Bonum Certa Men Certa

PTAB Inter Partes Reviews (“IPRs”) Are Essential in an Age When One Can Get Sued for Merely Mocking a Patent

Reexaminations (akin to but not identical to IPRs) can help weed out "stupid patents" like the one below

US patent 6368227 B1
USPTO patent 'quality' (US 6368227 B1)



Summary: The battle over the right to criticise particular patents has gotten very real and the Electronic Frontier Foundation (EFF) fought it until the end; this is why we need granted patents to be criticised upon petitions too (and often invalidated as a result)

THE USPTO, prior to some recent reforms, had been granting a lot of dubious patents on software -- patents which were later invalidated by PTAB, the appeal board which is half a decade old (US patents typically last two decades).



“GEMSA wrote to EFF accusing us of “false and malicious slander.” It subsequently filed a lawsuit and obtained an injunction from a South Australia court purporting to require EFF to censor itself.”
      --EFF
We are very gratified to see PTAB's growth and the crackdown on software patents. Earlier today I saw this press release about a new software patent on brain segmentation (my field of research). Do examiners seriously think that computer vision is anything but software and reducible to mathematics? Did words like "brain" and fancy jargon like "dynamic atlas" make them think that this is not an algorithm? This is where PTAB comes handy and such "stupid patents" (as the EFF calls them) get invalidated as though they were never granted.

Yesterday we saw this press release about Axon potentially losing its patent lawsuit (patent aggression against a practising rival [1, 2) after intervention by PTAB. To quote: "The U.S. Patent Office previously had rejected Axon’s attempts to invalidate Digital’s Patent No. 9,253,452 (the “’452 Patent”) through two separate petitions for inter partes review (“IPR”). This was Axon’s final attempt to invalidate the ‘452 Patent before the Patent Office. Despite its loss before the Patent Office, Axon desperately sought to convince the Court to maintain the stay of the litigation to avoid answering to Digital and a jury for its willful infringement of Digital’s ‘452 Patent. On Friday, November 17, 2017, the Court rejected Axon’s request and lifted the stay of the litigation. In ruling on the motion regarding the stay, the Court found that the evidence submitted by Digital “weigh heavily against continuing the stay of the ‘452 patent” and that “the Court denies Defendant’s [Axon’s] request to continue the stay of this case with respect to the ‘452 patent.” The Court has set a hearing for December 14, 2017, to discuss a schedule for moving the case forward to trial."

“We declined and filed a suit in the U.S. District Court for the Northern District of California seeking a declaration that EFF’s post is protected speech.”
      --EFF
This is not about software, but still, it's interesting to see if PTAB can defuse and disarm the aggressor. It's no secret that many of the millions of US patents (a total which exceeds 10 million) are of questionable quality, especially those that have not yet expired (because the patent bar was lowered).

PTAB is very scary to patent trolls and other aggressors, whose apologist Dennis Crouch tries hard to help. This week, as usual, he travels almost 150 years back in time to scrape something which looks like an argument against PTAB. As a reminder, Crouch spent a great deal of time trying to discredit and/or slow down PTAB (his PTAB-bashing posts were almost a daily occurrence some months back) ahead of a Supreme Court's decision on it. Shortly before this, Crouch wrote about these ridiculous design patents that we mentioned a month ago and said:

I previously wrote about Columbia Sportswear design patent verdict and damages award against Serius. The patent – D657,093 – covers a wavy-pattern as part of a heat reflective material. Post trial, the court has now issued an emergency Temporary Restraining Order (TRO) enjoining Serious from initiating a reexamination of the design patent — finding that the reexamination could improperly “avoid the jury’s verdict in this case.”


Just look at that design. It's outrageous that a patent would be granted on that and any sane reexamination would immediately invalidate the patent.

Zach Snyder patent



"Just look at that design. It's outrageous that a patent would be granted on that and any sane reexamination would immediately invalidate the patent."The worrying thing is, if one is big and wealthy enough (like the EFF) and decides to criticise ridiculous patents, there's a risk of getting sued. It happened several times to the EFF and, as we've covered before, the EFF eventually won the case (albeit at a great expense, namely legal fees). To quote TechDirt, which is itself subjected to a SLAPP lawsuit: "GEMSA, perhaps not surprisingly, declined to show up in the California court, leading EFF to move for default. A magistrate judge initially recommended against this, arguing that the court did not have personal jurisdiction over GEMSA. EFF asked the court to try again, and in a extraordinarily detailed and careful ruling, Judge Jon Tigar rejects the magistrate's recommendation and gives EFF the default judgment it sought. We've complained in the past that often the problem with default judgments is that courts are only too willing to just grant them if one party declines to show up for the case. This is not one of those situations. Tigar goes out of his way to explore pretty much every possible argument that GEMSA might have for why the court shouldn't have jurisdiction, for why the SPEECH Act should not apply and for why EFF's post may have been defamatory. And one by one by one, he points out why GEMSA is wrong and EFF is right. I won't repeat all the reasoning here, in part because there are so many different elements, though it's a fun and quick read in the filing."

The EFF has just written about it as well: "A federal judge has ruled that EFF need not obey an Australian injunction ordering EFF to take down a “Stupid Patent of the Month” blog post and never speak of the patent owner’s intellectual property again.

"It should be OK to criticise patents that should not have been granted, but in a country as litigious as this (the US is notorious for litigiousness) the above legal action can cause "chilling effect"; it would lead organisations such as the EFF to fear of "slander" (defamation/libel) lawsuit when stating the simple truth.""It all started when Global Equity Management (SA) Pty Ltd (GEMSA)’s patent was featured as the June 2016 entry in our Stupid Patent of the Month blog series. GEMSA wrote to EFF accusing us of “false and malicious slander.” It subsequently filed a lawsuit and obtained an injunction from a South Australia court purporting to require EFF to censor itself. We declined and filed a suit in the U.S. District Court for the Northern District of California seeking a declaration that EFF’s post is protected speech."

It should be OK to criticise patents that should not have been granted, but in a country as litigious as this (the US is notorious for litigiousness) the above legal action can cause "chilling effect"; it would lead organisations such as the EFF to fear of "slander" (defamation/libel) lawsuit when stating the simple truth.

Recent Techrights' Posts

Sabotaging Linux on Behalf of Microsoft With UEFI 'Secure' Boot (De Facto Remote 'Kill Switch'), Then Defaming, Stalking and Harassing Critics of 'Secure' Boot for 12 Years, Then SLAPPing Their Spouses and Them
The sorts of stubborn lunatics we've been dealing with
An Illusion and Cult Worship of Magnitude (Ubiquity as "Victory")
GNU has been around for over 40 years and it'll likely continue to exist for another 40 (in some form)
 
