Senator Tillis: Here’s the Answer to Section 101

“S. 4734…takes us back to the beginning [of attempts to fix 101] by codifying exceptions, but in a different way and with much more complexity. This back and forth shows that Congress is obviously dancing around [the fact] that 101 worked before Alice, but since Alice, it doesn’t.”

Section 101 - https://depositphotos.com/24396939/stock-photo-solutions-ahead.htmlIn early August, Senator Tillis (R-NC) proposed legislation called the Patent Eligibility Restoration Act of 2022, (S. 4734). US Inventor wrote a response to this legislation showing how it will destroy already damaged patent protection for U.S. software inventors and startups. Included in this destruction will be some of the most important inventions to U.S. technological development, economic growth and national security, like artificial intelligence, security systems, block chain, quantum computing, and much more, including anything that could compete with Big Tech’s core technology.

This legislation is dangerously misguided.

In a recent interview with IP Watchdog, Tillis was asked about some of the fatal concerns we identified in our response. Tillis brushed those concerns off by saying that he doesn’t want to hear complaints without solutions.

Fair enough.

While US Inventor’s views may be unknown to Tillis, we have repeatedly made them known to Tillis’ 101 task force, his staff, in Senate testimony, and in articles on US Inventor and IP Watchdog since the very beginning.

Why Did 101 Get Screwed Up in the First Place?

Big Tech lobbyists created two false narratives and steam rolled them through the halls of Congress, the courts and the administration until they acted on these fairy tales.

The first is the patent troll lie. This cartoonish narrative has been debunked here, here, here, and in many other places. The truth is that there is no such thing as a patent troll. What Big Tech lobbyists and their sycophants describe as a patent troll is any entity suing Big Tech for patent infringement. However, these entities are often the remnants of a startup and its investors who are simply trying to recover losses caused by Big Tech infringement, or, ironically, a Big Tech multinational’s patent portfolio sold to investors to monetize.

The other lie is that there are bad patents running around attacking poor Big Tech monopolies. This false narrative has also been thoroughly debunked here, here and in other places.

A bad patent can only be bad if it has a negative effect. If the patent is infringed, it cannot be bad because the invention is useful and marketable, and therefore promotes the progress, which is the very purpose of the patent system. If it is not infringed, it cannot be litigated, so there can never be a negative effect.

In either case, there is a positive effect because the inventor helped fund the U.S. Patent and Trademark Office (USPTO) by paying fees and likely hired a lawyer thus supporting the larger economy.

It is important to understand that a negative effect can only happen if the patent is litigated. Since the patent holder does not participate in a decision to infringe their own patents, this negative effect is caused solely by the infringer who made that decision.

The bad patent narrative flips reality on its head by blaming the patent rather than the infringer. The truth is a so-called bad patent can only be one that is infringed, and the bad actor can only be the infringer.

Nonetheless, in 2014, the Supreme Court bought these false narratives hook, line and sinker, and legislated an exception to the word “any” in Section 101 called an “abstract idea” in Alice v. CLS Bank.

All-of-Government Failure

Section 101 originated in the Patent Act of 1952. Under Section 282, 101 is deliberately excluded as a means to challenge the validity of a patent, but the courts ignore this black letter law, thus allowing illegitimate 101 challenges anyway.

One of those 101 challenges resulted in Alice, which amounts to a power grab by the Supreme Court of the policy making authority that is the sole and exclusive domain of Congress. Congress should have taken their authority by abrogating Alice back in 2014, and the USPTO should have ignored it.

But they played along instead, and that all-of-government failure destroyed the presumption of validity of all patents, which is required to attract investment into early-stage startups.

Big Tech opened the spigot on infringement, so many startups competing with Big Tech were forced to sue them for patent infringement only to lose their patents and often everything invested in the startup. For others, their investors stopped investing and moved on to better pastures like real estate. Still others could not get their patents granted by the USPTO.

This all-of-government failure led to the destruction of thousands of tech startups, the monopolization of Big Tech, and the exodus of early-stage investment from U.S. startups to Chinese startups.

The Problems of Alice v. CLS Bank

Alice created an exception to the word “any” called the “abstract idea” in Section 101’s description of patent eligible subject matter. However, the Supreme Court did not define what an abstract idea is. Instead, they left it to the lower courts to figure out. The U.S. Court of Appeals for the Federal Circuit (CAFC) also failed to define what an abstract idea is. In the vast majority of appeals, the CAFC issued one-word Rule 36 affirmances. In those few cases where the CAFC answered the appeal, it provided vague and conflicting rulings.

Trial courts were left sorting through the 101 chaos that higher courts created and then ignored. The worst trial courts used 101 as a docket-clearing mechanism, unjustly invalidating many patents as abstract ideas. Even responsible trial courts can’t figure out what is or isn’t an abstract idea and often invalidate meritorious patents.

This muddled mess causes almost all 101 decisions to conflate one or more of the statutory constructs of patentability (Sections 102, 103 and 112) into their 101 analysis. It makes no sense logically or legally, and it destroys the presumption of validity required under 282.

Shamelessly, the courts stand willfully blind to their role in creating the havoc even as the next generation of emerging technology flees to China and Big Tech monopolies grow far too powerful.

