Bonum Certa Men Certa

Post-Alice €§ 101 Eliminates Most Software Patents, But Amid Heavy Lobbying €§ 101 is Not Secured

...nor is the Patent Trial and Appeal Board (PTAB)

EagleSummary: A glance at the latest moves against Alice and in favour of patent maximalism, which means endless litigation, patenting everything under the sun etc.

THE progress made towards abolishing software patents is profound. Even at the USPTO. We hardly believed we would ever get there.



"Litigants continue to use Alice and its progeny as a powerful tool to invalidate business method and software patents," this article said yesterday. Being a site of the patent microcosm, it's a complaint rather than a celebration. Here are some of the more relevant parts:

Litigants continue to use Alice and its progeny as a powerful tool to invalidate business method and software patents. That’s what happened recently in Mantissa Corp. v. Ondot Systems, Inc., et al, when Magistrate Judge Palermo of the Southern District of Texas invalidated fifty-two claims asserted by a software company from two of its patents (U.S. Patent Nos. 7,779,456 and 8,353,027) covering a “method of protecting use of an entity’s identity, the method being executed on electronic computer hardware in combination with software,” i.e., identity protection software for banking cards. In invalidating the claims under €§ 101, Judge Palermo relied heavily on comparisons to claims invalidated as abstract ideas in previous cases, including Alice, and ultimately found that the patent claims at issue covered merely a computer-implemented method of preventing identity theft—an idea that has “existed since the dawn of civilization.”

[...]

Turning to the second part of the Alice analysis, Judge Palermo found there was no “‘inventive concept’ sufficient to ‘transform’ the abstract idea into a patent-eligible application”—the standard from Alice. She examined the claim limitations individually (an analysis too in-depth for this article) and as an ordered combination, and found them insufficient under both analyses. Mantissa attempted to proffer additional limitations from the patent specifications to strengthen its inventive concept argument, but Judge Palermo was not swayed. Instead, she properly stuck to the claims themselves and noted that many of Mantissa’s proffered limitations weren’t even in the claims, let alone would they render the claims patentable. One factor that played a large role in her decision, and that should be familiar to patent attorneys post-Alice, was that the use of a computer network to implement the identify theft prevention method did not add a sufficiently inventive concept. She found that identity theft and the solution provided by the asserted claims were “decidedly technology-independent” and that the claims “[d]id not require doing something to computer networks, they require[d] doing something with computer networks.” Consequently, Judge Palermo concluded that the asserted claims failed to recite an inventive concept under step two of the Alice analysis, and so were not eligible for patent protection under €§ 101.


Alice is impossible to undo, only override in the form of another (newer) decision from SCOTUS, potentially overturning decisions from lower courts. So an alternative approach among the patent 'industry' has been to attack PTAB. Yesterday, or just before the weekend, PTAB bashers were at it again. See new tweets like this one, which stalks PTAB and says "Medical tech innovator denied patent bc PTAB says determining doseage with computers is apparently not technical..."

"Do they want billions of patent applications composed by computers to then be assessed by other computers?"Yet more PTAB bashing came from Crouch, who still cherry-picks the rare cases where CAFC vacates PTAB's invalidations. "In a split decision," he wrote, "the Federal Circuit has vacated the PTAB ruling that Stepan’s claims are not patentable." But that's the exception rather than the norm. His colleague, David, has just promoted more patent maximalism if not patent radicalism; now they peddle the idea of semi-computer-generated patent applications -- a subject we wrote a lot about earlier this year (as it had surfaced in the press). "In light of all of the above," David wrote, "if you take into account the increasing need for speedier issuance (and the need to file first under the AIA), the need for speedier drafting is obvious. The capacity of AI to satisfy that need is here, and its role will increase. (I’ve read about memo drafting services that area already in operation, for example. That’s coming on fast, too.)"

What he means to say is, patents will increasingly be generated by machines, or at least partly by machines. Do they want billions of patent applications composed by computers to then be assessed by other computers? Is this the future they have in mind? In the financial market it's stuff like this which crashes entire economies.

Suffice to say, we need to keep watching the interventions from the patent microcosm, which seeks to undermine all the progress made in recent years. According to this posting from yesterday, Watchtroll is organising a think tank-like session, probably in order to bash Alice, PTAB, and obviously to promote software patents, as usual

Much ink has been spilt over the chaos that is the law of patent eligibility in the United States, and rightfully so. Having said that, the Alice/Mayo problems that many applicants face have been confined primarily to a certain limited number of Art Units in the biotechnology and computer software areas.


