Bonum Certa Men Certa

Alice/35 U.S.C. ۤ 101 and PTAB Are Here to Stay and Even Their Critics (Patent Maximalists) Have Come to Accept That

Capitol building



Summary: Taking stock of the latest PTAB news and rants; the latter has become scarce because efforts to undermine PTAB have all failed

THE recent changes at the USPTO were relatively minor. Guidelines have barely changed, the chief judge of the Patent Trial and Appeal Board (PTAB) is merely swapping seats, and the courts continue to rule pretty consistently on patent matters. There's no real room for profound change and this, in a strange sort of way, is a good thing because Alice/35 U.S.C. ۤ 101, frequently enforced by PTAB, renders a lot of software patents obsolete. The Federal Circuit (CAFC) affirms.



"There's no real room for profound change and this, in a strange sort of way, is a good thing because Alice/35 U.S.C. ۤ 101, frequently enforced by PTAB, renders a lot of software patents obsolete."Over the past week we've been patiently watching new cases and new decisions. We're also still watching events like this one about PTAB; a few months ago there were many anti-PTAB events, but Oil States more or less ended that. PTAB is here to stay and patent maximalists are slowly learning to accept that.

"SCOTUS is instead looking into matters such as damage calculations and litigation venue, along with PTAB itself (two decisions about it earlier this summer)."What about 35 U.S.C. ۤ 101? It hasn't really changed. There are talks about amending guidelines, but nothing substantial has changed and SCOTUS refuses to revisit the matter. SCOTUS is instead looking into matters such as damage calculations and litigation venue, along with PTAB itself (two decisions about it earlier this summer). 3 days ago San Antonio Business Journal wrote an update about the USAA case, wherein the underlying patent claims are currently being disputed. How typical. How depressing to patent maximalists this must be...

Steve Brachmann wrote about BSG Tech LLC v. BuySeasons, Inc. -- a case that we mentioned some days ago because it deals with software patents and Section 101 at a high level. Watchtroll also seems rather befuddled and confused by the fact that CAFC doesn't give a damn about the Berkheimer hype and still throws away/tosses out any such lousy software patents.

"On Wednesday, August 15th," Brachmann wrote, "the Court of Appeals for the Federal Circuit issued a precedential decision in BSG Tech LLC v. BuySeasons, Inc. which upheld a decision by the district court to invalidate patent claims owned by BSG Tech as patent-ineligible under 35 U.S.C. ۤ 101. The Federal Circuit panel of Circuit Judges Jimmie Reyna, Evan Wallach and Todd Hughes found that the district court correctly determined that patent claim asserted by BSG Tech were invalid as abstract ideas lacking any inventive step under the Alice/Mayo framework."

Well, get used to it.

Knobbe Martens (a law firm, not a person) soon wrote about it as well. A bunch of lawyers said this:

Under step one of Alice, the Federal Circuit agreed with the district court that the asserted claims were directed to the abstract idea of considering historical usage information while inputting data. The Federal Circuit found that this was not a method “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of” wide access databases. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014). Further, the Federal Circuit found that the claims were not saved from abstraction merely because they require a specific database structure that is more specific than a generic computer. Also, the Federal Circuit stated that the claims did not recite any improvement to the way in which databases store or organize information.


CAFC on PTAB inter partes reviews (IPRs) has truly transformed the way examiners operate; they think twice before granting software patents and we increasing read reports about rejections. Here's a new CAFC decision regarding IPRs:

The US Court of Appeals for the Federal Circuit yesterday ruled that an inter partes review (IPR) filing is still subject to a time limitation even if a previous patent infringement claim has been dismissed.

In doing so, the Federal Circuit sided with Click-to-Call Technologies (CTC) and overturned a previous decision by the Patent Trial and Appeal Board (PTAB).

According to section 315(b) of 35 USC, an IPR petition cannot be instituted if it is filed more than one year after the petitioner was served with a patent infringement complaint.


A blog post by Dennis Crouch also remarked on this:

In an unusual en banc footnote, the Federal Circuit has ruled that the litigation time-bar found in 35 U.S.C. ۤ 315(b) applies even in cases where the plaintiff-patentee voluntarily dismisses the lawsuit without prejudice. Click-to-Call Tech., LP v. Ingenio, Inc. and Iancu (Fed. Cir. 2018).


"Court says the PTAB was wrong to decide that voluntary dismissal without prejudice of a civil action in which the complaint was served “does not trigger” the one-year time bar under Section 315(b)," Michael Loney wrote.

IPR proceedings will continue unabated and entities such as Unified Patents will file IPRs as they see fit.

Watchtroll posted a new example of it earlier today. "Plano, TX-based patent owner American Vehicular Sciences LLC recently filed a petition for rehearing en banc with the Court of Appeals for the Federal Circuit. The petition relates to its appeal of inter partes review (IPR) proceedings conducted at the Patent Trial and Appeal Board (PTAB), which initiated as the result of a petition filed by Unified Patents," Watchtroll said.

