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USPTO Demands EFF Censor Its Comments On Patentable Subject Matter

Posted by timothy on from the adversarial-justice-system dept.

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.

12 of 71 comments (clear)

  1. hey USPTO.... Here you go by ganjadude · · Score: 5, Funny

    Golly
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    Uncle
    Charles
    Kramer
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    Open
    Under
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    Frank

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  2. Cue... by YuppieScum · · Score: 3, Informative

    ...Streisand Effect.

    --
    This sig left unintentionally blank.
    1. Re:Cue... by Anonymous Coward · · 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.

    2. Re:Cue... by sjames · · Score: 3, 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.

    3. Re:Cue... by monkeyzoo · · Score: 3, Informative

      Everyone really should click through and read page 5 of the original document: https://www.eff.org/files/2015...

      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!

    4. Re: Cue... by Z00L00K · · Score: 3, 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.

      --
      If builders built buildings the way programmers wrote programs, then the first woodpecker would destroy civilization.
  3. I think by Anonymous Coward · · Score: 5, Funny

    That if (redacted) (redacted) then (redacted) because (redacted) (redacted) (redacted). Really.

  4. Look at the table in the PDF by Cassini2 · · 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.

    1. Re:Look at the table in the PDF by Bite+The+Pillow · · Score: 3, 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."

  5. Re:USPTO IS a branch of government by mellon · · 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.

  6. Re:USPTO IS a branch of government by Guy+Harris · · Score: 3, 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):

    (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.

    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.

  7. Re:USPTO IS a branch of government by sjames · · Score: 4, 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.