
The Orwellian Attack on Section 101 - grellas
https://spectator.org/the-orwellian-attack-on-section-101/
======
grellas
This may seem to be on its face another dull instance of people haggling over
fine points in the esoteric field of defining patentable subject matter.

But it is not.

It is a potentially _huge_ development and not a good one for tech startups
and innovators.

Setting aside fine points, what we have had until just the last few years in
the tech world is an insane pattern dating back to the 1990s - thanks to the
Federal Circuit Court's seriously flawed interpretation of then-existing
caselaw - by which the legal test for patentable subject matter essentially
became "anything new under the sun."

An orgy of frivolous software patents followed and this bedeviled tech
innovation for well over a decade and allowed patent trolls to run wild with
patent claims that swarmed authentic technical innovation and clogged it with
endless junk consisting of patents on what were essentially abstract ideas or
on what were long-established innovations done "on a computer" with nothing
else added and similar claims on which the lawyers feasted and the public
suffered.

Fortunately, in recent years, the U.S. Supreme Court stepped in and reined in
the Federal Circuit decisions, narrowly restricting what constituted
patentable subject matter under Section 101 of the patent laws. The _Bilski_
case started this reining-in process and many other important cases followed,
culminating most recently in the _Alice_ case. (See my elaboration of this
trend here:
[https://news.ycombinator.com/item?id=4633163#4633950](https://news.ycombinator.com/item?id=4633163#4633950))

This reining, coupled with liberal use of _inter partes_ review to allow for a
relatively swift and efficient procedure by which frivolous patents could be
challenged and swatted away, has brought some sanity back to the field in
recent years. (See my comments on this procedure here:
[https://news.ycombinator.com/item?id=16913013#16915378](https://news.ycombinator.com/item?id=16913013#16915378))

So, junk patents have become much more vulnerable to attack in recent years.
This reform has been judge-driven - primarily by the U.S. Supreme Court. It
has been an imperfect sort of reform but hugely important. The orgy of junk
software patents that so burdened the tech industry was radically curtailed.

True reform was to await an act of Congress. Congress sets the bounds of how
patent law is implemented and a clean resolution of the issues depends on its
acting to fix things definitively.

However, far from fixing things, the Senate is in the process of enacting a
bill that would radically do away with the recent Supreme Court reforms and
open the way for a new patent system that once more makes junk patents freely
grantable and sustainable.

The article I posted here is from a conservative source.

But this is an issue that is critical to all who oppose junk patents. For
example, here is EFF's take on the proposed Senate effort (known at Tillis-
Coons, after the two Senators sponsoring it):
[https://www.eff.org/deeplinks/2019/04/tillis-coons-patent-
bi...](https://www.eff.org/deeplinks/2019/04/tillis-coons-patent-bill-will-be-
disaster-innovation). For other critical commentary, see
[https://www.eff.org/deeplinks/2019/04/tillis-coons-patent-
bi...](https://www.eff.org/deeplinks/2019/04/tillis-coons-patent-bill-will-be-
disaster-innovation)

The proponents of this bill attempt to dress it up as a valuable protection of
property rights. Speaking as one who strongly supports IP rights, but also as
a lawyer who knows how rights become meaningless if lawyers are permitted to
litigate everything to death, I would suggest that this attempt to codify
within the patent law a regimen that allows virtually anything to be patented,
with few meaningful checks on what is eligible for patentability, will serve
only to arm the trolls and litigators at the expense of true innovation.

It is a disaster in the making for tech innovators and startups and ought to
be stopped. Let us hope it can be.

------
ziddoap
Reader beware:

Factual Reporting: MIXED

Country: United Kingdom

World Press Freedom Rank: UK 40/180

[https://mediabiasfactcheck.com/the-spectator-
uk/](https://mediabiasfactcheck.com/the-spectator-uk/)

[https://climatefeedback.org/outlet/the-
spectator/](https://climatefeedback.org/outlet/the-spectator/)

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As for the article, patent issues are certainly complex and ripe for reform.
Patent trolls have poisoned the well so completely that I personally think a
major course correction would be required to curb the problem.

However, it's annoying reading an article that uses emotionally charged
phrases such as _" patent snowflakes"_, in an effort to get their point
across.

