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hi everyone thanks for joining us today.for fishermen triptans patton webinar.series I'm Frankie Ratana I'm a.principal in our Boston office and I'm.joined by Tracy hit who's a principal.our Atlanta office and today we're going.to talk about happening software a case.study and overcoming Alice and section.101 in the handout section of the.webinar widget you should be able to.find a PDF of our BIOS as well as the.slide deck if you want to take a look.take a look at it later.and for those of you in New York and New.Jersey there's a steely sheet that's.also available in the handout section if.you're joining the patent or webinar.series for the first time this is a.series that explores important patent.developments decisions and practice tips.in the field the webinar today is going.to run for one hour and we'll have a.question and answer period at the end of.the program you can feel free to ask.questions at any time through the.program by clicking on the questions.section on the widget to submit your.questions and we'll do our best to.answer them all at the end of the.presentation we'll try to monitor how.many questions are coming in and leave.enough time at the end to get to as many.as possible if we can and you can also.feel free to contact either me or Tracy.after the webinar if you have some.detailed questions or want to chat about.any of the stuff and a lot more depth oh.and last before we get started I want to.remind everyone that the opinions.expressed here are those of you know me.and Tracy and don't necessarily reflect.the views of you know others at the firm.or other lawyers or our clients or any.other affiliates and business for.general information purposes and is not.intended to be and should not be taken.as a legal device and usual legal.disclaimers you would expect from from.any lawyers okay so we're going to begin.this this presentation okay so just a.roadmap what we're going to talk about.today so you know this topic of patent.eligibility in Section 101 especially in.software cases has been you know one of.the dominant topics certainly in my.practice for the last couple of years.and so I want to.for the review the the lay of the land.and how we got here and the current.state of prosecuting software type.inventions at the Patent Office then.we'll get into the new twenty nineteen.guidance that the Patent Office has put.out which I think is going to be the the.most timely and new information for.those of you who have been steeped in.this topic for a while and we'll talk a.little bit about our general approach to.how we've been dealing with Alice.rejections with Patent Office and.preparing patent applications for.Section 101 how that's worked over the.last couple years and how we think it's.going to work in the future and then you.know a little bit looking ahead further.changes whether or not we think that.there's going to be any other further.big developments especially in.legislation or advising section 101 okay.how did how did we get here I'm going to.turn it over to Tracy for a few minutes.and he'll guide us through the history.of section 101 yeah thanks Frank.yeah so a lot of you on on the webinar.today probably you know as Frank said.have dealt with 101 at one point or.another in your careers and so you know.we need to set the ground.you know the framework as to where how.we got to where we are now just so we.all have a you know the baseline.understanding and if you we can go to.the next slide that'd be good thanks.and so we're gonna go back and you know.really kind of started at 2010 to 2012.because in 2010 with the Bilski case and.you know it's kind of one of the the you.know more recent decisions that's kind.of kicked off this whole you know.revisiting of subject matter eligibility.throughout the you know the the the last.10 years essentially and Bilski you know.so that was a case that was directed to.met a method for hedging risk in a.commodities market and so Bilski you.know essentially rejected the.machine-or-transformation test as the.sole test for determining eligibility.which had been.you know really the test used up to that.to that point but also at the same time.you know they rejected these claims as.being you know directed to an abstract.idea but they you know I also reject a.categorical exclusion of business method.patents from eligibility you know space.basically saying that the definition of.a process you know includes the word.method you know which seems to to.include some forms of business method.method patents and so yeah only.mentioned that because I think there's.you know kind of this common theme.through you know throughout the history.that you're despite you know what we.tend to see reported you know that.there's still this underlying belief.that you know you know even beyond.software patents there is still some.room for general business method patents.to be eligible so I think it's important.to keep in mind as we go through as well.as you know as when we you know talk.about you know forward-looking.developments so we can go to the next.slide so after Bilski we had a series of.three cases that we'll talk about more.detail a little bit but but you know.after Bilski basically we we you know.kind of sat at this situation where.under 101 you know the examination.process was really you know directed to.making sure that a claim was directed to.a statutory category you know that being.a process machine manufacturer composit.sort of matter and that's you know.really the heart of section 101 right.which says that you know whoever invents.or discovers you know any new useful.process machine manufacturer or a.composition matter or any new useful.improvement thereof may obtain a patent.therefore subject to the conditions and.requirements of the title so you know.that that's really the threshold right.is it even directed to a process machine.manufacturer or composition of matter.and so then you know Bilski kind of.added in you know at the time of Bilski.you know we had these exceptions which.were identified as laws of nature.natural phenomenon and abstract ideas.you know and laws of nature include.things like you know trying to claim.gravity or you know other other.naturally occurring laws of nature.natural phenomenon or you know chemical.reactions and things that naturally.naturally occur you know outside of any.human intervention and so moving onto.the next slide you know we get to this.is kind of where we stood as we moved.into the Mayo case and in Mayo you know.really what they were looking at there.was it was a method of giving a drug to.a patient and so you know what the the.claim essentially recited measuring some.metabolites of a drug