Bonum Certa Men Certa

Improving US Patent Quality Through Reassessments of Patents and Courts' Transparency

Transparency in CD



Summary: Transparency in US courts and more public participation in the patent process (examination, litigation etc.) would help demonstrate that many patents are being granted -- and sometimes asserted -- that are totally bunk, bogus, fake

THE new leadership is oftentimes frustrating if now downright depressing; they put the so-called 'swamp' in charge. A new event about patents issued the following nonsensical tweet: "A new twist has recently entered the debate about how #patents and #opensource interact and whether the two principles are compatible with each other or not."

"So stop granting software patents; the principal problem would be solved."They're obviously not compatible, but the sponsors would pay for us to believe otherwise. The event took place yesterday and attending as well as speaking was Director Iancu, who said, according to third-party accounts: "lack of predictability on Section 101 limits investment in innovation. [...] gets specific: "Step 1 of Alice-Mayo test must be a 'category' analysis not a claim analysis. If the matter is sometimes patentable then it is not a subject matter Section 101 problem."

So stop granting software patents; the principal problem would be solved. We'll probably say more in the weekend (once all the patent maximalists are done boosting him).

Totally meaningless is the message above (lots of mythology embedded in it, pure fiction from the patent microcosm). He just wants to find ways to defy the courts, ignore caselaw, and grant software patents anyway.

Last night Josh Landau (CCIA) spoke about history and noted that "[w]hile the PTO no longer operates under a registration system, that situation still exists today. The PTO—unlike many other patent offices around the world—is unable to permanently refuse a patent application."

Here are some key bits:

Setting aside the apparent fact that the vast majority of patents back then were on old ideas—a problem that continues to exist, given the significant number of invalid patents issued by the PTO—there’s another lesson to be had from this diary entry.

Dr. Thornton was operating under the registration system, during which patents were not examined but were simply granted. As Adams emphasized, the problem of an inability to refuse a patent leads to the existence of patents on old technology, imposing significant harms on the public who become unable to utilize the prior technology that they should have had the right to employ.2

While the PTO no longer operates under a registration system, that situation still exists today. The PTO—unlike many other patent offices around the world—is unable to permanently refuse a patent application. All they can do is temporarily reject it and wait for the applicant to decide if they want to keep going with prosecution. Unsurprisingly, in a system where it’s impossible to permanently get rid of an application, a large number of them eventually become patents. When correcting for procedures like continuations, the percentage of patent applications that are issued has risen, approaching nearly 100% last year—a proportion not reached since the turn of the millennium.

[...]

It’s unfortunate that the PTO and policymakers continue to fail to learn from these mistakes—particularly when the first Commissioner for Patents identified the issue over 200 years ago.


This means that we increasingly need to rely on courts and tribunals, not examiners.

In spite of fee hikes and other attempts -- more recently by Iancu -- to sabotage the Patent Trial and Appeal Board (PTAB) this tribunal is still attracting many inter partes reviews (IPRs), abolishing software patents by the hundreds each month, owing to to 35 U.S.C. €§ 101, inspired by SCOTUS and embraced by the U.S. Patent and Trademark Office (USPTO).

Michael Loney graphed/charted the numbers yesterday and said:

2018 is on course to have the lowest petition filing rate since 2013. The third quarter included the impact of SAS on institution decisions, an update to the AIA Trial Practice Guide, the departure of the PTAB chief judge and the creation of a Precedential Opinion Panel


Sometimes there are appeals and these typically swiftly affirm the Board's decisions.

As we noted here before, the EFF's Daniel Nazer and his colleageus had been asking the Federal Circuit for greater transparency in patent lawsuits, affairs, lobbying etc. (without time delays as before).

The final outcome is positive, as Nazer noted some hours ago. To quote:

In a victory for transparency, the Federal Circuit has changed its policies to give the public immediate access to briefs. Previously, the court had marked submitted briefs as “tendered” and withheld them from the public pending review by the Clerk’s Office. That process sometimes took a number of days. EFF wrote a letter [PDF] asking the court to make briefs available as soon as they are filed. The court has published new procedures [PDF] that will allow immediate access to submitted briefs.

Regular readers might note that this is the second time we have announced this modest victory. Unfortunately, our earlier blog post was wrong and arose out of a miscommunication with the court (the Clerk’s Office informed us of our mistake and we corrected that post). This time, the new policy clearly provides for briefs to be immediately available to the public.


We certainly hope that CAFC, by affirming decisions of PTAB, can undermine Iancu's agenda of weakening PTAB and broadening patent scope in defiance of the Supreme Court. Iancu appears to have adopted lawlessness, just like his boss who appointed him after he had worked for him. The EFF is rightly upset about it.

