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

Red Hat is Phased Out of Existence This Month Onwards
Within a few years we'll probably not see many redhat.com addresses anymore; many became ibm.* last week
NVIDIA Buys the Media With Companies It Sponsors to Pretend to be Customers (Circular Funding Scheme)
The media crisis worsens
Brigading Against Women - Part IXX - Overreaction From Young Female Professional After Invalid Threats Made and Sent From an Incel in Another Continent
Cowards who send threats after committing crimes online
 
Brigading Against Women - Part XX - Attempts by Lozza to Deplatform Techrights and Tux Machines Only Days After I Sued Garrett and My Wife Also Sued Garrett (Shortly Before the Serial Strangler From Microsoft Joined)
in 2024
Links 06/10/2026: A Year Since "NSA Whistleblower Reality Winner Released From Prison", World Tries to Deal With El Niño
Links for the day
"SIRIUS CORPORATION LIMITED" as Evidence of the Financial Shell Games in the UK
Rianne and I still have some fond memories of the time the ex-wife of the CEO treated us like human beings
Lots of Silent Layoffs at IBM Last Week, Employees Explain Patterns of Those Impacted
It wasn't just gossip, it actually happened even if the media chose to look the other way (as usual)
Gemini Links 06/10/2026: Fighting for Purpose, Gemlogs, and Gemtext
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 05, 2026
IRC logs for Monday, October 05, 2026
Finland's GNU/Linux Share Measured at 12%
Last month GNU/Linux was measured at about 10% in Finland
UK Layoffs and Closures by Microsoft. In Expected Blow, Microsoft Likely Shuts Down Another Studio.
Microsoft's layoffs are never-ending, they just try to keep them all secret.
Discussion About Potential Sale of EPO Buildings and Enshittification of Europe's Largest Patent Office
It's noteworthy that only one hour (or 70 minutes) was devoted to so many topics
Stonewalling by Bots
We'll now turn our attention back to EPO and other matters
Gemini Links 05/10/2026: "Posthumanism", Cardputer, and More
Links for the day
Links 05/10/2026: “I’m Embarrassed on Behalf of the Tech Industry” and Slop Scammers "Lobbying the Vatican"
Links for the day
SIRIUS OPEN SOURCE LTD Officially Insolvent, Is Reform UK Next?
Sirius no more
Links 05/10/2026: "Congress Must Investigate War Profiteers Once Again" and Update on Thomson Reuters v. Ross Intelligence
Links for the day
libera.chat is an Agenda-Peddling Platform Run by Agenda-Peddling Individuals
The volunteers of libera.chat ("staff") aren't working for free, they work towards an agenda
Nobel Season is Plutocracy Week
Later this week the billionaires will give a fake "Nobel" (in "Economics") to someone who parrots their preferred narrative and those same billionaires will use "Nobel" to bless the promoter of their latest pyramid scheme/buzzword
GNU/Linux Market Share in North America 13% This Past Weekend
It is perhaps not shocking that adoption of GNU/Linux is very high there
When Did Europe Begin to Side With White-Collar Criminals (or Participate in Suppressing People Who Oppose Them)?
How much corruption can we tolerate before the European Union becomes another Russian Federation?
Libera Chat's "Level of Control Might Make Sense for a Corporate Platform"
IRC is not centralised
Brigading Against Women - Part XVIII - Turning Censorship Attempts (Articles About Matthew Garrett) Into Mild Redactions
What Lozza did two years ago
Greenland Needs Digital Sovereignty
the large icy island isn't moving to GNU/Linux as quickly as the rest of Europe
Tracker of Internet Relay Chat Networks Out of Service (But Not Down) Since Thursday
We should note that the number of unique networks they track has grown since we last checked
Gemini Links 05/10/2026: NixOS, Guix, Codeberg Banning Slop, and "Gopher Apps on Android"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 04, 2026
IRC logs for Sunday, October 04, 2026
Secret Microsoft Layoffs and Maybe Another "Voluntary Exit Program at Microsoft in October"
there's a morale crisis at Microsoft
MIT Technology Review (MTR) Reinforces MIT's Role in Promoting Slop (Pyramid Scheme) in Exchange for Money
MIT is a poster boy (or child) of institutional corruption, perverts, and corporate takeover
Many Topics to Cover
Drops in a big ocean
Proving Wrong Those Slop Maximalists and Boosters, GAFAM Says Slop is a Nuisance and Bans/Hides the Slop Submissions
People who say slop in projects is inevitable or even desirable are usually cheaters with self-guilt
Links 04/10/2026: “AI Torture Chamber” and "Aggressive Push to Integrate Hey Hi (AI) Slop Into Schools Is Turning Into a Disaster"
Links for the day
How Microsoft Hides Massive Layoffs From the Media (as Explained by Microsofters)
"rewards" are not exactly rewarding
Brigading Against Women - Part XVII - The Appeal
more to be known towards the end of the year
Gemini Links 04/10/2026: Peace in Outage, Pen Pals, and deGoogling
Links for the day
Links 04/10/2026: Fires Rage in Borneo and Mass Layoffs at Disney
Links for the day
Garrett's Litigation Partner is Unemployed Again
losing one's job
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, October 03, 2026
IRC logs for Saturday, October 03, 2026