and you know.comparing that to not some known.threshold for efficacy and then deciding.whether to increase or decrease the.dosage of the drug based on that and and.the heart of Mayo is really addressing.you know patent eligibility of.judicially you know judicial exceptions.such as you know in particular the laws.of nature and you know I think that you.know in the in this case it we you know.really we were the court was focusing on.you know the the fact that you know.claim for really looking at you know.essentially just optimizing you know.treatment based on known relationships.between these biological measurements.and and you know drug or disease.outcomes which again are laws of nature.because they are the you know outside of.human any human intervention these are.the results of of giving this much.dosage of a particular drug and so the.outcome of the Mayo case you know the.the claims were.not eligible but for purpose of software.the the he was Deanna the two-part test.that was set forth forward eligibility.of claims that recite additional.exceptions I think we can go into the.next slide and so that two-part test was.you know at first to determine whether.the claims and if she were directed to.an ineligible concept so and then it's.so determine you know whether there's.additional elements that that amounts to.significantly more than you know an.attempt to patent that ineligible.concept itself so again in Mayo it was a.you know essentially the law of nature.you know the way that a particular drug.would you know would be it would affect.a certain disease you know how much.dosage would be the proper dosage to you.know to get the outcome that you want so.next slide so this two-part test was.then again applied in the myriad cases.other biotech case and in MIT and myriad.it was it was a claim related to.isolating naturally occurring DNA.sequence and you know so this is you.know more of you know a product of.nature is a naturally occurring DNA.sequence that that exists irrespective.of any human intervention and the the.claim really was.you're just ISIL or recited isolation of.this gene and so in this case that the.court came down applies the first step.you know of Mayo and said that you know.it's it's directed to you know.ineligible subject matter because it's.naturally occurring a phenomenon you.know what's interesting you know was.that that the outcomes case was it their.naturally occurring DNA sequences you.know even when isolate from body can't.that but artificially created DNA.sequences are patent eligible because.they're not actually a hurry and so that.after the Mayo case the Supreme Court.got around software patents and applying.the the Mayo test in the context of.software next slide and so we're all.familiar with the Alice case you know.and Alice was essentially drawn to an.electronic escrow service and the court.you know deemed that these are directed.to fundamental economic practice which.is identified as an abstract idea and.that it was it was simply implemented.using a computer such that it wasn't you.know significantly more than you know.this old well-known you know process.that had been you know part of economic.transactions for for many years and so.essentially you know didn't Alice the.you know Supreme Court applied the Mayo.test to software and again that is you.know maintain the test is it directed to.an abstract idea which is you know.essentially what the court said that the.software was was directed to that's the.excluded subject matter and then it.doesn't amount to significantly more.when you considered the claim elements.individually and in the combination and.so that kind of brings us up to you know.how we got to to the test of determining.whether software is patent eligible or.not we can go the next slide and I think.what we see you know see through these.three cases right is this you know.application of this the same essential.test in various contexts you know but it.was there's also continued narrowing.of patent eligibility overtime you know.there you know there had been you know.fairly you know relaxed 101 standard and.you know there was this there was some.you know the this needs who you kind of.draw a line as to okay what's at an.eligible what's not you know in the.context of these cases and you know it.kind of got you know fairly you know.kind of threw the the industry into.chaos right because you know we we've.been operating under this you know.fairly relaxed standard for years.there's penny have tons of pending.software applications that have been.drafted under the the old standards and.and this new standards was going to be.applied to you know all of those pending.applications you know and there there.wasn't a whole lot of you know guidance.as to you know how we were gonna deal.with this new standard or how it was.really gonna impact the practice and so.you know the other thing it was.interesting here is each one of these.cases you know Congress seemed like it.was gonna be the last one but you know.Kuhn the Supreme Court kept taking up.eligibility cases in over this timeframe.and and you know so it was you know it.was an interesting series of cases so I.didn't go to next slide now just to just.add a little commentary to what Tracy.saying I sometimes have characterized.Alice as a change in the law you know.for brevity but really what happened.here as you can see is that the the way.in which section 101 had had been.interpreted left open a lot of gray area.for so many years and it wasn't until.this line of cases starting with males.that we started to get some specificity.and as Tracy said you know the line the.line ended up being drawn a little more.narrowly than for example the USPTO I've.been interpreted interpreting it before.so I think this is a long time coming in.some respects.yeah I think it's good the other thing.we have to remember is that your.software you know really you know.historically have not been seen as as.you know as patent eligible you know or.at least it wasn't it wasn't you know.until until you know recent history and.we saw it you know it was huge increase.in the number of software patents and so.I think you know that probably.contributed as well and so here what you.know after Alice you know we we were.left and I said a little bit of chaos.you know the the outcome of that case is.that there was no clear indication as to.what really constitutes an abstract idea.you know the the the you know there was.there was just simply no real standard.determine or an abstract ideas and and.and you know quite frankly everything.you know there's an underlying abstract.idea and just about everything and so.you know the real question was right.where's you know where's it where's