Bonum Certa Men Certa

Patents on Business Methods and Software Are Collapsing, But the Patent Microcosm is Working Hard to Change That

People like Robert Sachs (on the right) try to cherry-pick cases and make these precedential (to help patent maximalists/aggressors)

Robert R. SachsSummary: The never-ending battle over patent law, where those who are in the business of patents push for endless patenting, is still ongoing and resistance/opposition is needed from those who actually produce things (other than litigation) or else they will be perpetually taxed by parasites

FOLLOWING a SCOTUS decision nearly 3 years ago the patent landscape has not been the same in the US. The "effect of the Supreme Court’s Alice decision was to kill about 75% of all BM [business method] patent applications stone dead," Mark Summerfield has just said, having said the same thing earlier this year. Here is the part about software patents:



Software patent grants, however, continue to track the rates at which patents are issued by the USPTO across all fields of technology. I therefore feel confident in reiterating my earlier comments that ‘software patents’ in general are not in trouble. There is no evidence that the mere fact that computer software is used to implement an invention – even where the invention relates wholly to computer technology, such as in user interfaces, document processing, databases, and so forth – is a barrier to patent eligibility in the US.


But these die at the courts and in the Patent Trial and Appeal Board (PTAB), so this merely indicates that the USPTO does not do enough to account for these decisions. We wrote this many times before.

Watch Fenwick & West, a law firm that habitually attacks Alice, still working hard this month not just to spread software patents but also business method patents. To quote the latest from them:

On Wednesday, the Federal Circuit, in a per curiam order, denied SHzoom's motion to make the Trading Technologies opinion precedential. The order of course gave no reasons for the decision. Nonetheless, the underlying decision is still a good one for patentees and applicants.

While not binding on the USPTO, it can nonetheless be argued as persuasive authority with examiners where the facts in the application "uniquely match" those in the case. Prosecutors should consider arguing this case to examiners where they have specifically claimed graphical elements that provide specific functionality.


We certainly hope that these patent maximalists don't get their way. Software patents have long hobbled Free/Open Source software and proprietary software too. Up until now, including in 2017, these have been turning software freedom into something synonymous with "infringement". As someone put it some days ago: "*whispers into the air* …the final patents on MP3 technology expired today…"

It's about time. How many people suffered due to these patents? How many people struggled to get decoders to play their audio files? Or resorted to do something against patent law?

Finally, as an aside, we used to think more highly of Law 360, but Matthew Bultman adopts the misleading language of the patent microcosm, where defense from patents magically means "attack" (on the patent/s). This is not an attack, it's a defense, but watch how Bultman put it both in the headline and the opening paragraph:

PTAB Rejects Some Follow-Up Attacks To Software Patents



The Patent Trial and Appeal Board has rejected a handful of recent attacks brought by Xactware Solutions Inc. against a rival’s patents covering aerial rooftop measurement software, saying the New Jersey company was morphing its challenges based on earlier board decisions.


This is another example of PTAB stepping in to reassess and usually correct the USPTO. The patent microcosm likes to just cherry-pick the situation in which the patents "survive" (their misleading term) scrutiny. As in the above... ⬆

Recent Techrights' Posts

More Shutdowns at Microsoft, Hundreds of Workers Impacted Shortly
It's not the entire wave, just part of it
 
Linux is Not Controlled by Linus (Torvalds)
Torvalds has become "90% marketing hype"
Intercontinental Brigading - Part XIII - Censorship by All Means Available in a Continent So Far Away, as 'Secure' (Restricted, Restriction by Microsoft) Boot Has a Crisis of Legitimacy
it's about America controlling sites and computers everywhere
Links 24/10/2026: Oligarchs Already Buy US Elections, GAFAM Front Group "EFF" Speaks of "Vulnerability Apocalypse"
Links for the day
Gemini Links 24/10/2026: Automobile Differential Tire Movement, Samsung Washer Woe, and Slop Scraping
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 23, 2026
IRC logs for Friday, October 23, 2026
As Usual, Late on a Friday XBox (Microsoft) Releases Evidence of Its Demise
We covered several such Friday announcements earlier this year
Gemini Links 24/10/2026: Break/Fix and OpenStreetMap
Links for the day
Links 23/10/2026: Slop "is Scaling Transnational Repression" and Infringement and DMCA Suits Against Suno/Anthropic (Plagiarism Blenders)
Links for the day
The Register MS: About 60 Mentions of "AI" in One Day Are Paid-for Spam (Sponsored Hype, Composed by the Companies Covered)
The Register MS is a dying site
Links 22/10/2026: MElon (Elon Musk) Election Interference and Perl/Raku Foundation by the Numbers
Links for the day
Techrights Audience Grew as a Function of the Intensity of Attacks on Its Existence
We try to publish fewer stories but better (not necessarily long but at least important) stories
TechRepublic is Becoming a Slopfarm
It seems like TechRepublic became LLM slop (maybe all of it, maybe only some of it for now)
Techrights is Not About GNU/Linux, Tux Machines Is
When we say "GNU/Linux" we emphasise the GNU
The World Needs Activists With Social Skills and Perseverance
An everyday activist makes life better for everybody, everywhere (not for personal gain or even credit)
Intercontinental Brigading - Part XII - Lawfare to Cover Up Microsoft's Restricted Boot Calamity (Microsoft as Authority Over Linux), Garrett Wants to Talk About Penises Instead
When lawsuits become a political weapon
Without Microsoft's Monopoly (and Monopoly Rents) the Inevitable Microsoft Mass Layoffs Carry on Endlessly
Microsoft Windows is not retaining the dominance it once had
IBM's Debt Grew About $2 Billion in 3 Months
The silent layoffs still seem to impact Red Hat
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 22, 2026
IRC logs for Thursday, October 22, 2026
Gemini Links 22/10/2026: Solar MiniBBS, Building Major Tom, and Zig
Links for the day
Links 22/10/2026: Busan’s Celebrity Shark in Canal Again
Links for the day
Links 22/10/2026: "Software Developers Have Been Promoted Into Incompetence"
Links for the day
Intercontinental Brigading - Part XI - Losing Over a Million Pounds (Borrowed Money) to Try to Silence Critics of Restricted Boot With Microsoft-Controlled "Certificates"
Garrett is also very jealous of Daniel Pocock
Links 22/10/2026: eBay to Lay Off a Tenth of Staff (Again), Node.js and PHP Security Crises, Climate News
Links for the day
Red Hat Layoffs Still Going on This Week (Whilst IBM's Debt Grows in Spite of Mass Layoffs)
IBM is bluffing/cheating the shareholders again
IBM's Debt Continues to Increase While the Company Rapidly Shrinks
This is what a dying company looks like
Linux Kernel Needs Diversity and Diversity of Good Code, Not LLM Slop
Linux (and Linus) are kicking a can down the road
Microsoft Shrinks Every Year
Microsoft will try to spin or twist this as "efficiency"
Gemini Links 22/10/2026: Holiday Inn and Emacs
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 21, 2026
IRC logs for Wednesday, October 21, 2026