Unfortunately, when it comes to patents and innovation policy, the EFF has chosen to side with giant technology corporations and technology implementers, not individual inventors or innovators.
The Electronic Frontier Foundation (EFF) is at it again, this time with what they refer to as a Save Alice campaign. The EFF does not like the Revised Patent Eligibility Guidance published by the United States Patent and Trademark Office (USPTO) in January 2019 and is charging USPTO Director Andrei Iancu with attempting to subvert the United States Supreme Court and essentially ignore Alice v. CLS Bank.
These assertions are bogus, and truthfully, they are hardly worth the consideration of thoughtful individuals interested in a meaningful dialogue about the state of the U.S. patent system. Director Iancu has issued guidance that strictly follows exactly what the Supreme Court ruled in Alice, period. Over the years patent examiners, Administrative Patent Judges, district courts, and the Federal Circuit have dramatically expanded Alice. It was admitted in Alice that the “invention” could be coded over a weekend by a second-year college student, which means it was extremely trivial and not innovative.
Yet, Alice has been used to find many substantial and innovative software systems and platforms patent ineligible. Alice has grown well beyond anything actually written in the text of the decision, and the test (if you can call it that) endorsed by the Federal Circuit is so subjective it allows the decision maker to reach whatever result is desired, untethered to any objective reality. Thus, Director Iancu and the Patent Office reviewed numerous decisions for threads and clues and fashioned an objective test that is both solidly true to the Supreme Court’s decision in Alice and to the Federal Circuit’s most recent decisions. Anyone that says otherwise is simply lying or misinformed.
Such a conspicuous attempt to gain attention in an outrageous and obviously erroneous fashion is the type of stunt the EFF has become known for over the years. Brazen, blatant, noticeable—and wrong.
The problem is the EFF is an organization that is afforded unearned respect by the media and others. Thus, when the EFF so egregiously goes off the rails, even when it is a flagrant foul that is a part of a shock campaign, it must be called out for what it is—complete and utter nonsense.
This also provides an opportunity to expose the fundamental hypocrisy of the organization. Had a pro-inventor or pro-patent organization created a website with a form e-mail that supporters could send with one click, and encouraged flooding the USPTO with support for the Revised Guidance, what would the EFF have said? The real troll in this story seems to be the EFF, and they are trolling the USPTO, encouraging those with at best first level information on the issues to flood the USPTO with the same comment, which says nothing substantive whatsoever but accuses the Office of attempting to distort Supreme Court precedent inappropriately.
It is ironic that the EFF now plays the part of the troll; few organizations over the past decade have been more responsible for the myths and lies about innovators than the EFF. Indeed, on their own website they define a patent troll as those who do not create new products or new ideas, but instead resort to litigation to protect the rights that technology users are infringing.
First, ideas are not patentable now, and they never have been patentable. If the EFF is concerned with the USPTO having made mistakes there are a wide variety of mechanisms available to concerned citizens and organizations, as well as those directly affected by what are believed to be overbroad rights. None of these mechanisms relate to Alice. So, it is complete folly if not direct and intentional misrepresentation to suggest that Alice is somehow necessary in order for there to be a mechanism to correct errors made by patent examiners. Alice does not even deal with process or procedure.
Second, the creation of a new product is an important step in bringing a new product to market, but it represents the last mile. The EFF and others who seek to exalt those that take products to market either ignore or belittle the extraordinary effort and substantial investment necessary to create the underlying technologies that make it possible to actually create the product or service that the technology implementing companies will turn into a new product or service.
For example, 5G has been in development for many years and several critical innovating companies, such as Ericsson for example, have already spent many billions of dollars researching and developing the technology so that communications companies will be able to soon, perhaps within 2 to 5 years, begin to roll out widespread 5G network connectivity. Obviously, the investment those communications companies will make to roll out the connectivity to consumers is important, but what about the decade or more of engineering, innovation and discovering that Ericsson will have engaged in leading up to that point? Will Ericsson somehow become a patent troll because they aren’t the ones rolling out the last mile in the commercialization process to the consumer? Absurd!
