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03.24.19

Just Published: Irrational Ignorance at the Patent Office

Posted in America, Patents at 2:46 am by Dr. Roy Schestowitz

Frakes, Michael and Wasserman, Melissa F., Irrational Ignorance at the Patent Office (November 13, 2018). Vanderbilt Law Review, Vol. 72, 2019, Forthcoming; Duke Law School Public Law & Legal Theory Series No. 2018-64.

Michael D. Frakes
Homepage of Michael Frakes

Summary: Iancu and his fellow Trump-appointed “swamp” at the USPTO are urged to consult academics rather than law firms in order to improve patent quality in the United States

THE latest paper from Michael Frakes (Duke University School of Law) and Melissa F. Wasserman (The University of Texas at Austin School of Law) was last revised yesterday (23rd of March, 2019) and it is applicable to the European Patent Office (EPO) and U.S. Patent and Trademark Office (USPTO), especially under Battistelli, Campinos, and Iancu. The full paper is recommended by Lisa Ouellette, who has just added (having dealt with it elsewhere 11 days ago): “my latest Jotwell post highlighted a terrific forthcoming article by Michael Frakes and Melissa Wasserman.”

Frakes and Wasserman had previous work indirectly (via the media) cited by the staff union of the EPO (SUEPO). We mentioned it a year and a half ago.

This is their latest abstract:

There is widespread belief that the Patent Office issues too many bad patents that impose significant harms on society. At first glance, the solution to the patent quality crisis seems straightforward: give patent examiners more time to review applications so they grant patents only to those inventions that deserve them. Yet the answer to the harms of invalid patents may not be that easy. It is possible that the Patent Office is, as Mark Lemley famously wrote, “rationally ignorant.” In Rational Ignorance at the Patent Office, Lemley argued that because so few patents are economically significant, it makes sense to rely upon litigation to make detailed validity determinations in those rare cases rather than increase the expenses associated with conducting a more thorough review of all patent applications. He supported his thesis with a cost-benefit calculation in which he concluded that the costs of giving examiners more time outweighs the benefits of doing so.

Given the import of the rational ignorance concept to the debate on how best to address bad patents, the time is ripe to revisit this discussion. This Article seeks to conduct a similar cost-benefit analysis to the one that Lemley attempted nearly fifteen years ago. In doing so, we employ new and rich sources of data along with sophisticated empirical techniques to form novel, empirically driven estimates of the relationships that Lemley was forced, given the dearth of empirical evidence at his time, to assume in his own analysis. Armed with these new estimates, this Article demonstrates that the savings in future litigation and prosecution expenses associated with giving examiners additional time per application more than outweigh the costs of increasing examiner time allocations. Thus, we conclude the opposite of Lemley: society would be better off investing more resources in the Agency to improve patent quality than relying upon ex-post litigation to weed out invalid patents. Given its current level of resources, the Patent Office is not being “rationally ignorant” but, instead, irrationally ignorant.

Ouellette has noted: “Litigation savings depend on Frakes and Wasserman’s prior finding that time-crunched patent examiners make mistakes, and that they are more likely to erroneously allow an invalid patent than to reject a valid one. When examiners are promoted up a step on the USPTO pay scale, they suddenly receive less time per application. Frakes and Wasserman found that they manage the increased workload by spending less time searching prior art and granting more patents. Based on both subsequent U.S. challenges and comparisons with parallel applications at foreign patent offices, these extra patents seem to involve more mistakes. Patents rejected by time-crunched examiners, on the other hand, are no more likely to be appealed within the USPTO. Extrapolating from these results, Frakes and Wasserman estimate that doubling examination times would lead to roughly 80,000 fewer patents granted and 2,400 fewer patent/lawsuit pairs each year, translating to litigation savings above $490 million. Similar calculations suggest about 270 fewer instituted PTAB challenges, for an annual savings above $110 million.”

That’s alluding to Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) for the most part. In conclusion she says: “Most importantly, any of these interventions should be implemented in a way that aids robust empirical evaluation. The USPTO has shown an encouraging willingness to experiment with pilot programs that might improve examination, but has not implemented them in ways that make it easy to evaluate their effectiveness, such as by randomizing over applicants who want to opt in to the programs. Rigorous pilot programs may be both financially and politically costly, but how much effort to spend on examination is a core question of patent policy with tremendous financial implications. And I’m sure the USPTO could easily find free help from academics—perhaps including Frakes and Wasserman—excited to help design and evaluate these initiatives.”

