Well, you gotta love it when the truth leaks out even if it’s a really really fu gly truth about a certain class of “innovators” and their “counsel”:

The two graphs above show a result that may surprise some: the number of applications with a 101 rejection was flat or falling from 2013 to 2015. My interpretation of this is that we simply learned to draft around Mayo and Alice.

Well, the problem is that there is no “drafting around” those cases. Attempts to “draft around” ineligible subject matter is what those cases were directly addressing.

You can certainly innovate eligible subject matter. That’s easy, in spite of the chicken little malarkey that the patent maximalists and s0f tie w0f tie types have been peddling for years. That’s what I and many others have been trying to drill through their thick skulls for years and the data here proves just how off base that whimpering simpering pack of whiners has been (and always will be).

But ultimately you can’t rely on scrivening to turn an innovation that is ineligible for patent protection into a claim that protects that innovation, just as you can’t claim ineligible subject matter by limiting that ineligible subject matter to a prior art context. You need to innovate eligible subject matter, and you need to carefully claim that eligible subject matter. This isn’t hard for most trained patent attorneys, nor is it hard for most innovators in the grown-up arts. It’s apparently very hard for people who write instructions for computers that were designed to carry out instructions, and it’s apparently very hard for attorneys trying to “cash in” on the PTO”s miserable failures.

I see this as the same old story as pretty much every other major change in patent law over the past decade: (1) The courts issue a decision changing the law (despite claiming it is not a change)

Right off the bat this is revisionist history. Logic was never eligible for patent protection. Correlations were never eligible for patent protection. Instructions were never eligible for patent protection. Information was never eligible for patent protection. The “change in the law” came about when the CAFC decided — based on nothing but it’s own desires — that stored data was “the essence of electronic structure”. Somehow that magical phrase morphed into the bizarre concept that methods of applying logic to data (i.e., algorithms) were also “structures” that were eligible for patenting. And then there was some unfortunate (and very short-lived) dicta in Diehr that was interpreted by some incredibly greedy and/or short sighted people (or both) to suggest that Examiners and judges were not permitted to consider the relationship of a claim to the prior art when determining eligibility. For straighforwardd irrebuttable reasons that don’t need to be set forth for the billionth time, that proposition was never going to survive a minute’s serious scrutiny. And then there was the CAFC’s ridiculous State Street Bank decision. Those were the changes in the law. Bilski, Mayo and Alice simply turned the train around before it flew into outer space.

except of course for the applicants that had the bad luck of not possessing a crystal ball when they filed their application before the law changed.

It’s not about “crystal balls.” All of this was predictable and it was predicted and explained in real time. And guess what? There’s more to come and if you don’t like the trilogy of decisions I referred to above you’re going to like what’s coming even less. Way way way less.

Even for those unfortunate souls, in many cases cleverly-drafted continuation claims can come to the rescue.

This statement is simultaneously funny, s@d, and disgusting. It’s nothing more than an admission of what most of us have known for decades: the PTO, by virtue of its incompetence and its corruption (depending on who’s running it) is handing out ineligible junk claims to “clever” scriveners so they can troll with them. The percentage of those claims that would survive scrutiny in litigation up to the Supreme Court when the defense is managed by a competent patent attorney who knows how to pierce through the cloud of silly jarg0n-laden verbiage is close to zero. If IPRs were expanded to include eligibility and 112 considerations — which they should be — the value of the typical “do it on a computer” g@ rbage patent would be reduced to squ@t immediately. And that would be a great thing for pretty much everybody in the country except for the sniveling whiners I mentioned above.