EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

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.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 22/3/2019: Libinput 1.13 RC2 and Facebook's Latest Security Scandal

    Links for the day



  2. Why the UK Intellectual Property Office (UK-IPO) Cannot Ignore Judges, Whereas the EPO Can (and Does)

    The European Patent Convention (EPC) ceased to matter, judges' interpretation of it no longer matters either; the EPO exploits this to grant hundreds of thousands of dodgy software patents, then trumpet "growth"



  3. The European Patent Office Needs to Put Lives Before Profits

    Patents that pertain to health have always posed an ethical dilemma; the EPO apparently tackled this dilemma by altogether ignoring the rights and needs of patients (in favour of large corporations that benefit financially from poor people's mortality)



  4. “Criminal Organisation”

    Brazil's ex-President, Temer, is arrested (like other former presidents of Brazil); will the EPO's ex-President Battistelli ever be arrested (now that he lacks diplomatic immunity and hides at CEIPI)?



  5. Links 21/3/2019: Wayland 1.17.0, Samba 4.10.0, OpenShot 2.4.4 and Zorin Beta

    Links for the day



  6. Team UPC (Unitary Patent) is a Headless Chicken

    Team UPC's propaganda about the Unified Patent Court (UPC) has become so ridiculous that the pertinent firms do not wish to be identified



  7. António Campinos Makes Up Claims About Patent Quality, Only to be Rebutted by Examiners, Union (Anyone But the 'Puff Pieces' Industry)

    Battistelli's propagandistic style and self-serving 'studies' carry on; the notion of patent quality has been totally discarded and is nowadays lied about as facts get 'manufactured', then disseminated internally and externally



  8. Links 20/3/2019: Google Announces ‘Stadia’, Tails 3.13

    Links for the day



  9. CEN and CENELEC Agreement With the EPO Shows That It's Definitely the European Commission's 'Department'

    With headlines such as “EPO to collaborate on raising SEP awareness” it is clear to see that the Office lacks impartiality and the European Commission cannot pretend that the EPO is “dafür bin ich nicht zuständig” or “da kenne ich mich nicht aus”



  10. Decisions Made Inside the European Patent Organisation (EPO) Lack Credibility Because Examiners and Judges Lack Independence

    The lawless, merciless, Mafia-like culture left by Battistelli continues to haunt judges and examiners; how can one ever trust the Office (or the Organisation at large) to deliver true justice in adherence or compliance with the EPC?



  11. Team UPC Buries Its Credibility Deeper in the Grave

    The three Frenchmen at the top do not mention the UPC anymore; but those who promote it for a living (because they gambled on leveraging it for litigation galore) aren't giving up and in the process they perpetuate falsehoods



  12. The EPO Has Sadly Taken a Side and It's the Patent Trolls' Side

    Abandoning the whole rationale behind patents, the Office now led for almost a year by António Campinos prioritises neither science nor technology; it's all about granting as many patents (European monopolies) as possible for legal activity (applications, litigation and so on)



  13. Where the USPTO Stands on the Subject of Abstract Software Patents

    Not much is changing as we approach Easter and software patents are still fool's gold in the United States, no matter if they get granted or not



  14. Links 19/3/2019: Jetson/JetBot, Linux 5.0.3, Kodi Foundation Joins The Linux Foundation, and Firefox 66

    Links for the day



  15. Links 18/3/2019: Solus 4, Linux 5.1 RC1, Mesa 18.3.5, OSI Individual Member Election Won by Microsoft

    Links for the day



  16. Microsoft and Its Patent Trolls Continue Their Patent War, Including the War on Linux

    Microsoft is still preying on GNU/Linux using patents, notably software patents; it wants billions of dollars served on a silver platter in spite of claims that it reached a “truce” by joining the Open Invention Network and joining the LOT Network



  17. Director Iancu Generally Viewed as a Lapdog of Patent Trolls

    As Director of the Office, Mr. Iancu, a Trump appointee, not only fails to curb patent trolls; he actively defends them and he lowers barriers in order to better equip them with bogus patents that courts would reject (if the targets of extortion could afford a day in court)



  18. Links 17/3/2019: Google Console and IBM-Red Hat Merger Delay?

    Links for the day



  19. To Team UPC the Unified Patent Court (UPC) Has Become a Joke and the European Patent Office (EPO) Never Mentions It Anymore

    The EPO's frantic rally to the very bottom of patent quality may be celebrated by obedient media and patent law firms; to people who actually produce innovative things, however, this should be a worrisome trend and thankfully courts are getting in the way of this nefarious agenda; one of these courts is the FCC in Germany



  20. Links 16/3/2019: Knoppix Release and SUSE Independence

    Links for the day



  21. Stopping António Campinos and His Software Patents Agenda (Not Legal in Europe) Would Require Independent Courts

    Software patents continue to be granted (new tricks, loopholes and buzzwords) and judges who can put an end to that are being actively assaulted by those who aren't supposed to have any authority whatsoever over them (for decisions to be impartially delivered)



  22. The Linux Foundation Needs to Speak Out Against Microsoft's Ongoing (Continued) Patent Shakedown of OEMs That Ship Linux

    Zemlin actively thanks Microsoft while taking Microsoft money; he meanwhile ignores how Microsoft viciously attacks Linux using patents, revealing the degree to which his foundation, the “Linux Foundation” (not about Linux anymore, better described as Zemlin’s PAC), has been compromised



  23. Links 15/3/2019: Linux 5.0.2, Sublime Text 3.2

    Links for the day



  24. The EPO and the USPTO Are Granting Fake Patents on Software, Knowing That Courts Would Reject These

    Office management encourages applicants to send over patent applications that are laughable while depriving examiners the freedom and the time they need to reject these; it means that loads of bogus patents are being granted, enshrined as weapons that trolls can use to extort small companies outside the courtroom



  25. CommunityBridge is a Cynical Microsoft-Funded Effort to Show Zemlin Works for 'Community', Not Microsoft

    After disbanding community participation in the Board (but there are Microsoft staff on the Board now) the "Linux Foundation" (or Zemlin PAC) continues to take Microsoft money and polishes or launders that as "community"



  26. Links 14/3/2019: GNOME 3.32 and Mesa 19.0.0 Released

    Links for the day



  27. EPO 'Results' Are, As Usual, Not Measured Correctly

    The supranational monopoly, a monopoly-granting authority, is being used by António Campinos to grant an insane amount of monopolies whose merit is dubious and whose impact on Europe will be a net negative



  28. Good News Everyone! UPC Ready to Go... in 2015!

    Benoît Battistelli is no longer in Office and his fantasy (patent lawyers' fantasy) is as elusive as ever; Team UPC is trying to associate opposition to UPC with the far right (AfD) once again



  29. Links 13/3/2019: Plasma 5.15.3,Chrome 73 and Many LF Press Releases

    Links for the day



  30. In the Age of Trumpism EFF Needs to Repeatedly Remind Director Iancu That He is Not a Judge and He Cannot Ignore the Courts

    The nonchalance and carelessness seen in Iancu's decision to just cherry-pick decisions/outcomes (basically ignoring caselaw) concerns technologists, who rightly view him as a 'mole' of the litigation 'industry' (which he came from)


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts