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Alice v. CLS Reality: PTO Pulling Back Notices of Allowance


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
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Posted: July 25, 2014 @ 4:44 pm
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UPDATED: Saturday, July 26, 2014 at 11:20am

Over the last several days I have heard of an alarming trend from the United States Patent and Trademark Office — Patent Examiners are canceling Notices of Allowance and yanking previously granted claims back into prosecution while citing the United States Supreme Court’s ruling in Alice v. CLS Bank. In some instances granted claims are being pulled back into prosecution only to be rejected as lacking patent eligible subject matter even after the issue fee has been paid. I have also been told that an Examiner in one case has issued a new Examiner’s Answer to include a new Alice 101 rejection.

This is an alarming trend that seems to be building steam as virtually everyone who operates in this space is now seeing the aforementioned and/or they are seeing supplemental office actions issued where the pending office action never rejected claims based on patent eligibility grounds.

Rejecting claims after the issue fee has been paid represents an extraordinary disconnect from the initial USPTO guidance that essentially said that Alice changed nothing from a substantive point of view. I was shocked that the USPTO issued such guidance because if you actually read the Supreme Court’s decision in Alice you could hardly walk away with the belief that nothing had changed.

In the immediate aftermath of the Supreme Court’s decision in Alice the USPTO told examiners that the reason Alice’s claims were determined to be patent ineligible was because “the generically-recited computers in the claims add nothing of substance to the underlying abstract idea.” The USPTO, by and through the Deputy Commissioner for Patent Examination Policy, Andrew Hirshfeld, then went on to point out to patent examiners that there is no new category of innovation that is patent ineligible, nor is there any new or special requirements for the eligibility of either software or business methods. Hirshfeld explained: “Notably, Alice Corp. neither creates a per se excluded category of subject matter, such as software or business methods, nor imposes any special requirements for eligibility of software or business methods.”

Hirshfeld also explained that there is now a slight change in the way applications are to be examined when claims involve abstract ideas. Essentially, Alice stands for the proposition that the same analysis should be used for all types of judicial exceptions and the same analysis should be used for all categories of invention. Still, even recognizing this shift in analysis,Hirshfeld told examiners: “[T]he basic inquiries to determine subject matter eligibility remain the same as explained in MPEP 2106(I).” (emphasis added). Therefore, nothing has changed as far as the USPTO is concerned.

The initial USPTO guidance shocked me because it was exceptionally pro-patentee, which was surprising given how the Obama Administration has spent most of the last 18 months spewing anti-patent rhetoric that largely parroted the Google position on patents, which is that patents simply are not necessary, particularly for software and other computer related innovations.

There is an obvious disconnect, one that seems from the outside to be between the career USPTO officials who believe in the patent system and Administration officials who would rather see all software declared patent ineligible.

Regardless of why this is happening, we now have multiple patent examiners in many different cases issuing supplemental office actions using the same form paragraph, and now we hear that patents are being yanked back into prosecution with claims being rejected as lacking patent eligible subject matter after they were finally granted. This deviation from the initial guidance to patent examiners is alarming. Also extremely troubling is the fact that the USPTO is asking for comments on their initial interpretation of the meaning of Alice v. CLS Bank. Asking for feedback in the case of quick, initial guidance is unusual. In this case the USPTO is asking for such guidance under the guise of allowing further comment on the Mayo/Myriad guidelines, but the recently published notice quite clearly explains:

The United States Patent and Trademark Office (USPTO) has issued preliminary instructions on Alice Corp. to the patent examining corps and these preliminary instructions have been posted on the USPTO’s Internet Web site. The USPTO is inviting public comment on the Alice Corp. preliminary instructions.

(emphasis added).

I suspect that the Obama Administration, which has been taking its guidance on patent issues from Google, must have been uncomfortable with the “nothing has changed” approach the USPTO career officials wanted to take.

My initial reaction to the Supreme Court decision in Alice was that the decision was terrible and would cause tremendous problems for issued patents and patent applications in progress because the claims and disclosures were written to satisfy a different standard. Although many openly criticized my view, it seems as if what I wrote is all coming to pass. I wish I had been wrong! We seem to be entering a dark period for patent eligibility both for software and biotechnology. That won’t be good for the economy at a time when our economy is still stagnant.

I wonder at what point publicly traded companies like Google will need to inform shareholders that their patent portfolios and pending patent applications are largely worthless? If they don’t will they run afoul of Sarbanes Oxley? Stay tuned!

 

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Posted in: Gene Quinn, IP News, IPWatchdog.com Articles, Patent Prosecution, Patentability, Patents, Software, Technology & Innovation, USPTO

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

69 comments
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  1. I’ve had applications after the issue fee has been paid pulled from issue! Is it really fair that companies (and individual inventors) spent lots of money on patents only to find out that their patents and applications are now worthless?

    This is absurd. I’m actually at a loss for words.

  2. this is indeed a very confusing time for us all….

  3. Patent Leather-

    I agree with you. It is fundamentally unfair, particularly given that these patent claims are being declared patent ineligible based on the so-called “abstract idea doctrine,” which has never been defined. The circular “logic” of the rejections are breathtakingly dishonest. This will do tremendous damage.

    Even more difficult to swallow is that many of the patents and patent applications could have been written to satisfy even the nebulous standard (if you can call it that) announced in Alice v. CLS Bank. The applications were written to satisfy a different standard and now can’t be updated or changed without new matter being added.

    -Gene

  4. >The applications were written to satisfy a different standard and now can’t be updated or changed without >new matter being added. -Gene

    And what this means is that they have no interest in making it easy to write patent applications and to represent the invention. Instead it is parlor tricks.

  5. I wonder if they are going to end up with 100,000 appeals. Everyone might want to park their applications for a few years and see what happens when Obama is finally out.

  6. What Gene is really saying here is that he knows more than the Supreme Court justices. Bravo Gene, bravo.

    In all seriousness though, abstract ideas should never have been patented to begin with. Patent attorneys (like Gene) were happy to sell patents for anything since ultimately they ended up with more money with every frivolous patent that was issued.

    Of course, they don’t care about the people that are affected by the frivolous patents since patent attorneys also make money prosecuting and defending software patents in court.

    Who cares about innovation right?

    The Supreme Court finally got it right which is a big score entrepreneurs and American innovation.

    Of course for patent attorneys (like Gene) this means they will make less revenue but what they were doing issuing these ridiculous patents was wrong to begin with.

  7. I just got wind of a phone call and message left for me by the examiners about a “pull back.” I’m livid. The last thing I want to do is put something on the record as I try to appease the examiners by trying to describe what the hell is “significantly more” in the claims. I have to return the call; has anyone had any luck speaking with the examiners about (i.e., convincing them that) the 101 rejection is inappropriate via phone? or is my time better suited by asking them to attempt to meet their burden on the record?

  8. Kevin, I’m livid as well. I got a call this morning from a tech director telling me a number of my firm’s cases were withdrawn from issue because they are no longer statutory, He was rude as well and even told me “it’s not a big deal.” Is he kidding me?

    I think the best thing to do here is wait this out and not respond immediately. Apparently there was some misguided directive at the USPTO to make a point (to the Obama Administration?) and pull allowances, but one of two things will eventually happen: 1) this madness will continue and all pure software inventions will no longer be patentable (even though this is not what Alice says), or 2) things will die down at the USPTO, the new 101 guidelines will come out and while 101’s will be much more commonplace, they will in many cases be overcome.

    I have no idea which of the two it will be, but I am going to try to wait to respond to these new 101’s hoping for #2.

    I suggest everybody file your 101 comments http://www.uspto.gov/patents/law/comments/alice_2014_comments.jsp

    Gene are you going to be filing any comments? Or are you so disgusted by now that you feel it’s just a waste of time?

  9. I am respectfully requesting a pull back from issuance of the United States Constitution because it is directed to the abstract ideas of:

    We the People …
    in Order to form a more perfect Union,
    establish Justice, …
    promote the general Welfare …

    ***All*** legislative Powers herein granted shall be vested in a Congress …

    Section 8: Powers of Congress … The Congress shall have power To ….
    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

    source=
    http://en.wikipedia.org/wiki/Article_One_of_the_United_States_Constitution

    Clearly it needs something significantly more. ;-)

  10. In which art units is this happening?

  11. I spoke with an examiner yesterday who is in the gaming art unit (slot machines). He had indicated that payment of the issue fee seemed to be the point at which PTO would NOT re-open, though he wasn’t absolutely sure. What he is sure about is that the examiners themselves are outraged over this, since they will be facing the applicants’ backlash in abusive responses. He himself noted that they were told to apply the form paragraph in every case, without any real analysis, and they are doing so against apparatus claims. Just apply it. The notion that the PTO — supposedly experts on how the patent laws are to be applied — would follow such b.s. opinions from the SCT (their “Supremeness” notwithstanding) is heartbreaking. Truly, truly gone off the rails.

  12. It’s absurd that an examiner can allow claims presumably because they claim more than an abstract idea and later pull back that decision because they allegedly claim no more than an abstract idea. From everything I have read thus far on the Alice decision, nothing has changed as to what is an abstract idea. It’s no better defined than it was before Alice. With this understanding, I truly believe the examiners are just doing what they are told to do. If they really had a different understanding of what is an abstract idea after Alice, they would use more than just a form paragraph to articulate it. I wonder if they have thought of another career path if this continues and they reject themselves right out of a job?

  13. The question to Gene at 7 is interestingly futile – not because it is not a good questions, but because I think it is not a sufficient one.

    Let me explain:

    Whether or not Gene writes is immaterial. (Sorry Gene, that is no sleight on your position in the patent world). Whether or not individual patent attorneys write is immaterial.

    The reason is because the Patent Office is the wrong audience.

    The right audience is Congress.

    After personally speaking with my representatives, unfortunately I am left with the distinct impression that my voice (individually) just does not resonate. What we need is someone – or some organization – with enough “pull” and wherewithall to be able to obtain the attention of enough people in Congress and show these people why the Supreme Court action (whether or not Congress agrees with the effect of the action) sets the dangerous precedent of the Court openly violating the separation of powers doctrine (themselves) and then having a second branch of the government enthralled by the judiciary.

    I am just not sure that the audience is willing to hear the message they need to hear, or to take the actions they need to take to correct the balance between the branches that has been lost.

  14. Patent leather at 7, possibility 2: “while 101?s will be much more commonplace, they will in many cases be overcome.”

    Unfortunately, the ‘we shall overcome’ sentiment cannot apply when the barrier over which one must overcome is undefined, arbitrary, and by the Alice design, is at the whim of the examiner. The elephant in the room is the term that has been consistently undefined since it was first applied in Benson – “abstract idea.” The Preliminary Guidelines add insult to injury as they do not even compel the examiner to identify with particularity the “abstract idea” by specific paragraph and line reference to the spec and by quoting the claim elements allegedly directed to mere “abstract idea.” Absent this clear delineation, one cannot hold the examiner to a boundary beyond which subject matter can be argued as providing “significantly more” than the “abstract idea.” There will be hundreds of thousands of ‘moving target’ games in trying to overcome 101 rejections.

    But this “abstract idea” boundary problem is much more problematic than one might initially perceive – it is fatal. Once the 101 analysis (I believe wrongly) involves breaking apart a claim into its constituents in accordance with Alice/Mayo, no claim is safe from whimsical rejection that, by definition, cannot be overcome. I am aware of at least one case in the last two weeks where an examiner identified multiple “abstract ideas” in a claim saying: “element A is an abstract idea, element B is an “abstract idea” and the last element – element C – is also an abstract idea. There is nothing “substantially more” left in the claim for it to be eligible under 101.”

    Because every claim can be broken apart into sufficiently small parts, each of which allegedly an “abstract idea” such that there is nothing “significantly more,” or is merely an element “well known in the industry,” every claim is subject to a 101 rejection that cannot be overcome.

    I suggest that we have not seen yet the full pernicious scope of the decades-long judicial adventure of a court that insists on making its own laws rather than interpreting the statute. I agree with Anon above – this is a matter for Congress to fix.

