USPTO Demands EFF Censor Its Comments On Patentable Subject Matter
from the check-the-footnotes dept
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. This has resulted in many courts rejecting patents and the USPTO being less willing to issue patents, based on that guidance. The USPTO sought to push out new "guidance" to its examiners taking the ruling into account. Soon after the Alice ruling, it issued some "Preliminary Examination Instructions." However, it then issued the so-called 2014 Interim Guidance on Subject Matter Eligibility and sought public comment through March 16 of this year.Plenty of folks did comment, including the EFF. However, the USPTO apparently was offended at parts of the EFF's comment submission, claiming that it was an "improper protest." In response, the EFF refiled the comment, but redacted the part that the USPTO didn't like. Here's what page 5 of the document on the USPTO site looks like:
On April 2, 2015, the PTO contacted EFF to request that we remove a portion of these comments on the basis that they constituted an improper “protest.” We respectfully disagree that our comments were a protest under 35 U.S.C. § 122(c). Rather, our comments discussed a specific application to illustrate our broader points about the importance of applying Alice. Nevertheless, to ensure these comments are considered by the Office, we have redacted the relevant discussion in this revised version of our comments. Our original comments remain available to the public at: https://www.eff.org/files/2015/03/18/eff_comments_regarding_ interim_eligibility_guidance.pdf.And, of course, if you go to that link, you get the full, unredacted version of the EFF's filing.
As you can see by the full filing, the EFF filing isn't some sort of improper protest. Rather it is a clear demonstration of how the USPTO does not appear to be living up to what the courts are saying in the wake of the Alice ruling. It is difficult to see what the USPTO was thinking in trying to silence the EFF's comment. It is beyond ludicrous on multiple levels. First, it suggests a skin so thin at the USPTO that you can see right through it. Second, it suggests that the USPTO doesn't want people to recognize that its guidance is problematic in light of what actual federal courts are saying. And, finally, it suggests (still) a complete lack of understanding of how the internet and freedom of expression works, thereby guaranteeing that the EFF's complete dismantling of the USPTO's guidelines will now get that much more attention...
Has anyone patented a method and system for self-inflicted shaming for being overly sensitive to someone pointing out your flaws?
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Filed Under: alice vs. cls bank, censorship, patentable subject matter, patents, protest, redactions, uspto
Companies: alice, cls bank, eff
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Well, I'll work on that...
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Re: Well, I'll work on that...
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Re: Well, I'll work on that...
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I wonder if it would reveal the same revolving-door-appointment schtick we see at the FCC?
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Streisand...or was that NSA?
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Re:
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Non practicing entities
Yes, serial applicants have more experience in practicing before the USPTO than Techdirt. The implication that only those who profit from a malpractice should be allowed to criticize it is borderline funny though.
And yet EFF proves it understands Alice, and show a "patent" rejected by a federal court under Alice and does a side-by-side comparison of the refiled "patent" proving that the USPTO either doesn't understand it or perhaps even flout the Supreme court.
The side-by-side comparison shame the USPTO for all to see. Perhaps that is why the USPTO invoke the Streisand effect? The purely fact based analysis is not mocking, or indeed opinion at all. The silliness is all the USPTOs.
Neither EFF nor TD is a failed serial applicant. EFF and TD is simply not serial applicants at all. Their effectiveness in patent matters is thus not relevant. Perhaps they choose to have morals instead?
If you intended to say effectiveness in limiting malpractice in patent matters, by informing decision makers and bring about such decisions as Alice, there is ample evidence that you are mistaken. Few if any have had such a positive effect.
Proving that a serial litigant, serial aplicant, refile a rejected "patent" and USPTO approve it, is not infantile. Perhaps you ment infallible?
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Re:
Fix the problem you've created or stand aside.
Standing there chastising and behaving like a petulant child adds nothing of value to the discussion. Because the simple fact of the matter is, try as you may, you self-proclaimed experts no longer get to unilaterally frame the public debate. Especially since it's now become clear you yourselves constitute the major part of the problem.