Prior and Current Legislative Proposals Attempt the Impossible

Big Tech lobbyists have proffered multiple legislative remedies, each protecting their monopolies, and none protecting the software industry and its startups who would one day supplant them.

The first was to codify Alice as it is.  But “as it is” is the problem. Almost as soon as it was proposed, it was scuttled and replaced by a new proposal to eliminate exceptions while enhancing Sections 100 and 112.  But this required that software patents be written to the code level. With thousands of programming languages, nobody could encompass all possible ways of coding it. In an attempt to do so, software patents would be thousands of pages long, yet remain, like Swiss cheese, full of holes.

  1. 4734 now takes us back to the beginning by codifying exceptions, but in a different way and with much more complexity.

This back and forth shows that Congress is obviously dancing around something that it cannot avoid. That something is that 101 worked before Alice, but since Alice, it doesn’t. And trapping any just solution in the shredding room is Big Tech’s powerful lobby with lots of big bucks, influence and arm twisting.

It’s a repeating loop Congress can’t seem to escape. But if Congress doesn’t get this 101 issue resolved soon, we can kiss our once great and vibrant software industry goodbye.

There is a Petri dish effect taking place in China that builds and concentrates capital and know-how as they invent and commercialize new technology, which will keep that tech in China for a generation.

It’s been eight years since Alice was handed down. If we delay much longer, Big Tech monopolies will grow so powerful that not even antitrust laws will be able to break them up, and the United States will forever be in second place to China technologically, economically and militarily.

Fix It Right

Since nobody can know the future, nobody knows what inventions will come next. For that reason, in the Patent Act of 1952, Congress used the word any to encompass any future inventions. The word any worked just fine for more than 60 years, bringing huge advancements in U.S. technology to the world.

Today, Congress is obsessing on the wrong problem. It is trying to fix Judas Goat patent trolls and bad patents—narratives that are bold-faced lies created by Big Tech multinational corporations to perpetuate their monopolies by leading Congress to pass suicidal laws that send our most important industries to slaughter.

Just look at the results since Alice in 2014. Prior to Alice, established tech corporations were routinely run out of business by startups with better technologies. For example, Google sent Alta Vista and Yahoo into the dustbin of tech history. Apple and Samsung ran just about all their competitors out of the smartphone market. There are thousands of other examples. But since Alice, that creative destruction, once so prevalent in the technology industry, now hardly exists.

Look at the technological rise of China. Yes, they steal it and extort it in exchange for market access, but they are now developing new technologies faster than we are. The latter happened only after Alice.

So, Senator Tillis, here is the solution we have shared with your staff, the 101 task force, the Senate, and published on IP Watchdog and US Inventor:

Override the Supreme Court and restore 101 to its original meaning by eliminating all exceptions while ensuring that the statutory constructs of patentability do their job as they did so well for over six decades.

 

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46 comments so far. Add my comment.

  • [Avatar for B]
    B
    September 19, 2022 07:13 pm

    @ Anon “You are not an attorney, are you?”

    No – the guy is merely anti-patent altogether. Sort of like Dyk, Taranto et al. but with no power

  • [Avatar for Anon]
    Anon
    September 19, 2022 03:30 pm

    Mr. Whewell, your “inescapable fact” is inescapably incorrect.

    You are not an attorney, are you?

  • [Avatar for Chris Whewell of Burnet, Texas]
    Chris Whewell of Burnet, Texas
    September 16, 2022 07:48 pm

    Inescapable fact, the quality of any system depends on the mettle of its participants. That’s why the patent system has been in a state of medical… atrophy. Awww 🙁 For this reason, those who attack personally those who lack scruples of knowing what to assert righteously under the old laws, vote for me and I’my boys’ll roll em over. LOL Oh no, its the patent lawyers, look out when they come to town , ooooo

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    September 13, 2022 11:38 am

    Perhaps Greg can comment?

    My comment is that EPO examination quality is excellent now and has been excellent for as long as I have worked in this field. In fact, I believe that it is better in recent years, if only because Battistelli cleared the backlog, so it no longer takes so long to get the first examination report. For chem/pharma, EPO is second only to the Swiss patent office, and it is a very close second.

    In fairness to B, however, he and I work in different art fields. I have heard from multiple colleagues in the computer end of this business that the EPO searches are not so good. I know that my old firm used to prefer to use the Korean search office for software examination, even though we preferred EPO for all other searches. I expect, therefore, that B’s expressed dissatisfaction is fair, as far as it goes.

  • [Avatar for MaxDrei]
    MaxDrei
    September 13, 2022 03:31 am

    And now B says:

    “My only real observation is the drop in EPO patent quality in the last 2 decades”

    What drop is that then, B? Me, I don’t see it. And I am sure that my US corporate clients aren’t experiencing it either. Perhaps Greg can comment?

    B, are you now asserting that the drop in “quality” at the EPO, that you have experienced, explains your opinion that Europe, in terms of technological innovation, is steadily falling behind the rest of the world? Is that your only “real” observation?

