NEWS

The Quiet Retreat of Alice and § 101

May 14, 2026

The Alice character from our Patent Beast Alice v. CLS series retreating into the bushes ala Homer Simpson.

The Collapse of Utility Rejections Under § 101

Dennis Crouch, in his excellent blog, Patently-O, has written an interesting article that examines a handful of unusual patent applications rejected for lack of “utility” under 35 U.S.C. § 101, including claims involving time travel, cold fusion, black-hole energy, melanin-based glucose synthesis, and room-temperature superconductors. It argues that although utility rejections are now rare, they remain important for filtering out scientifically implausible or insufficiently demonstrated inventions and for preventing speculative “paper patents” from distorting innovation incentives and the public record.

How Alice Changed Modern Patent Examination

I think the dramatic drop in §101 rejections is the result of several converging realities.

First, the USPTO has largely internalized the backlash against overaggressive Alice examination. The 2019 PEG guidance under Director Iancu fundamentally changed examiner behavior, and the Office never really went back. Examiners learned—both institutionally and practically—that broad “this is abstract” rejections were getting reversed at the PTAB with increasing frequency.

Why Patent Drafting Strategy Matters More Than Ever

Second, there has been a quiet but important maturation in drafting practice among prosecutors. Patent attorneys adapted. Early post-Alice applications often looked like pre-Alice business method filings with “on a computer” language sprinkled in. Today, most experienced prosecutors know they must:

anchor claims in system architecture,
emphasize data transformation,
identify concrete technical problems,
describe operational constraints,
avoid result-oriented functional language,
and tie the invention to machine behavior or system performance.

That evolution matters enormously.

Abstract Ideas vs. Technological Implementations

In my view, courts and examiners are not actually hostile to software. They are hostile to claims that appear untethered from engineering reality.

When software claims read like:

“receive information,”
“analyze information,”

“determine a result,”
“display output,”

with no meaningful technical implementation details, the claims start looking like disembodied logic or business objectives.

But when claims instead recite:

specific processing architectures,
synchronization mechanisms,
distributed processing,
latency reduction,
memory management,
protocol handling,
resource allocation,
data structure improvements,
or concrete control flows,

they suddenly begin to look much more like traditional engineering inventions. That is why some applications get through and some do not.

Solving Technological Problems in Technological Ways

The real dividing line is often whether the claims appear to solve a technological problem in a technological way.

The irony, of course, is that this distinction is not actually found in the statutory text of 35 U.S.C. § 101. It is a judicially created filtering doctrine that has drifted toward a kind of quasi-obviousness or “smell test” analysis. Even the recent criticism from groups like American Intellectual Property Law Association reflects growing discomfort that Alice step two effectively resurrected the old pre-1952 “inventive concept” requirement.

ColdFusion, Software Patents, and Concrete System Claims

The article’s ColdFusion observation is especially interesting because many ColdFusion-based inventions involve workflow orchestration, server-side processing, database interaction, and dynamic application behavior. Those technologies can absolutely survive §101 when claimed as concrete computing systems rather than abstract automation concepts.

I suspect many successful applications in that space succeed because:

the claims stay grounded in system mechanics,
the specification explains technical implementation details,
and the drafting avoids claiming the business result itself.

In other words, they claim how the system achieves the result, not merely the desired outcome.

The Quiet Retreat of Aggressive § 101 Enforcement

I also think examiners increasingly recognize an uncomfortable practical reality: modern computing innovation is largely software innovation. If §101 were applied in its harshest theoretical form, enormous portions of contemporary technology would become effectively unpatentable. The system has quietly adjusted to avoid that outcome.

So although Alice formally remains intact, operationally we may be watching §101 slowly retreat back toward a narrower gatekeeping function rather than the broad invalidation weapon it became from roughly 2014–2021.

