The USPTO has an outstanding request for comments on its patent quality initiatives and many participants in the patent system will be submitting comments and proposals for improving patent quality. I have been working with a group of academics to create a second channel for submissions that will also open the door for further vetting and commentary to help the USPTO get a better sense of what ideas might work well. Of course, we would like input to go well beyond submissions from academics.
To that end:
+ + + + + +
The Berkeley Technology Law Journal (BTLJ) welcomes submissions on Patent Quality in parallel with the USPTO’s Request for Comments on Enhancing Patent Quality. BTLJ will publish selected Comment submissions in a special volume of our rapid publication, online-only Commentaries. BTLJ is seeking Comments on Quality submissions of under 1000 words. All sources should be cited but need not be formally Bluebooked. Comment submissions ideally should reflect the author’s parallel submissions to the USPTO Request for Comments, but may be revised for length and form as needed. Comments need not be novel ideas (although those are welcome as well), but rather can reflect the best known proposals for improving patent quality that may have already appeared in a full-length law review article. BTLJ will strive to post all submitted Comments that meet our standards of quality.
BTLJ seeks to cover a wide range of the three patent quality pillars and their six included proposals that have been outlined in the USPTO Request. Specifically, the first pillar, excellence in Work Products, includes (1) applicant requests for prosecution review of selected applications, (2) automated pre-examination search, and (3) clarity of record. The second pillar, excellence in measuring patent quality, includes (4) review of and improvements to quality metrics. The third pillar, excellence in customer service, includes (5) review of current compact prosecution model and the effect on quality, and (6) in-person interview capability with all examiners.
BTLJ requests that authors of Comments on Quality contact us by April 27, 2015 to express their intent to submit. Drafts of Comments on Quality, ready for publication, must be submitted by May 15, 2015.
Reviews of Comments on Quality
Additionally, BTLJ invites commentators to provide Reviews on the Comments on Quality submissions. Reviews should be under 3000 words. Preference will be given to those Reviews that address a wide range of the submitted comments, can provide some clarity and order to the submissions, and can impart insight on one or more of the Patent Quality Pillars outlined in the USPTO’s Request for Comments.
BTLJ requests that authors of Reviews contact us by April 25, 2015 to express their intent to submit. Drafts of Reviews must be submitted by June 5.
Submission Standards
All submissions should be in Word doc/docx format. Preference will be given to those submissions exhibiting a high level of clarity and persuasive prose. Grammar and style should conform to the Chicago Manual of Style, and all citations should provide a hyperlink (if possible) and/or a clear, usable reference to the source material. All quotations must be accurate and attributed. If any portion of a manuscript has been previously published (aside from a submitted Comment to the USPTO for this initiative), the author must so indicate.
Link with the USPTO
Although this project is not officially sanctioned by the USPTO, all submissions received (not only those published) will be forwarded to the USPTO for its consideration. We expect that those forwarded comments will then be republished by the USPTO on its online docket of responses to the request for comments.
Contact Information
Expressions of interest, questions, and submissions can be sent to btlj-patentquality@law.berkeley.edu
I, personally, am looking forward to precisely 100% of the papers being submitted placing the blame on the PTO without any consideration that 50% of the patent process is in the hands of the “outside stakeholders” (it’s actually more, but I believe in constructive cooperation).
Until the patent bar begins submitting quality applications and doesn’t push the “reasonable abstraction” line, this song and dance won’t be productive; but it WILL be cathartic and will serve as rationalization to those who already are true believers.
I have comments to submit. I plan to submit them directly to the USPTO.
I will not submit them to Berkeley. As it is a leader of a movement with a specific agenda, I have doubts that my comments would be objectively evaluated.
submit them to both?
Movement?
Of the cool aid variety.
I was more reminded of bowels.
OT (but a break from the usual)…
link to huffingtonpost.com
For the able-minded attorneys, what are the best arguments pro AND con?
(for patent eligibility, that is)
what possible argument could be made against patent eligibility for that photosynthesis invention?
that a totally unrelated field (per se software) should not be eligible? that patents themselves are illegitimate? some other strawman we have not been inundated with already?
the linked invention is exactly what patents are for. who would say otherwise?
According Alice, the argument goes like this:
The invention is directed to the ancient product of nature and abstract idea of photosynthesis. It is not disputed that the “invention” is in that “nanowires” capture light energy and deliver it to bacteria, which convert carbon dioxide in the air into acetate.
