Bonum Certa Men Certa

Supreme Court and Federal Circuit Precedents Might Make District Courts (Outside Texas) More Sceptical of Patents

Related: US Patent Trolls Are Leaving and the Eastern District of Texas Sees Patent Cases Falling by More Than Half

Some poker cards



Summary: As patent lawsuits scatter around the United States (not as concentrated around Texas anymore) there's a real chance of turnaround in terms of outcomes; we look at some recent cases

IN our previous post about the Federal Circuit (CAFC) we said that it had come under attacks from patent maximalists -- similar to attacks on the Patent Trial and Appeal Board (PTAB) and inter partes reviews (IPRs). Basically, everything which leads to higher patent quality is seen as "evil". The USPTO certainly doesn't mind granting as many patents as possible (the same is true for EPO management, which judges itself based on the wrong yardsticks as though it's a factory).



"Litigation should always be the last resort and if the underlying patents are found to be invalid (or the lawsuit lacking merit), then it is frivolous. "What we didn't notice before was the involvement of Chief Judge Sharon Prost in the aforementioned CAFC case, which was covered a week prior by Steve Brachmann. Boston University becomes precedence. To quote: "On Wednesday, July 25th, the Court of Appeals for the Federal Circuit issued a precedential opinion in Trustees of Boston University v. Everlight Electronics Co., reversing a lower court’s denial of a motion for judgment as a matter of law (JMOL) that challenged the validity of the asserted patent. The Federal Circuit panel of Chief Judge Sharon Prost and Circuit Judges Kimberly Moore and Jimmie Reyna found that the asserted claim targeted in the JMOL motion wasn’t enabled as a matter of law."

Boston University has a tradition of patent aggression. What about Boston Scientific Corporation, which was brought up last week in relation to Nevro Corp. v Boston Scientific Corporation et al?

As Docket Navigator put it: "The court granted defendant's motion for summary judgment that it did not infringe plaintiff's chronic pain treatment patents because the post-trial use of the accused systems fell within the safe harbor provision of 35 U.S.C. ۤ 271(e)."

There have been quite a few patent trolls and complaints about them in Massachusetts lately (Boston is in Massachusetts); a giant law firm focused on the District of Massachusetts some days ago, having chosen to push out its wrap-up into lawyers' sites [1, 2].

Litigation should always be the last resort and if the underlying patents are found to be invalid (or the lawsuit lacking merit), then it is frivolous. Such is the danger of patent maximalism. Generally speaking, do they need patents on everything? How about this new article about a "US patent on 3D printing mashed potato" (still under examination)? To quote:

A team of Chinese researchers has recently applied for a US patent on 3D printing mashed potato. This application builds on an earlier Chinese patent for 3D printing mashed potatoes. The Jiangnan University team has a wide array of patients between them from the improvement of vegetable paper, to improve the flavor of mushroom paste, to unlocking systems for screen doors, backlight displays, and software testing systems. These three inventors Min Zhang Zhenbin Liu and Chaohui Yang have indeed been very busy one has nine patents for 2018 alone. The 3D printing potato patent goes on to reference a number of other patents that 3D print candy or face masks. Specifically, this patent notes that one adds pectin or xanthan gum to a mashed potato mixture and then you add chocolate.


Notice that China -- being China (SIPO) -- already granted such a ridiculous patent. A win for patent maximalism, that's for sure.

Managing IP, a patent maximalism platform, is meanwhile amplifying patent trolls, speaking to the plaintiff in the Apple case (same for IBM) rather than the defendant. Because this is what this site stands for...

From the summary:

WiLAN got “every penny we asked for,” WiLAN counsel Mike McKool tells Managing IP, “because we were reasonable.” By estimating damages too low, Apple may have poisoned its case

A Southern District of California jury awarded Canadian IP licensing company WiLAN $145.1 million in damages for Apple’s infringement of two of its patents relating to voice-over LTE wireless communication technology on August 1.


The real danger here is that WiLAN, a patent troll, will use the money (if received) to pursue companies less wealthy and aggressive than Apple. Apple's patent on virtual keyboards, as mentioned the other day (it's still being promoted as recently as yesterday, e.g. in "Apple won't make a touchscreen MacBook, but a virtual keyboard might be coming"), is likely a software/abstract patent.

Docket Navigator also covered Global Tubing LLC v Tenaris Coiled Tubes LLC et al last week. To quote the summary:

The court denied defendant's motion to dismiss plaintiff's declaratory judgment claim for lack of an actual case or controversy.


There are signs of litigation in the District of Kansas, but Texas isn't dominant anymore. TC Heartland has changed a lot of things.

Suing in improper districts over patents, knowing that most courts would reject patents on software, isn't unusual. Now in Nevada, for example, there's this dispute (Voip-Pal.com, Inc. v Twitter, Inc.):

The court granted defendant's motion to transfer for improper venue and rejected plaintiff's argument that In re Cray’s three-part definition for "regular and established place of business" should not apply to web-based businesses.


And the ruling said (quoted by Docket Navigator): "These facts demonstrate that Defendant [Twitter] maintains no place of business in Nevada, much less one that is both regular and established."

Over the weekend we showed how Google's reliance on a third party with operations in Texas made it incapable of leaving Texas, in spite of TC Heartland.

Last but not least, Docket Navigator wrote about Bayer Healthcare Pharmaceuticals Inc. v Biogen Idec Inc.

The new 'daddy' of Monsanto (Bayer) is suing rivals, using patents of questionable validity, not too shockingly in the home state of Monsanto where many chemicals are being made, causing infamous pollution levels. "The court denied plaintiff's motion for summary judgment," it said, "that defendant was not entitled to lost profits damages for infringement of its interferon therapy patent on the ground that only defendant's subsidiary sold treatments in the U.S."

