USPTO Demands EFF Censor Its Comments On Patentable Subject Matter

from the check-the-footnotes dept

As you know, last year the Supreme Court made a very important ruling in the Alice v. CLS Bank case, in which it basically said that merely doing something on a general purpose computer didn't automatically make it patentable. This has resulted in many courts rejecting patents and the USPTO being less willing to issue patents, based on that guidance. The USPTO sought to push out new "guidance" to its examiners taking the ruling into account. Soon after the Alice ruling, it issued some "Preliminary Examination Instructions." However, it then issued the so-called 2014 Interim Guidance on Subject Matter Eligibility and sought public comment through March 16 of this year.

Plenty of folks did comment, including the EFF. However, the USPTO apparently was offended at parts of the EFF's comment submission, claiming that it was an "improper protest." In response, the EFF refiled the comment, but redacted the part that the USPTO didn't like. Here's what page 5 of the document on the USPTO site looks like:
However, EFF also added the following footnote (footnote 8) on page 6:
On April 2, 2015, the PTO contacted EFF to request that we remove a portion of these comments on the basis that they constituted an improper “protest.” We respectfully disagree that our comments were a protest under 35 U.S.C. § 122(c). Rather, our comments discussed a specific application to illustrate our broader points about the importance of applying Alice. Nevertheless, to ensure these comments are considered by the Office, we have redacted the relevant discussion in this revised version of our comments. Our original comments remain available to the public at: https://www.eff.org/files/2015/03/18/eff_comments_regarding_ interim_eligibility_guidance.pdf.
And, of course, if you go to that link, you get the full, unredacted version of the EFF's filing.

As you can see by the full filing, the EFF filing isn't some sort of improper protest. Rather it is a clear demonstration of how the USPTO does not appear to be living up to what the courts are saying in the wake of the Alice ruling. It is difficult to see what the USPTO was thinking in trying to silence the EFF's comment. It is beyond ludicrous on multiple levels. First, it suggests a skin so thin at the USPTO that you can see right through it. Second, it suggests that the USPTO doesn't want people to recognize that its guidance is problematic in light of what actual federal courts are saying. And, finally, it suggests (still) a complete lack of understanding of how the internet and freedom of expression works, thereby guaranteeing that the EFF's complete dismantling of the USPTO's guidelines will now get that much more attention...

Has anyone patented a method and system for self-inflicted shaming for being overly sensitive to someone pointing out your flaws?



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  • icon
    Spaceman Spiff (profile), 3 Apr 2015 @ 8:13pm

    Well, I'll work on that...

    "Has anyone patented a method and system for self-inflicted shaming for being overly sensitive to someone pointing out your flaws?". I'll have to work on that! I do have one patent for adaptive computer systems.

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  • identicon
    Anonymous Coward, 3 Apr 2015 @ 8:45pm

    I think it would be extremely interesting to do an expose (at your leisure, of course) on the various political "affiliations" of key personnel at the USPTO.

    I wonder if it would reveal the same revolving-door-appointment schtick we see at the FCC?

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  • identicon
    Anonymous Coward, 3 Apr 2015 @ 8:50pm

    Its stupid, but its not that stupid. They don't want people arguing against specific patents in public comment submissions. They think if they permit that it will lead to a flood of patent protests which would suck up the resources intended for evaluating the actual comments. So they erred on the side of being too restrictive, it really isn't anything more than that.

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  • identicon
    Christenson, 3 Apr 2015 @ 8:57pm

    Streisand...or was that NSA?

    But I bet if I or the EFF had a spare ten grand, they could get a patent on that!

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  • identicon
    Anonymous Coward, 3 Apr 2015 @ 9:46pm

    Knowing full well that once more what I have to say will be met with the blunt force of TD's lack of experience in matters of practicing before the USPTO, I am disappointed that once more this site is coming to the defense of EFF staff who choose to engage the USPTO on substantive matters that implicate prosecution practice without having demonstrated any substantive knowledge of the rules governing such practice. I find it interesting that neither of the EFF's supposed experts is even admitted to practice before the USPTO, and yet they seem not to have the slightest reluctance to mock the office when it raises issues with which such experts disagree. Obviously the EFF has found a home at TD, but given its reaction as outlined in this article it is no wonder why its effectiveness in patent matters is presently marginal at best. Even if one disagrees with the USPTO, there are ways to present such a disagreement without resort to approaches such as the infantile one utilized in this instance.

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    • identicon
      Anonymous Coward, 4 Apr 2015 @ 1:34am

      Re:

      Out of touch. And reach. Well done, Sir/Madam.

      reply to this | link to this | view in chronology ]

    • identicon
      Socrates, 4 Apr 2015 @ 3:00am

      Non practicing entities

      Knowing full well that once more what I have to say will be met with the blunt force of TD's lack of experience in matters of practicing before the USPTO


      Yes, serial applicants have more experience in practicing before the USPTO than Techdirt. The implication that only those who profit from a malpractice should be allowed to criticize it is borderline funny though.

      , I am disappointed that once more this site is coming to the defense of EFF staff who choose to engage the USPTO on substantive matters that implicate prosecution practice without having demonstrated any substantive knowledge of the rules governing such practice.


      And yet EFF proves it understands Alice, and show a "patent" rejected by a federal court under Alice and does a side-by-side comparison of the refiled "patent" proving that the USPTO either doesn't understand it or perhaps even flout the Supreme court.

      I find it interesting that neither of the EFF's supposed experts is even admitted to practice before the USPTO, and yet they seem not to have the slightest reluctance to mock the office when it raises issues with which such experts disagree.


      The side-by-side comparison shame the USPTO for all to see. Perhaps that is why the USPTO invoke the Streisand effect? The purely fact based analysis is not mocking, or indeed opinion at all. The silliness is all the USPTOs.

      Obviously the EFF has found a home at TD, but given its reaction as outlined in this article it is no wonder why its effectiveness in patent matters is presently marginal at best.


      Neither EFF nor TD is a failed serial applicant. EFF and TD is simply not serial applicants at all. Their effectiveness in patent matters is thus not relevant. Perhaps they choose to have morals instead?

      If you intended to say effectiveness in limiting malpractice in patent matters, by informing decision makers and bring about such decisions as Alice, there is ample evidence that you are mistaken. Few if any have had such a positive effect.