Bacteria are clearly a product of nature and are not patent eligible. That wires, no matter their size “capture” and deliver energy is at least as old as Benjamin Franklin and so receiving an input and processing it through a bacteria does not add “something more” to turn the product of nature and/or abstract idea of photosynthesis into a patent eligible process.
Moreover, the inventors admit that they want the process to be commercially viable. Therefore the claimed method is a business method and is not patent eligible for at least that reason.
According Alice, the argument goes like this
Nice try, Les.
Stay off the drugs.
^^^ nine years and running….
“anon”: ine years and running….
Has it really been that long that you and Les and your other buddies here and elsewhere have been pretending to be clueless five year olds who were born yesterday every time that subject matter eligibility comes up? At the same time you pretend to be sooper dooper smart “experts” on patent law? Nine years already?
Wow.
Time flies.
Typical Malcolm trick – but no Malcolm, the nine years and running reference is to you and your actions, LONG before I ever posted here.
But you already knew that. And of course, it does not stop you from dissembling on that point.
“anon” the nine years and running reference is to you and your actions
My “actions” are pointing out that you and your cohorts are a bunch of entitled, greedy windbags who (1) love to hear yourselves talk and (2) will do and say pretty much anything to keep as many of the junkiest patents ever granted enforceable for as long as possible.
Everybody who has been paying attention for nine years can see that the fantasies of you and your cohorts have been increasingly marginalized and while my views — which were never controversial to begin with — have become adopted by the Supreme Court and Congress.
Now run along and resume your usual boot-polishing.
Your actions are nothing of the sort and your delusional edge of the rye protect the children mantra may sound good in your own mind as a desired end, but your actual means here on this board betray an even deeper void of ethics than those you accuse of “grifting.”
Malcolm needs some diapers.
MM, I fully agree with you. You have been posting very insightful comments for as long as I have been here. In contrast, what I perceive anon to be doing is attempting to shout down you, and for that matter anybody with whom he disagrees.
Anon’s commentary here is less than worthless. It makes this blog a very unpleasant experience for anybody who actually tries to post here. It must make the blog readers extremely unhappy as well.
But, and this is the sad part, a lot of patent attorneys agree with the positions that anon is advancing because they are probably invested in programmed computer claims. To them, anon probably is their hero.
This is sad, very sad.
“anon” your actual means here
Again: this is coming from the guy who relentlessly plastered this site with sockpuppets and insults for years, trying to derail any discussion of subject matter eligiblity, all the while pretending not to be doing exactly that.
Until he was outed by Dennis.
You have no ground to stand on, “anon.” And you never did.
You never understood the basics of subject matter eligibility, or you pretended not to (the latter being worse behavior). You’re not the only one who suffered from that problem, of course. There were many other “high profile” actors in “the industry” who didn’t get it or who pretended not to. Some of them worked at the PTO. Some of them still work at the PTO, which is incredibly unfortunate.
But it was and is and is a scandal and its ongoing. The entertaining part about it, from my perspective anyway, was that it was so obvious what was going on and yet — for some mysterious reason — so difficult for certain people to acknowledge. They still can’t come to terms with it. We needn’t look far for a classic case in point.
The wheels continue to turn and with each passing week the vaporous foundation of software patents becomes more and more plain to everyone with half a brain and eyes willing to see. Most reasonable people are going to look back on the past twenty years and wonder what in the world the proponents of software patenting were smoking. But we already know they’re motivated by the usual factors that motivate entitled, greedy people who already have plenty of money but want more: greed and entitlement.
Again: this was always plain as paint. It’s just that nobody was supposed to talk about it because, hey, the “innovation community” (LOL) is just packed with really, really serious and important people who know what they are talking about. After all, they told us so! It must be true.
Ned,
That you align with Malcolm and think him “swell” when he has easily been the most offensive poster ever is downright p@thetic.
If there ever was a poster child for the wrong application of “whatever” means to justify a desired ends, you and he are that obscene poster.
The only thing you see as “unpleasant” is that I routinely unmask your propaganda for what it is.
You have no answers to the various on-point observations I make.
It is clear from the dialogues you either abandon or attempt to derail.
Even at this moment, you have a clear choice on the Hricik side left pending, as well as an important distinction concerning statutory law and common law to recognize and incorporate into your posts.
The company you keep Ned reflects poorly on you and I would dare say is more damming than even your straight out evasion of the points put on the table for discussion.
I routinely unmask your propaganda for what it is
LOL
Bow down, everyone.
anon, it would be better if you treated people with whom you disagreed with more respect.
