Patent eligibility is broken.
The only semi-cogent arguments that I have ever heard in support of the status quo is that the U.S. Patent and Trademark Office issues too many broad, vague patents, and that 35 U.S.C. § 101...more
After using a large language model, such as ChatGPT, for a while, it is not hard to image an array of nightmarish scenarios that these generative artificial intelligence (AI) programs could bring about. While ChatGPT and its...more
The patent statute requires that, to be patentable, the subject matter of an invention must be at least one of a process, machine, article of manufacture, or composition of matter. It is hard to find examples of things that...more
On April 18, 2023, we submitted a Supreme Court amicus brief expressing our encouragement for the justices to rule on the question of whether it is proper for an artificial intelligence (AI) to be an inventor on a patent...more
On March 16, the Copyright Office published guidance in the Federal Register relating to works produced at least in part by generative artificial intelligence (AI). This is the latest in a series of policy decisions and...more
Years ago, I was a proud parent when my children were invited to participate in an honors math program at their grade school. But this initial delight turned to confusion, and eventually frustration....more
The U.S. Patent and Trademark Office (USPTO) organizes its examining corps into technical centers (TCs). Each TC is dedicated to one or more general technical fields. In some cases, one TC may include two or more unrelated...more
We are all familiar with the rhetorical device of a parade of horribles -- a series of very bad things that could happen if some action is (or isn't) taken. Often, these parades involve a degree of hyperbole. In other...more
When boiled down to a fundamental level, all technologies are double-edged swords. A spear can be used to hunt game or to wage war. A hammer can be used to build a shelter or to murder fellow humans. Social media can be...more
The interpretation of 35 U.S.C. 101 has been in flux for over a decade. Please join MBHB Partner Michael Borella, Ph.D., as he discusses its latest iteration, how patent eligibility is currently viewed by the USPTO and...more
ChatGPT is a large language model developed by OpenAI. It is based on the transformer architecture and trained on a massive dataset of text from the Internet. It has the ability to generate human-like text and can be used for...more
There is ample evidence that patent examiner allowance rates vary dramatically from examiner to examiner and art unit to art unit.[1] This has resulted in the general understanding that there are "easy" examiners and "tough"...more
The talk of the Internet these days (with spillover into traditional media) is ChatGPT, a large language model that is capable of producing remarkably human-like text. Trained on millions of human language documents, ChatGPT...more
In a recent article, we argued that patent law's current subjective and inconsistently-applied mental process doctrine is erroneously based on a false equivalence between human and machine cognition. Notably, inventions that...more
In Liu Cixin's novel The Three Body Problem, the characters create a "computer" from human labor. Millions of people serve as "bits" and hold up flags to indicate whether they represent 0s or 1s. These individuals are given...more
On December 29, 2022, to the relief of many practitioners and applicants, the U.S. Patent and Trademark Office delayed the effective date of its controversial incentivized transition to DOCX format for patent application...more
In a ruling that should surprise absolutely nobody, the Federal Circuit rapidly scrapped an appeal of a PTAB decision that affirmed a 35 U.S.C. § 101 rejection of a business method claim. This is the latest in a series of...more
The U.S. Patent and Trademark Office (USPTO) established its Patent Trial and Appeal Board (PTAB) in September 2012. As mandated by the America Invents Act, the PTAB conducts administrative trials, such as inter partes...more
With further apologies to David Letterman -
Almost two years ago we published Stupid § 101 Tricks, an article discussing some of the annoying, improper, and yet disappointingly common patterns seen in rejection and...more
The Electronic Frontier Foundation (EFF) is at it again, gaslighting the public in its ongoing crusade against patents. While the EFF does perform some commendable work, mostly in the areas of individual privacy rights, its...more
In an ideal world, patent eligibility would be a simple, clear, and non-controversial inquiry. After all, the purpose of 35 U.S.C. § 101 is to inform the public which types of inventions are eligible for patenting and which...more
Republican Senator Thom Tillis of North Carolina has released a new proposal to reform the text of 35 U.S.C. § 101. The Senator's last effort in doing so died on the vine in 2019, purportedly due to stakeholders being too...more
Bad law often gives rise to creative legal arguments. But the application of such creative lawyering is necessarily bounded by ethical rules and notions of fair dealing. Patent eligibility, in its current incarnation, has...more
Self-similarity is a characteristic found in many physical, natural, and human-made systems. In short, it describes a class of structures or behaviors that are at least partially-invariant to time or scale. Thus, these...more
Can a prior art reference with an error be considered to be a disclosure of the erroneous teaching? A Federal Circuit panel split over this issue, with their disagreement largely based on how apparent the error would be to...more