Bonum Certa Men Certa

Colleen Chien's New Paper Analyses the Basis for Invalidating Software Patents

Busting mythology spread by the anti-€§ 101 brigade (proponents of software patents, who inhibit programming freedom)

"Those who deny freedom to others deserve it not for themselves."

--Abraham Lincoln



Summary: Showing the impact of 35 U.S.C. €§ 101, based on "a treasure trove of data about 4.4 million office actions," Professor Colleen Chien and Jiun Ying Wu (Santa Clara University Law School) say "a relatively small share of office actions – 11% – actually contain 101 rejections" (contrary to myth)

THE previous post spoke about the EPO promoting software patents in Europe because its president, António Campinos, hasn't a clue in this area. He came from the banking 'industry' and he now helps the litigation 'industry'. The same can be said about the new Director of the USPTO, whom we'll mention in our next post (he's already under fire from technology firms).

"China needs its own Patent Trial and Appeal Board (PTAB; China already has that kind of thing and almost a direct equivalent to some degree) rather than CAFC because it's granting loads of patents that are pure comedy; they've become an insult to science."The matter of fact is, China remains -- as far as we know -- the only large country/market that formally permits software patents; in other countries people need to disguise these and even then there's no guarantee of having them granted and then defended/upheld in courts.

"Big news out of China this morning. A new central appeals court for all patent cases is set to be created. It will be housed within the People’s Supreme Court in Beijing. That will mean a Chinese CAFC," IAM wrote, alluding to the Federal Circuit (CAFC) in the US.

China needs its own Patent Trial and Appeal Board (PTAB; China already has that kind of thing and almost a direct equivalent to some degree) rather than CAFC because it's granting loads of patents that are pure comedy; they've become an insult to science. The inter partes review (IPR) process helps eliminate those, e.g. in case they're used for threats or actual lawsuits.

Watchtroll is meanwhile speaking for the litigation 'industry' (earlier this week). It says "virtually all job announcements require some patent prosecution experience." (i.e. blackmailing a bunch of people/firms). Lawyers or attorneys in Japan treat or view patents like a trolls' 'vegetable market' -- one in which the goal is blackmail or making an infringement willful, i.e. treble 'damages'.

What the above serves to show is more of that ongoing conflict between the litigation 'industry' and the real industry (companies that actually produce stuff).

"There's meanwhile a new study regarding 35 U.S.C. €§ 101, the rule (or section) by which the U.S. Patent and Trademark Office (USPTO) and U.S. courts eliminate a lot of software patents."Whose side will the USPTO take? That depends on lobbying, on leadership (appointments influenced by lobbying), and the public's capacity to protest (which is rare).

There's meanwhile a new study regarding 35 U.S.C. €§ 101, the rule (or section) by which the U.S. Patent and Trademark Office (USPTO) and U.S. courts eliminate a lot of software patents.

"Professor Colleen Chien and Jiun Ying Wu are working their way through an analysis of millions of USPTO office actions," Patently-O wrote. "In this Patently-O L.J. essay, the pair reports on how the PTO is examining applications for patentable subject matter. The article documents “a spike in 101 rejections among select medical diagnostics and software/business method applications following the Alice and Mayo decisions.” Although rejections rose within certain art units, the pair found little impact elsewhere."

Patently-O then published this guest post by "Colleen Chien, Professor, Santa Clara University Law School" (she wrote a lot about this subject before). "Great insight into stats surrounding 101 applications in the US," one person called it. It's based on analysis of large piles of data. Here are the details:

Last November, the USPTO released the Office Action Dataset, a treasure trove of data about 4.4 million office actions from 2008 through July 2017 related to 2.2 million unique patent applications. This release was made possible by the USPTO Digital Services & Big Data (DSBD) team in collaboration with the USPTO Office of the Chief Economist (OCE) and is one of a series of open patent data and tool releases since 2012 that have seeded well over a hundred of companies and laid the foundation for an in-depth, comprehensive understanding of the US patent system. The data on 101 is particularly rich in detail, breaking out 101 subject matter from other types of 101 rejections and coding references to Alice, Bilski, Mayo and Myriad.

With the help of Google’s BigQuery tool and public patents ecosystem[4] which made it possible to implement queries with ease, research assistant Jiun-Ying Wu and I looked over several months for evidence that the two-step test had transformed patent prosecution. We did not find it, because, as the PTO report notes, a relatively small share of office actions – 11% – actually contain 101 rejections.[5] However once we disaggregated the data into classes and subclasses[6] and created a grouping of the TC3600 art units responsible for examining software and business methods (art units 362X, 3661, 3664, 368X, 369X),[7] which we dub “36BM,”[8] borrowed a CPC-based identification strategy for Medical Diagnostic (“MedDx”) technologies,[9] and developed new metrics to track the footprint of 101 subject matter rejections, we could better see the overall impact of the two-step test on patent prosecution. (As a robustness check against the phenomenon of “TC3600 avoidance,” as described and explored in the accompanying Patenty-O Law Journal article, we regenerate this graph by CPC-delineated technology sector, which is harder to game than art unit, finding the decline in 101 more evenly spread).


35 U.S.C. €§ 101 needs to be preserved and abstract patents go the way of the dodo. But as we shall show in our next post, the new Director insists on regressive measures. That's what happens when Donald Trump and his super-wealthy friends pick leaders at the USPTO.