This case -- like many others -- isn't about patent scope, but it's worth noting that district court cases are all over the place, more so after TC Heartland. Will that make district courts statistically similar to CAFC? Time will tell...

Recent Techrights' Posts

News Calm Now (July 4th), Time for Microsoft to Unearth First Batch of Mass Layoffs for July? (According to Microsoft's Media Operative, Tom Warren)
many links
All-Time High for GNU/Linux Today: 4.1% on the Desktops/Laptops (Not Including Chromebooks)
If it stays this high for weeks to come, it'll signal real and measurable progress
 
Links 05/07/2024: Personal Stories and Software Commentary
Links for the day
Links 04/07/2024: How the Ultra-Wealthy Think About Money, Labour Seems Set to Win UK by Landslide
Links for the day
Whistleblowers from Open Labs Hackerspace, Albania in GNOME, Wikimedia, OpenStreetMap & Debian
Reprinted with permission from Daniel Pocock
Links 04/07/2024: Update on Gershkovich and Verizon to Pay $847M For Infringing 5G and Hotspot Patents
Links for the day
Gemini Links 04/07/2024: Humanity and Port Knocking
Links for the day
Estimate: About 1,000 Microsoft Employees Laid Off (Azure Included, Again) for Independence Day and It's Not Over
It seems like a low blow for Microsoft to sack so many people during a national holiday
Trial by IRC, judgments, Edward Brocklesby, Norbert Preining & Debian expelled due process
Reprinted with permission from Daniel Pocock
NixOS commits a "purge" of "Nazi" contributors, forces abdication of founder
First, a little background to set the stage for this wild tale...
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 03, 2024
IRC logs for Wednesday, July 03, 2024
They Are So Afraid of Debian Developer Daniel Pocock Because of What He is Showing About Debian (Also: Ad Hominem is Invalid Defence or Rebuttal to the Evidence He Showed)
Nothing at all more important for a new DPL to speak about?
GNU/Linux Growing Towards 6% "Market Share" in Bosnia And Herzegovina
Vista 11 has been one of Microsoft's biggest failures in operating systems
13 Birthdays
And new photo of Assange
[Meme] WikiLeaps
old timers
‘This is the Criminalisation of Journalism’ — Julian Assange’s Counsel Jennifer Robinson
It's even worse than she put it
In Belarus, Like in Russia, Hardly Anyone Installs or Keeps Vista 11 (and GNU/Linux Doubled This Summer)
only about 1 in 8 Belarusian Windows users are using Vista 11
The Father John Shipton: The Goal of The US Government Was to Bankrupt WikiLeaks, Julian Assange, and His Family
"superpower in its attempt to destroy an Australian citizen."
Links 03/07/2024: Holiday, Censorship in Social Control Media Debates, and Stellantis Has Mass Layoffs
Links for the day
[Meme] Mass Layoffs at Microsoft Again
Now you work here... now YOU DON'T!
Birthday Gift for Assange and Encouragement for Him to Carry on With WikiLeaks
When it comes to financing WikiLeaks, it looks like less of a barrier at this point
GNU/Linux Seen as Sharply Rising in Bahrain, Windows Down to All-Time Low
Let's see if these figures can hold up till the end of this year
Another Day, More Slop/Spam From Brittany Day, This Time About Linux Mint 22 'Wilma'
'Creative' plagiarism automated by chatbots
Links 03/07/2024: "Microsoft Is Consolidating Its Retail Channels in Mainland China" and "Microsoft CEO of AI Says It's Fine to Steal Anything on the Open Web"
Links for the day
The Share of Microsoft's Vista 11 is Going Down This Year in China
Twilight for Microsoft
The Media May Never Recover (Major Divestments in the Public's Right to Know)
We shall be writing about press etc. and we'll explain the direction of the Web - albeit this topic is only indirectly related to Free software
Things to be Pleased About
Maybe GNU/Linux can exceed 5% by year's end or even reach 10% if one counts Chromebooks
statCounter Measures GNU/Linux at 12% in Sudan
strong adoption of GNU/Linux amid war
FSFE Copies the FSF, It Also Copies Techrights
Just copying a term that Techrights coined around 2007
GNU/Linux in Denmark: From Under 1% to 8%
this month
[Meme] Publishing as "allegedly breaching national security law."
China under CPC and HK under CPC is a sign of what may come next to the West
Killing the Public's Right to Know in Five Simple Steps
Julian Assange: Did I tell you about the time they forced me to plead guilty for 'conspiring' to expose war crimes?
Links 03/07/2024: Rubik Cube Turns 50, History Of Perpetual Motion, and Censorship in Social Control Media
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 02, 2024
IRC logs for Tuesday, July 02, 2024
Happy Birthday (With the Family)
So far they've managed to dodge or to avoid the tabloids
IBM's "DEI" Means Proprietary Software
Fedora Week of Diversity 2024, as we noted here last week, was just some niche event (online PR stunt)
Techrights Thanks Readers for the Support
People sacrifice a lot to inform and emancipate other people
About Half of Web Requests in Republic Of Korea Come From Android, It Used to be Over 99% Windows (2010)
The important thing is the trend
Matt Campbell's LibrePlanet Talk on AccessKit (Making Free/Libre Software Accessible to Disabled People)
"This talk will cover what we've accomplished so far, what's next, and how the community can help."
It's Time to Say Goodbye to Microsoft and Bill Gates
Nobody elected Bill Gates and why would Sunak wish to associate with an enabler of Jeffrey Epstein?
Adam Monsen on Steadfast Self-hosting
"Both the book and talk are about self-hosting free software, were created with free software, and are free software themselves."