  15. To all:

    This misguided and unfair effort by the USPTO (whoever is behind it) is just the latest “reaping the whirlwind” created by the fiasco in SCOTUS’ Alice Corp. decision. Does Our Judicial Mount Olympus have no shame when it comes to ignoring what the patent statutes say, as well as ignoring their prior binding precedent (i.e., Diehr)? Do our Ivory Leaguers in the Ivory Tower have any clue that such nonsensical logic as expressed by Alice Corp. can cause the USPTO to pursue this misguided and unfair pulling back of already allowed patent applications.?

  16. Don’t expect Congress to help here. There are too many big parties (that get sued by the original innovators) that would prefer there were no patents.

  17. Time for a class action against the USPTO?

  18. What a nightmarish roller coaster ride, after reading the Alice guidance. Maybe they are trying to increase revenue from appeals. Or perhaps the USPTO is now playing games with the definition of the point in time when the issue fee has been paid, e.g. perhaps the check hasn’t cleared, or the time for refund has not passed?

    Have any claims to software been affirmed during this time (i.e. has the Office’s understanding of the Alice guidance been applied, and the claims ultimately allowed)?

    Are we sure there aren’t good reasons for the rejections in those cases rejected?

    I suspect that soon enough we’ll learn of applications that issue through the gauntlet, and maybe then we are supposed to be able to figure out what is and is not statutory subject matter.

  19. Are there examples of software claims that have prevailed under these same conditions?

    Were the rejections justified?

  20. Step back, if someone really believes he has been deprived of a constitutional right and he, she, or it has the money to do it, he should bring a Bivens complaint against the culprits, but obviously, the Bivens complaint would have to argue that the patent should have been allowed within the constraints of Alice.

    As for the meaning of Alice, the Supreme Court seems to be trying to distinguish between prior and posterior /analytic or synthetic knowledge or propositions.

    In the definition of “eligible”, it makes perfect sense that staking out a claim to prior or analytic knowledge should be forbidden. To wit, someone should not be able to claim some aspect of hedging, which is purely prior or analytic while claiming some aspect of packet switching which is mostly posterior or synthetic should be reasonable if the claim is written properly.

    Unfortunately, Americans (apparently even Supreme Court justices) don’t read philosophy.

    The distinction between prior and posterior knowledge goes back to Plato in Meno.

    18th & 19th century philosophers like Kant delved deeply into epistemology while more recently Quine has addressed the types of propositions.

    The Supreme Court is unable to articulate its position coherently while the PTO and lawyers in general don’t seem to understand. The example in MPEP 2106, “containing a liquid” really describes indefiniteness and not prior or analytic knowledge.

    It is not surprising that patent examiners that have never studied epistemology and that often have poor command of English are totally lost.

    To deal with this situation of a withdrawn notice of allowance (because the examiner does not understand epistemology or Alice and not because the notice of allowance should never have been granted), I would carefully explain in the response how the claim fits into the framework of Alice and conforms to Preliminary Examination Instructions in view of the Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et al.

    This area of philosophy is quite difficult, but the full epistemological apparatus is probably not needed, and the important issues could probably be described in reasonable length guidance from the PTO.

  21. [The filter is fighting with me.]

    Step back, if someone really believes he has been deprived of a constitutional right and he, she, or it has the money to do it, he should bring a Bivens complaint against the culprits, but obviously, the Bivens complaint would have to argue that the patent should have been allowed within the constraints of Alice.

    As for the meaning of Alice, the Supreme Court seems to be trying to distinguish between prior and posterior /analytic or synthetic knowledge or propositions.

    In the definition of “eligible”, it makes perfect sense that staking out a claim to prior or analytic knowledge should be forbidden. To wit, someone should not be able to claim some aspect of hedging, which is purely prior or analytic while claiming some aspect of packet switching which is mostly posterior or synthetic should be reasonable if the claim is written properly.

    Unfortunately, Americans (apparently even Supreme Court justices) don’t read philosophy.

    The distinction between prior and posterior knowledge goes back to Plato in Meno.

    18th & 19th century philosophers like Kant delved deeply into epistemology while more recently Quine has addressed the types of propositions.

    The Supreme Court is unable to articulate its position coherently while the PTO and lawyers in general don’t seem to understand. The example in MPEP 2106, “containing a liquid” really describes indefiniteness and not prior or analytic knowledge.

    It is not surprising that patent examiners that have never studied epistemology and that often have poor command of English are totally lost.

    To deal with this situation of a withdrawn notice of allowance (because the examiner does not understand epistemology or Alice and not because the notice of allowance should never have been granted), I would carefully explain in the response how the claim fits into the framework of Alice and conforms to Preliminary Examination Instructions in view of the Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et al.

    This area of philosophy is quite difficult, but the full epistemological apparatus is probably not needed, and the important issues could probably be described in reasonable length guidance from the PTO.

  22. Joachim @ 16

    The issue at hand is whether the USPTO pledges allegiance to the US Constitution or to the Ludite Inquisition as embodied by the nine black-robed Medieval Inquisitors who reside on Mount Olympus?

    The US Constitution grants to Congress the exclusive, enumerated and limited power to promote the progress of science by securing to inventors, rights of exclusion dealing with that which the inventors (not the 9) regard as the invention.

    None of the verbiage that the Inquisition-9 use in Alice appears in 35 USC 101. Instead it says ANY new and useful process, ANY new and useful manufacture.

    Is the USPTO within its lawful rights to ignore the Constitution, to ignore the Congressional statue and to instead follow along with the nonsensical gobbledygook emanating from Mount Olympus?

  23. One must question whether prior or analytic knowledge should be considered new.

  24. Joachim,

    I see that your lack of appreciation of law is peeking through again.

    Your statement of “should have been allowed within the constraints of Alice” misses the point that the “constraints of Alice” are the problem.

    One of the issues that you seem blind to is that the Supreme Court does not have the authority to write patent law. For all of your “experience” with law, you seem consistently willing to miss the concepts underlying these posts – and why lawyers are upset with the decisions (and consequent actions by another branch of the government).

    be trying to distinguish between prior and posterior /analytic or synthetic knowledge or propositions.

