Bonum Certa Men Certa

As USPTO Director, Andrei Iancu Gives Three Months for Public Comments on 35 U.S.C. €§ 101 (Software Patenting Impacted)

No guarantee that anything will change, but the patent microcosm enthusiastically promotes this perception

Pulling a Berkheimer



Summary: Weeks after starting his job as head of the US patent office, to our regret but not to our surprise, Iancu asks whether to limit examiners' ability to reject abstract patent applications citing 35 U.S.C. €§ 101 (relates to Alice and Mayo)

A COUPLE of days ago we carefully took note of sites that had been attacking Michelle Lee (USPTO Director and reformer); they are now pressuring the new Director, Andrei Iancu. Will they get their way at the end? Can they squash Alice and Mayo somehow? Will Iancu let them do it?

"The patent extremists, we might as well add, are nowadays naming and ranking patent examiners by how subservient they are to patent maximalists."Sites like Watchtoll are keeping the old obsession with him, pushing him towards limiting/removing PTAB, reintroducing software patents etc.

Steve Brachmann (Watchtroll) wrote about him again a couple of days ago, to be followed by another piece about the person who chose him before Trump nominated him. To quote:

Over the last several weeks those in the industry supportive of strong patent rights have been treated to speeches from USPTO Director Andrei Iancu saying all the right things about the patent system. but it is hard to imagine anything more significant than Secretary Ross simply showing up at an event like this.


Citing decisions like Berkheimer, a couple of days ago Gene Quinn (Watchtroll) mentioned potential changes to Section 101 and said: "The deadline for receiving public comments will be 120 days from official publication in the Federal Register, which will take place on Friday, April 20, 2018."

It didn't take long for patent maximalists to get all jolly; Iancu is being pressured to be a stooge of patent extremists, who are now boosting Watchtroll in joy and glee.

"So basically, nothing has been finalised."Even IBM's patent chief is boosting Watchtroll on this, which says a lot about IBM. It's a rather trollish and malicious company nowadays. It lobbies for software patents like no other company (not even Microsoft).

The patent extremists, we might as well add, are nowadays naming and ranking patent examiners by how subservient they are to patent maximalists. This is a sort of witch-hunt-type trick. Anticipat did it and now Watchtroll joins the 'fun'. It's getting pretty ugly.

For a more balanced coverage, see what IP Watch wrote yesterday:

The United States Patent and Trademark Office today issued a Federal Register notice providing guidance to patent examiners on patent subject matter. The office is seeking public comments on the new guidance.


Here's the original wording (complete): "The USPTO has issued today a Federal Register notice and memorandum to the patent examining corps in response to a recent decision by the U.S. Court of Appeals for the Federal Circuit in Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018), pertaining to subject matter eligibility. This new guidance pertains to the second step of the Alice-Mayo framework for determining subject matter eligibility, and is focused on how examiners are to analyze and document a conclusion that a claim clement is “well-understood, routine, conventional” during the patent examination process. The USPTO is requesting public comment on the new guidance. This memorandum was issued now in light of the recent decision from the Court of Appeals. The USPTO is determined to continue its mission to provide clear and predictable patent rights in accordance with this rapidly evolving area of the law, and to that end, may issue further guidance in the future."

So basically, nothing has been finalised. It is a proposal regarding a potentially new guidance (to be in effect). Watchtroll, like the original, names Berkheimer, as it last did yesterday:

As for the memo itself, it indicates that while Berkheimer does not change the basic subject matter eligibility framework set forth in MPEP €§ 2106, the case does provide clarification for the Alice Step 2B inquiry in that whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination. “[A]n examiner should conclude that an element (or combination of elements) represents well-understood, routine, conventional activity only when the examiner can readily conclude that the element(s) is widely prevalent or in common use in the relevant industry…[and] such a conclusion must be based upon a factual determination…This memorandum further clarifies that the analysis as to whether an element (or combination of elements) is widely prevalent or in common use is the same as the analysis under 35 U.S.C. €§ 112(a) as to whether an element is so well-known that it need not be described in detail in the patent specification [emphasis original].”


