01.06.19

As Expected, Director Iancu Tries to Water Down the Examiners’ Guidance in Revised Patent Subject Matter Eligibility Document

Posted in America, Law, Patents at 2:59 am by Dr. Roy Schestowitz

…And patent maximalists are delirious, never mind if this merely widens the gap between caselaw (courts) and examination practice

Blind Leading the Blind
Blind Leading the Blind

Summary: In defiance of courts’ rejection of software patents, the Trump-appointed Director (whose firm had worked for Trump before the appointment) metaphorically sticks up his middle finger and ignores judges; the main casualty, however, will be legal certainty and the perception of patent justice

THIS year we are reducing our volume/frequency of coverage regarding the United States Patent and Trademark Office (USPTO). As we explained before, software patents are more or less dying in the US not because of the Office but because of the courts. The signs are everywhere and not even patent maximalists are denying it (not anymore; they did in past years). Nutter McClennen & Fish LLP’s Todd Gerety, for example, has just published this article that says: “Over the years, patents have issued on numerous games, including iconic favorites such as Monopoly® (1935), Battleship® (1935), Rubik’s Cube® (1983), Rock’em Sock’em Robots® (1966), Twister® (1969), and Simon® (1979). Although there is no per se rule under current U.S. patent law against the patenting of games, it may be more challenging today to obtain patents on certain games due to the patent eligibility requirements of 35 U.S.C. § 101.

“For example, the Federal Circuit recently affirmed a final decision of the Patent Trial and Appeal Board (“Board”) holding a claimed method of playing a dice game using dice having non-conventional markings to be patent ineligible under 35 U.S.C. § 101. See In Re: Marco Guldenaar Holding B.V. (Fed. Cir. 2018). Specifically, the court agreed with the Board that the claimed method recites the abstract idea of “rules for playing a game” and lacked an inventive concept sufficient to transform the claim into patent eligible subject matter.”

Obviously, as anyone can tell, patents on computer games are just software patents that should never have been granted in the first place. Games are a kind of software.

“So the Trump “swamp” is trying to defy court rulings and bring back software patents rebranded as “computer-implemented inventions”.”The Office, however, not to be mistaken for actual courts, doesn’t seem to care. The number of new patents declined last year (but it’s still far too high) and judging by Patently-O‘s assessment of the government shutdown, we might expect that number to decline further this year. “Once funds run out, the PTO is looking for ways to keep the doors open enough to continue to accept new application filings — while shutting down examination and PTAB activities,” Dennis Crouch wrote. “It is likely that a special PTO funding bill would receive bipartisan support — keeping the patent office rolling while other government services are shut-down.”

But no such bill exists yet. In another new post Crouch alluded to the new guidelines or a set of rules that does not impact courts, only examiners. Watchtroll wrote about it too, as did various patent maximalists in Twitter. “The USPTO has finally released the Revised Patent Subject Matter Eligibility Guidance (Section 101 Guidance),” one wrote. “USPTO 2019 Revised Patent Subject Matter Eligibility Guidance” makes two primary changes to how patent examiners apply the first step of the U.S. Supreme Court’s Alice/Mayo test, which determines whether a claim is “directed to” a judicial exception,” said another.

So the Trump "swamp" is trying to defy court rulings and bring back software patents rebranded as “computer-implemented inventions”. So what? The courts won’t care; they’ll keep rejecting such patents, only to reduce confidence in US patents (lowering legal certainty). So what is being achieve here? The United States Patent and Trademark Office has just issued a fake/dubious patent again. Why does it issue patents on abstract ideas? We still see plenty of new examples every day, but we won’t mention them all because we want to reduce focus on this subject (so as to save time).

Michael Loney, another patent maximalist, wrote about what he called “2019 Revised Patent Subject Matter Eligibility Guidance” as follows:

The guidance makes two primary changes to how patent examiners apply the Section 101 test, while the USPTO also announced guidance for the applying Section 112 to computer-implemented inventions

The USPTO has announced revised guidance for subject matter eligibility under Section 101. The Office also announced guidance on the application of Section 112 to computer-implemented inventions.

