EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

05.08.18

Court of Appeals for the Federal Circuit Continues to Deny Patents Based on Stricter Standards

Posted in America, Courtroom, Patents at 9:20 am by Dr. Roy Schestowitz

Justice based on self-reflection should come first (and no presumption of validity for patents, honesty from lawyers)

Man in window

Summary: As patent lawyers resort to further aggression and dirty tricks they risk alienating jurists, who are growingly hostile towards the patent maximalists and are nowadays embracing a more balanced approach towards patents

IT HAS been pretty pleasing to see what happened to the Court of Appeals for the Federal Circuit (CAFC) after Paul Redmond Michel and Mr. "Death Squads" Rader left it. No longer a patent extremists’ court or a patent trolls’ ally, CAFC nowadays instructs the USPTO regarding examination guidelines (which its rulings inspire).

CAFC’s actions upset nobody except a small group of patent extremists, who occasionally bash CAFC judges and demand their firing/resignation. It’s rather appalling to see. They do the same to USPTO officials who back reforms.

One such site, Watchtroll, wrote about an “Israeli pharmaceutical firm” the day before yesterday. It’s going back to court after Justices changed the national position/s on patents. The news is dated two days ago, but it speaks of something which happened more than 2 weeks ago. To quote:

On Thursday, April 20th, the Court of Appeals for the Federal Circuit issued a decision in Medinol Ltd. v. Cordis Corporation et. al. which vacated and remanded a lower court’s ruling that claims of patent infringement alleged by Israeli pharmaceutical firm Medinol were barred by the equitable defense of laches. The Federal Circuit’s decision comes after the U.S. Supreme Court overturned the Federal Circuit’s previous precedence on laches as an equitable defense in SCA Hygiene Products v. First Quality Baby Products, decided last year. The case was decided by a panel consisting of Circuit Judges Timothy Dyk, Jimmie Reyna and Kara Stoll.

Watchtroll is now back again to 01 Communique Lab, Inc. v Citrix Sys, which it revisited yesterday. This site is typically revisiting only CAFC cases of convenience (to the patent microcosm).

Covering a breach-of-contract case, Patently-O looks at the latest attempt to bring an AIA (patents) case to SCOTUS. “In its new petition for certiorari,” Patently-O wrote, “Alexsam argues that its breach-of-contract case should have never been removed to Federal Court.”

Patently-O has also just published this long post by Dennis Crouch about Energy Heating v Heat On-The-Fly, a case wherein the “Federal Circuit affirmed the lower court’s holding that Heat On-The-Fly’s U.S. Patent No. 8,171,993 is unenforceable due to inequitable conduct.”

Heres’s why:

Inequitable Conduct: In the failure-to-disclose context inequitable conduct requires clear and convincing evidence that “the applicant knew of … the prior commercial sale, knew that it was material, and made a deliberate decision to withhold it.” See Therasense. These issues are determined by the district court judge and given deference on appeal. Thus, an inequitable conduct finding should only be overturned when based upon a misapplication of law or based upon a clearly erroneous finding of fact.

Here, the patentee argued that the prior uses were “experimental” or at least he thought that they were. That argument was rejected since the prior uses included all elements of claim 1; that there were no notebooks or other experiment-like-paraphernalia; and that the uses were done openly without any attempt to hide the system or require confidentiality. (Linking these factors to Allen Engineering Corp. v. Bartell Industries, Inc., 299 F.3d 1336 (Fed. Cir. 2002)). Those elements were more than enough to overcome the experimental-use-defense.

Watchtroll too has just mentioned courts rendering patents unenforceable due to foul play. Notice the theme? We covered some more examples recently. These are typically CAFC cases and the judges aren’t tolerating patent aggression.

A couple of days ago we wrote about laughable ads from Cislo & Thomas LLP and here they go again with the headline “Federal Circuit Makes It More Difficult To Invalidate Patents Under Alice” (we already debunked these arguments about a dozen times over the past month). To quote Cislo & Thomas LLP:

As many patent attorneys and agents know, the landscape of business methods and software patent eligibility has changed since the 2014 ruling of Alice v. CLS Bank. Alice has made it significantly more difficult to patent software and business methods, but now the Federal Circuit made a ruling that will slow down the process of invalidating patents under Section 101.

The Federal Circuit found that a finding of patent eligibility under Section 101 and the Alice ruling involve “factual issues.” This means that lower district courts will have a more difficult time resolving Section 101 cases at the summary judgment stage because these factual issues are something that require a jury to decide.

Although they aren’t naming the case, they’re ‘pulling a Berkheimer’ — a relatively new trick of patent maximalists looking desperately for light at the end of the CAFC tunnel (sometimes even mocking judges over it, e.g. Judge Reyna).

At no point did CAFC say something against Section 101/Alice; a couple of successive rulings led to this USPTO consultation which was soon forgotten about because of Oil States (only days later).

The matter of fact is, CAFC remains Section 101/Alice-friendly and thus software patents-hostile. As Joseph Herndon reminds us this week, business methods aren’t considered patentable either. The “Federal Circuit affirmed the Patent Trial and Appeal Board’s (“Board”) determination that the claims are patent-ineligible under § 101,” he wrote. Here is the core part:

In an appeal from a rejection in initial examination of appellant Mark Eberra’s patent application, the Federal Circuit affirmed the Patent Trial and Appeal Board’s (“Board”) determination that the claims are patent-ineligible under § 101.

The patent application is entitled “Business Method for Opening and Operating a National Television Network” with serial number 12/230,058 (“the ’058 application”). The Examiner rejected all claims of the ’058 application as patent-ineligible under 35 U.S.C. § 101 and as anticipated under 35 U.S.C. § 102.

The Board initially affirmed the Examiner’s anticipation rejection without reaching the § 101 issue. Then, on rehearing, the Board affirmed the Examiner’s rejection under both § 101 and § 102. Mr. Eberra appealed and represented himself pro se.

So patents on business methods are so very weak that they’re probably not worth pursuing and the same goes for software patents. Except perhaps in the patent trolls’ breeding ground, the Eastern District of Texas (TXED/EDTX). Here’s an update from an TXED patent lawsuit, Salazar v HTC Corporation:

The court granted in part defendant’s motion to strike portions of the report of plaintiff’s technical expert for applying improper legal principles.

Such “improper legal principles” seem to match the theme we’ve been seeing at CAFC lately. Not only do patent lawyers attempt to come up with “scams” (and then SLAPP me for pointing it out) but they cheat in all sorts of other ways. How many judges will it take to signal to them that they’ll be dismissed with prejudice for that? How many rulings will we see along these lines?

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. The Linux Foundation's Business Model

    The Linux Foundation's plan, illustrated



  2. Links 18/6/2019: i386 Abandoned by Canonical and a New osquery 'Community'

    Links for the day



  3. Indifference or Even Hostility Towards Patent Quality Results in Grave Injustice

    The patent extravaganza in Europe harms small businesses the most (they complain about it), but administrative staff at patent offices only cares about the views of prolific applicants rather than the interests of citizens in respective countries



  4. Links 18/6/2019: CentOS 8 Coming Soon, DragonFly BSD 5.6 Released

    Links for the day



  5. 'AI Taskforce' is Actually a Taskforce for Software Patents

    The mainstream media has been calling just about everything "HEY HI!" (AI), but what it typically refers to is a family of old algorithms being applied in possibly new areas; patent maximalists in eastern Asia and the West hope that this mainstream media's obsession can be leveraged to justify new kinds of patents on code



  6. Patent Maximalism is Dead in the United States

    Last-ditch efforts, or a desperate final attempt to water down 35 U.S.C. § 101, isn't succeeding; stacked panels are seen for what they really are and 35 U.S.C. § 101 isn't expected to change



  7. Links 18/6/2019: Linux 5.2 RC5 and OpenMandriva Lx 4

    Links for the day



  8. Weaponising Russophobia Against One's Critics

    Response to smears and various whispering campaigns whose sole purpose is to deplete the support base for particular causes and people; these sorts of things have gotten out of control in recent years



  9. When the EPO is Run by Politicians It's Expected to Be Aggressive and Corrupt Like Purely Political Establishments

    António 'Photo Op' Campinos will have marked his one-year anniversary in July; he has failed to demonstrate morality, respect for the law, understanding of the sciences, leadership by example and even the most basic honesty (he lies a lot)



  10. Links 16/6/2019: Tmax OS and New Features for KDE.org

    Links for the day



  11. Stuffed/Stacked Panels Sent Back Packing After One-Sided Patent Hearings That Will Convince Nobody, Just Preach to the Choir

    Almost a week ago the 'world tour' of patent lobbyists in US Senate finally ended; it was an utterly ridiculous case study in panel stacking and bribery (attempts to buy laws)