      Even if one disagrees with the USPTO, there are ways to present such a disagreement without resort to approaches such as the infantile one utilized in this instance.


      Proving that a serial litigant, serial aplicant, refile a rejected "patent" and USPTO approve it, is not infantile. Perhaps you ment infallible?

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    • icon
      Votre (profile), 4 Apr 2015 @ 5:08am

      Re:

      Sir: Considering how badly the general public has been served by the "experts" such as yourself in this matter, perhaps it's time for the rest of the world to call bullshit on the lot of you?

      Fix the problem you've created or stand aside.

      Standing there chastising and behaving like a petulant child adds nothing of value to the discussion. Because the simple fact of the matter is, try as you may, you self-proclaimed experts no longer get to unilaterally frame the public debate. Especially since it's now become clear you yourselves constitute the major part of the problem.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Apr 2015 @ 6:16am

      Re:

      approaches such as the infantile one utilized in this instance.

      Infantile... such as whining about how no one understands the issue, but failing to provide any bit of substance to back up your assertion?

      This seems to be your basic MO on every patent story. Vaguely insult people by suggesting that you have some otherworldly knowledge that others don't have, but never actually share any of such knowledge.

      That's infantile.

      The EFF, on the other hand, appears to have supplied a TON of info -- info that the USPTO finds inconvenient. I don't see that as infantile. I see that as quite effective in making the point.

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      • identicon
        Anonymous Coward, 4 Apr 2015 @ 8:29am

        Re: Re:

        Apparently you do not understand the basic truism that being taken seriously is facilitated by not deliberately antagonizing the party you want to take you seriously.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Apr 2015 @ 10:07am

          Re: Re: Re:

          Apparently you do not understand the basic truism that being taken seriously is facilitated by not deliberately antagonizing the party you want to take you seriously.

          So what I get from you is that you do not intend to be taken seriously here, based on your regular deliberate antagonization of writers and commenters here, without ever actually adding anything of value to the conversation?

          Besides, it would appear that you do not seem to understand how effective the EFF's strategy here has been in the past, or even who it is they are trying to influence and how.

          I wonder why that is?

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          • identicon
            Anonymous Coward, 4 Apr 2015 @ 10:22am

            Re: Re: Re: Re:

            I understand the EFF quite well. I also understand that the methods it employs to try and be taken seriously detract from the likelihood that it will be succeed.

            Unless it is satisfied with being a marginal player at best, it needs to reassess its approach in matters such as this. Seems to me that some on its staff are in dire need of adult supervision.

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        • identicon
          Anonymous Coward, 11 Apr 2015 @ 8:34pm

          Re: Re: Re:

          let me rephrase what you're saying :

          "do as I say, not as I do".

          By calling out people who fuck up you're antagonistic? No, it's called accountability. You don't have an excuse if you don't do your job correctly as instructed by your own government in the case of the USPTO.

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          • identicon
            Socrates, 12 Apr 2015 @ 11:11am

            Re: Re: Re: Re:

            let me rephrase what you're saying :

            "do as I say, not as I do".

            By calling out people who fuck up you're antagonistic? No, it's called accountability. You don't have an excuse if you don't do your job correctly as instructed by your own government in the case of the USPTO.



            Poe's law ?

            1) If it is intended as sarcasm, it might be necessary to use /s to identify it as such.

            2) or intended as support of the SCOTUS decision:
            ...don't do you job correctly (USPTO)
            as instructed by your government (SCOTUS)
            in the case of USPTO (the entity flouting SCOTUS)

            If this was way you were trying to convey, you would be correct. The supreme court trumps USPTO.


            3) or intended to be anti SCOTUS / pro censure
            ...don't do you job correctly (EFF or TD)
            as instructed by your government (USPTO)
            in the case of USPTO (the recipient of the document)

            This have been refuted well. That it still is peddled might be attributed to one of Upton Sinclair's truths:"It is difficult to get a man to understand something, when his salary depends upon his not understanding it".

            Serial litigants would prefer Alice to not be in effect; and USPTO is in no position to demand documentation of USPTO's wrongdoings should be void of proofs.

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    • identicon
      Anonymous Coward, 4 Apr 2015 @ 7:35am

      Re:

      Of course you're disappointed. You make your living threatening people with vague patents. You are incapable of understanding any reality that challenges your shameful source of income.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Apr 2015 @ 8:39am

        Re: Re:

        Every one of your assumptions about my sources of income are dead wrong. My comments are motivated solely to interject what I believe to be more accurate information into discussions, whether it be an explanation of the law or the legal system.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Apr 2015 @ 10:09am

          Re: Re: Re:

          My comments are motivated solely to interject what I believe to be more accurate information into discussions

          And yet you did not do that here, so we can conclude that you are a liar. Adding more accurate information would be explaining *why* someone is incorrect -- not merely casting aspersions on people as you did here.

          If you are who I think you are, and you obviously are based on your comments, you do this all the time. You insult people regularly by insisting they couldn't possibly understand something, and yet you refuse to then provide the relevant information.

          whether it be an explanation of the law or the legal system.

          Which part of the law or legal system did you "explain" here? None. All you did was insult two exceptionally well respected EFF staffers.

          Trust me, the EFF is much more respected within the USPTO than you ever were. Perhaps that is the true source of your bitter jealousy.

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    • identicon
      Anonymous Coward, 4 Apr 2015 @ 7:47am

      Re:

      Can you link me to that patent you own on a method for saying nothing while pretending to say something?

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    • identicon
      Anonymous Coward, 5 Apr 2015 @ 5:40pm

      Re:

      Thank you Ms. Lee

      reply to this | link to this | view in chronology ]

  • icon
    Andrew "K`Tetch" Norton (profile), 3 Apr 2015 @ 9:53pm

    What is it about Patent offices and not liking comments put forth by people in a consultation? (I'm guessing something along the lines of 'exposing the flaws in the proposal they're trying to ram through')

    If you remember, I had a similar issue with the UK IPO a few years back -
    https://www.techdirt.com/articles/20120729/02544819867/uk-government-censors-copyright-consultation- submission-about-how-awful-collection-societies-are.shtml

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    • icon
      That One Guy (profile), 4 Apr 2015 @ 12:46am

      Re:

      Simple misunderstanding.