    The legal phrases to be understood are patent eligible and patentable. The conflation of prior/post is exactly what Congress attempted to end in 1952. You (again) appear to be too smart for your own good – having a grasp of philosophy, and yet missing the law.

    whether prior or analytic knowledge should be considered new” – be careful – you appear to be willing to parse and divide, rather than read the claim as a whole. May I remind you that only God works from scratch. There is no claim now under consideration, nor any claim ever granted, that cannot be rejected using the “logic” of your approach. If you break any claim down, all you will be left with are the “not new” elements and the “laws of nature” that allow those old elements to be configured differently. Considering some portion of a claim as “new” and then rejecting on eligibility is exactly the approach banned by Congress in 1952, when they created the distinction between eligibility and patentability.

  25. and you, Joachim, believe that epistemological arguments are going to be persuasive — or even intelligible — to an examiner? yeah, right…… I’ve got more client-palatable ways to waste clients’ money…….

  26. and this is why PTO requires of its agents and registered, a background in science or engineering, not philosophy. We’re not arguing how many angel can dance on the head of a pin; we’re talking about how does one differentiate a non-patent-eligible “abstract idea” from other patent-eligible methods. S Ct sure hasn’t provided guidance on that. As a result, we’re left with a pornography approach: S Ct “knows it when it sees it.” That’s the problem, not lack of philosophy “training.”

  27. errata, first line: requires of its agents AND ATTORNEYS TO BE registered

  28. KenF,

    It is even worse than you post.

    Read Ron Katznelson at 13.

    If examiners take and run with the Supreme Court’s “Gist/Abstract” divide and conquer approach, coupled with an undefined – undefinable – and not required to be defined – “abstract” and “substantially more” showing, there is no claim that is safe. We have yet again returned to the era of “the only valid claim is one that has not yet appeared before us.”

    If I were an examiner, and accept the logic that is a clear take away from Alice as reflected by the Office directions, there is no claim that I would ever allow. And if the Office maintains its position, no appeal to the PTAB would over turn me. As of now, an Examiner is not even charged with being reasonable in their rejections.

    What Joachim seems to miss in all of this is that this is why attorneys who know the law are upset. No one (other than perhaps Alice) is upset directly with Alice not obtaining their patent. Individual cases and individual applications of law are not the emotional drivers – the emotional drivers are what is rendered of the law and how that law will be rendered going forward.

  29. To quote Eric Cartman — a brilliant philosopher in his own right — “Yeah, it sucks!”

    http://www.moviewavs.com/php/sounds/?id=gog&media=WAVS&type=TV_Shows&movie=South_Park/Episode_113_Cartmans_Mom_Is_A_Dirty_Slut&quote=113_itsucks.txt&file=113_itsucks.wav

  30. Steven @6-

    Yes, you are correct. I am saying that I know more than the Supreme Court. The Supreme Court knows absolutely nothing about patent law, they have no training in the area, they lack basic familiarity, and the fact that you fail to understand this simple truth speaks volumes about your own lack of knowledge.

    You say: “Who cares about innovation right?”

    Obviously you don’t care about innovation. I care about innovation and all objective evidence clearly proves that patents are necessary. Please inform yourself before you comment here in the future. It is unbecoming for you to prove that you are ignorant. I suggest you start here:

    http://www.ipwatchdog.com/2014/07/21/promoting-innovation-the-economics-of-incentives/id=50428/

    and

    http://www.ipwatchdog.com/2014/05/08/reality-check-patents-foster-innovation-and-economic-activity/id=49452/

    -Gene

  31. software patents may once again gain respectability if the PTO actually prevents the spewing of crap patents. i hope they learn how to sift the wheat from the abstract.

  32. Gene @ 31,

    What possible sifting mechanism do you envision?

    In other words, what do you think is both necessary and possible under the current environment to obtain patents that are “wheat.”

    What exactly does a wheat software patent look like?

  33. Anon @32: LOL ;-) :

    Declare var type=delusional Mind_of_a_SCOTUS_Justice

    Do until last frenemy_of_court_brief
    Read brief
    If brief directed to physics or other real science then ignore
    If brief directed to realm of the “abstract” and anti-patent politics then accept on basis of pure faith
    Copy gibberish words from realm_of_abstract brief into Mind_of_a_SCOTUS_Justice
    End Do

    Read only Representative_Claim_of_Patent_in_Question
    Determine that terms directed to physical reality are merely those of crafty draftsman
    Determine without scientific proof that human brain works just like “generic computer”
    Chaff=: Terms_Directed_to_Physical_Reality
    Wheat=: Representative_Claim_of_Patent_in_Question – Chaff
    Declare class of Chaff as Non_Eligible
    Declare entire Patent_in_Question as Non_Eligible
    Declare Mind_of_a_SCOTUS_Justice as Beyond_Questioning
    End Main
    End Age_of_Enlightenment
    Exit

  34. Thanks step back, now I have to clean my desk from the coffee I spit while laughing at your response.

    But my question did have a serious tone to Gene (and others who think that there is wheat, but too much chaff).

    I have seen no one explain the magical process of obtaining this wheat, or how the processes that we have been given from the judiciary and the executive branches align with or even meet the words of the legislative branch.

    It’s one thing to whine and quibble about “bad patents,” ignoring what the Court itself has done by empowering a PHOSITA and keeping in mind that an applicant need not repeat what a PHOSITA already knows, but it is quite another to create a goal or standard of “wheat” and provide no understanding of what that term means.

    More than just a little bit like the High Court refusing to tell us the definition of “Abstract.”

  35. Anon @ 34
    Like I said at 26, we have been given nothing more than the pornography test: the Supremes allegedly know it when they see it.

  36. Anon @34

    While there is indeed a bit of inverse coffee snorting humor in my sarcastic code of comment 33,
    there is also implied in it some serious business.

    SCOTUS, like many courts below it, holds fast to the non-scientific belief that the dueling briefs of the opposed parties and the “friend” of court briefs (the amicus curie briefs) will “educate” the court as to what are the “true” technical aspects and the legally valid issues of the case before them.

