Bonum Certa Men Certa

The Demise of US Software Patents Continues at the Federal Circuit

Courts decline and the judiciary rejects such patents, leading to a decline in such patent grants as well

A decline



Summary: Software patents are rotting away in the United States; it remains to be seen when the U.S. Patent and Trademark Office (USPTO) will truly/fully honour 35 U.S.C. €§ 101 and stop granting such patents

THE situation in 2018 is probably worse for software patents than it has ever been (except before such patents were introduced, a few decades after software itself had emerged). The Federal Circuit continues to affirm inter partes reviews (IPRs) undertaken by the Patent Trial and Appeal Board (PTAB) at the USPTO in (re)assessing software patents, so why does the USPTO still grant any such patents? That merely harms confidence is US patents and collectively reduces their value.



"That merely harms confidence is US patents and collectively reduces their value."As we often note here, the USPTO continues granting far too many abstract patents because of tricks like calling these "apparatus" (examples from yesterday) and buzzwords like "AI". In spite of knowing courts would void these, examiners let them be. See this day-old survey of newly-granted patents; many of them sound very abstract and here's why they're still being granted. There's more money in granting than in rejecting, but what would be the fate of the office if it kept granting patents only for them to be rendered invalid later?

"it seems like CAFC is pretty consistent in such rulings and it's therefore unsurprising that the patent microcosm attacks CAFC and its judges. These maximalists cannot think of any other strategy."In the United States' patent courts -- not Office (PTO) -- software patents are pretty much dead, but it's expensive to show this. Invalidation rates are already very high (if it gets to district courts and/or PTAB) and if one is wealthy enough, then CAFC offers even higher invalidation rates for software patents. It's about access to justice. All about money. It's just better for the rich, deep-pocketed firms. That in its own right is a profound issue.

In any case, there's some good news this week as CAFC decides to throw another bunch of software patents by the wayside. Dennis Crouch has mentioned a Microsoft case, Enfish, in relation to this. The patents are on database software (they're inherently a kind of software and the same goes for blockchains) and as one might expect these too are bunk. CAFC agrees as usual. Quoting Crouch:

On appeal here, the Federal Circuit affirms a lower court ruling that the claims of BSG’s three asserted patents are invalid as ineligible under 35 U..S.C. €§ 101. U.S. Patent Nos. 6,035,294, 6,243,699, and 6,195,652.

The claims relate to indexing a database according to “relative historical usage information.” Thus, in an automobile database with a “model” parameter, the system could display index by the popularity of the various models. In the claims, the popularity is measured by prior users of the system. Note here – the claims don’t technically require indexing by the frequency, only being able to access that information.

[...]

Enfish was a similar case — also involving a self-referential database structure. That case, the court determined that the focus was on database function and machine efficiency. Here, on the other hand, the historical information is stored just like any other data. “The claims do not recite any improvement to the way in which such databases store or organize information analogous to the self-referential table in Enfish or the adaptable memory caches in Visual Memory.”


This is fantastic news for software developers who wish to develop in peace without nuisance patent lawsuits.

Patent maximalist [1, 2] Matthew Bultman (Law360) wrote about these patents being invalidated at around the same time. To quote:

The Federal Circuit on Wednesday ruled three indexing software patents that BuySeasons Inc. was accused of infringing are invalid for claiming nothing more than an abstract idea, upholding a ruling from a judge in the Eastern District of Texas.

The appeals court, in a precedential opinion, found U.S. District Judge Robert Schroeder III correctly granted BuySeasons summary judgment that each of the asserted claims in Plano, Texas-based BSG Tech LLC’s patents are invalid.


They tried Texas, as usual.

Bultman's Law360 colleague, RJ Vogt, wrote about another case, one filed by Mirror Worlds Technologies LLC, probably not even a real company based on its registration. To quote Law360's article:



A New York federal judge has ruled that Mirror Worlds Technologies LLC failed to show that Facebook Inc. infringed three of its patents covering digital data organization technology, finding that the social media giant’s news feed and other features did not use a “main stream” as described by the patents.

The patents, issued between 1999 and 2012, protect the “Scopeware” system for file sharing, which organizes emails, documents, calendar items, software and other data into searchable chronological streams designed to replace traditional “desktop” folder interfaces that...


Finally, yesterday in PR Newswire (a press release by Diebold Nixdorf) CAFC was said to have voided another bogus patent granted by the USPTO:

Diebold Nixdorf (NYSE: DBD) announced today that the U.S. Court of Appeals for the Federal Circuit reversed the decision issued by the International Trade Commission (ITC) against the company in a patent dispute against Nautilus Hyosung. The Federal Circuit agreed with Diebold Nixdorf that Hyosung's sole remaining patent in its case against the company is invalid and unenforceable. The Federal Circuit's decision is a victory for the company, reversing the judgment of the ITC that Hyosung's patent was valid and infringed by Diebold Nixdorf.

