03.31.19

Technology Groups Implore the Deplorable Patent Office of Iancu and Trump

Posted in America, EFF, Patents at 10:59 pm by Dr. Roy Schestowitz

Old: Andrei Iancu’s Firm Has a History Working With Trump, But Senate Says OK to Him Becoming USPTO Director

Trump and Iancu

Summary: The “New USPTO Patent Eligibility Guidelines,” as Stuart Meyer (Fenwick & West LLP and Bilski Blog) puts it, have been broadly condemned by technical people, unlike lawyers and attorneys who thrive in frivolous litigation

35 U.S.C. § 101/Alice (SCOTUS) has compelled the U.S. Patent and Trademark Office (USPTO) to either stop granting software patents or risk the perception that it is granting patents it knows courts would reject (if a lawsuit was filed).

Last year the USPTO received fewer quantities from its “customers” or “clients” (what it calls applicants) and the number of granted patents decreased (compared to what it had granted the prior year, under Michelle Lee).

Iancu is trying to turn things around by simply ignoring the courts and mistreating the law. Having asked for public feedback (in an open consultation), the vast majority of letters condemn him for it. So the patent maximalists keep pretending it’s all “EFF” (simply because the EFF wrote a blog post on the subject) and days ago Stuart Meyer (Fenwick & West LLP) wrote [1, 2] about it as follows:

Compared with the organizations discussed above, the Electronic Frontier Foundation had quite a different view. EFF, on behalf of “its more than 39,000 dues-paying members,” said that the Guidance “effectively instructs examiners on how to narrow the Alice v. CLS Bank decision instead of how to apply it correctly,” and calls it “contrary to law.” EFF faulted the Guidance for defining ineligible abstract ideas to include only mental processes, mathematical formulas, and methods of organizing human activity; EFF asserted that cases have identified others “that do not neatly fit into those three narrow categories.” EFF also asserted that the Guidance creates “an entirely new and unprecedented step” for eligibility. EFF argued that even if the Federal Circuit can resolve patent-eligibility as a matter of law at the first step, “the same is not true for examiners,” who EFF argued should “conduct the full, two-step patent-eligibility analysis in the first instance” to fend off “a loophole that allows applicants to avoid the inventive concept requirement.” EFF noted that the Guidance sets up a situation in which “examiners will apply a substantially different test than district courts.”

More generally, EFF argued that “Alice has been a critical tool” in helping software developers and users “defend against meritless patent lawsuits and litigation threats.” EFF attributed a rise in R&D spending on “software & Internet” as attributable to Alice; it said the Guidance would “guarantee that patents on basic ideas continue to issue despite Alice, and thus continue to tax and impede research and innovation….”

EFF’s attempt to elicit input from opponents of the guidelines also experienced significant success. The organization’s “Save Alice” campaign provided model language for detractors to paste into their comments, and many individuals did just that. There were about 2,500 comments submitted to the USPTO by individuals, and a sampling suggests that the vast majority of these comments were cut-and-paste from the text EFF suggested for this campaign. By way of comparison, in the “pro-Guidance” camp, a far smaller but still significant number of comments were cut-and-paste from campaigns of one or more inventors’ associations. The number of bespoke comments from individuals paled in comparison to the cut-and-paste numbers.

Also somewhat critical of the Guidance was the Software & Information Industry Association. SIIA noted that its “members have benefitted greatly from the patents they own. Yet they also rely on the limits of patent protection, as those limits preserve and protect their ability to innovate. As such, SIIA’s collective membership sits at the crossroads of the countervailing interests….” SIIA asserted that synthesizing just a few categories from the judicial decisions resulted in pairings of cases and categories that “may or may not fit.” SIIA proposed “a fourth category to capture all precedent,” thereby allowing examiners to reject claims more directly based on a prior judicial opinion. SIIA said that with such a category, examiners would have more freedom to make initial rejections in appropriate circumstances without the need for higher level approval. In addition, SIIA worried that, “By specifying that the abstract idea must be ‘recited on [its] own per se,’ the 2019 Guidance may encourage clever drafting efforts to avoid explicitly reciting an exception in the claim.” SIIA saw this as a departure from prior guidance and the caselaw. Finally, SIIA said that the USPTO “should be clearer with respect to the specificity of the computer implementation necessary to amount to an integrated practical application.”

