Bonum Certa Men Certa

PTAB/CAFC: Cleanup of Bogus Patents Carries On

USPTO video: Typical Day for an Administrative Patent Judge at the Patent Trial and Appeal Board (PTAB)



Summary: Bad (erroneously-granted) patents are being swept away (invalidated) by the now-famous duo which can deal with about a thousand petitions to invalidate (IPRs) per year

THE USPTO recklessly grants a lot of software patents (still), but it is often stopped -- where necessary -- by the Patent Trial and Appeal Board (PTAB). As we argued yesterday, USPTO examiners ought to stop granting software patents altogether. These grants cause a lot of 'extrajudicial' damage. Sometimes these patents end up in court and if appeals are filed and a high court (re)examines the patents, they almost always get invalidated. This post outlines some relevant news and demonstrates that things may be improving.



"The first half of 2017 was a record for Patent Trial and Appeal Board (PTAB) petition filing," Managing IP reminded readers this week when it listed some of the targeted [sic] patent owners [sic] (loaded language), revealing that Rovi (connected to Microsoft's patent trolling operation [1, 2, 3]) is a top nuisance. Here is a passage from the publicly-accessible part:

Comcast taking its dispute with Rov ito the PTAB made them the top petitioner and patent owner at the PTAB in the first half of 2017. Apple and Samsung have fallen down the petitioner rankings while Fish & Richardson, Sterne Kessler and Finnegan dropped in the law firm rankings, with Banner Witcoff, Baker Botts and Ropes & Gray making strides


As a reminder, this year and last year the Court of Appeals for the Federal Circuit (CAFC) concurred with PTAB about 4 out of 5 times while the number of petitioned soared to all-time highs. This seems to upset patent maximalists like Dennis Crouch, who continue to focus on (if not attack) AIA, PTAB, IPRs, Section 101 etc. They view these as threats to their agenda and their business model.

"The interesting thing is, CAFC keeps getting it wrong on patents in the sense that it's overly pro-patents (even weak patents)."The other day Patently-O said that as "we continue to transition to patent prosecution under the AIA, many of us have made misstatements drawn from the substantial rewriting of 35 U.S.C. 102."

The interesting thing is, CAFC keeps getting it wrong on patents in the sense that it's overly pro-patents (even weak patents). It got it wrong on TC Heartland and recently, as this new article put it this week, "SCOTUS Overturns Federal Circuit Decision On Patent Exhaustion". A few years back CAFC was a deeply corruptible court (see Rader's scandal) where patent injustice had become the norm. It's CAFC that implicitly authorised software patents in the first place (decades ago). 4 days ago at IP Watch there was this critique of CAFC. To quote the introduction (outside the paywall): "It’s been another dismal term for the Federal Circuit Court of Appeals. Six of its patent law decisions were reviewed in the US Supreme Court’s 2016-17 term, and the Federal Circuit’s decisions were overturned in all six cases. That, unfortunately, is not surprising. Over the past 15 years, the tribunal once known as the nation’s “patent court” has seen many of its most important patent law decisions reversed by the Supreme Court– sometimes in withering opinions. This has seriously undermined the Federal Circuit’s power, reputation, jurisprudence, and (apparently) self-confidence – causing a major problem for the United States’ patent system."

"It's CAFC that implicitly authorised software patents in the first place (decades ago)."Yes, CAFC has become pretty bad and the patent microcosm seems rather mortified by it. In writing about CAFC, Dennis Crouch now refers to a nonprecedential decision in Enzo Biochem v Applera (mentioned here before). It's about DOE (Doctrine of Equivalents), which Wikipedia explains is dealing with "legal rule in many (but not all) of the world's patent systems that allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent to the claimed invention."

"So here is another one of many cases where "litigation misconduct" is noted and reaffirmed by courts."Going a few days back, Crouch's site wrote about the court "finding Regeneron’s U.S. Patent No. 8,502,018 unenforceable based upon inequitable conduct during prosecution."

It was also covered by Kevin E. Noonan here.

In a nutshell:

In a split decision, the Federal Circuit has affirmed a S.D.N.Y. judgment – finding Regeneron’s U.S. Patent No. 8,502,018 unenforceable based upon inequitable conduct during prosecution. The inequitable conduct allegation here follows the typical pattern – the patentee failed to submit four relevant prior art references. The majority opinion was penned by Chief Judge Prost and joined by Judge Wallach. Judge Newman wrote in dissent.

Although the materiality portion of the discussion is important, the most interesting segment is intent. No intent to deceive was found – rather the court affirmed the district court’s adverse inference of bad intent as a sanction for litigation misconduct. The case may be a wake-up-call for some litigators who will read through the list of misconduct and see it as only business-as-usual.


