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

Michael “Monty” Widenius: It Started in 1983 With Richard Stallman (RMS)
The other co-founder of MySQL is a bit notorious for confronting RMS rather viciously
For the Second Time in a Few Weeks Microsoft Lunduke Makes False Accusations Against Senior Red Hat Staff to Incite a Despicable 'Troll Army'
Nothing that Microsoft Lunduke claims of says can be trusted
su lisa && rm -rf /home/ibm/power
Novell was ruined by another person from IBM, Ronald Hovsepian
A Record Demand at Microsoft: Demand to Cancel
What we're witnessing is a very ungraceful destruction of XBox
Richard Stallman is Going to Finland to Give a Talk Next Thursday
A day later he speaks in Sweden
 
Links 02/10/2025: 'Open' 'AI' Resorting to Gimmicks and Fake Funding, Europe’s ‘Drone Wall’ Discussed
Links for the day
Links 02/10/2025: Brave Passes 100M Users Milestone, Kodak Selling Its Own Film Again
Links for the day
Microsoft is Losing Europe
Hence all the "support" and "discount" offers that are limited to Europe
The Free Software Foundation Starts Fund-raising for 40th Anniversary
New pop-up 2-3 days ahead of the 40th anniversary event
Systemd Breaks Networking in Debian and Microsoft Staff Rushes to Make Face-Saving Excuses in LWN
Microsoft's bluca is already there in the comments, his Microsoft money pays for LWN to let him leave comments early
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 01, 2025
IRC logs for Wednesday, October 01, 2025
What the End of XBox Will Look Like: a Fiery Crash
XBox is the next Skype. It won't last much longer. Expect many more layoffs.
Gemini Links 02/10/2025: SMTP Pipelining and End of ROOPHLOCH 2025
Links for the day
Slopwatch: Plagiarism, Fake Articles, and FUD About Linux
not a day goes by without Google News feeding FUD from slopfarms
Gemini Links 01/10/2025: Chat Control and End of Life
Links for the day
Links 01/10/2025: Long Covid Risk Reiterated, "Bitcoin Queen" Caught
Links for the day
Links 01/10/2025: EA $55 Billion Deal is Debt and Slop "Raises Vishing Risks"
Links for the day
Bluewashing at Red Hat Means Redundancies
The man who sold Red Hat to IBM meanwhile became a Microsoft Mono booster
After Killing OpenSource.com, IBM ('Red Hat') and OSI Told Us OpenSource.net Would Replace It (But That Didn't Happen)
Now it's time to move on, perhaps tarnishing the "Open Source" label some more (for whatever sponsor wants this)
Linux is Not a Community Project, It's a Wall Street Product
The core goal should be freedom
Bad Actors Abusing the Free Software Community, Vandalising It Using Rogue Politics and Old Tactics
Oil giants have long attempted to do this; now, the digital equivalent of Big Oil does this in technology
Social Control Media Isn't the Future, The Federation or Fediverse Isn't Growing, People's Accounts Vanish for Good
users' accounts will get deleted, not just become inactive
IBM is Failing, This Helps Show Wall Street is Entirely Detached From Actual Commercial Performance
IBM is unable to grow, it's just constantly shrinking
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 30, 2025
IRC logs for Tuesday, September 30, 2025
Clerical Aspects of Publishing and Development
In Free software, the management aspects are considerably reduced
Slopwatch: Fake Articles and Google News Promoting "Linux" Spam or Bot-Generated Fear, Uncertainty, Doubt (FUD)
These slopfarms help misplace blame
Third Wave of Microsoft Layoffs in September, This Time Many in Liverpool Affected
Be ready for more waves of layoffs ahead of the so-called "results" in late October
Gemini Links 30/09/2025: Motorcycling in Central Oregon, Protocol Styles and the Flag of Sark
Links for the day
Links 30/09/2025: Death Sentences, Internet Censorship, and Internet Shutdowns
Links for the day
Gemini Links 30/09/2025: Social Control Media and ROOPHLOCH
Links for the day
Richard Stallman About to Give More Talks in Europe, Some Confirmed Already
In Göteborg
Links 30/09/2025: CERN in "Have I Been Pwned" and More Windows TCO Blunders
Links for the day
Microsoft Canonical is Selling Mass Surveillance and Back Doors as "Security for Ubuntu"
If you are looking for a GNU/Linux distro to use, just remember that Microsoft has Ubuntu in the bag
Justice for Wildlife
animals cannot speak to humans who hate animals
Cowboys Gonna Be Cowboys (on the Internet, They're Not a New Problem)
Boys will be boys
Cowboys of the "Left" and Cowboys of the "Right"
Don't believe the lie that this is some "leftist" thing
When Codes of Conduct Serve to Protect Criminals From Much-Deserved Scrutiny
CoCs are typically unfit for purpose because enforcement lacks context and suitable understanding of the full background (the "full story")
It Took the Open Source Initiative (OSI) 4+ Years to Address the 'Data Breach' or Data Protection Violation Reported to the California Privacy Protection Agency (CPPA) in March 2025
We may never know the dialogue or its nature
Even Microsoft's Biggest Boosters (and Media Operatives) Are Turning Against Microsoft
Expect many more layoffs before the fake "results" next month
GNU Was Right 42+ Years Ago
Since then the abusive, user-hostile technology has spread like mushrooms
Old Isn't Always Inadequate
How many gadgets manufactured today (in 2025) will still work in 2075?
The Monkey Business of Rust People
Compatibility won't matter
Almost Half of the FSFE's Money (the Fake 'FSF', Misusing the Brand) Comes From Vodafone
That money always comes with strings, even if they're invisible to most of us
Microsoft Lunduke Spreads Deliberate Lies to Incite Online Mobs
Has he lost his reading comprehension skills?
Our 19th Birthday (in Just Over 5 Weeks From Now)
We meanwhile have ongoing, solid plans to cover patent-related issues when the FSF turns 40
British GNU/Linux Distro FydeOS Tops DistroWatch
That seems like a decent site and decent effort to keep an eye on
We'll Soon Have 75,000 GemText Pages
avoid many perils of today's Web
Google Used Free Software to Build a Monopoly. Now Google Kicks Free Software to the Curb
The "G" in "Google" does not stand for GNU. It never did. It's just another greedy company.
Gemini Links 30/09/2025: Retro Hardware, Federated Fragmentation, and Nex Server Written in C
Links for the day
4 More Days Till "4 decades, 4 freedoms, 4 all users"
We are now just 4 days away from the rare anniversary
Two Months After Merging to Hide GitHub Losses Microsoft is Doing It Again (This Time Windows)
Merging those two together is not a sign of strength but a tightening of budget
Speculations About the Next Large Wave of IBM/Red Hat Layoffs
the mass layoffs are likely to happen on week 3 or 4 in October
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 29, 2025
IRC logs for Monday, September 29, 2025