Bonum Certa Men Certa

Alice/€§ 101 is Improving the Quality of Patents in the United States and Patent Law Firms Are Panicking

If code, then invalid patent

Code



Summary: Patent maximalists in the United States not only freak out over Alice but also distort the outcome of recent court cases (Federal Circuit) in order to make it seem as though Alice is going away

THE likelihood of receiving software patents from the USPTO is decreasing. The Patent Trial and Appeal Board (PTAB) nowadays gets involved in mere patent applications, not just patent grants or already-granted patents. We gave many examples of that last month and earlier this month. We suppose that PTAB is going to break another record, whereas reliable sources say that the number of patents granted by the USPTO will have decreased by year's end. It's not a bad thing but a sign of improved patent quality/scrutiny.



"We suppose that PTAB is going to break another record, whereas reliable sources say that the number of patents granted by the USPTO will have decreased by year's end. It's not a bad thing but a sign of improved patent quality/scrutiny."Look at Taiwan. It has a very strong economy (a lot stronger than China's). According to this post/rant from IAM, the number of patents in Taiwan is decreasing, not increasing, unlike China with SIPO. Lessons for EPO and USPTO? It's OK to grant fewer patents, the important thing is quality, not quantity. It's always about quality, not numbers. China amasses patents by the millions, but that doesn't mean China is ahead. Litigation is China in soaring and it's not necessarily a good thing (unless you work for a law firm). In Taiwan the number of granted patents has been decreasing for a number of years, so there's a trend. Nobody seems to be upset about it except the patent trolls' and maximalists' lobby (IAM). Here is what it wrote:

New figures released by the Taiwan IP Office show that mainland Chinese firms are playing a greater role than ever in the local patent environment. Both resident and non-resident firms upped their filing rates in 2017 as the island managed to reverse several years of falling applications. Among the biggest corporate TIPO users, invention patent filings increased by nearly 25%.

The last year in which Taiwan patent applications increased year-over-year was 2012, when they reached a peak of 51,189. The headline figure from 2017 was well below that figure – coming in at 46,122 – but it did represent 5% growth over a 12-month period. Both resident and non-resident applicants were more active.


IAM keeps speaking about "growth", but a growth of what? Monopolies? One can easily grant millions of monopolies overnight. Would that be a positive thing? Would that add value to the economy and improve people's lifestyles? Of course not.

"One can easily grant millions of monopolies overnight. Would that be a positive thing? Would that add value to the economy and improve people's lifestyles? Of course not. "We were watching with scepticism and restrained disdain this latest nonsense from Bilski Blog, best known for Alice spin and promotion of software patents. These Big Litigation lobbyists (Fenwick & West) are, as usual, using cases that aren't about software patents to promote an illusion/lie. Christopher King even names Core Wireless (GUIs, not algorithms). But these lies are profitable to them. To quote the core basis for the flawed hypothesis (the headline says "Thawing in the 3600s? An Updated Look at Allowance Rates Post Alice"):

Although even with the increases in 2017 the allowance-to-abandonment ratios are still far below their pre-Alice levels, the statistics suggest that a sea change may have begun, with the PTO starting to loosen somewhat in the wake of a series of pro-eligibility cases such as Enfish, BASCOM, McRO, Thales, Trading Technologies and Visual Memory. More recent pro-eligibility cases such as Finjan, Core Wireless, Berkheimer and Aatrix will presumably further bolster this trend.


A lot of these cases aren't about software!

But just as we expected, facts don't matter to these people. Here's Amol Parikh from McDermott Will & Emery mentioning Core Wireless in relation to software again (title says "Concrete Solution to Computer Problem Is Patent Eligible").

"A lot of these cases aren't about software!"Then there's yesterday's lie from the American Enterprise Institute (AEI). These cases aren't about software patents and hardly about Alice (wrong case for the subject at hand), but then again AEI is a very nefarious front group, so this kind of slant is expected.

It names Aatrix and Berkheimer -- two cases which we recently emphasised (almost a dozen times in a dozen articles) were not about software. To quote AEI:

First, in Berkheimer v. Hewlett-Packard, the Federal Circuit upended a lower court’s entry of summary judgment — a pre-trial legal ruling — that the patent (for processing and archiving files in a digital asset management system) was ineligible under Alice.

[...]

Just a week later, in a similar case, Aatrix v. Green Shades Software, the Federal Circuit again vacated a lower court’s early rejection on eligibility grounds, this time of a patent on “designing, creating, and importing data into a viewable form on a computer so that a user can manipulate the form data and create viewable forms and reports.”


This is misleading, but their goal is to comfort applicants and cushion applications, urging for more of both. They just want lots and lots of software patents at a time when they're simply a waste of time and money (but monetary gain to lawyers).

"They just want lots and lots of software patents at a time when they're simply a waste of time and money (but monetary gain to lawyers)."Watch this new article from LeClairRyan's Gunnar Leinberg and Bryan Smith. These patent extremists are really very nervous about Alice, as it dooms their hopes of profit from software patents. "Drafting Strategies to Avoid Subject Matter Eligibility Issues and to Minimize the Risks of Having a Section 101 Dismissal Based on Recent Federal Circuit Decisions" is the title of their article. They're just trying to work around €§ 101 (rather than simply accept it, which would be the rational thing to do).

