I like the EFF's mission, but I find many of the EFF's posts like this to be awful and quite propaganda-like in style. They present an issue and spend time talking about how it's bad, provoking an emotional response of anger or righteous indignation, and leave out the most important details.
In this case, the USPTO released new guidance on how reviewers should consider the Supereme Court's Alice decision. EFF thinks this guidance is bad. They have metrics and talking points. But the EFF fail's to deliver the single most important information:
What did the new guidance say! -- EFF is silent on this.
WHY? I think in this case it's because the EFF doesn't like software patents at all. They know much of their audience feels the same way. So they don't care about actually explaining what the new guidance says-- All they care about is presenting metrics about increased software patent grants that show how bad the new policy must be, because it's doing what the EFF hates: granting more software patents. I find it emotionally manipulative, and the more time goes on the more I avoid their articles.
This EFF release isn't about what technicalities or creative interpretations USPTO used to avoid the complying with Alice because that guidance isn't new, what's new is a report that shows the dramatic effect of their avoidance, and that's what the article is about.
If you really wanted to know what the guidance was, literally the first link in TFA leads to an EFF backgrounder that explains it, including linking to the actual source.
EFF's mission is to effect positive change in technology. If you disagree with their views on software patents, you should expect to not like what or how they have to say. Their mission is not to convert you, it's to drive support and engagement for their ideals among their supporters and undecideds.
I personally do agree with them on software patents, and so I approve of their methods because I can see that they optimize for effectiveness of their campaign, as they should.
The entire article is about how new guidance had a negative impact. I don't think it's a responsible presentation of the topic if the only way you can find out exactly what they're objecting to is by finding another article, which you don't know whether or not it will have that very relevant information, read it, and then link to a third piece of writing to actually get anywhere.
The EFF clearly knows what the guidance says, it would have taken little effort to give an abstract of it. But more and more they seem to have little interest in generating reasoned agreement with their cause, only reflexive support induced by anger and indignation. The cynic in me says it's because they realized it works better, gets more donations. But regardless if their intentions, it comes off as a bit scummy.
And patent trolls? They’re hardworking American businesspeople? Last I checked, their tactics were vexatious litigation, bullying, browbeating, and buying support.
In short, if you’re going to fight a pig, you’re going to have to get in the mud with it.
If you just stand there making reasoned arguments as to why the pig should lie down, the pig will just look at you, shit on the floor, and continue doing what it was doing.
The fact that patent trolls are scummy doesn't exonerate other scummy behavior. As an example, we wouldn't accept violent protests as an appropriate counter to other people's violent protests.
In this particular case, where the messages are borderline propaganda, that is unacceptable, especially when they could have kept the same exact content but added an abstract of the new guidance and greatly improved the quality of their article by actually providing material support for their point of view.
Convenient metaphors of pig fighting are misleading and inaccurate. They promote a mentality of action based on anger rather than effectiveness. To avoid metaphors and give a concrete example of not lowering one's self to scummy tactics, you have only to look to the non-violent civil rights movements that have prevailed in the last hundred years.
You also assume the "dirty pig" or scummy tactics are directed at the "opposition". They are not. When the EFF actually fights these battles, say in court, they cannot refer to general platitudes and content-less rhetoric, they must use reasoned arguments. Their scummy tactics in this article are directed at those they seek to support them!
That's just whataboutism though. And sure, in your analogy, you'll have to get in the mud, but that doesn't mean you have to also act like a pig, enjoying it and maybe even shitting on the floor too. Neither does EFF's mission require them to stoop at the level of whomever they are opposing.
Not everyone trying to patent a computer-implemented invention is a patent troll. Some of those applicants are actually creating a product/service. Some of them are spending b/millions creating things that were previously not considered possible. Should they be rewarded for the effort if in fact it is determined to be possible?
Based on my experience as a patent examiner and a patent attorney, it’s definitely not “the majority” of applicants that can be considered any kind of “troll.” Like many other fields and aspects of life, it’s a highly vocal and visible minority that you’re mostly aware of, because the mundane players are, well, mundane.
