USPTO Demands EFF Censor Its Comments On Patentable Subject Matter 71
An anonymous reader sends this report from TechDirt:
As you know, last year the Supreme Court made a very important ruling in the Alice v. CLS Bank case, in which it basically said that merely doing something on a general purpose computer didn't automatically make it patentable. ... However, the USPTO apparently was offended at parts of the EFF's comment submission, claiming that it was an "improper protest." Protest or not, the EFF denies in strong terms that the original comments were improper.
hey USPTO.... Here you go (Score:5, Funny)
Old guys
Frightning
Uncle
Charles
Kramer
Yogurt
Open
Under
Rifle
Sun
Echo
Lippy
Frank
Re: (Score:2)
Re: (Score:1)
I never new Manuel from Fawlty Towers posted here.
Re: (Score:1)
New? Or knew? Just sayin'...
Cue... (Score:4, Informative)
Re: (Score:1)
I don't think USPTO is concerned with people hearing what EFF has to say, but rather they feel that their RFC (or whatever) is not the appropriate forum for it. I can't be bothered to determine whether this is simply a less awful form of censorship, or not even censorship at all, but it will be fun to read the other equally uninformed and 10 times as rabid comments to follow.
Re:Cue... (Score:4, Insightful)
I dunno, it seems to me that an RFC is rather the best place to comment on a subject.
You could say they even requested it.
Re:Cue... (Score:4, Informative)
Everyone really should click through and read page 5 of the original document: https://www.eff.org/files/2015... [eff.org]
The EFF redacted this entire page in response the USPTO request. Why did the USPTO not like it?... Because they got their ass summarily handed to them. The redaction compares two claims (one approved, one invalidated) that differ by LITERALLY ONLY A FEW WORDS. The USPTO is right to be embarrassed!
Re: (Score:2)
Re: Cue... (Score:4, Insightful)
Because it highlights that the USPTO is doing a sloppy job and don't review patents at all, just check the formalia and let courts decide if they are valid or not.
Probably because the patent engineers don't know squat about the stuff they get to review.
Re: (Score:2)
How different? Yes, the original rejected version was overly broad. But the final, accepted version was essentially the same thing - and amounts to 'apply software authentication in a standard, already well established way to the carrying out a specific banking transaction'. If that's patentable, we're all doomed...
Re: (Score:2)
Hmm. I don't find "restriction on the use of a [financial] account" completely different than "restriction regarding a banking transaction".
Re:Cue... (Score:4, Insightful)
It's more along the lines that the USPTO made up it's mind and then asked for comments because they had to. Then yelling SHUT UP! should anyone offer an opinion they don't share.
Re: (Score:2)
...which sounds a lot like the process by which OOXML was adopted as a standard by the EU. Not sure offhand who's palms were greased in the Microsoft 'standards' approval case (though many were), but the fact that USPTO's revenue stream counts on the processing of patent applications guarantees that an efficient and fair patent system is not their highest priority.
I think (Score:5, Funny)
That if (redacted) (redacted) then (redacted) because (redacted) (redacted) (redacted). Really.
Re: (Score:2)
Playing madlibs with redacted documents is fun.
"I think that if 'SEAN CONNERY' 'HIT A HOME RUN' then 'ASTRONOMY' because.'RAISIN' 'DANCE' 'FEVER'. Really.
Someone should make an app that turns redacted documents into adlib games. It would get the cellphone generation reading national security documents. Maybe even retain some info.
Re: (Score:2)
Playing madlibs with redacted documents is fun.
"I think that if 'SEAN CONNERY' 'HIT A HOME RUN' then 'ASTRONOMY' because.'RAISIN' 'DANCE' 'FEVER'. Really.
Someone should make an app that turns redacted documents into adlib games. It would get the cellphone generation reading national security documents
Only if it's tweeted...with an Instagram pic.
Re: (Score:2)
Automatic selfie on completion.
"OMG! jst fin sen frn relat rept on mddl east! #selfie #nerd #politician #1dirunite"
Re: (Score:1)
But then someone has to patent it...
Re: (Score:2)
That is a brilliant idea. I love it.
Look at the table in the PDF (Score:5, Informative)
In the PDF, there is a table in the PDF of the EFF's response where it compares the issued patent against the rejected patent at the Supreme Court. The wording is amazingly similar.
The significant change between the two is patents swapping the words "banking transaction" for the use of "a credit or charge account", and then updating the rest of the text appropriately. If you do not understand what the EFF's point is, then take a look at the table. It does not take much imagination to see that the patent at stake in the Supreme Court case, and the newly issued patent, are almost identical.
