Bonum Certa Men Certa

US Patent Courts Gravitate Towards Patent Justice Rather Than Patent Maximalism

Less focus on the flow of money (between lawyers) and more focus on science and technology

A gaol



Summary: The rational approach adopted by the US courts, all the way down from the Supreme Court to Sharon Prost of the Federal Circuit (CAFC), means that technology companies can finally focus on actual work and pay less to a bunch of lawyers

THE court system in the United States isn't exactly renowned for justice (that's a gaol at the top; the US has actual market "demand" for prisoners as jails are run like proper, for-profit businesses). The USPTO too has a certain "demand", which explains why many low-quality patents have been issued. It's difficult to say the same thing about patent courts however. They're not so "demand"-driven and their success is measured by criteria like the number of times their decisions are overturned.



The Court of Appeals for the Federal Circuit (CAFC) saw many decisions it had made (under the disgraced chief judge Rader) being overturned by the Supreme Court. It appears to have decided to change that under Sharon Prost. CAFC is now a lot better. Just days ago it once again rebuked the disgraced judge Gilstrap.

Very good. Another case of Alice thwarting bad patents.

CAFC has come under attack from patent extremists, such as Watchtroll, who went as far as to call/ask judges to step down after they had ruled against software patents. This is ridiculous, but that's how much respect those people have for judges. Watch what Dennis Crouch did some days ago.

Here we have a new article from the patent microcosm portraying CAFC as unreasonable just because it's efficient. To quote:

The number of patent cases the Federal Circuit ruled on without writing an opinion is in decline for the first time in recent years, amid criticism over the court’s use of these “silent decisions” and a plateau in its patent workload.

Statistics compiled by Law360 show the court affirmed patent decisions from the Patent Trial and Appeal Board or district court without a written explanation 161 times in 2017, which accounted for 38 percent of its patent rulings.


PTAB deals with literally thousands of legitimate petitions, so it's unreasonable for PTAB (and CAFC too) to always delve down to written determinations. Surely they understand that, no? Patently-O attempted to play this card about a year ago in order to slow down the courts.

Elsewhere in last week's 'news' (more like shameless self-promotion by the patent microcosm) we saw Squire Patton Boggs' Daniel Rabinowitz writing about software patents (in National Law Review with paid-for copies elsewhere). He said: "In Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012), and Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S. Ct. 2347 (2014), the Supreme Court of the United States established a two part test for determining patent subject..."

As usual, the patent microcosm (not just Rabinowitz) looks for ways to dodge the rules. This is their main expertise or service. The demise of software patents is not a "problem" but a blessing. It's a belated act of justice from the Justices, but watch this new article by Benjamin Hattenbach and Rosalyn Kautz ("A Recurring Problem In Patentability Of Computer Software"). It's a rant about the Federal Circuit:

Section 101 of the United States Patent Act protects "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof."[1] Historically, this been interpreted to "include anything under the sun that is made by man."[2]

From 2014 to 2017, however, the Federal Circuit has rejected an overwhelming majority of patents for computer-implemented inventions as ineligible for protection under Section 101.


That's not a problem, it's a desirable thing and the US Supreme Court (SCOTUS) should have made it so decades ago.

"Did the Supreme Court rely on extra-record evidence in its assertion of an abstract idea in Alice v. CLS?"

So asks another person from the patent microcosm. It's quite revealing that SCOTUS decisions drive them nuts. Other courts too have become unsympathetic towards the patent microcosm. Software parents are dead ducks in the US; there's no imminent turnaround because SCOTUS isn't interested in revisiting the matter.

How about this new example where the court rejected a patent under €§ 101? Docket Navigator called it an "abstract idea."

The court granted defendant's motion for summary judgment because the asserted claims of plaintiffs’ audio/visual playback patent encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea.


"We’re seeing a lot more companies actively exploring what they can do with their unused IP," IAM wrote the other day. Well, all those low-quality patents, as they eventually find out, are typically a waste of time and effort (for startups anyway). As it turns out, decisions on the matter are not being challenged as much anymore. Here are some new statistics: "From July 25, 2016 to February 22, 2018, Fish & Richardson had 143 appeals. Finnegan was second with 78 appeals. And Knobbe was third with 60 appeals. While Fish and Knobbe had roughly the same number of patent applications (60,916 and 58,170, respectively) across all customer numbers searched, Fish had more than double the appeals. Even Finnegan, which totaled a third fewer applications (41,194) than Knobbe, had more appeals than Knobbe."

