Bonum Certa Men Certa

Alice/U.S.C. €§ 101 is a Done Deal, Meaning Software Patents Are Effectively Dead in the US

The US Supreme Court has meanwhile moved on to tackling patent trolls and won't revisit patentability of software

1101



Summary: A look back at this summer's patent cases where software patents are consistently (almost without exception) invalidated by courts, owing to €§ 101 (U.S.C./SCOTUS/Supreme Court)

THE past few months brought a lot of good news from the US. Not only did the US Supreme Court rule to narrow patent scope; US courts also invalidated quite a few software patents; appeal boards did the same (at record numbers). Patent trolls' fate seems gloomy, more so after TC Heartland. Even if the USPTO continues to grant dubious patents, the ability to enforce these is vastly reduced now.

We have decided to catalog or document some of the recent news that we previously lacked time to cover. These are clustered by topic/theme below.

Patent Law Firms' Faked Optimism



Nicola Borthwick from Charles Russell Speechlys recently wrote about "[t]he term “as such” [which] has the effect that an invention is not necessarily excluded from patent protection" (for example in the EPO). Here is what she said:

The term “as such” has the effect that an invention is not necessarily excluded from patent protection just because it contains an element which cannot be patented. So, for example, if the application of the software contains a technical feature which provides a technical solution to a technical problem, then it may be patentable. Likewise, a technical invention which results in an improvement in business efficacy will not necessarily be excluded as a business method.


These are just the classic loopholes we have seen in Europe, India, and New Zealand. In the US too, more so after Alice, applicants will resort to such loopholes. But will these help when judges and technical expert witnesses come forth? We don't think so.

The matter of fact is, legal firms try to reassure clients that they can still pursue software patents, even if the resultant patents are weak and likely bunk (easily-invalidated).

We have written a lot about this before. Any advice from such firms should be taken with a barrel of salt (if taken at all). Their interest lies in patent maximalism, not potency. They profit either way; even if the patents get invalidated in court proceedings...

In a sense, weak patents are good for patent law firms and especially for prosecutors because those are the patents which would be challenged (by the defendant) in a court, necessitating heavy legal fees (their toll).

Courts in the US Invalidate Software Patents



As noted above, once properly challenged (the higher the court or the greater the number of appeals, the better) software patents are rarely upheld. Even in the US, the original home of software patents.

It's rather amusing to see how patent lawyers' sites try to twist or spin stories; Take this new one for example. The headline says "Judge Kills Electrical Monitoring Patents Under Alice," but judges don't kill, they simply check the law and say that these software patents are bunk. The patent microcosm has long attempted to associate justice with killing, death, and assassination (even calling PTAB a "death squad"). We responded to these gross mischaracterisations many times before.

Here is what the body of the report says:

A California federal judge has ruled parts of four Power Analytics Corp. patents covering software for monitoring electrical systems are invalid under the Supreme Court’s Alice test, resolving part of a patent infringement and antitrust case it brought against competitors.

In a decision Thursday, U.S. District Judge John A. Kronstadt granted a motion from Operation Technology Inc., which does business as ETAP, and Schneider Electric USA Inc., finding the asserted claims of four Power Analytics patents were invalid.


No loaded language there like "kills", so why the dramatic headline? As we shall show later, there's a theme here; they try to discredit judges who simply do the right thing, equating their ethics to ethics of assassins.

Misuse of language by the patent microcosm is a subject that merits broader debates; the military industry does similar things, especially at times of war, in order to 'perfume' the act of murder (with words like "defense", "stability" and so on). A lot of that is very subtle and it has become so banal that people fail to see through the perception management tactics.

How about this report from 4 days ago? It speaks of "inefficient industry of patent development and focus on building products..."

What do they mean by "patent development"? They mean writing. There is no development of patents per se. There's development; then there may be an application for a patent pertaining to that development.

How about this recent report about Tesla, which was openwashing using patents 3 years ago? It says this:

The strategy adopted by Tesla was to release all their cutting-edge software patents to the public domain...


It says software patents; Tesla did this around the same time of Alice (summer of 2014), so these patents were probably worthless or close to worthless anyway...

