US Patent Office: Supreme Court Made Us Reject More Patents, But We've Now Fixed That And Are Back To Approving Bad Patents

from the say-what-now? dept

One of the most important Supreme Court rulings in the patent space is the so-called Alice ruling in 2014 which should have effectively spelled the end of software patents (even though the ruling doesn't exactly say that). The ruling just says that you shouldn't get patents on software that "does no more than require a generic computer to perform generic computer functions." As we noted at the time... that's basically all software that is found on computers and personal devices. Sure, there may be some specialized machines, and, fine, let them get patents. But based on this ruling, nearly all software patents should be rejected.

And, for a little while it seemed like that was happening. There were stories of the Patent Office rejecting a bunch of patents based on this ruling and things seemed to be heading in a good direction. Bad patents for generic software were not being allowed. But something changed. Indeed, after a general plateau in patents granted after Alice, patents started to go back up again.

While some patent system supporters have been claiming that various Supreme Court decisions, such as Alice, have destroyed their ability to patent their non-patentable concepts, reality shows that the PTO has continued approving plenty of awful patents.

And, now we know why. The US Patent Office has just released quite an eye-opening report regarding how it responded to the Alice decision entitled Adjusting to Alice. The TL;DR summary: "After Alice we started rejecting a lot more patents, but then Patent Office bosses issued "new guidance" that effectively overruled Alice, and we're back to approving bad patents again!"

They didn't quite put it that way, but that seems to be the clearest interpretation of the report. First, they say what happened after the Alice decision:

The likelihood of receiving a first office action with a rejection for patent-ineligible subject matter increased by 31% in the 18 months following the U.S. Supreme Court decision in Alice Corp. v. CLS Bank International in 33 “Alice-affected” technology areas.

For these technologies, uncertainty in patent examination — measured as variability in patent subject matter eligibility determinations across examiners in the first action stage of examination — increased by 26% in the 18 months following the Alice decision.

But have no fear patent trolls, the USPTO stepped in with "guidance" and magically the number of patent rejects quickly dropped.

One year after the United States Patent and Trademark Office issued its January 2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG), the likelihood of Aliceaffected technologies receiving a first office action with a rejection for patent-ineligible subject matter had decreased by 25%.

Uncertainty in patent examination for Alice-affected technologies decreased by 44% in the 12 months following the issuance of the 2019 PEG.

Apparently, the Patent Office thinks it gets to overrule the Supreme Court with "guidance." How about that? The charts are pretty clear. After the Alice decision, patent examiners (understanding the Supreme Court's clear statement regarding these kinds of patents) started issuing rejections more frequently, stopping unpatentable subject matter from getting patents (which is a good thing):

Then, in early 2019, the Patent Office issues "guidance" that more or less tells examiners to start approving these kinds of patents again and, voila, the number of initial rejects declines massively

And then look back up at the chart showing total patents granted in 2019 and you can see why the number of patents shot up so much. This is a massive problem and seems to be the Patent Office deciding that it can write its way around the Supreme Court in order to go back to approving bad patents. That's bad on any number of levels, but will almost certainly lead to more patent trolling in the next few years that will stifle all kinds of innovation.

Filed Under: guidance, patent trolls, patentable subject matter, patents, software patents, upsto
Companies: alice, cls bank


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  1. icon
    Anonymous Anonymous Coward (profile), 27 Apr 2020 @ 8:04am

    Constitutional crisis in the making

    The question now is how do we get the USPTO to follow the directions the Supreme Court laid down, rather than what appears to be direction from the Executive. Courts don't have enforcement powers, but I doubt they could rely on the DoJ to follow up anyway.

    I have never heard of the Supreme Court issuing a contempt of court ruling, but I suppose they could. It would certainly be interesting for such an order to be issued against the person in charge of the Executive. It would be even more interesting to see someone try to enforce that ruling. Who would they get, Capitol Police? What other options are there?

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

  2. icon
    That One Guy (profile), 27 Apr 2020 @ 8:37am

    'Oh them? We just ignore them, so much useless noise.'

    Someone really needs to slap the people running the USPTO down it seems, as their egos have apparently reached the point where they consider US Supreme Court rulings as little more than purely optional guidelines.

    Firing and blacklisting the entire upper ranks of the agency and making it clear that the same will happen if their replacements don't fall in line would probably be a good start, though with arrogance and/or corruption like that in play it might take a few purges to get the rot entirely out and make the lesson crystal clear.

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

  3. icon
    Samuel Abram (profile), 27 Apr 2020 @ 8:48am

    Abuse of power

    I think ever since Trump was acquitted of impeachment, he feels he was given carte blanche to violate any and all law he can. This is basically a dictatorship.

    (For those who feel like I'm unnecessarily inserting Trump into this discussion, the USPTO is part of the executive branch, of which Trump is the head, so it's not irrelevant)

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

  4. icon
    aerinai (profile), 27 Apr 2020 @ 8:50am

    As a software developer, do I have 'standing' to sue?

    The biggest problem I see with this is getting a court to take up a case to slap them down. We will have to wait for these shit patents to be used to 'sue' someone, then that person has to get it appealed all the way through their district, THEN another suit has to happen in ANOTHER district that has the OPPOSITE conclusion before the Supreme Court will hear this again to tell them to cut it out... but given the brazen disregard for "settled law" lately, who knows what they would rule this time.

    Kinda wish there was a faster way to get this re-litigated than waiting half a decate, but until then... RELEASE THE TROLLS!

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

  5. icon
    PaulT (profile), 27 Apr 2020 @ 9:40am

    Re: Abuse of power

    "I think ever since Trump was acquitted of impeachment, he feels he was given carte blanche to violate any and all law he can."

    That's rather generous, not least because he wasn't acquitted until it got to the senate - he was impeached by congress.

    But, he's clearly been picking and choosing what he can violate. He's been gaming the system by installing sycophants and family members, or refusing to fill necessary vacant positions since he took office. He's committed actions weekly, sometimes daily, that would have been major scandals under previous administrations,and doing that since day one.

    Whatever you think he's doing, it's certainly not new. It may seem more obvious recently that he's demanding such things, but I think that's due more to the realisation setting in that he dropped the ball on dealing with the pandemic that's destroyed the economy he pinned his legacy on, than the impeachment result.

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

  6. icon
    Wyrm (profile), 27 Apr 2020 @ 10:09am

    Re: As a software developer, do I have 'standing' to sue?

    Except, in patent litigation, there is nearly no other district than that infamous East Texas district that is so biased towards patent holders.

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

  7. icon
    OldMugwump (profile), 27 Apr 2020 @ 10:54am

    Re: Abuse of power

    I don't think the USPTO's reaction to Alice has anything to do with Mr. Trump.

    For once, can we leave him out of this?

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

  8. identicon
    Anonymous Coward, 27 Apr 2020 @ 10:56am

    Or maybe patent attorneys are writing more detailed and better claims that are not abstract.

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

  9. icon
    Samuel Abram (profile), 27 Apr 2020 @ 11:03am

    Re: Re: Abuse of power

    I don't think the USPTO's reaction to Alice has anything to do with Mr. Trump.

    For once, can we leave him out of this?

    Except, like I said before, that the USPTO is part of the executive branch of the Federal United States Government, of which the President, who is currently Donald John Trump, is Chief Executive Officer.

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

  10. identicon
    Anonymous Coward, 27 Apr 2020 @ 11:04am

    Re: Abuse of power

    This is an unnecessary insertion: this sort of thing has happened under every administration I can remember.

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

  11. icon
    Samuel Abram (profile), 27 Apr 2020 @ 11:18am

    Re: Re: Abuse of power

    I'm listening…What other administrations did this sort of flouting of SCOTUS rulings happen? Please offer receipts.