    However, in many a case such is untrue. It is often in the best interests of at least one party and of at least some of the amici to confuse and mislead the court. Sometimes the more poetic brief is more appealing to (at least the ego of) the court even though it is flat out misleading and untrue. In the case of a SCOTUS that does not know even how to use them there electronic-mails (emails) and what-nots, would it not be more appealing (at least to their easily bruised egos) to hear that they, SCOTUS are not missing out on much of anything after all because those darn-fangled new computer things are mere abstractions of the “generic” kind and the oh so wise SCOTUS is not going to be fooled by these gimmicks unless those coffee-snorting nerds in Silicon Valley java houses come up up with “significantly more” than that which they obviously do over a mere weekend’s worth of “coding” (in a secret language understood only amongst the not-to-be-trusted geeks)?

    To see examples of where the text in Alice was lifted from the amicus briefs, take a closer look at my page:
    http://patentu.blogspot.com/2014/06/perky-parrots-of-patent-haters-club.html

  37. In re: 24.

    Abstract idea doctrine has been applied to patent law since the 1850s. Why leave it a matter of subjective standards when there is a formalism that makes it possible to quantify abstract idea doctrine rationally?

    If I am a real estate developer here in Massachusetts, I have to obey rules that come from the theory of soil dynamics. I don’t think it is a big deal to set up a chart to describe whether the knowledge being claimed is prior or posterior, analytic or synthetic.

    Alice, p. 15, indicates that there could easily be some patent applications that have been improperly rejected for non-existent 101 problems.

    If we see examiners reversing 101 rejections because of Alice, then we will have evidence of an effort on the part of examiners and the PTO to acknowledge constitutional rights properly.

  38. Joachim,
    In re 37, against what sort of software was the doctrine applied back in the 1850s?

    By the way, are you the same JM in connection with whom a number of accusations of anti-Semetism, Jews-control-Wall-Street, belief, anti-Zionism, etc., can be found on line (Google results)? Cross-referencing against Boston locale, LinkedIn listing of a JM with reference to software patent and Boston locale, Twitter listing with “tag” of inventor and photo that seems to be of the same person, and your interest here, it seems that those Google results refer to you. Is that so? Just curious. . . .

  39. I believe there were programmable looms back then, but abstract idea doctrine was not applied to them. If I am not mistaken, the SC Alice decision references some 19th century cases in which Abstract Idea doctrine was applied.

  40. JM:
    In re 38/39
    And answer to my “By the way” inquiry is………????

  41. Later when I have a better keyboard in front of me.

  42. my sifting comment reflects a hope, not a done deal. as first step, to my mind, the “something more” above and beyond an abstraction is an algorithm (claimed) that a programmer can use or avoid as the case may be (and although i have no opinion about it yet, perhaps it should be more than a method of calculating a math formula–Flook).

    btw, this is about claiming, not enablement in the spec. if you have a mechanical patent application with beyond-a-doubt enablement showing that the invention is “in the hands” of the inventor, and a patent attorney writes a claim (issued) that says “a mechanical assembly comprising: solid metal components; and a gear train interoperating with the solid metal components to extrude soba noodles”, well, that patent attorney f****d his or her client with an invalid claim that a lazy examiner allowed. this is the state of many software claims (Alice) that point to a black box (computer) performing a function. no amount of “processors connected to memory storing instructions which when executed perform . . .” will avoid vagueness unless there is an actual algorithm claimed. software patenting will be advanced if, at least, examination and litigation addresses the gray area beyond this chaff. i am pro-software, but am anti-black-box-claiming (for any technology) and against “hiding the ball” as it were.

  43. Follow up to @11.

    Just received notices in two cases — both gaming machines — indicating that cases are being withdrawn from issue, with OA’s to follow.

    In one case, IF was not paid yet, but in other one IF WAS, in fact, already paid. So I guess the paid/non-paid factor does not matter. . . .. . .

    Meanwhile, I’m still waiting for Joachim to find his “better keyboard”…….

  44. KenF @43,

    Were the grounds for withdrawal given in the notice, are they just being vague about eligibility, or something else?

    Is there any way these actions were justified, i.e. is it reasonable to conclude the claims were to an abstract idea? I’m guessing not.

    It seems like withdrawal from issue could be a huge hit to a client who is in the process of monetizing what they had good reason to believe was an issued patent. Can the USPTO be sued for damages if it is determined the withdrawal was improper?

  45. ip_specialist @44,

    No. Just says that they are being withdrawn from issue and that office actions will be forthcoming. In fact, nothing even shows up yet on pair (except for notations in the transactions tab indicating that they are being withdrawn). It’s clear, however, that it’s for 101.

    To see example of a case where the 101 rejection has been made right out of the gate, however, in the same art unit, see application 13/767,590 and note the “depth” of analysis therein. . . . ..

    Still waiting for Joachim to find his better keyboard. Sounds like the articles I see come up running a google search on the name Joachim Martillo and referring to anti-semitic nut case are, in fact, referring to him. I await any correction on the matter if I am mistaken.

  46. As to the PTO Alice Examination Guidelines, see our comments filed with the PTO this afternoon at http://bit.ly/IEEE-Alice-Comments. As to the multiple “abstract ideas” in a single claim issue I raised above, note the discussion in Section 1.8 on how I propose to solve that problem.

  47. KenF,

    Joachim is indeed the one and the same as the one your searches indicate. I have had that very discussion with him in the past.

    That being said, I advise you NOT to hold any non-patent law ideologies against Joachim and what he has to say in the patent law world. Doing so does not do anyone justice as to the content of what Joachim seeks to advance. Anti-Semitic or not, those other posts do not touch on the merits of the discussion here and can be (or should be in my view) ignored.

    And to be just a little “cheeky,” Joachim’s views in the patent sphere are enough on their own to sink his views. I have tried without success to engage him on the direct legal merits, and it is apparent that he believes that his minimal understanding of the law suffices for his stated positions to ascend any other countering views.

    In general, my posts here have diminished to an extent that I see posts being made in “soapbox” style and not in a manner that evidences a willing and intelligent conversation. I am well aware already of certain viewpoints. If I engage and only receive a restating of a viewpoint already stated with nothing intelligent added, then my time is being wasted.

