I think the EFF's note is a bit confusing, because it glosses over a key nuance in the evaluation.<p>Here's a bit more information about the case: <a href="https://patentlyo.com/patent/2018/07/diagnostics-provisional-application.html" rel="nofollow">https://patentlyo.com/patent/2018/07/diagnostics-provisional...</a><p>Briefly: Granted patents count as prior art from their filing date. The question is what happens to provisional filings. The court has split the treatment of those documents depending on whether or not the prior art is claimed or not.<p>The Federal court's position is interesting, as it is a compromise position. It recognizes that the documents are not published to the public, and accordingly afford the opportunity to create so-called submarine rights, and limits the scope of these rights to the specific 'stuff' of the patent in question, while preventing the non-public remainder of the filings from popping up and cutting prospective patents down.<p>What's the right course of action here? Well, that heavily depends on the behavior of filers across an industry.<p>It is, however, clear that the federal court's position is not borne out of a consistent, principled approach. For some, that's enough for them to claim the baby needs to be tossed out without trying to address the threat of the submarines directly.