How about Patently-O with "What are the Rules for Assessing Patent Eligibility?"

In Front Row Tech. v. MLB Advanced Media, the patentee has filed a petition for writ of certiorari – asking the Supreme Court flip the lower court rulings on its sports-data-app patents.


The Supreme Court has repeatedly (for years) rejected such petitions for writ of certiorari. It's not interested in revisiting a subject it already dealt with nearly 4 years ago.

Over at Watchtroll, the most extremist of patent advocacy sites, an event's introduction started thusly: "Is there hope for Alice? What recent Federal Circuit decisions mean for drafting and litigating software patents in the U.S..."

"The Supreme Court has repeatedly (for years) rejected such petitions for writ of certiorari. It's not interested in revisiting a subject it already dealt with nearly 4 years ago."Maybe they meant "Is there hope for bypasing Alice?" rather than "Is there hope for Alice?"

Perhaps they live in a mythical planet where Alice no longer matters at all. Maybe that's how they try to seduce people to attend another lobbying event. Watchtroll meanwhile (selectively) recalls Google losing at PTAB, under the headline "A Google Opponent Actually Wins an IPR Battle with the Tech Giant" (conveniently never covering any of the cases where Google's IPRs were successful).

Let's just face the facts; Google tackles low-quality patents with assistance from PTAB. Who other than patent attorneys (like Watchtroll) stands to lose from elimination of patents that oughtn't have been granted?

"Their motivations are tainted by their sheer greed and their judgment is clouded by desire rather than reason."Kluwer Patent Blog recalled Arendi's case against Google some days ago. "The Patent Trial and Appeal Board correctly determined that all 79 claims of a patent related to a computerized method for identifying and substituting information in an electronic document were invalid for obviousness," said the summary. Maybe Watchtroll should write a little more about such cases.

The bottom line is, Alice isn't really challenged in any meaningful way, but people who make a living by 'selling' the illusion that software patents are worth pursuing always find excuses to claim otherwise. Don't listen to them. Their motivations are tainted by their sheer greed and their judgment is clouded by desire rather than reason.

Recent Techrights' Posts

Linux Journal Might Have Become the Latest Slopfarm Targeting "Linux", the Trends Are Concerning for Dying News Sites
They tarnish the Web with junk and then die
On "Learning to Code"
quality may suffer, plus things get bloated
Quick Points Regarding This Week's Court Hearing
it paves the way for us to squash all the SLAPPs from Microsofters
 
The Web is Slop and FUD, Let's Go to Gemini Protocol
Lupa sees self-signed capsules at 92.4%
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 20, 2025
IRC logs for Friday, June 20, 2025
Links 21/06/2025: Phone Bans for Concerts, Tensions in Taiwan Strait
Links for the day
Gemini Links 21/06/2025: Spoilers, Public Yggdrasil Node, Changes to AuraGem Search
Links for the day
"Six years of Gemini!"
From gemini://geminiprotocol.net
Gemini Links 20/06/2025: Summer Updates and Hardware Failures
Links for the day
Links 20/06/2025: Google Shareholder Sues Google and Google Sued for Defamatory Slop ('Hey Hi') Word Salads ('Summaries')
Links for the day
Common Mistake: Believing Social Control Media Will Document Your Writings/Thoughts and Search Engines Like Google Will Help You Find These
Many news sites wrongly assumed that posting directly to Twitter would be acceptable
The Manchester Bees and This Hot Summer
We have had a fantastic week so far this week
Gemini Protocol Enters Its Seventh Year, Growth Has Accelerated!
Maybe in June 20 2026 there will be over 3,500 active capsules?
Mastodon and the Fediverse Have an Issue: Liability for Content (Even in Other Instances) and Costs
self-hosting is the only logical path forward
Why Microsoft and Its 'Hey Hi' (Slop) Frenzy Fail While Sinking in Deep, Growing Debt
Right now, like Twitter around the time it was sold to MElon, "open" "hey hi" is a big pile of debt with a lot to pay for that debt (interest payments)
Europe is Leaving Microsoft, the Press Coverage Isn't Sufficiently Helpful
The news is generally positive, but the press coverage leaves so much to be desired
Slopwatch: Linuxsecurity, BetaNews, and Linux Journal
slippery slope
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 19, 2025
IRC logs for Thursday, June 19, 2025
Gemini Links 20/06/2025: Gemini Protocol Turns 6!
Links for the day
Links 19/06/2025: Ghostwriting Scam and Fentanylware (TikTok) Buying Time
Links for the day
Microsoft's Windows is a Niche Operating System in Africa
African nations aren't a large contributor to Microsoft's income, but if many African nations move away from Windows, then the monopoly is at risk
Gemini Links 19/06/2025: Unix Primitivism, Zine Club, and Gemini Protocol Turns 6 at Midnight
Links for the day
Links 19/06/2025: WhatsApp Identified as Assassination 'Crosshairs', Patreon Now Rips Off People Even More
Links for the day
"Told You So": Another Very Large Wave of Microsoft Layoffs Now Confirmed in Mainstream Media
So we were right to believe the rumours, based on the credibility of prior such rumours
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 18, 2025
IRC logs for Wednesday, June 18, 2025