    And as I write that last sentence, I realise what you are getting at: that when the EPO is ever more diligent in its examination of the EPC criteria for grant, you consider that to be a decline in EPO “quality”. Is that it? Is that what is, in your eyes, damping down innovation in Europe? Perhaps a patent system that issues patents with a presumption of validity but without any pre-issue examination on the merits would deliver more technological innovation? Is that your position?

  • [Avatar for B]
    B
    September 12, 2022 11:40 pm

    @ Greg

    I obviously misunderstood your point. No slight intended

    My apologies

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    September 12, 2022 11:12 pm

    Greg “It is a mistake to imagine that American companies are incentivized by American patents.”

    Respectfully, we are so going to have to disagree on this for many reasons.

    I cannot tell whether you sincerely did not understand my point, or whether you are trying deliberately to misinterpret me. To be clear, I definitely believe that American companies are incentivized by American patents. Also, European companies are incentivized by American patents. Also, Japanese, and Chinese, and Mexican, and Canadian (etc.) companies are incentivized by American patents.

    By the same token, American, and European, and Japanese, and Chinese (etc.) companies are incentivized by EP patents. And Japanese patents. And Chinese patents, etc.

    My point is that you cannot infer how effective a country’s patent laws are by looking at how innovative are that country’s companies. Companies in every country are incentivized by U.S. patents, so perturbations to U.S. patent law have global effect on innovation. If innovation lags in one country relative to another, you should probably look at other differences in those localities besides patent law (e.g., tax law, or immigration trends).

  • [Avatar for B]
    B
    September 12, 2022 10:58 pm

    @ Greg “It is a mistake to imagine that American companies are incentivized by American patents.”

    Respectfully, we are so going to have to disagree on this for many reasons. My only real observation is the drop in EPO patent quality in the last 2 decades. In 2002, I’d have said the EPO led the world in great examination. Now . . . meh

    “I assure you that Roche and AstraZeneca care just as much about their U.S. patents as do Pfizer and Amgen.”

    I would say more so just for market purposes.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    September 12, 2022 06:04 pm

    “European innovation is falling behind the rest of the world more and more every year.”

    European innovators face the same KSR standard as American innovators when Europeans file for U.S. patents. American innovators face the same problem-solution approach as European innovators when Americans file for EP patents. The local standards applied by each jurisdiction affect innovation in other jurisdictions.

    It is a mistake to imagine that American companies are incentivized by American patents, while European companies are incentivized by European patents. I assure you that Roche and AstraZeneca care just as much about their U.S. patents as do Pfizer and Amgen.

  • [Avatar for B]
    B
    September 12, 2022 03:57 pm

    @ Prof Sarnoff “Same would be true for 101 determinations where the field does not justify patent incentives for innovation relative to the opportunity costs of grants.”

    Now here is where you’re on the fast train to crazy town. Section 101 is merely to address what sort of things can be patented, not the standard of ingenuity that merits patents.

    It is your form of thinking that is 100% the cause of this idiotic chaos called Alice-Mayo. Justice Stevens opinions were all dishonest on patent eligibility

  • [Avatar for B]
    B
    September 12, 2022 03:48 pm

    @ MaxDrei “Those who plead for the eligibility filter to be discarded, and reliance instead to be put on the obviousness filter, should ask themselves whether that 103 filter, as it is today, is fit for purpose.”

    Alice-Mayo is not a “filter.” It is a capricious veto of a valid patent/patent application.

    And, yes, npnobviousness should absolutely be the standard.

    “Commenter “B” is a fan of the KSR standard but I say that in comparison with the EPO’s problem-solution approach to obviousness it looks hopelessly and hand-wavingly inadequate and unfit for purpose.”

    Well, if you feel that way . . . . but European innovation is falling behind the rest of the world more and more every year.

  • [Avatar for MaxDrei]
    MaxDrei
    September 12, 2022 03:39 pm

    Those who plead for the eligibility filter to be discarded, and reliance instead to be put on the obviousness filter, should ask themselves whether that 103 filter, as it is today, is fit for purpose. Commenter “B” is a fan of the KSR standard but I say that in comparison with the EPO’s problem-solution approach to obviousness it looks hopelessly and hand-wavingly inadequate and unfit for purpose.

    At the EPO, because the obviousness filter is so sythingly efficient, the eligibility filter is black swan rarely determinative of the case. To the contrary in the USA, where the eligibility filter has come in recent years to be ever more often called upon to do all the heavy lifting precisely because if examination gets as far as the obviousness filter the case gets lost in the weeds for years and years, at disproportionate and often ridiculous expense (which of course is a situation greatly cherished by, for example, an impecunious patent owner up against efficiently infringing BigCorp).

    This though is not the way to run a cost-efficient patent system. Justice is not justice if it isn’t speedy and efficient. Do something, to render the obviousness determination during pre-grant PTO examination, speedy, just, efficient, robust against reversal on appeal to the courts, and (most important) in tune with the imperative of encouraging (not hindering) technical progress. Let bad patents be swiftly extinguished and good patents swiftly enforced, however big and ugly the party that is infringing. Bring back respect for the patent system.

  • [Avatar for Model 101]
    Model 101
    September 12, 2022 03:14 pm

    Dr Josh Sarnoff

    We have jousted before.

    The exceptions change the meaning of 101, and

    They are not in 282.

