Bonum Certa Men Certa

As USPTO Director, Andrei Iancu Gives Three Months for Public Comments on 35 U.S.C. €§ 101 (Software Patenting Impacted)

No guarantee that anything will change, but the patent microcosm enthusiastically promotes this perception

Pulling a Berkheimer



Summary: Weeks after starting his job as head of the US patent office, to our regret but not to our surprise, Iancu asks whether to limit examiners' ability to reject abstract patent applications citing 35 U.S.C. €§ 101 (relates to Alice and Mayo)

A COUPLE of days ago we carefully took note of sites that had been attacking Michelle Lee (USPTO Director and reformer); they are now pressuring the new Director, Andrei Iancu. Will they get their way at the end? Can they squash Alice and Mayo somehow? Will Iancu let them do it?

"The patent extremists, we might as well add, are nowadays naming and ranking patent examiners by how subservient they are to patent maximalists."Sites like Watchtoll are keeping the old obsession with him, pushing him towards limiting/removing PTAB, reintroducing software patents etc.

Steve Brachmann (Watchtroll) wrote about him again a couple of days ago, to be followed by another piece about the person who chose him before Trump nominated him. To quote:

Over the last several weeks those in the industry supportive of strong patent rights have been treated to speeches from USPTO Director Andrei Iancu saying all the right things about the patent system. but it is hard to imagine anything more significant than Secretary Ross simply showing up at an event like this.


Citing decisions like Berkheimer, a couple of days ago Gene Quinn (Watchtroll) mentioned potential changes to Section 101 and said: "The deadline for receiving public comments will be 120 days from official publication in the Federal Register, which will take place on Friday, April 20, 2018."

It didn't take long for patent maximalists to get all jolly; Iancu is being pressured to be a stooge of patent extremists, who are now boosting Watchtroll in joy and glee.

"So basically, nothing has been finalised."Even IBM's patent chief is boosting Watchtroll on this, which says a lot about IBM. It's a rather trollish and malicious company nowadays. It lobbies for software patents like no other company (not even Microsoft).

The patent extremists, we might as well add, are nowadays naming and ranking patent examiners by how subservient they are to patent maximalists. This is a sort of witch-hunt-type trick. Anticipat did it and now Watchtroll joins the 'fun'. It's getting pretty ugly.

For a more balanced coverage, see what IP Watch wrote yesterday:

The United States Patent and Trademark Office today issued a Federal Register notice providing guidance to patent examiners on patent subject matter. The office is seeking public comments on the new guidance.


Here's the original wording (complete): "The USPTO has issued today a Federal Register notice and memorandum to the patent examining corps in response to a recent decision by the U.S. Court of Appeals for the Federal Circuit in Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018), pertaining to subject matter eligibility. This new guidance pertains to the second step of the Alice-Mayo framework for determining subject matter eligibility, and is focused on how examiners are to analyze and document a conclusion that a claim clement is “well-understood, routine, conventional” during the patent examination process. The USPTO is requesting public comment on the new guidance. This memorandum was issued now in light of the recent decision from the Court of Appeals. The USPTO is determined to continue its mission to provide clear and predictable patent rights in accordance with this rapidly evolving area of the law, and to that end, may issue further guidance in the future."

So basically, nothing has been finalised. It is a proposal regarding a potentially new guidance (to be in effect). Watchtroll, like the original, names Berkheimer, as it last did yesterday:

As for the memo itself, it indicates that while Berkheimer does not change the basic subject matter eligibility framework set forth in MPEP €§ 2106, the case does provide clarification for the Alice Step 2B inquiry in that whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination. “[A]n examiner should conclude that an element (or combination of elements) represents well-understood, routine, conventional activity only when the examiner can readily conclude that the element(s) is widely prevalent or in common use in the relevant industry…[and] such a conclusion must be based upon a factual determination…This memorandum further clarifies that the analysis as to whether an element (or combination of elements) is widely prevalent or in common use is the same as the analysis under 35 U.S.C. €§ 112(a) as to whether an element is so well-known that it need not be described in detail in the patent specification [emphasis original].”


