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

The "Alicante Mafia" - Part XIII - Is EPO Vice-President Steve Rowan in Cahoots With the "Alicante Mafia"?
that deserves much media attention, political intervention, and condemnation
“Wikilaundering” Explained
"London PR firm rewrites Wikipedia for governments and billionaires"
Some Slopfarms and Some Real News Sites Cover Richard Stallman’s (RMS) Talk
If his message about Software Freedom spreads, then we're all better off
 
Links 27/01/2026: Japan-China Feud Escalates Again, "Iran's Internet Blackout Persists"
Links for the day
Online 'Gathering' Held Today to Organise Industrial Actions in EPO, Strikes Will be Starting Shortly
"Online Extraordinary General Meeting on Action Plan"
It's Not About What You Know, It's About Who You Know (and Stay Quiet About the Cocaine)
This is not an organisation that exists to ensure laws are followed
FOSDEM 2026: democracy panel: FSFE uses women as stooges, gerrymander
Reprinted with permission from Daniel Pocock
Must Use Proprietary JavaScript to Submit Feedback to the European Commission About Moving From GAFAM to Free Software
Nevertheless, go tell them why Software Freedom would benefit Europe's defence and economy
Distortion of the Facts About Mass Layoffs at IBM
more layoffs are ahead
Gemini Links 27/01/2026: "Waiting Isn't a Waste", Posting from Lynx, and Bookmarks
Links for the day
Links 27/01/2026: "Oracle Debt and TikTok Transition Troubles Vex the Ellison Media Empire", Richard Stallman Quoted on Copyrights
Links for the day
Steven Field (Red Hat) Speaks of "Recent Layoff" (RA/Wave) in Red Hat
IBM really doesn't like it when people talk about "RAs"
A Week Ago We Contacted the EPO's Stephen (Steve) Rowan About Cocainegate
Tomorrow we'll write some more about Rowan
IBM Reports 'Results' Tomorrow, Expect More "RAs" (Mass Layoffs)
they use words like "efficiency", "optimisation", "AI", "pivot", "modernisation" and so on
Earlier This Month Microsoft Lunduke Said in Public It Was Good That Renee Good Was Murdered, Now He Mocks or Demonises People for Saying the US is Unsafe
Don't be easily conned by demagogues
Google News and "Linux" Slop
Why won't Google be interested in tackling this issue? Instead Google has been trying to participate in this issue.
IBM Kills Red Hat in the Darkness
What IBM does to Red Hat is malicious
IBM Red Hat's Goal Is Not Real Security (It Probably Never Was)
Spies and trolls are very malicious people and sometimes they're the same thing
With Absurd Lies About Slop, Which Lacks Intelligence or Financial Potential, GAFAM and IBM Will Twist Mass Layoffs as 'Efficiency Drive' or 'AI Pivot'
More layoffs are on the way
Animal Advocacy Works
All it takes is effort and determination
EPO Strike This Week
What has happened to Europe?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, January 26, 2026
IRC logs for Monday, January 26, 2026
For the EPO to Survive, António Campinos and the "Alicante Mafia" Must Fall on Their Sword
There are EPO insiders who are convinced Campinos too is (or was) a cocaine addict
Gemini Links 26/01/2026: Pocket Power Pack, Batteries, and Breaks
Links for the day
"Microsoft Vista 11 Emergency Update" as Windows Fails to Boot (Again)
Microsoft is desperately trying to find some new business model as the debt soars
4 Hours Ago The Register MS Published Paid-for Spam About "AI" (Slop, Buzzwords)
"AI" mentioned 13 times in the page
IBM 'Results' Due Wednesday Evening, Expect Clues About Mass Layoffs
Don't expect IBM to say anything about "layoffs" or "RAs"
The Fall of the EPO (or the "Alicante Mafia" at EPO) Will be Due to This Reckless Lawyer Who Does Cocaine in Public While Speaking for the EPO
The longer European politicians (and media) turn a blind eye to this corruption, the worse it'll get
Why RMS is Scary to GAFAM 'Engineers' and the GAFAM Apologists (or Addicts)
especially because of his ideas and his way of life
Firefox 'Market Share' Down to All-Time Low in 2026, Adding to It User-Hostile 'Features' Only Worsens Things
What is the goal of Mozilla at this point?
