Comment by wegs | Hacker News Reader

Comment by wegs | Hacker News Reader

I like and trust the EFF, but that's not my lived experience, and so I don't believe the stats say what the EFF claims they mean.

1) My patent lawyer, following Alice, told us to not even try for most patents we were previously considering, because patents like that would just get rejected. I'd believe acceptance rates have gone up, but that's because people aren't filing as many frivolous patents.

2) The back-and-forth process with the patent office the EFF advocates for is a really bad idea and bad deal. Big companies can hire specialists who do this. For individual inventors, the costs here get astronomical.

Now, the bar for patents is still way too low. But Alice did bring it up. If I had my druthers:

* The bar for patents would be high.

* The processes for applying for patents would be straightforward, quick, and easy.

There would be an appeals process, but it'd look much more like sending a plain-language letter than one couched in byzantine process and baroque terminology.

So why do the drops in rejection rates line up strictly with new Patent Office guidance? Remember, Alice was in 2014. Rejection rate didn't drop until 2019, where it suddenly collapsed after the guidance was issued.

Individual inventors are already not applying for meaningful patents. That's political folklore to tell a warm story around patents.

It is completely understandable that Alice rejections will go down as new guidance is provided. This is because people drafting patents react to the same new guidance and draft patents accordingly.

Guidance documents often come with examples, language from the Alice-overcoming examples will be included in patent applications and in arguments against Alice rejections. Often, word for word if possible.

Note, there have been several rounds of 'new guidance' since Alice came down. Most of them (maybe all?) include examples from courts showing claims invalidated under Alice and examples claims that made it past Alice in court.

It doesn't take that much effort to draft patents or arguments that match the good examples. Note, this doesn't change the scope of the inventions, it simply puts magic words into applications or claims to get around Alice if needed.

You almost got it. SO close. But you are completely wrong about the following "this doesn't change the scope of the inventions, it simply puts magic words into applications or claims to get around Alice if needed."

This is wrong. The scope of the claims that result post-alice are completely different. And this is something the EFF post simply ignores. Just think about it. YOu are an inventor and invent some amazing new idea in the year 2000 like location track a plurality of requests for transportation, location track a plurality of transportation providers, use a novel form of graph theory to optimally match requests with providers with an optimized price that maximizes utility for driver and requestor (think uber-like service). You try to patent that. The patent office POST_ALICE says NOOOOO!!!!! That's just a concept. Abstract concepts are not patentable. But you, you smart cookie, you know that there are only a few practical ways to have a sufficiently fast database-lookup architecture to actually implement this at scale and that implementation and all its details is what you actually patent. Because you had the guidance, you knew what you could get and you went for it.

Alice was about subject matter, not novelty. The Alice game was drafting/amending claims to look more like a machine. I talk about it more below in my response to your other comment.

Often that can be accomplished by including claim language that doesn't limit the novel aspects of the invention. In other words, prior art is not a really a consideration when getting over a 101 rejection.

> I'd believe acceptance rates have gone up, but that's because people aren't filing as many frivolous patents.

That the article doesn't even address this obvious hypothesis makes it pretty much worthless.

Applications average about 2 office actions to disposition, so some back-and-forth is implicit

IF you count a request for continued examination a "disposition" sure. However, many (most?) applications include one or more such requests. And so, there is much more back and forth than your post implies. Filing such a request typically gets you at least two more back and forths.

I agree with your point, and I don't consider RCE a disposition. Still, the average application has about two office actions (CTFR, CTNF, CTRS, CTEQ) before an allowance or abandonment.

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