Recent Techrights' Posts

The Week to Come
Planning ahead
LLM Slop Has Only Been a Boon for Misinformation Online
The very same companies that were supposed to maintain quality (again, not limited to Google with PageRank) are now actively participating in generating and spreading slop
When They Tell You It's Free, Does That Mean No Charges (If So, Who's Paying and Why)?
there's "no free lunch"
 
Links 28/07/2025: COVID-19 Sped up Brain Aging, "Circumvention is More Popular Than Compliance"
Links for the day
Richard Stallman is Usually Right Because He Thinks "Outside the Box"
he is able to observe society (mores and norms) as somewhat of an outsider
LWN Has Been Down for a Long Time, Another Casualty of LLM Bots?
Time will tell. How much time though?
Slopfarms Versus 'Linux' (and Against People Who Write Real Articles About GNU/Linux)
LLM slop in slopfarms by Brian Fagioli and Redazione RHC
Gemini Links 28/07/2025: Bila Yarrudhanggalangdhuray and Running pkgsrc in a FreeBSD Jail
Links for the day
Microsoft Turns News Sites Into Spamfarms
Is the site The Register MS the next IDG?
The Register MS/The Register US
On Saturday I contacted them for a comment (before issuing criticism)
Hacking revelations at Vatican Jubilee of Digital Missionaries
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 27, 2025
IRC logs for Sunday, July 27, 2025
We're Going to Focus Less on the Molotov Cocktail-Throwing Microsofters and More on Patents
We can get back to focusing on what we wanted to focus on all along
Just Trying to Keep Web Sites Honest (Journalistic Integrity)
the latest articles in LinuxIac are real
Links 27/07/2025: Political Affairs, Data Breaches, Attacks on Freedom of the Press
Links for the day
Gemini Links 27/07/2025: Hot in Japan and Terminal Escape Codes
Links for the day
Links 27/07/2025: More Microsoft Layoffs Coming, Science and Hardware News
Links for the day
Links 27/07/2025: FSF Hackathon and "Hulk Hogan Was a Very Bad Man"
Links for the day
Gemini Links 27/07/2025: DAW Mixer Chains and Simple Software
Links for the day
The Register MS is Inventing or Giving Air Time to New Conspiracy Theories so as to Distort the Narrative As High-Profile Agencies Fall Prey to Microsoft Holes
But the problem is holes, i.e. Microsoft making bad products; the problem is Microsoft
Most Editors at The Register Are American, Including the Editor in Chief, a Decade-Long Microsoft Stenographer (Writing Prose to Sell Microsoft)
It's not easy to tell where the site is based (we tried) because it's hiding behind ClownFlare and CrimeFlare hasn't been well lately
Pushers of systemd Rewrite History (Richard Stallman Said UNIX "Was Portable and Seemed Fairly Clean")
Unlike systemd
"New Techrights" Soon Turns 2 (A Few Days Before the FSF Turns 40)
We have a lot more to say about LLM bots
When Silence Says So Much
Garrett, a 'secure' boot pusher, will need to defend himself in the UK High Court
The Register in Trouble
There is not much that can be done at this point
Trajectory of The Register: From News Site/s Into "B2B"... and Into Microsoft Salespeople
Something isn't right at The Register
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 26, 2025
IRC logs for Saturday, July 26, 2025
Misinformation in Social Control Media
Social control media passes around all sorts of tropes
Slopwatch: Fake Linux 'Articles' and Slopfarms With "Linux" in Their Names/Domains
throwing bots at "Linux" to make some fake articles
Links 26/07/2025: Amazon Shutdown in China, Russian Economy Slows
Links for the day
Gemini Links 26/07/2025: History of Time (1988) and Gemini Games
Links for the day
Links 26/07/2025: 50 Percent Tariffs in Amazon, Dying Intel Offloads Network and Edge Group (NEX)
Links for the day
Doing My Share to Tackle Online Slop and SPAM
Trying my best to 'fix' the Web
Blaming Programming Languages for Users' and Developers' Bad Practices
That's like blaming cars for drivers who crash into things
Slopwatch: Fakes, FUD, Duplicates, and Charlatans Galore
The Web as we once know it is collapsing. Some opportunists try to replace it with low-quality slop.
The Register UK Seems to Have Become American and Management is Changing (Microsofter as Editor in Chief)
The Register 'UK' is now controlled by the Directions on Microsoft guy
Many People Still Read Techrights Because It Says the Truth, Produces Evidence, and Does Not Self-Censor
Unlike so many other sites
The Register is Desperate for Money, According to The Register
I decided to check how they're doing as a business
Microsoft Finally Finds a Use Case for Slop?
Create low-quality chaff to shift the media's attention?
Microsoft Windows Lost 400 Million Users in a Few Years, Why Does The Register Double Down on Windows With New US Editor?
days ago they hired a new US editor
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 25, 2025
IRC logs for Friday, July 25, 2025
For Libel Reform One Must First Bring (or Raise) Awareness to the Issues and Their Magnitude
I myself know, from personal experience
Links 26/07/2025: Rationed Meals in the US and TikTok Repels Investments (Too Toxic)
Links for the day
Gemini Links 26/07/2025: "Bloody Google" and New People in Geminispace
Links for the day
Response to Solderpunk (Father of Gemini Protocol) About the Gemini Community
Solderpunk responds to non-sequitur
HTML and the Web Used to be Something a Child Could Learn, "Modern" Web is a Puzzle of Frameworks, Bloat, and Worse
When the Web was more like Gemini Protocol