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

European Patent Office (EPO) Series: Temporary Public Office or Permanent Personal Feather-Bed?
there are no visible signs that the Administrative Council has the slightest interest in contemplating a change in leadership at the EPO
Brigading Against Women - Part IV - Death Threats, Threats to Women, and Threats for Pointing Out, Correctly and Based on Hard Evidence, That Garrett and Lozza Talk to Each Other About Me Every Year (for 4 Years)
Brett Wilson LLP too is a toxic manosphere
Making Oneself Obsolete With Slop
Dr. Lemire also puts on display a degree of hypocrisy
 
Gemini Links 26/09/2026: Computer Cases Dreary, Web Drowning in Botspam
Links for the day
Reform UK auditor: Electoral Commission accounts, Companies House accounts, a going concern or not?
Reprinted with permission from Daniel Pocock
More GAFAM Layoffs at Apple, Second Time in Weeks (Silent Layoffs Silently Target Older and "More Expensive" Staff)
How many layoffs happen at Apple silently and go unreported or very scarcely reported?
Gemini Links 26/09/2026: Rant About Slop Ruining Crafts (Drowning the Signal With Plagiarism) and "Going Mechanical"
Links for the day
Links 26/09/2026: Microsoft Says Notification Data Breach/Surveillance Hole There by Design, EU Rapidly Dumping Microsoft for Digital Sovereignty
Links for the day
The Former Linux News Site ostechnix.com is LLM Slop
Please do not link to sites that promote and/or spread slop
Links 26/09/2026: Volkswagen Recalling ~50,000 Cars, US Attacks Its Own Media
Links for the day
Brigading Against Women - Part III - Racism Looms Large, Not Just Sexism
threats from a racist
Microsoft CEO Calls Layoffs "Streamlining" and Says Microsoft Layoffs Are "Great to See"
The lack of honesty here is only to be expected from Microsoft
Media silence deafening as Reform UK on brink of administration
Reprinted with permission from Daniel Pocock
Gemini Links 26/09/2026: Travel, Group Insurance Death Spiral, Stargazing, and Lagrange Meets LLM Slop
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, September 25, 2026
IRC logs for Friday, September 25, 2026
Longtime Symbol of Microsoft's XBox Franchise, Halo, Down to Barely 20 People
The purge is huge, far bigger than submissive media cares to point out
EPO Meeting Ran Out of Time to Discuss the Scabs ('Young Professionals')
EPO staff representatives in The Hague meet a member of the 'cocaine cabinet'
The Register MS Promotes Slop for Banned Companies That Put Chinese Back Doors in Things, "AI" Mentioned 37 Times in One Page!
taking money from the undemocratic state and its surveillance outfits
Microsoft Attacked European Courts and Jurists, Now Europe Dumps Microsoft
This is because GNU/Linux is technically better, but the political factors contribute to that as well
Julian Assange Ready to Talk More (After More Than a Decade of Arbitrary, Unjust Confinement)
Two years ago, upon his release, his wife said he'd need some time off before properly or fully returning to the public eye
IEEE Tribute to Richard Stallman, Michael Tiemann, Linus Torvalds, Larry Augustin, Eric S. Raymond, Bruce Perens, Frank Hecker and Brian Behlendorf (Revolution OS Showing)
Live shortly
Winding Up Racists
What happens next shall be interesting
Links 25/09/2026: Selling Rogue, Defective Bots as "Agents" Results in PR Fiasco and Breaches; Russian 'Hybrid Attack' and "How Russia Evades Sanctions"
Links for the day
Gemini Links 25/09/2026: Arvelie Calendar, 44net, Pebbles, and Building the Bagel Concert Finder
Links for the day
A Microsoft Lunduke OS (LCOS) is Not Even in Top 100 in DisroWatch, Microsoft Lunduke Just Games the Numbers Like Linspire Did (and Got 'Banned' for It)
Linspire used to send people to 'its' DisroWatch page to make the illusion of popularity
Large Wave of IBM PIPs, the RAs Wave Comes After 'Low-Hanging' Fruit (Families) Disposed of
PIPs are the new RAs
Links 25/09/2026: Carcinogen Atrazine Pollutes Americans' Bodies, "Donald the Deadbeat Does Diesel", and Anger Over Data Centres Grows
Links for the day
Theory That Microsoft Cheapens Its Workforce to Push Workers Out on Their Own (Theory Advanced by Insider)