Richard Lloyd (IAM think tank) wrote: "During his first oversight hearing before the Senate Judiciary Committee yesterday, USPTO Director Andrei Iancu came under growing pressure to issue guidance on how recent changes in jurisprudence on patent eligible subject matter should be applied. Senator Kamala Harris, a recent appointee to the committee, quizzed Iancu on the uncertainty around section 101, particularly as it relates to artificial intelligence. This is an area of growing interest to the tech giants of her home state of California, and Harris asked the new PTO if he could commit to issuing new guidance within 90 days."

"We expect technology companies (other than IBM) to oppose changes and in fact Josh Landau (CCIA), who represents many such companies, has already responded."There was also this tweet about it, which said: "Yesterday in the Senate, USPTO director Iancu committed to reporting back on possible changes to 101 guidelines within 90 days, so today's news is something of a surprise. But eligibility is an issue Iancu has focused on strongly since taking the reins."

We expect technology companies (other than IBM) to oppose changes and in fact Josh Landau (CCIA), who represents many such companies, has already responded. Two days ago he wrote a rebuttal to the claims made in the oversight hearing:

On Wednesday, April 18, new USPTO Director Andrei Iancu appeared for his first oversight hearing in front of the Senate Judiciary Committee. The Director was more open with the Committee compared to his confirmation process, leading to some interesting discussions.

Algorithms Are Already Patentable

A number of questions focused on the issue of patentable subject matter, also referred to as €§ 101. As noted by a number of Senators, artificial intelligence (AI), machine learning, and big data are huge areas of innovation right now. Google’s AI systems (including DeepMind and TensorFlow) have enabled key advances in many areas of machine learning. NVIDIA’s advanced GPU hardware enables faster, more efficient AI technology, and they have their own AI systems that run on top of their hardware. Intel is providing neural network hardware that can learn on its own. These technologies underlie recent advances in areas as diverse as natural language translation, self-driving cars, and medical diagnostics.

Unfortunately, there appeared to be an impression that algorithms aren’t patentable, and Director Iancu could have done more to clarify that that’s anything but the truth. Of course you can patent an algorithm. In fact, claiming a specific algorithm for solving a problem in your patent is one of the most effective ways to make sure that your invention passes €§ 101; that was the exact rationale in the McRO case. Essentially, you can patent “a specific means or method that improves the relevant technology,” but you can’t patent “a result or effect that itself is the abstract idea and merely invoke generic processes and machinery.” A specific algorithm that solves a technical problem is patentable. But what isn’t patentable is claiming “using artificial intelligence to solve a problem”, any more than “using computers to solve a problem” was found patentable in Alice.

And that shouldn’t concern anyone interested in the future of AI. Alice hasn’t hurt the computer software industry—on the contrary, R&D spending on software and the internet has skyrocketed post-Alice. And the inability to patent “solve it with AI” isn’t going to harm investment in AI.

Real advances in AI are receiving patents every day. [1][2][3][4]. Utility patent 10,000,000 will likely issue this summer, and given the pace of innovation seen every day, there’s a good chance that patent will relate to AI. But what isn’t—and shouldn’t be—patentable is the sort of “do it with AI” patents that can block off whole areas of research and development, the sorts of patents that are favorites of patent trolls. And that’s exactly the situation we have today.


What will happen after 3 months is not known to us (not yet), but we expect groups like the EFF, Engine, CCIA, HTIA and others to remain involved and push back against patent maximalists. We'll mostly be vigilant observers and report on what is happening, e.g. public submission of comments.

Recent Techrights' Posts

Place Your Bets: Who Will Die First? Microsoft or IBM?
Not even joking; make a guess
Restoring Professional Pride in the Tech Sector
Rejecting slop isn't being a Luddite
Slop Bubble "Is Worse Than The Dot Com Bubble"
Edward Zitron Says It like it is
IRC Proceedings: Saturday, January 17, 2026
IRC logs for Saturday, January 17, 2026
Microsoft Lunduke Keeps Distracting From the Real Problems With Rust
Microsoft Lunduke is stigmatising critics
Stack Ranking Against IBM/Red Hat Staff and a Signal of Mass Layoffs (RAs) Justified by Red Hat and IBM as Poor Performance/Misconduct/Other
Working in an atmosphere like this sounds like a nightmare
Microsoft's "valuation depends on infrastructure that does not exist."
Indeed
The Typical Trajectory: Datamation Began Experimenting With LLM Slop for Fake Articles. Then Datamation Died. (Last Month)
It's always ending up this way
 