that.long I'm going to be how that how they.can be interpreted how do we how do we.figure this out you know and you know it.was made clear that you know dimension.isn't rendered ineligible simply because.it involves an abstract concept but you.know how do we you know you know how do.we you know get across the point that or.demonstrate that you know the subject.matter we're claiming is really you know.building on this you know these.underlying abstract ideas and and.providing something more than you know.an attempt to to claim the abstract idea.itself and you know as we moved along.the you know through the Federal Circuit.cases you know we really just got.identified identification of abstract.ideas you know defined by example rather.than you know really any standard as to.what it was qualified as an abstract.idea what you know.you know what you know combination of.clay moments are really directed to the.set you know to the abstract idea and.which ones you know are you know.contribute to this something more than.significantly more you know and so as a.you know really kind of a broad and.amorphous classification of cases you.know that that you know we was the only.guiding you know guiding points we had.and and you know the only guiding points.that the Patent Office said as well you.know and as listed there.you know the examples of abstract ideas.you know filtering content fundamental.economic practices organizing human.activity which is really you know kind.of a catch-all I I tend to think in some.ways you know mathematical formulas and.and ideas of themselves and another III.consider a catch-all alright yeah so the.second step you know is significantly.more you know this has been a really.tough analysis for you know Patent.Office for practical practitioners for.courts you know and I think that comes.and out in really kind of the range of.of rejections that we see right we have.this ability for you know the decision.maker of whether it's something.significantly more not to really you.know a broad range of discretion you.know when they're evaluating the claim.and so you know this can lead to really.you know differing results in a lot of.situations and it also leaves open the.possibility that really any claims you.know are susceptible to analyst.rejection particularly if they're.implemented using software you know I.think if some of the examiner are some.of the examples of how we see you know.examiner's reject claims and maintain.the rejections as not amounting to.significantly more as to you know really.say you know claim ones directed to the.idea of an idea itself you know or and.then listing all of the claim elements.and saying you know the only thing left.is the computer and the computer doesn't.isn't enough to to amount to.significantly more you know the other.the other rejection that we see a lot is.you know similar in that the examiner.identifies and you know a large number.of the elements as being directed to the.abstract idea and then saying that the.remaining elements were well-known.common or routine and they're therefore.they can't amount to significantly more.Frank did you have anything to add on.that before move on um just a I'm going.to talk a little bit more about this.later on but this put the the Alice.decision I think in particular put.examiner's and the softer art units in a.tough spot because it's a fourth this.test you know again based on the.previous cases but it didn't provide its.racing's a lot of guidance to examiner's.and for the first time they were.historically exam is most the time.evaluating prior art which is mostly.about the technology and you know relies.in a technical knowledge and technical.skill but now the you know essentially.the regime had changed and there was a.need to do more in-depth one-on-one.analysis but they didn't ever met that.much guidance they had to depend on.reviewing case law a lot more than they.used to and I think it essentially.changed their jobs a little bit in ways.that made it a lot harder to you know.you know just go through the routine.work of you know issuing an office.action and so forth yeah I think that's.a great point I think I think one of the.things said at the end they're really.you know really couldn't be more true.and totally changed the examiners job.you know I think it changed the way that.examination happened at the Patent.Office as well.you know with you know the creation of.you know at least we've been.communicated to his practitioners you.know the 101 experts or the 101 panel.right and and you know a feeling that.you know we got communicated to us from.some examiner's that you know they they.didn't they wanted to make sure that.they were you know applying this.correctly and and in doing so they would.you know go to this you know other group.of people who you know could provide.guidance as to you don't want the state.of Elan 101 and and these types of.things and I yeah and a lot of.complexity to to their jobs and and so I.think that you know it's a you know it.was a pretty I think that will help to.lead to the uncertainty that we saw you.know coming out of the Patent Office.because I I think that you know like you.said for years you know applying you.know 101 was you know you know just the.minimal threshold to get to get past you.know and then you know you really wanted.to 103 112 where were the you know the.meat of how claims were rejected and you.know an examiner's very good at that.it's and you know who's in their.wheelhouse they've done it for a long.time they felt very confident and.comfortable doing it and now you have.this you know this standard that you.know essentially know no one knows how.to apply you know consistently and and.you know or even how to you know.distinguish between how different cases.have come out and so I think that that.it it created a challenge I think I.think that you know was felt frustration.or felt by the examiners is felt by.practitioners and you know it just.continued continues level of uncertainty.as to how things we're going to come out.alright so I think we moved the next.slide.yeah and so it's kind of dovetails into.this side right is you know why you know.why issue so many one-on-one rejections.and you know what.what's the purpose of doing this I mean.you know one it's you know the standard.they have to they have to apply you know.office of ensure that claims are.directed to you know subject matter.eligible subject matter but you know at.the same time you know you know I think.office you really you know didn't want.you know they always want to put out.good good you know good patents right.they want they want to make sure that.you know that they're high quality.patents that come into the Patent Office.and you