It is worth noting that technology companies oppose Iancu’s proposal. They also support Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) — another thing that has come under attack from Iancu. In many ways he turned out to be an 'American Battistelli'.

Who likes Iancu? The people who come from the same profession as him. The patent litigation giants are still panicking over Alice and seeing that they are running out of ‘business’ (not many new patent lawsuits are being filed), they regroup and come up with ridiculous new headlines, such as “Who Will Win the Alice Race?”

A belated Happy New Year to all of you! As I reflect on this column, which has gone through various permutations over the past seven years, I am amazed how readership has grown organically via the Tangible IP website from a dozen (including several family members) to more than 15,000 professionals in the IP and business communities.

I must admit, this baby is a real time investment. But every time I think of retiring it, someone new tells me that he or she actually reads it and even enjoys it. Go figure!

A lot of these people will need to change jobs. Some already have. IPO is now training people on PTAB and there’s another new example about “[t]he “new” § 101 landscape in the PTO and District Courts…”

Maybe these people can make a living by invalidating ridiculous patents rather than flood the system with more and more of them (plus lawsuits).

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/2019/03/31/deplorable-patent-office-of-iancu-and-trump/

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. European Media Does Not Care About Europe's Second-Largest Institution Crushing Basic Laws and Fundamental Rights

    New video about the latest publication from SUEPO (the EPO’s staff union); it was published yesterday, seeing that the “Mafia” (what EPO staff actually calls the management!) hasn’t done anything to comply with a wide-ranging set of court rulings from ILO-AT; why has the media said nothing about this and what does that say about today’s media? The material is all in the public domain, in widely understood languages, and SUEPO spoke about it more than 3 weeks ago.



  2. Links 30/7/2021: Distro Comparisons and Tootle Introduced

    Links for the day



  3. [Meme] Enforcing ILO-AT Rulings...

    We’re still waiting for a statement — any statement (direct or indirect) — from EPO management, seeing that almost a month has passed



  4. 'Open Source' as a Failed Initiative

    A closer look at the dire state of the Open Source Initiative, or OSI, which no longer protects Open Source (let alone software freedom) but instead helps openwashing, Microsoft entrapment, and a coup against the FSF



  5. [Meme] Rowan and António Sittin' on a Tree...

    How much longer can Team Campinos keep issuing tons of noisy and self-congratulatory puff pieces to (perhaps) distract from the elephant in the 10th floor of the Isar building (EPO HQ)? Staff won't wait for eternity.



  6. IRC Proceedings: Thursday, July 29, 2021

    IRC logs for Thursday, July 29, 2021



  7. Half the People in This Letter Are IBM Employees

    IBM seems to be continuing its war on the FSF because IBM wants to own everything (CentOS being ‘canned’ was just part of the plan)



  8. The OSI Song

    The sad demise of OSI, which has become little but a front group of proprietary software companies in pursuit of openwashing services (and outsourcing to proprietary disservices looking to eradicate copyleft)



  9. [Meme] OSI is Doing Just Fine

    So what if OSI is run by someone who raised money from Microsoft (to sell Microsoft a keynote slot in a copyleft event — the thing that Microsoft attacks through GitHub!) while funnelling the OSI's funds to a serial GPL violator?



  10. The OSI's Defunct Elections (Privacy Breach), Conflict of Interest (Nicholson), and Other Lingering Problems

    The above, together with an email from the OSI below, serves to show they’re re-running a bad election and — yet worse! — there appears to be a conflict of interest implicating the OSI’s sole member of staff!



  11. Links 30/7/2021: Audacity 3.0.3 and KD Chart 2.8.0

    Links for the day



  12. Links 29/7/2021: siduction 2021.2 and Xubuntu 21.10 Dev Update

    Links for the day



  13. GitHub is Racism

    Microsoft has the world's most racist code hosting repository; it wasn't like this when Microsoft took over as the racist policies were added to impress Donald Trump, who would later rig a procurement/tendering process to bail out Microsoft (10 billion dollars from the Pentagon, i.e. taxpayers)



  14. [Meme] António Lost His Power Over Patent Examiners

    Team Campinos at the EPO must be rather stressed at the moment; the people who do all the work can go on strike any time (or all the time, until/unless demands are met)