At the moment Iancu seems to be taking instructions and advice from law firms, neither from academics nor scientists. This isn’t particularly shocking considering who gave him the job and where he came from.

03.23.19

Patent Law Firms Still Desperate to Find New Ways to Resurrect Dead Software Patents in the United States

Posted in America, Australia, Europe, Patents at 11:00 am by Dr. Roy Schestowitz

Resurrected

Summary: There’s no rebound and no profound changes that favour software patents; in fact, judging by caselaw, there’s nothing even remotely like that

THIS morning and afternoon we took a look at US affairs, seeing that 35 U.S.C. § 101 remains unchallenged and even if the U.S. Patent and Trademark Office (USPTO) grants a software patent (or patents) — as happens a lot — courts will likely reject it (or these). The Federal Circuit follows Alice (SCOTUS) and so does the Patent Trial and Appeal Board (PTAB) when assessing inter partes reviews (IPRs). We’ve hardly seen any exception to the rule lately (patent maximalists have stooped as low as to cherry-pick mere applications, e.g. yesterday, or revisit rather old cases); it is possible that, as per this report and another from Patently-O, § 101 will be revisited in SCOTUS. And even if it does happen, it will not necessarily bring back software patents to the US; it may as well force another long(er) nail into their coffin of software patents. Suffice to say, law firms and law students casually spread propaganda about software patents, even as recently as days ago. They want people to believe that software patents are both desirable and attainable (maybe at the Office, but courts are another matter). Here’s another new example. The patent microcosm (“Attorney Julie Reed is a member of Miller Nash Graham & Dunn’s patent team”) keeps lobbying the USPTO and American courts for software patents even though this microcosm never writes any code.

“There’s a similar problem in Europe. Voices are being hijacked and software developers are routinely spoken ‘for’ (without their consent).”The patent microcosm of Australia (Ken Simpson and David Webber of Davies Collison Cave in this case) is still looking at one very old decision in an attempt to sell bogus software patents that Australian courts would likely reject. Maybe the office would reject that one too (if there was a lawsuit over it). There’s this new article about IP Australia at IDG, but it does not deal with this subject.

There’s a similar problem in Europe. Voices are being hijacked and software developers are routinely spoken ‘for’ (without their consent). Patent law firms pretend to care about them, even though all they care about is themselves. But the European Patent Office (EPO) will be the subject of our next post.

03.19.19

Where the USPTO Stands on the Subject of Abstract Software Patents

Posted in America, Courtroom, Law, Patents at 12:38 pm by Dr. Roy Schestowitz

The Office hands out fool’s gold

Some gold

Summary: 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

THIS is a very quick update regarding the U.S. Patent and Trademark Office (USPTO). The gist of it all? Well, nothing is changing, certainly not at the courts. We have been watching closely all sorts of case outcomes; all have them bar few have reached the predictable kind of outcome.

Watch out as patent maximalists aren’t telling the whole story. They habitually ignore or hide everything which doesn’t fit their agenda.

Robert Schaffer and Joseph Robinson over at Watchtroll have nitpicked or cherry-picked a Federal Circuit (CAFC) case regarding the patent troll PersonalWeb ‘Technologies’ because it is a rarity; it is a high court’s reversal after a Patent Trial and Appeal Board (PTAB) after a successful inter partes review (IPR). We also noticed (yesterday) that patent maximalists hope to compel SCOTUS to reconsider a case that resembles Alice (basis of 35 U.S.C. § 101) while cherry-picking a CAFC case similar to Mayo. We said we’d not cover pertinent American patent cases, so for the time being we’re just observing and adding those to our daily links. It is very much possible if not highly likely that nothing at all will change; the US government was simply asked to comment about a pending appeal and there’s no guarantee SCOTUS will go ahead; even if it does, this might simply serve to double down on Alice, even further strengthening the precedent.

03.18.19

Director Iancu Generally Viewed as a Lapdog of Patent Trolls

Posted in America, Patents at 2:14 am by Dr. Roy Schestowitz

A funny dog

Summary: 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)

THE U.S. Patent and Trademark Office (USPTO) is run by a patent maximalist. It’s not entirely new/s and more people/groups speak about it.