know now you've got this this.new standard that seems to be you know.interpreted differently and every time a.new case comes out and I think that gave.a lot of pause you know I need to be.really you know really diligent here on.this 101 issue because you know who.knows it may be you know this this.patent may end up in a lawsuit and maybe.it may be the example you know that and.that's you know obviously not an.enviable position to be in you know and.I think that there's you know that.balance between you know you know.ensuring compliance.you know ensuring that you're issuing.patents on eligible subject matter.versus you know you know encouraging.applicants to continue to file on you.know legitimate software innovation you.know the types of things that are.they're enabling all of the you know.great you know.devices and and services that we enjoy.today you know and that we that are.being developed for the future it's it's.tough it's tough balance of strikes so.you know but I think that you know the.the first reaction was what we got it we.need to get this right you know and and.ensure that we're not letting through.you know software patents that you know.are weak on their face when they leave.leave the Patent Office and I think at.the time that Alice was decided there.had been a lot more scrutiny on the.patent process in the public realm you.know you know things like the you know.the rise of patents.and the other effect on the software.industry was getting a lot of attention.no and I think it was you know.reasonable amount of attention you know.I spend my day helping inventors obtain.a patent some things like software but.down the hall our litigation colleagues.are sometimes involved in cases where.you know patents are started against.their clients and you know again on the.face of it the the the the entity.asserting the patent has taken a very.broad interpretation of the claims and.going after a lot of a lot of companies.that you feel like they're unfairly.targeted by patent Sue's you know.implications in the software space mean.that almost a you know any anybody.operating the soffit realm could be.targeted and I think that made a lot of.people uneasy you know we're looking at.the patent systems so it didn't really.surprise me that the way things played.out was to you know essentially you know.add the USPTO to close the faucet and.reduce the number of of patents being.issued you know given that deal what was.happening the outlets fear yeah I think.it's great point so I think that brings.us to today the state of the software.practices at the USPTO and and how.things are going now you know we have.some numbers if you skip to the next.slide we have here that this was this.this chart essentially shows the.allowance rate of the art units at the.USPTO that deal primarily the software.and you can see before before Alice had.already been the allowance rates had.been on a bit of a decline I think.because of the after-effects of some of.the earlier cases like Bilski but around.the time Alice's decided it was you know.essentially in free fall you can see.here the blue line is the allowance rate.based on our colleague co-efficient.Richardson in overall young you know.electing these numbers because you know.our our allowance rate was higher than.the average but we took as much of a hit.as anybody else you know and yeah I mean.I've been practicing during this time.you can see that a lot of you know a lot.of our cases are getting one-on-one.rejections.a lot of our client.starting to reduce the number not only.reduce the number of filings but also.you know decide to give up on cases.sooner than they would have otherwise.because these are 101 most of tough we.saw a bit of an increase in allowance.later on as the cases we drafted after.Alice came out began prosecution and we.started to see some better success as.did others but overall the a lot you can.see here the allowance rates you know.the last year we're still much lower.than they had them just a couple years.ago yeah moving to the next area I think.I think there's one there's a really.interesting kind of you know take away.from this slide as well so Alice issues.in you know 2014 you know that the.allowance rate drops dramatically you.know down to 53 percent you know we.don't get our first guidance from the.Patent Office on on you know any.examination standards you know until.July 2015 I think is July right and and.so you know so we get that first.guidance you'll get more guidance than.2016 2017 but the you know the the.allowance rate stays the same you know.overall at the USPTO for software.patents from 2015 to 2017 at 53 percent.you know and then in 2018 you know we.start to see you know higher allowance.rate and I think some of that is is.certainly you know tied to applications.that we drafted post Alice you know.we're starting to get examined and you.know you know number of them allowed I.think there's you know we also you know.saw I think some some changes you know.with respect to some of the guidance.that issued later you know 2017 and.we'll talk about you know some of the.you know some of the cases and things.that we use in prosecution later but you.know I think that you know by 27 you.know into 2017 you you're starting to.see you know a number of Pete AB.decisions you know coming out appeals.you know the people can leverage to then.make arguments of prosecution so I just.find that that trough it fifty three.percent for three years.you're really interesting given your.kind of what was going on at that time.ya know one way or the other that was.definitely a you know a much tougher.time for applicants who are pursuing.soccer related inventions you're moving.to the next slide we touched on this a.moment ago but the fact that you know I.think the Alex decision made examiner's.job much harder and you essentially.incentivized making 101 rejections.because it was really hard to know.whether or not something really was.patent-eligible.and so you know as a result the.incentive was well we'll just make the.one-on-one rejection and you know see.you know see what argument comes back or.see how things play out and then meant.that we saw a lot of inconsistency.sometimes we'd be able to just call up.an examiner on the phone and say you.know hey what do we need to do to result.in one-on-one rejection then they would.present something that seemed reasonable.and our client so I was reasonable and.make a small amendment or even just put.an argument on the record but others.really dug in their heels and you know.we're unwilling to budge on the issue.101 which was really tough and it was.hard because we didn't have that many.tools other than a few things in case.law to try to push back against