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

  12. identicon
    pegr, 27 Apr 2020 @ 11:26am

    Why not?

    If the BATF can do it, why not the USPO?

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

  13. icon
    Thad (profile), 27 Apr 2020 @ 11:36am

    Re: Re: Re: Abuse of power

    That doesn't mean he has any idea what's going on there. Does he strike you as a man who's aware of the day-to-day dealings of the various agencies within the Executive Branch? Because he strikes me as a man who couldn't even name more than two or three of them if you asked him.

    It's ultimately his responsibility, of course, because he is the president, and the buck stops with him no matter how much he bellyaches about how everything that goes wrong in his administration is somebody else's fault. But the USPTO strikes me as most likely an organization that's going on its merry way without much oversight from the boss.

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

  14. icon
    Thad (profile), 27 Apr 2020 @ 11:43am

    Re: Re: Abuse of power

    I think perhaps it's gotten worse since his acquittal; whatever restraint he had before impeachment (and clearly there wasn't much -- he did get impeached, after all) is gone now.

    If he manages to get a second term, it's going to be even worse.

    That said, I'm with OldMugwump: I really doubt Trump knows or cares what the USPTO is doing.

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

  15. icon
    Mike Masnick (profile), 27 Apr 2020 @ 11:55am

    Re:

    That gets a funny vote.

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

  16. icon
    Anonymous Anonymous Coward (profile), 27 Apr 2020 @ 11:58am

    Re: Re: Re: Re: Abuse of power

    I have a feeling that some of his corporate buddies...ah...contributors might have put a bug in his ear when they had trouble getting their government granted monopolies.

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

  17. icon
    Samuel Abram (profile), 27 Apr 2020 @ 12:03pm

    Re: Re: Re: Re: Abuse of power

    Those are actually good points, Thad. And not the type that people gloss over when I addressed them in the initial post.

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

  18. icon
    ECA (profile), 27 Apr 2020 @ 12:15pm

    HOw stupid can this get.

    Lets make a program that has all the patents in it, and with descriptions, and Annotations, and Explains the basic of the patent..
    This way we can insert Info and data, and see if it can/will list all those patents or the ones pertenent to the NEW one being filed.

    Assumption:(addumbsion)
    Taking every book that has ever been made with Every language, and sorting them out.
    NOW describe the book of what you want..with NO NAMES of authurs or titles..
    Looking up history, and a date, you will get ?????(count them) list of books that meet that criteria. NOW how to sort that, Nation? Country, Area?, according to the life of 1-2 persons? How about the Swords used? Castle style?

    Either way its convoluted and time consuming, and how many people do you have to do the Look up?

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

  19. identicon
    Anonymous Coward, 27 Apr 2020 @ 1:05pm

    Re: HOw stupid can this get.

    How many people need to be taught that on a computer is not patentable. That should be easy enough to remember.

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

  20. icon
    Anonymous Anonymous Coward (profile), 27 Apr 2020 @ 1:11pm

    Re: Re: HOw stupid can this get.

    "How many people need to be taught that on a computer is not patentable."

    Well, the USPTO bosses for a start.

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

  21. identicon
    Anonymous Coward, 27 Apr 2020 @ 1:12pm

    Re:

    Weird that they waited for years before suddenly trying this brilliant idea.

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

  22. identicon
    Anonymous Coward, 27 Apr 2020 @ 1:13pm

    Re: Constitutional crisis in the making

    "Constitutional crisis in the making"

    What - another one?

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

  23. identicon
    Anonymous Coward, 27 Apr 2020 @ 1:53pm

    Re: Re: Abuse of power

    Maybe we can leave him out, maybe we can't. He has, one must recognize, created an atmosphere where limits are generally considered to be quaint constructs erected simply to be violated. It's trickle down, working at last!

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

  24. icon
    Bergman (profile), 27 Apr 2020 @ 3:33pm

    Re: Constitutional crisis in the making

    Technically, we don't need to get the USPTO to obey the court. After the ruling, all the patents they issue that violate the order are illegal.

