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

03.31.19

Technology Groups Implore the Deplorable Patent Office of Iancu and Trump

Posted in America, EFF, Patents at 10:59 pm by Dr. Roy Schestowitz

Old: Andrei Iancu’s Firm Has a History Working With Trump, But Senate Says OK to Him Becoming USPTO Director

Trump and Iancu

Summary: The “New USPTO Patent Eligibility Guidelines,” as Stuart Meyer (Fenwick & West LLP and Bilski Blog) puts it, have been broadly condemned by technical people, unlike lawyers and attorneys who thrive in frivolous litigation

35 U.S.C. § 101/Alice (SCOTUS) has compelled the U.S. Patent and Trademark Office (USPTO) to either stop granting software patents or risk the perception that it is granting patents it knows courts would reject (if a lawsuit was filed).

Last year the USPTO received fewer quantities from its “customers” or “clients” (what it calls applicants) and the number of granted patents decreased (compared to what it had granted the prior year, under Michelle Lee).

Iancu is trying to turn things around by simply ignoring the courts and mistreating the law. Having asked for public feedback (in an open consultation), the vast majority of letters condemn him for it. So the patent maximalists keep pretending it’s all “EFF” (simply because the EFF wrote a blog post on the subject) and days ago Stuart Meyer (Fenwick & West LLP) wrote [1, 2] about it as follows:

Compared with the organizations discussed above, the Electronic Frontier Foundation had quite a different view. EFF, on behalf of “its more than 39,000 dues-paying members,” said that the Guidance “effectively instructs examiners on how to narrow the Alice v. CLS Bank decision instead of how to apply it correctly,” and calls it “contrary to law.” EFF faulted the Guidance for defining ineligible abstract ideas to include only mental processes, mathematical formulas, and methods of organizing human activity; EFF asserted that cases have identified others “that do not neatly fit into those three narrow categories.” EFF also asserted that the Guidance creates “an entirely new and unprecedented step” for eligibility. EFF argued that even if the Federal Circuit can resolve patent-eligibility as a matter of law at the first step, “the same is not true for examiners,” who EFF argued should “conduct the full, two-step patent-eligibility analysis in the first instance” to fend off “a loophole that allows applicants to avoid the inventive concept requirement.” EFF noted that the Guidance sets up a situation in which “examiners will apply a substantially different test than district courts.”

More generally, EFF argued that “Alice has been a critical tool” in helping software developers and users “defend against meritless patent lawsuits and litigation threats.” EFF attributed a rise in R&D spending on “software & Internet” as attributable to Alice; it said the Guidance would “guarantee that patents on basic ideas continue to issue despite Alice, and thus continue to tax and impede research and innovation….”

EFF’s attempt to elicit input from opponents of the guidelines also experienced significant success. The organization’s “Save Alice” campaign provided model language for detractors to paste into their comments, and many individuals did just that. There were about 2,500 comments submitted to the USPTO by individuals, and a sampling suggests that the vast majority of these comments were cut-and-paste from the text EFF suggested for this campaign. By way of comparison, in the “pro-Guidance” camp, a far smaller but still significant number of comments were cut-and-paste from campaigns of one or more inventors’ associations. The number of bespoke comments from individuals paled in comparison to the cut-and-paste numbers.

Also somewhat critical of the Guidance was the Software & Information Industry Association. SIIA noted that its “members have benefitted greatly from the patents they own. Yet they also rely on the limits of patent protection, as those limits preserve and protect their ability to innovate. As such, SIIA’s collective membership sits at the crossroads of the countervailing interests….” SIIA asserted that synthesizing just a few categories from the judicial decisions resulted in pairings of cases and categories that “may or may not fit.” SIIA proposed “a fourth category to capture all precedent,” thereby allowing examiners to reject claims more directly based on a prior judicial opinion. SIIA said that with such a category, examiners would have more freedom to make initial rejections in appropriate circumstances without the need for higher level approval. In addition, SIIA worried that, “By specifying that the abstract idea must be ‘recited on [its] own per se,’ the 2019 Guidance may encourage clever drafting efforts to avoid explicitly reciting an exception in the claim.” SIIA saw this as a departure from prior guidance and the caselaw. Finally, SIIA said that the USPTO “should be clearer with respect to the specificity of the computer implementation necessary to amount to an integrated practical application.”

