Bonum Certa Men Certa

Software Patents Are Still Dropping Like Flies in 2018, Thanks to Alice v CLS Bank (SCOTUS, 2014) and Section 101 (USPTO)

Keep software out of the patent system, except as tool/aid(e) for patent examiners

Old wires



Summary: Section 101 (€§ 101) is thriving in the sense that it belatedly throws thousands of patents -- and frivolous lawsuits that depend on them -- down the chute; the patent trolls and their allies in the patent microcosm are very furious and they blame PTAB for actually doing its job (enforcing Section 101 when petitioned to do so)

THE changes at the USPTO are well received by many software companies. They can finally waste less money on patents and litigation; instead they can focus on actual work (research and development).



"So why even bother with software patents at all?"The patent microcosm is still trying to scare companies into pursuing patents (lots of events, seminars, webiners, forums, presentations etc. to that effect) and this new article (just promoted by IBM's patent chief) is a good example of it. It's that same old patent advocacy, albeit it acknowledges upfront that "Alice Corporation Pty. Ltd. v. CLS Bank International set new limits on the breadth of patent claims."

So why even bother with software patents at all? Well, to IBM it's the (almost) last remaining asset, having spent decades applying for a humongous number of software patents. Here are the relevant paragraphs from the article:

During our patent review, patent laws in the United States changed. Shortly after we filed our application, the supreme court's verdict in Alice Corporation Pty. Ltd. v. CLS Bank International set new limits on the breadth of patent claims. Patents could no longer just encompass an abstract idea.

We had written our application based on previous laws (as one does). But when laws change, your application is reviewed based on the new laws -- not the laws of your filing date. We then had to amend our application, which added more delays.

Again, always remember to over budget your time and money.


Does it not seem obvious already that software patents are a waste of both money and time? No matter how one 'dresses them up', patents on algorithms are software patents, even if they're described as "AI" or "machine learning" or whatever. These terms are not new and they are not particularly exciting. They're a new loophole for software patenting and some patent attorneys now justify them for automatically-generated patents. From down under today (regarding Section 101):

In the United States, 35 USC 101 states that ‘[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor…’ – a provision that is ultimately authorised by Article I, Clause 8, Section 8 of the US Constitution, which grants Congress the power ‘[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.’ Article 60(1) of the European Patent Convention provides that ‘[t]he right to a European patent shall belong to the inventor or his successor in title.’ Section 15 of the Australian Patents Act 1990 stipulates that a patent may only be granted to ‘a person who … is the inventor’, or persons (natural or legal) who legitimately derive the right from the inventor.


So what? So you want to throw millions or billions of computer-generated patent applications for manual assessment by human examiners? Or by robots? Should the system be reduced to such lunacy? There used to be jokes over a decade ago, back when scientists produced computer-generated academic papers and many were accepted for presentation at conferences (after peer reviewers wasted their time assessing mumbo-jumbo). It was known as SCIgen.

"So you want to throw millions or billions of computer-generated patent applications for manual assessment by human examiners? Or by robots? Should the system be reduced to such lunacy?"Over the past week we have seen many rants about Alice. Blog posts about it are led by exclamation marks and defenders of patent trolls vent their anger at PTAB. Here's one of the worst mocking a decision; It's a "PTAB decision rejecting game modeling using sensor data under 101" and here's another with all caps: "FACTS? WHO NEEDS FACTS?" Here he is accusing PTAB of "laziness in assessing 101 eligibility" and more of that habitual mockery of PTAB. Remember that this guy cooperates with a large patent troll. On another Section 101 rant he said: "THEY CAN DO THAT?"

"Over the past week we have seen many rants about Alice."Anger management 101 seminar might be of some help here. A friend of his similarly complained about Section 101 "in Rejection of Facebook Patent Application" and then about "amino acid sequence of a soluble glycopeptide held patent ineligible under 101/Mayo by the PTAB..."

Section 101 again intercepted (at PTAB) a "Robert Bosch Patent Application" and "PTAB affirmed 101 rejection by Examiner of Change HealthCare patent application" (see the trend yet?).

This latter person likes to say that Section 101 "Kills" (or "Killed") patents, misusing militaristic narratives as if patents are people. That makes as much sense as claiming teachers who fail their students to be "killers" of children. "PTAB Killed Wireless Communication Patent under Alice," he wrote.