    Why shouldn’t the cases killed by 101 be brought back?

  • [Avatar for B]
    B
    September 12, 2022 02:55 pm

    @ Prof Sarnoff “But let’s change the hypo to a patent that is valid but the non-obviousness threshold (as interpreted) is set too low. . . . .”

    This is why I’m a big fan of KSR v. Teleflex. If there’s a better standard than nonobviousness, I’m unaware if it.

    “Now we are back to doctrinal determinations, not examination errors. Same would be true for 101 determinations where the field does not justify patent incentives for innovation relative to the opportunity costs of grants. . . . ”

    My only position worth stating on this: Judges as a group are too stupid to make such doctrinal determinations, and the Supreme Court is so incredibly stupid they re-incorporated the standard of “invention” “flash of genius,” whatever – now called “inventive concept” that Judge Rich mocked.

    Rich even expressly mocked the term “inventive concept,” in In re Bergy (CCPA 1979)

    “Its just that the economists can’t tell us clearly when that is the case, but it almost certainly must be the case for some areas of discovery and creation.”

    You might be right, but one thing I know: Small business with great ideas and no IP cannot survive in today’s climate of SV moguls.

    Have a wonderful day, sir!

  • [Avatar for Pro Say]
    Pro Say
    September 12, 2022 02:15 pm

    C.W. at 9/11:

    Done: https://www.regulations.gov/comment/PTO-P-2022-0026-0002

    Note, however, that it is the PTO asking for comments, not Congress.

    Concerning Congress, I have twice over these past months sent by Priority Mail to all members of the sub-committee what they should do in order to restore patent eligibility to all areas of innovation.

  • [Avatar for Josh Sarnoff]
    Josh Sarnoff
    September 12, 2022 12:41 pm

    @B: “Very true, but respectfully this merely goes to the quality of examination, not any specific statutory language.”

    Of course, although I was responding only to the idea that an issued patent cannot be bad (because it can have no negative effects) – which is simply and clearly false. But let’s change the hypo to a patent that is valid but the non-obviousness threshold (as interpreted) is set too low. Now the issued patent is valid. But it is just as harmful (because society is or would soon be constructively in possession of the invention, and by hypothesis of being set too low the grant causes greater harm to sequential innovation and competition than it induces original invention and competition). Now we are back to doctrinal determinations, not examination errors. Same would be true for 101 determinations where the field does not justify patent incentives for innovation relative to the opportunity costs of grants. Its just that the economists can’t tell us clearly when that is the case, but it almost certainly must be the case for some areas of discovery and creation.

  • [Avatar for B]
    B
    September 12, 2022 11:37 am

    @ Prof Sarnoff “If a patent should not have issued (e.g., not novel), it may be infringed but does not promote progress – rather it restricts both innovation and commercialization (of competition). . . . ”

    Very true, but respectfully this merely goes to the quality of examination, not any specific statutory language.

    “And trying to calculate how much opportunity cost is worth the price of a good (here understood as valid under current law) patent is something the economists have never been able to settle.”

    Who needs economists?

    We have people in black robes – most with liberal arts degrees – who know everything technical so well that statutes are a hindrance to their brilliance

  • [Avatar for Josh Sarnoff]
    Josh Sarnoff
    September 12, 2022 11:25 am

    As Max Drei noted, the following statements in the blog post are clearly wrong, as they fail to understand that there are opportunity costs to issuing patents. “A bad patent can only be bad if it has a negative effect. If the patent is infringed, it cannot be bad because the invention is useful and marketable, and therefore promotes the progress, which is the very purpose of the patent system. If it is not infringed, it cannot be litigated, so there can never be a negative effect.” If a patent should not have issued (e.g., not novel), it may be infringed but does not promote progress – rather it restricts both innovation and commercialization (of competition). If it is not infringed, it may still have a negative effect by warning off innovation and competition, precisely because it is actionable if infringed (and by hypothesis should not have issued). And trying to calculate how much opportunity cost is worth the price of a good (here understood as valid under current law) patent is something the economists have never been able to settle. So it really would be better if this article had more logical premises before reaching any conclusions, as conclusions based on false premises are clearly invalid (even if the same conclusions might be correct if they were based on correct premises, although none are offered here).

  • [Avatar for Paul Morinville]
    Paul Morinville
    September 12, 2022 03:31 am

    B. 512-294-9563. Give me a call. That’s my real number. If anyone else wants to, please call… with discretion, of course.

  • [Avatar for B]
    B
    September 12, 2022 12:26 am

    @ Paul “Tillis brushed those concerns off by saying that he doesn’t want to hear complaints without solutions.”

    Call me exactly about this issue

    B

  • [Avatar for C.W.]
    C.W.
    September 11, 2022 06:57 pm

    Dear Pro Say, send it to Congress, there’s a link for comments if you haven’t seen it, it is easy to find for any pro say. Oct. 12 or 15 is the deadline, I don’t reckon yu’ll get much traction on this posting board unless you have more to add than you just shared, and if you have more please share it ! It is an important time for the position the US might have in the future and if the interests of the US align with yours, I hope you take up sersiously refining your versions of comments before you submit them to Congress via the portal for consideration. 🙂 Most of us are gonna die in the next 50 years, lets leave the posterity with a bigger glimmer of hope than a tiny lightbeam from a partially-opened curtain. hahaha, it is your unpaid job (and every Practioner’s almost) to have input sent to the proper place !!

  • [Avatar for Pro Say]
    Pro Say
    September 11, 2022 06:47 pm

    Two simple steps to restore American innovation leadership is all that’s needed:

    1. Delete the innovation-toxic Section 101.

    2. Make it retroactive.

    All problems solved. Past. Present. Future.

    Well-established Sections 102, 103, and 112 will block and remove any undeserving patents.

    Just as they’ve done for some 70 years now.

    This is the one and only way SCOTUS and the CAFC can be prevented from ever again usurping the eligibility authority our Constitution grants exclusively to Congress.

    The one and only way.

  • [Avatar for C. W.]
    C. W.
    September 11, 2022 06:39 pm

    Think of it this way too, that the whole patent law and enforcement scheme, defines the Environment. Since even Countries, Cultures, Societies, etc. as organic entities, that makes their function to be responsive to environment. It is ancient knowledge even from the famous Canadian physician O. C. Gruner, that the colon bacillus can be made to take on many different forms, based on its environment, photos and free .pdf here: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1560962/

    See also Dr. Enderlein’s work, and many others. Lysenko & mre

    It is the Environment, which a beneficial patent system affords, which enables inventors to reap a little slice of benefit temporarily, whilst affording Society a payback in multiples.

    Many have opined that colon bacillus can lead to some really bad things, if permitted to proliferate beyond normal biological restraint.

    So it is too, with patent laws, and the environment the Law creates.

    “Climate change is the biggest driver of evolution” – Detective Harry Orwell in the 1st season.

    Climate change is visiting your patent law, the environment you create, is up to ….. nobody else but YOU.

    Notice the mention of asparagus in Dr. Gruner’s paper ?

  • [Avatar for C.W.]
    C.W.
    September 11, 2022 05:47 pm

    @ Concerned, thanks. I’m thinking to write up a proposal, and its probably clear to everyone that there are some aspects of this which everybody agrees on. It seems maybe the “right’ thing to do is codify as many of the “judicial exceptions” as can be codified. I need to get the proposed Bill, and confess procrastination but sufficient time remains. If the current proposal actually includes the words “Sense of Congress”, that’s clearly just someone tellin a “funny”, cuz everybody including Foghorn Leghorn immediately recognizes an oxymoron. What is undesirable is for some future modification of legislation now being worked-up, to be made basis the clear evident stated intent sense of Congress, and then have the remainder of the passage be indefinite enough to create further chaos. Ya don’t want ppl 10 yrs down the road twisting what the “sense of Congress” was based on word fluidity, and “sense of Congress” language has no place in a statute, obviously. Sen. Tillis was possibly stating tacitly by introduction of the legislation: “This is what yer gonna get, unless ya’ all speak up”.

  • [Avatar for concerned]
    concerned
    September 11, 2022 08:59 am

    CW:

    Agree on old business method slapped on computer, no patent. Reject under 103 WITH evidence like Alice did (old textbooks.)

  • [Avatar for C.W.]
    C.W.
    September 11, 2022 08:35 am

    Thanks Max, it is hard to say or conclude much from what ppl write on many of these communications, simply b/c of the nature of the subject matter, cultural and historical differences, experience levels. Since we’re not being paid for commenting, I’d wager most people don’t put as much thought into word precision, as they might, since many comments are “off the cuff”.

    These “eligibility” issues seem to have mostly arisen when the “computer age” landed in our laps.

    Not changing the subject, but, it seems rather rigid, this notion of “patent term” – i.e., how long a patent is in force for. Twenty years from the filing date is a common term, and in the US Design patents have a lesser term

    I wonder whether some new class of patent term might be originated, for say, software patents, but give them a reduced term, such as eight years from the issuance date.

    There were many patents I saw issued, where the applicant had merely applied the use of a computer to routine business “methods”. It is one side that the independent inventors do not take – to consider the effect of a bullshhht patent on the business. As in, we have to go to the President of the company and tell them that we think the Schmidt patent is totally BS, but if we challlenge it, it can take years and milions of $$ to get rid of that bogus patent. Haha, I caught a lot of flak for “siding with the bad guys” but the bad guys weren’t really bad, they were right !!

    Bona fide patents restrain trade allright.

    But what is worse is when there is a bogus bllsht patent, which is unrightfully restraining trade.

    Isn’t that what we’re after ? We want to filter out the patents which should not have been allowed in the first place, which causes my client to have to needlessly spend money nullifying a patent that should have never been issued. I’ve seen those restrain trade quite a few times as you probably have too. It leaves a bad taste, to be restrained by a quasi-fraudulent patent document which should have never been granted !

    I didn’t look at the quote or that Paul had written it. But I’ve read Paul’s writings enough to know he writes very well ! I also sometimes am less careful with word precision on some of these comments, since the words are free of charge 🙂

  • [Avatar for concerned]
    concerned
    September 11, 2022 07:54 am

    My discovery was deemed just information processing. No 102, 103 or 112 rejections. The process also solved a problem that existed since 1956, the inception of the government program.