      You see, when a government agency opens up a consultation, and asks the public for comments on something, they don't actually want people to give their comments and opinions, unless they happen to align with and support the position those holding the consultation have already decided on.

      If your comment supports their position, then great, it will be held up as clear evidence that the public is on their side. If your comment does not support their position however, or worse, highlights a failure of theirs, then clearly you misunderstood the submission guidelines, or you're in the minority, or whatever other reason they need to come up with to justify ignoring and/or brushing your comment under the rug.

      In your linked example for instance, you had the utter gall to offer supporting evidence to back up your statements, and that, of course, was clearly out of line. Without that evidence, it would be easy to just brush your comment aside as the ranting of someone angry at the virtuous collection agencies, who never do wrong, however with the supporting evidence, that's much more difficult to do. As such clearly you misunderstood them when they specifically asked people to link to sources to support their statements, and they were acting properly by removing the links.

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      • icon
        edinjapan (profile), 4 Apr 2015 @ 5:48am

        Re: Re:

        Frankly who cares? The Chinese, Japanese (not so much these days) and Russians only use the USPTO as a convenient source for helping them to figure out which inventions to reverse engineer next.

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        • icon
          BernardoVerda (profile), 6 Apr 2015 @ 4:56pm

          Re: Re: Re:

          That assumes that patents are of any real use in figuring out how to accomplish anything (rather than being a legally obfuscated wall of verbiage, in which it is difficult to even ascertain what the patent actually practices, and that they're useful to anyone trying to figure out how to do something -- or even whether their own invention would infringe on some patent, somewhere.

          In most fields, those days are long gone -- and that's part of the problem.

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  • identicon
    Anonymous Coward, 3 Apr 2015 @ 10:37pm

    Read the statute?

    "As you can see from the full filing, the EFF filing isn't some sort of improper protest" is magnificently misleading. Congratulations! But the issue here isn't whether it's "some sort of improper protest" it's whether it's an "improper protest" as defined by the statute--which it likely is, since it criticizes a patent application after the application has been granted.

    There are plenty of good critiques of the guidelines; this sort of half-assed "legal analysis" does no favors to your readers. Maybe try reading the law before writing the post?

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    • icon
      That One Guy (profile), 4 Apr 2015 @ 12:31am

      Re: Read the statute?

      So, you're not allowed to criticize a patent application once they've granted it? Using what you believe to be an invalid(thanks to a semi-recent legal ruling) patent to showcase the failings of the system is unacceptable?

      Well that's certainly going to be a relief to those cramming as many junk patents through the system as they can, all they have to do is get them approved and voila, no criticism allowed, and people aren't allowed to point to your rubbish patent as an example of a problem that needs to be fixed.

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      • identicon
        Anonymous Coward, 4 Apr 2015 @ 6:15am

        Re: Re: Read the statute?

        He two from the EFF are attorneys who would like to be taken seriously. This may happen, but not until they start acting like professionals and eschew childishness.

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        • icon
          That One Guy (profile), 4 Apr 2015 @ 11:23am

          Re: Re: Re: Read the statute?

          Presenting backing evidence to support your position is 'childish' now? Providing examples of how and why someone is wrong is 'unprofessional'?

          Would you prefer their filings consist of "You're wrong on subject X, but you'll have to take our word on that, since we can't be bothered to show how you're wrong."? Yes, I'm sure that would be extremely persuasive, and be taken very seriously by the public and those that they are filing with, whether the patent office or elsewhere.

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          • identicon
            Anonymous Coward, 4 Apr 2015 @ 11:47am

            Re: Re: Re: Re: Read the statute?

            The agency asked for comments on a specific set of materials. I think it likely most professional associations responded accordingly with critiques/recommendations of the materials. But not these two rookies. No, they just had to go into matters outside the scope of the request, cite a district court case in a ham fisted attempt to criticize the agency, reject a request from the agency to remove contentious material unnecessary to be fully responsive to the request for info, etc.

            These staffers were clearly working an agenda, and the leadership at the EFF would be wise to counsel them on how to respond to agency requests in an effective and professional manner.

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            • identicon
              Anonymous Coward, 4 Apr 2015 @ 12:11pm

              Re: Re: Re: Re: Re: Read the statute?

              "These staffers were clearly working an agenda," -- Exactly. Same agenda as here at Techdirt. With same clumsy method, refuse to understand how lawyers and bureaucracies work (besides human nature) and so are doomed to fail.

              reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Apr 2015 @ 12:18pm

        Re: Re: Read the statute?

        Whether it's a good rule or not, that is what the statute says. The article implies that "improper protest" should be understood in its plain English meaning and then suggests the USPTO is trying to punish the EFF or hide EFF arguments from the public by calling p. 5 of the filing a "protest." The point is that it IS a protest under the statute. This may be a reason to say the statute is stupid, but it's not evidence the Patent Office is acting in bad faith.

        reply to this | link to this | view in chronology ]

        • icon
          saulgoode (profile), 4 Apr 2015 @ 1:41pm

          Re: Re: Re: Read the statute?

          The point is that it IS a protest under the statute.
          It seems obvious to me that the EFF wasn't filing a protest against the application. They did not serve notice to the patent applicant, they did not use the “Information Disclosure Statement" forms for filing a protest, they did not specify the filing date of the application, they did not declare that this was to be considered a first or subsequent protest, and they gave no indication that they expected their criticism of the application to be incorporated into the patent application's record.

          In their submission, they took none of the necessary or recommended steps associated with filing a protest; they were merely responding to a request by the USPTO for public comments on the proposed guidelines and chose to criticize a particular application as an example case.

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    • icon
      nasch (profile), 4 Apr 2015 @ 2:47pm

      Re: Read the statute?

      But the issue here isn't whether it's "some sort of improper protest" it's whether it's an "improper protest" as defined by the statute--which it likely is, since it criticizes a patent application after the application has been granted.

      They weren't criticizing that patent application, they were criticizing the USPTO's process, using those two applications as examples.

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  • identicon
    Anonymous Coward, 4 Apr 2015 @ 12:13am

    Totally Improper!

    As you can see by the full filing, the EFF filing isn't some sort of improper protest.

    Of course it is. Anything that points out USPTO flaws is totally improper!
    /s

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  • identicon
    Carl, 4 Apr 2015 @ 4:36am

    The USPTO has become a bureaucratic nightmare. Many years ago, I filed a number of trademarks. I'm not an attorney. The USPTO employees (clerks and attys) were always very helpful in guiding me through the process.

