Bonum Certa Men Certa

The US Government Accountability Office (GAO) Comes Across as Against Software Patents, Relates to the EPO as Well

GAO logo



Summary: Some analysis of the input from the Government Accountability Office (GAO) with focus on the EPO and software patents

Regarding the "EPO and USPTO," one reader told us over the weekend, there is some curious text which is worth examining/scrutinising further. Just before the weekend we wrote about GAO's input, which mostly chastised the USPTO over patent quality. A closer look reveals even more about the subject.



"This helps highlight existing problems and there is a lot that the EPO can learn from this."Here are direct links to the report/s [1, 2]. One reader asked us, "did you get these documents?" These were mentioned very quickly by good blogs like Patently-O, so we noticed them very promptly and commented on these based on concise coverage, not based on a thorough reading of the entire text. "The EPO had no comments on the draft," our reader told us. "In GAO-16-490," for example "see e.g. p.25-28 on quality / time, effect of "corridors" (high grades -> higher production), also GAO-16-479: see p.21-22..."

To quote from the text: "The Government Accountability Office has released two reports: one suggesting the USPTO should define quality, reassess incentives and improve clarity; the other suggesting the USPTO should strengthen search capabilities and better monitor examiners' work..."

This helps highlight existing problems and there is a lot that the EPO can learn from this. To quote one new comment about the EPO: "Some weeks ago the Central Staff Committee [CSC] published a paper about overcapacity and reducing stocks, they also mentioned the contracts for examiners. I heard that a director in The Hague sent a mail to his examiners in which he disproved all the numbers as given by the CSC, showing that their publication was misleading. Does anyone have a copy of this mail? Some facts would be useful for this discussion!"

If anyone has a copy, please send it to us. There is a growing (and legitimate) concern about patent quality at the EPO, especially after Battistelli took over and derailed various processes, not just oversight, appeals, etc.

"With PTAB and Alice there has already been a turn for the better, but not every outcome is positive."Based on WIPR's coverage of the GAO report, "most patent cases involve software-related inventions [...] that are easy to “unintentionally infringe” (this does not surprise us as we have been arguing this for years).

IAM too (an EPO mouthpiece) responded to these findings regarding USPTO patent quality being so low, reaffirming what we have said for a decade or more.

To quote IAM: "The recent report on USPTO patent quality by the Government Accountability Office (GAO) would not have made for easy reading at the agency. That said, its leadership presumably knew what was coming long before they saw a draft of the report prior to its general release. The office knows it has a problem with quality – raising the standard of grants wouldn’t have become such a banner issue of Director Michelle Lee’s time in charge if it didn’t."

"They want to keep their cake (software patents) and eat it too."With PTAB and Alice there has already been a turn for the better, but not every outcome is positive. Watch this new article by Ricardo Ochoa of PretiFlaherty. Weeks later, well after the Bascom case, patent law firms still exploit an exceptional case for software patents promotion. If they wish to be honest, they will admit that software patents are neither justified nor easy to defend in a court, as per evidence which exists everywhere.

WatchTroll, the most vocal proponent of software patents out there, wrote today about Alice. Here is a key sentence: "Those who have been involved in patent prosecution going back 12-15 years will recall that after the initial rush of business method patents began, in about 2002, the Patent Office instituted what they referred to as “second pair of eyes” review. Under no circumstances could a patent be issued on anything that related to a computer-implemented invention unless and until it had been approved by two separate patent examiners. It certainly sounds like that is what is happening once again."

It's about time too. They would not grant a "computer-implemented invention [CII is another term or euphemism for software patents] unless and until it had been approved by two separate patent examiners," but still, what guidelines would these examiners follow? The USPTO has not been exactly enthusiastic about altering the rules in lieu with Alice. We wrote about the latest changes a week ago and these probably give too much weight to the Court of Appeals for the Federal Circuit (CAFC), which is where software patents came from in the first place.

As Benjamin Henrion (FFII) put it earlier today, "why should programmers respect patent law? we should benefit from free speech, not patent censorship."

As Deb Nicholson from the Open Invention Network (OIN) put it not too long ago, as per this report about her talk ("The state of software patents after the Alice decision"):

Combating software patents—and other abuses of the patent system, like design patents—is a long-term process, Nicholson reminded the audience. OIN runs several programs it hopes will protect free-software developers from the ills of bad patents, such as its Linux patent pool, the License On Transfer Network, and Defensive Publications.

But Nicholson told the crowd there are other ways they can help improve the patent landscape in the long term, too. They can contribute to the campaigns run by non-profit organizations like the Electronic Frontier Foundation and the Free Software Foundation, she said. Both are working to oppose the software-oriented provisions in the TPP, for example, among their other activities.

Individuals can also be powerful advocates for change within their own companies, pushing them to embrace a defensive, rather than offensive, approach to patents. And they can support the pending patent-reform legislation to lawmakers. Finally, they can continue to advocate for free and open-source software. The more we collaborate together, Nicholson said, the less we'll want to sue each other.


The problem is though, as we last noted just over week ago, OIN does virtually nothing to stop software patents. Given the companies that formed it and steer this massive aggregate, it's not hard to see why. They want to keep their cake (software patents) and eat it too.

Recent Techrights' Posts

Bruce Perens & Debian public domain trademark promise
Reprinted with permission from disguised.work
Links 28/04/2024: Shareholders Worry "AI" Hype Brings No Income, Money Down the Drain
Links for the day
Lawyer won't lie for Molly de Blanc & Chris Lamb (mollamby)
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, April 27, 2024
IRC logs for Saturday, April 27, 2024
Links 27/04/2024: Spying Under Fire, Intel in Trouble Again
Links for the day
Lucas Kanashiro & Debian/Canonical/Ubuntu female GSoC intern relationship
Reprinted with permission from disguised.work
Pranav Jain & Debian, DebConf, unfair rent boy rumors
Reprinted with permission from disguised.work
Links 27/04/2024: Kaiser Gave Patients' Data to Microsoft, "Microsoft Lost ‘Dream Job’ Status"
Links for the day
Gemini Links 27/04/2024: Sunrise Photos and Slow Productivity
Links for the day
Microsoft: Our "Goodwill" Gained Over 51 Billion Dollars in the Past Nine Months Alone, Now "Worth" as Much as All Our Physical Assets (Property and Equipment)
The makeup of a Ponzi scheme where the balance sheet has immaterial nonsense
Almost 2,700 New Posts Since Upgrading to Static Site 7 Months Ago, Still Getting More Productive Over Time
We've come a long way since last autumn
FSFE (Ja, Das Gulag Deutschland) Has Lost Its Tongue
Articles/month
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 26, 2024
IRC logs for Friday, April 26, 2024
Overpaid lawyer & Debian miss WIPO deadline
Reprinted with permission from disguised.work
Brian Gupta & Debian: WIPO claim botched, suspended
Reprinted with permission from disguised.work
Microsoft's XBox is Dying (For Second Year in a Row Over 30% Drop in Hardware Sales)
they boast about fake numbers or very deliberately misleading numbers that represent two companies, not one
Ian Jackson & Debian reject mediation
Reprinted with permission from disguised.work
[Meme] Granting a Million Monopolies in Europe (to Non-European Companies) at Europe's Expense
Financialization of the EPO
Salary Adjustment Procedure at the EPO Challenged
the EPO must properly compensate staff in order to attract and retain suitably skilled examiners
How to get selected for Outreachy internships
Reprinted with permission from disguised.work
Links 26/04/2024: Surveillance Abundant, Restoring Net Neutrality Rules (US)
Links for the day
Gemini Links 26/04/2024: uConsole and EXWM and stdu 1.0.0
Links for the day
Red Hat Corporate Communications is "Red" Now
Also notice they offer just two options: MICROSOFT or... MICROSOFT!
Links 26/04/2024: XBox Sales Have Collapsed, Facebook's Shares Collapse Too
Links for the day
Albanian women, Brazilian women & Debian Outreachy racism under Chris Lamb
Reprinted with permission from disguised.work
Microsoft-Funded 'News' Site: XBox Hardware Revenue Declined by 31%
Ignore the ludicrous media spin
Mark Shuttleworth, Elio Qoshi & Debian/Ubuntu underage girls
Reprinted with permission from disguised.work
Karen Sandler, Outreachy & Debian Money in Albania
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 25, 2024
IRC logs for Thursday, April 25, 2024
Links 26/04/2024: Facebook Collapses, Kangaroo Courts for Patents, BlizzCon Canceled Under Microsoft
Links for the day
Gemini Links 26/04/2024: Music, Philosophy, and Socialising
Links for the day