Watchtroll wrote about something related to this a couple of days ago. What we have here is Amanda G. Ciccatelli and Watchtroll speaking to a lawyer about his 'agony', alluding explicitly to the "intellectual property industry."

"According to Storm," Watchtroll said, "the decline in contingency representation over the last few years can be explained by weakened patents making success on the merits less likely. Even if the patent owner does prevail, what will the win? After a win at trial, the law of damages has made large damages less and likely to achieve in the first place, and keep even if awarded after trial."

It's just not worth the risk anymore. This is a real problem for the "intellectual property industry," as the above dubs it (this 'industry' just a parasite looking to inflame more lawsuits and a legal mess; Like the arms industry which lobbies for tensions and wars).

Recent Techrights' Posts

Lovers and Haters
Always beware hate preachers and demagogues (or how they frame issues or whose fault they distract from)
Punching People Doesn't Work
It makes nobody any safer
 
Purchasing Concert Tickets in 2025 in Manchester: The "Modern" Experience
I recently spent a couple of days here testing the "terrain" in order to better understand how large public venues, for concerts rather than sporting events like football, currently "work"
Links 25/09/2025: French Unions Want Another Strike, Super Typhoon Ragasa Kills Many
Links for the day
Microsoft 'Secure Boot' and Shim as Barrier or Obstacle to New GNU/Linux Users Trying to Escape Microsoft
Just as intended all along
Focusing on What People Have in Common Instead of Killing and Cancelling One Another
Men and women of both "wings" stand to gain a lot by working together on common interests
'Cancel Culture' Isn't About Enforcing Ethics (and It's Done by People on the Right, Not "The Leftists")
Smarter folks would leave social control media
Russia's Attack on Europe (and NATO) Will Worsen Censorship and Corruption in Europe
Can we still debate issues that predate the invasion of Crimea?
Lawyers Should Permanently Lose Their Licence (and Worse) for Using Chatbots in Legal Work
They not only waste people's money and time. They pollute the literature with falsehoods. They commit perjury. [...] Brett Wilson LLP sent the Judge nearly 1,000 pages of material (mostly mine, copied without proper permission) shortly before a short Hearing, which lasted less than an hour
GAFAM and MATA (Mythical, Metaphor) as Explained by analognowhere.com
They're instruments of suppression that sponsor the oppressor
We've Already Mentioned Who Nowadays Funds Garrett's SLAPP Against Us (Not Garrett), Let's Examine Who Sponsored His Litigation Partner (Other Than Microsoft Salaries There's a Buddy of Bill Gates)
it's alleged that the Serial Strangler from Microsoft got money from him
Florian Müller: Using Software Patents to Attack Software Developers, Agitate Against Patent Reform
He also promotes attacks on the German Constitution and laws
Reliance on Typepad Seems to Have Doomed the Voice of Software Patents and Patent Maximalists in PatentDocs
Follow the money
UEFI 'Secure Boot' is Potential Mayhem to the Environment (Older and Leaner Distros Stop Working)
creating new problems, disguised as "solutions" to problems that do not exist
Sometimes 'Cancel Culture' Backfires Badly
There's no such thing as "too much" coverage
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 24, 2025
IRC logs for Wednesday, September 24, 2025
Links 25/09/2025: Jimmy Kimmel Returns to Air (With Limitations) and London Stansted Airport Latest to Have Incident (Fire)
Links for the day
Slopwatch: Fake Articles, SPAM With Slop, and Google News Directs People to Read Slopfarms
why does Google News insist on still linking to prolific slopfarms?
Gemini Links 25/09/2025: New Game for Gemini Protocol, Eleven, and Network Solutions Woes
Links for the day
Look Ma, No "Cloud"
So far this year we've had an almost perfect uptime
Links 24/09/2025: Autism Blame-Shifting and Typhoon Ragasa Enters China
Links for the day
Buying From Oneself is Not Business Success
This isn't at all a joking matter even if you already laugh at the whole thing because your pension, savings etc. are tied to this scam at some level
This is How Microsoft's XBox and Entire Consoles (If Not Gaming) Ventures Will Ultimately Die
Ensure you can blame "Tariffs" (politics)? If not "hey hi", the fashionable go-to excuse when businesses fail?
What They Really Hate David Heinemeier Hansson (DHH) for
Nothing to do with code
Smart People Won't Buy 'Smart' Cars