  15. European Patent Office is Going on Strike (or Strikes)

    The staff of the EPO is ready to strike like never before (dissatisfaction and outrage over 8 years of gross injustice, namely Battistelli's breach of fundamental rights, including the right to strike)



  16. Crying “Wolf!” About Systemd is Only Beneficial to IBM and Systemd Developers/Pushers

    Microsoft controls Systemd only to the extent that Systemd is controlled by GitHub, which is in turn controlled by Microsoft; But Systemd has long been on that proprietary platform (its developers don’t truly value software freedom) and this has long been a problem, even before Microsoft hijacked it for coercive power



  17. Links 29/7/2021: Mesa 21.2 RC3, FSF Responds to Microsoft's 'Hey Hi' Attack on Copyleft

    Links for the day



  18. IRC Proceedings: Wednesday, July 28, 2021

    IRC logs for Wednesday, July 28, 2021



  19. [Meme] No Crime Goes Unrewarded at the EPO

    It is more or less undeniable that from a legal and functional perspective the EPO is already defunct and is still perishing under a couple of Mafiosos whose sole interest is cover-up and grifting/plunder (of what’s left of the Office after almost 40 years of goodwill/reputation); the recent G 1/21 fiasco was just icing on the cake and the EU’s insistence on a patently unconstitutional UPC (more legal powers for chronic EPC violators) actually weakens unity in Europe (by discrediting the Union)



  20. [Meme] There's Always a Way (When Financial Results Are Not So Good...)

    Too many US ‘tech’ companies still lie to their investors. They choose financial engineering instead of real engineering.



  21. Links 28/7/2021: OPNsense 21.7 and MX Linux 21 Beta

    Links for the day



  22. The One Reason I Cannot Get 'Google News' (or Google) Completely Out of My Life

    Google has got almost a monopoly on (nearly) real-time news syndication; this is why, for our Daily Links at least, we still rely on Google News to a certain extent



  23. [Meme] When Sociopaths or Psychopaths Run Europe's Second-Largest Institution

    The EPO has a very profound issue because it is run (and ruined) by insecure thugs with inferiority complex, so they form cliques of friends of theirs instead of actually qualified people, in effect creating personality cults that laugh at the law and disregard any obligations to the institutions/staff they were entrusted to manage



  24. Links 28/7/2021: GCC 11.2 Released

    Links for the day



  25. Microsoft 'Loves' Linux So Much That It's Spreading FUD About It All Over the Media for 3 Days in a Row (So Far)

    The stubborn cult at Microsoft likes telling us all — especially officials and decision-makers — a bunch lies like, “we invest [some amount of money] in security” and “security is our goal”, but in reality the money is sunk into hiring (‘buying’) firms with “security” in their name, bribing publishers for mindless PR/platitudes that cast critics of Microsoft insecurity/ies as “fanatics”, “bashers”, “jealous”, “irrational” et cetera; finally, actual money goes into collaborations with the NSA on back doors, i.e. the exact opposite of security. The video above is a follow-up or sequel for something we meme-ified two days ago; we’ve since then included more examples (with editorial comments added to the links) in our News Roundups/Daily Links; Western media follows the same script we saw in Indian Web sites on Sunday and the objective is to paint Linux as “equally insecure” if not less secure than Windows. As already noted on Sunday, in a much longer video, the ‘Linux’ malware (it has nothing to do with Linux itself!) needs user intervention, neglect, or even sabotage to even get on the compromised systems in the first place. One can guess what situation or which incidents Microsoft is ever so eager to distract/deflect from…



  26. [Meme] EPO Asked to Comply With the Law and Correct Behaviour

    EPO staff wants reparations for monumental abuses, but the “Mafia” of Benoît Battistelli and António Campinos will never allow that to happen (we saw the same regarding the unlawful composition of internal courts)



  27. The Unfunny Joke That Microsoft Cares for 'Developer Rights'

    Microsoft propaganda urging software developers to find comfort in a prison of Microsoft (proprietary software monopoly) is a symptom of dying media, or thinly-veiled PR looking for a buck



  28. IRC Proceedings: Tuesday, July 27, 2021

    IRC logs for Tuesday, July 27, 2021



  29. Links 28/7/2021: PulseAudio 15.0 Released, World’s Slowest Raytracer

    Links for the day



  30. Links 27/7/2021: New Godot Engine Beta and a Call for Funding of GIMP

    Links for the day


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