Finally, it is truly pathetic for the EFF—or anyone—to complain about patent owners filing lawsuits to protect and enforce patent rights. The number of patent infringement lawsuits has continued to decline, and those that do sue are compelled to file lawsuits because those technology implementers that infringe know they can do so with impunity.
The Efficient Infringement Calculation
The act of efficient infringement is the cold-hearted business calculation whereby businesses decide it will be cheaper to steal patented technology than to license it and pay a fair royalty to the innovator. Large entities realize there are a certain number of patent owners that are simply not going to assert their patents for one reason or another, frequently because they don’t have the money to do so. Then there is another group of those that will assert their patents but will not win. The calculation progresses to realize that there is a small group of those who are likely to assert and prevail, thanks to all the hurdles put in place (i.e., patent eligibility challenges, the PTAB, etc.). The calculation further recognizes that even if a patent owner prevails, a permanent injunction is virtually impossible to obtain as the result of the Supreme Court’s decision in eBay v. MerchExchange, and damages are likely to be minimal thanks to a continual judicial erosion in damages available to victorious patent owners who hold valid patent rights that have been adjudicated to be infringed.
Time to Recalibrate
According to the EFF website, the organization defends civil liberties and champions the privacy of individuals, free expression and innovation. It sounds like a wonderful organization. Unfortunately, for whatever reason, when it comes to patents and innovation policy, the EFF has chosen to side with giant technology corporations and technology implementers, not individual inventors or innovators who accept considerable risk and invest incredible amounts of time, money and energy researching and developing technologies that can then be usurped (i.e., stolen) by technology implementers at the end.
Perhaps the EFF should recalibrate and take a look at these issues through the eyes of innovators instead of being a puppet for the largest corporate entities in the world. Those patent robber barons are suppressing innovation, and that is the type of thing that, once upon a time, the EFF seemed to care about. How could an organization that was founded to protect the freedoms of individuals have strayed so far to the point that is virtually a wholly owned subsidiary of 21st century patent robber barons? The EFF is on the wrong side of history, and they are wrong, period.
Image Source: Deposit Photos
Vector ID: 46806241
Join the Discussion
22 comments so far.
AnonMarch 16, 2019 10:06 am
Well said Ternary, bravo.
TernaryMarch 15, 2019 08:51 pm
Litig8or. You should know (but who knows what people know nowadays) that 5G is not a single invention but a collection of technologies. One aspect 5G is the use of Low Density Parity Check (LDPC) error correction coding in channel coding.
LDPC was originally developed by Rober Gallager at MIT and not by Ericsson or any other large company. Furthermore, LDPC has been further developed over the years by independent inventors and companies and institutions.
Ericsson is a quality company that will hopefully get credit and fees for its inventions. But the same applies to others who have contributed to 5G.
There is really no reason to rant about trolls in this. Especially, because so many different individuals have over the years contributed to the different aspects of 5G. The issue of Gene’s post is that some people will probably accuse Ericsson being a troll if/when they leverage their IP. Gene says “absurd.” As absurd as to accuse other inventors with patents on 5G to be trolls.
But who knows. I bet there will be some litigator who will try to convince a judge that LDPC is really an abstract idea, like error correction in general. And in this anti-science atmosphere they may well succeed.
Litig8orMarch 14, 2019 09:47 pm
The post seeks to demonize GIGANTIC CORPORATIONS and then proceeds to mention that GIGANT TELECOM has spent billions developing 5G. There is no doubt that once 5G is deployed, an army of “individual innovators” (trolls) will file baseless patent lawsuits claiming to have invented 5G.
TernaryMarch 13, 2019 11:07 pm
Anon, I would agree with you were it not for the actual actions in the PTO. In its simplest form one fundamental issue I am dealing with is if an addition over a finite field GF(n=2^k) is a mathematical expression or a description (on the logic level) of a discrete binary circuit (the realization). Or perhaps both.
For those not familiar with what is broadly called “machine arithmetic” an addition over finite field GF(n=2^k) is physically in one embodiment a set of k XOR gates wherein bitwise the bits of two binary words of k bits are processed. For instance, a word of 8 bits represents one of 256 logic states. This is well known in the Art and is described in textbooks.