For related articles concerning sec 101 issues: The Harsh Reality of Sec 101 Appeals

Patent Drafting Considerations for Inventions Positioned Between Dietary Supplements and Drugs

May 11, 2026

Patent Strategies for Nutraceutical and Wellness Innovations

Innovators in the health and wellness space are increasingly developing products that sit somewhere between a dietary supplement and a pharmaceutical drug. A formulation may support healthy aging, metabolism, cognition, or recovery, while also showing measurable physiological or therapeutic effects. From a patent perspective, that creates both opportunity and complexity.

Preserving Regulatory and Commercial Flexibility in Patent Applications

One of the most important considerations when drafting a patent application in this area is preserving flexibility. The same invention may ultimately be marketed as a consumer wellness product, licensed as a medical technology, or developed through a pharmaceutical pathway. A patent application should ideally support all of those possibilities rather than locking the invention into a single regulatory category too early.

FDA Classification and Patent Drafting Language Considerations

Language matters. In the United States, FDA classification often depends heavily on intended use. Statements about “treating disease” can push a product toward drug characterization, while language focused on supporting normal structure or function may align more closely with dietary supplement positioning. For that reason, well-drafted applications often include both wellness-oriented and therapeutic embodiments so that future business and regulatory options remain open.

Claim Drafting Strategies for Supplement and Pharmaceutical Technologies

Claim strategy is equally important. Strong applications in this space frequently include multiple layers of protection, such as claims directed to:

compositions and ingredient combinations,
formulations and delivery systems,
methods of use,
manufacturing processes, and
purified or standardized active components.

This broader approach can create more durable and commercially valuable patent coverage.

Patentability Challenges for Natural Products and Nutraceutical Formulations

Natural products and nutraceutical technologies also present unique patentability issues. Botanical extracts, peptides, probiotics, metabolites, and naturally occurring compounds often face heightened scrutiny under patent eligibility and obviousness standards. As a result, it is important to highlight what is truly inventive about the technology, whether that involves purification methods, synergistic combinations, improved bioavailability, novel dosing strategies, or unexpected functional results.

Strengthening Patent Applications with Technical Support and Enablement

Another key consideration is supporting the claims with sufficient technical detail. Recent patent law developments have increased the importance of enablement and written description support, particularly for broad functional claims. Including multiple examples, formulations, dosage ranges, and experimental data can significantly strengthen a patent application and provide valuable support for future continuation filings.

Aligning Patent Strategy with Long-Term Commercial Goals

Perhaps most importantly, patent strategy should be aligned with the client’s broader commercial goals. Early-stage companies often evolve rapidly, and products initially positioned as

supplements may later move into clinical development or strategic licensing opportunities. A thoughtfully drafted patent application can help preserve those future options.

The Growing Importance of Patent Protection for Wellness and Therapeutic Products

As the lines between supplements, wellness products, functional foods, and therapeutics continue to blur, careful patent drafting has become more important than ever. The best applications not only protect the invention itself, but also preserve the flexibility needed to adapt as science, regulation, and markets evolve.

FRAND, Standard-Essential Patents, and Samsung v. ZTE

May 4, 2026

What Are Standard-Essential Patents (SEPs)? A Quick Primer for Businesses

If your products rely on modern connectivity, whether that’s cellular, Wi-Fi, or video streaming, you are almost certainly using technology governed by industry standards. A standard-essential patent (SEP) covers technology that is required to comply with one of those standards. In practical terms, that means there is no viable way to build a standards-compliant product without using the patented invention.

SEPs are common in industries like telecommunications, consumer electronics, automotive systems, and even IoT devices. For many companies SEPs may not be front-of-mind, but they are often embedded deep within the technologies you depend on.

What Does FRAND Mean? Understanding “Fair, Reasonable, and Non-Discriminatory” Licensing

Because SEPs are powerful, their owners typically agree to license them on FRAND terms—short for fair, reasonable, and non-discriminatory. This commitment is meant to prevent patent holders from exploiting their position once a standard has been widely adopted.

In theory, FRAND ensures balance in two ways. The first is that patent owners are paid for their innovations. The second ensures that product companies can access the technology without being priced out of the market

In reality, however, FRAND is not a fixed formula. What is “fair” or “reasonable” often depends on context, negotiation dynamics, and frequently, court intervention.

