Bonum Certa Men Certa

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

Trump and Iancu



Summary: 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)

AS WE have noted many times before, the U.S. Patent and Trademark Office's (USPTO) Director Iancu cannot do anything to change courts' decisions unless he attacks judges the way Battistelli did at the European Patent Office (EPO) -- something that he began doing in subtle ways some months back. His agenda was all along very clear to see (no surprise here; Iancu is worse than Ajit Pai and it's not hard to see why he got this job at the USPTO), but the EFF's alarmist headlines did not help. We have confidence that 35 U.S.C. €§ 101 will be upheld by SCOTUS, the Federal Circuit, and the Patent Trial and Appeal Board (PTAB), whose inter partes reviews (IPRs) were also upheld as constitutional (as per the US Constitution) less than a year ago. The EPO, by contrast, no longer respects its 'constitution', the EPC. It was in fact promoting software patents in Europe as recently as half a day ago, pretending these patents are "for SMEs" and "medical". This is why EPO abuses have taken priority for coverage here.



"We weren’t always supportive of the EFF’s approach; in fact, we often condemned it as weak and poorly thought out (from a strategic perspective)."The EFF's Alex Moss has just published this blog post to say that the US "Patent Office should instruct its examiners to apply [Alice] as well—not to effectively rewrite its own wishes into the Supreme Court’s decision."

Here's more:

Last month, we asked EFF supporters to help save Alice v. CLS Bank, the 2014 Supreme Court decision that has helped stem the tide of stupid software patents and abusive patent litigation. The Patent Office received hundreds of comments from you, telling it to do the right thing and apply Alice, not narrow it. Thank you.

Last week, EFF submitted its own comments [PDF] to the Patent Office. In our comments, we explain that Patent Office’s new guidance on patent-eligibility will make it harder—if not impossible—for examiners to apply Supreme Court law correctly. If examiners cannot apply Alice to abstract patent applications, more invalid patents will issue. That’s not only bad for innovation, it also violates fundamental principles of divided government. The Supreme Court interprets laws that Congress passes, not executive branch agencies like the Patent Office.

The Patent Office’s new guidance aims to undermine Alice in two ways. First, the Guidance narrows ineligible abstract ideas to only three possibilities: mental processes, mathematical formula, and methods of organizing human activity. No Supreme Court or Federal Circuit has ever said only three categories of abstract ideas exist. In fact, the Supreme Court in Alice went out of its way to explain that it was not going to “labor to delimit the precise contours of the ‘abstract ideas’ category in this case.”

That omission is not incidental. Instead, of defining a precise “abstract idea” category, the Court endorsed an approach that should be familiar to lawyers: figuring out whether the claims in a given case are abstract, by using past cases. That's how the Court determined that the Alice patent—which covered the idea of using a third-party intermediary—was abstract. It was similar to other abstract patents, like one on the idea of hedging risk. Following Alice, courts have repeatedly recognized abstract ideas by comparing them to other abstract ideas. That is the method the Supreme Court has approved, and the Patent Office should instruct its examiners to apply it as well—not to effectively rewrite its own wishes into the Supreme Court’s decision.


Nazer, a colleague of Moss, recently moved to Mozilla and last week or the week before that he published an article at the same site that Mullin, now an EFF employee, used to write for. As we noted yesterday, patent extremists want us to believe that everyone who opposes software patents is just "EFF". We weren't always supportive of the EFF's approach; in fact, we often condemned it as weak and poorly thought out (from a strategic perspective). In recent years, however, the EFF openly condemned and focused on software patents, not just trolls. EFF people have also, in general, been supportive of Techrights. There's a lot in common, except Google money.

Recent Techrights' Posts

Brian Kernighan, "Only Third to Dennis Richie and Ken Thompson" (UNIX), Agreed With Someone Who Said Rust Was Just Hype, Should Not Replace C
17 hours ago
Reminder: Microsoft's "Secure Boot" Certificate for "Linux" Will be Expired in One Week
Many PCs won't manage to 'rotate' to another certificate
 