Gemini Links 01/08/2025: Happy Hacking Keyboards and New Gemini Arrivals
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 31, 2025
IRC logs for Thursday, July 31, 2025
Moving on in Techrights, Geeks Gonna Geek
In the coming weeks we plan to focus (as we explained last week) on patents, GNU/Linux issues, and the occasional philosophical essays
Slopwatch: Google News Has Lost the Plot
Almost the majority of articles returned for "Linux" are fakes
Links 31/07/2025: Australia Restricts YouTube Access, Personal Privacy at Risk
Links for the day
Links 31/07/2025: Spotify Collapses and Spotify Now Forcing Some Users to Undergo Face-Scanning
Links for the day
A Lot of Supposedly "Successful" Businesses Are Just Debt-Racking Vessels Without Any Prospects of Financial Sustainability
The probability of bankruptcy of any business is more than 0%
theregister.com: The Voice of Microsoft US?
It basically sold out
Yes, You Can Love and Adore Things Whilst Also Criticising Them
Is society being divided and groomed/primed to be resistant to constructive criticism?
Links 31/07/2025: War in Ukraine, Security News, and Cyberattacks Against Journalists on the Rise
Links for the day
Gemini Links 31/07/2025: Fake Money and Gemini Diaries
Links for the day
Google: From Pointing to Relevant Sites to Pointing to Social Control Media to Actually Parroting Social Control Media as "Facts"
Google has become a misinformation company
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 30, 2025
IRC logs for Wednesday, July 30, 2025
How to Report Apple Layoffs Without Saying the "L" Word
don't look for the "L" word
Wall Street Does Not Care About Microsoft's Impending (August) Layoffs, It Believes Lies From Microsoft, Whose Debt Grows Rapidly
If Microsoft is doing so well and swimming in money, why so many cuts (about 29,000 layoffs so far this year)?
Wayland Considered Harmful (to GNU/Linux Adoption)
it's not limited to games
My Experience With Judges Has been Positive, But We Must Still Pursue SLAPP Reform in the United Kingdom
We believe it'll be a "feather in the cap" if we can help change laws in the UK to better protect investigative reporters
Slopwatch Makes the Web Better
Remember what happened to BetaNews?
Slopwatch: Google News is Pumping in Lots of Web Traffic Into Fake Sites That Say "Linux"
somewhere between 30% and 40% of today's "news" about "Linux", as seen by Google News, is LLM slop
Links 30/07/2025: Climate Calamities Highlighted, Kyrgyzstan Crackdown on Expression/Freedoms
Links for the day
Gemini Links 30/07/2025: Watson’s List of Limits, Lysenko 2000
Links for the day
Riot for peace & Love: Catholic Influencers and Digital Missionaries welcome Jubilee of Youth
Reprinted with permission from Daniel Pocock
Some People See What Others See... But Only 40 Years Later
When people deviate from "the norm" they typically get ridiculed and dismissed as "crazy"
Links 30/07/2025: Tea Class Action and Google Killing the Web With Slop
Links for the day
Last Month Our IRC Community Turned 17
Funnily enough we never missed a single day when it comes to logging
"The Unix Kernel"
Linux was inspired by MINIX
The Register Relays Microsoft Marketing, Dubs That Marketing "Research"
Hours ago they did a "Microsoft sez" piece
Dealing With Sociopaths, Liars, and Cranks
A dysfunctional society such as this would never develop
Not Owning Mobile Phones
It's not about resistance; it's common sense
Google 'Search' is Fast Becoming No Better Than Social Control Media Infested With Bots
Google emerged almost 30 years ago as a company looking to organise the Web and direct people towards informative pages. That Google is dead.
PCLinuxOS Had Functional Backups Before the House Fire, the Site Will be Restored in New Webhost
This is the direction we want for GNU/Linux, not some IBM sales strategy
Gemini Links 30/07/2025: Two Sides of Me and "Hooked on Cosmic Voyage"
Links for the day
Microsoft Will Continue Resorting to Crimes in Order to Keep GNU/Linux Usage Down
It is a real problem and we'll revisit it later this week
GAFAM 'Revolving Doors' at The Register and a "Bribe Price List"
"an analyst at Microsoft"
Microsoft Rapidly Shrinking (No, It's Not About Efficiency, It's About Unbearable Debt)
We'll soon see how much debt grew in the past quarter
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 29, 2025
IRC logs for Tuesday, July 29, 2025
Corruption is the Standard Operating Procedure at the European Patent Office (EPO)
The EPO is a dictatorship that stains Europe
Local Staff Committee Munich (LSCMN) at the European Patent Office (EPO) Requests an Urgent Meeting to Avoid Abolishing the Office
This is dictatorship led by the most corrupt
Slopwatch: Fake 'Linux' 'Articles' and Spamfarms/Slopfarms
at least 5 fake articles in one day