Yeah, I pretty much agree with much of that. Just pointing out that a majority of patents and patentees aren't really headline-grabbing or anything. Just boring paper shuffling that will never have any impact on anyone, good or bad.
Really, do you think software patents have done more harm or good? Show me the vibrant ecosystem that software patents have enabled. Patents should never have been applied to software and they're a cancer on the industry.
No, I pretty much agree, but just wanted to point out that an overwhelming majority of patents and patent applicants are very boring and don't make any headlines, ever. That's all.
THis is nonsense. The USPTO is applying clear POST_ALICE precedent set forth by the Federal Circuit. The USPTO is heavily weighting their guidance to cases and fact patterns that the Supreme Court has explicitly denied cert, evidencing that they see no reason to revise the Federal Circuit decision. Alice is still good law. However, an invention that lies in software can be patentable. THe new USPTO guidance provide that (actual guidance) to patent seekers on how to describe and claim their invention so that it actually reads on patentable subject matter. Nearly always (maybe even just always) this results in narrower patents that are restricted to a new and non-obvious specific implementation of the basic concept of the invention. That sounds reasonable to me.
Did they? I've been a member for 20 years and I don't remember it ever being different.
They've always been a pro-technology anti-patent lobbying machine. All of their materials are biased this way.
I don't agree with everything they lobby for, and I tell them that when I renew each year. I know a few of the folks there, and from what I hear, they take that into consideration when they discuss budgeting.
But I'm pretty sure they've always been like this.
Critiquing the USPTO is fine and welcome. But going to bat for Alice is a fools game.
Alice is an incoherent and disjointed holding (well several holdings). Which is no surprise because trying to craft a stable informative legal standard that limits or improves so-called software patents based on 35 USC 101 (subject matter/patentabilty) is inherently unworkable.
Besides, patent attorneys are usually smart enough to draft around Alice-type subject matter issues. There were so many early Alice rejections at the USPTO and patents invalidated in courts because they usually involved applications or patents that were drafted before Alice was decided. Alice changed the standard out from under them after they were filed or granted.
Patent attorneys familiar with software technology could/can easily draft around Alice limitations now that they know what they are.
What I wish they'd said in Alice was that you can't meet the patentability standards piecemeal. That is, I wish they'd said that you can't have an invention where the novel part isn't patentable subject matter and the patentable part isn't novel, like software + a formulaic definition of an ordinary computer.
I think that's more or less the state of affairs they wanted to get to, but they never quite worked out any comprehensible way to get to that and just kinda punted.
I liked the older subject matter standard (I can't remember the case In Re Alappat, maybe?) where the combination of software and hardware is considered the machine under consideration. Thus, novel software running on conventional hardware is viewed in combination as a novel machine.
This makes sense to me for some reason. I wish this remained the 35 USC 101 standard for software patents, I think it cleanly resolves subject matter problems. Then the courts and Congress could focus on developing better law using 35 USC 102, 103, and 112 rather than trying to use subject matter, which is by design the broadest patent law on the books.
Yes, this creates a very bright line that's easy for lawyers to follow, but in return it allows every trivial act performed on an ordinary computer that someone has not yet submitted to the USPTO to be an "invention."
Given that inventions are not rivalrous and actual practitioners of the art don't generally go around reading patents in the first place (other than, perhaps, those newsworthy due to litigation or sheer idiocy), this makes an area ripe for trivial lawsuits from people taxing the work done by others while providing no actual benefit from the patents themselves.
This leaves the two arms of the scale badly unequal. Supposedly, we derive the benefit of knowledge in exchange for patents. Instead, we're getting "do X on a computer" we already know how to do and make for any given X in exchange for a huge number of lawsuits from patents filed by lawyers who have never actually built a thing, who have at best a vague idea as to how something might be done.
The real work is the implementation. Maybe you could convince me if they actually had to build the software and release it to all alongside the patent so that society benefited from that when it expired, but the patent terms are too long for such software to be useful at the end and the various patent lawyers I've interacted with are adamantly against that idea.
However, I think 35 USC 103 (non-obvious requirement) could be used knock out the X plus Computer claims these days.