A finite field is also a mathematical concept often associated with Galois (hence the GF or Galois Field). However, the properties of a finite field apply perfectly to certain circuits like XOR circuits and circuits that perform modulo-n arithmetic (when n is prime).
This issue that did not come up for me before Alice is now a regular one in my Office Actions. It may be an incorrect application of Alice. Actually, it is an incorrect application of Alice. Effectively it doesn’t matter. Like in many other cases wherein machine operations that are described by “math” are dealt with as abstract ideas.
An example that stands out in this is US 9,485,087 where the claims were initially rejected because a modulo-r operation “per se” is an abstract idea. The Examiner finally saw the light. But it is not unthinkable that in court the claims will be invalidated over Alice. Alice is a mess, from a legal, an operational and an engineering perspective. And I agree: A LARGER problem may be afoot.
AnonMarch 13, 2019 05:33 pm
We are likely to MORE agree than disagree on core matters here.
One item of disagreement appears to be whether or not current action by the USPTO — merely by being done — is (or should be), equated with correctness of that action.
I would be emphatically in the negative on that point.
Separately, I do note that more and more items are being posted on the USPTO comments page (even as the day has gone by).
One that caught my eye was the 18 page missive from the inventor (and “victim” of the Supreme Court in the very same Alice case that highlighted the “down the rabbit hole” effect that we are currently immersed in.
While I do not agree with all of his points, a salient one is that the protocol of the Office is – in fact – quite meaningless in that it does NOT cut the Gordian Knot created by the Court (my words). He posits a simple (and simply telling) question: would claims ruled by the Court to be NOT patent eligible nonetheless pass the new protocol?
I can tell you without hesitation that I could easily get a sizable number of those claims to sail through the Patent Office under the new protocols.
As the Alice inventor intimates: this only points out a LARGER problem is afoot.
TernaryMarch 13, 2019 11:03 am
Anon @15, you would think. Unfortunately that is not always the case in the USPTO. The Examiners are blinded by the math of a description. They often do not recognize or do not want to recognize that the logic description (the Boolean logic if you do it binary) is just another way to describe the hardware.
Or, as Joachim says: the The logical design sits on top of the gate design. To make sure that connection is established, I absolutely make an explicit statement to that effect.
There is no difference between the two, once you have made the connection. I agree with you that such a connection is (should be) well known. It is well known since Shannon published his M.Sc. thesis in 1938. But tell that to the USPTO, not to me.
Benson is fundamentally a (physical) shift register invention.
A great educational/fun device is the Turing Tumble computer. https://www.turingtumble.com. A gravitational binary marble computer. You could probably implement the Benson invention on it. Its appearance/realization would be strikingly mechanical. However, it would still be directed to the alleged abstract idea.
I found the original Benson prosecution history, which is very interesting reading. Benson and Tabbot in their specification provide an instruction set of the conversion. This led the Examiner to say that “A computer program is a list of instructions which are the result of the mental processes of the programmer …” Yes, really!
In the further arguments during Benson prosecution, a diagram was provided by the inventors that illustrates the invention as a shift-register based invention. Unfortunately, this drawing was not part of the original drawings in the application. But claimed in that form it could possibly be patent eligible, if you can avoid the term conversion. Hide the intent somewhat. That is how far we have sunk.
Joachim MartilloMarch 13, 2019 02:44 am
[email protected] 12, 2019 3:23 pm
The logical design sits on top of the gate design.
The logical state sits on top of the gate state.
In the written description I would include provide a short explanation of the relationship between the layers and explain that a subroutine specifies a sequence of logic states or of gate states. Then I’d try to claim the sequence of logic states or of gate states, and the limitations would correspond to structure associated with the software — possibly a hard problem, but I am not sure harder than an antibody genus claim.
[Written description requirements associated with such an antibody genus claim are in flux, e.g, Amgen, Inc. v. Sanofi, 872 F.3d 1367 (Fed. Cir. 2017), but at least the issues relate to § 112 and not to inconsistent or illogical § 101-eligibility doctrine.]
