Bonum Certa Men Certa

Software Patents Trickle in After €§ 101/Alice, But Courts Would Not Honour Them Anyway

Buzzwords are used to disguise patents on algorithms, but in-depth analysis would expose them for what they really are

Swinging ball
Pendulum does not swing back; buzzwords just move back and forth



Summary: The dawn of €§ 101/Alice, which in principle eliminates almost every software patent, means that applicants find themselves having to utilise loopholes to fool examiners, but that's unlikely to impress judges (if they ever come to assessing these patents)

THE USPTO will continue to grant software patents in the foreseeable future, but that does not mean that these patents will be able to cause much damage. Why not? As we shall show later today and tomorrow, PTAB smacks down many of these patents. It's an invaluable mechanism of quality control, akin to oppositions and appeals at the EPO.



One might ask, "why are software patents granted after Alice?"

The answer is simple. There are tricks. The EPO and other patent offices too have tricks. Those are usually designed to bypass examiners' guidelines -- the sorts of guidelines that matter a lot less to courts which assess past court cases and underlying evidence, such as prior art and expert testimonies. Knowing that the courts are hostile towards software patents, many potential plaintiffs (patent holders) will not even bother suing. And that's a good thing.

This post concerns few of the aforementioned tricks, which exploit loopholes. Many of them are nowadays buzzwords, which help dodge €§ 101/Alice (at least at a superficial level). At the EPO they like to use terms like "technical effect" or "device", but in the USPTO it looks like "Artificial Intelligence" (AI) is currently one of the favourites because the corporate media resurrected that hype. Almost any algorithm can be framed as "AI" as it's a rather nebulous concept. We previously wrote many articles about other buzzwords, such as "cloud", not to mention the old "over the Internet", "on a computer" and so on.

Finnegan, Henderson, Farabow, Garrett & Dunner LLP, a very large law firm, is still all about buzzwords in patents. Without even delving into the underlying granularities, the headline alone is rather telling: blah blah blah Artificial Intelligence blah blah.

Wow. Must be innovative because "AI" is supposedly "hot"! Granted! Yesterday Watchtroll wrote about passage of some patents in the "self-driving space," arguing that it "delivers on Didi’s commitment to invest in artificial intelligence capacity."

Whatever!

I already wrote some algorithms related to this (self-driving tools) and the only "AI" in it tends to be some classifier trained on an image set to help segment an unseen image (or long sequence thereof). That's hardly innovative. It could be made to work several decades agp and in fact there were working implementations a long time ago; they just lacked sufficient computing power.

Here's what Finnegan says in relation to "AI" and €§ 101:

In addition to €§ 101 concerns, AI in medicine raises questions of inventorship and ownership in patent law. The US patent system only recognizes individuals as inventors,38 not companies39 or machines.40 But with AI, it may be the machine that is taking the inventive leap, not the human programmer. Recently, both Google and Facebook have seen AI develop its own language to perform the assigned tasks, eschewing known languages in favor of a more efficient means of communication.41 As the use of AI grows in medicine and the life sciences, it is more and more likely that the AI will be the entity taking the inventive step, drawing new conclusions between the observed and the unknown. Indeed, current AI systems develop their own code as a result of the system’s training.42 If that is the case, the United States Patent and Trademark Office (USPTO) and the courts will have to decide whether the current Patent Act encompasses computer-based inventors, and if not, who among the humans responsible for the AI should be considered an inventor.43 The list of possible human inventors includes the AI software and hardware developers, the medical professionals or experts who provided the data set with known values or otherwise provided input into the development of the AI, and/or those who reviewed the AI results and recognized that an invention had been made.


Examiners ought to be reminded that "AI" just means algorithms and patents on algorithms are annulled by €§ 101. Here's an example of computer vision patents that have just been granted by the USPTO. This article says: "The last patent includes foreground motion detection in compressed video data with software that can tell the difference between background and foreground features in compressed video streams."

That's pure software. Surely they know these are worthless after Alice? Or maybe they delude themselves into thinking otherwise? In relation to an Olympian called Vincent Zhou there was coverage some days ago that said: "One is a 28-year-old from a blue-collar home in Scranton, Pennsylvania. The other is a 17-year-old son of Chinese immigrants, two computer scientists, who hails from California."

"She owns numerous software patents," it said further down. Well, too bad they're worthless now, eh? Here's another new example of patents on software, this time from LINE. Again, these patents are worthless after Alice. Why are they being granted? As we shall show in a separate article, few grants are even being challenged; those that do typically perish (PTAB overturning examiners' determinations).