E.g., If X is not novel and computers are not novel -> no invention because it is obvious to combine them.
Also, I agree that USPTO (and courts) should require more proof of invention/implementation. This could be handled by increasing the requirements for meeting 35 USC 112 (enablement). For example, I think it would reasonable to require more explicit disclosure of pseudo code, data structures, protocols, sequence diagrams, state machines, experimental proof of claimed performance improvements, and such. Quality software patents tend to have a lot of this stuff already. The idea here is to prove the inventors have actually invented the innovations they are claiming not necessarily restrict the invention to one particular data structure or protocol.
Some bio/chem patents have additional requirements when compared to gadget patents. Software patents could be improved similarly.
I would also be open to considering changes in the length of patent terms for certain types of software patents. Not sure how that rule would work though, because there really is no such thing as a software patent. Inventions in so-called software patents are usually described as being part software and part hardware with the assertion that some or all of the software parts could be implemented as hardware or vice versa.
We got into this current mess, because courts latched on the subject matter arguments instead of looking harder at novelty, non-obviousness, and enablement. I am not sure why they didn't rely on obviousness more when they started down this path. The early software patent cases screwed things up back when no one knew how to handle them.
> E.g., If X is not novel and computers are not novel -> no invention because it is obvious to combine them.
This is a fair point, but 'novel' seems to get read as 'someone has already patented this before'.
> This could be handled by increasing the requirements for meeting 35 USC 112 (enablement).
This is also reasonable, enablement right now is kind of a joke, higher standards for that would generally be good. I'd like to see any working implementation of the claimed invention in software for patents that include that. It need not be a fully formed app, but it should compile and demonstrate whatever is claimed, IMHO.
> Some bio/chem patents have additional requirements when compared to gadget patents.
I don't claim to have read many patents in that area, but I'd expect that bio/chem patents should have to give the chemical formulas and synthesis, which should do a lot for enablement.
> I would also be open to considering changes in the length of patent terms for certain types of software patents. Not sure how that rule would work though, because there really is no such thing as a software patent.
Yeah, I know there are complications on defining 'software patent', but generally we understand when someone patents a process performed on an ordinary computer or something similar.
> The early software patent cases screwed things up back when no one knew how to handle them.
They're trying too hard to preserve existing precedent while moving in a new direction. I agree that they need to reform some of those factors to get to a better place and that the existing rulings just aren't very clear.
Reading the EFF's article, it sounds like they want to take a tact much like the one I want. I just wish the Supreme Court had written a clearer holding.
Exactly. And once the inventor can see these examples and understand how to describe their invention in a way that mirrors these examples, abracadabra eligibility problems disappear. THis is the intended and beneficial effect. In nearly all (all?) cases, the claimed subject matter is narrower and specific to an actual novel and non obvious practical implementation of an "idea." That is the way it should be. The EFF is blowing smoke.
What does the new guidance say then? I'm curious to hear a counterpoint on the substance of the guidance from someone that might have the expertise to go into it. I agree with you on the EFFs article being substance-free and manipulative, and I'd like to know what the substantive counterpoint is from someone who can interpret the guidance.
Software patents could be reasonable if they weren’t about trivialities and their validity period was adapted to the pace of technology. But here we are, the mp3 format which really is obsolete just lost its patent protection. And that’s the exception where the patented material still holds at least some value after the patents expire.
The only thing that's good it is that it makes the law less arbitrary. E.g. why should my friends who are in mechanical engineering be allowed patents while I am not?
But other than that, there's not much good about it.
After reading the post, I had the same thoughts as you, so I decided to do a cursory review of the _Alice_ case history. The question was whether three patents describing a software system that merely automated a preexisting process using generic hardware was patentable. In the decision, the Supreme Court issued a unanimous decision affirming the court of appeals judgment that the subject matter was not patentable, which itself affirmed the district court judgment (with a caveat I'll get to below). That itself stood out to me as odd, since most cases reaching the Supreme Court involve some sort of difficult question of law, some inconsistency in application of the law between different appeals courts or justiciable constitutional questions. Based on the case history, that wasn't clear. Furthermore, the court of appeals was (as in all patent cases) the US Court of Appeals for the Federal Circuit, widely understood to be "captured" by and a tool of the "patent bar." The judges are typically former patent attorneys, and most notably, the Supreme Court often overturns Federal Circuit judgments unanimously. I don't follow this stuff religiously, but I'm not sure I've ever seen the Federal Circuit unanimously affirmed.
