Posts Tagged: "Alice"

Naked Emperors: A Supreme Court Patent Tale

The idea that the Supreme Court is at all capable of understanding — let alone deciding — issues of a technical nature is ridiculous. Yet their individual and collective lack of knowledge hasn’t prevented them from reaching misguided decisions in a variety of cases. Like an Emperor without any clothes the Supreme Court seems blissfully ignorant of their own ignorance. Indeed, you would have to go out of your way to find nine less qualified people to decide issues of a technological nature.

Is there a future for software patents in an age of software innovation?

Normally when there is a rejection the innovation itself has not been rejected, but rather the particular way in which it has been claimed is found to be unacceptable for one reason or another. The insidious nature of patent eligibility rejections, however, is that that innovation itself is rejected without regard to whether the innovation is useful, new, non-obvious and described well enough. A finality in the decision making process is reached even before any substantive inquiry is made about the nature and quality of the innovation. Such cursory decisions at the front end, without any factual inquiry into the merits of the invention, can render an entire category of innovation dead on conception, which is why patent eligibility has always been historically viewed as a low threshold inquiry, not the insurmountable mountain that it has become.

These Are the 20 Hardest and Easiest Art Units

Art Unit 3689 has the lowest allowance rate at 7.7%. Art Unit 3659 has the highest at 98.3%. Oddly enough, these two art units are from the same technology center. It’s worth noting, however, that the 3600s deal with a variety of inventions, including transportation, e-commerce, and national security. Of the 20 art units with the lowest allowance rates, eight are in the 3600’s. This is not surprising. After all, the 3600’s host many business-method art units.

Patent market dynamics and the impact of Alice and the AIA

The market price plummeted in the second half of 2011, and set off the downward spiral that stormed through the second half of 2013 when the market price reached the record low. There had been no discernible macroeconomic factors to justify the drastic decline in market price during the two years leading up to the end of 2013. As a result, the industry-specific factors might have been the culprit, among which the most prominent is the enacting of America Invents Act (AIA) in September 2011, as demonstrated by the econometric analysis above.

How to Fix the Software Patent Mess: Go Back to Basics

If U.S. patent eligibility rules were more clear and predictable, the useful art of software development would be more prevalent. The “notorious computer” of the European Patent Office offers a viable option for reaching this objective. This approach would make business less uncertain as to whether not their proposed investments in software could receive patent protection. And reducing this risk would promote the future useful art of software development.

Retroactive changes to patent eligibility law suggest patents are not a property right

Changing the rules of the game is fundamentally unfair, which would be obvious to everyone if we were talking about football, soccer or playing a board game. Somehow common sense is abandoned when dealing with patents. Changing patent laws in midstream seems particularly un-American, both because it disturbs vested property rights and because it is quintessentially anti-inventor. If we want to maximize a property rights regime it must be certain, stable and predictable. Patents are no exception.

The Unforeseen Impact of Alice

The fact is, patent examiners are struggling with the application of 35 USC 101 in light of the Alice decision just as much as everyone else. Greater uncertainty among both patent applicants and patent examiners surely increases the likelihood of disagreement between them. Thus, the Alice decision will not just increase the number of rejections under 35 USC 101, but is also likely to result in more rebuttals by applicants and more appeals of examiner decisions. A loss in patent examination efficiency, even if small, will act as a headwind against further reductions in patent pendency.

The European technical standard as a guide for drafting software patents

”A few years ago we ramped up our foreign filings and recognized that we’re writing this one document, this one patent application for so many different audiences. We started settling in on the European technical standard as a guide for how to draft, how to cover the innovation from that vantage point, in order to try to write this document that would satisfy the USPTO as well as the EPO, Chinese Patent Office, the Japanese Patent Office, and so on. So for me, what this environment means as a practitioner has more to do with how the patent is drafted and how we capture the innovation, and not really a huge difference about what the underlying innovation is or how it’s implemented.”

Methods of Organizing Human Activities

Sadly, this is not an isolated case. I’ve seen similar rejections in a diverse (and utterly random) number of art areas and technologies ranging from predictive computer algorithms, to voice recognition technology, to methods for user-customization of advertising received on a device. While some of the rejected claims were arguably directed to an abstract idea, only a small minority had any apparent connection to “organizing human activity” as that phrase has been used in the case law.

On the Road in March 2015

I will be criss-crossing the country again in March 2015, with stops in Washington, DC, Chicago, Michigan, and San Fransisco. What follows is my schedule for the month. If you are in the area come out to say hello.

America Must be the Leader in Patenting Innovations, Including Software

I do feel that the whole notion of trying to find an “inventive concept” is really challenged. While the Supreme Court went out of its way to say we are really not putting Sections 102 or 103 in here, I think what’s happening is the Courts are basically trying to do that. And they’re looking deeply into prior art in some cases to knock out patents under Section 101 and whittle away the invention, and trying to find the abstract idea by doing a prior art analysis, and I think that’s troubling.

A Software Patent Setback: Alice v. CLS Bank

Truthfully, the Supreme Court decision in Alice can only be described as an intellectually bankrupt. The Supreme Court never once used the word “software” in its decision. The failure to mention software a single time is breathtaking given that the Supreme Court decision in Alice will render many hundreds of thousands of software patents completely useless. Ironically, at the end of the day, software patent claims written in typical, industry standard format will result in patent ineligible claims. Yet, at the same time, business methods are patentable. To call this bizarre and inconsistent doesn’t begin to scratch the surface.

Surviving §101 Step 2: Is there ‘Significantly More’?

Earlier this year the Supreme Court issued a ruling in Alice Corp. v CLS Bank Int’l, which applied the Mayo 2-part test to computer-implemented subject matter.[2] The 2-part test asks: (1) whether the claims at issue are directed to patent-ineligible concepts; and (2) if yes, is there something “significantly more” in the claim to ensure that the claim is not…

Surviving 101 Challenges After Alice Gone Wild

The judge made exception to §101 for laws of nature, natural phenomena, and abstract ideas exists because a patent on these would impede innovation more than promote it, contrary to the primary objective of patent law. As the Supreme Court emphasized, we must distinguish between claims to the building blocks of human ingenuity versus those that integrate the building blocks into something more. The former would risk pre-empting or disproportionately tying up the use of the underlying ideas – to the detriment of progress in the useful arts. Basically, the purpose of the Mayo test is to ensure that patent law not inhibit further discovery by preempting or improperly tying up the future use of building blocks of human ingenuity.

Alice in Blunderland: The Supreme Court’s Conflation of Abstractness and Obviousness

The problem with this analytical approach lies not in the two-step Mayo “algorithm,” but rather in framing the analysis in terms of subject matter eligibility under Section 101 rather than patentability under 103. Section 101 is intended to deal with the eligibility of the claimed subject matter for patent protection as a class (i.e., genus or sub-genus) of inventions, rather than the contribution of the particular invention (i.e., species) defined by the claim vis-a-vis the prior art. So why did the Supreme Court frame the inquiry in terms of patent-eligible subject matter, rather than proceeding directly to the question of obviousness?