Links 26/01/2026: Windows Back Doors, American Winter Storm, and Report Says Iran's "Protest Death Toll May Exceed 30,000"
Links for the day
Life Got Simpler and Therefore Also Healthier and Happier
Some people envy not wealth but happiness (which they're unable to attain, even with hoarding and accumulation)
Richard Stallman's Experiences With 'Cancel Brigades' Ought to Educate Linus Torvalds
Now they talk about "if Linus dies" scenarios
Links 26/01/2026: Financial Stress in German Farms and Germany Wants to Take Its Gold Reserves Out of the US
Links for the day
Gemini Links 26/01/2026: "Lack of Meaningful Things" and Getting Back to Programming
Links for the day
Strong Correlation Between the Slop Ponzi Scheme (or Bubble) and Major Disasters
BitCoin ruins the planet; so does slop
We Will Never Allow the "Alicante Mafia" to Hide "Cocainegate"
transparency typically scares malicious actors
Fewer Involuntary Interruptions This Year
This year we're doing much better
Prisons Are for Dangerous People Who Pose a Threat to the Public, Not People Who Inform the Public
At the end of the week EPO workers go on strike
Microsoft Loses Grip on Indian Ocean
Many countries, including in older allies of the US (such as Canada and the US), look for ways to get out of Microsoft dependence urgently
XBox Consoles Nearly Dead by Now, the 'XBox' (ex-Box) Brand Now Stands for Something Full of Slop, Spam, Filler, and Chaff
We're seeing the last day (maybe year) of "XBox"
The Great "AI" CON Explained by Dr. Andy Farnell
LLMs are basically advertisers of sorts
Links 26/01/2026: "Journalists Detained", in Germany "Unjustly Jailed Man Gets €1.3 Million Compensation"
Links for the day
Red Hat Quietly Going Extinct After Bluewashing in 2026
At this point it would be rather foolish to assume that IBM will let Red Hat just "do its own thing" or maintain its corporate culture, identity, projects etc.
The "Alicante Mafia" - Part XII - Kris De Neef and Roberta Romano-Götsch, Who Stepped in for the Cokehead, Have No Comment on His Cocaine Usage (and the EPO's Cover-up)
Sh-t floats to the top.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, January 25, 2026
IRC logs for Sunday, January 25, 2026
Gemini Links 26/01/2026: Cold Perception, Software Patches in NixOS, and Sunk Cost Fallacy
Links for the day
Fake IBM Retirements (IBM Gives Older Workers Ultimatums, Deadlines, and Carrots on Sticks)
As they point out, IBM is desperate to lower costs
Linuxiac is Basically a Fake News Site, But It's Being Fed by Google News
Because Google News is run by Google, a slop pusher
Links 25/01/2026: Slop "Tribalism", Nike Apparently Cracked
Links for the day
Claims That PIPs Are Abused for Silent Mass Layoffs at IBM (Without Severance) or Forced Retirements
Performance Improvement Plans (PIPs) "clearly bogus as everyone on my team who has been on one has been fired"
WebM Version of Richard Stallman's Latest Talk (Georgia Tech Talk)
The file size is smaller
After Half a Decade Vista 11 is Still a Giant Failure
Don't expect Microsoft to gain a foothold
Details on IBM Layoffs in the EU Last Week, Same Allegedly Coming to the US Shortly
"Around 50 people affected in Belgium."
Technology Trends Driven by DRM Giants, Planned Obsolescence, Not the Needs of the Buyers
The "pushers" think of customers as "users"; and they encourage passivity, Stockholm Syndrome
Links 25/01/2026: Microsoft BitLocker Backdoored for Decades Already, Microsoft-Backed ICE Still Murders Civilians
Links for the day
Gemini Links 25/01/2026: "Expert in a Dying Field" and Global Commands
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, January 24, 2026
IRC logs for Saturday, January 24, 2026
After the Slop Bubble
At the end, looking back, we'll all generally understand that the net effort of slop was environmental destruction
IBM CEO Says IBM is Just Reliant on Buzzwords That Are Overhyped
IBM has nothing to show anymore and telling fairytales to shareholders is a temporary 'fix'
The "Alicante Mafia" - Part XI - No Comment From Steve Rowan, Niloofar Simon, and Christoph Ernst About Cocaine Inside EPO
What kind of patent office is this?