"This latter person likes to say that Section 101 "Kills" (or "Killed") patents, misusing militaristic narratives as if patents are people."Notice how every time Alice and/or Section 101 get brought up the patent/s is/are finished. The PTAB judges are finally cleaning up the mess.

Well, surveillance "on a mobile device" is not a patent-eligible, apparently. Same cause; Section 101.

Then there's this: [via]

Soil Sample Tracking Patent Not Invalid Under 35 U.S.C. €§ 101



The court denied defendant's motion for summary judgment on the ground that plaintiff’s soil sample tracking patent encompassed unpatentable subject matter because the asserted claims were not directed toward an abstract idea.


It sounds like a very stupid patent, but not pertaining to software directly or even indirectly. Hence it endured the likely irrelevant test (in the Indiana District Court). Alice/Section 101 is no magic wand as some frame it; it's only useful when applied to actually "abstract" patents on mere ideas like algorithms.

"Alice/Section 101 is no magic wand as some frame it; it's only useful when applied to actually "abstract" patents on mere ideas like algorithms."R+L is apparently pestering the Supreme Court over Alice even though the decision is a "done deal" and nothing to do with commercial agenda. As Patently-O put it the other day: "In its newly filed petition, R+L asks the Supreme Court to add further depth to the abstract-idea analysis. Namely, the the patentee asks whether Step 1 of Alice can be performed “without analyzing the requirements of the individual claim steps?” The petition also raises the important question of whether the eligibility analysis allows for any factual inquiry."

Well, it has certainly helped those who actually create and invent things; the only complaints about Alice seem to come from lawyers and trolls. The patent microcosm, as usual, is cherry-picking quotes to harm PTAB. Even though the attacks of PTAB subsided over the past week, there are still some efforts to 'scandalise' it. We'll keep an eye on that. PTAB is by far the biggest enforcer of Section 101 and with growing numbers of rulings/petitions we can expect 2018 to be a very dark year for software patents.

Recent Techrights' Posts

When (Almost) One-Man Operations Are Disguised as Medium-Sized Companies
the CEO hides in the US (hiding from his ex-wives, 4 daughters from those wives, and Sirius staff that he defrauded)
Microsoft Actually in Trouble, Microsofters Unable to Obey Judges' Orders
For the second time in a week, Microsofters are unable to obey orders
Over at Tux Machines...
GNU/Linux news for the past day
Microsoft's Debt Exploded by 15.4 Billion Dollars in the Past 9 Months Alone (Despite All the Layoffs)
As of minutes ago, at 6PM on a Friday, the numbers are made public
 