that and.this was I mean everyone everyone knew.that this was a problem moving to the.next slide the the most recent us video.director under a young - it's been.speaking about this at length you know a.couple months ago you know he started.giving a number of speeches identifying.this as a problem and I appreciate here.in this speech he even gave us the.patent lawyers you know bit of a shout.out and confirmed you know literally.that our struggle is real and this has.been really this has been a tough time.you know it's one thing if it is one.thing if it's harder to obtain patent.protection and software but it's another.if it's unclear as to what guidance we.can even give our clients with respect.to whether or not something you know you.know will be patent eligible to allow.them to decide whether or not they want.to follow that patent application so you.know again everybody knew this is a.problem and you know the USPTO had.refined its guidance to the.over the years but we're still getting a.lot of one-on-one rejections and then.most recently just this year there was.much more comprehensive guidance issued.on 101 if we move to the next slide we.can talk a little bit about that I think.this is the most interesting thing.that's happened recently for 101 and you.know my summary is that I think I think.this will help a lot and I think it.already has this new guidance it does a.couple of things so one is that it's.it's indicated that examiner's should.use a pre-existing list of abstract.ideas if they're going to identify a.claim as being directed to an abstract.idea.it presents these three categories of.aspect ideas which we've seen before.you know in the existing case law.mathematical concepts and methods of.organizing activity mental processes you.know a list of things where I think even.though we didn't have specific guidance.as to what was an abstract idea you know.the the case law has presented enough to.give us a much clearer idea and the.USPTO has essentially made this you know.what the examiners are going to rely on.so I think that's good your permit from.a clarity standpoint and then it also.clarified what it means for a claim to.be directed to an abstract idea this is.language that the case while uses but.again was you know I actually get up in.the air.now the guidance says that a claim is is.only directed to an abstract idea if it.doesn't integrate the abstract idea into.a practical application we'll get into.this a little more but you know.practical applications are things like.improving an existing area of technology.and proving computer systems and so.forth you again relies on you know stuff.we've seen before in the case law but.finally you know presents it to.examiner's in a way that they'll be able.to use if we go to slide slide 21.oh yeah just just really quickly you.know these these are you know as I.mentioned there's these three groups of.abstract ideas you can see here again.these are all ones that yeah the list.came from existing case law and I think.it organizes pretty well and so now.examiner's have the directive that you.know you know if you're going to.identify something as an abstract idea.you know it has to be from this list if.it's not clearly from this list it's.probably not an abstract idea and so the.claim is probably animal at ineligible.so moving moving to the next slide so.you know I mentioned that there was some.ambiguity as to what it meant for claim.to be directed to an abstract idea for.another one of the digital exceptions.and so now the USPTO is laid out that.examiner's have to identify you know.first they have to identify you know you.know is there does a claim recite a.judicial exception does it recite an.abstract idea which again would have to.be taken from that list they presented.and then the examiner has to identify.whether or not the claim integrates the.abstract idea into a practical.application and the guidance indicates.that the way you do that is that you.have to you can identify whether or not.you know there's a practical application.that will apply rely on or use the.abstract idea in a way that imposes some.meaningful limit on the exception so I.think this is much clearer to guidance.to examiner's especially it gives the it.gives an examiner you know clear reasons.to find the claim to be patent eligible.if an examiner can identify that you.know you know what well well a claim.like you know almost any claim might.have something that can be identified as.an abstract idea if the examiner can.identify some application that meets.this requirement here then the claim.will be found to be patent eligible and.an example can move on to to the rest of.the examination moving to the next slide.this is how this is the USPTO splits.things up I'd say the.I didn't the the guidance has.essentially taken the case law teased.out different elements of the analysis.the different Court decisions have used.and applied some structure to it and so.overall you know the the new guidance.gives examiner's the structure to.operate within so it sort of splits up.what was originally presented as a.two-part test it splits that up into a.few more elements so that examiner's can.walk through the tests in a more.structured way so you know steps away is.all about whether or not a claim is.directed to an abstract idea or other.judicial exception which again comes in.the case law but the way that the Patent.Office is instructing its examiner's to.do it now is saying you'll first see.first identify if there's additional.exception for software cases that's.almost always going to be an abstract.idea.and now the examiners have to go through.that list of abstract ideas in order to.find one so if it's not in the list then.at this point they would typically find.the claim to be patent in pinellas bull.the analysis is over and they can move.on so this is an opportunity for an.examiner to identify a claim an eligible.prong two of this step is that as I.mentioned the examiner has to evaluate.whether or not the abstract idea is.integrated into a practical application.and here the day I would look at and the.elements of the claim to see if there's.anything beyond the abstract idea and.determine whether or not that the.abstract idea is integrated into a.practical application you know based on.you have the existing considerations.that we have from from the case law and.again a practical application will be.something like improving existing area.of technology improving the operation of.the computer you know causing some.physical transformation it is.essentially this guy that organizes some.of the the analysis that's been done.before.and presents it to examiner's so they.can do this analysis at this step and.figure out whether