Being a patent maximalist, he opposes Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), which generally reduce the number of patents and may, in turn, impact confidence in US patents. He also dislikes most Federal Circuit decisions, hence he chooses to ignore these. He does not like 35 U.S.C. § 101 or Alice (SCOTUS), hence he attempts to rewrite the rules.

“Being a patent maximalist, he opposes Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), which generally reduce the number of patents and may, in turn, impact confidence in US patents.”As if squashing bad patents (like software patents) is a bad thing, IAM has just published this inane tweet about PTAB and the USPTO amplified the latest nonsense from its Director, Mr. Iancu. Well, Iancu used to work for patent trolls (and his firm had worked for Trump also… before he got this USPTO job from Trump), so why should we not expect this attitude? As quoted/paraphrased here, Iancu said: “We should focus on addressing areas of patent abuse, but it is counterproductive to use pejorative terms like ‘patent troll’ that paint with a broad brush.”

“Yes, we wouldn’t want to hurt the feelings of people who extort money with bogus patents that should never have been granted,” Professor James Bessen wrote about patent trolls, alluding to the above. Bessen had spent years of his career conducting studies on the economic impact of trolls before he wrote several high-profile articles on the subject. Bessen is highly regarded and is considered reliable, credible.

“Iancu is, to them, like an insider or a “mole”. He’s also a proponent of software patents (and has been for a long time).”Nothing (none of the above) surprises us. We foresaw this all along, even before Iancu got the job. Patent trolls are loving it. Iancu is, to them, like an insider or a “mole”. He’s also a proponent of software patents (and has been for a long time).

We kindly take note of this new article from Anders Fernstrom and Christopher Hutter (Cooley LLP, representative of many patent trolls), which uses the term “Computer-Related Patents” and says that Iancu’s “USPTO Revised Patent Eligibility Guidelines Significantly Eases Path to Obtaining” them. They’re missing the point, perhaps intentionally, that actual patent courts would reject virtually all of these patents. So the USPTO is handing out duds — worthless patents that only have use outside the courts, e.g. in the hands of trolls who engage in extortion campaigns against small businesses.

“The truth of the matter is, what we saw at the EPO now happens at the USPTO. Judges are being ignored and besieged for the Office to just grant lots of bogus patents that mostly trolls can exploit (outside courts).”Pearl Cohen Zedek Latzer Baratz’s Caleb Pollack and Nathan D. Renov have also just published “USPTO’S Revised Software Eligibility Guidelines Give Applicants Hope and Examiners More Ability to Allow Applications” (which courts, once again, will reject).

Days ago we noticed this ‘ad’ from Knobbe Martens, a litigation giant, disguised as an ‘article’. It said “Strategies for Obtaining Patents on AI Inventions in the U.S. and Europe” (they’re calling software patents “AI”; they’re bunk, void and invalid both in Europe and the US).

“At the end of the day, the trolls’ lobby seems very much eager to lower patent quality; Iancu is 100% with them.”The truth of the matter is, what we saw at the EPO now happens at the USPTO. Judges are being ignored and besieged for the Office to just grant lots of bogus patents that mostly trolls can exploit (outside courts).

The patent trolls’ lobby, IAM, has just published this article about “new research” (possibly from Koch-funded 'scholars' who push the Koch's patent agenda). Behind IAM’s paywall: “Academic calls for Congress to act on 101 “to restore investor confidence” with private equity and VC players clear that doubts over patentability…”

We can imagine which scholars those are, but the paywall makes it hard to be sure. At the end of the day, the trolls’ lobby seems very much eager to lower patent quality; Iancu is 100% with them.

03.15.19

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

Posted in America, Europe, Patents at 12:35 am by Dr. Roy Schestowitz

Giving the “red card” to judges with “unfavourable” (to the Office) opinions?

EPO red card

Summary: 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)

NEARLY nine months have passed since António Campinos took charge; he has birthed no fixes, no reforms, nothing. SUEPO already compares him to Battistelli, who gave him this job. Battistelli himself probably belongs in prison, but the way the justice system works in France, it can take up to a decade for things to move (see Nicolas Paul Stéphane Sárközy de Nagy-Bocsa, a close ally of Battistelli).

Campinos TurkeyCorrupt European Patent Office (EPO) officials, in violation — a gross violation too we must stress — of Office rules and its very constitution, the EPC, attacked a judge and then sent all of his colleagues away (to exile in Haar). Even patent maximalists are unable to ignore that. This was covered by Dr. Bausch earlier this month and now comes this article titled “Is The Location Of The Boards Of Appeal In Haar Contrary To The EPC?” (almost a rhetorical question)

What can the case entail when judges are not independent? It is a cyclical problem.