BASIC Predates Microsoft by Over a Decade, Microsoft-Controlled Sites Like The Register MS Don't Want You to Know This
The state of the media is really bad when it relies a lot on oligarchs' money and is appointing editors who are working for oligarchs
Analogies for "Memory Safety" in Rust
Don't worry, it's Rust! It can do anything!
"Many of the Red Hat Employees Are Still Looking for Work"
Shame on IBM's CEO
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, September 04, 2025
IRC logs for Thursday, September 04, 2025
Microsoft Started With Code Literally From The Trash, Nothing Has Improved Since
The reality is, there are systems and code that are reliable. But they're not Microsoft's.
Hypothesis That New McKinsey/Microsoft Executive Inside Red Hat Will Outsource Research and Development Operations to India (Like They Do in IBM)
IBM is floundering
Slopwatch: Scams, Fake Articles About "Linux", Plagiarism, and Worse
Perhaps some time soon the LLMs or the "Big LLMs" will run out of money (to borrow) and go offline, leaving those slopfarms in a tough place
Gemini Links 04/09/2025: Means of Production and Rusting Out
Links for the day
Links 04/09/2025: Science, Hardware, and Eyes on China
Links for the day
Gemini Links 04/09/2025: Digital Minimalism and Social Control Media
Links for the day
IBM's GNU/Linux Divestment, Based on Hard But Anecdotal Evidence (IBM Fails to Recognise How Much Money It Made and Can Still Make From "Linux")
Love us or hate us, a lot of what we've been saying about Red Hat under IBM turns out to be rather accurate
Links 04/09/2025: Massive Microsoft Staff Cuts (Barely Reported), "Strange Conspiracy Theory Is Reportedly Spreading Inside OpenAI"
Links for the day
Activists Can Win, But Keep an Eye on the Ball and on the Trophy
GitHub is dying, it was a loss-making trap, not free hosting
Gemini Links 04/09/2025: Katrina Remembered, Distracted Driving, and Virtual Economics
Links for the day
At This Point It's No Longer Matthew Garrett But People Who Fund Matthew Garrett (or Companies That Fund His SLAPPs Against My Wife and I)
The only thing worse than misogynists are misogynists who fail to respect other people's right to go on holiday
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 03, 2025
IRC logs for Wednesday, September 03, 2025
The UEFI 9/11 - Part VI - This Serious Harm Was Planned for Over a Decade, Not an Accident or Merely Some Misfortune
The term "Serious Harm" is legally meaningful here
GNOME Unfit for Diversity and Inclusion
GNOME's leadership is using "bad words"
Brodie Robertson Addressing the Recently-Discovered Comments
Most people probably knew nothing about this until he wrote a response
Red Hat QA Team "Had Shrunk by Half Over the Past Year." (After IBM Divestment)
If Red Hat's workforce is being moved to the East, then RHEL can become a national security problem
Slopwatch: "Open Source" and "Linux" News Faked, Made by Bots and Entered Into Google News
Spam combined with slop about "Linux" has entered Google News
Links 03/09/2025: Microsoft Causes Mass Layoffs Outside Microsoft Also, "Google Can Keep Paying for Firefox Search Deal"
Links for the day
Gemini Links 03/09/2025: calendar.txt, Alhena 5.3.1, and ROOPHLOCH
Links for the day
The Theory That the Man From McKinsey, Whom Red Hat Took From Microsoft a Month Ago as Executive, Wants 'Efficiency' (Lower Salaries)
So far... no "official" word
When Your Site's Articles Are Being 'Cheapened' by Slop as Feature Images
Dr. Farnell should become an advisor to The Register MS
Certificate Authority Let's Encrypt Drops to Only Half a Dozen Capsules and 0.2% of the Whole in Geminispace, Self-Signed is the Way to Go
It used to have hundreds, according to Lupa
Doing to Red Hat What They Already Did (and Still Do) to IBM
there seems to be a drive to hire cheaper staff, and it may be led by somebody Red Hat hired from Microsoft
Links 03/09/2025: Salesforce's Latest Mass Layoffs, 93% in Large Poll at The Register MS Say UK Government Should Dump Microsoft
Links for the day
Preparations for Our 19th Anniversary Have Already Begun
When we get back we'll probably sort out some balloons and venue for the next party
Pleased After 2 Years With team.blue
Moving from a Content Management System (CMS, dynamic) to a Static Site Generator (SSG) was a wise decision that made life so much easier
The Free Software Foundation (FSF) is Being Attacked by Organisations Jealous of Its Principled Stance and Longevity
Nobody is perfect, but imperfection does not instantaneously imply sinister intent
If You Reject the Google Verdict in the US, Then You Should Also Reject the "Modern" Web (Do Something About It)
Gemini Protocol is still open; it cannot be hijacked or subverted because it's frozen by design and by intention
Open Source Initiative IRS Filing: Almost All the Money is Corporate, Stefano Maffuli (Executive Director) Takes About a Quarter of That Money for Openwashing of "AI" Ponzi Scheme
OSI is currently little but a PR/marketing agency of Microsoft
Many People Are "Leaving" Red Hat, Even High-Level Managers
Something is definitely going on at Red Hat
Techrights Has Been Subjected to Calls of Violence (and Death Threats), It Never Condoned Violence
I have no sympathy for people who call violence "free speech" and then get in trouble
Condoning Violent Behaviour and "Free Speech"
perhaps Microsoft Lunduke lost touch with what constitutes violence
Takeaway From the Google Verdict: GAFAM Has Too Much Control (Even Over the US Government and Courts With Government Appointees)
Many people feel disappointed but hardly surprised by the verdict
The Free Software Foundation (FSF) Turns 40 in One Month
As noted a few days ago, several times in fact, many people now recognise the importance of the FSF's mission, even if most people don't know what the FSF is
Many Microsoft "Assets" Are Fabricated Baloney (to Game the Numbers)
At times it seems like what we deal with are many weak patents (on algorithms), valuations or speculations based on hype ("hey hi"), and stocks held by Microsoft and its own staff
"Voluntary" Layoffs at Microsoft (to Game the Numbers, Sugar-Coating a Crisis)
"Employees interested have until the end of October to volunteer."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 02, 2025
IRC logs for Tuesday, September 02, 2025