you know whether or.not they have a reason to find patent.eligibility and again I think this is.examiner's more reasons to do so more.reasons to find a claim to be eligible.rather than ineligible yeah I think.that's right Frank I think one one.interesting aspect of prong two you know.is that it really takes a lot of the.analysis from you know what was to be.you know your step to be a significantly.more step and uses that as indicia of a.practical application but you know.instructs the examiners that you at step.prong two of step to a they're not to.consider whether you know additional.elements are you know we're well known.routine or conventional right so so that.means you know even if you know there's.elements that you know in the claim that.are routine conventional you know are.well known you know those can still be.the basis of you know of finding that.the claims directed to a practical.application and I think that's you know.I think that that makes sense in the.context of looking for a practical.application because you know the the.real you know what I see is the real.goal here is to ensure that you're you.know it really kind of comes down a pre.emption you know ensuring that you're.not trying to wrap up the entire.underlying you know fundamental building.block of technology and and using it in.a way limiting it in a way such that you.you know it's a true application that.you're using and that you're you know.you're going out there claiming scope.that's commiserate with you know what.you you you know how you've you know.truly applied or built upon you know.these fundamental building blocks so I.think it you know I think that makes.sense at this point yes moving the next.slide the guidance also indicates that.there are circumstances where an.examiner could find claim to be.connected to a network idea that's not.in the the list of abstract ideas that.have been presented but it's you know it.does so in a very narrow way the.examiners have to get a pool from the.supervisor I think this is intense.yet something of a catch-all you know if.if a claim comes along you know directed.to something pretty wacky you know like.an electronic device that powered by the.essence of human creativity here's you.know an examiner can say okay well the.essence of human creativity is you know.it's not on our list but it's an.abstract idea so this really is not a.tenable claim of his exam is that what.we weigh you know I think what it will.end up being extreme cases having mostly.final look at that list all right next.slide on step 2 B so this is the last.this is the last element of the the.guidance you know in the past examiner's.have you know once they've gone through.the analysis they sometimes identified.anything in the claim that's not.directed to an abstract idea as wal.understood routine or conventional you.know now this is essentially the final.opportunity instead for an examiner to.find a claim to be patent eligible if.the examiners gone through the analysis.and determined that it's directed to an.abstract idea.it doesn't integrate it into a practical.application the examiner can still you.know sheer find that there are elements.that are considered to be an inventive.concept and typically if an examiner is.going to reject a claim entirely under.101 now they also have to find all the.elements of the claim to that aren't.directly to the abstract idea to be well.understood routine in conventional and.they had they have to do so with.supporting evidence which was laid out.in some earlier guidance so again I.think this is yet another opportunity.we're now examiner's will be able to say.you know okay there's some you know I.don't have any evidence that these.elements are well understood routine and.conventional so this is going to be.patent eligible.so moving to the next slide.you know just in summary and again you.know I have I you know as a practitioner.and in prosecution I have a pretty.positive view of this guidance because.as I've noted there's more opportunities.for an examiner to find claims to be.eligible rather than the eligible I.think it gives more structure to.examiner's so that they can go through.the process in a in a way that's I think.I'd be a lot more clear to them and a.lot more clear to us as practitioners.when we're looking at the examiners.one-on-one analysis to determine whether.or not we think that we you know have a.good reason to push back against it you.know then overall I think it brings in.all this existing case law in a way that.that that is you know more we're going.to be more aligned with what the.examiners are actually doing on slide 27.there's a flowchart thinking these files.will be available after the talk if you.want to see now essentially there's more.steps that the examiner has to go.through and this shows you the you know.a very clear you know workflow that.examiner's will go to when they're.determining an eligibility and so I.think that it's going to make their job.a lot easier I'm hoping and I'm thinking.that will get you know clearer 101.rejections or you know just fewer 101 or.directions because it's going through.these steps an examiner will have more.opportunities to find eligibility.great thanks Frank yes so moving into.you know how we as you know.practitioners here fish approach Alice.in our day-to-day practice you know I.agree with Frank I think this this new.guidance is a step in the right.direction.I think it's providing a lot of clarity.you know I think it's given examiner's.all you know a clear path to determining.whether you know or at least a clearer.path to determining whether claims are.directed to eligible subject matter or.ineligible subject matter and you know.so I think we can go the next slide the.the first thing you know that you know.we have the you know real advantage of.you know within our practice is you know.we have such a broad you know you know a.large group of people practicing and.software you know a third a third of our.attorneys work in software related.matters and so you know what that what.that's allowed us to do is really.leverage you know our experiences with.examiner's our you know the the number.of cases that will software cases that.we you know personally prosecuted PTO.you know the different strategies that.we we've tried out you know we were able.to communicate about those and and you.know really kind of leverage you know.all of that experience and and you know.communicate that to each other.to you know help advance advanced.applications so you know we can go to.the next slide.the give you kind of a little bit of an.idea you know since the early 2000s.we've filed almost 8500 software.applications at the u.s. software.applications and so that's that's a