To quote:

The facts of this case are rather unusual, in that the appeal in question was filed by a “third party” against a decision to grant a European patent. The appellant sought to argue that its appeal was admissible on the basis that (a) the patent was granted despite clarity objections raised in third party observations during pre-grant examination, (b) clarity is not available as a ground of post-grant opposition, and so (c) the only available remedy for the third party was to appeal against the decision to grant.

The Board of Appeal summoned the appellant to oral proceedings in Haar (where the Boards of Appeal are located). In response, the appellant requested that the oral proceedings were relocated to Munich, on the basis that Haar is not specified in the EPC as a location of the EPO. The Board of Appeal then cancelled the hearing and referred the above questions to the Enlarged Board of Appeal. Specifically, the Board of Appeal considered that input from the Enlarged Board of Appeal was needed concerning the right to oral proceedings in the case of prima facie inadmissible appeals (question 1) and whether the appeal was in fact prima facie inadmissible (question 2). If the answer to either of questions 1 and 2 is no, the Enlarged Board of Appeal will then consider whether Munich encompasses Haar.

Question 3 is perhaps of more general interest than the questions 1 and 2. Article 6(2) EPC states that “The European Patent Office shall be located in Munich. It shall have a branch at the Hague.” The Protocol on Centralisation provides for a sub-office in Berlin. The Boards of Appeal moved from a central Munich location to Haar (which is suburb of Munich) in 2017. If Haar is not considered to be in Munich, then the current location of the Boards of Appeal could be found to be contrary to the EPC.

The Boards of Appeal’s move to Haar was not universally popular, and indeed it happened against a backdrop of tension between the then-President of the EPO and Boards of Appeal. It will therefore be interesting to see how the Enlarged Board of Appeal responds to question 3 (assuming it answers “no” to one of questions 1 and 2). Of course, the Enlarged Board of Appeal will be able to avoid answering question 3 if it answers yes to both questions 1 and 2.

The U.S. Patent and Trademark Office (USPTO) has moved in a similar direction; the Chief Judge of the Patent Trial and Appeal Board (PTAB) was moved to another (less important) position and inter partes reviews (IPRs) are under attack from the Office, not the courts (the Federal Circuit and SCOTUS fully support IPRs and 35 U.S.C. § 101). Josh Landau of CCIA has just explained the importance of a CAFC case about PTAB and the Trump-appointed Iancu at the USPTO (who dislikes patent quality) as follows:

Today, the Federal Circuit will hear oral argument in the BTG v. Amneal Pharmaceuticals case. In addition to standard disputes over whether the patent-in-suit was obvious and whether it was infringed, this case presents a novel issue regarding estoppel for IPR petitioners.

Essentially, the question is whether a petitioner who successfully challenges a claim at the PTAB is barred from arguing invalidity of that claim in district court. BTG—and the USPTO, in an amicus brief—argues that if you win at the USPTO, you thereby have to lose at district court, at least until all rehearings and appeals are exhausted.

Appeals are a process that can take years—years during which you might be barred from putting your product on the market, even though the USPTO already said that there was no valid patent blocking your path.

We duly note that Watchtroll published a couple of anti-PTAB posts last night, along with “Don’t Give Up: Section 101 Allowances Are Up at USPTO” (so writes the new editor of Watchtroll and the term “don’t give up” gives away who she really lobbies for). There’s this new response to a subcommittee that calls itself “Intellectual Property” [sic], but staying focused on Europe at the moment, let’s just say that there’s a growing parallel here because the Office generally ignores court cases, insists on granting patents that it knows court would reject, and generally adopts a justice-hostile atmosphere focused on patent maximalism. The methods are similar too. In our daily links we’ve included news about new PTAB leadership.

Bearing in mind that software patents are not allowed in Europe, the EPO and USPTO both render “AI” the “open Sesame!” for patents on algorithms. The EPO has in fact just formalised yet another open door for applications that really ought to be rejected outright. Call databases or linked lists “blockchain” and voila! Patent granted.

“EPO publishes blockchain conference report,” said yesterday’s headline (warning: epo.org link), having composed a report on a software patents advocacy event it organised along with patent trolls from another continent. Here they go again:

As a follow-up to its “Patenting Blockchain” conference, the European Patent Office (EPO) has published a conference report entitled “Talking about a new revolution: blockchain” to provide insight into the impact of this technology on the patent system. Held at the EPO in The Hague in December last year – the conference was the first event organised by an IP5 office on this topic.

