Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham.

Well, the PTO has issued its new Section 101 guidance and it takes effect yesterday. Literally. Seems like Andrei Iancu was eager to cut the heart out ofsynthesize the recent Supreme Court and Federal Circuit case law. I've got a couple of savvy practitioners' takes below, plus a rundown of the Fourth Estate copyright arguments and highlights of Tony Mauro's excellent interview with Carter Phillips about vulgarities at the Supreme Court.

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Scott McKeown, Ropes & Gray partner

The Section 101 Squeeze Play

The accused infringer army has been playing offense on the Section 101 battlefield since the Supreme Court's Alice decision in 2014. Now, it's starting to feel as if those troops might be caught in a pincer movement between the high court and the PTO.

First, the PTO issued updated guidance for patent examiners on Friday, and Director Andrei Iancu has removed some obstacles from the 101 gantlet. Many more inventively iffy patents seem likely to issue in the coming years.

This comes just as the Supreme Court seems to be losing its zeal to clamp down on the judicial end. Faced with its first serious insurrection from the Federal Circuit since Alice, the justices punted on Monday to the solicitor general's office.

If I were the kind of big technology company that's relied on Section 101 to squelch fanciful patents (Facebook, cough. Amazon, cough), I'd be getting a little nervous about now.

The trend has been months in the making. Iancu promised at his December 2017 confirmation hearing to make Section 101 “one of my priorities,” and last AprilSen. Kamala Harris was hectoring him to make Section 101 safe for the artificial intelligence industry.

But the trend has suddenly accelerated. The PTO published the new guidance Friday and announced it would take effect Monday. As in yesterday. “I would say the consensus is that people are surprised” at the timing, Knobbe Martens partner Mauricio Uribe told me. Even though the new rules are in force, it's going to take some time to train the examiner corps on them.

That said, Uribe sounded bullish on the new guidance, which limits ineligible abstract ideas to the kinds of mathematical concepts, mental processes and “methods of organizing human activity” that the courts have expressly found ineligible. Examiners are no longer allowed to extend the courts' reasoning by analogy without explicit permission of a technology center director. Plus, even ideas that fit in those categories will be deemed eligible if they are “integrated” into a practical application.

“Now most examiners, patent practitioners and applicants have a framework for a discussion,” Uribe said.

Or, as Ropes & Gray partner Scott McKeown put it, “the patent bar has been going crazy trying to deal with every different patent examiner's interpretation of the law,” especially in the computer-implemented area. “Every examiner has a different philosophy.”

The new guidance, while likely to ensure more predictability, also seem to soften up the rules somewhat, McKeown said. “It's kind of a roll-back to the 'useful-concrete-tangible result'” standard of the early 2000s, he said. In particular, the “practical application” standard strikes McKeown as a relatively easy bar to meet.

Uribe agreed that “practical application” seems more reminiscent of Supreme Court opinions like Diamond v. Diehr from the 1980s. But he said it makes sense if the idea of Section 101 is to avoid preempting all possible uses of an abstract idea. “If it's directed to a practical application, then you're not preempting,” he said.

OK, but how is the Supreme Court going to feel if the Patent Office is arguably ignoring its more recent Section 101 teachings? On Monday the answer was … ask the solicitor general for advice. That's what the justices did with HP v. Berkheimer, a decision that most Federal Circuit judges support but that a couple insist is misinterpreting Alice.

What the Supreme Court thinks ultimately may not matter, if Sens. Chris Coons and Thom Tillis can pull together enough support to rewrite Section 101.

“We've turned a bit of a corner from where we were three or four years ago,” McKeown said. “On the legislative side, there's a sentiment that it's not working and we need to turn it back. It wouldn't surprise me to see some legislation popping out later this year.”

Copyright Owners Make Themselves Heard, But It Probably Won't Help Them

Copyright holders have made a big amicus push over what seemed like small potatoes at the U.S. Supreme Court. Music publishers, the recording industry, authors and others warned of severe consequences if the Supreme Court holds that owners must not only apply, but complete the months-long copyright registration process before they can sue for infringement.

A couple of Supreme Court justices, at least, heard them loud and clear. But it didn't sound as if their arguments are going to overcome the text of the Copyright Act, based on a transcript of Tuesday's arguments in Fourth Estate Public Benefit v. Wall-Street.com.

“You have a good argument on the text, obviously,” Justice Brett Kavanaugh told Peter Stris of Stris & Maher, representing accused infringer Wall-Street.com. “But you're also trying to say there's no real problem here. I'm just questioning that.”

Justice Neil Gorsuch said Congress “pretty much assumed that registration decisions would happen promptly” when the statute was enacted in the 1970s and “there's at least some evidence” that hasn't happened. In the meantime, the internet has allowed infringed content to be distributed at much faster speeds.

Stris and Jonathan Ellis of the Solicitor General's Office pointed to newer laws such as the takedown provision of the Digital Millennium Copyright Act. “They did a good job of making the point that there are other provisions of the law” that apply to the justices' concerns, said Polsinelli partner Fabio Marino, who's not involved in the case.

Meanwhile, it was clear that Stris' textual argument resonated with several justices. Section 411(a) of the Copyright Act states that a suit shall not be instituted “until preregistration or registration of the copyright claim has been made in accordance with this title,” or after “registration has been refused.”

“Do you drive without a driver's license when yours has expired because you wrote in to the registry of motor vehicles but they haven't yet licensed you?” Justice Stephen Breyer asked Aaron Panner, who represents copyright holder Fourth Estate.

Panner, a partner at Kellogg, Hansen, Todd, Figel & Frederick, argued that a college student who has signed up for a class has “made his registration, he's registered for the class,” even though the school's registrar might later say the class is full.

I have more on the arguments here.

Marino said he was glad to see Kavanaugh and Gorsuch, the court's newest members, continue to show interest in IP issues.

My own takeaway is that Stris, who's made numerous rising-star type lists the last few years, sure seems comfortable in front of the justices.

“No. No, no, no,” he told Justice Sonia Sotomayor when she asked if the pre-registration process is also time consuming.

Stris also asked Kavanaugh to “let me finish” when the justice had interrupted one of his answers.

That's dangerous ground for an advocate, but Kavanaugh didn't seem to mind. “OK,” he replied.

Keeping It Clean Before the Supremes

When the Brunetti case on vulgar trademarks was before the Federal Circuit, each judge took a different approach to pronouncing the “FUCT” brand and its four-letter root word.

My ALM colleague Tony Mauro says that if history is any guide, there's no way the words “fuck” or “fucked” are going to be uttered during Supreme Court arguments. Even if the appendix submitted to the court uses the words 52 times.

Sidley Austin partner Carter Phillips told Mauro that when he argued the “fleeting expletives” case of FCC v. Fox television, first in 2008 and again in 2012, clerk of the court William Suter advised him that the F-word would not be welcome.

“I was free to use the words in the Second Circuit and on the courthouse steps after the argument, just not during my 30 minutes at the [Supreme Court] podium,” Phillips told Mauro.

He doubts that policy has changed. “I think there is no chance the court will decide that using FUCT now is OK.”

Tim Cook: Months Since Qualcomm Settlement Talks

Finally, in my seven questions about the FTC v. Qualcomm trial last week, I noted the mini-controversy over whether Qualcomm is talking settlement with Apple and the Federal Trade Commission.

Let the record show that no settlement talks have been held between Apple and Qualcomm since the third quarter of last year. So says none other than Apple CEO Tim Cook, in this interview today with CNBC's Jim Cramer.

Now if the company can just do something about its Chinese iPhone sales …

That's all from Skilled in the Art for today. I'll see you all again on Friday.