Bonum Certa Men Certa

All Patents on 'Artificial Intelligence' (or Machine Learning) Are Basically Fake Patents Waiting for Rejection by Courts

Scientific-sounding hype for very old algorithms, which are simply not patent-eligible

They tell me AI (Artificial Intelligence) is a buzzword; So now I just say Machine Learning instead



Summary: Patents on maths/stats are not legal; but when the media uses all sorts of other words, or non-abstractions that over-complicate matters (making simple things sound more magical than they really are) we're supposed to think that magic defies patent law, too

WE ARE, as usual, still filing a lot of patent news in Daily Links, especially news pertaining to particular cases and US policy. Why do we do this? Simple. Lack of time. We don't have enough time to cover these things like we did in prior years. Moreover, it certainly seems like some time around 2017 there was active discussion/debating about/around 35 U.S.C. €§ 101 and its handling by the American courts. That's not the case anymore (or barely). It's often assumed abstract patents will perish, based on the prosecution (or lack thereof) track record.



"It's often assumed abstract patents will perish, based on the prosecution (or lack thereof) track record."One item, however, caught our attention and merits special/lengthy commenting. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) have, in recent years, helped squash a lot of software patents -- to the point where many parties were reluctant to file lawsuits or make demands with these (fearing a petition would be filed with PTAB). Seeing that the Federal Circuit had increasingly affirmed PTAB in this area, serial bullies nearly gave up and many went out of 'business'. And this is where spying operations crept in, offering ways around PTAB, first by analysing IPRs and later -- seeing that IPRs statistics could not support their propaganda (Mr. Loney apparently left his job over it) -- they went on to analysing Ex Parte Reexaminations instead. We have been mentioning this, at least in passing, in past Daily Links.

"But these are software-implemented. They're software patents. They should not be granted."Anticipat is the largest culprit in that regard. It now says "3600 art units are well known for applying knee-jerk Section 101 patent-ineligible rejections" as if applying the law and rejecting software patents is "knee-jerk"; this is the expected kind of response from the anti-PTAB (and therefore anti-patent quality) collective known as Anticipat (they seem to be very small judging by this new booth photo, taken at an event of patent extremists [1, 2]). Anticipat is basically promoting software patents in the European Patent Office (EPO -- not just the USPTO -- under the guise of “hey hi” (still maths/stats, plus buzzwords and hype). So we wish to respond to that.

My credentials in this domain are a matter of public record (it's all online). When I was 20 I implemented a computer game with so-called "hey hi" (game theory) and its Web site has been online for over 15 years. Later, when I did my Ph.D., I formally studied Machine Learning (way back in 2003), wrote papers about it, and carried on in this field for about a decade, first as a Ph.D. student and later as a postdoc. This whole "hey hi" nonsense (obscure buzzword and a vague, catch-all phrase) isn't new to me. But the media as well as law firms want us to think it's very new and exciting; in reality that goes back at least half a century. So, let's examine what Anticipat is saying:

One reason why these allowance rates are much lower may depend on the art unit differences. Machine learning inventions typically get assigned to the 2121 or 2122 art units whereas business method inventions get assigned to the 3620s, 3680s and 3690s. The 3600 art units are well known for applying knee-jerk Section 101 patent-ineligible rejections whereas AI art units are not as preoccupied with Section 101. Often times, Examiners in these machine learning art units see the cutting edge technology of machine learning in these applications and generally quickly grant the patents for these inventions.


But these are software-implemented. They're software patents. They should not be granted.

On they go, this time with "hey hi" instead of "machine learning" and the vague term "technical" (e.g. "technical purpose" at the EPO):

But not all AI inventions are as easy to get allowed, especially depending on the jurisdiction. Take Europe, for example. The standard for patent-eligibility at the EPO is somewhat different than the US in that it requires a sufficiently technical nature (i.e., the claim must have a technical implementation or technical application). For image processing and speech recognition, this technical nature can be easily shown. But other types of machine learning tech, such as NLP, have not been so recognized as having a technical purpose.

[...]

The [US] Board viewed the claim holistically by stating that “[t]aken as a whole, claim 1 recites a set of steps for a particular query- and hypothesis-based processing sequence and set of rules, executed by a QA system.” Then citing McRO, the Board held that this amounts to “us[ing] the limited rules in a process specifically designed to achieve an improved technological result in conventional industry practice,” i.e., to improve the technology of QA systems.” After coming to this determination, the Board found that the claim imposes meaningful limits on the application of the recited judicial exception for generating candidate answers to a question and thus are not directed to a patent-ineligible abstract idea.

AI will continue to transform all sectors of industry and patentability standards across jurisdictions will continue to change. Patentability standards across jurisdictions should continue to evolve to balance the growing impact of AI on society. As it does so, it is important to anticipate prosecution strategy internationally with the best patent data.


OK, this is complete waffle. They move on from discussion about machine learning and particular families of algorithms to this vague thing they've dubbed "hey hi" -- the same thing nontechnical management does at the EPO and USPTO.

"We'll continue to blast patent offices that resort to buzzwords instead of patents."It does not seem like this hype wave is going away from the media and from patent offices. It's not a passing fad if it can persist for years. They totally exploit misconceptions to associate just about anything -- automation, computers, algorithms -- with "hey hi". We've written over a dozen articles about this one pattern of misinformation. Even if we did dozens more, people would still name-drop these buzzwords. Examiners would still be compelled -- by guidelines that mention these buzzwords -- to grant patents on these algorithms (or use of such algorithms in particular contexts, e.g. neural networks for spam filtering).