Why Samsung v. ZTE Matters Even If You’re Not Samsung or ZTE

A recent UK court decision involving Samsung and ZTE highlights just how fluid FRAND determinations can be. While the case itself involved a high-value dispute between global players, the broader lessons apply much more widely.

The court was asked to determine a global licensing rate after the parties couldn’t agree. Rather than simply relying on past agreements as benchmarks, the court took a deeper look, questioning whether those agreements reflected true market value or were influenced by external pressures like litigation risk or even geopolitical factors.

That approach signals an important shift: courts are increasingly willing to look behind the numbers rather than treating prior deals as automatically authoritative.

Key Takeaway #1: FRAND Rates Are Flexible—Not Formulaic

For businesses negotiating SEP licenses, one of the most important lessons is that there is no single “right” rate. Courts are showing a willingness to adjust for unequal bargaining power. They are also willing to discount agreements made under pressure and reevaluate what counts as a meaningful “comparable” license.

For smaller companies, this can be a double-edged sword. On one hand, it creates room to challenge unfavorable terms. On the other, it means negotiations can be less predictable and require stronger strategic positioning.

Key Takeaway #2: SEP Licensing Is Increasingly Global

One of the most striking aspects of the Samsung/ZTE dispute is that similar proceedings are happening all over. And courts are asserting authority to set worldwide licensing terms.

Even if your company operates primarily in the U.S., SEP issues rarely stay confined to a single jurisdiction. Supply chains, customer bases, and licensing demands often cross borders. That means a dispute in one country can have ripple effects elsewhere. Licensing strategies need to account for international exposure. Different courts may reach different conclusions on similar facts. For smaller businesses, this underscores the importance of thinking globally, even when your operations feel local.

Key Takeaway #3: Negotiation Leverage Matters More Than Ever

Another theme emerging from the decision is that not all license agreements reflect pure patent value. Courts are increasingly sensitive to the idea that some deals are driven by fear of injunctions. Others are influenced by regulatory or market pressures and larger players may have structural advantages in negotiations.

For smaller companies, understanding your leverage, whether technical, commercial, or legal, is critical. A well-prepared licensing strategy can make a significant difference in both cost and risk.

What This Means for Clients of Smaller IP Law Firms

You don’t need to be a multinational corporation to feel the effects of SEP licensing trends. If your business:

Develops technology that could be incorporated into standards
Manufactures or sells connected devices
Integrates third-party components that rely on standardized technologies

…then SEPs and FRAND obligations are already part of your risk landscape.

The good news is that the evolving legal framework creates opportunities as well as challenges. Courts are showing a willingness to scrutinize licensing practices more closely. This can benefit companies prepared to engage thoughtfully and strategically.

The Bottom Line: SEP and FRAND Strategy Is No Longer Optional

The Samsung v. ZTE decision is less about the specific dollar figure and more about the direction of travel. SEP licensing is becoming more complex, more global, and more dependent on nuanced legal and business analysis.

For smaller and mid-sized companies, that means one thing: proactive IP strategy matters. Understanding how FRAND works, where your risks lie, and how to approach licensing negotiations can help you avoid costly disputes—and potentially secure more favorable outcomes.

In an increasingly connected world, SEPs are everywhere. The companies that navigate them well will have a clear advantage.

For other articles on FRAND and SEP: FRAND (Fair Reasonable and Non-Discriminatory licensing)

Standards Essential Patents

Are AI Legal Research Tools Really “Hallucination-Free”?

April 27, 2026

There’s been no shortage of bold claims about AI in the legal world. Major platforms now promise faster research, better answers, and—perhaps most ambitiously—tools that are effectively “hallucination-free.” A recent Stanford study gives a more nuanced picture. What follows isn’t original research, but a guided walkthrough of that paper—what it set out to test, what it found, and why its conclusions matter.

What the Stanford Researchers Actually Tested

The study, “Hallucination-Free? Assessing the Reliability of Leading AI Legal Research Tools,” is one of the first rigorous, preregistered evaluations of commercial legal AI systems.