Going back to the "kill" theme, watch Patent Buddy (of the patent microcosm) carry on with his typical tweeting. As noted in the latest tweets from him (he blocked me for merely criticising software patents), software patents are generally "dying" (his term). Here is one example where he says: "US Pat 7988046, Vehicle violation enforcement system; Killed by Alice..."

"Invalidated" is the right term.

This is the new norm.

As this article from the end of May put it, "at the end of the day the validity of a lot of patents is questionable, especially software patents..."

Obviously.

Here is another one from Patent Buddy: "US Pat 7950570, Parking environment management system; Killed by Alice..."

Again that word: "killed..."

These are very bad times for software patents in the US, irrespective of USPTO grants.

Here is another recent example:

Patents Claiming Method for Parking Violation Enforcement Via Self-Release Booting System Invalid Under 35 U.S.C. €§ 101



The court granted plaintiffs' motion to dismiss because the asserted claims of defendant's parking enforcement patents encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea.


Spot the pattern? We aren't even ignoring cases that are contrary to this; they're just so rare...

The US Supreme Court won't be overturning or challenging Alice any time soon, i.e. software patent remain dead in the water for now. It's a dark territory for a patent holder to explore.

Here is Patent Buddy again: "The S.Ct. [US Supreme Court] Refused to Hear the Broadband iTV Case Seeking a Definition of "Abstract Idea": https://dlbjbjzgnk95t.cloudfront.net/0926000/926683/052217zor_4gd5.pdf"

Well, it seems safe to say that such cases are only ever upheld in rare circumstances/occasions; it would be a waste of the Supreme Court's time to reassess them.

Another new example:

Federal Circuit Finds Claims Directed to Encoding and Decoding Image Data Patent-Ineligible



The Federal Circuit recently held in RecogniCorp, LLC v. Nintendo Co., Ltd. (Fed. Cir. 2016) that claims directed to encoding and decoding image data were not patent-eligible under 35 U.S.C. €§ 101. This ruling further highlights the evolving analysis of patent eligibility in the post-Alice era. This ruling may further provide guidance regarding the impact of patent claims and the specification when distinguishing between patent-eligible improvements to a computer and patent-ineligible abstract ideas under Section 101.


So why even bother with such patents?

Any news about software patents "surviving" (their term) a high court is put on a golden platter/pedestal by the patent microcosm; that has not happened in a long time.

Patent Law Firms Pay to Dominate the media



In some rare cases (very rare) the appeals staff (PTAB/appeal boards or appeals for short) overturn examiners' decision to invalidate/reject software patents and watch how the patent microcosm 'spams' the media about it. It first pushed it as a paid press release in May and later. In July it did this yet again, spreading the same message as though it was shouting from the rooftops. The title was always the same and it was self-promotional ("Ex Parte Hafner Provides Clarity in Assessing Patent Subject Matter Eligibility for Software Patents"). It was posted again in July, for the third time, this time adding the text "Note: an Addendum has been added to this previously published article."

"In Ex Parte Hafner," it says, "the U.S. Patent and Trademark Office Patent Trial and Appeal Board (the “Board”) reversed the Examiner’s rejection that claims directed to an energy transaction plan were subject-matter ineligible."

Did they really have to pollute the media for 2 months, with about 5 identical press releases (that we found in news feeds), just to say this? Such is the nature of the patent microcosm.

Back to Alice



As we said above, many software patents are being invalidated these days. Patently-O, a proponent of software patents, rarely writes about those, but here is an exception from May. "In this case," it said, "the appellate court affirmed summary judgment that all of the asserted claims of five EasyWeb patents are ineligible under the Mayo/Alice interpretation of 35 U.S.C. 101 and therefore invalid."

Well, good. The Mayo/Alice interpretation (or Section 101) has become so scary to these people that they lobby with full force against it (we'll cover that in a separate post). Thugs, trolls and liars try to undermine a Supreme Court's decision in order to bring software patents back and some sites go as far as stating "Alice Under Threat" in the headline.

We don't think Alice is under real threat. Sure, there are attempts to rub if off from history and as the article notes, IBM plays a major role in this. To quote:

Claiming that patents promote innovation, he calls for legislation to deal with the issue, claiming that patents.