Imagine trying to sell someone a house (proper home) while insisting that it'll need to be demolished 5 or 10 years later, then rebuilt again from scratch on the same vacant lot
The Relationship Between IBM Red Hat and Microsoft, Visualised
This metaphor goes a long way (projects, collaborations, and outsourcing
The Complaint About Brett Wilson LLP - Part III - Spying on Reporters' Families, Chaining Cases for Microsoft Employees Who Demand Censorship of Facts (Even Politely Expressed)
the time seems right to wrap up this introductory series
The Complaint About Brett Wilson LLP - Part II - UK SLAPPs for Americans, SLAPPs for Profit
Brett Wilson LLP has a track record of this kind
Cloudflare Gives Us All Another Reason to Boycott Cloudflare
If Cloudflare wants to use its vast surveillance network (which is what it does as a CDN) to foist paywalls and maybe something worse (like DRM on top), then Cloudflare should be more widely rejected as a company
Links 24/09/2025: "NASA Moving Out of Entire Buildings as It's Gutted" and Purge of Online Critics (Opposing Fascism Becomes Unlawful)
Links for the day
Science is Under Attack
Oligarchy prefers a dumbed-down population
Someone Expiring Certificates on the Day of the 9/11 Attacks is Not Someone I Would Want Controlling My PC (or Deciding What's Authorised for Booting)
"social justice warriors"
The Solicitors Regulation Authority (SRA) Has Reportedly Failed People With Wrong Advice
At the moment the SRA has a PR blunder
The Man Suing Brett Wilson LLP and Gervase de Wilde (5RB)
Now he's probably using the (almost) 200,000 pounds he's supposed to receive to sue Brett Wilson LLP and former colleagues/partners
More Microsoft-Red Hat Cross-Pollination as the Company Loses a Managing Director
some people move from Microsoft to Red Hat and some do the opposite
Slopwatch: A World Wide Web That's Rotting for Companies That Won't Even Exist in a Few Years
some of the junk Google News is promoting
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 23, 2025
IRC logs for Tuesday, September 23, 2025
Links 24/09/2025: Qt Creator 18 Beta, Microsoft Cannot Bail Out "ChatGPT" Anymore, China and US Intensify Censorship
Links for the day
Gemini Links 24/09/2025: Gemlogs and Politics
Links for the day
Links 23/09/2025: Japan Limits Uses of Skinnerboxes ('Smartphones') With Toxic "Apps", Fentanylware (TikTok) Tapped by "MAGAts"
Links for the day
Brett Wilson LLP Has Just Been Sued (by Their Own Clients!)
Vladimir and Alla Yanpolsky sued Brett Wilson LLP in BL-2025-001167 at the end of last week
Mayday: Optus emergency calling crisis
Reprinted with permission from Daniel Pocock
Links 23/09/2025: Massive Data Breach, Slop Versus Productivity, and Vista 11 Update Breaks Things Again
Links for the day
Code of Censorship
Extortion is peace
The Free Software Foundation (FSF) Has Un-cancelled the Best People, Just in Time for the Big 4-0
Mr. Oliva should have been there all along (since 2019)
Most "Modern" Technology Makes You Slower and Dumber
Because proprietary software makes you worse off
"What Comes After Free Software?" Wrongly Insinuates We've Reached the Goal (Prison is Not the Goal)
The oil tycoons use similar tactics against environmentalists, giving them fake "wins"
Making More Work Space
I learned the hard way that less is more in circumstances where more means distraction
MAHA is a Lie, Public Officials Never Valued Citizens' Health (They Still Value Private Businesses, Their Sponsors)
Reject demagogues
Free Software Foundation (FSF) Has a New Press Kit for the Weekend After Next Weekend (40th Anniversary)
miles better than social [sic] media [sic] quips, moderated by narcissists and oil tycoons.
Microsoft Had Two Waves of Mass Layoffs This Month (That We Know of) and It'll Get Worse for Microsoft Soon
Will the axe fall again by month's end?
Gemini Links 23/09/2025: Happy Equinox, Photronic Arts, and Perception Cognition
Links for the day
Lessons We've Learned After 17 Years of American Hosting
GAFAM is "all-in" with the "Trump agenda"
Back to Normal Now, We Plan to Do More In-Depth Series (or Multi-part Stories)
Articles (or series thereof) that contain philosophy are important to us
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 22, 2025
IRC logs for Monday, September 22, 2025
Microsoft Media is Panicking Amid Mass Layoffs Every Month, H-1B Fees, and "Seattle’s Tech Scene in Trouble"
In "late stage Microsoft", copyleft becomes proprietary
The Next Wave of IBM/Red Hat Layoffs Being Discussed Already
Red Hat is sort of disappearing the way Tivoli did
New Techrights Turns 2
Today starts the third year of the SSG-based Techrights