Richard Lloyd (IAM think tank) wrote: "During his first oversight hearing before the Senate Judiciary Committee yesterday, USPTO Director Andrei Iancu came under growing pressure to issue guidance on how recent changes in jurisprudence on patent eligible subject matter should be applied. Senator Kamala Harris, a recent appointee to the committee, quizzed Iancu on the uncertainty around section 101, particularly as it relates to artificial intelligence. This is an area of growing interest to the tech giants of her home state of California, and Harris asked the new PTO if he could commit to issuing new guidance within 90 days."

"We expect technology companies (other than IBM) to oppose changes and in fact Josh Landau (CCIA), who represents many such companies, has already responded."There was also this tweet about it, which said: "Yesterday in the Senate, USPTO director Iancu committed to reporting back on possible changes to 101 guidelines within 90 days, so today's news is something of a surprise. But eligibility is an issue Iancu has focused on strongly since taking the reins."

We expect technology companies (other than IBM) to oppose changes and in fact Josh Landau (CCIA), who represents many such companies, has already responded. Two days ago he wrote a rebuttal to the claims made in the oversight hearing:

On Wednesday, April 18, new USPTO Director Andrei Iancu appeared for his first oversight hearing in front of the Senate Judiciary Committee. The Director was more open with the Committee compared to his confirmation process, leading to some interesting discussions.

Algorithms Are Already Patentable

A number of questions focused on the issue of patentable subject matter, also referred to as €§ 101. As noted by a number of Senators, artificial intelligence (AI), machine learning, and big data are huge areas of innovation right now. Google’s AI systems (including DeepMind and TensorFlow) have enabled key advances in many areas of machine learning. NVIDIA’s advanced GPU hardware enables faster, more efficient AI technology, and they have their own AI systems that run on top of their hardware. Intel is providing neural network hardware that can learn on its own. These technologies underlie recent advances in areas as diverse as natural language translation, self-driving cars, and medical diagnostics.

Unfortunately, there appeared to be an impression that algorithms aren’t patentable, and Director Iancu could have done more to clarify that that’s anything but the truth. Of course you can patent an algorithm. In fact, claiming a specific algorithm for solving a problem in your patent is one of the most effective ways to make sure that your invention passes €§ 101; that was the exact rationale in the McRO case. Essentially, you can patent “a specific means or method that improves the relevant technology,” but you can’t patent “a result or effect that itself is the abstract idea and merely invoke generic processes and machinery.” A specific algorithm that solves a technical problem is patentable. But what isn’t patentable is claiming “using artificial intelligence to solve a problem”, any more than “using computers to solve a problem” was found patentable in Alice.

And that shouldn’t concern anyone interested in the future of AI. Alice hasn’t hurt the computer software industry—on the contrary, R&D spending on software and the internet has skyrocketed post-Alice. And the inability to patent “solve it with AI” isn’t going to harm investment in AI.

Real advances in AI are receiving patents every day. [1][2][3][4]. Utility patent 10,000,000 will likely issue this summer, and given the pace of innovation seen every day, there’s a good chance that patent will relate to AI. But what isn’t—and shouldn’t be—patentable is the sort of “do it with AI” patents that can block off whole areas of research and development, the sorts of patents that are favorites of patent trolls. And that’s exactly the situation we have today.


What will happen after 3 months is not known to us (not yet), but we expect groups like the EFF, Engine, CCIA, HTIA and others to remain involved and push back against patent maximalists. We'll mostly be vigilant observers and report on what is happening, e.g. public submission of comments.

Recent Techrights' Posts

IBM's Press Release About Results Mentions "AI" 10 Times, "Quantum" 4 Times
Blah blah blah AI"
Things We Could Do More Than Half a Century Ago But Can No Longer Accomplish
Newer is not always better
Linux Foundation an Enemy of the Planet, Proponent of Pollution and Global Heating
"could the "polluters pay" model be extended to the computing environment and used to take on Microsoft and Microsofters?"
 