    More recently, my experience at USPTO has been a nightmare. It's like nobody cares anymore, non-existent customer service, terrible attitudes, the same "we can't give you legal advice" for questions that aren't remotely asking for legal advice, etc.. It's sad to see a great agency fall so far.

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  • identicon
    Anonymous Coward, 4 Apr 2015 @ 6:09am

    Perhaps who ever sent that letter wanted to invoke the Streisand effect. It certainly smacks of donning copper armor on Mountain top while yelling all thunder gods are bastards.

    reply to this | link to this | view in chronology ]

    • identicon
      Socrates, 4 Apr 2015 @ 8:54am

      Faraday cage

      A copper armor with good electrical conductivity (including the joints) would actually help a lot :-) Properly constructed it would be a Faraday cage.

      Though your point stands, as anti reality and anti science they are, they would most likely get it wrong; and then they would finally be crisp

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    identicon
    ponkyheadedcunt, 4 Apr 2015 @ 6:38am

    fridge magnets

    Cuntholes rule apparently. They are all cuntholes the cuntholes.

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    • identicon
      Anonymous Coward, 4 Apr 2015 @ 8:20am

      Re: fridge magnets -- Really, Masnick? You allow THIS and block me?

      Once upon a time, thoughtful professionals posted here, but now you're getting EXACTLY what deserve. Shows that as always, people just can't see sense when it's THEIR OWN fault.

      reply to this | link to this | view in chronology ]

  • identicon
    HMTKSteve, 4 Apr 2015 @ 6:53am

    USPTO

    When you read USPTO as United States Parent Teacher Organization all of these problems suddenly make sense.

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  • identicon
    Anonymous Anonymous Coward, 4 Apr 2015 @ 7:44am

    The Problem

    "Has anyone patented a method and system for self-inflicted shaming for being overly sensitive to someone pointing out your flaws?"

    I see the problem here. It would not be possible to write such a patent application without referencing the Streisand Effect, and that would be a copyright violation. I know Mike does not like to claim copyright over his IP, but copyright is automatic, unless one finds a way to declare specific IP as public domain, which to my knowledge has not happened. Technically even Wikipedia is in violation, but just because Mike has not gone after them, doesn't mean he couldn't.

    https://en.wikipedia.org/wiki/Streisand_effect

    /s for those with broken sarc meters!

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  • icon
    charliebrown (profile), 4 Apr 2015 @ 8:53am

    Striesand Effect

    Mike, you should patent the Striesand Effect, then turn it over to the public domain or CC0, whicherver is legal.

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  • identicon
    Anonymous Coward, 4 Apr 2015 @ 10:28am

    Uh...the USPTO, as others here have noted, did raise a perfectly valid point. A professional would have responded in an adult manner, and not with an infantile refilling of the same document with material blacked out and a snarky footnote added.

    These two EFF staffers did the organization no favor by their cutesy antics, and certainly did themselves no favor if their goal is to be viewed as serious professionals whose input is valued.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Apr 2015 @ 11:11am

      Re:

      A professional would have responded in an adult manner, and not with an infantile refilling of the same document with material blacked out and a snarky footnote added.

      Sometimes, when you want to be understood, you have to get down to the other person's own level. Given the government's love of redacted documents, it looks like the EFF was just trying to get down to the government's own level.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Apr 2015 @ 11:14am

      Re:

      How else do you deal with an infantile agency?

      reply to this | link to this | view in chronology ]

    • icon
      saulgoode (profile), 4 Apr 2015 @ 11:44am

      Re:

      According to the request for comments:

      "The USPTO is interested in receiving public feedback on all aspect of the Interim Eligibility Guidance, including the Guidance itself, the claim examples, and the training slides."

      So exactly what was the USPTO's "perfectly valid point" against the EFF's original filing?

      reply to this | link to this | view in chronology ]

      • identicon
        David, 7 Apr 2015 @ 1:19am

        Re: Re:

        So exactly what was the USPTO's "perfectly valid point" against the EFF's original filing?

        Use of profane language, where "profane" in this application shall be construed in the meaning of "common" or "laymen accessible" unless specifically indicated with a marginal or footnote, the choice among which is to be made in concordance with the amount of marginal space available for typesetting at the side or bottom of the page respectively.

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    • icon
      OldMugwump (profile), 5 Apr 2015 @ 10:11am

      Re: A professional would have responded in an adult manner, and not with an infantile refilling of the same document with material blacked out and a snarky footnote added.

      When dealing with recalcitrant bureaucrats, there is a certain advantage to being not only on the side of the angels, but on the side of the SCOTUS.

      On the merits, EFF is clearly right, and the USPTO is clearly wrong here - SCOTUS has already ruled to that effect in Alice.

      The USPTO can be sniffy about it, drag their feet, and delay things. But in the end EFF is going to get their way, because they have the SCOTUS backing them up.

      In that situation, there's some merit in going out of your way to humiliate the recalcitrant bureaucrats involved. Because you know you can get away with it. And it will teach them to take you more seriously next time.

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    • identicon
      JEDIDIAH, 5 Apr 2015 @ 1:49pm

      You are why laymen despise lawyers.

      There is nothing remotely unprofessional in pointing out that their original filing has been revised. One would certainly hope that such transparency is not unwanted in either government or the broader practice of law.

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  • identicon
    avideogameplayer, 4 Apr 2015 @ 10:50am

    [Redacted] is the way all government agencies do business these days?

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  • identicon
    Anonymous Coward, 5 Apr 2015 @ 10:35am

    With April 15th around the corner, I am certain this humiliation technique you approve will come in handy in your dealings with IRS personnel.

    Sorry, but these two at the EFF are supposed to be professionals, and as such should be conducting themselves in a manner befitting their professional status. Otherwise, whatever they have to say is likely to fall on deaf ears at every venue they attend outside of a very small circle such as this site.

    On the bright side, since they are not eligible to practice before the USPTO they do not have to worry about being disbarred for acting like truculent children.

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    • icon
      nasch (profile), 5 Apr 2015 @ 11:08am

      Re:

      I like how you keep deriding their communication as unprofessional and childish, without actually coming up with any substantive criticism of its content. It's quite telling.

