03.31.19

Gemini version available ♊︎

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

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Links 24/10/2021: XWayland 21.1.3 and Ubuntu Linux 22.04 LTS Daily Build

    Links for the day



  2. IRC Proceedings: Saturday, October 23, 2021

    IRC logs for Saturday, October 23, 2021



  3. Links 24/10/2021: Ceph Boss Sage Weil Resigns and Many GPL Enforcement Stories

    Links for the day



  4. GAFAM-Funded NPR Reports That Facebook Let Millions of People Like Trump Flout the So-called Rules. Not Just “a Few”.

    Guest post by Ryan, reprinted with permission



  5. Some Memes About What Croatia Means to the European Patent Office

    Before we proceed to other countries in the region, let’s not forget or let’s immortalise the role played by Croatia in the EPO (memes are memorable)



  6. Gangster Culture in the EPO

    The EPO‘s Administrative Council was gamed by a gangster from Croatia; today we start the segment of the series which deals with the Balkan region



  7. The EPO’s Overseer/Overseen Collusion — Part XXI: The Balkan League – The Doyen and His “Protégée”

    The EPO‘s circle of corruption in the Balkan region will be the focus of today’s (and upcoming) coverage, showing some of the controversial enablers of Benoît Battistelli and António Campinos, two deeply corrupt French officials who rapidly drive the Office into the ground for personal gain (at Europe’s expense!)



  8. Links 23/10/2021: FreeBSD 12.3 Beta, Wine 6.20, and NuTyX 21.10.0

    Links for the day



  9. IRC Proceedings: Friday, October 22, 2021

    IRC logs for Friday, October 22, 2021



  10. [Meme] [Teaser] Crime Express

    The series about Battistelli's "Strike Regulations" (20 parts thus far) culminates as the next station is the Balkan region



  11. Links 23/10/2021: Star Labs/StarLite, Ventoy 1.0.56

    Links for the day



  12. Gemini on Sourcehut and Further Expansion of Gemini Space

    Gemini protocol is becoming a widely adopted de facto standard for many who want to de-clutter the Internet by moving away from the World Wide Web and HTML (nowadays plagued by JavaScript, CSS, and many bloated frameworks that spy)



  13. Unlawful Regimes Even Hungary and Poland Would Envy

    There’s plenty of news reports about Polish and Hungarian heads of states violating human rights, but never can one find criticism of the EPO’s management doing the same (the mainstream avoids this subject altogether); today we examine how that area of Europe voted on the illegal "Strike Regulations" of Benoît Battistelli



  14. The EPO’s Overseer/Overseen Collusion — Part XX: The Visegrád Group

    The EPO‘s unlawful “Strike Regulations” (which helped Benoît Battistelli and António Campinos illegally crush or repress EPO staff) were supported by only one among 4 Visegrád delegates



  15. [Meme] IBM Has Paid ZDNet to Troll the Community

    Over the past few weeks ZDNet has constantly published courses with the word "master" in their headlines (we caught several examples; a few are shown above); years ago this was common, also in relation to IBM itself; clearly IBM thinks that the word is racially sensitive and offensive only when it's not IBM using the word and nowadays IBM pays ZDNet — sometimes proxying through the Linux Foundation — to relay this self-contradictory message whose objective is to shame programmers, Free software communities etc. (through guilt they can leverage more power and resort to projection tactics, sometimes outright slander which distracts)



  16. [Meme] ILO Designed to Fail: EPO Presidents Cannot be Held Accountable If ILOAT Takes Almost a Decade to Issue a Simple Ruling

    The recent ILOAT ruling (a trivial no-brainer) inadvertently reminds one of the severe weaknesses of ILOAT; what good is a system of accountability that issues rulings on decisions that are barely relevant anymore (or too late to correct)?



  17. Links 22/10/2021: Trump's AGPL Violations and Chrome 95 Released

    Links for the day



  18. [Meme] How Corporate Monopolies Demonise Critics of Their Technically and Legally Problematic 'Products'

    When the technical substance of some criticism stands (defensible based upon evidence), and is increasingly difficult to refute based on facts, make up some fictional issue — a straw man argument — and then respond to that phony issue based on no facts at all



  19. Links 22/10/2021: Global Encryption Day

    Links for the day



  20. [Meme] Speaking the Same Language

    Language inside the EPO is misleading. Francophones Benoît Battistelli and António Campinos casually misuse the word “social”.



  21. António Campinos Thinks Salary Reductions Months Before He Leaves is “Exceptional Social Gesture”

    Just as Benoît Battistelli had a profound misunderstanding of the concept of “social democracy” his mate seems to completely misunderstand what a “social gesture” is (should have asked his father)



  22. IRC Proceedings: Thursday, October 21, 2021

    IRC logs for Thursday, October 21, 2021



  23. Links 21/10/2021: MX Linux 21 and Git Contributors’ Summit in a Nutshell

    Links for the day



  24. [Meme] [Teaser] Miguel de Icaza on CEO of Microsoft GitHub

    Our ongoing series, which is very long, will shed much-needed light on GitHub and its goals (the dark side is a lot darker than people care to realise)



  25. Gemini Protocol and Gemini Space Are Not a Niche; for Techrights, Gemini Means Half a Million Page Requests a Month

    Techrights on gemini:// has become very big and we’ll soon regenerate all the pages (about 37,500 of them) to improve clarity, consistency, and general integrity



  26. 'Satellite States' of EPO Autocrats

    Today we look more closely at how Baltic states were rendered 'voting fodder' by large European states, looking to rubber-stamp new and oppressive measures which disempower the masses



  27. [Meme] Don't Mention 'Brexit' to Team UPC

    It seems perfectly clear that UPC cannot start, contrary to what the EPO‘s António Campinos told the Council last week (lying, as usual) and what the EPO insinuates in Twitter; in fact, a legal challenge to this should be almost trivial



  28. The EPO’s Overseer/Overseen Collusion — Part IXX: The Baltic States

    How unlawful EPO rules were unsurprisingly supported by Benoît Battistelli‘s friends in Baltic states; António Campinos maintained those same unlawful rules and Baltic connections, in effect liaising with offices known for their corruption (convicted officials, too; they did not have diplomatic immunity, unlike Battistelli and Campinos)



  29. Links 21/10/2021: GIMP 2.99.8 Released, Hardware Shortages, Mozilla Crisis

    Links for the day



  30. How Oppressive Governments and Web Monopolists Might Try to Discourage Adoption of Internet Protocols Like Gemini

    Popular movements and even some courageous publications have long been subverted by demonisation tactics, splits along unrelated grounds (such as controversial politics) and — failing that — technical sabotage and censorship; one must familiarise oneself with commonly-recurring themes of social control by altercation


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