    Millions have been involved with this program since 1956, yet no one solved this problem which said problem has big downside.

    People called my invention simple, ridiculed the professionals in my field for not discovering it sooner, deemed not “wow” enough, etc. However, the process was new and useful within the Alice decision, not the conflated CAFC opinions.

    Who cares if it is allegedly information processing other than the anointed? It solved a problem in society (undisputed) using a new approach with data never collected in this field, which we proved.

    What more does any one want?

  • [Avatar for MaxDrei]
    MaxDrei
    September 11, 2022 07:05 am

    Well, NW, there’s the thing, I reckon, in a nutshell. Is “information processing” as such, within the meaning of “the useful arts”. Patents on social media algorithms, perhaps?

    But perhaps I misunderstand you. I gather that you have in mind specific “areas” within the umbrella term “information processing”.

    OK then. Question duly begged. Are only certain areas of “information processing” apt for patenting, or is information processing indiscriminately patentable (so long as such processing, clearly defined, is new and not obvious)?

  • [Avatar for Night Writer]
    Night Writer
    September 11, 2022 06:48 am

    The current Tillis amendment is horrendously bad that would end patents in many areas of information processing. It is a gift to the efficient infringer and would result in the end of many start-up companies and many researchers.

    It is gaslighting at its worse that Tillis is pretending that this bill is anything but that.

  • [Avatar for MaxDrei]
    MaxDrei
    September 11, 2022 05:21 am

    Paul, I didn’t dub what you wrote “weasel words”. That was CW. I was replying to CW.

    CW was picking you up on YOUR omission of the qualifying words “useful arts” from YOUR “promote the progress” quote from the patents clause of the Constitution. I invite you to check out the thread.

    CW: Yes of course there are restraints on our freedom, wherever we look. How otherwise can a representative democracy function? We want it to function, I hope. The grant of exclusive rights for a limited term can promote the progress of the useful arts. I don’t doubt that. I’m only saying that one has to be careful handing out State grants that restrain trade, to make sure they are confined to that which will promote progress in the useful arts. Granting them outside the confines of the useful arts can hinder rather than promote societal progress. Given Paul’s vehemence on patent rights for all, one might wonder whether Paul’s omission of the words “useful arts” from his reference to the Patents Clause was a deliberate act on his part. I meant what I wrote, that the only sort of inventiveness that justifies 20 years of exclusive rights is technological inventiveness. Using the internet to perform a business method is no longer patentably inventive.

  • [Avatar for C.W.]
    C.W.
    September 10, 2022 03:57 pm

    @Max

    yes, that statement problematic in a few ways: “If the patent is infringed, it cannot be bad because the invention is useful and marketable, and therefore promotes the progress, which is the very purpose of the patent system”

    I usually leave statements like that alone 🙂

    To the point though, I do agree a right to exclude others is a restraint, in theory, on others’ behavior. But people don’t like to be told what to do or what not to do, so they resist. Back in the days of the ’49ers in the California gold fields, claim theft was common ! For a very long time, most ppl in the world were agreed on how these patent exclusivities were to be treated, and matters operated fairly smoothly for several decades, I think because ppl treated one another with a different degree of business respect and boundaries and remedies were respected, enabling cooperative competition.

    But is there anyting fundamentally wrong with restraining trade ? Patents are only temporary restraints, compared to the many many many many more restraints on trade the various nation states impose on their own people and trading partners.

    Laws against various forms of contraband items by various governments or nationstates restrict free trade. One example is perhaps brominated vegetable oils as food additives – banned in the EU, but permissible in the US. Does the EU ban on BVO constitute a restraint on trade ? Yes, many more examples like that abound, and if illicit drugs and weaponry restraint laws are included, trade is seen to be quite severely restrained. Certainly, the ban on the import into the US of certain VW model vehicles based on their mpg ratings is a restraint on trade too. Moreover, I could not bring a 100 gram packet of deer meat jerky from Norway into the US – trade restraint ! So, restraining trade happens all the time, except most of it is perpetual, whereas a patent is only temporary in effect.

    Compared to all the other forms of trade restraint imposed by legal authorities, I’d wager the relative proportion of restraint caused by patents is eeency weency teeny tiny compared to the volume of other restraints. I’d say it’s insignificant, for otherwise somebody would have been kvetching on this 30 years ago, but it is a rather recent kvetching.

    Given that tiny proportion of restraint and the temporary effect but huge benefit history has proven patents provides, it makes no sense to me that those who seek to destroy private property rights see patents as even being worth their efforts.

    Clearly much more is at stake !!

    Breathe a sigh of relief however, that a patent is only a temporary restraint on trespassers.

  • [Avatar for Paul Morinville]
    Paul Morinville
    September 10, 2022 03:06 pm

    MaxDrei, The phrase “promote the progress” (whihc you call weasel words) is taken directly from the US Constitution (Article I, Section 8, Clause 8) and that is the express purpose of the patent system. Not many folks actually read the Constitution. Perhaps I can send you a copy?