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      • identicon
        Anonymous Coward, 5 Apr 2015 @ 11:14am

        Re: Re:

        What more is there to say other than they exceeded the scope of the agency's request for information, and when this was pointed out to them they resorted to a childish, unprofessional response.

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        • icon
          nasch (profile), 5 Apr 2015 @ 11:18am

          Re: Re: Re:

          What more is there to say other than they exceeded the scope of the agency's request for information, and when this was pointed out to them they resorted to a childish, unprofessional response.

          Obviously that is all you have to say, since you have said nothing else in this entire conversation. :-)

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        • icon
          That One Guy (profile), 5 Apr 2015 @ 12:57pm

          Once more with feeling:

          Providing backing evidence to support your position, and show why the other person is wrong, is not childish.

          The USPTO asked for comment on their new guidelines. The EFF submitted comments, and among their comments was supporting evidence showing how the guidelines were failing to meet the standards that the SC had set with their semi-recent ruling.

          The USPTO can whine all they like about how 'improper' that was, but if they're going to ask for comments, they, not the EFF, are the ones acting childish when they throw a fit should someone actually give them what they asked for.

          Arguments backed by evidence and examples carry much more weight than 'trust me' based ones, and both sides know it, which is why the EFF submitted examples to support their position, and the USPTO threw a fit when those examples showed that their new guidelines weren't good enough.

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      • identicon
        Anonymous Coward, 5 Apr 2015 @ 2:02pm

        Re: Re:

        Not at all "telling" to talk about their conduct without criticizing the content of their communication, unless the unstated goal of those coming to their defense is to ignore the procedure provided by law for them to raise their concerns. Hint: The request for information was not it...and they well knew that. But what the heck, it is not like they have to conform their conduct to that of all the other respondents to the request. They are, after all, the EFF, and that makes them special and not bound to play by the rules.

        My point is simple. If you want to be taken seriously by the agency, then make your submissions in accordance with federal law and agency rules, and do not go out of your way to antagonize the agency by ignoring the feedback it provides. Not sure how to say this, but it may come as a surprise to many here that the agency does have a strong base of expertise in the substantive law, and certainly much more than two relative newbies at the EFF whose experience is not particularly broad in the field of patent law. Does this mean the agency is right and the others not? Of course not, but it does mean that what the agency says should not be dismissed out of hand because you happen to disagree. There is a time and place to work out such disagreements, and this was neither the time nor the place.

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        • icon
          nasch (profile), 5 Apr 2015 @ 4:04pm

          Re: Re: Re:

          Not at all "telling" to talk about their conduct without criticizing the content of their communication,

          Since you have had so very many opportunities to rebut the EFF and have not done so, I am left to conclude that you have no argument to make against their position, and so have resorted to attacking the messengers. Note your repeated mention of the lack of experience of the authors - a classic argumentum ad hominem strategy.

          Does this mean the agency is right and the others not? Of course not, but it does mean that what the agency says should not be dismissed out of hand because you happen to disagree.

          Oh, the irony is rich.

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          • identicon
            Anonymous Coward, 5 Apr 2015 @ 4:16pm

            Re: Re: Re: Re: "Oh, the irony is rich."

            Like doing hit-and-run ad hom saying that someone else is using hit-and-run ad hom? A Latin phrase doesn't make you right.

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            • icon
              nasch (profile), 5 Apr 2015 @ 5:16pm

              Re: Re: Re: Re: Re: "Oh, the irony is rich."

              Like doing hit-and-run ad hom saying that someone else is using hit-and-run ad hom? A Latin phrase doesn't make you right.

              And your misunderstanding of it doesn't make me wrong. I have not been attacking you personally, but your comments. My arguments have not been ad hominem.

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          • identicon
            Anonymous Coward, 5 Apr 2015 @ 7:49pm

            Re: Re: Re: Re:

            It is irrelevant whether or not there is any merit to the part of their comments that were viewed as problematic by the agency because the issue is not their comments but their actions. The fact so many here seem unable or unwilling to acknowledge that perhaps the two could have handled this matter differently tells me that none of those coming to their defense are familiar with the practice of law and what it takes to effectively deal with a governmental agency.

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            • identicon
              Anonymous Coward, 5 Apr 2015 @ 10:57pm

              Re: Re: Re: Re: Re:

              An underlying message in your comments is that it is imperative for citizens outside a bureaucracy to follow the dictates of the institution...until the bureaucracy itself decides to change it. This insistence on obedience by citizens seems rather twisted. The attorneys behavior was nothing on an order that should have brought such ire, either by the USPTO, nor you, really. As one commenter has already noted, bringing up the example was illustrative of their contention that the agency was not complying with the SCOTUS decision, nut a challenge to the patent itself. I'd have thought that an attorney, of all people, would be more likely to suggest that the court's decision held greater authority and, in light of what almost seems bad faith by the agency, would be inclined to suggest that perhaps the much aggrieved agency ought, oh, I dunno, to suck it up and deal with it? I worked for many years within large governmental bureaucracies, and it puzzles me that you have spent such time defending the response of the bureaucrats, who had a hissy fit when someone came to THEIR playground and didn't do everything in the exact way they were supposed to. Really? I think maybe someone at USPTO needed a nap or something. Pretty damn cranky, if you ask me.

              Your continuing attacks here on the EFF attorneys character, without a single substantive reply (supporting the bureaucratic response of the USPTO because that's just how it's done isn't substantive) is a rather blind, misplaced loyalty. Maybe I'm old school, but I still am of a view that governmental agencies ultimately exist not for themselves, nor for attorneys that practice in front of them, at least not under a democratic system like ours.

              I would think that a less insecure, less emotionally challenged, and more nimble agency, one more respectful of the SCOTUS decision, could have chosen to accept the EFF submission, looked beyond the offending section, and moved on, like an adult, as many of us do daily with regards to a raft of things. The irate steam blowing out of their ears that you're wanting to defend, even though done by an agency, is no less juvenile because of it.

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              • identicon
                Anonymous Coward, 5 Apr 2015 @ 11:41pm

                Re: Re: Re: Re: Re: Re:

                The USPTO, as has been noted by several others in their comments, does have a basis in law for what it told these individuals Just because Masnick and the EFF attorneys believe otherwise does not make it so. There being a significant difference of opinion, comon sense and prudence as a professional dictates a strategic change in approach if your goal is effective and persuasive advocacy. Until then, the EFF will at best remain a marginal organization that is not taken seriously in matters relating to patent law.

