lately that we have, at times, lost sight of news from the US, including improvements at the USPTO. Tonight, for a change, here is something positive.



"As one can expect, patent law firms promote software patents under the guise of "AI"..."This bit of news suggests that Sony wants a patent on wireless charging -- not a new concept in its own right, but we certainly remember that Sony 'innovated' devices that almost literally explode, owing to their splendid battery. This happened several times over the years and 3 years ago there were still recalls of products (it also happened a decade ago, and not for the first time).

Putting aside patents on hardware, there are silly new patents on software being assigned. "Interfacing to cloud storage" they call it -- the cloudwashing of patents as we called it this month and last month (a fairly recent trend of pseudo-'innovation' using buzzwords). Someone in Twitter sent a "BS software patent alert" about it. Will courts ever uphold such a patent? probably not after Alice (€§101).

"Patent examiners should watch out for these silly workaround attempts; just because some software is described as "on a device", "over the Internet", "on a phone", "in the cloud", or "for AI" doesn't mean it's any less abstract."Speaking of cloudwashing of patents, we have mentioned "AI" as another buzzword commonly used these days to patent old stuff. As one can expect, patent law firms promote software patents under the guise of "AI" and Barker Brettell LLP, which we mentioned here before in relation to the EPO [1, 2], has no qualms about it (here is another new article along those lines). Patent examiners should watch out for these silly workaround attempts; just because some software is described as "on a device", "over the Internet", "on a phone", "in the cloud", or "for AI" doesn't mean it's any less abstract. The same goes for "machine learning", "IoT", "DevOps", "smart", "wearable" and other trendy terms that mean too little (if anything at all). These are still software patents, just like that Baxter patent application which Judge Corcoran ruled against in T1508/12-3.5.05.

Over at Watchtroll, the strident proponent of software patents (where actual software engineers never write about it), someone from a law firm (Harrity & Harrity) decided to market some tricks for patenting business methods in spite of Alice. Here's an except:

These examples seem to indicate that the power of €§101 to restrict patentability has been whittled down since Alice and that the USPTO would like to reduce the number of €§101 rejections for technological claims in light of court decisions post-Alice. Below, we describe each example provided by the USPTO and explain the USPTO guidance for each example to assist practitioners with reducing and overcoming €§101 rejections.


As often happens, they try to sort of reverse-engineer the USPTO's guidelines in order to defy the rules and sneak bogus patents past the examiners. Once granted, any defendant would have to spend a fortune in court to prove invalidity (with burden of proof and fees enough to make a settlement more attractive an option). As long as the victims are kept isolated and unaware of one another (NDAs can accomplish this), they won't pool together the financial resources required to fight back against the serial aggressor (taking away the 'weapon').

"Once granted, any defendant would have to spend a fortune in court to prove invalidity (with burden of proof and fees enough to make a settlement more attractive an option)."€§101 has been worrying the patent microcosm and media of this microcosm keeps trying to scrape some good news from the bottom of the barrel. The other day, for example, MIP's Michael Loney went along with a rather misleading headline, based on some figures from the patent microcosm itself (Fenwick & West). We've already mentioned this analysis; Loney could say that CAFC MAINTAINS high €§101 invalidity rates, but instead he went along with "US district court 101 invalidity rates down slightly in 2017" and left much of the rest behind a paywall. "The Federal Circuit," he noted before the paywall kicked in, "maintains its high invalidity rate on Section 101 decisions so far this year but the district court rate has fallen, according to new figures from Fenwick & West’s Robert Sachs. One interesting recent trend is the PTAB has reversed all 16 ex parte appeals of Section 101 rejections since October..."

PTAB maintains and even increases its workload, though Loney recently compared non-corresponding months to make it look otherwise. They're using all sorts of tricks in an effort to give their readers, the patent microcosm, some good news and 'tricks' for fooling examiners, judges, etc.

"They're using all sorts of tricks in an effort to give their readers, the patent microcosm, some good news and 'tricks' for fooling examiners, judges, etc."Speaking of CAFC, Patently-O wrote about this new verdict, noting that a "California jury held that TVIIM’s U.S. Patent No. 6,889,168 was both invalid as anticipated and not infringed. On appeal, the Federal Circuit affirmed. [...] The result here is that a potentially inconsistent verdict is not improper so long as any possible resolution of the inconsistency reaches the same outcome (here, that the patentee loses). In this case, any proposed construction of the claim terms resulted in either the patent being invalid or being not infringed."

