
The Patent Office is “adjusting” to a Supreme Court ruling by ignoring it - DiabloD3
https://www.eff.org/deeplinks/2020/05/patent-office-adjusting-supreme-court-ruling-ignoring-it
======
ineedasername
I like the EFF's mission, but I find many of the EFF's posts like this to be
awful and quite propaganda-like in style. They present an issue and spend time
talking about how it's bad, provoking an emotional response of anger or
righteous indignation, and leave out the most important details.

In this case, the USPTO released new guidance on how reviewers should consider
the Supereme Court's _Alice_ decision. EFF thinks this guidance is bad. They
have metrics and talking points. But the EFF fail's to deliver the single most
important information:

 _What did the new guidance say!_ \-- EFF is silent on this.

WHY? I think in this case it's because the EFF doesn't like software patents
at all. They know much of their audience feels the same way. So they don't
care about actually explaining what the new guidance says-- All they care
about is presenting metrics about increased software patent grants that show
how bad the new policy _must_ be, because it's doing what the EFF hates:
granting more software patents. I find it emotionally manipulative, and the
more time goes on the more I avoid their articles.

 _They used to be better than this._

~~~
nikitaga
This EFF release isn't about what technicalities or creative interpretations
USPTO used to avoid the complying with _Alice_ because that guidance isn't
new, what's new is a report that shows the dramatic effect of their avoidance,
and that's what the article is about.

If you really wanted to know what the guidance was, literally the first link
in TFA leads to an EFF backgrounder that explains it, including linking to the
actual source.

EFF's mission is to effect positive change in technology. If you disagree with
their views on software patents, you should expect to not like what or how
they have to say. Their mission is not to convert you, it's to drive support
and engagement for their ideals among their supporters and undecideds.

I personally do agree with them on software patents, and so I approve of their
methods because I can see that they optimize for _effectiveness_ of their
campaign, as they should.

~~~
ineedasername
The entire article is about how new guidance had a negative impact. I don't
think it's a responsible presentation of the topic if the only way you can
find out exactly what they're objecting to is by finding another article,
which you don't know whether or not it will have that very relevant
information, read it, and then link to a third piece of writing to actually
get anywhere.

The EFF clearly knows what the guidance says, it would have taken little
effort to give an abstract of it. But more and more they seem to have little
interest in generating reasoned agreement with their cause, only reflexive
support induced by anger and indignation. The cynic in me says it's because
they realized it works better, gets more donations. But regardless if their
intentions, it comes off as a bit scummy.

~~~
madaxe_again
> it comes off as a bit scummy.

And patent trolls? They’re hardworking American businesspeople? Last I
checked, their tactics were vexatious litigation, bullying, browbeating, and
buying support.

In short, if you’re going to fight a pig, you’re going to have to get in the
mud with it.

If you just stand there making reasoned arguments as to why the pig should lie
down, the pig will just look at you, shit on the floor, and continue doing
what it was doing.

~~~
hcknwscommenter
Not everyone trying to patent a computer-implemented invention is a patent
troll. Some of those applicants are actually creating a product/service. Some
of them are spending b/millions creating things that were previously not
considered possible. Should they be rewarded for the effort if in fact it is
determined to be possible?

~~~
wokwokwok
Not everyone, but statistically, the majority.

If you want to be a “good guy” patent holder, why don’t you get involved in
fighting patent trolls?

...no? Well, that’s because, unfortunately, the distinction between a troll
and a “good guy” is a fine, often blurry line.

There are other ways to monetise research, like, actually building things.

Why not try that?

~~~
patentatt
Based on my experience as a patent examiner and a patent attorney, it’s
definitely not “the majority” of applicants that can be considered any kind of
“troll.” Like many other fields and aspects of life, it’s a highly vocal and
visible minority that you’re mostly aware of, because the mundane players are,
well, mundane.

~~~
wokwokwok
[https://www.unifiedpatents.com/insights/2018/9/28/q3-2018-pa...](https://www.unifiedpatents.com/insights/2018/9/28/q3-2018-patent-
dispute-report)

> High Tech companies, both large entities and SMEs, face a disproportionate
> number of NPE-related threats as compared to other sectors.

[https://portal.unifiedpatents.com/ptab/annual-
report?year=20...](https://portal.unifiedpatents.com/ptab/annual-
report?year=2018)

I suppose, to be fair, if you are an NPE asserting a claim over what is
legitimately your invention, are you a troll?

Perhaps, since NPE enforcement is basically a game of threats and legal costs,
_you_ don’t see what is actually happening?

Opinions vary.

My position is quite simple: if you are an NPE, you’re a troll.

Use it, or lose it.