Gemini Links 23/07/2026: SharePoint Rants and “Junk DNA” in Commented-Out Code
Links for the day
Links 23/07/2026: RIP John C. Dvorak, Organisation Weaponised Against J.K. Rowling
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 22, 2026
IRC logs for Wednesday, July 22, 2026
Freexian & Debian: antitrust, unfair competition against joint authors and volunteers
Reprinted with permission from Daniel Pocock
IBM in the Red After Bad Results (Shares Down in After Hours)
Will the CEO step down, retire, of what else?
Gemini Links 22/07/2026: Fault Lines, the Dark Web and Beyond, and Why Substack is Awful
Links for the day
Insult and Injury: Getting Banned, Not Just Sacked, by Microsoft
A former insider spoke about this in public 5 hours ago
Links 22/07/2026: "Dumb Phones" Not Enough to Tackle Harmful Addition, "MPEG-4 Visual's Road to Being [Software] Patent-Free"
Links for the day
Top secret: Cults inquiry submission concealed from public
Reprinted with permission from Daniel Pocock
An Hour Ahead of Alleged 'Results' (Amid Investigation Into Fraud) IBM Falls Back to New Lows
Only cents away from a 52-week low
IBM Headed for Lowest "Value" in 2 Years
In a nutshell, Krishna "can't keep it up" and IBM is now investigated for fraud
Investigation Progressing
There is nothing "funny" about receiving mortal threats for merely reporting information in a civilised country
Anupa Ann Joseph & Debian defamation gang
Reprinted with permission from Daniel Pocock
State of the Invidious Project
Never forget how hostile Google can be towards freedom
Prioritising the Safety of Women is the Best Approach to Foster Diversity in Technical Communities
Debian was never "normative", but that does not mean Debian should have such low standards
IBM Will Report 'Results' Tonight (CET), It's Already Investigated for Securities Fraud
"Five of the biggest US tech giants are carrying $1.65 trillion in debt that does not show up on their balance sheets"
Hardware Has Gotten a Lot Worse, Not Just Far More Expensive
prices go up fast
Amid Claims of Microsoft Bing Layoffs It Seems Like Bing Cannot Even Hold on to Second Place
Yandex is sometimes bigger than Bing
Wikileaks Does Not Publish New Material Anymore, But Wikileaks Still Changes the World
Wikileaks has a legacy that will soon turn 20
Links 22/07/2026: Postal IRCs, PlayStation Kills Discs, Union Action Against Microsoft, "Judge Considers Tossing Databricks Patent Suit Under California anti-SLAPP Law"
Links for the day
Same 'Journalists' Who Published Fake News for IBM (Pump and Dump) Now Write Puff Pieces About the Stock Falling
the media is so compromised
They Called It "Social" and "Media", But It Turned Out to be Slop and Child Porn
Why do any sane people still use social control media?
Age of consent: DebConf26 registered sex offender in Argentina?
Reprinted with permission from Daniel Pocock
European Patent Office (EPO) Series: In the Pole Position Despite a Dismal Track Record
António Campinos is an old hand when it comes to such high-level institutional intrigue
Site a Bit Slower Due to Visitors' Load
We'll try to work out better speeds
Gemini Links 22/07/2026: Emacs, Astrology Clock, Arduino, and Rogallo v1.0.0
Links for the day
After Involvement by the Free Software Foundation (FSF) LibreTech and Quibble Gain More Participants
RMS expressed gratitude for people who worked on Quibble and improved LibreJS after many years of inactivity
The Lessons From the Assange Saga
This will not end well
Apple Will Increase Surveillance of Customers, Record Verbal Communications Under the Guise of "Hey Hi"
Apple now drinks that same Kool-Aid
Dave Winer, Blogging Pioneer, Sells Out, Spews Out LLM Slop to Readers
Another one bites the dust [...] Now it's a slopfarm of sorts
Not Everything Can be Automated
not a new thing
GNU/Linux OS in ComorOS
Now, as in recent years or the last year, the GNU/Linux "signal" is growing significantly
Microsoft Redefines "Layoffs" to Give Smaller Tallies
It's not just calling them "buyouts" or saying people are merely "leaving" or "retiring"