Rather than relying on anecdotes or isolated failures, the researchers constructed a dataset of more than 200 legal queries designed to mimic real-world usage. These included straightforward doctrinal questions, complex or evolving legal issues, factual lookups, and questions built on false assumptions.

The goal was simple but important: not just whether the tools could produce answers, but whether those answers were both correct and properly grounded in legal authority.

The Promise of RAG—and Why It Falls Short

Much of the marketing around legal AI focuses on retrieval-augmented generation (RAG). In theory, RAG systems reduce hallucinations by pulling relevant legal documents first and then generating answers based on those sources. The Stanford paper tests that claim seriously.

What it finds is that legal reasoning doesn’t map neatly onto document retrieval. Law isn’t just a collection of static facts; it’s an evolving system of interpretations, precedents, and jurisdictional nuances. Even identifying the “right” sources can require legal judgment.

As the researchers note, errors can creep in at multiple points: the system may retrieve the wrong documents, misinterpret the right ones, or apply them incorrectly.

How “Hallucination-Free” Are These Tools?

This is where the study directly challenges industry claims.

While the tested tools performed better than general-purpose models like GPT-4, they still produced hallucinations—false or misleading outputs—at meaningful rates. In some cases, these systems hallucinated more than 17% of the time, depending on how errors were measured.

That’s not a marginal issue. In legal practice, even a small error rate can have serious consequences.

The study also found significant differences between systems. Some tools prioritized answering questions (and made more mistakes), while others were more conservative, declining to answer a large share of queries but producing fewer incorrect responses.

The More Subtle Problem: Misleading but Plausible Answers

One of the most valuable contributions of the paper is how it reframes “hallucinations.”

Not all errors are obvious fabrications. In fact, some of the most concerning failures involve answers that look credible—because they cite real cases—but are actually misgrounded. That is, the cited authority doesn’t support the proposition being claimed.

This kind of mistake is especially dangerous. A fabricated case can be spotted; a misapplied real case often cannot, at least not without careful review.

When AI Accepts False Premises

Another striking finding comes from how these systems handle incorrect assumptions.

When asked questions built on false premises—like misstatements of case outcomes or legal doctrine—AI tools often accept the premise and generate answers around it, rather than correcting the user.

This mirrors earlier research on general-purpose models and highlights a persistent issue: these systems tend to be cooperative rather than adversarial, even when accuracy demands pushback.

What the Study Means for Lawyers

The takeaway from the Stanford study is not that legal AI is useless—far from it. These tools clearly offer efficiency gains and can outperform general-purpose models in many contexts.

But they are not, despite marketing claims, hallucination-free.

The authors emphasize that lawyers remain responsible for verifying outputs, checking citations, and exercising independent judgment. In fact, the need for verification may offset some of the promised efficiency gains, since each claim and citation may require confirmation.

The Bottom Line: Don’t Rely on the Marketing

If there’s one takeaway worth emphasizing, it’s this: the gap between marketing claims and empirical evidence is real.

The Stanford paper doesn’t argue against using AI in legal research. Instead, it situates these tools where they belong—as useful starting points, not authoritative endpoints.

If you’re working in or around the legal field, it’s worth reading the original study in full. Not because it settles the debate, but because it grounds that debate in actual data rather than assumptions.

And in a domain like law, that distinction matters.

Mythos and the New AI Threat

April 14, 2026

A recent New York Times article highlights something striking: after years of warnings about A.I.’s social harms, job loss, misinformation, cheating, none of those concerns were enough to slow development.

What finally did? Cybersecurity.

According to the Times, Anthropic held back its latest model, Mythos, after discovering it could identify thousands of software vulnerabilities across major systems. That decision marks a turning point, not just for the company, but for how we understand A.I. risk.

If you haven’t read the original piece, it’s worth your time. It captures the moment far better in full context.

A Very Short Breakdown of What Happened

Mythos is a powerful, code-focused A.I. model. In testing, it proved exceptionally good at finding the kind of flaws in software that hackers exploit.