    Economics is a hard subject especially for those troubled by reading and logic. As it relates to patents, here is an explanation simplified for folks who need a little help understand complicated stuff.

    https://www.ipwatchdog.com/2019/04/09/startups-with-patents-are-the-ultimate-anti-monopoly/

  • [Avatar for MaxDrei]
    MaxDrei
    September 10, 2022 02:24 pm

    CW: I feel compelled to reply to your reply to me.

    First: It wasn’t me who adopted the weasel words but rather the writers of the piece itself. See:

    “If the patent is infringed, it cannot be bad because the invention is useful and marketable, and therefore promotes the progress, which is the very purpose of the patent system”

    Second: How can you dispute that the right given by the grant of a patent is anything else but a restraint of trade. The right given by grant is the right to exclude (from making, selling, using, importing, and so on). Are you telling us that the right so to exclude is not a restraint? If so, please explain your point of view. But meanwhile, I cannot imagine any greater “restraint” than a powerful right absolutely to exclude altogether from the channels of trade such acts as offering for sale.

    Over to you.

  • [Avatar for PTO-indentured]
    PTO-indentured
    September 10, 2022 11:17 am

    Take US’s Ever-Declining Share of the Global eCommerce Market — Since Alice — for example:

    Three multinational corporations combined control a whopping 70% share of the Global eCommerce Market, only one is a US company and it is under attack by an irreversible Multi-Vendor Platform Marketplace (Next BIG Thing wave), enticing one out of four of its ‘merchants’ to actively seek a new Platform to ‘jump ship’ (e.g., to a less gouging competitor) — or to simply be bought-out from under their US incumbent (legacy) company.

    So, what’s happened since ‘Alice’

    US Ever-Declining Share of Global e-Commerce:

    2015 – 22.2%
    2016 – 20.7%
    2017 – 19.4%
    2018 – 18.3%
    2019 – 17.6%
    2020 – 16.9%*

    Gee Congress, US Courts, US Patent Office — if only we had had strong, defensible software/tech US patents that issued during this time period that could have slowed, stopped or reversed this nosedive.

    * Not too unlike AIA’s / PTAB’s nosediving — just a few years earlier — the US patent system to 17th ranked globally according to the US Chamber of Commerce.

    Hmm, let’s see … do we really want to see what Big Tech efforts / ‘influencing’ / false narratives will lead to next?

  • [Avatar for Paul Morinville]
    Paul Morinville
    September 10, 2022 10:59 am

    Bob, that is my preferred solution. Get rid of it.

  • [Avatar for C.W.]
    C.W.
    September 10, 2022 07:11 am

    “What promotes progress in society is trade, and a patent is by definition a restraint of trade.”

    hahahahaha. That’s a good one , a real knee-slapper.

    If you’re talking about US patent law, the operative phrase in the Constitution For the united States of America is “progress in the useful arts”, not the nebulous weasel-word “progress”. Lacking this basic understanding means you go sideways and backwards, but never forward, which is why “progressiveness” is inherently destructive and anti-thetical to the founding principles of the national government, a fact well-known over a century now. Basis the maxim cessante ratione legis cessat ipsa lex applies, it can be argued that the progressives render null the reasons why any reasonable mind would support an entity which lacks legitimacy, due to its having abolished the reasons for its own existence.

    Considering properly, “progress in the useful arts”, example is when Dr. Edwin Lamb invented instant photography on US soil, as soon as he snappd the first successful photo, it was an act evidencing an achievement in a useful art. Trade had nothing to do with it. Many examples, when Nernst made his lamp successful, trade in those lamps was non-extent. Trade comes later, maybe. Do the marble traders want to keep trading the same old stuff, or do they want newer and cooler stuff ?

    Progress in the useful arts occurs regardless of any commercial activity – you only get to see it commercialized, if the inventors decide to share it – even in a corporate setting. But it is not visible, the inventions which inventors choose not to disclose b/c they know they would be abused by petty ones, so it lacks traction as a motivator, akin to preventive health – you don’t experience the malady that you prevented.

    It certainly is understandable that some sociopathic/ greedy money-grubbers will tend to look at patent law from their narcissistic standpoints, and their immense ability to affect our lawmakers, totally fubars ….. their own posterity by focusing on trade and forgetting a main purpose of the patent system, which is civilizational advancement, by promoting advancement of the useful arts, not something as lame as trade, which 4th graders do with their marbles on the playground. Is it “progress” to have Vinny, the best marble-trader on the playground, gain the power to tell the science department what to do ?

    How can the Economists be persuaded to step in and stop the current miscreants and their nonsense ? I think to teach them some of the finer points on how they are shooting themselves in the foot by allowing things to become so disheveled. Don’t forget that patent commissioner who wanted to disband the PTO 150 yrs ago because “everything useful had already been invented” it is the same situation today.

    Trade is an after-the-fact outcome, resulting from an advancement in a useful art.

    Patents are only seen as inhibitors of trade, by the unrighteous or the uninformed.

    hahahaha, have a good day.

  • [Avatar for MaxDrei]
    MaxDrei
    September 10, 2022 05:56 am

    The premise that patenting any subject matter which is useful and marketable will “promote the progress” is not convincing for me because it doesn’t define what is meant by “the progress”. What promotes progress in society is trade, and a patent is by definition a restraint of trade.

    Perhaps you mean technological progress though? Perhaps GATT-TRIPS has it right, in confining patentability to a new, enabled and not obvious contributions that are to be found in a field of technology?

    That China is making technological progress is indisputable. Not so, that it has done so only because of recent Supreme Court decisions on eligibility. One should be very cautious of any proposition that event Y, occurring after event X, was caused by X.

    Other jurisdictions that take a more permissive line on eligibility do their filtering of patentability downstream, under their obviousness law. That any given subject matter is not “obvious” outside the realms of technology is no help to patentability. Non-obviousness within a field of technology is (or should be) the touchstone of patentability.

  • [Avatar for Bob Weber]
    Bob Weber
    September 10, 2022 05:47 am

    A few have suggested deleting 101 and relying on 102 and 103 etc.

  • [Avatar for Night Writer]
    Night Writer
    September 9, 2022 03:13 pm

    I commented before. The Tillis 101 would vastly reduce what is elgible.

  • [Avatar for Model 101]
    Model 101
    September 9, 2022 02:15 pm

    The new law should be retroactive and it should clearly say the word RETROACTIVE somewhere in the text.

    Again: Retroactive. Got it.

    We inventors want our day in court.

    Senator Tillis, I shook your hand in good faith at the Senate Hearings thinking you would be our champion.

    The ball is in your court. Please don’t turn it over
    .

  • [Avatar for Curious]
    Curious
    September 9, 2022 01:20 pm

    Exception.—A claimed invention is ineligible patent subject matter under subsection (a) if the claimed invention as a whole, as understood by a person having ordinary skill in the art, exists in nature independently of and prior to any human activity, or exists solely in the human mind.
    The problem I have with this proposal is the inclusion of the “as a whole” part. Per Diehr, an invention is already supposed to be evaluated “as a whole.” As such, this language seemingly just codifies that portion of Diehr.

    However, we all know that despite Diehr, the Federal Circuit still ignores limitations in evaluating the invention “as a whole,” and this proposed statutory language does not appear to change this. If so, we could be left with the Court making determinations as to the invention “as a whole” that involves ignoring certain limitations, which then allows the Court to argue that the invention “exists solely in the human mind.” In other words, we would be back to dark place from which we started.

  • [Avatar for Paul Morinville]
    Paul Morinville
    September 9, 2022 12:44 pm

    From HR 5874, Restoring America’s Leadership in Innovation Act of 2021 should work.

    § 101. Inventions patentable

    “(a) In general.—Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

    “(b) Exception.—A claimed invention is ineligible patent subject matter under subsection (a) if the claimed invention as a whole, as understood by a person having ordinary skill in the art, exists in nature independently of and prior to any human activity, or exists solely in the human mind.

    “(c) Eligibility standard.—The eligibility of a claimed invention under subsections (a) and (b) shall be determined without regard as to the requirements or conditions of sections 102, 103, and 112 of this title, or the claimed invention’s inventive concept.”.

    (b) Sense of Congress.—It is the sense of Congress that—

    (1) the Supreme Court’s recent jurisprudence concerning subject matter patentability has harmed the progress of science and the useful arts;

    (2) the United States patent system must protect and encourage research and development in such scientific disciplines as would promote the progress of science and the useful arts by securing for limited times to inventors the exclusive rights to their discoveries and provide scientists in the life sciences, computer sciences, and other disciplines, with certainty that their discoveries and inventions are entitled to patent protection; and

    (3) this amendment effectively abrogates Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), Bilski v. Kappos, 561 U.S. 593 (2010), Association for Molecular Pathology v. Myriad Genetics, 569 U.S. 576 (2013), Mayo Collaborative Services v. Prometheus Laboratories, 566 U.S. 66 (2012), and its predecessors to ensure that life sciences discoveries, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.

  • [Avatar for Curious]
    Curious
    September 9, 2022 10:41 am

    Override the Supreme Court and restore 101 to its original meaning by eliminating all exceptions while ensuring that the statutory constructs of patentability do their job as they did so well for over six decades.
    I’m all for it, but how do you propose to do it? What is the statutory language that is going to fix it? The devil is in the details. And this article is lacking the details.

  • [Avatar for Pro Say]
    Pro Say
    September 9, 2022 10:25 am

    Bravo, guys. Bravo.

    Senator Tillis and colleagues, your asked for a solution.

    There you have it. Quick. Easy. Effective.

    Now, what say you?

    Do you all stand with and fight for inventors and America, or Big Tech?

    You must choose.

  • [Avatar for C.W]
    C.W
    September 9, 2022 09:26 am

    Thanks for that nice write-up, Paul. It sounds as if the next step is to put the entire text of the proposed language into a Word processing program, do some strikethroughs, and additions, make it what it should be.

  • [Avatar for concerned]
    concerned
    September 9, 2022 08:28 am

    Great article with a great solution. My attorney suggested the same solution in appeal, via the Dobbs decision, to throw out all judicial exceptions. The CAFC overruled us. My claims have no 102, 103 or 112 rejections.

    I have a small start-up company with a “Letter of Intent” from a large concern. My claims solved a decades old problem. That letter is deemed worthless without the patent.

    Good luck with your efforts!

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