It is worth recalling that when IBM was belatedly granted a patent recently on an "innovation" that was by no means new when the application was made and is now entirely mundane, a system for out of office notification via email, it disclaimed the patent. Discarding Alice would re-open the door to such absurd anomalies and give a field day to patent trolls.

Let's have some common sense when it comes to patents so that we can avoid litigation.


We intend to cover this lobbying separately as there is plenty that we have to show and say. We don't think this lobbying will get them anywhere; even patent extremists like IAM don't think so. They'll carry on trying nevertheless.

"Patent-Eligible Software Under 'Alice'" was the title of this recent article from lawyers' media. It's paywalled, so most people can only read the title. The title itself (alone) can almost qualify as "fake news" because it biases readers' perception. That's like saying "edible air". Alice makes software patents ineligible, not eligible. This title is akin to "man bites dog".

Pressing on, a proponent of sofwtare patents (not developer but attorney) says "patent eligibility nightmare under Alice continues..."

Nightmare?

No.

PTAB continues throwing out/yanking away software patents (which should never have been granted after Alice) and sites of the patent microcosm say this:

The PTAB held that the claims in Ex parte Quimby, Appeal No. 2016-004681 (June 2, 2017) were directed toward unpatentable subject matter. Of particular interest given the claim language, the Appellant was unsuccessful with arguments that 1) the claims do not disproportionately tie up the use of any underlying idea, 2) the claim provides an improvement in the technological field of mass spectrometry, and, 3) with respect to dependent claim 3, that the claims tied the mathematical formula with technological field of mass spectrometry analyte detection. (citing Research Corporation Technologies Inc. v. Microsoft Corp., 627 F.3d 859 (Fed. Cir. 2010)).


So that's another "dead" (or "killed" by their language) software patent. PTAB did the "killing" this time. According to these new figures presented by IAM, large corporations too are enjoying the service of PTAB. To quote:

With almost 100 more reviews filed than its closest rivals, Apple clearly seems to be playing a numbers game – looking to see what it can make stick at the PTAB. It is possible to look at this data and wonder why some of these players, which have the deepest pockets and some of the largest legal teams in corporate America, aren’t performing even better. If the PTAB was simply about eradicating bad patents then perhaps they would as they might more carefully pick the patents they challenged. But as the IPR process has become ever more popular it has become a part of the market maxim that a bad patent is simply one being asserted against you.



CAFC opponent Professor Dennis Crouch belittles all this and when PTAB (together with CAFC for affirmation) 'junks' a patent he calls it "precedential, but low quality opinion."

So CAFC is throwing away utterly rubbish software patents; Crouch continues to whine, as usual, being the patent maximalist that he is; he just hates such rulings and preaches to the choir of patent maximalists.

Crouch, on another occasion earlier this month wrote this: "The Federal Circuit has denied OptumInsight’s petition for writ of mandamus on privilege waiver."

He is generally focusing (more so nowadays) on the shaming of CAFC into patent maximalism. We therefore need to keep an eye on what he's writing.

Now watch this recent report that says:

On May 23, 2017, the District Court for the Eastern District of Virginia (“District Court”) denied a motion for summary judgment that the patent claims asserted in a lawsuit brought by TecSec, Inc. (“TecSec”) are invalid under 35 U.S.C. €§ 101.[1]


District court are generally (statistically) quite software patents-friendly and the patent at hand -- a patent on encryption -- is definitely a software patent. €§ 101 should be able to invalidate it so it would not "survive" (as the biased language in the headline puts it) upon appeal to CAFC; judges higher up would almost definitely look deeper into it and quite likely toss this software patent in the trash (not just because of its high rejection rates for such patents).

Patent-ineligible software patents (under Alice/Section 101) are becoming so banal that many don't bother reporting on them anymore. Instead, sites associated with (or controlled by) law firms prefer to focus on more 'convenient' cases.

Looking at PatentDocs, a loud proponent of software patents, here is coverage of Credit Acceptance Corp. v Westlake Services (a new CAFC case). Basically, yet another software patent has been declared invalid upon closer examination and it's a precedential opinion. To quote:

In a precedential opinion, the Federal Circuit affirmed a final written decision of the Patent Trial and Appeal Board ("Board") in a Covered Business Method ("CBM") review proceeding in which claims were held to be directed to patent-ineligible subject matter under 35 U.S.C. €§ 101.

Credit Acceptance Corp. ("CAC") is the assignee of U.S. Patent No. 6,950,807, which includes both system and method claims directed to providing financing for allowing a customer to purchase a product selected from an inventory of products maintained by a dealer. In one embodiment, the products are vehicles for sale at a car dealership. The invention involves maintaining a database of the dealer's inventory, gathering financing information from the customer, and presenting a financing package to the dealer for each individual product in the dealer's inventory.


Given all the above, examiners at the USPTO definitely need to start scrutinising all software patent applications, potentially rejecting every single one of them.

Robert Sachs, software patents profiteer (and casual lobbyist for these), actively tries to discourage USPTO workers from doing their job as per Supreme Court instructions. Watch him have a go:

After Alice, the USPTO's various guidance memoranda included references to non-precedential Federal Circuit decisions, particularly Smartgene, Cyberfone, and Planet Bingo, as examples of patent-ineligible subject matter. Naturally, examiners cited these decisions in support of their Section 101 rejections.


He also wrote this piece about "surviving" [sic] Alice", as if the Supreme Court is some kind of "killer".

Such is the bias of the microcosm...

Covered Business Method (CBM) Also in Danger



Going back to Dennis Crouch, not too long ago he wrote about CBM (business methods), which should also be rejected (under Alice).

Andrews Kurth Kenyon LLP republished [1, 2] its piece about business methods, stating that: "Despite finding a range of business methods and software patents eligible for CBM review during the program's early existence, the PTAB subsequently took conflicting approaches to assessing eligibility."

Alice is Safe, Supreme Court Now Focused on Other Patent Aspects



A lot of the debate has already shifted to other cases, notably those pertaining to patent trolls and the "cheap handle, expensive blades" business strategy (using patents). Corporate media still occasionally writes about those cases. Here is one example:

The case has ominous implications for every business model that relies on selling cheap products but expensive supplies. As the Electronic Frontier Foundation points out, many manufacturers of gaming consoles depend on customers buying games from them and them alone, forever and ever. Many connected household products (the “internet of things”) function only if the consumer purchases a subscription from the manufacturer. Such loss-leader pricing strategies may no longer be viable after the Lexmark decision.


Don't expect Alice to be overturned. Don't expect software patents to suddenly become "great again" in the US. The Supreme Court isn't even interested in revisiting the matter and the lobby against Alice is virtually gone from the news (since June).

In the mean time, don't waste of money on software patents. They're a lost cause after Alice.

This fairly new 'advice' speaks of "Software-related [patents]," adding that "Computer software has its own patent category."

But what good are those patents?

The conclusion says this: "To understand how much does a patent cost, it’s important to know how the process operates. The patent system is set up to fuel innovation while protecting inventors from theft of their ideas. By following the proper steps and consulting with an attorney, you can protect your ideas with the appropriate patent. Just make sure to cover all of your bases when filing a patent, and spend the necessary money to file as strong a patent as possible."

Well, guess who wrote this article...

Recent Techrights' Posts

In Norway, Android/Linux Has Just Hit All-Time High (First Time Since 2020), GNU/Linux Already Very Prevalent
Despite its small population size, Norway gave us Qt and many other things
Microsoft's Mass Layoffs Very Wide-Ranging, Media Focused on Gaming Though Microsoft Mass-Firing Lawyers and "AI" Staff (Contradicting Its Supposed "Investment" in "AI")
Microsoft plans to fire almost half a thousand people in legal roles
2012 Article About the Free Software Foundation Blasting Canonical/Ubuntu Over Adoption of "Secure" Boot (Microsoft's Remote Control Over GNU/Linux Since PCs' Power-on)
By Katherine Noyes (article has since then became 404, not found)
Debian Can Dump Blind Users Because I am Not Blind
the sort of mentality we're up against
The European Patent Office Cannot Attract Proficient Patent Examiners Who Master Their Domain
They are enablers and facilitators of corruption
 
Gemini Links 19/07/2025: Git For Authors and Filtered Antenna
Links for the day
UEFI 'Secure' Boot Abuses by Microsoft to be Brought Up in the UK High Court in 3 Months
we'll seek compensation
Russia Set to Ban Facebook?
If WhatsApp is made to "leave", that means Facebook or "Meta".
Next Year It'll Be Half a Decade Since the Fall of Freenode (and IRC is Still Doing OK)
Our IRC network is still accessible using the exact same software that ran in Windows 3.x
Lupa Will Soon Know of 3,100+ Active Gemini Capsules
And some people in the "Small Web" try to tell us that Gemini is dying?
The Slopfarms Are Taking Real News Articles and Replacing Them With Lies Generated by Machines
Bluntly speaking, Fagioli is nothing short of an online scammer
Links 19/07/2025: Techtarget to Cull 10% of Staff, New Threats to Free Press in the US (Home of Dangerous and Violent Stranglers From Microsoft)
Links for the day
Gemini Links 19/07/2025: "Climate Justice” and Forking Programs
Links for the day
What Wayland and Microsoft/IBM systemd Have in Common
focus on what IBM (Red Hat) is pushing while running over critics.
Linux Already Has About 60% of the "Market"
"When mentioning the client side," opines an associate, "it is essential to recite the list of other markets where Microsoft is negligible or a no-show. It is repetitive to do so, but it needs saying -- often."
Finland (and NATO) Must Move to GNU/Linux and Dump Microsoft Even Faster
"Microsoft is not a technology problem, it is a staffing problem."
The Microsofters We Sued Helped Microsoft Make GNU/Linux 'Expire' This Year
"Linux and Secure Boot certificate expiration"
linuxconfig.org Joins linuxtechlab.com and Others, Becomes a Slopfarm With Fake Linux 'Articles' (LLM Slop)
They contain "linux" in their domain names, but they are just slopfarms
Links 19/07/2025: Microsoft Cuts in China and Wall Street Journal Sued for Reporting on Jeffrey Epstein
Links for the day
Fascistic Policies Got 'Normalised' in 'Public Office'. Let's Not Let the Same Happen in 'Tech'.
Political discourse typically guides what's "normal" and what "good citizens" should believe/feel
Yes, Your Mastodon Instance Will Also Shut Down
Few people run a one-person instance in the Fediverse
The Demise of GAFAM Necessitates Greater and Broader Awareness
Morale at Microsoft is really bad
Free Software Foundation Reaches 75% of Funding Goal
Not bad for this "Fosschild"
Slopwatch: 7 New Examples of Fake 'Linux' Slop Pieces (Plagiarism With Misinformation)
Serial Sloppers need to be shunned
Links 19/07/2025: Kapo-berg Settles, Software Patents Challenged
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 18, 2025
IRC logs for Friday, July 18, 2025
Links 18/07/2025: Peace With PKK and Connie Francis Dies
Links for the day
Gemini Links 18/07/2025: Alhena 5.1.8 and Bornhack 2025
Links for the day
How to Top Up a "Limited Liability" With Even More Limitations (Dodging Accountability in the UK)
Some people call it a "shell game". Sometimes it's done for tax evasion purposes.
Free Software Foundation, Inc. (FSF) Inches Towards 75% of Fund-Raising Target
Will the cutoff date be extended again?
Gemini Space (or Geminispace) Grows, But Usage of Certificate Authority Let's Encrypt Drops Further
Ideally, all Gemini capsules should use self-signed certificates
Links 18/07/2025: More Microsoft Layoffs in Activision, The New Stack (Sponsored by Microsoft) Complains About Openwashing
Links for the day
Gemini Links 18/07/2025: OCC25 Gnus for Reading Usenet and RSS Feeds, Small Web Updates
Links for the day
[Meme] 9AM Meeting at Brett Wilson LLP
Brett Wilson LLP in space
Listing as Staff People Who Left the Company More Than Six Years Earlier
There are apparently no laws against that
Brian Fagioli Shovels Up LLM Slop (Plagiarism) Onto Slashdot, Then Uses Slashdot for Affirmation or as Badge of Honour