Typo? (Score:3)
EFF wrote:
"The Supreme Court has made it clear that merely adding a processor to an otherwise ineligible claim does not render it ineligible."
Double negative?
Re:Look at the table in the PDF (Score:4, Insightful)
Would have been a lot more clear to say "the redacted bits are from patents approved by the USPTO." I hate having to go on easter egg hunts to confirm if this is something I should care about.
And for Cassini2 specifically, it's not an issued patent vs. rejected patent. Both were issued, the point being that the new one was issued after the first was invalidated by a district court. And about 5 months after Alice. And the second was a continuation of the first, not a new patent. That's why they are so similar, and probably why they didn't halt the process and re-evaluate it.
USPTO wanted comments on the guidance, not pointing out where they are failing to meet the guidance. This is where the EFF probably overstepped.
I have a problem with this part. The Alice decision was basically "adding a computer doesn't automatically make it novel" - the court did not agree that "adding a computer automatically doesn't make it novel" - those are two distinct ideas. And what the EFF pointed out in the chart was that two allowed patents were basically the same, which is what a continuation patent implies, and has nothing to do with Alice.
It's one thing to have a point, but the EFF was protesting the similarity of two patents, not illustrating how the second fell short of the Alice test, and it really had nothing to do with comments on the guidance itself, which is what the USPTO was asking for. Including protests in consideration of feedback on guidance is not how things work. I won't go into that, but there's a place for such things and this isn't it.
And I agree, EFF has a legitimate point. But this was not the way to point it out.
Legally, this is what I read:
Q: "How can we do our jobs better?"
A: "You aren't even doing your jobs, idiots."
Re: Look at the table in the PDF (Score:1)
Re: (Score:2)
And for Cassini2 specifically, it's not an issued patent vs. rejected patent. Both were issued, the point being that the new one was issued after the first was invalidated by a district court...
USPTO wanted comments on the guidance, not pointing out where they are failing to meet the guidance. This is where the EFF probably overstepped.
Actually, it's issued patent vs. pending application. And where the EFF overstepped was in violating 35 USC 122(c):
(c) Protest and Pre-Issuance Opposition.— The Director shall establish appropriate procedures to ensure that no protest or other form of pre-issuance opposition to the grant of a patent on an application may be initiated after publication of the application without the express written consent of the applicant.
Had the application been issued, that wouldn't be an issue (pun aside), but as the EFF admits in their comments:
For example, on Nov. 12, 2014, U.S. Pat. App. No. 11/091,200 received a notice of allowance.5
5 The applicant has since filed a Request for Continued Examination (RCE), the 12th RCE filed since the application was first filed in 2005.
So, yeah, it's a pre-issuance protest to the grant of an application, without express written consent of the applicant.
USPTO IS a branch of government (Score:3)
I think they need to have a look at the 1st amendment to the constitution.
They ARE, in fact, bound by that
Re:USPTO IS a branch of government (Score:5, Interesting)
I'm not a big fan of the USPTO, but I'm not convinced that they are out of line here. The EFF comment makes mention of a specific patent applicant who is known to be highly litigious, and specifically argues that the USPTO should be particularly skeptical of applications from that entity because of the enormous cost to others of patents being inappropriately granted to that specific entity.
This is an entirely reasonable thing to say, but the PTO's point is that it's not an appropriate thing to say in the context of a request for comments on something else. The request for comments was on a new set of guidelines the PTO had issued, not on a patent application from the entity to which the EFF referred.
Re:USPTO IS a branch of government (Score:5, Insightful)
At the same time, it perfectly illustrates that the new guidelines are inadequate since they approved a patent that is almost identical to one the courts specifically ruled invalid.
Re: (Score:2)
Yeah, I think what the EFF wants to say is something that needs to be said, and personally I don't care how they say it, but the PTO is part of the government, and they have processes that they follow. I'm not saying they are morally right, just that they are technically right.
Re: (Score:2)
I contend that it is not at all off-topic. It is exactly the topic of the RFC. In one shot they demonstrate the ineffectiveness of the new guidelines and the high potential for harm.
Re: (Score:2)
What's off-topic is that they advised the PTO to take specific action with respect to a specific applicant.
Re: (Score:2)
As an example of where the new guidelines fail in general.
Re: (Score:2)
The EFF comment makes mention of a specific patent applicant who is known to be highly litigious, and specifically argues that the USPTO should be particularly skeptical of applications from that entity because of the enormous cost to others of patents being inappropriately granted to that specific entity.