I decided to dig in more. The case history was a bit more interesting, and crystallized why this thing went up the chain. The case history actually did involve a small amount of disagreement. Initially, a panel of Federal Circuit judges sided with the petitioner _Alice_, who sought to have the parents reinstated. However, the Federal Circuit subsequently performed _en banc_ review where the entire court (save those judges recusing themselves or otherwise absent) sat to hear the case. The outcome of that _en banc_ review was a seven-judge majority (out of ten) throwing out two of the three claimed patents. In addition, a plurality but not a majority of five judges wanted to throw out all of the patent claims.
In the world of legal appeals, tie votes affirm the decision of the lower court, but such decisions are not considered persuasive or "controlling." Indeed, the opinion of the seven judge _en banc_ majority was a single paragraph. It's hard for anyone to figure out exactly what a plurality opinion means without resorting to reading tea leaves or other forms of divination. Into this ambiguity stepped the Supreme Court in order to provide clarity to both the appeals court and the rest of the judiciary. The only controversial aspect of this case was whether only two patents were bad or whether they all were.
To summarize, every court involved in the case concluded that the three claimed patents covered non-patentable subject matter. The court of appeals explicitly established to serve the interests of patent litigators affirmed this, and the Supreme Court only reviewed the case in order to more definitively demonstrate that the subject matter was not patentable (and it did this in the strongest possible way).
All of this leads me to strongly concur with your reading of this EFF post. The _Alice_ case involved a particularly egregious case of nonsense patents/patent trolling, such that not even the Federal Circuit would save it. Far from being some sort of landmark case, the Supreme Court's opinion mostly relies on existing precedent and serves to further clarify the disposition of the US courts toward patentability of abstract ideas. And most bizarrely, USPTO was not a party in this case. While the patent office does need to follow the law including the judgements of US federal courts, they were not bound by _Alice_ and so more or less can ignore it.
When I consider the actual facts, I think the EFF is sensationalizing this particular case and heavy-handedly hyping it with provocative framing in order to spread propaganda. I even agree with the EFF nine times out of ten on issues of so-called intellectual property, but they undercut their argument when they push junk like this. This is a far cry from the days when the EFF was defending victims of the MPAA and RIAA or fighting to stop internet censorship or even campaigning against the DMCA and it's subsequent abuses.
"While the patent office does need to follow the law including the judgements of US federal courts, they were not bound by _Alice_ and so more or less can ignore it."
That is just wrong. The USPTO must MUST follow ALice. This cannot be disputed. Alice is the law.
Although that oddness you mention (how did it go all the way to the Supreme Court when the lower courts' decisions already were aligned?) could point to political maneuvering which would then make EFF's response seem less uncalled for.
After observing politics for a bit, you can easily spot when progressives are winning the argument, because reactionaries will be attacking the communication minutiae, the uncouthness, and not the substance of the debate.
It’s the last stage of the “they fight you” phase Gandhi famously listed.
Ummm push agenda .. journalism of today is confusing ... many people are like wth do I believe when many times one side says this (right or left) then that ...