lot.of that's a lot of software cases you.know it's a and so we've been able to.really like I said get a lot of.experience you know handling these.rejections you know you know since 2014.we can move to the next slide as well.you know so with with respect to you.know how we handle these rejections you.know really one of the things that we've.kind of learned is that there's various.reasons why claims getting rejected and.you know some some of those you know.you're gonna respond differently.depending on what what the reasoning is.and and so we think it's you know.important you know when you get a 101.Allis rejection answer why your claim is.being rejected you go to the next slide.you know there's a couple schools of.thought with Rosario say SH ins but you.know one school of thought is that you.know you've you've just gotten an.examiner who they or their supervisor.generally believes that you know any.software implemented on a traditional.computer or computing device is patent.ineligible subject matter you know and.you know whether there's any truth to.that or not that's you know that's you.know a view that's out there and and you.know one that could be legitimate in.certain circumstances but you know if.you feel like you're in that situation.you know whether it's real or not you.know you're going to take one path the.other the other group is that you know.there's there's some merit in your.application examiner sees that they.think there's a path forward but they.want you to clarify you know what the.technical aspects are you know either.describing that in in remarks or.cleaning up your claim.you know ensuring your claims really are.directed to that that you know technical.subject matter and that they're.accurately reflecting the claims that's.you know it's going to take you a.different path so you know if you if you.believe that your examiner's in the.first camp right though that you have.the belief that you know well I'm not.going to never going to get past this.Alice 101 injection you know because.they just don't think there's you know.anything technical here or they just.don't believe that software is.patentable at all you know you you don't.have that many options.up to you know get your claims in good.condition to proceed to the P tab and.you know when when you say get the.claims in good condition you know really.you know making sure or you know doing a.real check of you know are your claims.really you know should they be found.eligible under the current guidance as.it stands today.do you have even stronger backup.positions for how the law may look in.two years when you're you know when the.P tab actually looks at your claim you.know and really ensuring that you've got.everything in your claims that will give.you the best chance of succeeding you.know on the you know you know under the.current examiner's examination standards.if you know if your examiner those in.the second camp or you believe they're.in the second camp and it yeah it looks.like that they you know they do believe.that there's something you know eligible.you're regarding your claims you know.you know you really need to work with.them number one I mean that sounds.obvious but you know make sure that you.have conversations with them that you're.you're talking about the new you know.the latest guidance and and finding out.you know they're there you know kind of.view of how they're they're applying.that and you know you know some of the.things that we do you know as far as you.know kind of arguing you know that their.claim that the claims are you know.direct at eligible subject matter I.think I think the the one of the ones.that I've seen or pretty well as you.know as just you know saying that your.claims aren't in one of the three.categories right there's the examiners.you know as as far as identifying your.claims direct it to an abstract idea.your claim has to fall and in one of the.three categories and and so you know if.you can show that you know hey this this.claim does not you know it might be.related to math but it doesn't actually.recite the mathematical formula itself.you know it can't be practically.performed in the human mind and it's not.directed to a fundamental you know.business practice you know those are if.you can demonstrate those then you know.you're gonna you've got a pretty good.shot of winning because those are the.three enumerated categories that you.know the application that claims have to.fall into you know outside of getting.approval from from you know supervisors.those are three categories that the.claims have to fall into to be beams.directed to abstract ideas you know and.and I've seen I've seen that work.already you know over the last couple.months I think it's a good way to go.yeah because those are really defined.categories the the other thing you know.if that's not successful or in parallel.you can always you know argues the.second prong of to a right and say that.it's a practical application and and in.doing that you know what you're really.what you really want to leverage as you.know looking looking the in PDP you know.and leverage those factors that were.initially set out for step to be but are.now being used in the context of two-way.and you know also it's helpful to room.you know remind you know the examiner.you know through you know in the in the.response that you know at steps you a.prong to you're not to consider whether.you're something that's well-known.routine or conventional because that you.know it does make a difference and I.have seen some rejections that appear to.conflate you know current 2019 standard.with the the previous examination under.to be and and so it's you know I think.you get really read through and make.sure that the correct correct standard.is being applied you know some of the.other things that you know kind of as.threshold things that you know you can.do is you can if you've got a pending.101 rejection and that was issued prior.to January 20 or January 7 the you can.you know you can you know point out that.the rejection so long are supported.under the new guidance.you know the Patent Office did issue a.bunch of new examples uh which really.they're really I think they did a good.job of providing a you know a summary of.some some subject matter and then some.example claims and showing the.difference between what was deemed.eligible and what was deemed ineligible.under the new 2019 guidance and so I've.you know I recommend that people look at.this those examples and you know show.the you know the similarities between.your claims and what you're claiming and.those that were deemed you know eligible.and how they differ we're running out of.time so I'm gonna move on a little bit.during drafting