10.24.18

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

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

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.

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