Name: The Patent Office Is “Adjusting” to a Supreme Court Ruling by Ignoring It
Brand: eff.org
SKU: eff-org-95
Availability: OnlineOnly

critic

The Patent Office Is “Adjusting” to a Supreme Court Ruling by Ignoring It

preview

Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItIn 2014, the Supreme Court decided the landmark Alice v. CLS Bank case. The Court held generic computers, performing generic computer functions, can’t make something eligible for patent protection. That shouldn’t be controversial, but it took Alice to make this important limitation on patent-eligibility crystal clear.Last year, the Patent Office decided to work around that decision, so that the door to bogus software patents could swing open once again. The office issued new guidance telling its examiners how to avoid applying Alice. In response to that proposal, more than 1,500 of you the Patent Office to re-consider its guidance to make sure that granted patents are limited to those that are eligible for protection under Alice. Unfortunately, the Patent Office wouldn’t do it. The office and its director, Andre Iancu, refused to adapt its guidance to match the law, even when so many members of the public demanded it.Now, the Patent Office has issue a , “Adjusting to Alice,” that summarizes the results of its revised guidance on patent eligibility. What do those results show? That examiners are granting more patents and rejecting fewer, than they did when they were following Alice. For example, the Patent Office touted a steep decline in the likelihood that a patent application will receive a first (or preliminary) rejection for lack of patent-eligibility. According to the report, the likelihood of a first rejection on these grounds rose by 31% in the first year and a half after Alice, but has fallen by 25% in the year since the Patent Office issued its revised guidance. The Patent Office is practically back to applying the pre-Alice patent-eligibility standards. In simple terms: they’re ignoring Alice.The Patent Office seems proud of this fact, but lax standards are nothing to brag about. Increased eligibility rejections are a good thing because they mean that patent examiners are filtering out patents that shouldn’t be issued. Such rejections also promote improvements in patent quality and clarity, since applicants can amend their application and make it better. The Patent Office should be encouraging examiners to issue rejections like these. They will improve the clarity of granted patents, and the public’s ability to understand their scope. That gets us closer to the patent system’s intended purpose of promoting innovation.People who care about promoting innovation should be concerned that the Patent Office’s report includes only first rejections. Why isn’t the Office measuring the impact of its guidance on final rejections? Because there is none: examiners practically never make final rejections based on Alice. First rejections are important because they are the only mechanism the public has been able to trust examiners to use to prevent ineligible patents from issuing. That makes these results especially troubling: if the Patent Office isn’t issuing first rejections based on ineligibility, it isn’t issuing any. As a result, the public has no reason to think a granted patent should pass muster under Alice.In 2016, the Director of the Patent Office to “focus on enhancing patent quality” and to “improve patent quality for the benefit of all.” Unfortunately, the Patent Office’s Adjusting to Alice report completely ignores the impact of its new guidance on the clarity or quality of issued patents. Based on the Patent Office’s report, all that matters is “certainty”—i.e., the certainty that an application will be granted, and that a patent will be issued. That kind of certainty may be good news for patent applicants and those who make money off granted patents, but it’s bad news for everyone who builds, makes, and uses products in fields like software, that are entangled in patent thickets.For people who work with technology, the Patent Office’s self-congratulatory report is bad news. It means there will be more abstract software patents, and more patent trolls who exploit them. We hope the Patent Office changes course. Until it does, anyone accused of patent infringement should be aware: there’s no certainty that granted patents have passed even the most basic test for eligibility. And courts should know that in many cases, they will have to step up and do what patent examiners should be doing: apply Alice fully and fairly to patents claiming computer-implemented “inventions.” &nbsp;&nbsp;&nbsp;&nbsp;Share ItA recently introduced patent bill would authorize patents on abstract ideas just for including computer jargon, and would even legalize the patenting of human genes. EFF wants you to take action against this bill.Finding people near you with shared interests, and talking to them, has a very long history in human culture. We’re social animals. We need to find other people close to us to work together with, play games with, and build relationships and families with. Modern online social networks are built...EFF and the the are seeking to unseal a host of court records documenting a patent dispute between Google and Uniloc, a prolific patent litigant.Secrecy pervades the entire record in Uniloc v. Google. When Google filed a motion to dismiss the lawsuit, the parties...The joy of tinkering, making, and sharing is part of the human condition. In modern times, this creative freedom too often is stifled by secrecy as a means of monetization - from non-compete laws to quashing people’s right to repair the products they’ve already paid for.Adam Savage—the maker extraordinaire best...At EFF, we’ve always stood up for the freedom to tinker and innovate. Unfortunately, our patent system doesn’t promote those freedoms. In some areas, like software, it’s causing much more harm than good. And the system is rife with patent trolls: companies that are focused on licensing and litigating patents,...WASHINGTON, D.C.— On Monday, December 6, at 10 am ET, the Electronic Frontier Foundation (EFF), standing up for public access to courts and transparency in patent litigation, will urge a panel of judges to unseal documents that a notorious patent troll is trying to hide. At a federal appeals court...The U.S. Patent and Trademark Office (USPTO) grants more than 300,000 patents each year. Some of those patent grants represent genuine new inventions, but many of them don’t. On average, patent examiners have to spend on each application. That’s not enough time to get it right....Through curious conversations with some of the leading minds in law and technology, we explore creative solutions to some of today’s biggest tech challenges. Listen to EFF's podcast, How to Fix the Internet, today.Even people who get sued over patents often can’t figure out who is demanding money from them. We’re glad to see the issue of patent transparency come back to Congress, in the form of a recently introduced bill called the “Pride in Patent Ownership” Act. However, because the bill lacks...Led by a group of senators that spent much of 2019 , the U.S. Patent and Trademark Office (PTO) has agreed to study the “current state of patent jurisprudence.” The make it clear that its proposers...Share It

Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItIn 2014, the Supreme Court decided the landmark Alice v. CLS Bank case. The Court held generic computers, performing generic computer functions, can’t make something eligible for patent protection. That shouldn’t be controversial, but it took Alice to make this important limitation on patent-eligibility crystal clear.Last year, the Patent Office decided to work around that decision, so that the door to bogus software patents could swing open once again. The office issued new guidance telling its examiners how to...

public

Alex Moss

We're the Electronic Frontier Foundation. We defend your civil liberties in a digital world.

The Patent Office Is “Adjusting” to a Supreme Court Ruling by Ignoring It

No article scores yet.

CRITIC REVIEWS

PUBLIC REVIEWS