IBM is Not Done Destroying Red Hat, Wait Till October 1st 2026 (More Layoffs and Bluewashing)
It's not bluewashing 'til it's 100% done
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 21, 2026
IRC logs for Tuesday, July 21, 2026
"LF Sex", Nothing to Do With Linux
a lot of explaining to do this week
Gemini Links 21/07/2026: Nostalgia, Shogi, and New Gemlog System
Links for the day
Guyana: GNU/Linux Rises to New High, 7%
Guyana is part of the trend
Oman: GNU/Linux Up to 7%
It was 5% last year
The Solution is Never 'Free Hosting' in Proprietary GitHub (Microsoft), the Solution is Self-Hosting
Third parties never care about your projects as much as you (yourself) care about them
Only a Matter of Time Before IBM Drops to $199 or a Lot Lower Than That
How long can IBM overload empty shells?
From GAFAM's Perspective, Jeremy Bicha Did Nothing Wrong
All is OK as long as he does not criticise monopolists and billionaires
Bluesky Was Such an Utter Failure That After 18 Months Mozilla Goes Hug a Nazi Platform That Produces Child Porn
What compels Mozilla to come back there? The child pornography scandal? The adorable leader?
GNU/Linux at Grenada Measured at 14% This Month
GNU/Linux was stuck at 0% for a long time
In WordPress, Newer is Not Better (Maybe Better Off With No WordPress at All)
To Hell with bloat and feature churn
As Slop Bubble Implodes (Inevitable), the Dishonest, Corrupt, Compromised Media Tries to Blame "China" Again (Like it Did With "DeepSeek" in Past Years)
Here we go again. We've been there before. Same spin, this time not "DeepSeek" though.
Lots of Microsoft Just Loses Money, Not Earning Money
Due to profitability challenges it's hard to believe Microsoft will ever find a buyer for XBox
Red Hat (IBM) Has Long 'Reassigned' (Bluewashed) Red Hat Staff to Ruin Fedora, Now It Does the Same to GNOME
What next from IBM's Krishna?
Links 21/07/2026: Google Stagnating, Slop 'Apps' Are "Flooding Apple’s App Store"
Links for the day
Gemini Links 21/07/2026: OPNSense Upgrade Problems, Zilog Z80 at 50, and Lessons From Terminator
Links for the day
IBM Lawsuits Over Alleged Fraud Are Piling Up
We'll keep an eye on the lawsuits
Arianna Taite on Odds of Australian (Daniel Pocock) Winning Clacton By-Election
His detractors somehow try to twist or frame him (Pocock) as an impediment to women while the exact opposite is true
This Coming Weekend Marks 4 Years Since We Dumped Content Management Systems (CMSs) in Favour of Static Site Generators (SSGs)
the first page dated July 25
Slop's Latest Casualty: The Credibility of Linus Torvalds
If you care about millionaires and billionaires, follow Torvalds (he is already in that "club")
Techrights Will Become More Productive (More Output) Over Time
Big stories about to land
Touch Grass
Happiness involves what humans have evolved to appreciate, not what humans create to sedate the mind (like skinnerboxes)
The Cyber Show on Technology Having Become a Tool of Mass Psychosis, Not Enablement or Emancipation
Technology as mass psychosis
The Rumour Said That a Second Wave of Microsoft Layoffs Would Come This Week (Ahead of Fake 'Results'), Maybe Tomorrow
Let's wait and see how "MSM" unfold
To Wikipedia, "Notability" is Just an Excuse to Hail People Who Serve Billionaires While Marginalising or Defaming the Rest
Wikipedia is an advertising space
Our Series About Solicitors Regulation Authority (SRA) and SLAPPs Will Resume Soon
Originally, in 2025, we gave ourselves 6 years (until 2031) to cover these issues, but we've seen since extended that to 10 years (until 2036) because of the amount of material we have
European Patent Office (EPO) Series: The EPO Transparency Gap
Despite the "European" tag in the organisation's name, the European Union has no jurisdiction over the European Patent Organisation
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 20, 2026
IRC logs for Monday, July 20, 2026
Links 20/07/2026: Lashes for Songs in Iran, Kurdish Language at Risk
Links for the day
Gemini Links 21/07/2026: The Boss Baby (2017) and 2026 Old Computer Challenge Epilogue
Links for the day