It is worth noting that technology companies oppose Iancu’s proposal. They also support Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) — another thing that has come under attack from Iancu. In many ways he turned out to be an 'American Battistelli'.

Who likes Iancu? The people who come from the same profession as him. The patent litigation giants are still panicking over Alice and seeing that they are running out of ‘business’ (not many new patent lawsuits are being filed), they regroup and come up with ridiculous new headlines, such as “Who Will Win the Alice Race?”

A belated Happy New Year to all of you! As I reflect on this column, which has gone through various permutations over the past seven years, I am amazed how readership has grown organically via the Tangible IP website from a dozen (including several family members) to more than 15,000 professionals in the IP and business communities.

I must admit, this baby is a real time investment. But every time I think of retiring it, someone new tells me that he or she actually reads it and even enjoys it. Go figure!

A lot of these people will need to change jobs. Some already have. IPO is now training people on PTAB and there’s another new example about “[t]he “new” § 101 landscape in the PTO and District Courts…”

Maybe these people can make a living by invalidating ridiculous patents rather than flood the system with more and more of them (plus lawsuits).

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. IRC Proceedings: Thursday, January 16, 2020

    IRC logs for Thursday, January 16, 2020



  2. Links 16/1/2020: Mozilla Layoffs, PinePhone Braveheart Shipping, KDE Plasma 5.18 LTS Reaches Beta

    Links for the day



  3. Microsoft is a Market Leader in Lying and Corruption

    Microsoft is working hard to describe itself as the exact opposite of what it is and what it has been; ‘Internet rot’ helps a lot with this agenda, not to mention control of the media (the narrative)



  4. The European Patent Organisation Continues to 'Piss All Over' Separation of Powers

    The EPO continues to scatter invalid patents (IPs) that are European Patents (EPs) all over Europe and nobody can stop this, not even the judges of the EPO because they lack independence (by their very own admission)



  5. Zealots of Team UPC (Patent Litigation) Now Attacking the Courts and the Judges, Removing Their Mask on the Face of Things...

    The tactics of Team UPC aren't changing, only the shamelessness associated with these tactics is changing (because it looks like the end of days to them)



  6. Microsoft Now Uses or Leverages Software Freedom Against Free Software

    A reader's explanation of what Microsoft is trying to accomplish with its so-called 'embrace' and what steps will come next (how they manifest themselves)



  7. IRC Proceedings: Wednesday, January 15, 2020

    IRC logs for Wednesday, January 15, 2020



  8. Links 15/1/2020: CentOS Linux 8.1, Oracle VirtualBox 6.1.2 and GNU Sed 4.8

    Links for the day



  9. OSI Board at Microsoft: This is How Institutions Die or Completely Lose Their Purpose/Direction

    The photo (or meeting) may mark the turning point of the Openwashing as-a-Standard Initiative (OSI), which less than a year earlier took a bucket of money from Microsoft



  10. IRC Proceedings: Tuesday, January 14, 2020

    IRC logs for Tuesday, January 14, 2020



  11. When Microsoft's Actions Speak for Themselves (About Back Door Access)

    Unwittingly, people are being reminded of the 'special relationship' between Microsoft and the US Army (or government); The back doors or bug doors are still there, even 7 years after Edward Snowden's NSA leaks



  12. Why You -- Yes, You Too -- Should Consider Migrating to GNU/Linux

    The window is closing (and Windows/Vista 7 closing down); the chance to use machines that the users actually control is still there



  13. Can We Please Stop Lying for Microsoft in the Mainstream Media?

    Dishonesty for short-term financial gain (e.g. advertising money) will be a big loss in the long run. There’s a reason why so many news sites perish and Datamation (where I wrote more than a decade ago) now throws away remnants of reputation by spreading a big lie from Microsoft.



