But just saying "use a computer" is exactly what the EFF's stupid patent of the month claims, so why was it granted? There's no way to know, but the culprit may have been bureaucratic inertia, says Ranieri. The patent won preliminary approval before the Alice decision was announced, but was actually granted after the ruling. It's possible that no one in the overworked Patent Office even noticed the conflict with the Alice decision.
Because the patent office is under heavy pressure to reduce its huge backlog of applications, patent examiners aren't spending much time considering them. In fact, the average patent is scrutinized for only about 19 hours, not nearly enough time to do the research and analysis necessary to make an intelligent decision, says Ranieri.
Reducing the backlog is obviously a good thing, but it has to be done right. "The easiest way to deal with backlog is to just say yes. So we've seen a lot of poor patents," she says.
It is important to remember that stupid patents like the one Ranieri lampooned can do real harm. Because defending a patent case can easily cost more than $1 million, patent trolls can use the threat of these legal costs to extort settlements, even when a claim is spurious.
Still, there's some reason for optimism. The Alice decision provides a tool for courts to throw these cases out. And the Patent Office is doing a better job training patent examiners. But it will take years to see how the Alice ruling is translated by the lower courts where cases are actually fought.
Until then, there will be more than enough stupid patents to fill Ranieri's blog month after month.
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