Save Alice: Tell the Patent Office to Apply Supreme Court Law

Supporters of a balanced patent system won a big victory in 2014 when the U.S. Supreme Court decided the Alice v. CLS Bank case. Alice makes it clear that abstract ideas can’t be patented just because they’re performed on a computer.

Now, Alice is in trouble. Let's tell the Patent Office to save it.

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To: Subject: Reject new guidelines on subject matter eligibility, Docket No. PTO–P–2018–0053 I urge the USPTO not to adopt the guidance on subject matter eligibility set forth in the Request for Comments, Docket No. PTO–P–2018–0053. Instead, the USPTO should provide guidance that ensures examiners apply the Supreme Court’s Alice v. CLS Bank decision correctly. The new guidance expands upon a small number of decisions finding patent claims eligible and ignores the far more numerous decisions in which courts have rejected claims as ineligible for patent protection. It distorts the law and will encourage examiners to grant invalid, abstract patents. Such patents wrongly claim basic ideas, increase litigation costs to no benefit, and harm the public interest. The USPTO’s role is not to narrow Supreme Court holdings, it is to apply them. Please abandon revisions to the Patent Subject Matter Eligibility Guidance.

Under its new Director, Andre Iancu, the Patent Office is trying to get around Alice by giving biased guidance to examiners. These new rules tell examiners to focus their analysis on a small number of exceptions to the Alice case, in which courts allowed bad patents through the gates. The new guidance encourages examiners to ignore Alice and the hundreds of court decisions throwing out invalid patents under Alice.

If applied, this could push the Patent Office towards the bad old days, when it freely handed out abstract software patents. Hundreds of companies faced expensive litigation when they got sued over patents on basic ideas like updating video games online, on tracking the location of a vehicle, and on storing and labeling information.

“Broadly worded and incredibly vague patents are just a shakedown,” Rick Pepper told EFF. Rick's Sebastopol, California bike gear shop was sued over three patents on delivery notifications. Pepper’s business, like many others, was saved by Alice. This case gives small businesses a fighting chance against bad patents.

Tell the Patent Office to follow the law set down by the Supreme Court and abandon these new revisions. Abstract software patents hurt inventors of every type.