Bonum Certa Men Certa

Instead of Worrying About Alice, the Patent Microcosm Ought to Accept That Software Patents Have Been Rendered Obsolete by Software Copyrights

They are still trying to come up with loopholes around Alice

An Ontological Model for Determining Section 101 Patent Eligibility under Alice
An Ontological Model for Determining Section 101 Patent Eligibility under Alice [PDF]



Summary: While it is widely recognised -- at least among technical people -- that it is not worth pursuing patents on software (courts if not examiners would crush hopes of assertion/enforcement), the patent microcosm continues to sing a different tune in order to sell services

TECHRIGHTS soon enters its twelfth year. It's a milestone because the site has run nonstop throughout these years. Software patents were always the primary issue. Here we are at the end of 2017 and as we noted some days ago, the higher courts in the US (including the Federal Circuit) have effectively ended software patents. Those which were granted by the USPTO don't make it far; upon challenge, sometimes citing Alice, these patents get discarded. Throughout 2017 the high courts were very consistent on this.

"Here we are at the end of 2017 and as we noted some days ago, the higher courts in the US (including the Federal Circuit) have effectively ended software patents."The patent microcosm, which got accustomed to making money from software patents, keeps moaning that abstract patents are rejected outright. Get used to it.

Rather than accept defeat and pursue something else, these stubborn people try to utilise and master new 'tricks'; they want to pursue software patents in spite of Alice, irrespective of what courts (with expert testimonies and other scrutinisers) may inevitably say.

DLA Piper LLP's Larissa Park has just published this article in which she insinuates that software can be patented. Not so constructive an advice...

"The patent microcosm, which got accustomed to making money from software patents, keeps moaning that abstract patents are rejected outright."Software is not patentable. It's no longer worth pursuing in the US. Want some software patents in spite of it? Then go to China...

Want to protect software developers from plagiarism? Then rely on copyright instead. It already does the job pretty well, for both proprietary and Free/libre software developers. Enforcement or compliance is accomplished differently, but it works. To quote Park:

If your product or service involves software, you should explore the possibility of filing for and obtaining a software patent. While copyright can protect your actual code from being copied; copyrights cannot prevent others from independently (i.e., without copying) developing the same software. On the other hand, a patent can permit you to exclude others from practicing the functional aspects of the software claimed in your patent, even if the other party independently developed the software. See our corresponding article on patents.

The federal government grants patents on new, useful and non-obvious inventions. While features and functions of your software may be new and non-obvious, the biggest hurdle to obtaining patent protection can be overcoming the useful requirement, that is, whether your new and nonobvious software is even eligible for a patent.

[...]

Software can be protected with copyright and trade secret. As noted above, copyright will protect you from someone copying your actual code. However, you will not be protected if that person independently develops his or her own code that performs similar functions. More details on copyright protection can be found in our corresponding blog post on copyrights. Trade secrets can protect the structure and methodology of your software, but will require you to implement confidentially procedures to keep the material secret. Once the information you are attempting to protect with a trade secret becomes public, it will no longer be protected by trade secret law. More details on trade secret protection can be found in our corresponding article on trade secrets.


Park is correct only in the sense that software can be reimplemented to work around copyright issues, e.g. in a different programming language. The issue she fails to address, however, is that in a world with hundreds of thousands (perhaps millions) of software patents developers won't be able to safely write any code at all. Since she and her colleagues rarely (if ever) claim to have developed software, perhaps the reality of it conveniently evades them*. Moreover, they may simply not care about software development at all; for them, the important thing is maintaining litigation and an atmosphere of hostility. They profit from it.

"Since she and her colleagues rarely (if ever) claim to have developed software, perhaps the reality of it conveniently evades them."What's also absent (or lacking emphasis) in the article from Park is Alice. In the dawn of 2018 it makes absolutely no economic sense to invest in software patents; companies should, instead, form a strategy around copyrights (or copyleft). The world is changing and one must move on with the times...

The new journal article at the top is Alan Gocha’s paper on “Section 101 patent eligibility under Alice.” Patently-O mentioned it a few days ago and so did a few other people. To quote Patently-O:

Alan Gocha’s new article focuses on patent eligibility and provides “an ontological model for determining section 101 patent eligibility under Alice.” I think the most important contribution that Gocha makes is to categorize abstract ideas into those that are “inherently abstract” (preexisting fundamental truths) from those that are only “temporally abstract” (longstanding practices).