Notice the mention of IP5, which includes USPTO.

We have meanwhile also found KIPA serving toxic agenda, having just hired a man whose “main technical expertise lies in signal processing and software patents…”

He comes from France:

Prior to joining SFK, Burö worked in Volvo’s patent department and was responsible for IP at Renault Trucks in Lyon and creating an IP function in the US.

Will he help call software patents “SDV” or similar? How about “AI”? There’s no software anymore; it's all just "AI" nowadays. For patenting purposes, overcoming the bans for the most part, this is what they call everything with if-else statements. Published this week was this article titled “Keys To Successful AI Patents In The US And Europe,” which in turn cites WIPO:

On Jan. 31, 2019, the World Intellectual Property Organization, released its first publication in a series of “Technology Trends” studies.[1] This study concerned inventions based on artificial intelligence. Unsurprisingly, WIPO found…

This WIPO agenda was covered here before. Should WIPO or courts be in charge of policy? WIPO is about as rogue as the EPO.

Also see this new article titled “Turkey’s national strategy on AI: Where to next?”

“Campinos passively it not actively perpetuates injustice.”Citing WIPO’s propaganda on “AI”, it mentions patents. Imagine making a country’s strategy a mere buzzword like “AI” in relation to patents. From the article: “It is said that China is ahead of other countries when including in AI in their national strategy. AI as an agenda topic of international institutions reveals objective data as far as possible to the question “Which country is leading the AI sector?” A key report that the U.N.’s World Intellectual Property Organization (WIPO) published helps keep a finger on the pulse of the world in terms of country, company and sector categories.”

Shouldn’t the Boards of Appeal put an end to this whole “AI” nonsense? Can they? As it stands at the moment, by their very own admission, they still lack independence. 9 months later Campinos did absolutely nothing about it. Campinos passively it not actively perpetuates injustice.

03.14.19

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

Posted in America, Europe, Patents at 9:01 am by Dr. Roy Schestowitz

Examiners play a game of Whack-a-Mole against a surge of abstract patent applications

Whack-a-Mole

Summary: 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

In lieu with 35 U.S.C. § 101/Alice (SCOTUS), the USPTO can’t quite grant patents on algorithms (but it does anyway). In lieu with the EPC, the EPO must reject all software patents in Europe. António Campinos promotes surrogate names for these. Here is a new example from earlier today (just a few hours ago). This EPO tweet says: “What impact do you think fourth industrial revolution technologies such as #AI and #blockchain will have on the #patent system? Tell us by tomorrow…”

“One just needs to pick the glorified (buzz)words and mislead examiners with fancy terms.”The EPO uses three different buzzwords and hype waves to promote verboten patents without saying the words “software patents” (it’s illegal). 4IR, AI and blockchain would be anything with algorithms (code), database (information system) and so on. One just needs to pick the glorified (buzz)words and mislead examiners with fancy terms. They lack the time needed to assess and come up with grounds for rejection.

What will happen when such patents are presented in court with well-funded opposition to them? This is already happening in the US. “When Software Patents are continually invalidated at court – that says it all,” said this one person. “Europe will be next (to see software patents dying by the hundreds of thousands after the EPO granted these),” I replied to this person. As it turns out, based on yesterday’s figures, 80% of lawsuits or “4 of the 5 patent suits filed yesterday were filed by patent trolls…”

Josh from the CCIA quoted Iancu as saying that the new 101 guidance is “working well at the PTO.”

“If your guidance works well at the PTO,” Josh remarked, “but the issued patents might not hold up in court… is that good guidance?”

“Iancu comes from a law firm where it is all about money rather than justice,” I responded. This is what also happens at the EPO right now. They vainly vilify/disregard judges and try to control judges (even by deterrence). Thankfully, as shown below, even the EFF nowdadays points that out, as we noted yesterday.

Related/contextual items from the news:

  1. The Patent Office Can’t Ignore Law it Dislikes

    The Patent Office’s new guidance cites a handful of Federal Circuit decisions in support of its approach. But it ignores countless cases in which the Federal Circuit has rejected ineligible abstract ideas that the Patent Office will now almost certainly approve, and it ignores key aspects of Alice itself.