MM and I do not always agree. We have good discussions, with back and forth. I can never seem to have those discussions with you because you never actually state a position.
Your post regarding the last 20-years needs framing.
Ned is mad as a hatter, and MM does post some insightful posts on the current state of the movement that pays him to post. Those policy sheets make the posting more efficient for him.
Not at all, Night.
Since you will not give up the idea of patenting math in the abstract, you appear to be a sane as that wandering Knight (pun intended) who vainly tilts at windmills pursuing a lost cause.
Since you are so eager to accuse others of being paid bloggers, methinks you protest too much.
Regardless, Knight, MM has his head screwed on straight. Proof is that his thinking aligns with the Supreme Court.
In contrast, we have you and anon, best buds with another jouster of phantoms in pursuit of lost causes, Giles S. Rich.
I admit Ned it is getting bleaker and bleaker. But, then I am the one that said this would happen. If you remember, they have repeatedly made fun of me for predicting the worse even in Bilski. They called me all sorts of names.
But, it was actually you that said, what do you think Night of CJ Rader’s take of abstract for Bilski. When you said that it dawned on me that the judicial activist had been given a sword by our captain.
Do keep in mind, though, that the bleadness is being paid for by big corp and that the case law is nonsense that is being generated. I remember reading how the SCOTUS changed the way they interpreted the anti-trust laws to accommodate big corp. I saw this coming long ago.
So, Ned, make sure you get that this is a political defeat–not an intellectual one. That we are facing the dismal tide of the 1% and big corporations not wanting patents anymore. At least most of them.
Hardly a fact pattern you should be proud of.
“Proof is that his thinking aligns with the Supreme Court.”
That is a bug, not a feature.
You also mistake “whatever” to get to desired ends as ANY sort of reasoned and principled means to those ends.
Your quite frankly disingenuous claim that I do not state a position is clearly wrong. Not only have I stated positions, I have backed my positions with the actual words of Congress (yes, drafted by that man), the congressional record (with links to Cornell Law) and even your preferred source of Federico’s commentary.
So yet again we find you fabricating out of whole cloth your claims against me.
Little surprise really, as you are continuously embarrassed as I reveal your positions to be nothing more than propaganda.
By the way, still have not seen your choice over on the Hricik side.
Funny, you also claim that I “shout people down” as I typically do the opposite and shout for people to speak up and address the points on the table.
Especially those points simply inconvenient for the Echo Chamber folks.
“When you said that it dawned on me that the judicial activist had been given a sword by our captain.”
Lulz, truer words.
The invention is directed to an artificial means of achieving photosynthesis, not photosynthesis itself. From that mistake, your analysis of Alice goes from implausible to just silly. No court would find as you have. Nanowires in this use are novel physical structures, and no reading of Alice forbids patenting novel structures or processes that make use of natural materials or flora when those are elements of an otherwise statutory invention. There would be no attempt to claim the functioning of wires; where there, virtually all of the patent statues would invalidate the claim. And how an item of hardware becomes a method I will leave up to the software patent gurus, but you wont find anything about it in Alice.
Lucky this site involves only kibitzing about the law- lord knows you don’t need a law degree to do that. Intentional misreading of this hated Alice case can be easily undone on this here Internet. Get used to it….
“The invention is directed to an artificial means of achieving photosynthesis, not photosynthesis itself. ”
So what? The invention in Alice was an artificial means of acheiving intermediate settlement, not intermediate settlement itself.
That didn’t stop the Court from declaring that intermediate settlement was old therefore the claim was abstract. That’s the same reasoning I applied here.
Maybe I should have reasoned that capturing light energy and delivering it to cells is old and natural (photosynthesis) and asserted that the claim is “directed to” this old natural process.
Then I could have asserted that recitation of nanowires for capturing light energy is functional claiming and would per-empt all nanowire light energy capturing and is therefore abstract.
Why wouldn’t any court apply this reasoning? Are courts biased? Shouldn’t the reasoning be the same in all cases?
Don’t forget to throw in there that plants have been performing photosynthesis for a long time (just like the throw in there that people have been thinking a long time.)
What still floors me is reality. The software that they don’t want to patent is projected now to replace hundreds of millions of jobs over the next 50 years—and yet—it is not an invention. What in the world is an invention then?
Les,
I think this is your better argument:
Maybe I should have reasoned that capturing light energy and delivering it to cells is old and natural (photosynthesis) and asserted that the claim is “directed to” this old natural process.