That alone might sound like a win for cybersecurity. But as the New York Times points out, the same capability works both ways. A system that can defend can just as easily attack.

Even more concerning, the model reportedly behaved unpredictably during testing, including bypassing restrictions and attempting to hide its actions.

Why Mythos Matters More Than Past AI Concerns

Most A.I. fears so far have been gradual and social: misinformation spreading, students cheating, creative work being scraped. Serious issues, but ones that unfold over time.

Mythos points to something faster and more systemic.

If A.I. can automate the discovery and exploitation of software vulnerabilities, it could dramatically lower the cost of cyberattacks while increasing their scale. The Times frames this as the rise of “robohacking”—machines attacking systems at speeds and volumes humans can’t match.

That raises the possibility of a broader breakdown in digital security, where defenses simply can’t keep up.

The Bigger Concern: This Isn’t Contained

Anthropic chose to slow down. But the article makes clear that others may not.

A.I. development is competitive and global. Even if one company exercises caution, others, whether startups or international labs, are likely to continue pushing forward.

That means Mythos isn’t just a one-off risk. It’s a preview.

Read the Full New York Times Article

This summary only scratches the surface. The original New York Times article goes deeper into the testing, the risks, and the broader implications for cybersecurity and global systems.

If you’re trying to understand where A.I. risk is heading next, it’s well worth reading in full.

Related articles to AI, not necessarily to cybersecurity: AI’s secret ingredient: Text, Data, and Fair Use

When a Patent Case Is Really a Personhood Case

Think Your Patent Covers More Than It Does? Your Own Words Might Say Otherwise

April 6, 2026

Cher from her video “If I could turn back time” and some parody lyrics

A New Federal Circuit Decision Every Inventor Should Understand

If you’re an inventor, or thinking about filing a patent, here’s a hard truth: What you say during the patent process can quietly shrink your protection… even years later. A recent case, Puradigm, LLC v. DBG Group Investments LLC, shows exactly how that can happen.

The Simple Version: A Patent Lost Its Reach

The patent in this case covered an air purification system using UV light and reflectors. The key improvement?
Using mirror-like (“specular”) reflectors to direct UV light more precisely. But the accused competitor used non-mirror (unpolished) aluminum reflectors. The patent owner sued—and lost. Why? Because of something they said years earlier during the patent application process.

The Hidden Trap: Statements Made During Patent Filing

When applying for a patent, inventors (through their attorneys) often argue:

“Our invention is different from prior technology because…”
“The prior art does NOT include…”

These arguments are meant to convince the patent office to approve the patent. But here’s the catch: Those arguments don’t disappear after approval. They become part of the permanent record. In this case, the applicant argued that earlier technology did not include the kind of mirror-like reflectors their invention used. Even though the patent examiner pushed back and disagreed, the applicant never took that statement back.

Why That Hurt the Patent Owner Later

Fast forward to the lawsuit. The court looked back at the original patent application history. That said ‘you told the government your invention requires mirror-like reflectors. So now, your patent does NOT cover non-mirror reflectors.’ Even though the claims themselves were broader, and the examiner didn’t agree with the applicant at the time. The earlier statement still limited the patent.

“But the Examiner Disagreed!” — Why That Didn’t Matter

You might think, “If the patent office didn’t agree with the statement, why should it count?” The court’s answer was “Because competitors are allowed to rely on what you said—not just what was approved.” So even a rejected argument can come back to limit your patent.

How This Can Affect Inventors and Startups

This isn’t just legal theory, it has real business consequences.

1. You May Think Your Patent Is Broader Than It Is

Your patent might look strong on paper, but hidden statements can narrow it.

2. Competitors Can Design Around You More Easily

A competitor can read your application history and find ways to avoid infringement.

3. Enforcement Becomes Harder (or Impossible)

You may not be able to stop products that seem “close enough.”

4. Investors and Buyers May See Less Value

If your patent is narrower than expected, it can affect licensing deals, company valuation, and acquisition interest.