The patent found to be invalid, U.S. Patent No. 8,523,235, relates to certain automated teller machines (ATMs) with Diebold Nixdorf's ActivMedia™ module. The underlying investigation at the ITC began with four patents, but Hyosung dismissed three of the patents after Diebold Nixdorf provided evidence that Hyosung had simply copied technology that had already been introduced by Diebold Nixdorf and other prominent manufacturers.

[...]

In that first ITC Investigation, the administrative law judge found that nearly all of Hyosung's deposit automation-enabled ATMs and modules infringe two Diebold Nixdorf patents. In fact, the administrative law judge specifically noted evidence showing that "Nautilus had knowledge of Diebold's patented technology, copied it, and encouraged its customers to use it in an infringing way." Diebold Nixdorf intends to seek damages in a jury trial in U.S. District Court for Hyosung's infringement.


Notice the trend. Also notice what the ITC had done before CAFC got involved.

We've not cherry-picking cases here; it seems like CAFC is pretty consistent in such rulings and it's therefore unsurprising that the patent microcosm attacks CAFC and its judges. These maximalists cannot think of any other strategy. ⬆

Recent Techrights' Posts

Ethics in Perspective, Free Software and Morality
top clients of Jeffrey Epstein are one happy family
The Register MS Made Millions of Pounds by Participating in the Slop Hype Campaign (It's Still Doing It), Now It Admits That It's Just a Bubble
the slop frenzy played a role in the Microsoft meltdown
Intercontinental Brigading - Part XXXXX - Pyramid Schemes (Planned Plunder) and Canceled/Botched Surgeries Aren't "Funny", They Cause Serious Harm and Distress
We were right about Microsoft
The Real Issue With The Register MS is Not the Politics of Some Staff's "Tweets", It's That The Register MS Publishes Fake Articles for Sponsors (50,000 Pounds Minimum)
AWS and Google each pay millions for fake articles which beget journalistic bias too (they literally pay the salaries of the 'reporters')
Microsoft Total Cost of Ownership (TCO): We Need Accountability Because Many People Die and It's Because of Microsoft Diehards or People Bribed by Microsoft to Deploy Microsoft Where Lives Are at Risk
They're trying to save face right now
What the Media Misses: It's Not an NVIDIA Issue, Super Micro Computer Inc Also Fell From $45 to $26 in the Period NVIDIA Lost 33% of Its Faked 'Value', NVIDIA is Collapsing Like Intel
History goes in circles
Waste of Money: Giving More Money to Toothless Regulators That Don't Even Examine Evidence
Shame in SRA
 