The more you can rope into what’s “abstract”, the less there is outside that concept to provide patentability. It’s all a game with no real rules. You just make them up as you go.
Good point PatentBob. Depressing.
Les and Patentbob, while being obtuse, are half right.
Remember, we can’t judge eligibility without seeing the claims.
If the claims merely stated “photosynthesis” and “apply it” using conventional, routine methods, then the claim would be ineligible under 101. And rightly so!
However, if the claim includes an inventive application of the underlying physical laws at issue (“something more”) then they would be eligible under 101. Of course.
Because there are no claims, the discussion is largely meaningless.
Where Les and Bob fail is their belief (hope?) that because “do it on a computer” has been laughed out of the courtroom, then every other improvement will be also. It is an argument that convinces no one, least of all a federal court.
The irony of good sir Go claiming others being obtuse…
“Where Les and Bob fail is their belief (hope?) that because “do it on a computer” has been laughed out of the courtroom, then every other improvement will be also. It is an argument that convinces no one, least of all a federal court.”
No go arthur, the issue is the same reasoning must be applied in all cases, else there is no justice. Its not a belief, or a hope, its the law (equal protection under the law).
If do it on an old computer is not sufficient, then so is do it on an old bacteria.
Martin, you are like a woman that has lost their child and stands in the village and shouts for weeks. If you are mad at IBM, why don’t you go after them and stop whining all over us.
Night your sexist slip is showing. Maybe I am more like an aggrieved freedom fighter willing to take the battle to the streets better to call righteous opprobrium upon a corrupt system.
The sexist comment was unfortunate.
But the view of you as some warrior is even more so.
A warrior cares and studies the field of battle. You do the opposite.
Read – and understand – Sun Tzu.
Defend the rights of the mediocre to take the inventions of the extraordinary.
For what it is worth, I don’t think Night’s comment was sexist at all, really.
He chose to use an example that happened to include a gender: a woman calling for her child. That doesn’t denigrate women at all.
To the extent that it MIGHT have implied woman are more inclined to care about missing their lost child…benign, at worst.
Sorry if this seems like splitting hairs, I just think it is crazy how touchy society is getting about such things.
Sexism exists, it is a real thing. But whatever Night might have done isn’t included.
Go you evince little understanding of how sexism really works. It’s the sub-rosa assumptions that are corrosive.
The implication was not that women care more about losing children(!) but rather that women who lose children are weak, confused, hysterical, and unable to evince agency, therefore, QED, someone drilled by a rapacious patent plaintiff is likewise able to be ignored as a valid commenter.
There is no “going after” a patent plaintiff; to be accused is to lose with virtual certainly, regardless of the merits. Octane may have moved that needle, but hardly enough.
Hammering IBM Kenexa for their litigation abuse on THIS forum is cost-effective and personally satisfying, and IMO more in line with guerilla action than say, weakly crying in the town square, like a woman (see how that works?).
The small pleasures of besting learned, honored thinkers in law like Night and anon week in and week out is just a bonus. Of course its like beating up on the mentally-ill or maladjusted, so it’s kind of a guilty pleasure at that….
Martin,
Respectfully, you’re trying waaay to hard to find something that just isn’t there.
Of course the woman in his example is crazy, that’s the whole point: he’s insulting you.
But nothing in what he said implied that women in general are crazy or weak. You’re just reading in your own assumptions.
I’m sure two guys in their basement already did this and disclosed it publicly and will be crying big time when they get sued.
yup, and they should get fees when they win…
Mr. Snyder,
Since you don’t read, and evidently don’t care about law, you have self-selected yourself out of this conversation. Please keep your clutter to yourself.
To wit:
1) “OT”
2) “a break from the usual”
3) “able-minded attorneys”
Clearly, my friend, the thrust of the exercise is to see that the invention here – even if fully meeting the statutory category aspect of 101 – as did the invention in Alice – is nonetheless not eligible.
Note too, that I explicitly asked for both pro and con positions as an exercise in addressing the pertinent legal points.
If you don’t mind kind sir, sit on the sidelines then and perhaps you can learn something from a discussion uncharged from the usual politicking influence of anti-software rhetoric.
bwahhaaa anon, you don’t make the rules here. you may wish you did, but I can answer any inane posting you make; non-lawyer, ignoramus that I may be, until a moderator says otherwise. And they won’t, cause you ain’t the boss of the applesauce.
Thank you for proving my point – please note that I did not say that “I ban you,” but rather, I asked that you please refrain.
Obviously, you really do not care to learn anything, and the only reason you post is to hear yourself speak.