Here's another software patent. "GBOX develops all software both inhouse and with international subsidiaries," says the release, "and has been awarded 5 provisional patents for its technology."

How many of them (if any) are even worth anything?

"With Valentine's Day upon us, one would rightly suspect that there is already an abundance of patents and patent applications related to online dating software," lawyers' media said some days ago. But software patents are worthless now. They themselves call it "software". Do they conveniently overlook the issue? Don't they try to disguise it by calling it something like "technology"?

"Blockchain" is another term that we often see used in relation to software patents. That's just a tired new loophole that software patents proponents love to exploit. It's an algorithm. And watch the China envy:

China is leading the world in blockchain patents: incoPat published the 2017 Global Blockchain Patent Ranking (top 100) applications for invention-, utility- and design-patents. See: http://www.iprdaily.cn/news_18252.html pic.twitter.com/DZLTnkuXdw


Well, China -- unlike the US -- actually permits software patents, so there might be nothing wrong about this. There's something wrong with the policy, sure, but not with the application thereof.

For the record, we're not against patents that aren't on algorithms. We're very picky in selecting what to criticse. Here, for instance, is a press release about a new patent settlement over bar code readers (not software, no problem). It says:

Honeywell (NYSE: HON) today announced that it has reached a settlement with Code Corp., a company that manufactures bar code readers, to settle Honeywell's claims that Code infringed certain Honeywell patents related to bar code scanning technology.


The scanning techniques tend to involve sensory aspects that are hardware-side, not software-side heuristics. The projection and reflection of infrared lights for instance.

Thankfully, as time goes by we see fewer software patents slipping through the sieve. Does that mean that the USPTO will stop granting software patents altogether one day? We doubt it. But the number of lawsuits over algorithms will decline sharply unless something radical happens (like PTAB getting squashed).

Recent Techrights' Posts

Invitation to General Assembly After 1,200 EPO Workers Participated in the Demonstration 3 Days Ago
"the strike of 19 March was also very well followed."
SLAPP Censorship - Part 17 Out of 200: A Long Track Record of Online Abuse, Then Choosing a Low-Cost Law Firm to Muzzle People Who Have Illuminated This Abuse for Over a Decade
Censorship by targeting ISPs and webhosts isn't unprecedented
Symptom of Publishers Dying: They Move to Adopt Slop. Symptom of Software Companies Dying: They Move to Adopt Slop ('Vibe').
It'll always fail. It's hype. It's a bubble.
Under IBM, Red Hat Replaces Code With LLM Slop, Fedora is Slopware
Not even hiding it, those things are in plain sight
 