Links 14/11/2026: "The Claude Delusion" and "The Microsoft Outage is a Warning for the World"
Links for the day
Richard Stallman (RMS) at Universidad Central del Ecuador (Guayaquil), Cuenca, Campus Sur Universidad Politecnica Salesiana (Quito), and Ohio State University
Long live the message and mission of RMS
They Paid Workers in 'Shares' (That Lost Almost Half Their Value in One Month)
Welcome back 1999 or 2007
Links 14/11/2026: "OpenAI Is Sustaining Enormous Losses" and Slop "Loses the Popular Vote"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, November 13, 2026
IRC logs for Friday, November 13, 2026
Gemini Links 14/11/2026: Code of Conduct, Back to Gemini, and Gemlog to Inbox
Links for the day
Slop Promotion, Including Paid-for Slop Promotion for So-called 'Linux' Foundation (Its Clients Are Slop Companies)
We've noticed a lot of this lately in "It's FOSS" and to a lesser degree in "FOSS Force"
Gemini Links 13/11/2026: Productivity Metrics and Antenna Outage
Links for the day
It's Not About China or Sex, It's About Corruption at NVIDIA and a Pyramid Scheme Perpetrated Under the Guise of "Hey Hi Revolution" (That Wasn't, It's Manufactured and Hyped by Bribes, Subsidised by Multi-Trillion-Dollar Loans, People's Pension Funds and More)
What's at stake here is a lot bigger than the "Ponzi hub" of Jensen Huang
No, You're Not a "Most Valuable Company" When Everything is Down for Half a Day in the Entire Planet
Still down, still no explanation (maybe they too aren't sure)
"Techrights Statement on Phoronix" Still Valid Five Years Later
Our position as stated in early 2022 has not changed
Vista 11's 'Growth' Has Stalled, It's Measured at Only 17.9% in the US This Year
That helps put in perspective Microsoft's attempt to discard almost 30% of its remaining workforce
"NVIDIA is Enron" (Subsidising the Pyramid Scheme That It Profited From), Microsoft is Next to be Down for the Count
Microsoft increasingly looks like the "next NVIDIA"
Richard Stallman Travels to South America to Give Talks About Free Software in Spanish, FSF Raises Money
The FSF is raising money (goal is $400,000) and the FSF has just mentioned the upcoming talks by the FSF's founder
United States Adding ~300 Billion in Government Debt Per Month, Wall Street Shaves Off Trillions in 'Value' in Less Than One Week
cushioning "assets" by helping them fake "value"
Microsoft: Pay Us for the Stuff That's Offline and We Cannot Fix
Learn to take control of the technology that you rely on
Links 13/11/2026: "Copyright-Strike-for-Hire" and "Stevie Wonder Photo Lawsuit"
Links for the day
The Slop Bubble (or Pyramid Scheme) Relied on Trust and Patience (Being Patient as Losses Grow and Debt Explodes, Trusting the Roadmap of Cheaters and Frauds)
Remember that it all began with trust
Anthropic's IPO Depends on $895.4 Billion in Debt (Money It Doesn't Have, It Loses Over 100 Billion Dollars Per Reporting Period), NVIDIA Has Just Lost Almost 2 Trillion Dollars In Value and Its Debt Trebled in Three Months
This coming week will be very, very entertaining for slop critics/sceptics to watch
At Microsoft, "Buyouts" or "Global Voluntary Separation Agreement" (GVSA) Not Much Different From Layoffs (Severance Shockingly Low)
From what we are able to gather, many people are leaving Microsoft 'voluntarily'
Is Microsoft the Next Fake-Valued Corporation to Lose 35% in "Market Value"? Is Slop Bringing Microsoft Down?
Will NDAs prevent people talking or journalists finding out the true cause?
Lorenzo Stoakes (ARM) the Latest of Many to Quit Linux Development Over Linus Torvalds' Obsession With Slop (Linus Wants to Work With Bots, Not Humans Who Understand Whatever Code They Write)
Linus caught the 'brain virus'
Silent Layoffs at IBM (and Red Hat) Continue in November 2026
IBM's CEO is "a Palliative Care Doctor Who Slides [IBM] Gently Into the Night"
Microsoft Asks 60,000 Workers to Leave, Some Leave, Services Go Down
Microsoft laid off about 40,000-50,000 people in past years
Gemini Links 13/11/2026: Roku Exits the Smart Home Market and Poor Reporting/Journalism Regarding Slop Plagiarism
Links for the day
Links 13/11/2026: "Apple Support Community Forums to Permanently Close" and "The Slop Market is Getting Nervous"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, November 12, 2026
IRC logs for Thursday, November 12, 2026
Gemini Links 12/11/2026: A Firing of a Boss and Geminispace Growing Fast
Links for the day
Bill Epsteingate-Funded BBC "Totally Ignoring the $1.7 Trillion Wiped off NVIDIA Stocks"
Imagine how many pension funds are tied to this NVIDIA pyramid scheme
A Few Hours Before NVIDIA CEO Canned (and NVIDIA Shares Plunged) the NVIDIA-Funded The Register MS Published Paid Spam With "AI" 18 Times in It
Anything to inflate the bubble
Links 11/11/2026: NVIDIA Decapitated, "The Company That Published Fake Journalists in Sports Illustrated is Collapsing Dramatically"
Links for the day
Intercontinental Brigading - Part XXXXIX - We Didn't Start the Fire
It started in 2012
Photo Ops Are Liabilities
NVIDIA is not a "family business" and its CEO isn't some modest genius
NVIDIA’s Total Debt Trebled in Three Months!
Not the hallmark of a rich company unless its accounting is fraudulent
NVIDIA Turns Out to be Serial Cheater, Stock Plunges 33% in 5 Weeks
The "slop bros" have long relied on patience and blind faith
Adopting LLM Slop is Still Suicide
Suicide (in the literal sense) is also linked to adoption of chatbots
On Laundering Licences and Code
A "Second SCO" waiting to happen
The Cyber Show on Slop and the Ministry Of Truth in "Nineteen Eighty Four"
"cultural erasure" by slop
Intercontinental Brigading - Part XXXXVIII - Keeping Both Eyes on the Ball
One upside of these disputes is that they raise at least two very important issues concerning the law
Gemini Links 12/11/2026: Encryption is Easy, Human Emacs, and Legislation in Italy
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, November 11, 2026
IRC logs for Wednesday, November 11, 2026