A golden age of blackmail began in 1996, when the US Patent and Trademark Office created extremely generous criteria for when software could be patented, allowing every shitty grifter to register a patent for $SOMETHING_OBVIOUS (with a computer) — thanks to the USPTO's laid-back approach to searching prior art, several people could patent the same obvious thing.
That was the first shoe dropping: big corporations, patenting everything under the sun. The other shoe dropped when grifters and scumbags started amassing huge portfolios of with-a-computer patents, then began to shake down every kind of American enterprise — from municipal bus services to streaming college lecturers to fax-machine-users to podcasters and beyond — for violating these garbage patents. Billions of dollars were sucked out of the productive economy and funneled into secret, numbered, offshore accounts whose owners were often never disclosed.
Then along came Alice: the 2014 Supreme Court ruling in Alice v. CLS Bank, which gutted "with-a-computer" patents and threatened to euthanize every software patent troll at the stroke of a pen.
There was only one snag: the judges of the Federal Circuit — who, for reasons best understood by them, love patent trolls — kept ignoring Alice, forcing the victims of patent trolls to repeatedly go to the Supreme Court to get the Federal Circuit judge to uphold the law.
Now, Trump's Patent Office is issuing new guidance that all but undoes Alice and reasserts the Federal Circuit's troll-friendly doctrine, taking patent trolls off life-support and teeing them up to once again begin draining $29 billion/year from actual business, making actual things that actual people need.
Regrettably, the USPTO is one of the rare federal agencies unaffected by the shutdown. They are funded with patent applications (and yes, this is a giant conflict of interest, given that their job is to decide what isn't patentable, but the more patents they grant, the more funding they'll attract from hopeful patent applicants) and accepting public comments on this stupid proposal.
This is where the USPTO's new proposed examination guidelines come in. The Federal Circuit is still trying to sort out when to apply Alice's boundary for an abstract idea and when to apply Enfish's more stringent boundary. Some think which of the two opinions are applied is not a question of facts or law but of which judges are randomly assigned to a case.
But most patents by far never go before a judge, and their fate lies in the Manual of Patent Examination Procedure. It is the document that thousands of patent examiners consult for guidance when they are trying to decide how to interpret and apply the various Supreme Court and Federal Circuit rulings that impact software patents, and the proposed revisions lean heavily toward the Enfish side of the debate.
The new regulations the Patent Office proposed this week give a short list of what may be deemed abstract and are clear that if it's not on the list, it's not abstract. Pure math is included as abstract, but the word mathematical is left undefined, leaving ambiguity about whether the sort of ways computer operations are improved, like better database hashing techniques or compression algorithms, are mathematical.
Methods of organizing human activity are an abstract category, but methods of organizing information are not. To give examples, a file-sorting algorithm may not be abstract, but selling dog food on the Internet is.
Software patents poised to make a comeback under new patent office rules [Ben Klemens/Ars Technica]