Such a claim would be comparable to a (possibly intermediate) molecular claim, a genetic sequence claim, an amino acid sequence (in conjunction with limitations of secondary structure, tertiary structure, and quaternary structure), etc. Now that may seem somewhat fanciful, but remember that chemical or biochemical molecular descriptions are to some extent hand-waving to a physicist who might think in terms of quantum theory, quantum field theory, or string theory.
The patent agent or the patent prosecutor must convey these concepts to the patent examiner or to the Article III court in such a way as to clarify that the claim is not directed to software per se but is directed to physical structure(s).
It is potentially a heavy burden, but SCOTUS and the CAFC have a predilection for unifying principles. Getting “software” patents out of the special case category could only be a positive development.
[An exercise to determine whether this approach works would consist of attempting to rewrite the Gottschalk v. Benson claims in such a way that they would be § 101-eligible.]
AnonMarch 12, 2019 11:42 pm
“To make it patent eligible, you may have to explain the above relationships in the specification.”
Respectfully, this statement is error.
One is not reinventing the statement in order to further take advantage of the statement; the statement — in and of itself — forms part of “The Art,” to which a Person Having Ordinary Skill In ‘The Art’ would appreciate.
The Time Is Now To ActMarch 12, 2019 10:18 pm
Hi Dave – here’s the EFF troll manifesto and definition.
Also note the further content links on the page.
Pro SayMarch 12, 2019 09:12 pm
Dave — I’m sorry I don’t have that link, but I hope you’ll keep us all informed on your case.
Dave BarcelouMarch 12, 2019 08:45 pm
Can someone supply the correct link to EFF’s definition of “Patent Troll” in the above article please? It’s of particular interest to me and my defamation case. Thank you.
TernaryMarch 12, 2019 03:23 pm
NW and Joachim. Blaauw and Brooks (co-architects with Amdahl of the legendary IBM System/360) make in computer design distinction between levels of description of a computer device. These levels are 1) Architecture, functionality as a user sees it; 2) Implementation or logic structure; and 3) Realization or physical structure.
For instance an integer adder statement ADD(A,B) as a user sees it, can have one of different logical structures (like Carry Ripple or Carry-Save) and can have different physical realizations (electro-mechanical relays, tubes, TTL, CMOS and others). Furthermore, as most of us know, the logical structure can be minimized. (if they still teach that).
Blaauw and Brooks were both students of Howard Aiken, who had a view that the logical structure of a computer can be developed independently from the realization (causing friction with Watson of IBM who paid for the relays in his Mark computers.) All of this goes back to the logic design of switching circuits as explained by Shannon in his M.Sc. thesis.
All of this reduces to the fact that a logic state is a representation of a physical state. So if you can physically switch between physical states then you can represent your design as a logic design and you can develop new designs based on the logic alone. To make it patent eligible, you may have to explain the above relationships in the specification.
The logic design in this approach is merely a different way of representation of physical states. I believe a novel logical structure that is physically realizable is/should be patent eligible. For instance novel multiplication logic structures are still being invented.
Furthermore, a novel physical switching mechanism, such as molecular switching (for instance using additional and ‘artificial’ nucleotides) is/should be patent eligible.
This is not to say that obtaining a patent on novel logical structures is easy. It has become more difficult after Alice. The main issue is that the logical description of a physical device is often interpreted by Examiners as being ‘directed to an abstract idea.’
For people not as familiar with computer science as Joachim: Tommy Flowers was the designer of Colossus, a war-time cryptanalysis machine. He reduced the problem of solving abstract logical Boolean expressions to physical devices that switched between physical states. In 1945 that was considered to be short of miraculous and to be kept absolutely secret.
Now the geniuses of EFF want us to believe in hindsight that all of this is trivial and merely “directed to an abstract idea.”
I am not sure that SCOTUS would be able to recognize that a logic state is a representation of a physical state, as Benson demonstrates.
Joachim MartilloMarch 12, 2019 12:08 pm
Night [email protected] 12, 2019 10:06 am
I am not sure exactly what you mean. Could you supply a link?