    This is not to say that Gene’s site remains one of the top patent blogs, or that Gene’s efforts are not appreciated – this site is very much one of the top blogs and it is because of Gene’s efforts that this remains true. It is to say that I seek real conversation on the merits, and the recent gamesmanship here shows a lack of desire for any real exchange. If someone wants to ignore their own limitations and biases, that is up to them. But when the same happens in a discussion, and those limitations and biases are pointed out as getting in the way of understanding the law to be discussed, well, I cannot force the other person to pull their fingers from out of their ears, I cannot force the other person to open their clenched tight eyes, and I cannot force the other person to stop chanting and join a conversation.

    These are interesting times – and interesting conversations could be had – if so desired.

  48. caught in filter..? please release.

  49. This and post 48 (filter notice) can be deleted – the post at 47 got through.

  50. Anon@47,
    Your point re JM’s off-topic viewpoints is noted. Generally, however, when I see extremism without thinking/consideration of opposing arguments in one realm of discussion, I see it carry over to other realms of discussion with the same person.

    More to the point or merits of JM’s posts, I see little more than playback of the “popular” media drumbeat, especially from one who seems to be a programmer/software person: software good; patent bad; S Ct decision good. Frankly, I first started to look into JM’s background be looking at the PTO OED roster, to see if he is even a registered practitioner. Not finding him listed there, I wanted to see what other experience he might have on which to base his opinions/offerings. Instead of relevant legal experience (either as an attorney or an agent), all I found was the antiSemitic stuff out there. Case closed in my view.

    Re interesting times, well, the PTO really seems to be doing all it can to completely discredit itself these days. See, e.g., http://www.washingtonpost.com/blogs/federal-eye/wp/2014/07/31/federal-paralegals-had-no-work-so-they-surfed-the-internet/ talking about how the PTAB paralegals working from home had nothing to do and yet got paid and paid and paid. In the 23 years I’ve been in practice, the last five or so have been the most demoralizing I’ve ever suffered. Surly people in OIPE who can’t THINK to understand why I believe their application of a rule is incorrect; OPLA person who is clearly of the same mindset; Examiners telling me that a claim limitation — awkward but grammatically correct, as most claims are — “reads difficult and must be changed” when she herself butchers the language, etc. And now the 101 rejection orgy. . . . . “Interesting” times? More like DEPRESSING times. . . . .

  51. Ron @46

    The sad thing about this whole affair is that “technical” people (i.e. engineers, scientists, patent practitioners) are generally not trained in the dark arts of mind manipulation.

    They believe (wrongly) that because they have formal training in things “technical”, that they cannot be fooled by scam artists or clever manipulators of the human mind/brain. That belief makes them the easiest targets of all for manipulation. The IEEE paper you cite to (and link to) at comment #46 is an example of a “technical” organization being sucked into the abyss of mind manipulation and becoming willing tools/ shills for the very thing they portend to oppose.

    The first question to ask is this: Which is more “supreme”, The US Constitution or the words of a bunch of political hacks who are appointed by fallible men to don black robes and refer to themselves as a “Supreme” Court? In other words, does SCOTUS have the lawful power to eviscerate Article 1, section 8. clause 8?

    The second question is this: To which masters does the US PTO owe allegiance, to the Constitution and a Congress that is acting in accordance therewith, or to SCOTUS (and to the special interests which control SCOTUS by filing so-called “friends” of the court (amicus curie) briefs)?

    If the IEEE cannot step back and first see that bigger picture, it is lost from the outset. It is already crafting mathematical algorithms for determining how many angels dance on the head of the pin while accepting the latter as a given “fact” (that there are angels dancing on the pin to begin with).

  52. Gene: requesting a release from spam filter please.

  53. Step back @52,
    There is a time to “step back” and address the underlying problem “and first see that bigger picture,” and there is a time to tactically intervene in a regulatory process that has left the station to a very problematic destination – the PTO examination guidelines under Alice. Unfortunately, the PTO is not the audience for the “bigger picture” arguments when it attempts to craft guidance specifically geared to comply with the ruling in Alice. As many others have, the IEEE-USA had addressed the “bigger picture” issues with the right audience – in our Amicus Brief to SCOTUS (see http://j.mp/IEEE-Merit-Amicus-Alice ); evidently, that did not help matters.

    The PTO is about to issue its 101 examination guidelines based on Alice whether we want them or not. Telling the PTO that SCOTUS is out to lunch in Alice is unhelpful because the Office cannot act on it; many at PTO are well aware of that fact. The purpose of our comments was to have some positive influence on the 101 examination guidelines; as such, we must assume the nonsense in Alice because the PTO is bound to assume that. Our goal is to channel the PTO guidelines to a least harmful path and unfortunately we must do so by engaging in a “Kabuki dance” with PTO in this Alice theater. The Office would have to provide written responses which should help pin it down whether or not they agree with our proposals.

    Let me know whether you have a better suggestion for shaping the ultimate 101 examination guidelines.

  54. I think part of the root of the current problem is related to Lee. See this video: https://www.youtube.com/watch?v=mG0VoZcia2A . @11:53, “Patents are not the only drivers of innovation. The first entity to bring a product to market has a first mover advantage that provides an incentive to innovate on its own, whether or not a patent is sought or granted. Some firms opt for an open source model where they benefit from the network effects of widespread adoption of the technology they’ve developed. We also know that reputation and branding with or without a trademark, plays a large role in facilitating innovation and of course large numbers of innovations are protected by trade secrets and copyrights, but not patents.”

    @25:25, [CLS Bank] “likely lays the groundwork for more aggressive challenges to these types of patents…”

    If you watch the entire video, it is clear what her agenda is. I don’t think Hirshfeld is the problem.

    I never thought I’d say this, but I would even put John Doll back in over her. Is there some way we can get rid of her?

  55. [Gene, I think I am stuck in your spam filter, I am trying again]

    I think part of the root of the current problem is related to Lee. See this video: https://www.youtube.com/watch?v=mG0VoZcia2A .@11:53, “Patents are not the only drivers of innovation. The first entity to bring a product to market has a first mover advantage that provides an incentive to innovate on its own, whether or not a patent is sought or granted. Some firms opt for an open source model where they benefit from the network effects of widespread adoption of the technology they’ve developed. We also know that reputation and branding with or without a trademark, plays a large role in facilitating innovation and of course large numbers of innovations are protected by trade secrets and copyrights, but not patents.”