Not that JOe ROgan is expert, but he is expressing the same thing I am and im sure the millions of his listeners are thinking the same thing .. see https://www.youtube.com/watch?v=FJYEk1pTLIU
Anyway, a lot of things I say here on Hacker News are unpopular at the time of writing, but ultimately what Im saying is ahead of the curve like hating the iPHone XS due to size three years ago and that getting downvoted fiercely like i am here .. as of this April I now own the iPhone SE cause Apple saw the data that customers thought same thing ... another is me for years complaining about my meeting Google experience and how horrible they treat fledgling innovators (invite them out.. use their influence ..put their stars in their eyes) then stomp all over them ... a few years later a MIT student shared her same story with email evidence backing up my horrid experience which following Google had all types of PR problems (her story helped light a small flame as Google did no evil in the eyes of all HNewsers which is an influential crowd)... im also ahead of the curve here too ... people are tuning out media, especially political media ..its a joke... all sides. Another, thing I was on a inventor reality TV show in 2015 and pitched share battery power between phones to Intel and Shark Tank/Apprentice producer, Mark Burnett.. in 2019 Samsung built this feature in their phones.. lol ... look at me im great .. not.. just have thoughts/ideas that are unpopular at the time and get downvoted a lot.
Anyway im gonna keep sharing my thoughts/etc and continue to get downvoted lol but what im saying most of the time is worth sharing and then some!!!
I like and trust the EFF, but that's not my lived experience, and so I don't believe the stats say what the EFF claims they mean.
1) My patent lawyer, following Alice, told us to not even try for most patents we were previously considering, because patents like that would just get rejected. I'd believe acceptance rates have gone up, but that's because people aren't filing as many frivolous patents.
2) The back-and-forth process with the patent office the EFF advocates for is a really bad idea and bad deal. Big companies can hire specialists who do this. For individual inventors, the costs here get astronomical.
Now, the bar for patents is still way too low. But Alice did bring it up. If I had my druthers:
* The bar for patents would be high.
* The processes for applying for patents would be straightforward, quick, and easy.
There would be an appeals process, but it'd look much more like sending a plain-language letter than one couched in byzantine process and baroque terminology.
So why do the drops in rejection rates line up strictly with new Patent Office guidance? Remember, Alice was in 2014. Rejection rate didn't drop until 2019, where it suddenly collapsed after the guidance was issued.
Individual inventors are already not applying for meaningful patents. That's political folklore to tell a warm story around patents.
It is completely understandable that Alice rejections will go down as new guidance is provided. This is because people drafting patents react to the same new guidance and draft patents accordingly.
Guidance documents often come with examples, language from the Alice-overcoming examples will be included in patent applications and in arguments against Alice rejections. Often, word for word if possible.
Note, there have been several rounds of 'new guidance' since Alice came down. Most of them (maybe all?) include examples from courts showing claims invalidated under Alice and examples claims that made it past Alice in court.
It doesn't take that much effort to draft patents or arguments that match the good examples. Note, this doesn't change the scope of the inventions, it simply puts magic words into applications or claims to get around Alice if needed.
You almost got it. SO close. But you are completely wrong about the following "this doesn't change the scope of the inventions, it simply puts magic words into applications or claims to get around Alice if needed."
This is wrong. The scope of the claims that result post-alice are completely different. And this is something the EFF post simply ignores. Just think about it. YOu are an inventor and invent some amazing new idea in the year 2000 like location track a plurality of requests for transportation, location track a plurality of transportation providers, use a novel form of graph theory to optimally match requests with providers with an optimized price that maximizes utility for driver and requestor (think uber-like service). You try to patent that. The patent office POST_ALICE says NOOOOO!!!!! That's just a concept. Abstract concepts are not patentable. But you, you smart cookie, you know that there are only a few practical ways to have a sufficiently fast database-lookup architecture to actually implement this at scale and that implementation and all its details is what you actually patent. Because you had the guidance, you knew what you could get and you went for it.
Alice was about subject matter, not novelty. The Alice game was drafting/amending claims to look more like a machine. I talk about it more below in my response to your other comment.
Often that can be accomplished by including claim language that doesn't limit the novel aspects of the invention. In other words, prior art is not a really a consideration when getting over a 101 rejection.
IF you count a request for continued examination a "disposition" sure. However, many (most?) applications include one or more such requests. And so, there is much more back and forth than your post implies. Filing such a request typically gets you at least two more back and forths.
I agree with your point, and I don't consider RCE a disposition. Still, the average application has about two office actions (CTFR, CTNF, CTRS, CTEQ) before an allowance or abandonment.
After the decision, it says rejections rose 31%, but now they have fallen back down.