Does the Wang paper suggest that patent eligibility can be legally supported by size and speed considerations? Such an argument would be unlikely to get traction from SCOTUS.
Finding a claimable structure might be a better approach.
I pointed out that when Tommy Flowers introduced logic components into electrical circuits, he created a new layer of structure in intermediate logic states and that this layer of structure is separate from the physical structure of the electrical circuit. This new layer of structure seems claimable rather as molecular intermediates are claimable. It might be a challenge to write a claim based in the structure of intermediate logic states (or of a sequence of intermediate logic states), but I believe I could.
It would be hard for SCOTUS to find a claim to novel and non-obvious logic state structure to be patent ineligible.
Jason LeeMarch 12, 2019 11:26 am
Here is a interesting video circulating just how fast Apple and Google grew to the top spots of the worlds wealthiest companies. Thanks in know part to Silicon Valley’s lobbying efforts to prevent patent owners from getting paid, and helping them selves hoard all the wealth for them selves;
Night WriterMarch 12, 2019 10:06 am
@4 Joachim Martillo >>I also tried to suggest an approach that pertains to thinking about software and that would make it possible to claim novel and non-obvious program structure just as novel and non-obvious data structure can be claimed,
Please. This is already the case. I think Wang had a very good paper about the time of Benson that explained why information processing should include discussions of space and time.
TernaryMarch 12, 2019 09:47 am
The listing of responses by the USPTO is woefully incomplete. Furthermore by aggregating merely as “individual”, the form letter responses are drowning out the reasoned responses pro and against.
I am not sure that the USPTO can discard any response (though they can and do in an office action response), but at a minimum the Office can create a “form letter response” category that separates form responses from reasoned and argued letters. The current listing reflects a mob mentality that prevents reasonable people to learn from other individual opinions.
Furthermore, the EFF form response ignores the problems and vagueness of the Alice decision, which the Guidance addresses. The Alice decision itself holds that “Lest the exclusions “swallow all of patent law”.” There is no guidance in the Alice decision to apply it correctly. That is the whole issue. As EFF knows. But for EFF any patent that is invalidated and any application that is ineligible is a win. People who submitted this form letter without further arguments should be ashamed. At least they stand recorded.
Director Iancu correctly addresses this “Lest the exclusions “swallow all of patent law”” in his Guidance. Next, Congress should act and exercise its constitutional duty.
AnonMarch 12, 2019 09:43 am
…to add to Mike’s point A), and to remark again about some of the deliberate attempts to Tr011 this very website (no doubt, from some of the same parties), I cannot help but notice that the provided mechanism of the organization that is nothing more than an Efficient InFringer Front (need I say the name? 🙂 ), has the (potential) identifying characteristic of an email address noted as being merely optional in its provided mechanism.
In fact, more than a hundred of the newly added comments at the USPTO website are from those not even listing that email address.
As to “Tr011ing,” I have commented to several (repeat?) and disgruntled naysayers that occasionally pop up on these threads that the unpublished requirement to include an email address is merely a legitimate anti-spam, anti-bot mechanism. I have even called for those who attempt to circumvent that mechanism by using a false email address should lose their associated attempted “voice” (a more harsh stand than is actually employed here).
AnonMarch 12, 2019 07:41 am
A very thoughtful intro here Joachim, and there is no doubt that you care deeply about the subject.
So while on occasion I may be critical, I do appreciate your efforts.
Joachim MartilloMarch 12, 2019 06:41 am
I feel insulted by the EFF. I spent time in thinking about the New 2019 Guidance on § 101 and § 112. I had other things to do, but I prioritized responding because the US patent system is important.
I guess that the EFF is expressing the importance of the patent system in a backhanded sort of way because it feels the need to destroy the patent system utterly in order to make it possible for big tech to parasitize and to pirate technological inventions.
Iancu’s goal is obvious. With the Alice and Mayo decisions SCOTUS broke the patent system through logical inconsistency, misunderstanding, and ignorance as Judge Plager has so expertly pointed out.