you know I think a lot.of a lot of the same things that we were.doing pre 2019 are are still relevant.right making sure you're getting to the.heart of of the subject matter you know.how are the components actually.interacting you know how are things.communicating you understand how systems.really work and describing that in good.technical detail alright we can move on.to the next slide with respect to.arguing the MPP in cases you know three.cases that stand out that I used a good.bit Burke heimer.primarily to you know if the examiner.you know says that the additional.elements were well known routine or.conventional it really challenging them.to provide the evidentiary support.because in Burke himer and under the.2018 memo that came out regarding.brookheimer you know it was you know the.determination of whether something was.well-known routine or conventional it.was a factual inquiry and so the 2018.memo indicated examiner's needed to.support that finding with you know was.with evidentiary support core wireless a.good case to refer to for improved.computer interface applications you eyes.those types of things things you know.applications that are really directed to.helping users get to information more.quickly the.to the new examples have a good good.user interface example as well and then.MacGraw is is generally good for.situations in which you're making some.determination the you know the system is.is reacting using a set of rules to.react and change its its behavior in.response to determining that a certain.rule is applicable for the current you.know based on the context of the input.it's getting and you know those are.those so those are all I think good.cases to rely on gonna go to the next.slide and so to kind of sum it up you.know in dealing with Alice you know.leverage leverage your knowledge you.know get a good deep technical.understanding of the you know of the the.system the the the technology that.you're claiming you know you know your.leverage.you know expert drafting abilities at.the you know at the the preparation.stage to make sure that you know that.those technical aspects are really.described in a good detail and actually.claimed before you know filing the.application with the Patent Office and.then you know leverage experience you.know with a bunch of with a lot of.examiner's and and the you know the.information that we get from you know.having those continuing conversations.and working with you know a wide variety.of examiner's in different art units.alright so I think we move on to looking.ahead so we'll go through this fairly.quickly I'm Frank field is preach I'm in.whatever you want you know there's you.know there has been a lot of interest in.you know legislative change to section.101 ranging from eliminating it entirely.to you know other less less drastic.approaches a lot of organizations have.submitted proposals.you know because of Allah you know you.know with some common criticisms of you.know the current state of 101 in that.it's ambiguous and subjective and you.know not consistently applied and.that you know that it's really a you.know kind of doing an inquiry of you.know novelty and non-obviousness it's.kind of seeping in there and that you.know really you know the argument that.the intent of 101 was really just a.threshold question you know and when it.was when the Patent Act was drafted so.there's been you know there's been.proposals made the we can go to the next.slide you know none have been adopted.the next slide please.the ABA submit a proposal not going to.read it but it focuses essentially on.preemption and if you go back to the.series of cases you know particularly.Mayo preemption was really the focus it.continues to be the focus you know is.it's noted in Alice and and this this.proposal really focuses on ensuring that.you're not prettier claims aren't.pre-empting used by applications of you.know a law of nature natural phenomenon.or abstract idea it's really the the key.there.the IPO a IPL a submitted proposals well.it's on the next slide and this one's.really focused focuses on human.innovation and really you know says that.you know you know claim is ineligible if.and only if the claimed invention as a.whole exists in nature independent of.and prior to any human activity or.performed solely in the human mind so I.mean really looking at what did what did.we do what did the inventors do what did.they contribute to this claiming subject.matter that takes it out of you know.being ineligible what makes it eligible.and then you know currently there's you.know Congress is looking into and you.know looking into 101 again this year.and there's.number of reports they're meeting with.interested parties and and you know.really starting to look at this this.issue you know and pretty pretty.significant detail so yeah I think we.are you know there's a possibility that.we may see change again and then in the.near future it could be that the state.of law stays the chain stays the same or.foreseeable future I don't think anybody.can really guess on how that's gonna.play out yet but yeah I think you know I.doubt that they'll eliminate 101.entirely but you know I've seen crazy.things happen in my career so we'll see.Frank did you have anything to add there.yeah so you know some of these proposals.have shown up and proposed legislation.in Congress and there has been a lot of.pretty active lobbying on the issue of.section 101 I don't think there's been.any legislation filed this session yet.that doesn't mean it won't come up but.you know it's it's unclear whether or.not the momentum is died out to try to.deal with this I do think that was some.of the motivation though behind the.USPTO is more robust guidance I think.that on the inside they may have decided.that you know this you know nothing is.gonna change anytime soon outside of the.office and so we're gonna have to just.take what we have and try to add some.structure to it and you know hopefully.you know satisfy all stakeholders and so.they maybe the best interpretation.what's happening right now.yeah and then the last slide is just a.shameless plug for our Alice tracker.we've got a site set up to where you can.review all of summaries of all the cases.related to Alice and you can search by.court or you know holding those types of.things you search by keyword but it's a.good resource if you're looking for a.case you know that's similar to one you.might be working on and that's all we've.got.we're a little over apologize about that.thank you.for joining us today we didn't have time.for any questions apologize there to.answering questions apologize about that.but but again thank you for your time.

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