American Vehicular Sciences, as we noted back in June, is part of a Microsoft-connected patent troll. Will it be disarmed?

Certainly we shall see PTAB-bashing in the future, but the frequency of that has greatly diminished. Here's Anticipat on Section 101 and PTAB:

As reported in today’s recap email, in Ex Parte GELFAND et al (Aug. 2, 2018), the Board reversed a lack of utility rejection. This continues a longstanding trend of the Board frequently reversing such rejections.


This is nonsense, there's no such trend. Anticipat is a malicious propaganda site against Section 101 and PTAB, just like Bilski Blog and Watchtroll, IAM etc. There has barely been, at best, a minuscule if not negligible difference and that too can be explained differently.

There are still some PTAB-hostile events on the way; earlier today Patent Docs advertised webinars of the patent microcosm on "PTAB Proceedings on Bio/Pharma Patents", the Intellectual Property Owners Association (IPO) on "Post-Grant Proceedings" and the scavengers from the U.S. Chamber of Commerce (malicious lobby group) lobbying lawmakers on patents:

The U.S. Chamber of Commerce Global Innovation Policy Center (GIPC) and the South Dade Chamber of Commerce and the Glen Ellyn, Lombard, Western DuPage, and Wheaton Chambers of Commerce will host two intellectual property and innovation business roundtables in Florida and Illinois


Being from the Chamber of Commerce, it's obvious whose agenda that will advance.

Patent Docs also advertised more benign webinars such as this, but the site as a whole has been full of PTAB-bashing. Their bias is impossible to hide. Then again, their frustration too has become impossible to hide.

Recent Techrights' Posts

Techrights' Statement on Code of Censorship (CoC) and Kent Overstreet: This Was the Real Purpose of Censorship Agreements All Along
Bombing people is OK (if you sponsor the key organisations), opposing bombings is not (a CoC in a nutshell)
[Meme] The Most Liberal Company
"Insurrection? What insurrection?"
apple.com Traffic Down Over 7%, Says One Spyware Firm; Apple's Liabilities Increased Over 6% to $308,030,000,000
Apple is also about 120 billion dollars in debt
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, November 23, 2024
IRC logs for Saturday, November 23, 2024
[Meme] GAFAMfox
Mozilla Firefox in a state of extreme distress
Google Can Kill Mozilla Any Time It Wants
That gives Google far too much power over its rival... There are already many sites that refuse to work with Firefox or explicitly say Firefox isn't supported
Free (as in Freedom) Software Helps Tackle the Software Liability Issue, It Lets Users Exercise Greater Control Over Programs
Microsofters have been trying to ban or exclude Free software
In the US, Patent Laws Are Up for Sale
This problem is a lot bigger than just patents
ESET Finds Rootkits, Does Not Explain How They Get Installed, Media Says It Means "Previously Unknown Linux Backdoors" (Useful Distraction From CALEA and CALEA2)
FUD watch
Techdirt Loses Its Objectivity in Pursuit of Money
The more concerning aspects are coverage of GAFAM and Microsoft in particular
Links 23/11/2024: Press Sold to Vultures, New LLM Blunders
Links for the day
Links 23/11/2024: "Relationship with Oneself" and Yretek.com is Back
Links for the day
Links 23/11/2024: "Real World" Cracked and UK Online Safety Act is Law
Links for the day
Links 23/11/2024: Celebrating Proprietary Bluesky (False Choice, Same Issues) and Software Patents Squashed
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, November 22, 2024
IRC logs for Friday, November 22, 2024
Gemini Links 23/11/2024: 150 Day Streak in Duolingo and ICBMs
Links for the day
Links 22/11/2024: Dynamic Pricing Practice and Monopoly Abuses
Links for the day
Topics We Lacked Time to Cover
Due to a Microsoft event (an annual malware fest for lobbying and marketing purposes) there was also a lot of Microsoft propaganda
Microsofters Try to Defund the Free Software Foundation (by Attacking Its Founder This Week) and They Tell People to Instead Give Money to Microsoft Front Groups
Microsoft people try to outspend their critics and harass them
[Meme] EPO for the Kids' Future (or Lack of It)
Patents can last two decades and grow with (or catch up with) the kids
EPO Education: Workers Resort to Legal Actions (Many Cases) Against the Administration
At the moment the casualties of EPO corruption include the EPO's own staff
Gemini Links 22/11/2024: ChromeOS, Search Engines, Regular Expressions
Links for the day
This Month is the 11th Month of This Year With Mass Layoffs at Microsoft (So Far It's Happening Every Month This Year, More Announced Hours Ago)
Now they even admit it
Links 22/11/2024: Software Patents Squashed, Russia Starts Using ICBMs
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, November 21, 2024
IRC logs for Thursday, November 21, 2024