So here is another one of many cases where "litigation misconduct" is noted and reaffirmed by courts. What CAFC probably chooses to sweep under the rug is its own misconduct too. Thankfully, we have it all documented.

"The patent microcosm likes to use terms like "drain the swamp" (by which these people mean fire patent reformers), but it looks like the real swamp is basically a swamp of nearly a million US patents of questionable quality."The bottom line is, patent litigation isn't as easy as it used to be; it's not necessarily because courts have changed their tune but because abusive patent trolls now dominate the system and a lot of bogus patents have been assigned US patent numbers (only to be voided later).

The patent microcosm likes to use terms like "drain the swamp" (by which these people mean fire patent reformers), but it looks like the real swamp is basically a swamp of nearly a million US patents of questionable quality.

Recent Techrights' Posts

Attacks on Techrights Are Only Making Techrights Bigger and Even More Popular
A week ago they offered to settle with us
EPO Staff Can Go Listen to Richard Stallman Next Week in Munich (Technical University of Munich, Rudolf-Diesel Hörsaal (MW2001) on Campus Garching at 18:00)
"The talk is open to the public and attendance is free. Registration is not required."
At IBM, Relocation Means Layoffs (Downsizing)
Silent or 'invisible' layoffs?
Dystopian Trends in Technology Make Richard Stallman More Relevant Than Ever
It's good to see him attracting vast audiences
Richard Stallman (RMS) Announced His Talk Less Than 24 Hours Before It Took Place and Still Filled Up the Auditorium at Sapienza Università di Roma
Photos from yesterday evening [...] It looks like it was a very successful event
 