    @25:25, [CLS Bank] “likely lays the groundwork for more aggressive challenges to these types of patents…”

    If you watch the entire video, it is clear what her agenda is. I don’t think Hirshfeld is the problem.

    I never thought I’d say this, but I would even put John Doll back in over her. Is there some way we can get rid of her?

  56. Ron Katznelson @53

    (wrote”Let me know whether you have a better suggestion for shaping the ultimate 101 examination guidelines.”)

    Well

    If it were up to me

    I would insist that every 101 rejection based on a PTO determination that all the claims are “directed to an abstract idea” include an explicit claim by claim analysis which:

    1) Lists all the possible abstract ideas that the claim could have been determined to be “directed to“, including the option of no specific abstract idea at all; and

    2) Identifies it and explains how the examiner came to pick one particular one of those listed possible abstract ideas over all others; and

    3) Identifies the specific portions of each claim where those identified portions were ignored by the adjudicator in arriving at the 101 determination, explaining how and why those came to be chosen as the ignored elements over all others of the elements in the claim …

    because otherwise it seems to me that the agency is engaged in arbitrary and capricious adjudication that has no rational underpinning but is rather the mere momentary whim of the adjudicator rather than being based on law, logic and facts.

    I think above items 1, 2 and 3 add up to my three cents on the issue.

  57. Step back @55,
    If you read our comments closely, you would recognize that they actually subsume your items 1,2 and 3.
    Have you submitted these items in written comments to PTO? If not, why not?

  58. Gene,

    I’ve been long of the opinion that the USPTO has been at best incompetent at evaluating patents. To see them finally trying to do their job properly, is almost shocking.

    As to the damage the change is doing, I can understand everyone’s upset at what is happening. But what if they don’t try to fix things? Then you will have a group of patents which aren’t going to stand up in court. In simple terms, they are useless.

    I’ve read far too many patents over the years, which were not compliant with the USPTO rules. All the Supreme Court appears to be doing, is telling the USPTO to follow the rules. To me that makes sense.

    I could give you a whole bunch of examples, but they would bore you to tears, and I doubt that anyone except me would understand the technology.

    Regards

    Wayne

  59. Ron @56 asks:

    Have you submitted these items in written comments to PTO? If not, why not?

    Shamefully, no.

    Like Anon and Anonymous Coward, I hide behind a pseudonym because I am afraid of the power and vindictiveness of bureaucratic officials. Look what they have done too Gilbert Hyatt. Need we say more? This is not America anymore. This is the Union of Subservient Sockups to Raw Overlord Power (USSR-OP). How many times have you heard examiners say, I’m just following orders, doing what my bosses tell me, I don’t want to lose my job? And the bosses? They won’t come out into the sunshine and explain themselves. They hide in the shadows, playing the sick game of taking inventors’ monies and giving them nothing in return. One RCE after the next and nothing changes except the emptying of wallets. You can file comment after comment with the PTO and it won’t do you any good. This is not your Daddy’s PTO anymore. What kind of sick thing is it that there is not even a lawfully appointed Directed to take responsibility for what goes on? And yet, the bureaucracy marches on, even without a head.

    I give you kudos for coming out in the open with your name and trying to talk truth to unrestrained power.
    Me? I’m not that brave.

  60. Wayne @57 writes:

    All the Supreme Court appears to be doing, is telling the USPTO to follow the rules.

    Quite the opposite.
    SCOTUS is instructing the PTO and district judges to disobey the laws:

    35 USC 101:
    Whoever invents or discovers ANY new and useful process, [ANY new] machine, [ANY new] manufacture, or [ANY new] composition of matter, or ANY new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

    35 USC 102:
    A person shall be ENTITLED to a patent unless – …

    35 USC 112:
    The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which THE APPLICANT regards as his invention.

    SCOTUS is saying ignore all of the above and allow us to legislate our own scheme, one that de-secures inventors of exclusive rights to THEIR discoveries, one that demotes the progress of science and the useful arts.

  61. As I posted on another thread, Ron is not often enough thanked for having the courage of his convictions and publicly challenging the machine.

    Thank you Ron.

  62. Ditto. Thank you Ron.

    Not only does it take courage to stick your neck out, but often you get the whack a mole treatment from them who have power and don’t like being criticized. As they say, no good deed goes unpunished. So thank you Ron.

  63. Step Back,

    Why didn’t you quote all of 35USC102?

    35 U.S.C. 102 Conditions for patentability; novelty.
    [Editor Note: Applicable to any patent application subject to the first inventor to file provisions of the AIA (see 35 U.S.C. 100 (note) ). See 35 U.S.C. 102 (pre-AIA) for the law otherwise applicable.]