  12. 2019 H1: American Software Patents Are as Worthless as They Were Last Year and Still Susceptible to Invalidation

    With a fortnight left before the second half of the year it seems evident that software patents aren't coming back; the courts have not changed their position at all



  13. As European Patent Office Management Covers up Collapse in Patent Quality Don't Expect UPC to Ever Kick Off

    It would be madness to allow EPO-granted patents to become 'unitary' (bypassing sovereignty of nations that actually still value patent quality); it seems clear that rogue EPO management has, in effect, not only doomed UPC ambitions but also European Patents (or their perceived legitimacy, presumption of validity)



  14. António Campinos -- Unlike His Father -- Engages in Imperialism (Using Invalid Patents)

    Despite some similarities to his father (not positive similarities), António Campinos is actively engaged in imperialistic agenda that defies even European law; the EPO not only illegally grants patents but also urges other patent offices to do the same



  15. António Campinos Takes EPO Waste and Corruption to Unprecedented Levels and Scale

    The “B” word (billions) is thrown around at Europe’s second-largest institution because a mischievous former EUIPO chief (not Archambeau) is ‘partying’ with about half of the EPO’s all-time savings, which are supposed to be reserved for pensions and other vital programmes, not presidential palaces and gambling



  16. Links 15/6/2019: Astra Linux in Russia, FreeBSD 11.3 RC

    Links for the day



  17. Code of Conduct Explained: Partial Transcript - August 10th, 2018 - Episode 80, The Truth About Southeast Linuxfest

    "Ask Noah" and the debate on how a 'Code of Conduct' is forcibly imposed on events



  18. Links 14/6/2019: Xfce-Related Releases, PHP 7.4.0 Alpha

    Links for the day



  19. The EPO is a Patent Troll's Wet Dream

    The makers of software and games in Europe will have to spend a lot of money just keeping patent trolls off their backs — a fact that seems to never bother EPO management because it profits from it



  20. EPO Spreading Patent Extremists' Ideology to the Whole World, Now to South Korea

    The EPO’s footprint around the world's patent systems is an exceptionally dangerous one; The EPO amplifies the most zealous voices of the patents and litigation ‘industry’ while totally ignoring the views and interests of the European public, rendering the EPO an ‘agent of corporate occupation’



  21. Guest Post: Notes on Free Speech, and a Line in the Sand

    We received this anonymous letter and have published it as a follow-up to "Reader's Claim That Rules Similar to the Code of Conduct (CoC) Were 'Imposed' on LibrePlanet and the FSF"



  22. Links 13/6/2019: CERN Dumps Microsoft, GIMP 2.10.12 Released

    Links for the day



  23. Links 12/6/2019: Mesa 19.1.0, KDE neon 5.16, Endless OS 3.6.0 and BackBox Linux 6

    Links for the day



  24. Leaked Financial 'Study' Document Shows EPO Management and Mercer Engaging in an Elaborate “Hoax”

    How the European Patent Office (EPO) lies to its own staff to harm that staff; thankfully, the staff isn't easily fooled and this whole affair will merely obliterate any remnants of "benefit of the doubt" the President thus far enjoyed



  25. Measuring Patent Quality and Employer Quality in Europe

    Comparing the once-famous and respected EPO to today's joke of an office, which grants loads of bogus patents on just about anything including fruit and mathematics



  26. Granting More Fundamentally Wrong Patents Will Mean Reduced Certainty, Not Increased Certainty

    Law firms that are accustomed to making money from low-quality and abstract patents try to overcome barriers by bribing politicians; this will backfire because they show sheer disregard for the patent system's integrity and merely lower the legal certainty associated with granted (by greedy offices) patents



  27. Links 11/6/2019: Wine 4.10, Plasma 5.16

    Links for the day



  28. Chapter 10: Moving Forward -- Getting the Best Results From Open Source With Your Monopoly

    “the gradual shift in public consciousness from their branding towards our own, is the next best thing to owning them outright.”



  29. Chapter 9: Ownership Through Branding -- Change the Names, and Change the World

    The goal for those fighting against Open source, against the true openness (let's call it the yet unexploited opportunities) of Open source, has to be first to figuratively own the Linux brand, then literally own or destroy the brand, then to move the public awareness of the Linux brand to something like Azure, or whatever IBM is going to do with Red Hat.



  30. Links 10/6/2019: VLC 3.0.7, KDE Future Plans

    Links for the day


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