Bonum Certa Men Certa

CAFC is Under Attack by the Patent Microcosm, Whose Scrutiny is Starting to Resemble PTAB-Bashing

The Patent Trial and Appeal Board (PTAB) is defended by the Supreme Court (Oil States decision), but will patent extremists manage to scandalise and oust judges in another branch?

Watchtroll



Summary: The Court of Appeals for the Federal Circuit (CAFC) is attacked by patent maximalists whenever it suits them, is occasionally being misrepresented by the patent microcosm and is generally coming under intense scrutiny by the perishing 'industry' of patent parasites and trolls

THE Court of Appeals for the Federal Circuit (CAFC) is the basis/substance of Section 101 caselaw, which the USPTO follows. CAFC, in turn, adopts decisions other than its own, notably those of the Supreme Court, e.g. Alice and Oil States. As we shall show tomorrow, the USPTO is altering a few things in its guidelines, based on CAFC and the Supreme Court; it's nothing radical, but patent maximalists do try to make it sounds profound and revolutionary. They hope to affect the outcome that way.



The Federal Circuit Bar Association (FCBA) is a group of patent maximalists. As per this promotion from earlier today, there's a session coming later this month:

The Federal Circuit Bar Association (FCBA) will be offering a webcast entitled "Last Party Standing: Who Has Standing to Appeal Administrative Decisions to the Federal Circuit?" on May 22, 2018 from 3:00 pm to 4:30 pm (EST).


FCBA being FCBA, it will be speaking for patent maximalists rather than actual patent judges from CAFC. This is expected. We expect nothing else.

In this age of Trump/Trumpism we're seeing many attacks on judges (like their President). The latest attacks on CAFC -- not just on PTAB -- come from cowboy hats-donning self-acclaimed "inventors" (who used terms like "draining the swamp" in relation to USPTO Director Michelle Lee). They spewed this out at Watchtroll 5 days ago. So the site has just attacked CAFC (a high court) yet again. We're sure that the judges at CAFC will be very impressed. This only further alienates them. Watchtroll habitually calls for firing or resignation of judges (CAFC judges included) if they 'dare' say something that patent maximalists do not wish to hear. It's mob mentality. Theodore Chiacchio does the same (4 days ago), albeit more politely. Writing about the decisions of CAFC is OK, but bashing the decisions, the courts and even individual judges is not honourable. It's not illegal, but it's disrespectful and it paints these attorneys/pundits as people who disregard the law except when a decision suits them.

So putting aside these nasty attacks, let's look at what CAFC actually did do. We don't wish to feed/entertain insults or words about them.

First of all, patent lawyers engage in misconduct again. Referred to as "unclean hands", this was covered by Watchtroll and others before it [1, 2]. Ashley M. Winkler (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) wrote that "CAFC Affirms District Court Decision Finding Unclean Hands In Gilead V. Merck" and here's the substance of the argument:

In Gilead Sciences, Inc. v. Merck & Co. Inc., Nos. 16-2302, 16-2615 (Fed. Cir. Apr. 25, 2018), the CAFC affirmed the district court's finding that misconduct attributable to Merck barred it from asserting two patents against Gilead under the unclean hands doctrine. This appeal arose from an action relating to treatments for Hepatitis C, and more particularly Gilead's treatments Solvadi€® and Harvoni€®, which use the compound sofosbuvir. Further discussion of the decision can be found on Finnegan's Federal Circuit IP Blog.


Another CAFC decision was covered by Charles R. Macedo and Jung Hahm, who oddly enough chose Watchtroll as a platform:

The decision on appeal turned on the construction of a term of art, “non-exhaustive search,” in the field of database search algorithms. Below, the Board’s construction was supported by the specification and the Board’s factual findings—based on objective evidence and credibility determinations—on what “non-exhaustive search” means in the field. Applying its construction, the Board confirmed the patentability of most of the claims challenged in the IPRs. On appeal, the Federal Circuit panel reversed the Board’s construction, vacated in part and remanded those IPR decisions with respect to claims using this term of art. Google LLC v. Network-1 Techs., Inc., No. 16-2509, slip op. (Fed. Cir. Mar. 26, 2018) (nonprecedential) (“Opinion”).


Algorithms are abstract as per Section 101 and should thus be unworthy of patents; any patents on these (even if they call the said database/s "blockchain" or whatever) ought to be voided by the court. In this particular case CAFC seems to be even tougher than PTAB. It makes it quite interesting.

Another blog of patent maximalists spoke about the rare situation "[w]hen two decisions are released simultaneously [and] how [one can] treat the precedential value of the cases relative to one another" (like a chronology rule of thumb). The Supreme Court often releases decisions in tandem and it recently released two decisions -- both pertaining to PTAB -- simultaneously. To quote this post, which actually focuses on CAFC:

The tension between the cases in this situation is actually fairly small, but the setup raises an interesting question in my mind. When two decisions are released simultaneously, how should we treat the precedential value of the cases relative to one another? My initial answer is that the cases should be treated as we would a plurality Supreme Court decision.

Veering away from the simultaneous release — would it matter if one were uploaded to PACER (the Docket) a few hours before the other? Under Federal Rules of Appellate Procedure R. 36, “a judgment is entered when it is noted on the docket.” The rules do not, particularly define priority of precedent, and I have not seen any Federal Circuit precedent on-point. Supreme Court becomes precedent immediately upon release. Federal Circuit decisions should seemingly have the same result by Default.


If Justices' decisions (such as Oil States, which we shall cover later) become precedents "immediately upon release," then it must spell trouble to a lot of cases against PTAB, including the publicity stunt which is class action (also to be covered later and separately).

Recent Techrights' Posts

We Are Safe in a Modern "Tech" Society, Right?
People are safer if they control their own computing
The Way Things Are Going, They May Soon Stop Saying "Web Address" and Instead Say "Chrome Address"
The Web isn't built or based around open Web standards anymore. It's centered around user-agent.
Microsoft as a Golden Cage
"I was laid off by Microsoft and can't find a job. I'm weeks away from giving up my apartment and moving across the country to live with family."
Weekend Discussion About How IBM's Bluewashing of Red Hat Will Cause "Enshittification" for Users
"I worked at a software company that was acquired by IBM so I knew it was game over for RedHat the day they were acquired"
Brett Wilson LLP Getting Sued by Its Very Own Clients, a Legal Story That Has Made the Mainstream News (Law360)
Law360 or Law.com are about as mainstream as one can get in that "sector" (litigation 'industry')
Lucas Nussbaum & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
 