~~~
patentatt
Yeah, I pretty much agree with much of that. Just pointing out that a majority
of patents and patentees aren't really headline-grabbing or anything. Just
boring paper shuffling that will never have any impact on anyone, good or bad.

------
wegs
I like and trust the EFF, but that's not my lived experience, and so I don't
believe the stats say what the EFF claims they mean.

1) My patent lawyer, following Alice, told us to not even try for most patents
we were previously considering, because patents like that would just get
rejected. I'd believe acceptance rates have gone up, but that's because people
aren't filing as many frivolous patents.

2) The back-and-forth process with the patent office the EFF advocates for is
a really bad idea and bad deal. Big companies can hire specialists who do
this. For individual inventors, the costs here get astronomical.

Now, the bar for patents is still way too low. But Alice did bring it up. If I
had my druthers:

* The bar for patents would be high.

* The processes for applying for patents would be straightforward, quick, and easy.

There would be an appeals process, but it'd look much more like sending a
plain-language letter than one couched in byzantine process and baroque
terminology.

~~~
stefan_
So why do the drops in rejection rates line up strictly with new Patent Office
guidance? Remember, Alice was in 2014. Rejection rate didn't drop until 2019,
where it suddenly collapsed after the guidance was issued.

Individual inventors are already not applying for meaningful patents. That's
political folklore to tell a warm story around patents.

~~~
pnw_hazor
It is completely understandable that Alice rejections will go down as new
guidance is provided. This is because people drafting patents react to the
same new guidance and draft patents accordingly.

Guidance documents often come with examples, language from the Alice-
overcoming examples will be included in patent applications and in arguments
against Alice rejections. Often, word for word if possible.

Note, there have been several rounds of 'new guidance' since Alice came down.
Most of them (maybe all?) include examples from courts showing claims
invalidated under Alice and examples claims that made it past Alice in court.

It doesn't take that much effort to draft patents or arguments that match the
good examples. Note, this doesn't change the scope of the inventions, it
simply puts magic words into applications or claims to get around Alice if
needed.

~~~
hcknwscommenter
You almost got it. SO close. But you are completely wrong about the following
"this doesn't change the scope of the inventions, it simply puts magic words
into applications or claims to get around Alice if needed."

This is wrong. The scope of the claims that result post-alice are completely
different. And this is something the EFF post simply ignores. Just think about
it. YOu are an inventor and invent some amazing new idea in the year 2000 like
location track a plurality of requests for transportation, location track a
plurality of transportation providers, use a novel form of graph theory to
optimally match requests with providers with an optimized price that maximizes
utility for driver and requestor (think uber-like service). You try to patent
that. The patent office POST_ALICE says NOOOOO!!!!! That's just a concept.
Abstract concepts are not patentable. But you, you smart cookie, you know that
there are only a few practical ways to have a sufficiently fast database-
lookup architecture to actually implement this at scale and that
implementation and all its details is what you actually patent. Because you
had the guidance, you knew what you could get and you went for it.

~~~
pnw_hazor
Alice was about subject matter, not novelty. The Alice game was
drafting/amending claims to look more like a machine. I talk about it more
below in my response to your other comment.

Often that can be accomplished by including claim language that doesn't limit
the novel aspects of the invention. In other words, prior art is not a really
a consideration when getting over a 101 rejection.

------
johnnyo
Not sure what the EFF is trying to get at here.

After the decision, it says rejections rose 31%, but now they have fallen back
down.

The EFF contends this is because the Patent Office is ignoring the law, but
they don't offer any evidence to back up this assertion. Another likely
explanation is that patent applicants are adjusting their applications to be
in line with the decision, and thus the rates have gone back down.

This assertion by the EFF would only make sense if patent applicants didn't
know about the rule change. But applicants do know, and have adjusted their
applications accordingly in the intervening time.

~~~
stefan_
This article is just missing two pictures to tell the story.

Rejection rates immediately after Alice (2014):
[https://imgur.com/veW7vQ7](https://imgur.com/veW7vQ7)

Rejection rates immediately after new Patent Office guidance (2019!):
[https://imgur.com/ylqD5sx](https://imgur.com/ylqD5sx)

Apparently patent applicants were entirely unable to to adjust their
applications in line with the decision for a whole 5 years where rejection
rates were consistently >30% (and rising!). Then, immediately after new
guidance, they all "get it" and rejection rates drop below 20%?

Remember, guidance is just a summary of applicable law and precedent. It is
training material. If there is a significant change in rejection rates, it
means Alice was somehow misapplied for 5 years and no one ever meaningfully
contested it.