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Infantile... such as whining about how no one understands the issue, but failing to provide any bit of substance to back up your assertion?
This seems to be your basic MO on every patent story. Vaguely insult people by suggesting that you have some otherworldly knowledge that others don't have, but never actually share any of such knowledge.
That's infantile.
The EFF, on the other hand, appears to have supplied a TON of info -- info that the USPTO finds inconvenient. I don't see that as infantile. I see that as quite effective in making the point.
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So what I get from you is that you do not intend to be taken seriously here, based on your regular deliberate antagonization of writers and commenters here, without ever actually adding anything of value to the conversation?
Besides, it would appear that you do not seem to understand how effective the EFF's strategy here has been in the past, or even who it is they are trying to influence and how.
I wonder why that is?
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Unless it is satisfied with being a marginal player at best, it needs to reassess its approach in matters such as this. Seems to me that some on its staff are in dire need of adult supervision.
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Taking
Reasoning
Out of
Lamentable
Language
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"do as I say, not as I do".
By calling out people who fuck up you're antagonistic? No, it's called accountability. You don't have an excuse if you don't do your job correctly as instructed by your own government in the case of the USPTO.
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Poe's law ?
1) If it is intended as sarcasm, it might be necessary to use /s to identify it as such.
2) or intended as support of the SCOTUS decision:
...don't do you job correctly (USPTO)
as instructed by your government (SCOTUS)
in the case of USPTO (the entity flouting SCOTUS)
If this was way you were trying to convey, you would be correct. The supreme court trumps USPTO.
3) or intended to be anti SCOTUS / pro censure
...don't do you job correctly (EFF or TD)
as instructed by your government (USPTO)
in the case of USPTO (the recipient of the document)
This have been refuted well. That it still is peddled might be attributed to one of Upton Sinclair's truths:"It is difficult to get a man to understand something, when his salary depends upon his not understanding it".
Serial litigants would prefer Alice to not be in effect; and USPTO is in no position to demand documentation of USPTO's wrongdoings should be void of proofs.
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And yet you did not do that here, so we can conclude that you are a liar. Adding more accurate information would be explaining *why* someone is incorrect -- not merely casting aspersions on people as you did here.
If you are who I think you are, and you obviously are based on your comments, you do this all the time. You insult people regularly by insisting they couldn't possibly understand something, and yet you refuse to then provide the relevant information.
whether it be an explanation of the law or the legal system.
Which part of the law or legal system did you "explain" here? None. All you did was insult two exceptionally well respected EFF staffers.
Trust me, the EFF is much more respected within the USPTO than you ever were. Perhaps that is the true source of your bitter jealousy.
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If you remember, I had a similar issue with the UK IPO a few years back -
https://www.techdirt.com/articles/20120729/02544819867/uk-government-censors-copyright-consultation- submission-about-how-awful-collection-societies-are.shtml
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Re:
You see, when a government agency opens up a consultation, and asks the public for comments on something, they don't actually want people to give their comments and opinions, unless they happen to align with and support the position those holding the consultation have already decided on.
If your comment supports their position, then great, it will be held up as clear evidence that the public is on their side. If your comment does not support their position however, or worse, highlights a failure of theirs, then clearly you misunderstood the submission guidelines, or you're in the minority, or whatever other reason they need to come up with to justify ignoring and/or brushing your comment under the rug.
In your linked example for instance, you had the utter gall to offer supporting evidence to back up your statements, and that, of course, was clearly out of line. Without that evidence, it would be easy to just brush your comment aside as the ranting of someone angry at the virtuous collection agencies, who never do wrong, however with the supporting evidence, that's much more difficult to do. As such clearly you misunderstood them when they specifically asked people to link to sources to support their statements, and they were acting properly by removing the links.
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In most fields, those days are long gone -- and that's part of the problem.
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Read the statute?
There are plenty of good critiques of the guidelines; this sort of half-assed "legal analysis" does no favors to your readers. Maybe try reading the law before writing the post?
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Re: Read the statute?
Well that's certainly going to be a relief to those cramming as many junk patents through the system as they can, all they have to do is get them approved and voila, no criticism allowed, and people aren't allowed to point to your rubbish patent as an example of a problem that needs to be fixed.
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Would you prefer their filings consist of "You're wrong on subject X, but you'll have to take our word on that, since we can't be bothered to show how you're wrong."? Yes, I'm sure that would be extremely persuasive, and be taken very seriously by the public and those that they are filing with, whether the patent office or elsewhere.
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These staffers were clearly working an agenda, and the leadership at the EFF would be wise to counsel them on how to respond to agency requests in an effective and professional manner.
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Re: Re: Re: Re: Re: Read the statute?
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Re: Re: Read the statute?
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In their submission, they took none of the necessary or recommended steps associated with filing a protest; they were merely responding to a request by the USPTO for public comments on the proposed guidelines and chose to criticize a particular application as an example case.
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Re: Read the statute?
They weren't criticizing that patent application, they were criticizing the USPTO's process, using those two applications as examples.
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Totally Improper!
Of course it is. Anything that points out USPTO flaws is totally improper!
/s
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More recently, my experience at USPTO has been a nightmare. It's like nobody cares anymore, non-existent customer service, terrible attitudes, the same "we can't give you legal advice" for questions that aren't remotely asking for legal advice, etc.. It's sad to see a great agency fall so far.
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Faraday cage
Though your point stands, as anti reality and anti science they are, they would most likely get it wrong; and then they would finally be crisp
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fridge magnets
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Re: fridge magnets -- Really, Masnick? You allow THIS and block me?
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USPTO
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The Problem
I see the problem here. It would not be possible to write such a patent application without referencing the Streisand Effect, and that would be a copyright violation. I know Mike does not like to claim copyright over his IP, but copyright is automatic, unless one finds a way to declare specific IP as public domain, which to my knowledge has not happened. Technically even Wikipedia is in violation, but just because Mike has not gone after them, doesn't mean he couldn't.
https://en.wikipedia.org/wiki/Streisand_effect
/s for those with broken sarc meters!
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Striesand Effect
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Re: Striesand Effect
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These two EFF staffers did the organization no favor by their cutesy antics, and certainly did themselves no favor if their goal is to be viewed as serious professionals whose input is valued.
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Sometimes, when you want to be understood, you have to get down to the other person's own level. Given the government's love of redacted documents, it looks like the EFF was just trying to get down to the government's own level.
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"The USPTO is interested in receiving public feedback on all aspect of the Interim Eligibility Guidance, including the Guidance itself, the claim examples, and the training slides."
So exactly what was the USPTO's "perfectly valid point" against the EFF's original filing?
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Use of profane language, where "profane" in this application shall be construed in the meaning of "common" or "laymen accessible" unless specifically indicated with a marginal or footnote, the choice among which is to be made in concordance with the amount of marginal space available for typesetting at the side or bottom of the page respectively.
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Re: A professional would have responded in an adult manner, and not with an infantile refilling of the same document with material blacked out and a snarky footnote added.
On the merits, EFF is clearly right, and the USPTO is clearly wrong here - SCOTUS has already ruled to that effect in Alice.
The USPTO can be sniffy about it, drag their feet, and delay things. But in the end EFF is going to get their way, because they have the SCOTUS backing them up.
In that situation, there's some merit in going out of your way to humiliate the recalcitrant bureaucrats involved. Because you know you can get away with it. And it will teach them to take you more seriously next time.
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You are why laymen despise lawyers.
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Sorry, but these two at the EFF are supposed to be professionals, and as such should be conducting themselves in a manner befitting their professional status. Otherwise, whatever they have to say is likely to fall on deaf ears at every venue they attend outside of a very small circle such as this site.
On the bright side, since they are not eligible to practice before the USPTO they do not have to worry about being disbarred for acting like truculent children.
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Obviously that is all you have to say, since you have said nothing else in this entire conversation. :-)
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Once more with feeling:
The USPTO asked for comment on their new guidelines. The EFF submitted comments, and among their comments was supporting evidence showing how the guidelines were failing to meet the standards that the SC had set with their semi-recent ruling.
The USPTO can whine all they like about how 'improper' that was, but if they're going to ask for comments, they, not the EFF, are the ones acting childish when they throw a fit should someone actually give them what they asked for.
Arguments backed by evidence and examples carry much more weight than 'trust me' based ones, and both sides know it, which is why the EFF submitted examples to support their position, and the USPTO threw a fit when those examples showed that their new guidelines weren't good enough.
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My point is simple. If you want to be taken seriously by the agency, then make your submissions in accordance with federal law and agency rules, and do not go out of your way to antagonize the agency by ignoring the feedback it provides. Not sure how to say this, but it may come as a surprise to many here that the agency does have a strong base of expertise in the substantive law, and certainly much more than two relative newbies at the EFF whose experience is not particularly broad in the field of patent law. Does this mean the agency is right and the others not? Of course not, but it does mean that what the agency says should not be dismissed out of hand because you happen to disagree. There is a time and place to work out such disagreements, and this was neither the time nor the place.
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Since you have had so very many opportunities to rebut the EFF and have not done so, I am left to conclude that you have no argument to make against their position, and so have resorted to attacking the messengers. Note your repeated mention of the lack of experience of the authors - a classic argumentum ad hominem strategy.
Does this mean the agency is right and the others not? Of course not, but it does mean that what the agency says should not be dismissed out of hand because you happen to disagree.
Oh, the irony is rich.
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Re: Re: Re: Re: "Oh, the irony is rich."
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Re: Re: Re: Re: Re: "Oh, the irony is rich."
And your misunderstanding of it doesn't make me wrong. I have not been attacking you personally, but your comments. My arguments have not been ad hominem.
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Your continuing attacks here on the EFF attorneys character, without a single substantive reply (supporting the bureaucratic response of the USPTO because that's just how it's done isn't substantive) is a rather blind, misplaced loyalty. Maybe I'm old school, but I still am of a view that governmental agencies ultimately exist not for themselves, nor for attorneys that practice in front of them, at least not under a democratic system like ours.
I would think that a less insecure, less emotionally challenged, and more nimble agency, one more respectful of the SCOTUS decision, could have chosen to accept the EFF submission, looked beyond the offending section, and moved on, like an adult, as many of us do daily with regards to a raft of things. The irate steam blowing out of their ears that you're wanting to defend, even though done by an agency, is no less juvenile because of it.
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Until then, the EFF will at best remain a marginal organization that is not taken seriously in matters relating to patent law.
Yeah, keep dreaming.
Here's a little bit of blasphemy for you: Government agencies, in this case the USPTO, can be wrong, and can screw up. And like most in positions of authority, they tend not to appreciate it when people point this out, yet that just makes it all the more important for people to do so.
If that takes the form of providing evidence showing that an agency is failing to follow legal rulings from a higher court, evidence that just hurts their feelings so very much, and shows how they screwed up, then tough, they're adults, they should act like it, and not throw a fit and make ridiculous claims about how providing backing evidence is some form of 'protest'.
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https://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_International
https://en.wikipedia.org/wiki /Association_for_Molecular_Pathology_v._Myriad_Genetics,_Inc.
https://en.wikipedia.org/wiki/Mayo_Coll aborative_Services_v._Prometheus_Laboratories,_Inc.
I'll stop here since you are probably more familiar with the subject than I am.
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This is hilarious and shows just how out of touch you really are. I realize that folks like yourself who are against patent reform, like to believe this bit of wishful thinking, but you are very, very wrong. Keep underestimating the folks who are about to make you look incredibly silly. It's hilarious.
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They are not my friends. I have met each of the two individuals you discuss exactly once each (in separate circumstances) and do not know either particularly well. You make bad assumptions and it makes you look like an... well, you know...
In the meantime, you keep insisting that their action was "infantile" or "unprofessional" -- and I don't see how or why.
But, honestly, the idea that EFF is considered a "minor player" in patent issues suggests a level of ignorance on your part that is astounding. I believe the term "wishful thinking" was invented for deluded folks such as yourself. I am quite sure that the "true believer" patent abuser world that you revel in would like to believe so, but having spent plenty of time with the people who are actually making some of these decisions, you are wrong. Ridiculously so. But it's funny to watch you pretend otherwise.
Do keep it up.
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You want that to be the issue. I can't speak for anyone else, but to me that is at best the third most important thing about this story.
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I'm sorry. You comment has been rejected because it's an "improper protest."
If you want to be taken seriously, please resubmit your comment without the preconceived bias against the EFF.
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I understand that perfectly. You cannot rebut the actual substance of the EFF's document, so you are limiting your comments to attacking the form of it and the authors of it instead, and desperately hoping to limit the entire conversation to that topic as well. Unfortunately for you it isn't working, but believe me we all understand what you're doing.
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But when it comes to you and your buddies spamming this site about Masnick's beef against (irresponsible, reckless, high-collateral damage) copyright enforcement, you will smear, demean and berate anyone who disagrees with shameless language, and expect to be taken seriously.
A pro who wants to be taken seriously would react in a markedly different manner.
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Or, maybe you consulted with the Portland police on their "contempt of cop" approach? C'Mon, don't be shy! Tell us, we're all dying to know, especially those of us with darker skin than the cops. We really are dying to know. Cuz like you said, if you don't want to get in the cross hairs, zip your lip, check it before you wreck it, there are consequences for impertinent things like talking back.
Was that you waving pompoms at the recent rally for the poor, beleaguered police man? Or, maybe holding the sign that read "I ❤ bureaucracy"?
There's a rumor going around that you provided the backing for that new genre of material called intransigence porn: "look, dear, a new film about a mean bureaucrat who forces people to submit forms in a certain way, and when they don't, makes them his sex and coffee slaves".
Welcome to Apologists R Us! We make excuses, so you don't have to!
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FTFY.
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The cause of the tragedy is unclear. But authorities are looking at the possibility that the ship, the Hubris, was carrying an excess of ego. According to one unidentified member of the coast guard, "a ship of that size--it was large--but it doesn't seem to have been equipped to handle that many people with that size of a head all on deck at the same time."
Witnesses at the scene report that those aboard flailed desperately in the water, strangely screaming "infantile" and "childish" as the liner descended below the surface, pulling the crying attorneys slowly down with it. Asked what they had done to help, witnesses said while they had wanted to jump in their boats and throw lifelines to the drowning victims, butbut did nothing out of fear they might be infringing on a lifeline patent.
Next up, a story about an exciting new program that is training employees of a government agency not only how to drag their feet but how to stamp them as well. That when we return.
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If Redacted, Non-existent
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Surprised and sorrowed
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Re: Surprised and sorrowed
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Re: Re: Surprised and sorrowed
I may have misread the footnote, as I have been know to make mistakes in reading comprehension rarely. But I suggest that you read the footnote which I have copied below. If you still disagree, then we can discuss it further.
"However, EFF also added the following footnote (footnote 8) on page 6:
On April 2, 2015, the PTO contacted EFF to request that we remove a portion of these comments on the basis that they constituted an improper “protest.” We respectfully disagree that our comments were a protest under 35 U.S.C. § 122(c). Rather, our comments discussed a specific application to illustrate our broader points about the importance of applying Alice. Nevertheless, to ensure these comments are considered by the Office, we have redacted the relevant discussion in this revised version of our comments. Our original comments remain available to the public at: https://www.eff.org/files/2015/03/18/eff_comments_regarding_ interim_eligibility_guidance.pdf."
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Re: Surprised and sorrowed
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Re: Surprised and sorrowed
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Re: Surprised and sorrowed
Like it or not like it, the USPTO is following the law of the land with respect to the apparent protest in the letter from the EFF. Don't blame the USPTO for following the rules set up by congress.
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Re: Re: Surprised and sorrowed
I disagree, I think it's clear they were not protesting that patent, which if I'm not mistaken is what the "no protests" rule is about. Rather they were using it as an example to point out problems with the USPTO's process. That is to say, their point was not "this patent is bad and should be rescinded", their point was "look at these two patents - you're not following the Supreme Court's ruling".
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The USPTO do not head the SCOTUS
This is untrue.
"Protests" in the wrong venue is ineffectual. It is therefore self-limiting. USPTO may (correctly) refuse to consider it as a protest against the specific patent. EFF's document were never filed in that case, at all. The pretense that EFF's document is a protest against any single patent is quite Don Quixote-ic.
EFF's document do prove that the USPTO is either grossly incompetent or flout the SCOTUS. The USPTO want to censure this fact. Because they tried more people know they are.
If the USPTO can be flooded with similar proofs, it suggests that the USPTO flout the SCOTUS on purpose. There is evidence that the USPTO assumes it can meet the SCOTUS half way. That is a defiant and dangerous game.
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Re: The USPTO do not head the SCOTUS
The only way to accept a document with the claim comparison between two specified patents with the point being that the latter patent should not have been issued, is to get the law changed. Otherwise, EFF's intent was irrelevant, because it looked like a protest, and the USPTO treated it as such, as they are required to do.
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Re: Re: The USPTO do not head the SCOTUS
The MPEP is USPTO's "Manual of Patent Examining Procedure". It have no bearing on comments regarding the PTO’s 2014 Interim Guidance on Patent Subject Matter Eligibility.
Nor does USPTO's MPEP trumpf the SCOTUS Alice
The MPEP only applies to USPTO's patent examining procedures; only the patent examining procedures.
Why do you assume the singular patent were the object of EFF's document?
There is ample evidence to the contrary:
EFF documented that by Alice SCOTUS instructs a change (policy)
EFF documented that federal courts rule that Alice changes president (policy)
EFF documented that USPTO's guidance still includes court decisions that are direct in opposition to Alice (policy)
EFF documented that USPTO issue patents in opposition to Alice (and therefore SCOTUS) (applied policy)
and:
USPTO asked for comments on the Interim Guidance
EFF answered how the Guidance should change, and why
Even the title of the document is "COMMENTS OF THE ELECTRONIC FRONTIER FOUNDATION REGARDING 2014 INTERIM GUIDANCE ON PATENT SUBJECT MATTER ELIGIBILITY"
The MPEP is not the law. It is only a Manual of Patent Examining Procedures
If this censure scandal is an indication of USPTO's level of understanding of jurisdiction (even of its own internal documents), then something has gone seriously wrong!
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Re: Re: Re: The USPTO do not head the SCOTUS
Furthermore, it did not matter EFF's intent from the perspective of the protest portion of the letter. EFF could have called it an alien's baby by Elvis, but it still looked to the USPTO (and to many others) as a protest under the law, the rules, and the MPEP. The USPTO did what it is required to do, and treated it as an improper protest. EFF could have made its point in other ways, without hiding a protest as an "example."
The USPTO properly view a comparison of claims with a clear complaint about the later filed patent application as a protest, in clear understanding of its jurisdiction and internal documents. Looks like the USPTO is doing what it is supposed to be doing when it comes to improper protests.
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Re: Re: Surprised and sorrowed
Perhaps the persons here who seem unable or unwilling to understand why the USPTO responded as it did would rather the office do what is usually the response when a non-responsive or extraneous matter is raised in a submittal...simply refuse to enter the problematic document in the record and ignore it in its entirety. At least the agency informed the submitter of what it saw as a problem and afforded it the opportunity to fix it.
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Re: Re: Re: Surprised and sorrowed
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Fingers in the Ears
About the status-quo, serious bureaucrat is serious.
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I'm much more concerned with figuring out how to send a message that censorship will not be tolerated. It occurs to me that the most effective response would be a flood of comments from other people, all revolving around the EFF's censored comparison. It wouldn't hurt to add the text of the First Amendment to the end, with the bit about petitioning the government bolded.
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