What the above dubs "chaos" is actually the very opposite of chaos because the legal chaos that prevailed due to software patents is no more. A lot of firms no longer bother suing. Litigation dropped sharply and many trolls go out of business. Shouldn't that be celebrated?

Recent Techrights' Posts

It's Inevitable Anyway, So...
of course blame Chinese Communists for the "anti-AI" messages
Giving 'Free Publicity' to the People You Hate and Attack
Be careful what you wish for in social control media
Andrew Lee Has Turned Freenode Into a Slopfarm (Because Who Needs IRC Anyway?)
The site is churning out slop all day long
 
Identi.ca is Practically Dead, Just Like All Social Control Media (Eventually)
All Social Control Media is a waste of time
Gemini Links 02/09/2026: Intentions, Publishing on Workstations, and Connectivity Standards Alliance (CSA)
Links for the day
GNU/Linux Reaches 6% in Nepal
Today I checked GNU/Linux in Nepal again
SLAPP Censorship - Part 169 Out of 200: Calling People "Nazis"
'Cancel culture' in action
GNU Turns 43 This Month, GNU/Linux Turns 35 Next Year
It seems like no area of computing has not been impacted by the GNU/Linux revolution
Uber Debt Grew 2.5 Billion Dollars in 3 Months, Company Lays Off at Least 10% of Workforce
The media repeats the "official" numbers
Links 02/09/2026: The Machine Stops, AuraSearch, and DOOM 1/2
Links for the day
1-1 Meetings at IBM This Week, PIPs Expected, Maybe RAs Too
As usual, we invite whistleblowers to tell us what's going on
Links 02/09/2026: Germany Blames Russia for Leipzig Airport Drone Attack and China Gains Power as US Faces Humiliation in the Midst of Presidential Cover-up
Links for the day
Quit Talking About "AI Layoffs" and Talk About How Chatbots and Other Bots Broke Recruitment Processes by Cheating
Bots talking to other bots isn't HR; it's a catastrophe
Robotics Isn't "Hey Hi", Robotics Isn't New Either
Is the official Arduino blog becoming shilling platform for Qualcomm's "hey hi" [so-called 'intelligent'] chips?
Today We'll Focus on Growth of GNU/Linux
We've meanwhile noticed that Clownflare statistics for north American nations show 19% of requests (CDN) originating from GNU/Linux
IBM Secret (or Silent) Layoffs in September 2026
We need whistleblowers
Gemini Links 02/09/2026: GAFAM's E-mail Cartel, ROOPHLOCH 2026, and Homeworlds
Links for the day
Not Only Microsoft and IBM Hide Layoffs (Secret Layoffs) and Fail to Follow the Law (or Bypass It)
Microsoft's tactics are not so unique
People Who Participate in the Slop Plagiarism Pyramid Scheme and the Moral Dilemma (What's Acceptable for a Salary?)
giant pyramid scheme
State of the Slop, Linux Edition
Whether slop about "linux" becomes rarer by the end of this year, well... time will tell
Links 02/09/2026: 'Open' 'AI' (Proprietary Slop Plagiarism) Destroying Evidence, "Data Center Backlash Has Officially Rattled Scam Altman"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 01, 2026
IRC logs for Tuesday, September 01, 2026
FSF Staff Uses 'CoC' to Stop Conversation About Autistici/Inventati in Relation to Free Software
The list is already heavily moderated
IBM Allegedly Stopped Hiring (This Tends to Coincide With Mass Layoffs)
Is a hiring freeze an echo of layoffs? Yes, definitely.
SLAPP Censorship - Part 168 Out of 200: When Choosing Clients Recklessly and Poorly Self-Harm is Inevitable
"If you're doing something hard and nobody hates it, you probably aren't doing it. If the right people hate it and those people happen to be some of the worst people alive, so much the better."
Something Big is Happening at IBM This Week/Month
Some people at IBM (and Red Hat) are panicking
Gemini Links 01/09/2026: Biscuits, Epstein Files, Power Users, and Alhena 5.6.8
Links for the day
Links 01/09/2026: Almost 5,000 Missing/Dead in Nepal-China Flood and Marijuana Factory Explodes
Links for the day
September at IBM: Silent Layoffs on Day 1
PIPocalypse at IBM
Last Month IRC Entered Its 39th Year and It's Still Growing (New IRC Networks)
There are 511+ known IRC networks
Links 01/09/2026: Climate, Disinformation, Microsoft Overworking People
Links for the day
Richard Stallman's Site Still Offline (Third Day), But Richard Stallman is Active Online
