Bonum Certa Men Certa

In Spite of Lobbying and Endless Attempts by the Patent Microcosm, US Supreme Court Won't Consider Any Software Patent Cases Anymore (in the Foreseeable Future)

Alice stands firm.

Alice (software)
Software patents are being invalidated en masse using Alice. Not to be confused with Alice the software.



Summary: Lobbyists of software patents, i.e. proponents of endless litigation and patent trolls, are attempting to convince the US Supreme Court (SCOTUS) to have another look at abstract patents and reconsider its position on cases like Alice Corp. v CLS Bank International

THE USPTO can grant as many software patents as it wants, but American courts reject these and litigation with such patents has become an unattractive, risky strategy. Even pursuing such patents in the first place may prove to be a waste of time and money, irrespective of the outcome at the patent office.



Earlier this week we spotted this press release about HEVC -- certainly a massive software patents trap [1, 2] (evergreening). "This innovative product utilizes Beamr's 29 granted patents and 18 pending patent applications to produce HEVC video encodes that are up to 50% smaller than Beamr's market-leading HEVC software encoder, Beamr 5," the press release stated. Wanna bet all of these patent applications, even if they got granted, would be thrown away by courts like the Court of Appeals for the Federal Circuit (CAFC), if not SCOTUS above it? This whole thing in an exercise in 'thicketing' -- i.e. making up for the invalidity of patents by quantity rather than quality (to make legal challenges more lengthy and thus expensive). Microsoft does this quite a lot. It flings a large pile of lousy software patents at poor companies and demands that they settle (pay 'protection' money) or spend years in courtrooms (at the expense of millions of dollars, making settlement the cheaper option, securing the patents from much-needed scrutiny).

"Even pursuing such patents in the first place may prove to be a waste of time and money, irrespective of the outcome at the patent office."The matter of fact is, software patents should no longer be issued by the USPTO. These contribute to extortion, not innovation. Only the law firms profit from that.

The other day we saw this new rant about Alice, courtesy of Matthew Schantz who profits from legal chaos. That's just latest example of patent law firms promoting software patents and yearning for them. Watch the language of optimism and positivism: "Software patents have seen better times. The glory days of the 1980s and 1990s, after the U.S. Supreme Court held in Diamond v. Diehr (1981) that inventions implemented in software are not unpatentable just because they are implemented in software, continued long past the generalized expansion of patentable subject matter by the Court of Appeals for the Federal Circuit in State Street Bank v. Signature Financial Group (1998). But the Supreme Court shook the foundations of the software patent world in 2012 (Mayo v. Prometheus) and 2014 (Alice Corp. v. CLS Bank International), leaving business leaders (and their patent attorneys) to wonder whether — or even hope that — software patents were dead. While the U.S. Patent and Trademark Office and courts have struggled to find reasonable, “new normal” limits on software patents that are practical in application and justifiable under precedent, recent cases reflect a maturing of the law surrounding patents on software-implemented inventions."

"The matter of fact is, software patents should no longer be issued by the USPTO."That's good. That's very desirable. Just ask any software professional about it. These professionals do not want software patents, unlike those who pretend to speak on 'their behalf'. Some of them repeatedly heckle PTAB and try to slow it down, for it invalidates a growing number of software patents these days (a lot more than courts do). Patently-O, one of the scarcely-closeted opponents of PTAB, only accentuates the negatives, not the positives, and then proceeds to looking into SCOTUS cases that have nothing whatsoever to do with software patents. The first of these says: "A newly filed petition for writ of certiorari offers a substantial challenge to the quick-look eligibility decisions that have been so popular among district courts. The challenge here is especially focused on no-evidence eligibility decisions that serve as a substitute for an obviousness determination."

Again, he is hoping to slow down (or prevent) invalidation of bogus patents. The second of these says: "The Court affirmed that requirement in a non-patent case, Goodyear Tire & Rubber Co. v. Haeger (Apr. 18, 2017). In that case, Goodyear engaged in a years-long effort to hide key documents from the plaintiffs, who, not knowing of them, settled the case. When they sought sanctions, the district court awarded all of the litigation fees the plaintiff had incurred from the time when the scheme had begun: $2.7 million. It also held, conditionally, that $2 million was caused directly by the shenanigans."

"Maybe we can urge some readers of ours to submit an amicus brief to explain why software patents are a bad idea and Alice already tackling the issue means that there's no point revisiting the matter."But this case isn't even about patents. Why is Patently-O covering this?

The threat that SCOTUS will revisit Alice-type cases isn't quite there, at least not yet. Watchtroll is trying to change this right now, by urging (in the form of amici) an escalation of a software patents case to SCOTUS. To quote: "BBiTV appeals from the Federal Circuit’s Rule 36 affirmance of two summary judgment decisions in which the district court found claims of U.S. Patent No. 7,631,336, entitled “Method for converting, navigating and displaying video content uploaded from the internet to a digital TV video-on-demand platform,” to be directed to the abstract idea of “using the same hierarchical ordering based on metadata to facilitate the display and locating of video content.” The following excerpts of the Petition set forth the issues presented and portions of BBiTV’s arguments. Amicus briefs in support of the Petition are due by May 15, 2017."

Maybe we can urge some readers of ours to submit an amicus brief to explain why software patents are a bad idea and Alice already tackling the issue means that there's no point revisiting the matter.

