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05.30.19

Proposed Legislation From Senators Tom Tillis and Chris Coons Will Perish as Usual, Just Like UPC in Europe

Posted in America, EFF, Europe, Law, Patents at 8:36 am by Dr. Roy Schestowitz

The United States has its own ‘Team UPC’ and the likes of Battistelli at the EPO

Coons bribed

Summary: A great deal of attention is being paid to a bill that’s extremely unlikely to result in anything because it’s very unpopular, even among sponsors of Congress (not just the public at large)

AT THE START of the year the EFF warned that software patents would make a "comeback" because the Trump-appointed Director of the U.S. Patent and Trademark Office (USPTO) wanted to water down 35 U.S.C. § 101. As we explained at the time, this would have no bearing on actual courts. Since then the courts have indeed lashed out. So the threat was clearly overhyped, as we’ve explained many times since. Let’s look at the data. Have software patents made a comeback? Not really, not in courts anyway. SCOTUS isn’t revisiting the subject (even when asked), the Federal Circuit applies Alice routinely, and the Patent Trial and Appeal Board (PTAB) is still doing its job as shown by inter partes reviews (IPRs) figures, which are publicly accessible. Patent maximalists thus started focusing on ex parte reexaminations, also part of America Invents Act (AIA) but inherently different from IPRs (which are a lot more powerful). We’ve seen some misleading posts from Anticipat (and have not linked to them) and yesterday Janal Kalis wrote: “The PTAB Affirmed an Examiner’s 101 Rejection of Claims in a Patent Application Owned by Stanford Univ. for Analyzing Digital Medical Records” (such patents still routinely perish, but the likes of Kalis typically ignore the evidence and focus on reversal of decisions when software patents are allowed, not rejected).

Alex Moss (EFF) has just published something titled “A Terrible Patent Bill is On the Way” and here’s what it said (déjà vu as it happened in prior years):

Recently, we reported on the problems with a proposal from Senators Coons and Tillis to rewrite Section 101 of the Patent Act. Now, those senators have released a draft bill of changes they want to make. It’s not any better.

Section 101 prevents monopolies on basic research tools that nobody could have invented. That protects developers, start-ups, and makers of all kinds, especially in software-based fields. The proposal by Tillis and Coons will seriously weaken Section 101, leaving makers vulnerable to patent trolls, and other abusers of the patent system.

The draft legislation does remove a few aspects of the earlier proposal, but it has the exact same effect: it will erase more than a century of Section 101 case law—including the recent decision in Alice v. CLS Bank—and take away courts’ power to restore them.

It’s yet another post from the EFF in which the threat is, in our assessment, overblown somewhat. They merely give more visibility to something which doesn’t deserve it (and wouldn’t have earned it otherwise). Well, we wrote about it last week (after the CCIA too had written about this); it is pushed by a few bribed politicians (paid by the litigation ‘industry’, ‘bought’ for these laws), not “Congress” as Mike Masnick (TechDirt founder) puts it in “Congress Now Pushing ‘Bring Back The Patent Trolls’ Bill”. They merely had a little meeting, whereupon patent maximalists pretended it was some major news or development. To quote Masnick:

Back in April we warned about a truly terrible plan by some in Congress to obliterate the last few years of the Supreme Court fixing our broken patent system, and flinging the doors wide open to patenting genes, medical diagnostics, and software (all of which the Supreme Court has mostly rejected as abusive and monopolizing nature). One had hoped that after having explained to them how disastrous such a bill would be, that its backers might think carefully in crafting the final bill. Instead, Senators Tom Tillis and Chris Coons, along with Reps. Hank Johnson and Steve Sivers instead decided to double down with a bill that would massively stifle innovation.

There are some decent comments on there, e.g. from “That Anonymous Coward”:

Who wants to help me get a patent shoved through on running for an elected office & accepting money to pass laws favorable to those paying me??
Considering what other patent trolls have earned we could bankrupt congress.

At the start of the year we insisted that this idiocy would not pose a great threat because courts just carry on as usual, based on caselaw (not Congress), and these bills (as above) are nothing new. We don’t even want to give them attention/visibility anymore; they’re going to perish on their own.

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