    (a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless—
    (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
    (2) the claimed invention was described in a patent issued under section 151 , or in an application for patent published or deemed published under section 122(b) , in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
    (b) EXCEPTIONS.—
    (1) DISCLOSURES MADE 1 YEAR OR LESS BEFORE THE EFFECTIVE FILING DATE OF THE CLAIMED INVENTION.—A disclosure made 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a)(1) if—
    (A) the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or
    (B) the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor.
    (2) DISCLOSURES APPEARING IN APPLICATIONS AND PATENTS.—A disclosure shall not be prior art to a claimed invention under subsection (a)(2) if—
    (A) the subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor;
    (B) the subject matter disclosed had, before such subject matter was effectively filed under subsection (a)(2), been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or
    (C) the subject matter disclosed and the claimed invention, not later than the effective filing date of the claimed invention, were owned by the same person or subject to an obligation of assignment to the same person.
    (c) COMMON OWNERSHIP UNDER JOINT RESEARCH AGREEMENTS.—Subject matter disclosed and a claimed invention shall be deemed to have been owned by the same person or subject to an obligation of assignment to the same person in applying the provisions of subsection (b)(2)(C) if—
    (1) the subject matter disclosed was developed and the claimed invention was made by, or on behalf of, 1 or more parties to a joint research agreement that was in effect on or before the effective filing date of the claimed invention;
    (2) the claimed invention was made as a result of activities undertaken within the scope of the joint research agreement; and
    (3) the application for patent for the claimed invention discloses or is amended to disclose the names of the parties to the joint research agreement.
    (d) PATENTS AND PUBLISHED APPLICATIONS EFFECTIVE AS PRIOR ART.—For purposes of determining whether a patent or application for patent is prior art to a claimed invention under subsection (a)(2), such patent or application shall be considered to have been effectively filed, with respect to any subject matter described in the patent or application—
    (1) if paragraph (2) does not apply, as of the actual filing date of the patent or the application for patent; or
    (2) if the patent or application for patent is entitled to claim a right of priority under section 119 , 365(a) , or 365(b) or to claim the benefit of an earlier filing date under section 120 , 121 , or 365(c) , based upon 1 or more prior filed applications for patent, as of the filing date of the earliest such application that describes the subject matter.
    (Amended July 28, 1972, Public Law 92-358, sec. 2, 86 Stat. 501; Nov. 14, 1975, Public Law 94-131, sec. 5, 89 Stat. 691; subsection (e) amended Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-565 (S. 1948 sec. 4505); subsection (g) amended Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-590 (S. 1948 sec. 4806); subsection (e) amended Nov. 2, 2002, Public Law 107-273, sec. 13205, 116 Stat. 1903; amended Sept. 16, 2011, Public Law 112-29, sec. 3(b), 125 Stat. 284, effective March 16, 2013.*)

    (Public Law 112-29, sec. 14, 125 Stat. 284 (Sept. 16, 2011) provided that tax strategies are deemed to be within the prior art (see AIA § 14 ).)

    *NOTE: The provisions of 35 U.S.C. 102(g) , as in effect on March 15, 2013, shall also apply to each claim of an application for patent, and any patent issued thereon, for which the first inventor to file provisions of the AIA apply (see 35 U.S.C. 100 (note) ), if such application or patent contains or contained at any time a claim to a claimed invention to which is not subject to the first inventor to file provisions of the AIA.]

    You ignored 35C103

    35 U.S.C. 103 Conditions for patentability; non-obvious subject matter.
    [Editor Note: Applicable to any patent application subject to the first inventor to file provisions of the AIA (see 35 U.S.C. 100 (note) ). See 35 U.S.C. 103 (pre-AIA) for the law otherwise applicable.]

    A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 , if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.

    (Amended Nov. 8, 1984, Public Law 98-622, sec. 103, 98 Stat. 3384; Nov. 1, 1995, Public Law 104-41, sec.1, 109 Stat. 3511; subsection (c) amended Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-591 (S. 1948 sec. 4807); subsection (c) amended Dec. 10, 2004, Public Law 108-453, sec. 2, 118 Stat. 3596; amended Sept. 16, 2011, Public Law 112-29, secs. 20(j) (effective Sept. 16, 2012) and 3(c) (effective March 16, 2013), 125 Stat. 284.)

    (Public Law 112-29, sec. 14, 125 Stat. 284 (Sept. 16, 2011) provided that tax strategies are deemed to be within the prior art (see AIA § 14 ).)

    I’ve seen tons of patents that were issued by the USPTO which were not legal according to the bolded sections above. In fact the shear number of bad patents I’ve seen, have led me to believe that less than one percent of issued patents were legitimate before this court case.

    In several cases I’ve had people come up to me, with newly issued patents in hand, trying to sell me their ‘product’ and they were quite upset when I told them that we had already been doing the same thing FIFTEEN YEARS BEFORE THEY APPLIED FOR THEIR PATENT. I also told them if they tried to enforce the patent, we would quite happily nuke them in the courtroom, as I had tons of documentation to prove my point. Curiously none of them took me up on the offer.

    Of course I’m one of the more aggressive people you are likely to meet, and that may have scared them off :)

    Wayne

  64. Ron, if you are still reading this thread, I thought that your Alice comments filed with the USPTO were the best. Why do I feel it’s all a big waste of time though?

  65. Wayne @63

    So, … a quick shuffling of feet by you away from the issue of SCOTUS “following the rules” (not) to you attacking me for not posting the entirety of the post-AIA version of 102? To what end?

    The part of 102 I emphasized makes it clear that there is a statutory “entitlement” to a patent and a statutory listing (“unless”) of the exceptions. The listed exceptions do not include the BS that SCOTUS made up out of thin air in Alice. They are not following rules. They are creating new rules out of thin and illogical air.

  66. Step Back,

    So you are saying that it is good, when the USPTO issues ten patents for the same invention?

    I’ve seen this happen, and the oldest be predated by sales in the market of the invention.

    Wayne

  67. Wayne @65
    Once again you are shuffling feet and trying to switch topics.
    You argued that SCOTUs is merely “following the rules”.
    I proved with “facts” that no they are not, they are legislating new rules which is contrary to the US Constitution.
    It seems that does not bother you.
    The ends justify the means?
    You don’t like the concept of securing for inventors the exclusive rights to their discoveries (see US Constitution Article Section 8, Clause 8) and therefore whatever SCOTUS does, no matter how illegal, that is fine for you?
    We all see where you are coming from.

    SCOTUS= ISIS= Illegally Selling-out-on Inventors and Statutes-of35USC :-(

  68. Step Back,

    Had to go read the earlier comments again. I think I see where you are coming from now.

    No, I don’t think the Supreme Court should ‘make’ law, but they are supposed to determine if law is Constitutional and interpret said law. I haven’t read the full ruling, so I’m not sure if that is what they did here.

    That said, I stand by my comment about the USPTO being incapable of following the law as laid out. This case should have never gotten to court because this patent should never have been issued.

    The USPTO has been issuing junk patents for a long time. This is a huge problem. Many of these patents are, as I described above, for non-patentable subject matter.

    This is not meant to be an aspersion on the staff at the USPTO. The problem is that they don’t have the time, or the tools, to make a proper determination. The push to ‘issue more patents’ only made things worse.

    I personally do not think that the USPTO is fixable, but I could be wrong.

    Wayne
    http://madhatter.ca

  69. Wayne,

    You could be. It’s usually a positive to be open minded. :-)