So, is this actually in the USPTO's swim lane? Are they allowed to take into consideration an entities history with respect to how they've acted on prior patents? I may be off base, but I think the courts might have a problem with that.
Re: (Score:1)
Re:USPTO IS a branch of government (Score:4, Interesting)
I think they need to have a look at the 1st amendment to the constitution.
They ARE, in fact, bound by that
So are you saying that whatever law put 35 U.S. Code section 122(c) [cornell.edu]:
into the U.S. Code constitutes a "law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."?
You can still "petition the Government for a redress of grievances", just not in the form of a "protest or other form of pre-issuance opposition to the grant of a patent"; if it is, the protest will probably be carefully filed away in the roughly-cylindrical filing cabinet on the side of the desk of the person at the Patent Office receiving it. It's not as if you're going to be taken out and shot if, for example, you write a letter to the President complaining about the patent being applied for, or publish an editorial opposing the patent, or....
Protests against patents are discussed in more detail by 37 U.S. Code section 1.291 [cornell.edu].
Re: (Score:2)
Actually, this would be an interesting case to bring. The only reason I can think of not to is concern about a defamation lawsuit from the patent troll.
Re: (Score:2)
constitutes a "law ... abridging the freedom of speech
Well, it only abridges if there is a punishment or consequence for doing so. The headline says "demands". Demands usually contain threats, otherwise they're request. If there is a threat, then of course it's an abridgement.
if it is, the protest will probably be carefully filed away in the roughly-cylindrical filing cabinet on the side of the desk of the person at the Patent Office receiving it.
Which is a completely legitimate response to an illegitima
Re: (Score:2)
constitutes a "law ... abridging the freedom of speech
Well, it only abridges if there is a punishment or consequence for doing so. The headline says "demands". Demands usually contain threats, otherwise they're request. If there is a threat, then of course it's an abridgement.
But that doesn't mean that the USPTO has threatened to break the kneecaps of the EFF's lawyers, for example. They might just be threatening to toss the EFF's document into the circular file, i.e. demanding that they change the document if it's not to be ignored.
I.e., it would have to be a "threat" in the sense of the the OED's definition of "threat" [oxforddictionaries.com], where there's some form of harm worse than "being ignored" to be an abridgement.
if it is, the protest will probably be carefully filed away in the roughly-cylindrical filing cabinet on the side of the desk of the person at the Patent Office receiving it.
Which is a completely legitimate response to an illegitimate filing.
I.e., a threat to toss the document into the circular file is a legitimate re
Re: (Score:2)
it only abridges if there is a punishment or consequence for doing so
Are you intentionally muddying the waters here? The direct and quantifiable consequences include the restrictions and limits imposed on all other citizens as the result of issuing overly broad or non-eligible patents.
It's not as if you're going to be taken out and shot
Between you and Guy Harris I just read a complete crock of what simply has to be self serving bullshit. You must have a dollar to make in this field of discussion.
Re: (Score:1)
Nobody cares about your piece of paper constitution nerd. Seriously. Nobody fucking cares. Even the lawyers who pretend to worship it really don't care. Ask them about underage cartoon drawings, or if you really want to test them, copyright law.
The USPTO does not care. The camp commanders and Guantanamo do not care. The NSA does not care. And by and large the general public does not care. They don't care because they see that no-one is in charge anymore, and the people running the show do not care.
Stop cari
Re: (Score:2)
Blah, Blah, Blah....Blah
You don't care, and because of that, you ASSume incorrectly that others don't.
Re: (Score:2)
The First Amendment gives the EFF the right to say or publish what they please. It doesn't mean anybody has to listen. It doesn't mean a government agency can't put conditions on what it's willing to listen to for a particular purpose. The EFF is a peaceable assembly and has the right to petition for redress of grievances, but nothing in the Constitution says the government has to answer any particular petition. The EFF has the right to a religious opinion, but the USPTO really doesn't care about that.
Patents SHOULD get harder to make (Score:2, Insightful)
As tech moves along eventually we do find nearly everything. Novel things should become more and more rare. But at the filing rate, they are seeing the opposite. This group is basically trying to undo what the supreme court said so they can make sure they file more things with slight changes in the wording. It is simple job protectionism.
Re: (Score:3)
All the new patents are for insignificant mods to already trivial inventions. However, they are worth huge amounts of money because [lawyers]. Or the books are cooked by accountants.
Or I have drunk too much brandy. Not sure which, but I will know in the morning.
How it works... (Score:1)
Reasonable Explaination (Score:2)
You can get anything you want (Score:1)
At the Patent Office Restaurant
Except for Alice...
New task for the EFF (Score:2)