The DDoS Attacks by Microsoft's Scam Altman and Other Slop Charlatans and Frauds is Hurting the FSF, Delinking It From Copyleft Projects
This impacts a lot more than access to the licences
Microsoft Scanning Faces in Photos People Upload to Microsoft (Even Unconsciously), Slashdot Turns Report About It Into "Microsoft Sez" (Says)
Or "let's repeat the lies from a PR person/Microsoft's publicist"
[Teaser] Angel Aledo Lopez the Manipulator (Nepotism, Poll Rigging, and Other EPO Corruption)
We'll discuss this later today or tomorrow, based on internal EPO material
Epic Metaphor for End of IBM: "The IBM Demolition is Down to the Last Shards!"
Nothing lasts forever
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 14, 2025
IRC logs for Tuesday, October 14, 2025
Proprietary and DRM Prisons Spiralling Down the Sinkhole? Not Just Yet.
Let's hope that more people will flee to GNU/Linux
The European Patent Office (EPO), the Second-Largest Institution in Europe, is Cracking Down on Recreational Activities
Without AMICALE activities, and as staff already says it's pressured to work more for less, how can the EPO recruit bright people?
Transparency: FSFE financial reports exclude speaker fees and expenses
Reprinted with permission from Daniel Pocock
Many Developers Have Many Political Views, They'll Never Agree on Everything
It's an effort to divide and destroy, not build
Gemini Links 14/10/2025: An Opportunity to Consider GNU/Linux and Another Simple IRC Client
Links for the day
Slopwatch: UbuntuPIT, LinuxSecurity, Google News, and the Serial Slopper Brian Fagioli
Nothing of merit here, just more slop
Links 14/10/2025: Lack of Trust in Slop and "Retirement Challenges"
Links for the day
Rhonda D'Vine, Gerfried Fuchs, Pronouns & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Central Staff Committee of the European Patent Office (EPO) Warns That EPO Management is Robbing or Manipulating Pension Funds Again
Faking "growth" is just about as bad as forgery
Probably a Lot Worse Than LLM Slop: GNOME Tying Itself to Divisive Politics, Even Where It's Clearly Not Relevant
Something has gone terribly wrong in GNOME
Links 14/10/2025: Microsoft OneDrive Scanning Faces in Photos (Without Asking First), "OpenAI Says It Will Move to Allow Smut"
Links for the day
They Generally Don't Like Scholars, as They're Less Compelled or Pressured to Repeat What Corporations and Oligarchs Say
People who loathe scholars have an agenda in mind that, unlike that of reasonable people, revolves around controlling people
Belated New Article About Last Thursday's Lecture by Richard Stallman in Helsinki, Finland
there are good reasons to pay with cash, not limited to privacy
Attacking Richard Stallman Has Become 'Career Suicide'
If you're going to viciously attack somebody, make sure your arguments are rock-solid
Microsoft's Failing XBox Business Has Turned Games Into Funerals
How does it feel to depend on Microsoft?
Yesterday's "Distinguished Lecture" by Richard Stallman Possibly Attended by Close to 1,000 People
The capacity of the place is about 900
Slop Poisons Everything
Imagine wanting to find what Torvalds has just said or what has just been released
Taking Software Freedom 'Mainstream'
interest in Software Freedom must have grown
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 13, 2025
IRC logs for Monday, October 13, 2025
Gemini Links 14/10/2025: Ada Lovelace Day, Sony CLIE PEG-TG50 Review, Why to Avoid Network Solutions
Links for the day
The EPO's War on Techrights Was a Massive Mistake
The EPO started the SLAPPs after we had published a few hundreds of articles; we've since then published close to 6,000 because the attacks on us emboldened insiders to help us
General-Purpose Computers to Become Growing Area of Coverage
Without them, we have little left for controlling our lives
"They missed a great opportunity to shut up." -Jacques Chirac
Brett Wilson LLP has been trying to cheat the legal system many times
Harassment evidence: Switzerland, overcrowded fitness and yoga centers, incompetence and racism in accident response
Reprinted with permission from Daniel Pocock
Vincent Danjean & Debian NXIVM collateral, blackmail risks
Reprinted with permission from Daniel Pocock
In Sweden This Past Friday Richard Stallman Explained Why Copyleft is Important
And he didn't have to 'bash' BSDs, either
IBM Layoffs Due to a Lack of Money and Company Debt Rising by Almost 10 Billion Dollars in 6 Months
IBM didn't buy Red Hat for any ideological reasons; it was a fast "cash grab" for revenue
Forbes Already Stopped Being a News Sites. Now It's a Spam and Propaganda Platform for "Paying Partners" (Companies).
news from Forbes became very scarce
Is the Second-Largest Institution in Europe (EPO) Gradually Becoming More Like a Sweatshop?
Underpaid, unqualified, inexperienced and incompatible people are already recruited to replace veteran examiners
The Register MS Has No FOSS Coverage Anymore
The Editor in Chief is like a Microsoft plant
Links 13/10/2025: "Toasty Subwoofer" and WiFi Speakers "Are About To Go Dumb"
Links for the day
Gemini Links 13/10/2025: iNaturalist and Tove Jansson’s Moominpappa at Sea
Links for the day
Microsoft Does Not Deny That Large Retailers Like Walmart, Costco and Target Are Giving Up on XBox (and Not Stocking It)
No doubt XBox is in trouble and rumours suggest that more mass layoffs are imminent
We'll Encourage Richard Stallman to Talk About Software Patents at the EPO Next Week When He Visits Munich (EPO Headquarters)
Go listen to Richard Stahlmann
Investigative Journalism Protects Society From Corruption, Crimes Against Women, Assaults on Civil Society
"what is the point of men doing military practice to defend a system that is so rotten?"
Swiss pimp usurping reputation of legendary Tissot boss Francois Thiébaud from France (BaselWorld, SWATCH Group SA)
Reprinted with permission from Daniel Pocock
Paris 'Love Nest' & Debian Outreachy: from Lycée Lakanal to ENS Cachan, Cr@ns, nepotism
Reprinted with permission from Daniel Pocock
Richard Stallman to Give Public Talk in 3 Hours, Then in the Technical University of Munich (Germany) Next Week
Richard Stallman at TUM on 21.10.2025 18:00, MW2001
Arnaud Parreaux lost case defending rogue employer
Reprinted with permission from Daniel Pocock
Mathieu Elias Parreaux declared bankrupt in Switzerland
Reprinted with permission from Daniel Pocock
Breakdown of the Rule of Law and Patent Law in the European Union (EU)
The EPO cannot recruit suitably qualified patent examiners this way, let alone retain them
Gemini Links 13/10/2025: Good Films, Wizard of Earthsea, Upgrading the Steam Controller's Stick
Links for the day
Leaks and Whistleblowers: Our Plan for Today
Society simply cannot advance when too many people self-censor
It's Not Justice When One Side Denies the Other Side the Ability to Even Speak
At this stage, Brett Wilson LLP is in my humble opinion acting in contempt of the Court
Links 13/10/2025: Australian Catholic University Uses Slop to Libel Students, Canada Threatens to Kill Beluga Whales
Links for the day
How Not to Silence Tux Machines (It'll Only Backfire, Badly)
defending Microsoft while attacking this site
Slopwatch: UbuntuPIT and Google News
It seems abundantly clear that Google News and Google in general participates in the slop epidemic
Vincent Danjean (not INTERPOL), Claire Bardel & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Christmas lynchings: Martin Krafft (madduck), Penny Leach (mjollnir) & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Gemini Links 13/10/2025: Birthdays and "Committee Unable to Contact Nobel Prize Winner"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 12, 2025
IRC logs for Sunday, October 12, 2025