The SCOTUS Justices that signed onto those moronic decisions should resign in shame. My family comprises New York City real estate developers. I know exactly what Fred Trump thought of his son. Donald’s life has been a failed effort to prove his father wrong. Yet I do not doubt that Donald could appoint more competent justices.
The Director made a Herculean effort to patch the hole SCOTUS blew through the patent system. It’s impressive and deserves two cheers. (Unfortunately there is no way to fix such an obviously incorrect precedential decision that Mayo is until the incompetent Justices leave the Court, new competent Justices replace the incompetents, and these new Justices have the opportunity to overrule that imbecilic decision.)
In my comments I tried to explain the logical inconsistency (both legal and mathematical) that SCOTUS introduced into the patent system. I also tried to suggest an approach that pertains to thinking about software and that would make it possible to claim novel and non-obvious program structure just as novel and non-obvious data structure can be claimed, and I pointed out that SCOTUS along with the CAFC has introduced a Fourth Judicial Exception without bothering to tell anyone.
I know I could have done better, but I think I have identified a possible direction to head to save the patent system.
Night WriterMarch 12, 2019 03:56 am
The key is the money. I think EFF is funded by large corporations –the efficient infringers. Their opinions are not a surprise and will never change unless their funding changes.
MikeMarch 12, 2019 02:15 am
The EFF’s obvious efforts are going to backfire. Their form letter campaign A) not only contains no valid argument or evidentiary support, but B) there is no way to know if the “individuals” who “submitted” their letter are real distinct persons, bots, or otherwise. For those two reasons alone, every letter that begins with “I urge the USPTO not to adopt the guidance” should be discarded. The comments the USPTO received are replete with this same text.
This is an utter fail. It’s like a student in college who somehow steals the keys for all his exams in a particular class. Only a fool would perform a perfect score on every exam, thereby exposing himself as a fraud and not genuine. The EFF is no different here.
Let’s record this on Wayback Machine, shall we?
And yes, I’m with Anon. All Director Iancu has to do is hire a college student to write a program that would purge each of these letters. Again, the EFF’s lack of being genuine and their lack of argument in their letter will backfire.
Gene’s article here clearly exposes the EFF and their latest and ridiculous effort to undermine legitimate individual inventors.
AnonMarch 11, 2019 07:12 pm
Prior to today (and thanks to Pro Say for pointing out today’s avalanche), I had actually read every single one of the 119 comments provided.
See my comment at http://ipwatchdog.com/2019/03/05/a-plea-to-all-ip-stakeholders-support-director-iancus-101-guidance/ – roughly (may change due to the posting delays) at post 23, of which I will repost here (since I have a minor correction to make (noted by **):
I will grant that Mark Marrello may have filed a comment with the USPTO (as may have many others that often comment here).
I will note that the link at the USPTO does NOT reflect any such comments.
Through this morning, there were ZERO comments in any category outside of the “Individual” category, and for that category only 119 total comments being shown, with the last comment dated February 13.
NOT an auspicious “reach out” by the Office.
Further, of those 119, only ELEVEN were received prior to an organized effort, reflecting a most definitely NOT “Individual Effort” from one of the notable Efficient Infringer fronts. That effort provided a pre-penned letter and delivery mechanism for associated members to merely “copy” the form letter and submit under their own name.
Having checked each of the 119, I am saddened to say that a full 105** of the 119 are of the nature of the association form letter***. At least two of the form letters are actually duplicates of the form by a same person. Of the 105**, a small handful bothered at all to add or attempt to personalize comments, and most of those show an absolutely abysmal understanding of BOTH law and technical sides of the discussion.
At least two others had multiple (but different content) letters.
This leaves outside of the form letter, a de minimis twelve original thoughts, and many of those are not worth repeating.
** anyone bothering with percentages, 97%** of the already tiny feedback shown is tainted with a organization’s hand.
Given the utter lack of touch with tech and law foundations, I would advise the Patent Office to simply seek out informed opinions.
Note that this analysis was done prior to today’s update for which there are now well over 2,000 comments.
(I bet that I could go down to the local college coffee shop and offer a few pizzas to write a program that would remove the massive form letter campaign by an Organization seeking to mask itself unuder the guise of individuals….)