Links 21/03/2026: David Botstein Dies, Slop as Censorship Apparatus
Links for the day
Links 21/03/2026: Metastablecoin Fragmentation and Crescent Moon
Links for the day
Gemini Links 21/03/2026: Historic Ada Docs; The Lurking LLM on the SmolNet
Links for the day
HSBC the Latest Failed Bank Using Slop as Excuse for Its Financial Failure
"HSBC is planning on cutting as many as 20,000 jobs in the near future as the company allies with AI revolution."
A/Prof Susan G Kleinmann, Enkelena Haxhija & Debian-private risk to MIT
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 20, 2026
IRC logs for Friday, March 20, 2026
Plagiarism in "Linux" Clothing (LLM Slop in linuxiac.com, LinuxTeck.com, and linuxsecurity.com)
The net effect of those slopfarms is very negative
Links 20/03/2026: Facebook Weaponised Politically, Openwashing by LF and NVIDIA, Encyclopedia Britannica Sues Microsoft Proxy for Plagiarism
Links for the day
The EPO's Local Staff Committee Munich (LSCMN) Explains to the Administrative Council (AC) How Bad Things Have Become at Europe's Second-Largest Institution, Biggest Patent Office, and Corruption/Cocaine Hub (Jobs Sold to Friends)
We'll say a bit more tomorrow
IBM's Red Hat Diversity: Only 3 Women (Out of 11 Leaders)
For comparison's sake, the FSF is about 50% female
Gemini Links 20/03/2026: Depictions of Culture and The Social Smolnet
Links for the day
SimilarWeb Was Never a Reliable Yardstick for Traffic
5RB may need some "house-cleaning"
Strangulation, suffocation, Jonathan Carter & Debian toxic culture confirmed
Reprinted with permission from Daniel Pocock
Reports or Hearsay Suggest Ogilvy Broke Up With IBM and Insiders Report Mass Layoffs in "Infrastructure" (Might Impact Red Hat Entrants)
hearsay in Social Control Media
Scheduled Server Maintenance Tomorrow Night
Starting 9PM
None of the Above (NotA) & Debian snubbing Sruthi Chandran
Reprinted with permission from Daniel Pocock
Links 20/03/2026: Cryptography Pioneers Win Turing Award and BMG Sues Anthropic for Copyright Infringement
Links for the day
Even Uganda Understands That Journalists Never Belong in Prison
"Ugandan authorities must respect the spirit of this ruling and abandon any measures that seek to jail Ugandans for the free flow of ideas."
Inaction Helps Your Enemies
Without freedom, there's nothing else left
Windows Down From 99% to ~50% in Republic of Seychelles (République des Seychelles)
Windows fell by a lot
"systemd is essentially a corporate IBM/Redhat project and corporations of course will comply"
Microsoft and IBM care about users' freedom like Cheeto Lump cares about the US Constitution
Confluent Insiders: IBM Laid Over Over 800 at Confluent, Not Just 800
For the record, the layoffs at Confluent won't be over. After the bluewashing there will be "IBM RAs" impacting Confluent folks, aside from PIPs
The Layoffs at IBM Carry on (Shades of Enron)
Is IBM another Enron?
"IBM boss Arvind Krishna... financial package valued at $38 million in calendar 2025 - equivalent to the average collective pay of 765 Big Blue workers."
continues to ruin the company to enrich himself while pretending he has a strategy
Gemini Links 20/03/2026: Digital Identity Bifurcation and a "Return to Gemini"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 19, 2026
IRC logs for Thursday, March 19, 2026
SLAPP Censorship - Part 16 Out of 200: Detailing the Actors and Explaining Techrights' Own Internet Relay Chat (IRC) Network
For those who have not followed our story
Microsoft "hiding behind bigger news of war, Epstein, other companies' layoffs"
They know what's coming, they just don't know when
Joerg Jaspert (Debian Account Manager/DAM) personally approved Raphael Hertzog's wife Sophie Brun
Reprinted with permission from Daniel Pocock
Letter 'A' prohibited by Code of Conduct extremism
Reprinted with permission from Daniel Pocock
Spoiler: Diversity & Debian means different things to different people
Reprinted with permission from Daniel Pocock
Solicitors Regulation Authority (SRA) Admits Failures and Criticism of Inaction on SLAPPs
many if not all solicitors and solicitor firms in the UK are in effect unregulated
Archiving or Preserving Pages About IBM Layoffs
Layoffs at IBM and the media does not talk about these
ABC, the American National Broadcaster, "Now Publishes Slop"
If the "big media" absorbs slop, it'll no longer be trusted and therefore not read/watched by the public
Links 19/03/2026: Culling Deepfakes of Artists’ Music and "Age Verification Isn’t the Answer"
Links for the day
Gemini Links 19/03/2026: "Aktion GPT-4" and "Kill All Descendants"
Links for the day
"AI" 15 Times in Short 'Article' From The Register MS. And The Register MS Got Paid to Publish It.
gets paid to do this
People Who Decided to Boycott Novell Over Its Microsoft Alliance Should Also Boycott Canonical
As an associate put it, "selling out further, due to Microsoft moles inside Canonical"
Links 19/03/2026: "AI Glasses" as Euphemism for Mass Surveillance and ABC (US) Has Begun Publishing Slop as 'News'
Links for the day
The European Patent Office, Europe's Second-Largest Institution, is on Strike Today
Lots more to come
What People Impacted by the Bluewashing Layoffs at IBM Confluent Say (While the Media Says Nothing at All, in Effect Burying the News)
Worse yet, the mainstream media spreads lies about it right now
IBM Has Turned Red Hat and Fedora Into Slop
This is IBM policy
IBM is Being Robbed, Companies and Jobs Are Destroyed
Companies taken over by IBM will be exploited and destroyed to keep a bubble inflated for a little while longer
In Confluent Layoffs, IBM Vapourises a Quarter of Its Workforce (IBM Buys Something That It Destroys Already)
In the past, such things were typically referred to as "media blackout"; now it's just "the norm".
IBM Effect at Confluent: Mass Layoffs and IBM's Business Conduct Guidelines (BCGs) Said to be Violated
For Confluent employees who survived the layoffs there will be "culture chock"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 18, 2026
IRC logs for Wednesday, March 18, 2026
Links 19/03/2026: LLM Fatigue (It Doesn't Work as Advertised), "Small Web Feeds"
Links for the day