The EFF contends this is because the Patent Office is ignoring the law, but they don't offer any evidence to back up this assertion. Another likely explanation is that patent applicants are adjusting their applications to be in line with the decision, and thus the rates have gone back down.
This assertion by the EFF would only make sense if patent applicants didn't know about the rule change. But applicants do know, and have adjusted their applications accordingly in the intervening time.
Apparently patent applicants were entirely unable to to adjust their applications in line with the decision for a whole 5 years where rejection rates were consistently >30% (and rising!). Then, immediately after new guidance, they all "get it" and rejection rates drop below 20%?
Remember, guidance is just a summary of applicable law and precedent. It is training material. If there is a significant change in rejection rates, it means Alice was somehow misapplied for 5 years and no one ever meaningfully contested it.
So, the patent office puts out a document telling examiners exactly what to look for, and applicants read that document and use it to craft their applications. Examiners get what they are looking for.
I’m honestly not seeing what the major issue is here.
> Then, immediately after new guidance, they all "get it" and rejection rates drop below 20%?
The "all" after the guidance is not the same set as before. Afterwards, some people could foresee a rejection and so didn't bother applying at all, where before the guidance they would have. Thus, rejection rate falls.
I definitely can imagine that after the Alice decision many patent lawyers would still intentionally try to push through applications contrary to the court decision - if there's a reasonable chance that it might get through, and you can afford it, why not try it? Any actual change in patent application behavior would come only when the Patent Office would assert that yes, they mean it, and they will deny these applications, and they did it only in 2019 (and issued the guidence along with it).
So yes, your suggestion that "it means Alice was somehow misapplied for 5 years and no one ever meaningfully contested it" seems quite plausible for me, it's not easy to meaningfully contest it (you need an actual situation where such a misapplied patent gets abused and gets contested) and it takes years to do so.
One of the problems with Alice is that it provides very little useful guidance to anyone. The EFF argues that Alice invalidates all software patents. Others argue that it doesn't. In fact, the only sure thing the SCOTUS said in Alice was that they are not invalidating all software patents just the bad ones, while providing no workable standard for distinguishing the bad from the good.
While the majority of Justices agreed that the Alice patent was invalid, a majority did not sign on to one opinion. There were multiple concurring opinions that agreed on the result but not the reasoning. The decision provides at best an "I'll know it when I see it" standard.
To say, lawyers are deliberately or intentionally acting contrary to the decision is not accurate. Lawyers will work to draft patents that comply with Alice, and they will argue that the applications they draft comply with Alice.
Unfortunately, very little in the Alice decision can be used to reason for or against any particular patent because it is so incoherent.
"Another likely explanation is that patent applicants are adjusting their applications to be in line with the decision"
This. We had/have no problem getting past Alice if the application was drafted post-Alice. (Except for one art unit that was being unreasonable -- but even they seemed to have given up. Maybe their boss retired?)
Nothing changed except we included additional language in the spec and claims for no other reason than to get around Alice rejections.
Really? YOu have some magical language in the spec and claims that universally gets around Alice but (and I'm inferring here) doesn't narrow the scope of your claims? Please please please do tell me what this magical "additional language" is. I am not trying to troll. I am genuinely curious. I have upvoted your post. You can send me a private message if you like.
I call it magic language because it had nothing to with the novelty of the inventions. Note, Alice wasn't the first time this was required. We always adjust the language we use in applications as new case law comes down.
Further, gibberish included in claims to defend against Alice rejections usually had nothing do with novelty because Alice was about subject matter patentability not novelty.
Before the early Alice guidance came out we tried a lot of different things, much of it superficial in my opinion. Including: emphasizing that the machine did the work; showing that inputs are being transformed into something new by the machine; writing claims that show different parts of the system interacting with each other; and sometimes nonsense like "wherein each foobar is stored in a hardware memory" or "displaying the bizbaz on a hardware display."
In some hard cases (mainly apps drafted before there was any Alice guidance or useful case law) we included claim limitations like "modifying performance rates based one or more sensor inputs" (e.g., CPU temperature)
Later, when the first case in district court found that a patent satisfied Alice, we started including language verbatim from that case in specs, claims, and office action responses whenever possible.