Loney soon proceeded to promoting software patents agenda in a site of patent extremists and predators:

New USPTO guidance makes two primary changes to how patent examiners apply the Section 101 test, while guidance for applying Section 112 to computer-implemented inventions was also announced

The USPTO has announced revised guidance for subject matter eligibility under Section 101. The Office also announced guidance on the application of Section 112 to computer-implemented inventions.

Patent Docs has not yet commented on this; it did, however, post 5 adverts last night, including this one which includes: “What steps should patent counsel take to minimize the likelihood of § 101 rejections?”

At the Office or the courts? The matter of fact is, one can still get software patents from the Office (maybe more easily now than before, thanks to the biases of Iancu), but courts are tougher than ever on such patents. In fact, they now deal with some of the ‘better’ software patents (because litigation rates have collapsed), yet the success/failure ratio remains steady.

Keep on promoting software patents, Mr. Iancu, at the expense of the credibility of the Office Donald Trump put you in charge of.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

This post is also available in Gemini over at:

gemini://gemini.techrights.org/2019/01/06/2019-revised-patent-subject-matter-eligibility/

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Pro-Software Freedom Advocates and Free/Libre Software Supporters Face Barriers Due to Domination of Communication Channels (Beyond the Media)

    A carefully-checked assessment of an overlooked aspect surrounding the 'cancel mob', which incites and brainwashes people based on lies; there's an attempt to control channels of communication (e.g. Open and Free Technology Community and Freenode) and to generally suppress people who support the founder of GNU/Linux



  2. Bashing Free Software and GNU/Linux is a Terrible Business Model for Publishers

    Contrary to unflattering portrayals by hostile media that's sponsored by foes of Free software, the usage of Free software grows, even if things such as DRM and surveillance stand in the way of software freedom (which was wrongly assumed to be ushered in by Free software, irrespective of malicious features like 'telemetry')



  3. Links 8/5/2021: GIMP 2.99.6, Wine 6.8 Released

    Links for the day



  4. IRC Proceedings: Friday, May 07, 2021

    IRC logs for Friday, May 07, 2021



  5. [Meme] Outsourcing Audacity Development to Microsoft Proprietary Software and Then Copying Microsoft Tactics (and 'Telemetry')

    They've had the audacity to call it "telemetry" and pretend that surveillance companies (spying giants) cannot figure out who you are based on IP addresses



  6. Links 7/5/2021: IPFire 2.25 Core Update 156 and Diffoscope 174 Released

    Links for the day



  7. The New Microsoft? No, the New IBM.

    Microsoft GitHub and IBM: a strategic alliance between a monopolistic duo



  8. The Audacity Takeover by Muse Group is No Cause for Celebration

    Audacity is now part of an entity called Muse Group and if it doesn’t take or suck freedom out of Audacity, it will certainly deny users rather basic concepts (or anticipation) of privacy



  9. King of Linux

    If the entire operating system is being called "Linux", then we fall for a publicity or misattribution stunt



  10. The Biggest Troll is the Linux Foundation, Still Looking to Provoke and Defame Free Software Communities in Order to Help a Monopolistic Takeover and to Shoehorn Tyrants Into Leadership Positions

    Contrary to what the so-called ‘Linux’ Foundation is trying to say, the most toxic element is itself; it’s maligning the real community while protecting abusive and racist corporations that profit from war and tribalism-motivated hatred



  11. IRC Proceedings: Thursday, May 06, 2021

    IRC logs for Thursday, May 06, 2021



  12. “The Lolita Express” and Prince Bill

    “The Lolita Express” scandals return to haunt pool old Bill, as it turns out his wife was upset and it's quite likely the reason for their divorce



  13. Links 7/5/2021: GNU/Linux Preinstalled, Plamo 7.3, LibreOffice 7.1.3

    Links for the day



  14. The Latest Reports About Bill Gates Serve to Confirm or at Least Reaffirm Many People's Suspicions

    So, just as many people suspected, Melinda Gates did not appreciate her husband sneaking behind her back to meet someone who had trafficked thousands of underage girls for sexual exploitation and there are high-profile calls right now for greater transparency, seeing the impact on the world’s biggest tax evasion vehicle