Notice how some of his latest slop is presented ("as featured on Slashdot")
Social Control Media Productivity
Snapping photos of the bone
The Law Firm SLAPPing Us For the Microsofters Lost 72% of Its Tangible Assets in the Past Year, According to Its Own Reports
That might help explain why they're willing to tolerate serial stranglers from Microsoft as clients
Slopwatch: LinuxSecurity.com Slopfarm and Slopfarms Propped Up by Google News
"As LLM slop is foisted onto the WWW in place of knowledge and real content, it now gets ingested and processed by other LLMs, creating a sort of ouroboros of crap."
Links 18/07/2025: Weather Events and Health Hazards
Links for the day
Microsoft's All-Time Low in Finland
Microsoft is in a freefall
Security: Shane Wegner & Debian statement of incompetence
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 17, 2025
IRC logs for Thursday, July 17, 2025
Gemini Links 17/07/2025: "Goodreads for Gemini" and Defence of "The Small Web"
Links for the day
Links 17/07/2025: Anger and Morale Issues at Microsoft, Wars and Conflicts Get Digital
Links for the day
CALEA / CALEA2 is the Real Problem, Not Chinese Operatives Exploiting CALEA / CALEA2 (as Any Other Nation Can)
CALEA / CALEA2 is more of a front door than a back door
99.99% Uptime in First Half of 2025
Since January there was only one noticeable outage
Nils Torvalds and Anna "Mikke" Torvalds (née Törnqvis) Hopefully Use GNU/Linux by Now
"Torvalds Family Uses Windows, Not Linus’ Linux"
Attack of the Slopfarms
FUD-amplifying bots with slop images, slop text (LLM slop)
When People Call a Best/Close Friend of Bill Gates a "Serial Rapist"
Good thing that the Linux Foundation keeps the "Linux" trademark ("Linux Mark") clean
Not My Problem, I Don't Care
Context/inspiration: Martin Niemöller
Honest Journalism About the European Patent Office Ceased to Exist After SLAPPs and Bribes to the Media
The EPO is basically a Mafia
Microsoft Bankruptcy in Russia, Shutdown in Pakistan, What Next?
It seems possible that in 2025 alone Microsoft will have laid off over 50,000 workers
Life Became Simpler When I Stopped Driving and I Don't Miss Driving When I See "Modern" Cars
Gee, wonder why car sales have plummeted...
Why I Believe Brett Wilson LLP and Its Microsoft Clients Are All Toast
So far our legal strategy has worked perfectly
EPO Jobs Are Very Toxic and Bad for One's Health
Health first, not monopolies
Response to Ryo Suwito Regarding the Four Freedoms
the point of life isn't to make more money
Microsoft's Morale Circling Down the Drain
Or gutter, toilet etc.
What Matters More Than "Market Share"
The goal is freedom, not "market share"
Tech Used to be Fun. To Many of Us It's Still Fun.
You can just watch it from afar and make fun of it all
Links 17/07/2025: "Blog Identity Crisis" and Openwashing by Nvidia
Links for the day
Greffiers and the US Attorney of the Serial Strangler From Microsoft
The lawsuit can help expose extensive corruption in the American court system as well
Credit Suisse collapse obfuscated Parreaux, Thiébaud & Partners scandal
Reprinted with permission from Daniel Pocock
The People Who Promoted systemd in Debian Also Promote Wayland
This is not politics
UK Media Under Threat: Cannot Report on Data Breach, Cannot Report on Microsoft Staff Strangling Women
The story of super injunction (in the British media this week, years late)
Victims of the Serial Strangler From Microsoft, Alex Balabhadra Graveley, Wanted to Sue Him But Lacked the Funds (He Attacked Their Finances)
Having spoken to victims of the Serial Strangler From Microsoft
Links 17/07/2025: Science, Hardware, and Censorship
Links for the day
Gemini Links 17/07/2025: Staying in the "Small Web" and Back on ICQ
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 16, 2025
IRC logs for Wednesday, July 16, 2025