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                • icon
                  That One Guy (profile), 6 Apr 2015 @ 1:05am

                  Re: Re: Re: Re: Re: Re: Re:

                  Given how many times in recent years the SC has slapped down the USPTO and basically told them 'Try again', the 'nice' route clearly isn't that effective. If publicly pointing out where the USPTO screwed up works, and it certainly seemed to get the attention of the USPTO here, then clearly it needs to be done more often.

                  Until then, the EFF will at best remain a marginal organization that is not taken seriously in matters relating to patent law.

                  Yeah, keep dreaming.

                  Here's a little bit of blasphemy for you: Government agencies, in this case the USPTO, can be wrong, and can screw up. And like most in positions of authority, they tend not to appreciate it when people point this out, yet that just makes it all the more important for people to do so.

                  If that takes the form of providing evidence showing that an agency is failing to follow legal rulings from a higher court, evidence that just hurts their feelings so very much, and shows how they screwed up, then tough, they're adults, they should act like it, and not throw a fit and make ridiculous claims about how providing backing evidence is some form of 'protest'.

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                • icon
                  Mike Masnick (profile), 6 Apr 2015 @ 5:56am

                  Re: Re: Re: Re: Re: Re: Re:

                  Until then, the EFF will at best remain a marginal organization that is not taken seriously in matters relating to patent law.

                  This is hilarious and shows just how out of touch you really are. I realize that folks like yourself who are against patent reform, like to believe this bit of wishful thinking, but you are very, very wrong. Keep underestimating the folks who are about to make you look incredibly silly. It's hilarious.

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                  • identicon
                    Anonymous Coward, 6 Apr 2015 @ 9:42am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I admire your loyalty to your friends, but nothing changes the fact that they responded in an infantile manner on a matter requiring a professional response. As long as they believe that their response is just fine they will be relegated to the sidelines as minor players.

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                    • icon
                      Mike Masnick (profile), 6 Apr 2015 @ 9:57am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I admire your loyalty to your friends

                      They are not my friends. I have met each of the two individuals you discuss exactly once each (in separate circumstances) and do not know either particularly well. You make bad assumptions and it makes you look like an... well, you know...

                      In the meantime, you keep insisting that their action was "infantile" or "unprofessional" -- and I don't see how or why.

                      But, honestly, the idea that EFF is considered a "minor player" in patent issues suggests a level of ignorance on your part that is astounding. I believe the term "wishful thinking" was invented for deluded folks such as yourself. I am quite sure that the "true believer" patent abuser world that you revel in would like to believe so, but having spent plenty of time with the people who are actually making some of these decisions, you are wrong. Ridiculously so. But it's funny to watch you pretend otherwise.

                      Do keep it up.

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            • icon
              nasch (profile), 6 Apr 2015 @ 7:39am

              Re: Re: Re: Re: Re:

              It is irrelevant whether or not there is any merit to the part of their comments that were viewed as problematic by the agency because the issue is not their comments but their actions.

              You want that to be the issue. I can't speak for anyone else, but to me that is at best the third most important thing about this story.

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              • identicon
                Anonymous Coward, 6 Apr 2015 @ 9:36am

                Re: Re: Re: Re: Re: Re:

                Obviously you did not understand that my comment was limited solely to how the EFF attorneys reacted when the agency informed them about a concern it had with the submittal. A pro who wanted to be taken seriously would have reacted in a markedly different manner.

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                • icon
                  Gwiz (profile), 6 Apr 2015 @ 10:15am

                  Re: Re: Re: Re: Re: Re: Re:

                  Obviously you did not understand that my comment was limited solely to how the EFF attorneys reacted when the agency informed them about a concern it had with the submittal. A pro who wanted to be taken seriously would have reacted in a markedly different manner.


                  I'm sorry. You comment has been rejected because it's an "improper protest."

                  If you want to be taken seriously, please resubmit your comment without the preconceived bias against the EFF.

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                • icon
                  nasch (profile), 6 Apr 2015 @ 10:21am

                  Re: Re: Re: Re: Re: Re: Re:

                  Obviously you did not understand that my comment was limited solely to how the EFF attorneys reacted when the agency informed them about a concern it had with the submittal.

                  I understand that perfectly. You cannot rebut the actual substance of the EFF's document, so you are limiting your comments to attacking the form of it and the authors of it instead, and desperately hoping to limit the entire conversation to that topic as well. Unfortunately for you it isn't working, but believe me we all understand what you're doing.

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                • identicon
                  Anonymous Coward, 6 Apr 2015 @ 9:29pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I think it's hilarious that when it comes to Techdirt, the EFF or anyone who doesn't have a maximalist perspective on intellectual property, you will wail and rail about how they behave.

                  But when it comes to you and your buddies spamming this site about Masnick's beef against (irresponsible, reckless, high-collateral damage) copyright enforcement, you will smear, demean and berate anyone who disagrees with shameless language, and expect to be taken seriously.

                  A pro who wants to be taken seriously would react in a markedly different manner.

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        • identicon
          Anonymous Coward, 6 Apr 2015 @ 8:21am

          Re: Re: Re:

          Ya just gotta love an apologist for bureaucracy. You don't happen to moonlight fit the VA hospital down in in Arizona, do you? I can just see you telling patients over the phone, "if you really want to be taken seriously and have a doctor treat you, you need to just shut up and come 6 months from now like I told you. And if you have a complaint there is only one way you can word it, by telling us how good the experience was."

          Or, maybe you consulted with the Portland police on their "contempt of cop" approach? C'Mon, don't be shy! Tell us, we're all dying to know, especially those of us with darker skin than the cops. We really are dying to know. Cuz like you said, if you don't want to get in the cross hairs, zip your lip, check it before you wreck it, there are consequences for impertinent things like talking back.

          Was that you waving pompoms at the recent rally for the poor, beleaguered police man? Or, maybe holding the sign that read "I ❤ bureaucracy"?

          There's a rumor going around that you provided the backing for that new genre of material called intransigence porn: "look, dear, a new film about a mean bureaucrat who forces people to submit forms in a certain way, and when they don't, makes them his sex and coffee slaves".

          Welcome to Apologists R Us! We make excuses, so you don't have to!