    The Patent Office has no authority to ignore case law it dislikes. With your help, we will keep fighting to ensure the patent system promotes innovation by limiting patent grants to actual inventions.

03.13.19

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

Posted in America, EFF, Patents at 2:15 am by Dr. Roy Schestowitz

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.

03.12.19

Watchtroll Has Redefined “Trolls” to Mean Those Who Oppose Software Patents (and Oppose Trolls), Not Those Who Leverage These for Blackmail Alone

Posted in America, Deception, EFF, Law, Patents at 8:17 am by Dr. Roy Schestowitz

“EFF Trolls the Patent Office with ‘Save Alice Campaign’” (image below)

EFF Trolls the Patent Office with ‘Save Alice Campaign’

Summary: The controversial change to 35 U.S.C. § 101 guidance is being opposed by the public (US citizens who oppose American software patents), so patent maximalists like Janal Kalis (“PatentBuddy”) and extremists like Gene Quinn (Watchtroll) want us to believe that the public is just “EFF” and cannot think for itself

AT THE end of last year we promised ourselves not to feed the (Watch)trolls, but here they go again, not with the typical attacks on judges; rather, this time around they’re claiming that all these comments, personally submitted to the U.S. Patent and Trademark Office (USPTO) from people against software patents, are just “EFF” (they’re not) just because EFF issued a call for participation in a blog post (as did Watchtroll and others). It’s about the § 101 guidance water-down attempts by Iancu.

Gene Quinn wants us to think that because the EFF told people who oppose software patents and patent trolls to write to the USPTO it therefore means that any comment submitted to that effect came from EFF. Janal Kalis insinuated so explicitly and Watchtroll says it’s a form of “trolling” even if he himself does it all the time (so does Dennis Crouch, who urges people to push/nudge SCOTUS in trolls’ direction).

“To put it in plain terms, USPTO officials asked for input; patent maximalists told people to send such input and so did the EFF. But the patent maximalists now call the EFF a “troll” for doing so (as if it is harassing the USPTO).”Does the blog post from the EFF make them “Trolls”? Really? So opposing software patents is “Trolling”? That’s inverting the meaning of the term and never mind if the USPTO itself asked for such input and advertised the address to write to…

To put it in plain terms, USPTO officials asked for input; patent maximalists told people to send such input and so did the EFF. But the patent maximalists now call the EFF a “troll” for doing so (as if it is harassing the USPTO). Hypocrisy much? What gives? In relation to Janal Kalis (very vocal patent maximalist) we pointed this out as recently as yesterday, comparing it to the conspiracy theories about Google.

“It’s looking really grim for software patents in US courts.”From what we could gather, based on the tweet from Kalis, almost all the comments were against § 101 changes and in favour of Alice. Software patents are widely being opposed. It’s easy to see why Watchtroll is upset and why Quinn took another job, stepping down from “editor” position after two full decades.

There’s a better post titled “As USPTO Oversight Hearing Approaches, Some Questions On Eligibility” and it’s indirectly related to the above. Josh L. (CCIA) said this about the new § 101 guidance yesterday evening:

The new § 101 guidance makes two major changes to examination for subject matter eligibility. First, it requires examiners to classify abstract ideas into one of three categories: mental processes, mathematical formulas, and methods of organizing human activity. Claims directed to an abstract idea not in one of these categories are to be allowed. Second, it bars examiners from considering whether a given claim is directed only to an abstract idea plus routine and conventional technology if the claim is “integrated into a particular application.” If a claim is integrated, but using conventional technology, the guidance would require an examiner to allow the claim. Both changes represent departures from previous examination practice and both appear to present the potential for conflict with case law. CCIA has commented on these disparities, and suggested that the USPTO clarify the guidance to ensure that it helps examiners comply with case law. However, there’s no guarantee the USPTO will make any such changes—for example, the USPTO recently declined to make any changes in response to public comments on the 2018-2022 Strategic Plan.

Given the possibility that the guidance will remain unchanged, it’s important to consider how it might have been applied to patents that we know have been invalidated under § 101 in a district court. A recent set of arguments in Delaware provides a set of three patents of just that type.

In the US, more so in 2018 and in 2019, a lot of patents are now presumed invalid and the damage cannot be undone for decades to come (expiry takes 2 decades). Later today in our daily links we’ll include articles about new court decisions/case outcomes to that effect. It’s looking really grim for software patents in US courts.

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