08.04.17

Gemini version available ♊︎

The United States Supreme Court Should Further Restrict Patent Scope and Not Question PTAB’s Work (Which Merely Enforces That Scope)

Posted in America, Apple, Courtroom, Patents, Samsung at 4:29 am by Dr. Roy Schestowitz

PTAB has probably been the best when it comes to enforcing Supreme Court decisions such as Alice

United States Supreme Court

Summary: A glance at the ongoing debate over which patent case/s the Justices of the United States Supreme Court should look at next

PTAB is a good, valuable ally of the software industry, for it invalidates a lot of software patents. PTAB is defended by almost every software company but protested against by the patent microcosm (striving to tax software companies).

“PTAB is defended by almost every software company but protested against by the patent microcosm (striving to tax software companies).”Based on this new press release, a lawsuit which was mentioned here earlier this week got escalated by the defendant, which sought help from PTAB. Taser (now renamed) is battling to dodge PTAB’s scrutiny (as it can potentially invalidate the patent they use aggressively) and this time it got its way. But that’s not the end of it. PTAB is generally a get-out clause in case a patent lawsuit is meritless based on the patent/s at hand. Failing PTAB, there are still judges and sometimes also a jury to determine whether a patent asserted is bogus or not. Just because an examiner at the USPTO decided to grant a patent doesn’t necessarily mean it’s both novel and patent-eligible. Prior art is sometimes discovered in court proceedings and expert witnesses can attest to the triviality of some patents. In some cases, the trial itself constitutes misconduct; we gave an example of that yesterday, citing Patently-O, whose contributor David did a followup. “First off,” he wrote, “according to the panel-majority, mere negligence by litigation counsel is enough to justify an adverse inference under the law of this regional circuit…”

“As we explained here before, Patently-O is no friend of PTAB and certainly it is a friend of software patents.”Over the years we have given many examples of misconduct, e.g. companies asserting patents that they don’t even ‘own’ (are assigned). In some cases, expired patents are being used to intimidate companies.

As we explained here before, Patently-O is no friend of PTAB and certainly it is a friend of software patents. Moreover, its lead writer (Crouch) is still trying to slow down or discourage CAFC's support for PTAB. Yesterday he did that again. To quote the relevant paragraph:

A third petition for writ of certiorari to the United States Supreme Court has now been filed stemming from the Federal Circuit’s Rule 36 Debacle. Despite the need for clear guidance on the implementation of AIA Trials, most such appeals are being decided by the Federal Circuit without any opinion. I have argued that the process violates a provision of the Patent Act that requires an the court to issue an opinion in cases on appeal from the Patent & Trademark Office.

We already wrote extensively about why it’s justified. There’s a massive ‘scatterback’ of appeals from PTAB and CAFC cannot possibly issue a pertinent written opinion for each individual appeal. Crouch should know that. He’s a law professor, but at the same time he’s also immersed in the patent microcosm, which hates PTAB with a very great passion (to the point of insulting judges).

“He’s a law professor, but at the same time he’s also immersed in the patent microcosm, which hates PTAB with a very great passion (to the point of insulting judges).”The US Supreme Court (SCOTUS) is already busy with more important matters, such as patent scope and patent trolls. In fact, it has already deemed business methods-related patents invalid. There’s Bilski and Alice. Now it’s down to the courts below SCOTUS to obey precedents/prior decisions. But Crouch wonders aloud whether the matter will be revisited yet again:

Although the Federal Circuit walked through its Alice/Mayo analysis, I expect that a more infringer-friendly panel would have almost certainly sided with the district court. Now, Openet has petitioned the Supreme Court for writ of certiorari – arguing that the Federal Circuit improperly reached beyond the clearly overbroad claims when making its decision.

“Rao decided to write for The Hill about an Apple case against an Android OEM.”Experience suggests that almost always the SCOTUS will overrule the Court of Appeals for the Federal Circuit (CAFC). But does it need to revisit something it already dealt with? Even Crouch touches that aspect (see the above post).

In other news, yesterday there was a publication from Nagesh Rao, who is described as “a former U.S. patent examiner and senior policy advisor with the Department of Commerce-U.S. Patent and Trademark Office and Office of Innovation and Entrepreneurship. He represents the United States as an Eisenhower Fellow and advisor to the American Association for the Advancement of Science (AAAS) Lemelson Invention Ambassadors Program.”

“Rao explains that “if not for low-quality patents […] we would not even be having this discussion right now.””Rao decided to write for The Hill about an Apple case against an Android OEM. It was the biggest Android OEM at the time the lawsuit was filed. He said that the “Supreme Court could strengthen the patent system” and by strengthen he means make more strict, not what “STRONGER” means in that infamous bill (“The STRONGER Patents Act” is reducing their quality to spur frivolous litigation).

Rao explains that “if not for low-quality patents […] we would not even be having this discussion right now.”

People inside the EPO have told us that highly dubious patents (EPs) are being granted to Apple in Europe as well. It’s a global problem.

Patent quality is brought up by Rao as follows:

I mentioned patent quality is at the core of this case. As a former U.S. patent examiner that’s an issue I feel very strongly about. After all, if not for low-quality patents (it’s not just my opinion, the U.S. appeals court that originally found some of Apple’s controversial patents to be invalid would likely agree), we would not even be having this discussion right now.

The Supreme Court should hear this case and seize the opportunity to defend higher patent quality for a number of reasons – an issue that the USPTO has for years attempted to address, and made great strides in assuring. And in what some view as a positive step towards review, on Monday, the Court asked the acting U.S. Solicitor General to weigh in on the case.

We certainly hope that the Supreme Court will assess this case and overturn it in favour of Free software (Android). In this day and age when software is free (usually in terms of freedom and also price) there’s no room for all this ‘taxation’ by declining firms — at least in the mobile sector — such as Apple.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Benoît Battistelli in 2015: EPO is Ready to Start Unified Patent Court (UPC), Expect UPC in 2016

    We’re almost in 2023 and UPC is being delayed again; this is what EPO President Benoît Battistelli said way back in 2015 (official video from the EPO; 3:45-4:34 cropped apart)



  2. IRC Proceedings: Monday, December 05, 2022

    IRC logs for Monday, December 05, 2022



  3. Links 06/12/2022: FreeBSD 12.4 and Inkscape 1.2.2

    Links for the day



  4. Sirius Not-So-‘Open Source’: Cannot Talk to Colleagues, Cannot Speak About Work

    Cover-up and lies became a corporate pattern at the company where I had worked since 2011; it was time to go in order to avoid cooperation in unethical activities



  5. [Meme] Guilt by Association

    Sirius ‘Open Source’ has a history of hostility towards people with disabilities; the company got sued over this, but kept the lawsuit secret



  6. That Time Sirius 'Open Source' Fired a Blind Lady While Gagging Sympathetic Staff

    Sirius 'Open Source' was taken to court after it had wrongly fired a couple of employees, one of whom was blind; this was accompanied by lies about why the staff's communication server was shut down



  7. Links 05/12/2022: Gnoppix Linux 22.12 and Armbian 22.11

    Links for the day



  8. Unified Patent Court (UPC) is “Real Soon Now!” Since 2014

    The Unified Patent Court (UPC) lobby is once again forced to admit issues and delays; we've seen this time and time again for nearly a decade already



  9. Unified Patent Court (UPC) 'Delayed' Again, As Usual, as Unitary Patent Boosters Caught Up in Lies and Scandals

    “UPC [is] delayed by 2 months,” a source has told us, dubbing it “good news” and reaffirming what we’ve said this past year; this litigation lobby's 'wishlist' system isn’t legal, it’s not ready, there are yet more scandals, and journalists have been catching up with these scandals



  10. Links 05/12/2022: GStreamer 1.21.3

    Links for the day



  11. IRC Proceedings: Sunday, December 04, 2022

    IRC logs for Sunday, December 04, 2022



  12. Links 04/12/2022: Status of the 15-Minute Bug Initiative

    Links for the day



  13. When a Company Simply Refuses to Talk to Technical and Exerienced Staff Through Internal Avenues

    When companies behave like monarchies where staff has no role at all in decision-making and decisions are made in violation of those companies’ tenets (or mission statements) it is inevitable that staff will issue concerns, first internally and — failing that — in other channels



  14. [Meme] Kings Instead of Open Consultation Among Peers

    In Sirius there’s no room for debate, even among half a dozen or so technical colleagues; decisions are made in the dark by a tightly-knit cabal (with rather childish superhero cartoons as their avatars) and then imposed on everybody else (hardly democratic, not sane)



  15. Sirius Open Source: The Home of Stress and Bullying by Management

    Part 3 of a report regarding Sirius Open Source, which is imploding after bad judgement and misuse of power against employees



  16. Links 04/12/2022: Fosshost Shudown and OpenIndiana Hipster 2022.10

    Links for the day



  17. Links 03/12/2022: pgAdmin 4 Version 6.17

    Links for the day



  18. IRC Proceedings: Saturday, December 03, 2022

    IRC logs for Saturday, December 03, 2022



  19. Office Manager in Company Without an Office

    Imagine having an “Office Manager” in a company that does not even have an office. Welcome to corporate posturing.



  20. Dishonest Companies Disguised as 'Open Source' (After Abandoning It)

    A deeper look at the way Sirius Open Source presents itself to the public (including prospective and existing clients); This is clearly not the company that I joined nearly 12 years ago



  21. When the Founder of Your Company Supports Donald Trump the Company Ends up Active in Fascist Platforms

    Politics weren’t allowed in Sirius ‘Open Source’, but there were exceptions for some people (close to management) and it didn’t look good



  22. [Meme] Sirius Actually Used to Promote Free/Libre and Open Source Software

    Before people who reject Free/Libre and Open Source software were put in charge of Sirius ‘Open Source’ concrete steps had been taken to support the wider community (or the suppliers, who were mostly volunteers)



  23. Sirius 'Open Source' When It Actually Understood and Respected Software Freedom

    The company my wife and I joined was (at the time) still Free software-centric and reasonably friendly towards staff; today we examine Sirius of a decade ago



  24. Links 03/12/2022: 4MLinux 41, GNOME E-mail System Melting Down

    Links for the day



  25. Links 03/12/2022: KDE Report and Canonical Lying to Staff

    Links for the day



  26. Sirius 'Open Source' Lists 49 Firms/Organisations as Clients But Only 4 of Them Currently Are

    Sirius Open Source is nowhere as popular as it wants people to think



  27. Sirius 'Open Source' Lists 15 People as Staff, But Only 6 Work in the Company

    Sirius Open Source is nowhere as big as it wants people to believe (like it is a trans-Atlantic thriving firm, the “Sirius Group”)



  28. Storm Brewing Over the Future and Nature of the Internet

    Subsidies for Web giants (and shareholders of such giants) will run out; what will happen to the Internet when this inevitably happens?



  29. IRC Proceedings: Friday, December 02, 2022

    IRC logs for Friday, December 02, 2022



  30. 10 Good Things That Happened in 2022

    In the technical domain, 2022 saw some positive developments, especially from the perspective of Freedom-centric and environmentalist folks


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts