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Comment by johnnyo | Hacker News Reader

Not sure what the EFF is trying to get at here.

After the decision, it says rejections rose 31%, but now they have fallen back down.

The EFF contends this is because the Patent Office is ignoring the law, but they don't offer any evidence to back up this assertion. Another likely explanation is that patent applicants are adjusting their applications to be in line with the decision, and thus the rates have gone back down.

This assertion by the EFF would only make sense if patent applicants didn't know about the rule change. But applicants do know, and have adjusted their applications accordingly in the intervening time.

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This article is just missing two pictures to tell the story.

Rejection rates immediately after Alice (2014): https://imgur.com/veW7vQ7

Rejection rates immediately after new Patent Office guidance (2019!): https://imgur.com/ylqD5sx

Apparently patent applicants were entirely unable to to adjust their applications in line with the decision for a whole 5 years where rejection rates were consistently >30% (and rising!). Then, immediately after new guidance, they all "get it" and rejection rates drop below 20%?

Remember, guidance is just a summary of applicable law and precedent. It is training material. If there is a significant change in rejection rates, it means Alice was somehow misapplied for 5 years and no one ever meaningfully contested it.

So, the patent office puts out a document telling examiners exactly what to look for, and applicants read that document and use it to craft their applications. Examiners get what they are looking for.

I’m honestly not seeing what the major issue is here.

I definitely can imagine that after the Alice decision many patent lawyers would still intentionally try to push through applications contrary to the court decision - if there's a reasonable chance that it might get through, and you can afford it, why not try it? Any actual change in patent application behavior would come only when the Patent Office would assert that yes, they mean it, and they will deny these applications, and they did it only in 2019 (and issued the guidence along with it).

So yes, your suggestion that "it means Alice was somehow misapplied for 5 years and no one ever meaningfully contested it" seems quite plausible for me, it's not easy to meaningfully contest it (you need an actual situation where such a misapplied patent gets abused and gets contested) and it takes years to do so.

One of the problems with Alice is that it provides very little useful guidance to anyone. The EFF argues that Alice invalidates all software patents. Others argue that it doesn't. In fact, the only sure thing the SCOTUS said in Alice was that they are not invalidating all software patents just the bad ones, while providing no workable standard for distinguishing the bad from the good.

While the majority of Justices agreed that the Alice patent was invalid, a majority did not sign on to one opinion. There were multiple concurring opinions that agreed on the result but not the reasoning. The decision provides at best an "I'll know it when I see it" standard.

To say, lawyers are deliberately or intentionally acting contrary to the decision is not accurate. Lawyers will work to draft patents that comply with Alice, and they will argue that the applications they draft comply with Alice.

Unfortunately, very little in the Alice decision can be used to reason for or against any particular patent because it is so incoherent.

> Then, immediately after new guidance, they all "get it" and rejection rates drop below 20%?

The "all" after the guidance is not the same set as before. Afterwards, some people could foresee a rejection and so didn't bother applying at all, where before the guidance they would have. Thus, rejection rate falls.

"Another likely explanation is that patent applicants are adjusting their applications to be in line with the decision"

This. We had/have no problem getting past Alice if the application was drafted post-Alice. (Except for one art unit that was being unreasonable -- but even they seemed to have given up. Maybe their boss retired?)

Nothing changed except we included additional language in the spec and claims for no other reason than to get around Alice rejections.

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