Alan Gocha is not a software developer but an attorney or law professional. So these people tend to speak of software from a more philosophical or theoretical perspective, not practical or professional. Gocha, in this paper of his, repeats the patent microcosm's talking points, e.g. that there's lack of "clarity" or "clarification". Gocha says that the "Supreme Court and Federal Circuit [two of the most software patents-hostile courts nowadays] case law can be synthesized to provide a comprehensive set of rules to help guide the Alice analysis." It's an effort to find new loopholes, that's all it is.

"The patent microcosm likes to demonise technology companies as if law which leans towards technology companies is an abomination -- almost as though the law is intended to protect the lawyers rather than developers.""Test Wording" is the title of one section, which says that "[a] claim is directed at an abstract idea if a theoretical being that has errorless and unlimited computative capacity could essentially duplicate the claimed invention in its mind."

That can be done with any algorithm; the author then alludes to "non-tangible ideas for which can be entirely performed in the mind—i.e. purely cognitive processes" and again -- this applies to virtually any algorithm, which can be tackled/solved using pen and paper.

We recognise that it's hard for the patent microcosm to let go; it probably made billions of dollars (altogether) from the terrible decision to permit software patents since decades ago; but things have changed and the way software gets developed and distributed changes very rapidly owing to the Internet. These people ought to focus on copyright/copyleft if they want to remain relevant. The paradigm is inherently different (even if they still refer to it by the misleading term "IP"), but this is what software developers actually want. The patent microcosm likes to demonise technology companies as if law which leans towards technology companies is an abomination -- almost as though the law is intended to protect the lawyers rather than developers. That's just sheer Hubris. ⬆ _____ * Gene Quinn (Watchtroll) got very irritated after he had claimed that he writes code and once asked for proof of it he was unable to produce or even name any. Instead, he blocked me to avoid further interaction. In other words, it's unlikely that he ever wrote any computer program and he continually demonstrated that he does not understand how computers even work. Actual software developers started mocking him for it and he could not deal with it. If these are the sorts of people who lobby the hardest for software patents, we are in serious trouble. They lack the most basic understanding of digital operations and tools, such as compilers, assemblers, interpreters, and processors.

Recent Techrights' Posts

Intercontinental Brigading - Part VI - Racism Against Blacks
Systems don't always work as intended
Trillions of Dollars in Debt Are Not "Investment", More People Realise This Now
"Investors started offloading shares on Wednesday in response to an X post about the debt load of CoreWeave Inc..."
Intercontinental Brigading - Part V - Keeping Linux Under Users' Control, Not Microsoft's (NSA) Control, Leads to Weaponisation of Cops (Killing the Messengers)
Transatlantic lawfare
 
Gemini Links 17/10/2026: Big Glowing Advertising Screens, Busy October, and Art
Links for the day
The First Casualty: The Reputation of Linux Developers (and of Linux)
The last thing you can take from a person is pride
Links 17/10/2026: Europe Divorcing US President Putin (Kompromat), MElon and Kapo-berg ("Meta") Buying US Elections Again
Links for the day
GAFAM LLMs Seem to be Causing Veteran, Experienced Linux Developers to Quit, Only to be Replaced With GAFAM Bots and Unaudited Slopfest 'Code'
Better than 'pulling a SCO'?
30 Years of KDE and "Project Banana"
KDE recently turned 30 (many blog posts about it this past week)
Inevitable Things
"Bitbucket was Inevitable"
Andy's Passing Thoughts on Media Dying, Not Reporting News (Even Critical News About Itself)
No more news
Stallman Was Right About Torvalds
The crowd/audience Linus Torvalds panders to is paid by GAFAM to go attend and dominate (speak at) LF events. They're people whose employer forces them to use slop, it's inorganic.
Links 17/10/2026: "Why Math Dumped OpenAI", US Third Circuit Has Confirmed LLMs and Other Slop Constitute Plagiarism or Copyright Infringement
Links for the day
GPL Was Right (About Hoarding, Now Automated With Plagiarism Blenders)
Some time next year the UK's High Court might listen to arguments related to this
Microsoft Allegedly Asks Many Workers to Leave at the End of This Year (or Get the Boot), It's Called Voluntary Exit Program a.k.a. Voluntary Early Retirement Program (or VEP) Even for People Far Too Young to Retire
"Everyone at Microsoft knows what those acronyms mean."
The Torvalds-led Slopfest as a Reminder to Pursue Software Freedom, Not Plagiarism Endorsed (for Money) by 'Linux' Foundation
What's happening this month moreover proves that he is not in control of important decisions in his project
Why We Never Got Back to IPFS
Practically speaking, we could get back to IPFS any time
Red Hat Silent Layoffs: October 1 Bluewashing, Then Leaving IBM Altogether
It's said that weeks from now there will be another "round" (of "RAs")
Gemini Links 16/10/2026: Metrovision, Smartwatches, and Rekindled Love for Geminispace
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 16, 2026
IRC logs for Friday, October 16, 2026
TeamBlind Accused of Censorship, Maybe Surveillance in the Future
It's expensive to protect whistleblowers and to resist censorship of what whistleblowers try to expose
Another Friday 'Litter' of IBM Workers, Discarded and Sometimes Replaced to Cut Costs
The little that IBM earns is spent buying companies to pretend there's "growth" and headcount stability
Gemini Links 16/10/2026: Carrie, Games, and Slop
Links for the day
Links 16/10/2026: Election Interference by Slop; White House Backs Russia, Not Ukraine
Links for the day
The Register MS Has New 'Article' That Has "AI" 20 Times. "SPONSORED POST" As Usual.
At the end, both the media and the pyramid scheme will collapse
UK's Competition and Markets Authority (CMA) Says Microsoft is Still Abusive
Today, ahead of the latest fake 'results' [...] Microsoft cheats the system everywhere it can
Links 16/10/2026: "Data Centers Are Driving Conservative Rural Voters to The Democratic Party En Masse" and Slop Bros Bribe Candidates "for Congress"
Links for the day
Deplatforming People You Disagree With Is a Losing Strategy
Trying to deplatform people you don't agree with is oppressive and petty
Microsoft Cannot Pay Salaries
Microsoft is deep in debt
IBM "support that is USA based will migrate over 4 years to Indian based just because it lowers costs substantially."
IBM is not capable of growing, so it tries to find ways to shave off costs
Gemini Links 16/10/2026: Publishing and Licensing, Going to Movies, and Nature/Seasons Change
Links for the day
Microsoft's OSI Calling Slop "Open Source AI" (Microsoft Paid OSI to Do This) Has Helped Associate "Open Source" With Pedophilia
Microsoft deflecting?
Fridges Do Not Need an Internet Connection
Keep it simple, stupid (KISS)
Wikileaks Still Matters
The world needs more sites like these
'Cocaine King' Campinos Should 'Get the Message', Pack Up His Things and Go Already
His staff is constantly on strike and engaged in various industrial actions
We Don't Do Slop
People tend to appreciate genuine work, not fakes
On Lying With Confidence
LLMs are hype
Market Share of Windows in the United Kingdom is Shockingly Low
Microsoft's losses are very profound
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 15, 2026
IRC logs for Thursday, October 15, 2026
Microsoft Can Barely Afford to Colonise Africa Any Longer (Too Much Debt)
"Before the announcement, former Microsoft employees publicly described staff being placed on performance improvement plans or offered “voluntary” exits."
Intercontinental Brigading - Part IV - Harassment Registered With the Police Before Projection Attempts Made From America
The thing one gets subjected to for opposing back doors in Linux
Gemini Links 16/10/2026: Dogs, Slop, and Blogging
Links for the day
The Fate of "Alicante Mafia" at the EPO Yet to Be Determined
It'll be interesting to hear what they say about the secret meeting regarding the future of Campinos
Gemini Links 15/10/2026: Medical Difficulty, Science Fiction, and Playstation 3 Dies
Links for the day
Links 15/10/2026: Cuts to Public Health and Misuse of License Plate Data for Social Control
Links for the day
Links 15/10/2026: ALPRs Are Mass Surveillance, GAFAM Front Group ('New' EFF) Asks the Wisconsin Supreme Court to End Warrantless ALPR Searches
Links for the day
IBM RAs: "It's on Me"
IBM has no respect for the workers and it tries to hide the layoffs
Gemini Links 15/10/2026: Literature, Funerals, and Devices
Links for the day
The Efforts to Criminalise Opposition to a Ponzi Scheme Sold as "Super Intelligence" (Plagiarism Engines, Disinformation Generators)
Cops are becoming combatants for slop bros, i.e. they use power to promote a Ponzi scheme
Clownflare Sees Most Requests in Africa Coming From Android (Linux)
Android is the dominant platform
IBM's "RA Season" is Nearly Upon Us, But Tens of Thousands Are Already Marked for Removal With PIPs (as "Low Performers")
IBM is a dying company
Microsoft Has Confirmed It Had a Plan to Cut Azure (or Azure Costs) by 20%
So basically... yes! Microsoft did have a plan to slash Azure.
No Noticeable Libera Chat Exodus After Code of Censorship (CoC) Scandal Earlier This Month
Libera Chat pissed off some people by unmasking the CoC's real purpose
Red Hat Silent Layoffs Seem to Carry on Throughout This Month
How much longer will these silent layoffs (e.g. PIPs) carry on for?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 14, 2026
IRC logs for Wednesday, October 14, 2026