This is a good example of tricks used in vivo -- so to speak -- once the patents are already in a process; the same sorts of tricks have been attempted at PTAB, in desperate efforts to save patents by editing their contents (as if patents are something dynamic that should have versions and revisions even after a grant). It's like evergreening of patents 'on the go'. The whole thing is laughable and it contradicts the very premise/basis of patenting!

"...it seems clear that there is growing backlash against patent maximalism, which has become more like a religion than a science, and is practiced by firms that engage neither in science nor in any form of production."Incidentally, recently in Techrights we have covered several examples of frauds and charlatans extorting with patents; Some patently unethical frauds out there blackmail small companies by the thousands (of companies) using patents they haven't got or patents which they know are bogus. Classic protection racket! Many examples were recently given of it and this new article (behind paywall) says that "Patent Owners Face Increased Fraud Liability Risk". To quote the open access summary/outline: "New legislative and court-driven developments in patent law have increased the risk of securities fraud liability for public company patent owners. Such patent owners and their securities counsel are therefore best advised to understand these developments, their intersection with securities law, and how they may affect some public disclosures."

As access to the article is restricted, as is normal for that site, it's hard to say if any of this alludes to frauds and charlatans who claim to have patent leverages that they haven't (in order to extract fees from a lot of companies), but either way, it seems clear that there is growing backlash against patent maximalism, which has become more like a religion than a science, and is practiced by firms that engage neither in science nor in any form of production.

Recent Techrights' Posts

Georgia Institute of Technology (Georgia Tech) Formally Announces Upcoming Richard Stallman Talk
Room 100, Scheller College of Business
The four freedoms and GNU/Linux naming controversy, by Akira Urushibata
Social control media owned and run by 'broligarchs' keeps attacking RMS for insisting on names that include GNU
Open Source Initiative (OSI) Not Doing Its Job, Instead It's Promoting Microsoft Ponzi Schemes
it participates in Microsoft's Ponzi scheme, which helps Microsoft distract from or excuse the mass layoffs
The Register MS: Installing Free Software on Your Device is 'Sideloading'
This is a form of propaganda
 
