Bonum Certa Men Certa

The Section 101 USPTO 'Debate' (for a 'Report') is a Bunch of Lawyers Debating Among Themselves, No Engineers/Scientists Involved

Summary: A review of the contents of the USPTO's report which deals with software patents, based on various people who looked into it and paid attention to the parties involved

THE USPTO can't help organising all these PR charades, which are echo chamber-like events and reports (forums, roundtables etc.) that we have been writing a lot about since last year (we also wrote about it in 2013). What good are these? They only help reinforce the views of the patent microcosm and elements of it that prey on large companies.



Will Hill, an occasional Techrights contributor, wrote the following summary in Diaspora* (in response to what we had written):

They go to some pains to say that comments came from practitioners and inventors, but the written comments seem to all come from lawyers. The report has a “computer-related technologies” section which has a show of debate, perhaps like the recent “fake news” debate

/****** In contrast to the life sciences field, those in the computer industry were more sharply divided in their views of recent Supreme Court precedent. Some members of the public welcomed the Court’s intervention in the law of patent eligibility. Far from sounding the “death knell” for software innovation,335 several members of the public argued that Alice instead addresses the very real problem of abusive patent litigation driven by overly broad patents.336 According to these commentators, the decision has made patent litigation more efficient and has provided companies with an important tool to defend against spurious lawsuits.337 Likewise, others characterized Alice as striking an appropriate balance between innovators and downstream users of computer-implemented inventions. 338 One participant doubted that the Supreme Court, directly confronted with the issue, would actually hold “that software is not patentable.”339 Another argued that Alice doesn’t go far enough, and that patents are “an imposition” on people that write software and “slow down their ability to create.” 340 ***********/

The numbers are cites to the transcript and written reports by Google, IBM, Mozilla, Microsoft, etc. Yes, the participants all seem to be lawyers.

You can find lists of participants, all in crappy Word to PDF documents with minimally functioning links at, https://www.uspto.gov/patent/initiatives/patent-subject-matter-eligibility-roundtable-2 to get the transcript and written reports. https://www.uspto.gov/sites/default/files/documents/RT2 Transcript FINAL.pdf https://www.uspto.gov/patent/initiatives/comments-patent-subject-matter-eligibility-roundtable-2

The report tries to make itself look like a collaborative effort, /******* There were over 250 participants from across the country representing abroad cross-section of the patent community, including industry, private practice, academia, associations,inventors, and small businesses. ***********/

I suppose legal council is a form of representation, but it’s one only a few people can afford much less the time and travel expenses of participation, and the claim that “small business” were represented rings hollow.



Professor Dennis Crouch misleads this week. Most parties, based on the above (those whose employers actually make stuff) favoured Alice. Misleading framing from Crouch: "The USPTO’s new Section 101 Report [101-Report] is fairly bland, and primarily reports that most of the public input favored a legislative change that would expand patent eligibility to include many of the life-science and software innovations excluded under Mayo/Alice."

CCIA's Josh Landau also wrote something yesterday. He explained why large technology companies now oppose software patents (except, notably, IBM, which is just utterly evil on that front).

To quote the relevant section:

Computer-Related Industries Favor Alice



The Patent Office report correctly notes that the two industries that have seen the most impact from recent Supreme Court decisions on ۤ 101 are life sciences (Myriad and Mayo) and computer-related industries (Alice). Summarizing the viewpoints expressed by the public, it states that the life sciences are united in favor of changing ۤ 101, while computer-related industries are divided.

This is half right. The life sciences industry is essentially united. But so are computer-related industries. They’re united in favor of €§ 101 and Alice.

Intel? Google? Oracle? Amazon? Microsoft? Groups representing startups (Engine), the software industry (SIIA), high-tech and Internet companies (CCIA and IA), and the video game industry (ESA)? The PTO notes that they all supported the current state of €§ 101 and provided a long list of reasons why. Alice has helped startups and small businesses defend themselves from spurious patent lawsuits. It has provided a tool to reduce the cost of patent litigation. And it’s provided a sensible tool to weed out poor quality and overbroad patents that try to claim ideas, rather than solutions.

There is one major exception—IBM. IBM is most likely the single largest patent-holder in the U.S., but it’s seen 5 straight years of declining revenue and growth. (A fact which, in and of itself, should make you question whether the number of patents granted is actually indicative of innovation.) About the only place where IBM is growing is in the yearly “number of patents granted” figure; given that, IBM’s desire to prevent invalidation of the patent portfolio that’s become its crown jewels makes sense.



Watchtroll, as expected, is tugging in the other direction, pushing IBM's agenda as recently as yesterday. They just want legal chaos.

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