Links 18/01/2026: "South Africa is Running Out of Software Developers", Companies Spooked to Find Slop is a Major Liability
Links for the day
Eventually the Joke (and Financial Fraud) is on Microsoft, Stigmatised for Slop
Is Microsoft trying to commit suicide?
GNU/Linux Leaps to All-time Highs in Virgin Islands
it seems to have started around the "end of 10"
'Cancel Culture' Doesn't Work (in the Long Run)
Despite all the attacks, I'm enjoying life, I'm keeping productive, and our audience continues to grow
Making and Keeping the Sites Accessible
Sometimes less does mean "more" (or "MOAR")
The "Alicante Mafia" - Part IV - How Europe's Largest Patent Office Recruited Drug Addicts, Antisemites, and People Who Absolutely Cannot Do the Job (But Know the 'Right' People)
To better overlap industrial actions we might delay/postpone/pause this series for a bit
Benefiting by Adding Presence in Geminispace
As the Web gets worse, not limited to bloat as a factor, people seek alternatives
Google News Recently Started Syndicating Another Slopfarm, Linuxiac
Even if Google is aware that there is slop there, it's hard to believe that Google will mind
Software Patents and USMCA (or NAFTA)
We recently pondered going back to issuing 2-3 articles per day about patents and common issues with them
IBM Sued Over PIPs
PIPs are "performance improvement plans"
Sites With "Linux" in Their Name That Are in Effect Slopfarms and Issue Fake Articles
We try to name some of the prolific culprits
Gemini Links 18/01/2026: Raising Notifications From Terminal and Environmental Sanity
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
Links 17/01/2026: Internet Blackout Normalised, Russian Attacks Civilians by Causing Massive Blackouts
Links for the day
Linuxiac Has Become a Slopfarm, Calling Them Out Isn't Fixing That
What a shame. A once-decent site about "Linux" bites the dust.
Luzern Lion Monument, Albanian Female Whistleblowers: Swiss jurists were cowards
Reprinted with permission from Daniel Pocock
The Splinternet is Already Here, Owing to the Militarisation of Technology (Slop, Social Control Media, Back Doors, and More)
you know what's gonna happen next...
Gemini Links 17/01/2026: Slow computing and Environment Leak
Links for the day
Links 17/01/2026: US Censorship and Violence Crisis, Growing Anger Levels Against Slop Sold as "Intelligence"
Links for the day
Accounts or Devices (e.g. Phones) That Get 'Burnt' Have Many Pitfalls
Embassies and consulates habitually fail at this
Avoiding the Spooks (Nobody Watches the Watchers, They're Practically Unaccountable)
If more people adopt encryption, it'll be easier for us to deal with whistleblowers
Protecting Whistleblowers Requires Technical Knowledge/Skills
even the highest media judges aren't aware of how to protect sources
At Least 5 Women Quit Brett Wilson LLP in Recent Months. It's the Firm That Attacked My Wife and I on Behalf of Americans (One of Them Strangled Women).
It seems like good news that the women escape this workplace
Slop About Slop and Slop About "Linux"
In short, avoid slopfarms
Report/Benchmark Says 'Vibe Coding' Results in Security Holes
There are risks they don't like talking about
EPO Abuses Covered in Spanish
Knowing what we know (and heard/saw), the sinister silence of the media is perceived by some to be complicity of the lower order.
Richard Stallman Encourages "ICE Out For Good" Protests, His Opponents Do Not (Passive and Uncaring About Human Rights)
He has done a lot philosophically, politically, and so on
Record Traffic in Geminispace or Over Gemini Protocol
it's never too late to join
The "Alicante Mafia" - Part III - Europe's Second-Largest Organisation on Strike, Protests, Other Industrial Actions to Come Impacting Over 95% of the Workforce
The EPO's management is highly evasive, weak, and vulnerable
Claim That IBM Marked 15% of its Workforce for Potential Layoffs
No wonder we keep hearing from Red Hat people who say they hate IBM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, January 16, 2026
IRC logs for Friday, January 16, 2026
Great Reset at IBM, the Company That Pulps Red Hat
In 2026 many workers are RTO'ed, PIP'ed, and at Red Hat many have effectively 'left the company' and now start afresh as "IBM" staff