people work longer hours for less, i.e. their hourly salary is decreasing
Daniel Pocock Makes It Into Mainstream Media Again (Going After Racists)
American bigots funding blatant and shameless racists here in the UK
Tackling Racism in the United Kingdom (Racism Funded by Americans) Using the Courts
We'll talk about racism my wife and I experienced in the events leading up to litigation
Another Woman (or Women) Has Just Run Away From Brett Wilson LLP (After Barely a Month!), the Hired Guns of Garrett and Graveley (Microsoft)
They call this phenomenon "death spiral"
SLAPP Censorship - Part 200 Out of 200: Will GNU Boot Undo the Technical Damage Caused by Microsoft and Garrett? (And Garrett's Litigation Allies From Microsoft)
Today we publish the final part of this series
US Government Sites Can Now Totally Ignore Mozilla Firefox Users or Users of Firefox Derivatives
Firefox, now at 1.1% in the US (based on American government sites), has sunken to the point of no return
Things Not to Measure in Quantity Alone
More patents do not beget greater innovation
Even Microsoft Boosters Start to Doubt XBox Will Exist (It's Being Phased Out, Just Not "Officially")
This is how to phase out a business unit without officially saying so (as it might alarm investors)
Omarchy is Built on the Idea That Slop is Desirable (It's Not)
They call bots and plagiarism "agents" and "training"
IBM is Shrinking Very Fast (Silent, Unannounced Layoffs)
IBM and Microsoft both avoid WARN notices by compelling staff to leave or silently removing them with some NDA
In Some Parts of Microsoft 50% of All Staff Subjected to Layoffs, Media Pretends Only 0.1% of Staff Are Removed
This really says a lot about the state of today's so-called 'media'
SLAPP Censorship - Part 199 Out of 200: An American Burden on the British Legal System
A year ago (October 2025) the head of media (Jointly in Charge of the Media and Communications List), the judge in the Garrett case, said that this case was a waste of the court's money
EPO Management Wants Everything to be Done in Microsoft Spyware
In reality, this management should be ousted for normalising cocaine at the Office
Criminalising Opposition to Fraud
slop causes social issues
The Register MS Does Not Properly Flag Its SPAM About Slop
Signs of desperation
Gemini Links 25/09/2026: Ljubljana, Tanana River, and Curse of Slack
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, September 24, 2026
IRC logs for Thursday, September 24, 2026
Supporters of winding-up process staking claims against Reform UK Party (CR-2026-007405)
Reprinted with permission from Daniel Pocock
Winding-up petition leaked before service on Reform UK Party Limited / Nigel Farage
Reprinted with permission from Daniel Pocock
Gemini Links 24/09/2026: Laziness, Outdoor Seating, "AngelNova’s Interview Malware and Its North Korea Connection"
Links for the day
Links 24/09/2026: Slop "Linked to Disturbing Culture of Sexual Assault"; "Zelensky Warns Russia’s War Will Expand if It Is Not Ended Soon"
Links for the day
Winding-up petition served on Reform UK Party Limited (Nigel Farage)
Reprinted with permission from Daniel Pocock
Appliances Should be Dumb
Any "Smart Home Appliance" is basically a thing that does not last long, does not work as advertised, and is generally unfit for purpose
SLAPP Censorship - Part 198 Out of 200: It Sounds Like Garrett is Now Sending People to Silence Critics (Including His Own Spouse)
This week Garrett is having a somewhat karmic experience
Links 24/09/2026: Slop Contaminating KDE, Slop-Focused Data Centres Have Severe Environmental Impact
Links for the day
SLAPP Censorship - Part 197 Out of 200: Garrett Became So Poor That He Wants Others (in Another Continent) to Pay for His Own Legal Work Being Faulty
They lie to courts
The Register MS Has Become a Slopfest
This is the behaviour of a perishing publisher
Gemini Links 24/09/2026: Requiem for a Season, Philosophy, Rube-Goldberg Machine, ROOPHLOCH 2026, and Git over Gemini
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 23, 2026
IRC logs for Wednesday, September 23, 2026