    You can't successfully sue someone for doing something a supreme court ruling says isn't against the law.

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

  25. icon
    Bergman (profile), 27 Apr 2020 @ 3:35pm

    Re: Re: Abuse of power

    An impeachment is like a grand jury indictment, with the House of Representatives acting in place of a grand jury. It all sounds scary and legalistic, but it's not really any different from a county DA filing charges - just being charged is nowhere near the same as being convicted.

    The Senate are the judge and jury. And they acquitted Trump.

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

  26. icon
    Bergman (profile), 27 Apr 2020 @ 3:38pm

    Re: As a software developer, do I have 'standing' to sue?

    You could always try suing for declaratory judgment of non-infringement.

    Of course, you might also be able to simply ignore bad patents issued after the SCOTUS ruling - if the Court says USPTO cannot grant certain types of patents, did they REALLY grant one or just imagine it?

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

  27. icon
    Thad (profile), 27 Apr 2020 @ 3:43pm

    Re: Re: Re: Re: Re: Abuse of power

    It's certainly possible, but this isn't exactly new behavior for the USPTO, either.

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

  28. icon
    Anonymous Anonymous Coward (profile), 27 Apr 2020 @ 4:35pm

    Re: Re: Constitutional crisis in the making

    With the bogus patent in hand the holders could accuse infringers they will still wind up spending money and time in court till a court says the patent is invalid. That is if they do. The really sad part is that until someone is sued they won't have standing to object to the patent issued, bogus or not.

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

  29. icon
    nasch (profile), 27 Apr 2020 @ 4:48pm

    Re: Constitutional crisis in the making

    This reveals a weakness in the US system. The judicial branch is supposed to be a check on the executive, but they aren't given any real authority to do it, because if the executive ignores the judicial, there is nothing the court can do about it. I'm guessing it never occurred to the founding fathers that Supreme Court decisions would just be blatantly ignored. Or maybe they figured the voters would take care of the problem.

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

  30. icon
    Thad (profile), 27 Apr 2020 @ 4:59pm

    Re: Re: Constitutional crisis in the making

    Or maybe they figured the voters would take care of the problem.

    Or that if the House impeached a transparently corrupt president, the Senate wouldn't protect him on partisan grounds.

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

  31. identicon
    Anonymous Coward, 27 Apr 2020 @ 5:07pm

    Perhaps this is Mr. Andrei Iancu's way of sending a little future work to his IP lawfirm pals at Irell & Manella LLP

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

  32. identicon
    Anonymous Coward, 27 Apr 2020 @ 5:42pm

    Re:

    The last "patent troll" article was March 12th of this year, so... I have no idea what you're talking about. Detailed bullshit doesn't suddenly stop being bullshit. I'd argue it's even worse because lawyers in particular are extremely skilled in the art of writing a lot but saying nothing.

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

  33. identicon
    Anonymous Coward, 27 Apr 2020 @ 5:51pm

    Re: Re:

    Did you expect anything out of Slonecker besides simping that would put most beta cucks to shame? If Masnick had put a name down Slonecker would be waving his arms, harrumphing and insisting that Masnick had irreparably smeared someone he knows and holds in religiously high esteem, and admit his daily prayers for Shiva Ayyadurai to rape this site a new asshole.

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

  34. identicon
    Glenn, 27 Apr 2020 @ 6:16pm

    More patents = more money for the USPTO

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

  35. icon
    PaulT (profile), 27 Apr 2020 @ 11:31pm

    Re: Re: Re: Abuse of power

    "I think perhaps it's gotten worse since his acquittal; whatever restraint he had before impeachment (and clearly there wasn't much -- he did get impeached, after all) is gone now."

    Yes, but as I mentioned I don't this that it's the acquittal that caused that, but the events afterwards. He was clearly gearing for a big campaign where he attacked the democrats for wasting everyone's time (ignoring that it wasn't, but as with the overall Russia probe he would pretend nothing came of it because they didn't get him directly, even though there was a huge amount accomplished). The main tentpole of this campaign would be the economy.