  14. It's Only Factual and Truthful to Point Out That About Half of the EPO's Management Committee Are From the President's Nation (and Many Are Underqualified Friends of His)

    The patent-granting extravaganza of what a reader and contributor of ours likes to call "Club Med" will result in great pain (not just for the Office but for Europe as a whole); pointing out who's to blame (the culprits) is an exercise in practicality



  15. Stranger Than Fiction: Team UPC's Mental Condition

    Team UPC's delusions continue to unmask UPC proponents (in 2020) as totally and entirely detached from reality



  16. Links 14/1/2020: IBM Joins LOT Network; X.Org Server 1.20.7, Tails 4.2.2 and Zanshin 0.5.71 Released

    Links for the day



  17. Vista 7 is Dead, Long Live GNU/Linux

    A reminder of Microsoft’s universal “PC tax” ambitions — evidence that the company was never interested in ‘playing nice’ with anybody



  18. Links 14/1/2020: Git v2.25.0 and End of Vista 7

    Links for the day



  19. Systematic Abandonment of the Independence of Judiciary at the EPO (or Collective Amnesia)

    The ‘constitution’ or the convention upon which the EPO is based (known as EPC) is routinely violated and nobody seems to care anymore; the EPO governs itself and conducts itself without as much as a fundamental legal text



  20. They Always Say They Love Linux (and 'the Children')

    Microsoft says it “loves Linux” and the Gates Foundation insists it “loves children” but the real underlying motivations have more to do with monopoly (Windows, Monsanto etc.) and nothing to do with “Linux” or “children” or whatever



  21. The Media's Obligation is Not to Repeat the Lies of EPO Management, But Money Changes Things

    The ridiculous lies about prospects of the Unified Patent Court are now spreading to EPO-friendly publishers — few powerful people to whom truth isn’t valued as much as the customers (their subscribers and sponsors are law firms)



  22. IRC Proceedings: Monday, January 13, 2020

    IRC logs for Monday, January 13, 2020



  23. The FSF and GNU Need a Better Savannah to Attract GitHub Refugees

    Thomas Grzybowski's explanation of why GitHub poses a risk to software freedom and what can be done about it



  24. Links 13/1/2020: Linux Lite 4.8, Linux 5.5 RC6, Corebird Continues as ‘Cawbird’

    Links for the day



  25. GNU is Not Linux and Not UNIX, Either

    When GNU started it needed to clarify that it wasn't UNIX but a UNIX-like replacement for it; now it needs to argue, sometimes in vain, that calling GNU with Linux just "Linux" is factually wrong



  26. Mansion of Pedophilia – Part VII: Guilty Verdict in Case of Pedophilia (Staff at the Mansion of Bill Gates), But Where Was the Mainstream Media?

    We take our first glimpse at court documents and a preliminary look (overview) of what the case in question entailed, with updates on the record for almost 5 years



  27. IRC Proceedings: Sunday, January 12, 2020

    IRC logs for Sunday, January 12, 2020



  28. Open Letter to Richard Stallman About the Free Software Movement

    New letter to the founder of GNU and the FSF; the authors "wish to have it published as an open letter as well."



  29. Links 12/1/2020: End of Windows 7, LibreOffice 6.4 RC2 and Sparky 5.10

    Links for the day



  30. EPO Management Already Meddles in (Illegally and in Clear Violation of the EPC) BoA Cases. Now It Does the Same to Bundesverfassungsgericht (FCC, Germany's Constitutional Court).

    Germany’s Federal Constitutional Court (FCC) cannot be left alone by Team UPC, its media front groups (or pressure groups with publication as a weapon) and the EPO’s active ‘harassment’ of those assessing legality; this merely reinforces many people’s negative views (the EPO operating outside the rule of laws which govern it)


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

Recent Posts