Video: The Rise of GNU/Linux and Free Software as Seen by RMS in 2004
DTP's founder argued that when Windows goes below 85% "market share", it'll lose its grip in the monopoly sense
Russia: GNU/Linux Rises to Highest Adoption Level Since Invasion of Ukraine
Moving up in the north
Microsoft's Latest Financial Report: We "Gained" 300 Million Dollars in "Goodwill" and Liabilities Grew by 32 Billion Dollars
Microsoft's debt has reached an all-time high
The Register US = The Register MS
Formerly The Register UK
Weeks After Microsoft Shut Down Its Operations in Pakistan Windows Falls to All-Time Lows
Only less than a month ago it was quietly revealed, based on laid-off staff, that Microsoft shut down in Pakistan
Criminal Behaviour is the Standard Operating Procedure at Microsoft
In the future I'll be able to tell how, when dealing with SLAPPs from Microsofters, their Microsoft services failed me and sometimes even blocked my contacts
GNU/Linux Rises to All-Time Highs in Europe
many people will get fired for buying Microsoft
All-Time Highs for GNU/Linux on the Client Desktop/Laptop, Based on Steam Survey
GNU/Linux rose to 2.89% in Steam
Links 02/08/2025: Blaugust 2025 and "Russia Declares Navalny Memoir ‘Extremist’"
Links for the day
Free Software is Not a Business Model
Go ahead, ask your friend, "how do you plan to monetise your children?"
LLM Slop Harms Real Literature, Real Web Sites, Real Journalism
LLM slop is a parasite and it'll run out of legitimate outputs
Upcoming OSI Scandal Series
The OSI is a rogue actor because it serves Microsoft in exchange for money
Slopwatch: The Issue Persists, But the Consensus in the Media Changes as Google Enrages It With LLM Plagiarism
We've meanwhile assessed the latest output from Linuxiac
IRC Proceedings: Friday, August 01, 2025
IRC logs for Friday, August 01, 2025
Links 02/08/2025: İstanbul Retail Inflation Reaches 42.48%, US FBI Opens Office in New Zealand
Links for the day
Gemini Links 02/08/2025: ZFS, LLM Hype, and Fake Modules
Links for the day
Links 01/08/2025: Health, Conflict, and Attacks on Freedom of the Press
Links for the day
Meeting (Webchat) With Maria Arranz Gomez, Florian Grundies, Jürgen Janda and Konstantinos Kortsaris Confronts EPO Management About Breaking Promises and Crushing Workers
The lack of consistent messages suggests plans other than what's advertised and the lack of consultation (secrecy) likewise
Links 01/08/2025: "The Great British Firewall" and U.S. Army Sponsors Palantir
Links for the day
For Second Day in a Row, Top Story in The Register MS is "Microsoft Says"
The editor in chief exercises control over everybody else
LLMs as Attack Method Against Free Software and Programming
DDoS in "hey hi" (slop) clothing
Stability and Reliability, Backward Compatibility
I don't fancy relying on social control media as "sources"
What "the News" Looks Like in 2025
The "says" (or "sez") phenomenon
History Will Be Distorted, Sometimes Intentionally, Under the Guise of Intelligence (Manipulated/Curated Slop)
Militarised misinformation or military-grade chaff is a national security threat, even domestically
Financial Engineering Companies: A Company Worth 4 Trillion Dollars Would Not Borrow 100+ Billion Dollars at Interest Rates Like Today's
Many headlines perpetuate the lie Microsoft had just 2 waves of layoffs
Microsoft is Googlebombing "Linux" While Paying Former News Sites to Publish SPAM
How much lower will IDG sink?
Google as a 'Bullshit Generator' Disguised as Intelligence
It'll probably cause Google to get sued a lot, both by individuals and companies
As Expected, Google in the UK Now Experiments With Slop Instead of Web Search
At this point more people ought to stop and think: Does Google's search engine deserve trust?
The Data You Don't Give Away is Your Advantage
stop sharing data that does not need to be shared
Being Obedient or Doing the Right Thing
The world always changes for the better because of people who think "Outside the Box", not the cogs
Gemini Links 01/08/2025: Happy Hacking Keyboards and New Gemini Arrivals
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 31, 2025
IRC logs for Thursday, July 31, 2025
Sabotaging Linux on Behalf of Microsoft With UEFI 'Secure' Boot (De Facto Remote 'Kill Switch'), Then Defaming, Stalking and Harassing Critics of 'Secure' Boot for 12 Years, Then SLAPPing Their Spouses and Them
The sorts of stubborn lunatics we've been dealing with
Moving on in Techrights, Geeks Gonna Geek
In the coming weeks we plan to focus (as we explained last week) on patents, GNU/Linux issues, and the occasional philosophical essays
Slopwatch: Google News Has Lost the Plot
Almost the majority of articles returned for "Linux" are fakes
Links 31/07/2025: Australia Restricts YouTube Access, Personal Privacy at Risk
Links for the day
Links 31/07/2025: Spotify Collapses and Spotify Now Forcing Some Users to Undergo Face-Scanning
Links for the day
A Lot of Supposedly "Successful" Businesses Are Just Debt-Racking Vessels Without Any Prospects of Financial Sustainability
The probability of bankruptcy of any business is more than 0%
theregister.com: The Voice of Microsoft US?
It basically sold out
Yes, You Can Love and Adore Things Whilst Also Criticising Them
Is society being divided and groomed/primed to be resistant to constructive criticism?
Links 31/07/2025: War in Ukraine, Security News, and Cyberattacks Against Journalists on the Rise
Links for the day
Gemini Links 31/07/2025: Fake Money and Gemini Diaries
Links for the day
An Illusion and Cult Worship of Magnitude (Ubiquity as "Victory")
GNU has been around for over 40 years and it'll likely continue to exist for another 40 (in some form)
Google: From Pointing to Relevant Sites to Pointing to Social Control Media to Actually Parroting Social Control Media as "Facts"
Google has become a misinformation company
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 30, 2025
IRC logs for Wednesday, July 30, 2025