Links 08/01/2026: Possible "Collapse of NATO Over Greenland"; Journalistic Malpractice and "US Voters Hate Slop"
Links for the day
EPO People Power - Part XXVIII - A Sensitive Issue for Germany and The Netherlands
If Germans who read this series can communicate this to public officials or to their media, maybe they can strike a nerve and get the ball rolling
Age Discrimination at IBM Discussed Amid Mass Layoffs (Especially in the United States)
Workers are anxious. Are they next to face the axe?
Gemini Links 08/01/2026: Potentiometer Calculator, Power Outages, Why You Should Abandon Discord for IRC (e.g. Ergo), and Formatting Gopher Posts
Links for the day
Links 08/01/2026: More Software Patents Squashed, White House Repeats Misinformation From the Kremlin
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, January 07, 2026
IRC logs for Wednesday, January 07, 2026
The Free Software Foundation (FSF) Looking to Add Associate Members
"Celebrate '26 by helping us reach our New Year's goal before Jan. 16: join as an associate member today. You will help the FSF remain strong and independent to empower technology users everywhere. Join us today and help us reach our goal of 100 new associate members!"
Only Google is Still Spreading Lots of Slopfarms' Fake News and Plagiarism About Linux
2 days' worth of Google News spewing crap out about "Linux"
Links 07/01/2026: Europe's 'Binding Commitments' on Ukraine's Security, "Venezuelan Leaders Project Independence"
Links for the day
Gemini Links 07/01/2026: Smart Toaster and Social Control Media Fatigue
Links for the day
Projection Tactics - Part II: Causing "Serious Harm" to Many People (Even Animals)
Narcissists and sociopaths are like that
Even Microsofters Now Speak About Microsoft Reportedly Planning to Sack 10% of Its Staff (as Early as This Month, or 2 Weeks From Now) as Real Income Falls
Microsoft buying from Microsoft isn't real income, it is accounting fraud
Crans-Montana, Le Constellation: journalists, victims' families, ProtonMail users at risk, police raids
Reprinted with permission from Daniel Pocock
GNU/Linux Reaches All-Time High in Tanzania
This month (and year) GNU/Linux is measured at an all-time high there, based on the data that statCounter can see
Links 07/01/2026: Microsoft ChatGPT Killing People and Microsoft "Github monopoly is destroying the open source ecosystem"
Links for the day
Mass Layoffs in Microsoft's XBox Soon, Just Like We've Said for Months
IBM and Microsoft are heading in a similar trajectory and are hiding how bad things are using similar tactics
Mozilla's Assisted Suicide, Assisted by GNOME
Firefox is meant to get better all the time, but instead it gets worse
Now It's a Mainstream Media (MSM) Story: Microsoft Layoffs Coming, They'll be Vast (and They Blame "AI", As Usual!)
the books were cooked (accounting fraud) to hide what really went on
Frankly Getting Sick of Slop About "AI" (Slop)
Calling everything out there "AI" serves nobody and nothing but the Ponzi scheme
Stick to the Science, the Facts, the Observable Reality
Science is at the heart of this site
Africa's Search Market Has Been Unfavourable to Microsoft
In Africa, as we've just noticed, Bing is moving down, even more sharply this year
Slideshare is Slop
Be sure fools will rewrite history online
Gemini Links 07/01/2026: Looking at 2026, Linux Anti-Minimalism, Diode Function Generators, and Inkscape
Links for the day
Projection Tactics - Part I: What is "Serious Harm"? Or Whose?
the most serious harm was done to us
Links 07/01/2026: More Signs XBox the Console is Dead/Dying, Convicted Felon Repeats Threats of Greenland Annexation
Links for the day
EPO People Power - Part XXVII - Science- and Principles-First Journalism About Issues That Matter
journalism became so shallow that nowadays it can be replaced by bots
Media Gaslighting Dooms the Media
this "AI" gaslighting is done because publishers get paid to do so
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, January 06, 2026
IRC logs for Tuesday, January 06, 2026
Gemini Links 06/01/2026: Collective Responsibility, Pico2DVI, and TV Detox
Links for the day
Microsoft Loves Freedom, Democracy... and Linux? No, Microsoft Laying Off Because "Microsoft Loves Linux" Was Failed Posturing, Its Former Staff Moves to GNU/Linux
"What are the running totals for IBM and Microsoft layoffs?"
GNU/Linux at 4% "Market Share" (Even According to Steam Survey)
Another milestone
Links 06/01/2026: Neglect of the Elderly, Abandonment of International Laws
Links for the day
Links 06/01/2026: More Reports Point to Mass Layoffs at Microsoft (Later This Month), Greenland/Denmark Cautions the Dictator Who Illegally Invaded Venezuela
Links for the day
Internet Policy/Net Reality: You Must Never Ever Rely on Google (no "S.E.O." Either)
Stack Overflow is dying
Ahead of Mass Layoffs Microsoft Tries to Rebrand or Redefine XBox (Because the XBox is Tentatively Dead)
2026 will be the last year of XBox in all likelihood
Richard Stallman (RMS) Announces His Georgia Talk 2.5 Weeks in Advance
A lot earlier than usual
Dr. Andy Farnell on Technology That Harms People (and Lack of Regulation Which is Needed to Address This Problem)
Dr. Farnell's article is long but well worth reading
GNU/Linux Rising to 5% in Cameroon and It's Hardly the Exception
"AI" is just a smokescreen as losses pile up
Rumours: Microsoft to Lay Off 12,500-25,000 Workers Soon (Tentatively Wednesday, 15 Days From Now)
"Layoffs are coming third full week of Jan. Likely 21st but these things can move around a bit based on last minute developments."
EPO People Power - Part XXVI - European Media Has Become Part of the Problem
it is as clear as daylight that Cocainegate is real
IBM 2026 "Organizational Change/s" Means Layoffs Resume Soon, Some Claim "Forever Layoffs."
It's about "narrative control"
Microsoft Layoffs in January 2026
Get ready
Google Still Boosting Slopfarms
Slopfarms will probably all perish as soon as Google News quits sending them visitors
Links 06/01/2026: Cryptocurrency Scam Emails and Greenland's Fear of Getting 'Venezuelad'
Links for the day
Links 06/01/2026: DIY Projects and Inertial Music
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, January 05, 2026
IRC logs for Monday, January 05, 2026