04.13.15

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EFF Uses Alice v. CLS Bank Case to Pressure USPTO to Halt Software Patenting

Posted in EFF, Patents at 3:43 am by Dr. Roy Schestowitz

Summary: A look at recent patent policies and actions from the EFF, as well as increasing secrecy at the USPTO

THE US patent system, which is the primary source of software patents and by far the biggest facilitator of patent trolls, has not enjoyed much publicity as of late, especially not good publicity. Writers are picking on lawyers who want more patents, including Michelle Lee who is said to be destined to head the USPTO. It’s a system guarded by those who don’t represent the population but rather represent their colleagues and friends. It’s a system of protectionism, empowered by a government that’s heavily influenced by large corporations.

“It’s a system of protectionism, empowered by a government that’s heavily influenced by large corporations.”“The biggest impact on patent quality would be the USPTO injecting certainty into the eligibility debate,” IAM said a while ago. Well, actually, as we pointed out last night, the USPTO has already issued guidance on that (new examination rules), it’s just that patent boosters — like IAM — don’t wish to accept it.

As this other new post points out, the USPTO recently had its 9,000,000th “customer” (patent), for which it is being mocked. “So maybe we shouldn’t be so shocked,” said the author, “that USPTO plays the same game. There’s actual evidence backing it up. Because patents issue at discrete, weekly intervals, the PTO has time generally to group patents of the same “class” together in contiguous blocks of numbers. That’s why you usually don’t see a floor wax patent immediately next to a dessert topping patent. (Unless, of course, it’s for both.)”

That’s quite a bizarre way of numbering patents. But more to the point, there’s a lot of secrecy and anomalies in the USPTO. It’s hard to know how it’s working, which contradicts or conflicts with its function/status as government-run. Recently, the EFF pressured the USPTO and the USPTO then demanded that the EFF censors its comments on patent guidance, as if the rules must be kept secret. Not bad for a ‘public’ office, eh? To quote TechDirt: “As you know, last year the Supreme Court made a very important ruling in the Alice v. CLS Bank case, in which it basically said that merely doing something on a general purpose computer didn’t automatically make it patentable. This has resulted in many courts rejecting patents and the USPTO being less willing to issue patents, based on that guidance. The USPTO sought to push out new “guidance” to its examiners taking the ruling into account. Soon after the Alice ruling, it issued some “Preliminary Examination Instructions.” However, it then issued the so-called 2014 Interim Guidance on Subject Matter Eligibility and sought public comment through March 16 of this year.”

“As you can see by the full filing,” TechDirt adds, “the EFF filing isn’t some sort of improper protest. Rather it is a clear demonstration of how the USPTO does not appear to be living up to what the courts are saying in the wake of the Alice ruling. It is difficult to see what the USPTO was thinking in trying to silence the EFF’s comment. It is beyond ludicrous on multiple levels. First, it suggests a skin so thin at the USPTO that you can see right through it. Second, it suggests that the USPTO doesn’t want people to recognize that its guidance is problematic in light of what actual federal courts are saying. And, finally, it suggests (still) a complete lack of understanding of how the internet and freedom of expression works, thereby guaranteeing that the EFF’s complete dismantling of the USPTO’s guidelines will now get that much more attention…”

The EFF did a fine job showing how unreasonable the USPTO has become. Where does it derive consent from? Only large corporations? It’s now shrouded in secrecy. It’s rogue, a bit like the EPO, which is becoming more alike.

Not too long ago the EFF “Outline[d] [a] Plan to Fix the Broken Patent System,” to use its own words, but Will Hill, citing Jan Wildeboer (Red Hat), said that EFF was not serious about fixing the real issues. To quote Hill: “This is not an issue that deserves debate. Software patents are wrong philosophically and no good has come from them. In the last two years, the community told EFF as much and people have been saying the same things since the US first allowed a software patent 25 years ago. Who does the EFF think they are representing and why would they rather reduce a harm than eliminate it? Shame on them.”

The EFF seems to be having turf wars between opponents of software patents and sponsors who love them because the EFF sometimes speaks out against them (not always). Not too long ago (just earlier this month) we learned that the EFF helped bust an infamous software patent on podcasting, so well done to them. Daniel Nazer from the EFF also used the term “Abstract Software Patents” to describe the kind of patents the EFF wants the USPTO to stop issuing, citing Alice. Here is what Nazer wrote: “The Supreme Court took a major step in cutting back on abstract software patents last June when it issued its landmark ruling in Alice Corp. v. CLS Bank. In essence, the court said that abstract ideas implemented by conventional computer process are not eligible for patent protection. Since then, the PTO has attempted to write guidance applying the law to pending patent applications. Unfortunately, the PTO has floundered and continues to grant far too many invalid patents. This week EFF filed public comments asking the Office to do more to ensure its examiners apply the new law.”

Also see the article “EFF: If You Want to Fix Software Patents, Eliminate Software Patents”. It seems abundantly clear that some elements inside the EFF (not all of them) do wish to altogether eliminate software patents and that’s good, it’s definitely progress. As Wired put it: “That is by far the most incendiary proposal the Electronic Frontier Foundation offers in its comprehensive report on overhauling a painfully broken patent system. The report, two years in the making, suggests everything from strengthening the quality of patents to making patent litigation less costly. And there, on page 27 of the 29-page report, is “Abolish software patents.”

“The argument is that software patents may not just be flawed, but utterly unnecessary. This hasn’t always been EFF’s stance on patents, says Adi Kamdar, one of the report’s authors. But as the group compiled the report, it received 16,500 public comments from people in the business, academic, and policy communities. The idea that patents should be eliminated entirely was a common theme.”

Vera Ranieri from the EFF meanwhile (earlier on) suggested that SCOTUS “Shouldn’t Reward Ambiguity”, stating:

EFF submitted an amicus brief to the Supreme Court yesterday in Commil v. Cisco, a patent case that asks whether having a “good-faith belief” that a patent is invalid means that someone can’t induce infringement of a patent.

The issue of what it means to “induce infringement” is a complex, esoteric area of patent law. Generally, inducement liability is where the person accused of infringement didn’t actually carry out infringing acts herself, but instead encouraged other people to do them. For example, telling someone “hey, use this product to infringe this patent” might be inducement, whereas just making a product without any knowledge of a patent on its use would not be.

In conclusion, the USPTO is out of order as it tries to censor and hide its practices while the EFF, which is not perfect either, is at least pressuring the USPTO to stop issuing software patents. Given the EFF’s history of being soft on software patents (or ambiguous at best), overall this is definitely a step in right direction.

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