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        • identicon
          Anonymous Coward, 7 Apr 2015 @ 9:11am

          Re: Re: Re:

          > My point is simple. If you want to be taken seriously by the bureaucracy, then make your submissions in accordance with federal law and bureaucracy rules, and do not go out of your way to antagonize the bureaucracy

          FTFY.

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  • identicon
    Anonymous Coward, 5 Apr 2015 @ 12:36pm

    And this breaking news: Coast Guard authorities have confirmed that a luxury liner filled with lawyers sank this afternoon off the coast of Florida. The ship had been chartered and was on its way to a conference of attorneys practicing law before the USPTO when it suddenly started to list, then capsized.

    The cause of the tragedy is unclear. But authorities are looking at the possibility that the ship, the Hubris, was carrying an excess of ego. According to one unidentified member of the coast guard, "a ship of that size--it was large--but it doesn't seem to have been equipped to handle that many people with that size of a head all on deck at the same time."

    Witnesses at the scene report that those aboard flailed desperately in the water, strangely screaming "infantile" and "childish" as the liner descended below the surface, pulling the crying attorneys slowly down with it. Asked what they had done to help, witnesses said while they had wanted to jump in their boats and throw lifelines to the drowning victims, butbut did nothing out of fear they might be infringing on a lifeline patent.

    Next up, a story about an exciting new program that is training employees of a government agency not only how to drag their feet but how to stamp them as well. That when we return.

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  • identicon
    T, 5 Apr 2015 @ 2:19pm

    If Redacted, Non-existent

    The point is that if the USPTO keeps it out of the record, it doesn't exist...sort of...write your Congressman.

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  • identicon
    Anonymous Coward, 5 Apr 2015 @ 7:32pm

    out_of_the_blue and Slonecker have no idea what they're talking about.

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  • icon
    Groaker (profile), 6 Apr 2015 @ 7:00am

    Surprised and sorrowed

    That the EFF has actually redacted some of its comments. Either they were not true in the first place, or EFF has submitted to the illicit desires of the USPTO.

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    • identicon
      Anonymous Coward, 6 Apr 2015 @ 8:00am

      Re: Surprised and sorrowed

      I'm sorry, did you actually read this article?

      reply to this | link to this | view in chronology ]

      • icon
        Groaker (profile), 6 Apr 2015 @ 8:45am

        Re: Re: Surprised and sorrowed

        Reading the footnote provided by the EFF, and presented in this article, it certainly appears that the EFF did not take exception to the censorship in order to have their comments considered.

        I may have misread the footnote, as I have been know to make mistakes in reading comprehension rarely. But I suggest that you read the footnote which I have copied below. If you still disagree, then we can discuss it further.


        "However, EFF also added the following footnote (footnote 8) on page 6:
        On April 2, 2015, the PTO contacted EFF to request that we remove a portion of these comments on the basis that they constituted an improper “protest.” We respectfully disagree that our comments were a protest under 35 U.S.C. § 122(c). Rather, our comments discussed a specific application to illustrate our broader points about the importance of applying Alice. Nevertheless, to ensure these comments are considered by the Office, we have redacted the relevant discussion in this revised version of our comments. Our original comments remain available to the public at: https://www.eff.org/files/2015/03/18/eff_comments_regarding_ interim_eligibility_guidance.pdf."

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    • identicon
      Anonymous Coward, 6 Apr 2015 @ 8:00am

      Re: Surprised and sorrowed

      I'm sorry, did you actually read this article?

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 6 Apr 2015 @ 12:10pm

      Re: Surprised and sorrowed

      From how I see it, they may have 'complied' with the USPTO's demands to remove that portion, but did so in a manner that will just draw even more attention to it. They gave the USPTO what they asked for, but very much not what they wanted.

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    • identicon
      Anonymous Coward, 7 Apr 2015 @ 7:28am

      Re: Surprised and sorrowed

      Actually, EFF did not redact any of its comments. What they redacted was a list of claims comparing two patents. When the claims are taken in the context of the letter from EFF, it seems clear that the portion of the letter relating to the claim comparison was indeed a protest under 37 CFR 1.291 (MPEP 1901). Remembering that 37 CFR 1.291 is a code of federal regulations that has not, to the best of my knowledge, ever been challenged in court. For all intents and purposes, 37 CFR 1.291 is the law of the land with respect to patent protests.

      Like it or not like it, the USPTO is following the law of the land with respect to the apparent protest in the letter from the EFF. Don't blame the USPTO for following the rules set up by congress.

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      • icon
        nasch (profile), 7 Apr 2015 @ 7:52am

        Re: Re: Surprised and sorrowed

        When the claims are taken in the context of the letter from EFF, it seems clear that the portion of the letter relating to the claim comparison was indeed a protest under 37 CFR 1.291 (MPEP 1901).

        I disagree, I think it's clear they were not protesting that patent, which if I'm not mistaken is what the "no protests" rule is about. Rather they were using it as an example to point out problems with the USPTO's process. That is to say, their point was not "this patent is bad and should be rescinded", their point was "look at these two patents - you're not following the Supreme Court's ruling".

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        • identicon
          Anonymous Coward, 7 Apr 2015 @ 8:54am

          Re: Re: Re: Surprised and sorrowed

          No, it was viewed as the equivalent of a protest against an application that had just passed to issue, something that is very tightly constrained under Title 35 and implementing regulations. The fact it was being used as an "example" is irrelevant as a matter of law. As I noted in a comment to 88, perhaps you would rather have had the agency resort to the general default response of simply refusing to enter the submittal into the record and ignoring it in its totality. At least the agency tried to meet the submitter half way, which I believe is a good thing.

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          • identicon
            Anonymous Coward, 7 Apr 2015 @ 1:46pm

            Re: Re: Re: Re: Surprised and sorrowed

            If the Office accepted any protest disguised as an "example," the USPTO would be flooded with similar "examples." For better or worse, the law prohibits anything resembling a protest without following the rules of such protests.

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            • identicon
              Socrates, 12 Apr 2015 @ 10:10am

              The USPTO do not head the SCOTUS

              If the Office accepted any protest disguised as an "example," the USPTO would be flooded with similar "examples." For better or worse, the law prohibits anything resembling a protest without following the rules of such protests.


              This is untrue.