~~~
PeterisP
I definitely can imagine that after the Alice decision many patent lawyers
would still intentionally try to push through applications contrary to the
court decision - if there's a reasonable chance that it might get through, and
you can afford it, why not try it? Any actual change in patent application
behavior would come only when the Patent Office would assert that yes, they
mean it, and they will deny these applications, and they did it only in 2019
(and issued the guidence along with it).

So yes, your suggestion that "it means Alice was somehow misapplied for 5
years and no one ever meaningfully contested it" seems quite plausible for me,
it's not easy to meaningfully contest it (you need an actual situation where
such a misapplied patent gets abused and gets contested) and it takes years to
do so.

~~~
pnw_hazor
One of the problems with Alice is that it provides very little useful guidance
to anyone. The EFF argues that Alice invalidates all software patents. Others
argue that it doesn't. In fact, the only sure thing the SCOTUS said in Alice
was that they are not invalidating all software patents just the bad ones,
while providing no workable standard for distinguishing the bad from the good.

While the majority of Justices agreed that the Alice patent was invalid, a
majority did not sign on to one opinion. There were multiple concurring
opinions that agreed on the result but not the reasoning. The decision
provides at best an "I'll know it when I see it" standard.

To say, lawyers are deliberately or intentionally acting contrary to the
decision is not accurate. Lawyers will work to draft patents that comply with
Alice, and they will argue that the applications they draft comply with Alice.

Unfortunately, very little in the Alice decision can be used to reason for or
against any particular patent because it is so incoherent.

------
D13Fd
Clear guidance is a good thing.

Clear guidance should result in fewer rejections, because with good guidance
fewer people should be filing bad applications to begin with.

The real test will be whether the applications that issue survive challenges
in the courts. The courts do not consider the PTO's guidelines in determining
whether the patents are valid.

In other words, the PTO can't change the actual standard. All they can do is
reject patents that don't meet that standard, and if they fail to do so, the
patents will be found ineligible by the courts when they are asserted.

The PTO's guidance is only useful in helping attorneys and examiners shepherd
through patents that will then be tested in the courts. Bad patents will still
be shot down if they survive the PTO (as they should be).

In short, I love the EFF but I'm not sure why they are complaining about this.

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Simulacra
1500 is not a lot of people. If that’s the best EFF can come up with on its
mailing list then I think this may be an issue they should rethink. Not that I
disagree, I completely agree, but it doesn’t seem like they are going about it
the right way.

~~~
jagged-chisel
1,500 out of how many who interact with the USPTO for some reason (e.g. filing
a patent [via attorney], researching patents, etc.)? I can't expect large
portions of the general population know enough about the patenting process (or
even patents in general) to contact the USPTO over this issue.

------
bchociej
Edit: new guidance is from 2019 so my comment is not relevant, but we haven't
had a chance to analyze much published data from this period anyway

~~~
slaymaker1907
The new guidance came out in 2019.

------
pnw_hazor
"...examiners practically never make final rejections based on Alice. "

I beg to differ. I have seen cases that get multiple final rejections based on
Alice. Usually based on garbage reasoning.

Alice was such a terrible holding -- it was based on a crappy patent so we got
bad law. Well drafted and well prosecuted patents don't often end up in court,
let alone in the Supreme Court.

Over coming Alice is/was easy if the patent application was drafted after the
first Alice based rejections came out. That is an indication of the weakness
of the holding, including meaningless details or structure in the form of
"magic words" often could get around early Alice rejections.

Until recently, the main driver for stubborn Alice rejections were particular
art units that seemed to have an informal policy to never let anything
through.

~~~
unsrsly
Interesting. My sense is that valuable patents end up in court almost 100% of
the time (e.g. CRISPR).

~~~
pnw_hazor
Generally, if the patent is high quality, people settle because there isn't
much to argue about. At most they do some preliminary hearings (claim
construction) and then to a summary judgment hearing.

The Alice case opened the door for awhile because practically any
tech/computer related patent had a good change of being invalidated at summary
judgment.

I don't practice in bio so I am not familiar with CRISPR patents.