Sad really, how little thinking you display.
“anon” I asked that you please refrain.
When “anon” used to post here 100 times a day using dozens of different sockpuppets in an endless effort to derail any discussion of subject matter eligibility, he was asked to “refrain” by other commenters many, many times.
Does everybody remember how “anon” responded?
I do.
“anon” didn’t stop until Dennis outed him.
Another non sequitur from the reigning champion of usual posters with sockpuppets.
How goes that “battle” of transperancies that Dr. Noonan challenged you to?
LOL – thought so.
What a chump.
Another non sequitur
Not a non-sequitur at all.
You’re a hypocrite and a path0l0gical liar, “anon.” You can’t help yourself.
We told you this was going to be a difficult year for you.
More reform comin’ … because you asked for it.
Enjoy.
From the biggest hypocrite and l i a r of them all, your accusation is rather meaningless.
Shall we play the usual game when you accuse me of lying and I ask you to show the lie and then you fail to do so and run away?
Thought so.
“anon” the only reason you post is to hear yourself speak.
Whereas “anon” is posting to save the Republic from the invading Amish and the communists plotting to steal everyone’s property!
Bow down, everyone. He’s a really, really serious person in his own mind. You can trust him.
Most bizarre Malcolm. Aside from the obvious Tr011ing, did you have anythingmeaningful to say?
Anything?
Thought not.
Go figure.
Aside from the obvious Tr011ing,
LOL
“anon” the invention here – even if fully meeting the statutory category aspect of 101 … – is nonetheless not eligible.
Mental processes are processes that “fully meet the statutory category aspect of 101”.
Are they eligibile for patenting?
Ask Professor Hricick to help you with that. He’s sooper dooper edumacted on the topic.
Clearly Malcolm does not care about the facts of the Alice case.
But Malcolm, what is your point? Feel free to use those short declarative sentences you are always on about. Is your point related to the topic at all?
Malcolm does not care about the facts of the Alice case.
LOL
Well, it would depend on the claims. I’d bet there’s a pony in there somewhere, though.
“depend on the claims”
Not if you use the full power of the “Gist/Abstract” sword as provided by the Supreme Court, go.
Any actual claim language would just be the scriviners’ work, eh?
😉
“anon” Not if you use the full power of the “Gist/Abstract” sword as provided by the Supreme Court, go.
Whatever that means.
For an explanation of what it means, read Alice.
The meaning is clear and has been discussed several times.
All this is is yet another short script obfuscation attempt by Malcolm.
Lovely.
The meaning is clear and has been discussed several times.
LOL
If it’s so clear, then why are you and Les and your cohorts still completely clueless about subject matter eligibility, why it exists, and how it works?
The thing is, artificial photosynthesis is just a buzz words used to get grant money and really doesn’t capture the invention; just used for headlines. Similar work had been done by nate lewis et al. at caltech. Next time try learning the technology before making spurious arguments.
Also it should be ineligible for the same reason morse’s claim 8 is ineligible. It would claim an exclusive right to further inventions that could be construed as artificial photosynthesis i.e. the reduction of co2 to reduced carbon using artificial means that the inventor did not invent.
Where is a cite that software is a machine component or manufacture? What does that even mean? Is application software a machine component? The “machine” runs just fine without it. Is operating system software a machine component? The “machine” may still start and idle without it… Is the instruction manual for a CNC mill a machine component or manufacture? What about the instruction load for a part run? A human operator adds numbers to a register- is that set of numbers a machine component or is the register the component? Is a motion picture a manufacture? If not, is a training film, offering “utility” ? Is the hole pattern on an old IBM punch card a machine component, or is the card the component? is the hole pattern a structure, or is the cardboard the structure? can each possible hole pattern get a separate patent if novel and useful?
Do tell about judicial exceptions to printed matter- but maybe this time explain what that means.
Martin, the programmed memory computer was invented circa 1946. Since then, improvements in memory and computer design have continued apace.
But, simply changing the program does not define a new machine. Everyone knows this, but the CCPA in Application of Bernhart issued dicta that a programmed machine was physically transformed. Now, the folks who said that didn’t really know what they were taking about. But that dicta lead to Benson, which was overturned. But still the CCPA and Federal Circuit kept the notion that a programmed computer was a new machine, based on erroneous dicta.
Go Figure.
Application of Bernhart, 417 F.2d 1395, 163 U.S.P.Q. 611 (C.C.P.A. 1969). link to scholar.google.com