              "Protests" in the wrong venue is ineffectual. It is therefore self-limiting. USPTO may (correctly) refuse to consider it as a protest against the specific patent. EFF's document were never filed in that case, at all. The pretense that EFF's document is a protest against any single patent is quite Don Quixote-ic.

              EFF's document do prove that the USPTO is either grossly incompetent or flout the SCOTUS. The USPTO want to censure this fact. Because they tried more people know they are.

              If the USPTO can be flooded with similar proofs, it suggests that the USPTO flout the SCOTUS on purpose. There is evidence that the USPTO assumes it can meet the SCOTUS half way. That is a defiant and dangerous game.

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              • identicon
                Anonymous Coward, 12 Apr 2015 @ 5:00pm

                Re: The USPTO do not head the SCOTUS

                The way the rules are written, if it even appears to be a protest, and it was filed with the USPTO, then it must be treated as a protest. But, I am sure that you read the relevant portions of the MPEP before you posted, so you already knew that.

                The only way to accept a document with the claim comparison between two specified patents with the point being that the latter patent should not have been issued, is to get the law changed. Otherwise, EFF's intent was irrelevant, because it looked like a protest, and the USPTO treated it as such, as they are required to do.

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                • identicon
                  Socrates, 13 Apr 2015 @ 1:19pm

                  Re: Re: The USPTO do not head the SCOTUS

                  The way the rules are written, if it even appears to be a protest, and it was filed with the USPTO, then it must be treated as a protest. But, I am sure that you read the relevant portions of the MPEP before you posted, so you already knew that.

                  The MPEP is USPTO's "Manual of Patent Examining Procedure". It have no bearing on comments regarding the PTO’s 2014 Interim Guidance on Patent Subject Matter Eligibility.

                  Nor does USPTO's MPEP trumpf the SCOTUS Alice

                  The MPEP only applies to USPTO's patent examining procedures; only the patent examining procedures.


                  The only way to accept a document with the claim comparison between two specified patents with the point being that the latter patent should not have been issued,...

                  Why do you assume the singular patent were the object of EFF's document?

                  There is ample evidence to the contrary:

                  EFF documented that by Alice SCOTUS instructs a change (policy)
                  EFF documented that federal courts rule that Alice changes president (policy)
                  EFF documented that USPTO's guidance still includes court decisions that are direct in opposition to Alice (policy)
                  EFF documented that USPTO issue patents in opposition to Alice (and therefore SCOTUS) (applied policy)

                  and:
                  USPTO asked for comments on the Interim Guidance
                  EFF answered how the Guidance should change, and why
                  Even the title of the document is "COMMENTS OF THE ELECTRONIC FRONTIER FOUNDATION REGARDING 2014 INTERIM GUIDANCE ON PATENT SUBJECT MATTER ELIGIBILITY"


                  ... is to get the law changed.

                  The MPEP is not the law. It is only a Manual of Patent Examining Procedures


                  Otherwise, EFF's intent was irrelevant, because it looked like a protest, and the USPTO treated it as such, as they are required to do.

                  If this censure scandal is an indication of USPTO's level of understanding of jurisdiction (even of its own internal documents), then something has gone seriously wrong!

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                  • identicon
                    Anonymous Coward, 17 Apr 2015 @ 7:37pm

                    Re: Re: Re: The USPTO do not head the SCOTUS

                    The MPEP explains title 35 of the United States Code, which is the law, and which provides the foundation of 37 CFR and the MPEP. When I referred to changing the law, I was not referring to the MPEP, but the laws that underlie the MPEP.

                    Furthermore, it did not matter EFF's intent from the perspective of the protest portion of the letter. EFF could have called it an alien's baby by Elvis, but it still looked to the USPTO (and to many others) as a protest under the law, the rules, and the MPEP. The USPTO did what it is required to do, and treated it as an improper protest. EFF could have made its point in other ways, without hiding a protest as an "example."

                    The USPTO properly view a comparison of claims with a clear complaint about the later filed patent application as a protest, in clear understanding of its jurisdiction and internal documents. Looks like the USPTO is doing what it is supposed to be doing when it comes to improper protests.

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      • identicon
        Anonymous Coward, 7 Apr 2015 @ 8:47am

        Re: Re: Surprised and sorrowed

        To put it another way, even though what was asked to be removed could be viewed as "explanatory", it cannot be denied that it is a point by point discussion of why a pending application that has been allowed should not proceeded to issue under a reading of the law that the EFF is trying to say is the Alice holding (which is an overstatement, and thus misleading to the casual reader). This is, of course, only permitted under statutory and regulatory provisions that include a slew of requirements, some of which are included specifically to provide applicants with rights of due process (notice and an opportunity to be heard).

        Perhaps the persons here who seem unable or unwilling to understand why the USPTO responded as it did would rather the office do what is usually the response when a non-responsive or extraneous matter is raised in a submittal...simply refuse to enter the problematic document in the record and ignore it in its entirety. At least the agency informed the submitter of what it saw as a problem and afforded it the opportunity to fix it.

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        • identicon
          Anonymous Coward, 7 Apr 2015 @ 1:44pm

          Re: Re: Re: Surprised and sorrowed

          Yes, the USPTO often does just refuse to enter a document, and they may or may not inform the person submitting the document of the refusal. The USPTO was being, somewhat uncharacteristically, nice. It may be that they thought the comments without the protest portions were helpful and valuable, and wanted to keep those without violating the law.

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  • identicon
    Anonymous Coward, 6 Apr 2015 @ 10:57am

    Fingers in the Ears

    La la la, la...can't hear you!

    About the status-quo, serious bureaucrat is serious.

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  • icon
    Rich Fiscus (profile), 7 Apr 2015 @ 5:17am

    At this point, with the USPTO blatantly violating the First Amendment's guarantee of the right to petition the government for redress of grievances, the question of patent policy is the least of my concerns. Clearly they weren't interested in actually obeying the SCOTUS anyway, or they wouldn't have censored a filing which clearly shows how recent court decisions are being ignored.

    I'm much more concerned with figuring out how to send a message that censorship will not be tolerated. It occurs to me that the most effective response would be a flood of comments from other people, all revolving around the EFF's censored comparison. It wouldn't hurt to add the text of the First Amendment to the end, with the bit about petitioning the government bolded.

    reply to this | link to this | view in chronology ]


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