Recent Techrights' Posts

In Norway, Android/Linux Has Just Hit All-Time High (First Time Since 2020), GNU/Linux Already Very Prevalent
Despite its small population size, Norway gave us Qt and many other things
Microsoft's Mass Layoffs Very Wide-Ranging, Media Focused on Gaming Though Microsoft Mass-Firing Lawyers and "AI" Staff (Contradicting Its Supposed "Investment" in "AI")
Microsoft plans to fire almost half a thousand people in legal roles
2012 Article About the Free Software Foundation Blasting Canonical/Ubuntu Over Adoption of "Secure" Boot (Microsoft's Remote Control Over GNU/Linux Since PCs' Power-on)
By Katherine Noyes (article has since then became 404, not found)
Debian Can Dump Blind Users Because I am Not Blind
the sort of mentality we're up against
The European Patent Office Cannot Attract Proficient Patent Examiners Who Master Their Domain
They are enablers and facilitators of corruption
 
Microsoft is at 0% "Market Share" in Most Areas
Depending on the taxonomy chosen, there may be dozens of categories other than desktops and laptops
"The moment MSFT stock fails to start tumbling, that’s the beginning of another corporate giant going under."
There are far more layoffs at Microsoft than at Intel, but you would not get this impression based on Wall Street media
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 19, 2025
IRC logs for Saturday, July 19, 2025
Gemini Links 19/07/2025: Git For Authors and Filtered Antenna
Links for the day
UEFI 'Secure' Boot Abuses by Microsoft to be Brought Up in the UK High Court in 3 Months
we'll seek compensation
Russia Set to Ban Facebook?
If WhatsApp is made to "leave", that means Facebook or "Meta".
Next Year It'll Be Half a Decade Since the Fall of Freenode (and IRC is Still Doing OK)
Our IRC network is still accessible using the exact same software that ran in Windows 3.x
Lupa Will Soon Know of 3,100+ Active Gemini Capsules
And some people in the "Small Web" try to tell us that Gemini is dying?
The Slopfarms Are Taking Real News Articles and Replacing Them With Lies Generated by Machines
Bluntly speaking, Fagioli is nothing short of an online scammer
Links 19/07/2025: Techtarget to Cull 10% of Staff, New Threats to Free Press in the US (Home of Dangerous and Violent Stranglers From Microsoft)
Links for the day
Gemini Links 19/07/2025: "Climate Justice” and Forking Programs
Links for the day
What Wayland and Microsoft/IBM systemd Have in Common
focus on what IBM (Red Hat) is pushing while running over critics.
Linux Already Has About 60% of the "Market"
"When mentioning the client side," opines an associate, "it is essential to recite the list of other markets where Microsoft is negligible or a no-show. It is repetitive to do so, but it needs saying -- often."
Finland (and NATO) Must Move to GNU/Linux and Dump Microsoft Even Faster
"Microsoft is not a technology problem, it is a staffing problem."
The Microsofters We Sued Helped Microsoft Make GNU/Linux 'Expire' This Year
"Linux and Secure Boot certificate expiration"
linuxconfig.org Joins linuxtechlab.com and Others, Becomes a Slopfarm With Fake Linux 'Articles' (LLM Slop)
They contain "linux" in their domain names, but they are just slopfarms
Links 19/07/2025: Microsoft Cuts in China and Wall Street Journal Sued for Reporting on Jeffrey Epstein
Links for the day
Fascistic Policies Got 'Normalised' in 'Public Office'. Let's Not Let the Same Happen in 'Tech'.
Political discourse typically guides what's "normal" and what "good citizens" should believe/feel
Yes, Your Mastodon Instance Will Also Shut Down
Few people run a one-person instance in the Fediverse
The Demise of GAFAM Necessitates Greater and Broader Awareness
Morale at Microsoft is really bad
Free Software Foundation Reaches 75% of Funding Goal
Not bad for this "Fosschild"
Slopwatch: 7 New Examples of Fake 'Linux' Slop Pieces (Plagiarism With Misinformation)
Serial Sloppers need to be shunned
Links 19/07/2025: Kapo-berg Settles, Software Patents Challenged
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 18, 2025
IRC logs for Friday, July 18, 2025
Links 18/07/2025: Peace With PKK and Connie Francis Dies
Links for the day
Gemini Links 18/07/2025: Alhena 5.1.8 and Bornhack 2025
Links for the day
How to Top Up a "Limited Liability" With Even More Limitations (Dodging Accountability in the UK)
Some people call it a "shell game". Sometimes it's done for tax evasion purposes.
Free Software Foundation, Inc. (FSF) Inches Towards 75% of Fund-Raising Target
Will the cutoff date be extended again?
Gemini Space (or Geminispace) Grows, But Usage of Certificate Authority Let's Encrypt Drops Further
Ideally, all Gemini capsules should use self-signed certificates
Links 18/07/2025: More Microsoft Layoffs in Activision, The New Stack (Sponsored by Microsoft) Complains About Openwashing
Links for the day
Gemini Links 18/07/2025: OCC25 Gnus for Reading Usenet and RSS Feeds, Small Web Updates
Links for the day
[Meme] 9AM Meeting at Brett Wilson LLP
Brett Wilson LLP in space
Listing as Staff People Who Left the Company More Than Six Years Earlier
There are apparently no laws against that
Brian Fagioli Shovels Up LLM Slop (Plagiarism) Onto Slashdot, Then Uses Slashdot for Affirmation or as Badge of Honour
Notice how some of his latest slop is presented ("as featured on Slashdot")
Social Control Media Productivity
Snapping photos of the bone
The Law Firm SLAPPing Us For the Microsofters Lost 72% of Its Tangible Assets in the Past Year, According to Its Own Reports
That might help explain why they're willing to tolerate serial stranglers from Microsoft as clients
Slopwatch: LinuxSecurity.com Slopfarm and Slopfarms Propped Up by Google News
"As LLM slop is foisted onto the WWW in place of knowledge and real content, it now gets ingested and processed by other LLMs, creating a sort of ouroboros of crap."
Links 18/07/2025: Weather Events and Health Hazards
Links for the day
Microsoft's All-Time Low in Finland
Microsoft is in a freefall
Security: Shane Wegner & Debian statement of incompetence
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 17, 2025
IRC logs for Thursday, July 17, 2025