This will hopefully be the last post on this particular subject because it has gotten somewhat repetitive. We'll continue to blast patent offices that resort to buzzwords instead of patents. But explaining why this is wrong won't put an end to it. That much is pretty clear by now.

Recent Techrights' Posts

EPO Cocainegate: Feedback and Clarifications
Part III will come out soon
Links 29/10/2025: "US Military Is Destroying the Planet Beyond Imagination" and Boat Strikes Deemed Unlawful
Links for the day
Quality Comes First (Techrights Search)
It's generally working already, but we wish to polish it some more
Techrights Party Countdown
Late next week we'll be holding a party near our home
European Parliament and Council Directive on Privacy is Vanishing
"edited / censored some time more recently"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 28, 2025
IRC logs for Tuesday, October 28, 2025
Slopwatch: The March of Slopfarms, From UbuntuPIT to Linux Journal and to Various Fake Sites Still Promoted by Google News
It's so worrying to see what the Web has become
Links 29/10/2025: CISA, Ukraine, and Amazon Problems
Links for the day
[Teaser] The EPO's Spokesperson, a Cocaine User, Fancies Young Women
How's that for "optics" in the EU and Europe's second-largest institution?
How Will António Campinos Respond to the EPO's 'Cocainegate'?
That's the same thing we saw and still see when the press deals with enablers and partners of Jeffrey Epstein
Join Us Now and Share the News - Part IV: There Cannot be Free Software Without Free Press and Free Information
One day, one can hope, more people will recognise that for Software Freedom we need free press and free thinkers
Join Us Now and Share the News - Part III: Principled Stance Is Never Cheap
Protecting the truth and insisting that the general public is made aware of things that really happened isn't cheap
Join Us Now and Share the News - Part II: Because Scarcity of Accurate Information Breeds Collective Ignorance
we too will strive to share information that's aggressively suppressed
Gemini Links 28/10/2025: More New Arrivals at Geminispace, xkcd on "Document Forgery"
Links for the day
Join Us Now and Share the News - Part I: Defence of the Truth
This year we make a very strong, firm statement for truth, even if that means explaining our work to the top media judge in the country
Links 28/10/2025: Meta and Fentanylware (CheeTok) Age-Restricted Down Under, "Britain Needs China’s Money"
Links for the day
Links 28/10/2025: Mass Layoffs at Amazon and Charter to Cut 1,200 Jobs
Links for the day
The Cocaine Patent Office - Part II: The Person Who Planted Paid-for Fake News for the European Patent Office (EPO) is a Cocaine User, Friend of António Campinos, Now on Record as Having Been Arrested
Background: High-level manager at the European Patent Office caught in public with cocaine, arrested
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 27, 2025
IRC logs for Monday, October 27, 2025
Google News Drowning in Slop (and Slopfarms That Hijack About Half the Results)
Google News seems to be drowning in this stuff
Gemini Links 28/10/2025: "How to Maximize Your Positive Impact" and ASCII Art and Artist Attribution
Links for the day
PETA and Activism
Being staff or volunteer in PETA isn't easy
Big Blue, Huge Debt
debt will soar again
Links 27/10/2025: Mass Surveillance Sold as "AI", People Reluctant to Lose Physical Media
Links for the day
Parties and Milestones Again
we've begun putting up about 40 balloons
Techrights' 19th Anniversary: Bronze
Time to go back to preparing for this anniversary
Our Latest European Patent Office (EPO) Series Will Last Several Weeks, Will Ask the EPO Management and the European Union (EU) Very Difficult Questions
If nobody loses a job (or jobs) over this, then the EU basically became no better than Colombia or Nicaragua
Slopwatch: LinuxSecurity, UbuntuPIT, Brian Fagioli, and Google News
We focus on stories that are fake or LLM slop that disguises itself as "news" about Linux
Links 27/10/2025: Wikipedia Vandalism, Bruce Perens Opens up on Childhood
Links for the day
This Site Could Not be Done by LLMs Even If It Wanted to (Because It's Not a Parrot of What Other Sites Say)
LLMs have no knowledge or deep understanding
Microsoft is Disloyal Towards Its Most Loyal Employees
Against its most faithful enablers
19 Years, No Censorship
No factual information is ever going to be removed, more so if it is in the public interest
We Are Not a Conventional Site, That's Why They Hate (or Love) Us
Throughout the week this week we'll be focusing on the EPO
Following the Line of Cocaine All the Way to the Top
Even a million denials and spin-doctoring won't distract from the core issue
The Cocaine Patent Office - Part I: António Campinos Brought Corruption and Nepotism to the EPO, Then Came the Cocaine
High-level manager at the European Patent Office (EPO) caught in public with cocaine, the Office has some answering to do
Purchasing/Possessing Computers Isn't the Same as Controlling Computers
Let's strive to put computers back under the control of their users, no matter who purchased these (usually the users)
Gemini Links 27/10/2025: Alhena 5.4.3 and Fixing Bash
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 26, 2025
IRC logs for Sunday, October 26, 2025
Thankfully We've Made Copies of More Interesting Data From statCounter
If statCounter (the Web site or the 'webapp') vanished overnight, we'd still have something left of it
More Silent Layoffs at IBM/Red Hat
when the media counts such layoffs or presents tallies the numbers are very incomplete