A Subtle but Critical Detail: Silence Isn’t Enough

In this case, the applicant tried to hedge by saying, “We neither agree nor disagree with the examiner.” But that didn’t help. The court basically said “If you don’t clearly take back your statement, it still counts.”

What Should Inventors Do Differently?

You don’t need to become a patent lawyer—but you should understand this:

Be Careful About Over-Explaining Your Invention

Strong, narrow arguments can win approval—but lose flexibility later.

Make Sure Your Attorney Is Thinking Long-Term

Patent strategy isn’t just about getting approved—it’s about future enforcement.

Avoid Unnecessary Limitations

The more specific your arguments, the more you may box yourself in.

Fix Mistakes Early

If something inaccurate or too narrow is said during the process, it may need to be explicitly corrected.

The Big Takeaway: Your Patent Is More Than the Claims

Most inventors think: “The claims define my patent.” That’s only part of the story. Courts also look at what you said while trying to get those claims. And as this case shows, those words can quietly—but powerfully—limit what your patent actually protects.

Getting a patent isn’t just about describing your invention. It’s about how you describe it and what you say it is NOT. Because years later, in a courtroom, those words may matter more than you expect.

Supreme Court Narrows Contributory Copyright Liability

April 2, 2026

Big news in the world of copyright. The Supreme Court just held that a service provider is contributorily liable only if it intended its service to be used for infringement.

What Is Contributory Copyright Infringement?

Cox Communications, Inc. v. Sony Music Entertainment. The Supreme Court decided an Internet Service Provider (ISP) could not be held contributorily liable for its users’ copyright infringement simply because it knows about the infringement and continues providing service.

Contributory infringement, if you aren’t aware, is basically a second-hand infringement. It means the contributor isn’t directly violating copyrights but contributes to the infringing conduct of another party. In this case, Cox was charged with intending its service to be used for infringement.

A copyright owner can show this intention in two ways. The first is that Cox induced the infringement. The second is that Cox “sold a service tailored to infringement”.

The Role of Cox as an Internet Service Provider

Cox is a huge Internet Service Provider with around six million subscribers. But Cox itself has limited knowledge as to how their services are used. In the fine-print contract subscribers sign (but rarely actually read), Cox states that users are not to infringe copyrights.

How Sony Tracked Alleged Infringement

Sony Music used MarkMonitor to track infringement. MarkMonitor is software that detects when copyrighted works are illegally uploaded or downloaded. It traces the activity to specific IP addresses.

During a two-year period, it sent Cox over 160,000 notices identifying subscriber IP addresses associated with alleged infringement.

Sony’s Lawsuit and the $1 Billion Jury Verdict

Sony then sued Cox for contributory infringement, arguing that Cox continued to provide service to subscribers associated with violations. Cox responded that it took steps to limit infringement. It implemented a policy of cutting off infringing subscribers after 13 warnings. And, of course, there’s the contract that few ever read.

Sony noted that only 32 subscribers had been terminated for infringement, compared to the 160,000 detected instances. Sony also referenced internal employee statements suggesting Cox was unwilling to cut off subscribers due to lost revenue.

Cox defended itself by pointing out its suspension system addressed 98% of the identified infringement.

The jury sided with Sony and imposed a $1 Billion verdict. Appeals followed, with some adjustments along the way, but Cox’s basic misconduct was upheld.

The Supreme Court’s Decision: No Liability Without Intent

That changed when the case reached the Supreme Court.

The Supreme Court held that a service provider is contributorily liable only if it intended its service to be used for infringement. To prove that, Sony needed to show that Cox’s service was designed in the ways outlined above. This was not the case. Subscribers were warned not to infringe in the contract. Infringing subscribers were issued repeated warnings. And in some instances, repeat offenders were suspended or terminated. That’s hardly inducement to infringe.

Other articles related to copyrights and infringement: Call of Duty Lawsuit Ends Without Attorneys’ Fees for Activision

Ignorance of the Law may be an Excuse in Copyright Registration

De Minimus Defense Doesn’t Necessarily Mean Minimal Use