    However, COVID-19 was rearing its head even as he was starting this. That's why his reaction was so poor - if the virus remained in China, the US economy would benefit and he would be able to boast about that. As it started to become a pandemic, he knew that any proactive measures would have a damaging effect on the economy. So, he chose to gamble, hoping that the pandemic would somehow not affect the US too much and he could coast on the economy.

    Obviously, that gamble backfired, big time. It's why he's alternating between pushing idiotic advice and quack remedies, and claiming everything was the fault of WHO and/or China during his depressingly stupid briefings. He's a desperate man hoping for a miracle. That's why there's no restraint - not because he's emboldened by the acquittal, but because even he knows he fucked up with everything from firing the pandemic team to refusing to take action when he had the chance, and everything now is an even more desperate gamble to save the economy before the voting stations open.

    It doesn't help that he's effectively had it confirmed that nobody's going to hold him responsible for things that would have called for immediate impeachment for any previous president, but I honestly think most decisions made right now are due to panic, not boldness.

    "If he manages to get a second term, it's going to be even worse."

    I shudder to think how that can happen, but then I didn't think there would be a loophole big enough to get him in the first time, yet he found one.

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

  36. icon
    PaulT (profile), 27 Apr 2020 @ 11:33pm

    Re: Re: Re: Abuse of power

    I might be mistaken. I was under the impression that this would be more like lower courts convicting, but then the supreme court opting to rule differently. That is - the person has still been tried and convicted, but this was overturned by the higher courts.

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

  37. icon
    JoeCool (profile), 28 Apr 2020 @ 5:32am

    Re: Re: Re: Re: Abuse of power

    I like to think of it as the punishment phase of a major trial. The House found him guilty, then it was the Senate's turn to decide the punishment... in which they decided to do nothing.

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

  38. identicon
    Anonymous Coward, 28 Apr 2020 @ 5:51am

    Re: Re: Re: Re: Re: Abuse of power

    I like to think of it as them admitting to the American people that they are corrupt as hell.

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

  39. icon
    nasch (profile), 28 Apr 2020 @ 8:14am

    Re: Re: Re: Re: Re: Abuse of power

    In the face of confusion, perhaps it's best to stick to what happened rather than analogizing. The House impeached him, and the Senate voted not to remove him from office. And IMO it's important to remember that impeachment is fundamentally a political process, not a judicial one.

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

  40. icon
    Thad (profile), 28 Apr 2020 @ 8:57am

    Re: Re: Re: Re: Abuse of power

    I think there are a couple of separate things going on.

    One is the brazen corruption -- things like immediately reassigning Vindman, his brother, and Sondland, as soon as the impeachment trial was over. That is, unquestionably, due to Trump feeling he can get away with anything, post-impeachment.

    His botched response to COVID-19 is a related issue but I see it as more a matter of his total incompetence than his corruption. Both, I think, derive from his egoism; he can't possibly put other people ahead of himself, he has to address every problem from the perspective of "How will this help or hurt me?" And of course he's so shortsighted that he makes decisions that he thinks will help him that are actually bad for him.

    I shudder to think how that can happen, but then I didn't think there would be a loophole big enough to get him in the first time, yet he found one.

    I think that, due to COVID-19, we're going to see the worst voter disenfranchisement and suppression effort this country's had since the Voting Rights Act was passed.

    I think Trump has a very real chance of winning a second term. Like you, I didn't take his chances seriously in 2016; I take them very seriously now.

    That doesn't mean he's guaranteed to win, by any stretch. The only thing that's kept his approval rating hovering around 40 is the economy, and I think that approval rating hasn't quite caught up with the economic crisis we've been in for the past two months.

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

  41. icon
    ECA (profile), 28 Apr 2020 @ 11:57am

    Re: Re: HOw stupid can this get.

    Apple.

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


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