  15. Disregard Web Sites That Call Themselves 'News' and Instead Promote Proprietary Software for Companies Like Microsoft

    Publishers like IDG have long been paid-for marketing in ‘article’ clothing, sometimes with the veneer of ‘reporting’ (as if they have some inside knowledge or insight, e.g. speaking with or for the company they secretly coordinate with or market for); but sadly we’ve been seeing some so-called ‘Linux’ sites doing the same thing, in effect acting like de facto Microsoft marketers



  16. [Meme] Who Needs Examination Anyway When There's 'Hey Hi' (AI)?

    The patent production line could do away with 'pesky' and 'opinionated' examiners who actually wish to scrutinise alleged 'inventions'



  17. Europe's Second-Largest Institution Corrupting the Media and Buying Expensive Puff Pieces

    As annual reports reveal, the EPO wastes an extraordinary amount of money on reputation laundering campaigns and it pollutes the signal by paying publishers; we examine this issue using the new 'reports' shown in the video above



  18. Links 6/5/2021: Fedora’s Compiler Policy and Celemony Software GmbH Adopting Free Software

    Links for the day



  19. Free Software Proponents Don't Fall for Bullshit (Same is True for EPO Examiners)

    There are parallels between what happens in the Free Software Movement and the EPO, where well-meaning people — and usually hard-working scientists — are besieged by people who never really contributed anything to society



  20. IRC Proceedings: Wednesday, May 05, 2021

    IRC logs for Wednesday, May 05, 2021



  21. Lessons From Another Failed Coup Against the Free Software Movement

    The coup has very clearly failed and we should prepare for future attempts (they go in cycles); the monopolies really dislike software they cannot control fully (e.g. copyleft/GPL-licensed software)



  22. Links 5/5/2021: Mesa 21.1 Released and New Releases of Python

    Links for the day



  23. Links 5/5/2021: StarLabs, GNU Zile 2.6.2, Fedora i3 Spin

    Links for the day



  24. Phony 'Scandals' From Phony 'News' Site ZDNet

    Steven J. Vaughan-Nichols continues the coup against the FSF (trying to separate it from its founder, Richard Stallman), funded by IBM and Microsoft to engage in libel at a marketing company-owned ‘news’ site called ZDNet



  25. Links 5/5/2021: Windows Security Breaches and GNU Pokology Launched

    Links for the day



  26. IRC Proceedings: Tuesday, May 04, 2021

    IRC logs for Tuesday, May 04, 2021



  27. Links 4/5/2021: Taiwins 0.3, KDE Plasma 5.21.5 Released

    Links for the day



  28. EPO Already Wasting Money on Media Manipulation Campaigns for European Inventor Award

    An online-only European Inventor Award 'event' is being used as a pretext/excuse to flood European publishers with money they can rightly perceive as 'hush money'; everyone out there with no spine would likely buckle at the sight of EPO euros and just produce mindless puff pieces that serve to distract from EPO corruption



  29. The Timing of This Melinda Gates Tweet Was Always Curious...

    Remarking on her trip to Africa, where the Gates family lobbies for monopolies on seeds (for profit or course, notably through Monsanto/Bayer, which the Gates family heavily invests in), she posted pure fluff and old photos. And it’s hard to believe she had nothing better to do at the time (better than such nostalgia). As we noted last year: “The above tweet of a beach was posted [by Melinda Gates] on the date of the arrest/search of their employee, who was at their residence at the time.” He was arrested around the very same time this tweet was posted. As we wrote last year (based on detailed documents obtained from the police department): “This tweet was posted 2 hours and 40 minutes after the door was breached and incriminating evidence collected.” He was arrested later that morning at the mansion of Bill and Melinda Gates (the police records contain detailed timelines to confirm the chronology). Melinda’s first name was also in the CP 'stash'.



  30. Media Frenzy Around Gates Divorce Helps Distract From Bill's Crimes

    The distraction from many Gates scandals is cushioned by yet another personal fluff; we would rather see investigative journalism pursuing real answers about real scandals


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts