US Patent Office: Supreme Court Made Us Reject More Patents, But We've Now Fixed That And Are Back To Approving Bad Patents
from the say-what-now? dept
One of the most important Supreme Court rulings in the patent space is the so-called Alice ruling in 2014 which should have effectively spelled the end of software patents (even though the ruling doesn’t exactly say that). The ruling just says that you shouldn’t get patents on software that “does no more than require a generic computer to perform generic computer functions.” As we noted at the time… that’s basically all software that is found on computers and personal devices. Sure, there may be some specialized machines, and, fine, let them get patents. But based on this ruling, nearly all software patents should be rejected.
And, for a little while it seemed like that was happening. There were stories of the Patent Office rejecting a bunch of patents based on this ruling and things seemed to be heading in a good direction. Bad patents for generic software were not being allowed. But something changed. Indeed, after a general plateau in patents granted after Alice, patents started to go back up again.
While some patent system supporters have been claiming that various Supreme Court decisions, such as Alice, have destroyed their ability to patent their non-patentable concepts, reality shows that the PTO has continued approving plenty of awful patents.
And, now we know why. The US Patent Office has just released quite an eye-opening report regarding how it responded to the Alice decision entitled Adjusting to Alice. The TL;DR summary: “After Alice we started rejecting a lot more patents, but then Patent Office bosses issued “new guidance” that effectively overruled Alice, and we’re back to approving bad patents again!”
They didn’t quite put it that way, but that seems to be the clearest interpretation of the report. First, they say what happened after the Alice decision:
The likelihood of receiving a first office action with a rejection for patent-ineligible subject matter increased by 31% in the 18 months following the U.S. Supreme Court decision in Alice Corp. v. CLS Bank International in 33 “Alice-affected” technology areas.
For these technologies, uncertainty in patent examination — measured as variability in patent subject matter eligibility determinations across examiners in the first action stage of examination — increased by 26% in the 18 months following the Alice decision.
But have no fear patent trolls, the USPTO stepped in with “guidance” and magically the number of patent rejects quickly dropped.
One year after the United States Patent and Trademark Office issued its January 2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG), the likelihood of Aliceaffected technologies receiving a first office action with a rejection for patent-ineligible subject matter had decreased by 25%.
Uncertainty in patent examination for Alice-affected technologies decreased by 44% in the 12 months following the issuance of the 2019 PEG.
Apparently, the Patent Office thinks it gets to overrule the Supreme Court with “guidance.” How about that? The charts are pretty clear. After the Alice decision, patent examiners (understanding the Supreme Court’s clear statement regarding these kinds of patents) started issuing rejections more frequently, stopping unpatentable subject matter from getting patents (which is a good thing):
Then, in early 2019, the Patent Office issues “guidance” that more or less tells examiners to start approving these kinds of patents again and, voila, the number of initial rejects declines massively
And then look back up at the chart showing total patents granted in 2019 and you can see why the number of patents shot up so much. This is a massive problem and seems to be the Patent Office deciding that it can write its way around the Supreme Court in order to go back to approving bad patents. That’s bad on any number of levels, but will almost certainly lead to more patent trolling in the next few years that will stifle all kinds of innovation.