"Software patents are on the rocks in the United States, but this should not be taken for granted and we must never rest on our laurels knowing that the opposition, i.e. those who prey on software developers, try to overturn and cancel prior decisions."We are no doubt going to see many more attempts like the above to crush Alice. There is in fact a whole "task force" now, led by IBM and its lobbyists (people like David Kappos), dedicated to doing just that.

Software patents are on the rocks in the United States, but this should not be taken for granted and we must never rest on our laurels knowing that the opposition, i.e. those who prey on software developers, try to overturn and cancel prior decisions.

Recent Techrights' Posts

In defence of JD Vance, death of Pope Francis
Reprinted with permission from Daniel Pocock
Three Years in Prison for Disney Employee’s ‘Menu Hacking’: The Economic Fallout of Digital Menus
Reprinted with permission from Ryan Farmer
Approaching 10,000 Articles/Pages Since Going Static
Trying to silence or derail the site was always a dumb strategy
Microsoft is Shedding Off Loads of Staff and That Can be Dangerous Too
Working for Microsoft is a choice; nobody forces you to do it
Richard Stallman and the Unix Philosophy
When asked about systemd people must remember that RMS speaks as an active Board member of the FSF and also the founder of the FSF
Get Rid of Back Doors, Don't Obsess Over Bounties and Other Corporate PR Stunts (or Needless Reboot Rituals)
Security as a term has mostly lost its meaning due to repeated misuse for many years
Serial Sloppers Are Killing the Web (They Probably Don't Care, Either)
Slop is a disease on the Web
 
Links 26/04/2025: Facebook Layoffs Again, Remembering What's Real, and Say No to Mass Surveillance
Links for the day
Links 26/04/2025: NOAA Budget Cuts and "Dog Days Ahead"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 25, 2025
IRC logs for Friday, April 25, 2025
Links 25/04/2025: Slop Fatigue and Patent Judges Flocking to Fake, Unconstitutional and Illegal Kangaroo Court (UPC, Captured 'Justice')
Links for the day
Gemini Links 25/04/2025: Night Manager and Devuan in Hosting
Links for the day
Windows Falls to New Lows in Nicaragua, Now Below a Quarter (It Used to be Almost 100%)
Another all-time low for Windows
The Cost (to Linux) of LLM Slop
Slop 'artists' like Fagioli are far from harmless
Links 25/04/2025: Ubisoft Spyware, Hegseth Fails at Tech on Every Level
Links for the day
Gemini Links 25/04/2025: Food Forest Update and Facebook Destroying the Net
Links for the day
Streaming Apps Are “Investor Fraud” That Kills the Planet
Reprinted with permission from Ryan Farmer
Things Get Increasingly Nasty at Microsoft Ahead of the Fake Results and May's Mass Layoffs Wave
They try to get people to 'resign' so that they won't count as layoffs and the company's 'wellbeing' will seem better
IBM's Debt Ballooned by 8.5 Billion Dollars in Just 3 Months!
Hallmark of a company in a state of disarray, trying to spend its way out of trouble
Big Trouble in GNOME
even GNOME people admit the CoC went wrong
Slopping the Trough: Disney Plus Loses Billions and the Decline of Physical Media in America
Reprinted with permission from Ryan Farmer
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 24, 2025
IRC logs for Thursday, April 24, 2025
Links 24/04/2025: GAFAM Problems and No Peace (or Ceasefire) in Sight
Links for the day
Slopfarms on the Web Almost Always Generate Anti-Linux FUD When They Produce "Linux" Output
Welcome to the dying Web
Richard Stallman's Oxford Talk Has Just Ended, Here Are Some Photos
he might hop over to another European country
Gemini Links 24/04/2025: Birthday and Good Work of Academia in Esotericism
Links for the day
Links 24/04/2025: EU fines Apple and Facebook, Another Microsoft GitHub Security Blunder
Links for the day
New Article Explains How the GPL Came About and WordPress Having Copyleft Obligations
Having been involved in the WordPress development community since almost the beginning, I know why it chose the GPL and how it restricts abuse by Automattic
IBM Gained Almost 6 Billion Dollars in "Goodwill" Value in Just 3 Months, According to IBM
Congrats to the management!
In Belarus, Yandex is Now Measured as 50 Times More 'Popular' (by Usage) Than Microsoft
Yandex continues to gain, whereas Bing cannot even register at 1%. Last month it was registered or measured at a measly 0.65%.
IBM Cannot Lie to Shareholders Anymore
"I would not be surprised if we see a layoff every quarter this year."
Dr Richard Stallman (RMS) Gives Talk in Oxford University in 4 Hours
If you live nearby, go there (it's free as in gratis)
Using a Law Firm's Licence to Exercise Politics Through Frivolous SLAPPs and Nastygrams (to Silence People, Remove Pages, Demand Fake or Forced 'Apologies')
Things must be getting really bad when lawyers act for raving antisemites
We're Working to Make Full-Site Search Available
This site has over 1,000 'wiki' pages, many thousands of documents, several thousands of videos, and about 50,000 blog posts or articles. We need to make them easier to find/navigate.
Links 24/04/2025: IBM Loses Many Contracts, Intel to Lay Off Over 20% (Not Counting Those Who Leave 'Voluntarily')
Links for the day
Richard Stallman Can Explain to Oxford Artificial Intelligence Society Why LLM Slop is Not Artificial Intelligence and Why It Hurts Society
another 'crop' of LLM slop that damages GNU/Linux and facts
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 23, 2025
IRC logs for Wednesday, April 23, 2025