The Same People Who Attacked Richard Stallman (RMS) Are Attacking Daniel Pocock to Discourage People From Listening to His Information
Pocock is being demonised for the same reasons and by the same people who attack RMS
Your Typical Anti-Richard Stallman (RMS) Cancellist
"About the RMS cancellation"
Richard Stallman (RMS) Has Announced His Talk in Rome Less Than 20 Hours in Advance (and on a Sunday)
Why did he wait until the night before?
GNU Tools Cauldron Event in Portugal: Videos Now Available via Invidious
Go have a look
Slopwatch: GNU/Linux Sites That Became Slopfarms and Spamfarms
The Web is a mess and "Linux" or "Ubuntu" sites became part of the problem
Richard Stallman's Talk 25 Hours Away, Aula Magna Palazzo del Rettorato (CU001), Sapienza Università di Roma (Piazzale Aldo Moro, 5)
The talk is 25 hours away and we see some QR code for it
Gemini Links 12/10/2025: Watches, the Depression of 2026, Gamboling with Odds
Links for the day
Links 12/10/2025: 'False' DMCA Claims and Slop Facing Perils Again (the Hype Wears Off)
Links for the day
Microsoft Has Just Lost Privacy Case in Austria and Its Latest Moves Make a Complete Ban Seem Imperative
Microsoft is not a software company, it's a spying agency that uses software to collect data
The Register MS: Microsoft is the Security Expert, Not the Prime Culprit, So Buy More Microsoft
This front page feature is devoid of any actual substance, it's just Microsoft copypasta
Paris 'Love Nest' & Debian Outreachy: from Lycée Lakanal to ENS Cachan, Cr@ns, nepotism
Reprinted with permission from Daniel Pocock
Stefano Zacchiroli (Zack) & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Gemini Links 12/10/2025: "Palm Computering", Further Exploration of Slide Rules, and Key Takeaways from The Well-Grounded Rubyist
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, October 11, 2025
IRC logs for Saturday, October 11, 2025
Tomorrow: Founder of the Free Software Foundation and of GNU/Linux, Richard Stallman, Speaks in Roma (Rome), Italy at 4PM
GNU/Linux is more important than ever in this dystopian world
Microsoft and Apple Are Rare Topics in Geminispace
in Geminispace it's rather safe to assume everyone is into BSD, GNU/Linux, and sometimes retro
Qualcomm and Manchester United Appear to Have Dumped Microsoft (Qualcomm Now Invests More in Linux, Apparently)
It's a relief to no longer see Microsoft logos and brands on a local football club's gear (I'm not a Manchester United fan, but not a foe either)
As Guest of Honour in Rome, Founder of the Free Software Foundation to Speak ("Distinguished Lecture") After Introduction by Leonardo Querzoni
Happy hacking...
All Things Open is Proprietary
The OSI has become a front group of proprietary software openwashers, led and sponsored by proprietary giants
When Microsoft Lays Off Lots of Workers They Say It "Invests in AI" (a Lie), Now It's "Reshuffles" or "Microsoft Tightens"
Microsoft "news" by bots
"I saw Richard Stallman give a talk in the mid 80s, which began my fear and loathing of software patents" and "Richard Stallman was always right."
"By betraying the legacy of our ancestors, we’ve set ourselves on a path toward self-destruction — moral, intellectual, economic, and ultimately biological."
There Were Several Waves of Microsoft Shanghai Layoffs in 2025, Western Media Continues to Turn a Blind Eye to Chinese Layoffs of an Epic Scale
Sometimes select Taiwanese news sites (published in English) or automated translations are all we have
Brett Wilson LLP Spreads Trumpism to the United Kingdom, Looking to Profit From 'Legal Colonialism' (Overriding Sovereignty)
There's growing recognition of this conundrum worldwide
The Demise of Shopping in Person
In a world like this, how valued is the customer?
This Past Friday, "Nearly 700 People Came to Listen to RMS!" (Richard Stallman)
"Nearly 700 people came to listen to RMS!"
Distinguished Lecture by Richard Stallman This Coming Monday in Rome
After "Free software, Crucial for Freedom in a Digital World"
Slopwatch: UbuntuPIT Churning Out Plagiarism and the Slopfarm LinuxSecurity Turns to Pseudonyms
Our hunch is, UbuntuPIT will sooner or later realise that this toxic approach is just harming UbuntuPIT and tainting the reputation of past articles
The Lawsuit by Clients of Brett Wilson LLP Against Brett Wilson LLP is Officially On, It is Progressing, The 'Experts' Pick Outside Law Firms (RPC and Mills & Reeve) to Spare Them From Litigants in Person
So it is probably quite potent
Gemini Links 11/10/2025: Nyctography, Gerrymandering, and Lurking
Links for the day
The 'Culture Wars' in Free Software Have Gone Out of Control
Social control media amplifies such utterly infantile discourse
Teaser: To Compensate for the Fact Our Clients Are Terrible Human Beings Who Strangle Women (While on Microsoft's Payroll) and We Get Paid by Mystery Parties We Bombard You and Your Wife With Almost 10 Kilograms of Legal Papers
If you can't win an argument, then drown the other side with papers?
Links 11/10/2025: World Mental Health Day 2025, Another European Legal Defeat for Microsoft 360
Links for the day
MIT Technology Review is Part-Time SPAMfarm of Billionaires and Mega-Corporations
Does MIT operate its own "b2b" SPAMfarm?
Open Source Initiative Executive Director Leaves, Replacement Sought by Monopolists, Not the Community or OSI Members
Serves to show who runs this show...
Links 11/10/2025: China-US Tensions Grow Again, "Hey Hi" More Widely Recognised as Bubble Made of Capital That Doesn't Exist
Links for the day
Now Confirmed in Western Media: Microsoft Azure Layoffs This Month
Affirmed by more sources moments ago
Peter O'Callaghan QC represented grandparents, Westernport Hotel, at Liquor Royal Commission
Reprinted with permission from Daniel Pocock
Either The Register MS Divests From FOSS Coverage or Liam Proven is on Long Holiday
Publishers perish when their audience loses trust in them
Microsoft Cancelling Another Datacentre is a Sign of Financial Trouble and Lack of Growth
The debt continues to grow
Gemini Links 11/10/2025: An Evening at the Fair and Fast Fourier Friday
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 10, 2025
IRC logs for Friday, October 10, 2025
Geminispace is Very Large
The word continues to spread and the number of participants grows
Another Wave of Microsoft Layoffs, This Time During National Day Holiday
This time it's China again
10 Out of 10: RMS Attracts Massive Audience in Göteborg, Sweden (All Seats Occupied, Some People Standing)
a 55-second clip of his talk
Staying Happy in Times of Crackdowns on Civil Society
Optimism in this sort of "new reality" or "new normal" seems like something for the irrational person
"Nobel" Exploited Posthumously for "AI" Hype, Now They Do the Same With "Quantum"
ere have been many jokes about "Nobel" for peace (often granted to pro-war people) and a fake one for "Economics" (establishment propaganda)
Slopwatch: Plagiarism and "Linux" Articles by Bots
Sites that do this won't survive; many of them rely on slop services (suppliers) that will cease to exist after the bubble bursts
Links 10/10/2025: Putin Admits Russia Downed Azerbaijan Airlines Jet, More New Heat Records
Links for the day
Noteworthy Claim That IBM is Firing a Lot of Lawyers This Week (RAs in the Legal Department)
A lot of what they do is patent 'trolling' or lawyering up against their own staff (e.g. HR disputes)
Links 10/10/2025: US Judge Bars Attacks by ICE On Journalists and Protesters; “We Took The Freedom of Speech Away” Says the President
Links for the day
Slopwatch: Serial Sloppers, Google News Gifting Slopfarms, and Fake News/Plagiarism About "Linux"
Google itself is a slop pusher these days
Qualcomm, the New Owner of Arduino, Blasted for Its Software Patents Tax on 'Smartphones'
A lot of Qualcomm's patents are on software. We wrote about this in prior years.
XBox Layoffs Rumours, Downtime, and Criticism From XBox Co-Founder
"everyone is ditching the xbox."
Links 10/10/2025: Honoring The Legacy Of Robert Murray-Smith, Many Articles on the Hey Hi (AI) Bubble
Links for the day
Gemini Links 09/10/2025: October Gothic and Reading Middle Earth Role Playing; C and Ada
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 09, 2025
IRC logs for Thursday, October 09, 2025