As more guidance memos came out, we included relevant language from those as well.
Sometimes this resulted in claims that had a lot of words that were unrelated to the novelty of the inventions. By this I mean, we included limitations that would be present in every computer program/system by default. Storing things, displaying things, two or more processes or machines interacting or exchanging data, receiving inputs from sensors, transforming data from one shape to another, and so on.
The specifics could vary for each patent application because art units or sometimes examiners were using different standards before reasonable guidance started coming out.
Some patent attorneys focused more on arguing with examiners and appealing Alice rejections. We don't like to argue with examiners, so we typically keep amending claims until they are satisfied. And, then file continuations with broader claims that omit the amendments that didn't work. This type of practice requires high budget applications and may not be practical for everyone.
But generally we always could get over Alice using these techniques.
Clear guidance should result in fewer rejections, because with good guidance fewer people should be filing bad applications to begin with.
The real test will be whether the applications that issue survive challenges in the courts. The courts do not consider the PTO's guidelines in determining whether the patents are valid.
In other words, the PTO can't change the actual standard. All they can do is reject patents that don't meet that standard, and if they fail to do so, the patents will be found ineligible by the courts when they are asserted.
The PTO's guidance is only useful in helping attorneys and examiners shepherd through patents that will then be tested in the courts. Bad patents will still be shot down if they survive the PTO (as they should be).
In short, I love the EFF but I'm not sure why they are complaining about this.
1500 is not a lot of people. If that’s the best EFF can come up with on its mailing list then I think this may be an issue they should rethink. Not that I disagree, I completely agree, but it doesn’t seem like they are going about it the right way.
1,500 out of how many who interact with the USPTO for some reason (e.g. filing a patent [via attorney], researching patents, etc.)? I can't expect large portions of the general population know enough about the patenting process (or even patents in general) to contact the USPTO over this issue.
"...examiners practically never make final rejections based on Alice. "
I beg to differ. I have seen cases that get multiple final rejections based on Alice. Usually based on garbage reasoning.
Alice was such a terrible holding -- it was based on a crappy patent so we got bad law. Well drafted and well prosecuted patents don't often end up in court, let alone in the Supreme Court.
Over coming Alice is/was easy if the patent application was drafted after the first Alice based rejections came out. That is an indication of the weakness of the holding, including meaningless details or structure in the form of "magic words" often could get around early Alice rejections.
Until recently, the main driver for stubborn Alice rejections were particular art units that seemed to have an informal policy to never let anything through.
Generally, if the patent is high quality, people settle because there isn't much to argue about. At most they do some preliminary hearings (claim construction) and then to a summary judgment hearing.
The Alice case opened the door for awhile because practically any tech/computer related patent had a good change of being invalidated at summary judgment.
I don't practice in bio so I am not familiar with CRISPR patents.
I'm trying to figure out what sort of "meaningless details or structure" you are referring to. Do you mean the "sending" "receiving" junk that briefly surfaced to allow patents to "doing random things on a server"?
I mean claiming machine details that have nothing to do with novelty such as "...; and wherein the received xxx is stored in one or more locations in a memory hardware buffer." Clearly, clauses like this do not support novelty but neither are they practically limiting because every computer does this. Sometimes it took more effort/amendments, but this shows the general idea.
Though, I guess such amendments could be seen as limiting old-school business method claims, but I don't consider business method patents to be software patents.
In this case, the USPTO released new guidance on how reviewers should consider the Supereme Court's Alice decision. EFF thinks this guidance is bad. They have metrics and talking points. But the EFF fail's to deliver the single most important information:
What did the new guidance say! -- EFF is silent on this.
WHY? I think in this case it's because the EFF doesn't like software patents at all. They know much of their audience feels the same way. So they don't care about actually explaining what the new guidance says-- All they care about is presenting metrics about increased software patent grants that show how bad the new policy must be, because it's doing what the EFF hates: granting more software patents. I find it emotionally manipulative, and the more time goes on the more I avoid their articles.
They used to be better than this.