The "Alicante Mafia" - Part II - Breakout of Discontent This Winter in Europe's Second-Largest Organisation
So far we've caused a lot of panic and stress inside Team Campinos
The "Alicante Mafia" - Part I - An Introduction to the Mafia Governing the EPO
Are some people 'evacuating' themselves to save face?
J.H.M. Ray Dassen & Debian, Red Hat, GNOME unexplained deaths
Reprinted with permission from Daniel Pocock
At Microsoft, "Firing People is a "Cheat Code" to Pump the Stock Short-term But They Are Literally Destroying the Company's Soul Long-term."
They frame layoffs as a "success story"
Gemini Links 16/01/2026: "Porting My Main Website Over to Gemini" and Seeed Studio DevBoard
Links for the day
IBM Stacked and Ranked Badly, Maladministration Dooms the Company
Now they stack people up for PIPs and layoffs ("RAs")
Google News Poisons Its Own Index With More Slopfarms (Including "filmogaz")
Naming and shaming lazy slobs who rip off other people using LLMs can work, eventually
Links 16/01/2026: UK Royal Family's "Legal Team Accused of Dishonesty, Fraud and Misconduct", OSI Still Controlled by Microsoft (the OSI's Spokesperson is on Microsoft's Payroll, Not Interim Executive Director, Deborah Bryant)
Links for the day
Writing About Corruption
Fraud is everywhere
The B in IBM is Brown-nosing and Buzzwords (or Both)
International Buzzwords Machines
Naming Culprits in Switzerland
Switzerland is highly secretive about white-collar crime
IBM's 'Scientific-Sounding' Tech-Porn Won't Help IBM Survive (or Be Bailed Out)
Who's next in the pipeline?
IBM Was Never the Good Guy
its original products were used for large-scale surveillance, not scientific endeavours
The Bluewashing is Making Red Hat Extinct (They All Become "IBM", Little by Little)
IBM does not care what's legal
Slopfarms Push Fake News About Microsoft Shutdown, 30,000+ Microsoft Layoffs Last Year Spun as Only "15,000"
The Web is seriously ill
Countries Take Action Against Social Control Media and 'Smart' 'Phones', Not Slop (Plagiarised Information Synthesis Systems or P.I.S.S.)
None of this is unprecedented except the scale and speed of sharing
Sanitised Plagiarism as "AI" (How Oligarchy Plots to Use Slop to Hide or Distract From Its Abuses, or Cause People Not to Trust Anything They See/Read Online)
This isn't innovation but repression
Sites That Expose Corruption Under Attack, Journalism Not Tolerated Anymore (the Super-Rich Abuse Their Wealth and Political Power)
Sometimes, albeit not always, the harder people try to hide something, the more effective and important it is for the general public
Recent Layoffs at Red Hat (2026 the Year of Ultimate Bluewashing)
I found it amusing that Red Hat's CEO has just chosen to wear all blue, as if to make a point
Links 16/01/2026: Social Control Media Curbs in Australia Underway, MElon Still Profiting by Sexualising Kids 'as a Service'
Links for the day
More People Nowadays Say "GNU/Linux"
We still see many distros and even journalists that say "GNU/Linux"
LLM Slop on the Web is Waning, But Linuxiac Has Become a Slopfarm
I gave Linuxiac a chance to deny this or explain this; Linuxiac did not
More Signs of Financial Troubles at Microsoft, Europe Puts Microsoft Under Investigation
The end of the library is part of the cuts
Team Campinos Talks About SAP Days Before EPO Industrial Actions and a Day Before the "Alicante Mafia" Series (About Team Campinos Doing Cocaine)
EPO staff that isn't morally feeble will insist on objecting to illegal instructions
Pedophilia-Enabling Microsoft Co-founder Cuts Staff
Compensating by sleeping with young girls does not make one younger
Microsoft Shuts Down Campus Library, Resorts to Storytelling About "AI" to Spin the Seriousness of It
Microsoft is in pain
Free Software Foundation (FSF) Back to Advertising the Talks of Richard Stallman
A pleasant surprise
Stack(ed) Rankings and Ongoing Layoffs at Red Hat and IBM (Failure to Keep Staff Acquired by IBM)
IBM is mismanaged and its sole aim is to game the stock market (by faking a lot of things)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, January 15, 2026
IRC logs for Thursday, January 15, 2026
Gemini Links 16/01/2026: House Flood and Pragmatic Retrocomputing Dogfooding
Links for the day