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

GNOME Foundation's Microsoft Developer Account
"Lately they're teaming up with Mozilla to eliminate middle click paste - something which I use continuously."
Links 10/01/2026: "Abolish ICE or GTFO", Calls to Ban X/Twitter From Apple/Google App Stores (or Implement National Blocks) Over MElon Turning It Into Non-consensual Deepfake Porn Site
Links for the day
EPO People Power - Part XXX - New Year Starts, Cocainegate Still Discussed a Lot, António Campinos Desperate for Distraction From It
Why the sudden change or 'generosity'? [...] Actual cocaine addicts caused nervous breakdowns among sober people
IBM and Microsoft Hiding Layoffs in Similar, Overlapping Ways
Performance Improvement Plans aplenty
IBM is a Cancer That Attaches Itself to Everything
Red Hat should have remained an independent company
 
Monday, January 12, Red Hat Layoffs Allegedly Planned
We'll update this post or follow up if or when we get more information
Slop Still Becoming Rare as Another Week Ends
Generally speaking, calm and quiet is desirable, it's what we hope for (an absence of slop, a lack of need to keep abreast of it, ultimately)
Links 10/01/2026: Iran Offline, Venezuelans Decry Civilian Casualties
Links for the day
GAFAM Wants War
Go war! Go bailouts! Go debt! Go Wall Street!
GNU/Linux and Chromebooks Rose to Almost 10% in Haiti
What's noteworthy is that this month GNU/Linux is measured at around 8% and ChromeOS at about 2%
2026 Might be the Year Microsoft Replaces Layoffs With Mass Firings (No Severance Payments to Dismissed Staff)
It's hard to "see" PIPs unless insiders blow the whistle
Links 10/01/2026: STV Layoffs (Scottish TV), “CBS Evening News” in Chaos (Culls and Censorship by the US Regime)
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, January 09, 2026
IRC logs for Friday, January 09, 2026
Gemini Links 10/01/2026: Blackout, E-Waste, and Secondary Smartphone
Links for the day
Plot Twist: Microsoft MSN Relays Articles Hinting at or Pointing to Mass Layoffs Soon, Other Gossip
the narrative from Microsoft's "PR bunny" (Shaw) is showing mold already
Links 09/01/2026: Google and Character.AI Implicitly Accept Chatbots Kill Kids and GLP-1 ‘Slimming Pens’ Turn Out to be a Lot Worse Than Advertised
Links for the day
'Vibe Coding' is Not "AI", It's a Sewer, It is Junk
Linus Torvalds was wrong. 'Vibe coding' isn't good for anything.
GNU/Linux May be Approaching 10% "Market Share" in Montenegro
The surge started around 2021
At IBM, "Employee Reviews" (or Appraisals in the UK) Are a "Trojan Horse" for RAs (Mass Layoffs), a Waste of Time
comments from IBMer serve to suggest that appraisals can be precursors
Links 09/01/2026: Technical Blogging Lessons Learned and Google's Gmail Getting a Lot Worse
Links for the day
More IBM Layoffs in India
If IBM cannot afford to retain workers in India, then something is truly "out of control" at IBM
Escaping GAFAM Colonialism Requires Homegrown Free Software
GNU/Linux now measured at 3% in Zambia
Dr. Richard Stallman Has Done No Harm to the GNU Project or the FSF (He Had Benefited Both, Always, Even After the Attacks on Him Began)
Some people try to prevent Dr. Stallman from speaking or having a platform where many people can hear him
GNU/Linux at 4% in Saudi Arabia, Says statCounter
Some years ago Windows fell to a "market share" of just 11% there
Microsoft Isn't Denying the Mass Layoffs
Still silence from Microsoft
In Western Africa GNU/Linux Flirts With 5% Market Share
there's a gradual increase in GNU/Linux usage there
Gemini Links 09/01/2026: Pro1 X Repair and the Mercury Protocol
Links for the day
Links 09/01/2026: Cambodia and China Extradition, "NATO’s High-risk Patrols Near Ukraine"
Links for the day
No, Microsoft Did Not Deny the Q1 Mass Layoffs (Microsoft Can Delay These)
Maybe they disperse or delay the layoffs (changing plans), but the layoffs are going to happen
Only One Person in Charge of Fedora is Not IBM Staff
This is not a community project, it's just a way for IBM to onboard unpaid volunteers
This Is Not a Drill, GNU/Linux is Really Going 'Mainstream' on Laptops (and Desktops)
It is important to explain to people software freedom
IBM Albany Layoffs
not only did many in the site lose their job; there's more to come "and likely another one in February" (weeks from now)
EPO Workers' Industrial Action to Include Many Strikes, to Last Several Months
In some ways, The Hague and Bavaria are becoming almost indistinguishable from Moscow
EPO People Power - Part XXIX - Getting DER SPIEGEL, FAZ, Deutschlandfunk and Sueddeutsche Zeitung (SZ) to Cover EPO Scandals
We kindly ask our readers to contact their local media and urge it to cover the scandals
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, January 08, 2026
IRC logs for Thursday, January 08, 2026
Gemini Links 08/01/2026: "New Year, Old Plans" and Alex's "Butlerian Jihad"
Links for the day
LLM Slop About "Linux" Scarce and of Very Low Quality
At this rate, we reckon there may be one (or zero) per day by year's end
IBM's "Forever Layoffs" (to Bypass Warnings or Notices as Required by WARN Act)
There is a bunch of speculations about when the next "major round" of RAs will be
Attempts to Undermine This Site's Latest Series Using Intimidation, Threats, and Presumptuous Accusations
threatening language is less effective when everyone is an alibi
Links 08/01/2026: "Golden Smartphone" Scam and Riseup Account Issues
Links for the day
Links 08/01/2026: Possible "Collapse of NATO Over Greenland"; Journalistic Malpractice and "US Voters Hate Slop"
Links for the day
EPO People Power - Part XXVIII - A Sensitive Issue for Germany and The Netherlands
If Germans who read this series can communicate this to public officials or to their media, maybe they can strike a nerve and get the ball rolling
Age Discrimination at IBM Discussed Amid Mass Layoffs (Especially in the United States)
Workers are anxious. Are they next to face the axe?
Gemini Links 08/01/2026: Potentiometer Calculator, Power Outages, Why You Should Abandon Discord for IRC (e.g. Ergo), and Formatting Gopher Posts
Links for the day
Links 08/01/2026: More Software Patents Squashed, White House Repeats Misinformation From the Kremlin
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, January 07, 2026
IRC logs for Wednesday, January 07, 2026