he is busy online despite his site not being accessible so far this week
PIP Layoffs at Microsoft, Even in India
Microsoft is trying to hide the true scale of the layoffs
Layoff Trackers Are a Sham, They're Like US 'Unemployment Data'
Layoff trackers are similarly misleading as they only measure what companies openly admit and register with WARN notices
The Peculiar Case of OSNews, Which Experiments With Slopfarming
It wasn't published in error. It has been there for two months.
Russian Federation is Removing Windows From Computers
Windows is going "out of fashion"
XBox CEO Has No Clue What She is Selling
Some people believe Microsoft will parcel and offload the whole "gaming" unit to some other companies
analognowhere.com and xkcd.com Selling Physical Copies of Webcomics
That's one way to support their work
PIP/GVSA at Microsoft: Mass Layoffs Disguised as Something Else
Microsoft is trying to cheapen the workforce because the numbers don't add up
Microsoft Lunduke Uses Twitter ("X") Because It's Algorithmically Designed to Boost His Worldview/s, He Ignores What "X" Is
Maybe all those people really deserve one another
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, August 31, 2026
IRC logs for Monday, August 31, 2026
Censorship by Threats
It should be noted that the Web site of Richard Stallman will soon enter its third day of downtime
In Romania, GNU/Linux Reaches 6%, According to Clownflare
Tomorrow we'll see the latest data from statCounter (for September)
Gemini Links 01/09/2026: Denali Park Train Trip, Crafts, and Community-Building in smol.pub
Links for the day
Microsoft Workers Doing 80 Hours a Week After Microsoft Culled Their Colleagues
there are days when they work 17 hours a day (barely any time left to sleep and eat) and work starts at 5AM
IBM Defrauds Shareholders With Fake News (Bribed Press) About "Quantum"
That says a lot about the state of "Tech Giants" and also the utterly shameless state of the media
Record Highs for GNU/Linux, Especially in the United States of America
the "market share" of GNU/Linux is about 9%, still about a third of what Vista 11 stands at
PIPocalypse at IBM
Silent layoffs
Spending Over a Million Bucks on Lawsuits Abroad When There's a Big Mortgage to Pay in America
Priorities, priorities...
Gemini Links 31/08/2026: Announcing ROOPHLOCH 2026, smol.pub Discussion, and LLM Plagiarism Engines Target Geminispace
Links for the day
Richard Stallman's GNU Turns 43 in 4 Weeks, FSF Growing
In a few weeks GNU turns 43
IBM's Cuts Are Worsening Security in GNU/Linux
IBM is still run by the same idiot who proposed taking over Red Hat
Microsoft: Work Weekends Too
Microsoft literally working its workers to death
Links 31/08/2026: Anthropic Sued Again for Copyright Infringement of Massive Scale, 'Tokenmaxxing' Shows Slop is a Worthless Liability
Links for the day
Links 31/08/2026: "Teslas Are Still Driving Into Oncoming Freight Trains" and "LLM Moats Quickly Evaporating"
Links for the day
Stallman Has Explained Slop is "Marketing Hype Campaign" and Torvalds Agreed. The Difference is the Bribes.
So be like Stallman
Debian Project Discards About 25% of the Votes on LLM Slop, Microsoft Votes in the General Resolution (GR)
"[t]he rules of the vote saw community members asked to rank each of the eight proposals. Just under 600 people voted, but Debian’s election team rejected many for unspecified reasons, leaving almost 450 valid votes to count."
Essentiality of Rest and Killing Oneself for Vicious Companies
Working for Microsoft is foolish
In the UK, Bing (Microsoft) Down to Lowest Level Since January
our tax money being passed to Microsoft via MoUs (back door deals with kickbacks)
SLAPP Censorship - Part 167 Out of 200: The Court of Appeal Might be the Next Step
Today is our last vacation day
German Government Sponsors IBM Because of GNU/Linux
Flatpak is sponsored by, run, and controlled by IBM
Richard Stallman Speaks to Christine Hall of FOSS Force, stallman.org is Down for Over a Day
interview does a good job addressing the hype about LLMs too
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, August 30, 2026
IRC logs for Sunday, August 30, 2026
Gemini Links 31/08/2026: Holidays, Stream of Consciousness, and Posting Online
Links for the day