Bonum Certa Men Certa

Months After Oil States the Patent Maximalists Are Still Desperate to Crush PTAB in the Courts, Not Just in Congress and the Office

Patent Lawyers' Tears



Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) improve patent quality and are therefore a threat to those who profit from spurious feuding and litigation; they try anything they can to turn things around

THE new U.S. Patent and Trademark Office's (USPTO) Director is no friend of PTAB, unlike his predecessor. The Congress, as we noted some hours ago, is being approached by those looking to undermine PTAB. 35 U.S.C. €§ 101 has a lot to do with it, sometimes because of drug companies.



"There's an attempt there to make life harder for filers, reducing the overall number of IPRs."If the patent 'industry' cannot get PTAB and the Federal Circuit on its side, then it typically resorts to attacking both. Not a clever strategy...

Days ago we saw RPX's press release titled "RPX Corporation Completes Transaction with Realtime Data" [1, 2]. The patent maximalist Matthew Bultman (Law360) then recalled a case which patent maximalists hoped would help friction, eroding access to PTAB and degrading productivity. To quote:

Defensive patent group RPX Corp. is asking the full Federal Circuit to reconsider a ruling that instructed the Patent Trial and Appeal Board to use a broader test when looking for unnamed beneficiaries in patent reviews, warning the ruling has “massive implications.”

RPX filed a petition for en banc rehearing on Friday, nearly two months after a three-judge panel ordered the PTAB to reconsider whether Salesforce.com Inc. should have been named an interested party in inter partes reviews that RPX requested in 2015 challenging two regulatory...


This would have implications for Unified Patents as well. There's an attempt there to make life harder for filers, reducing the overall number of IPRs. That's what SAS proponents sought to accomplish while 'hiding' the decision on Oil States a few months ago. SCOTUS still stubbornly defends PTAB. SAS was no exception to this; it was just something for the USPTO to exploit (Iancu in particular) if the goal is to slow down PTAB, if not by fee hikes and 'decapitation' then additional workload per IPR.

"Such a mindset is a dangerous mindset and surrogate of institutional corruption."Recently we saw the Smartflash petition being promoted by sites like Patently-O. A petition to SCOTUS isn't so extraordinary a thing; not many are successful, but the patent maximalists view this one as a threat to PTAB, so obviously Watchtroll has just promoted it as well, preceded by the usual propaganda:

In early August, patent owner Smartflash filed a petition for a writ of certiorari with the U.S. Supreme Court to appeal a case stemming from covered business method (CBM) review proceedings carried out at the Patent Trial and Appeal Board (PTAB). Smartflash is asking the Supreme Court to decide whether PTAB administrative patent judges (APJs) are principal officers of the United States who are subject to the terms of the Appointment Clause, whether CBM review of patents disclosed prior to passage of the America Invents Act (AIA) violates the Fifth Amendment’s Due Process Clause, and whether undisputed evidence that an invention is not unduly preemptive is relevant to answer questions of patent eligibility under 35 U.S.C. €§ 101.

At issue in this petition are a total of 30 CBM reviews petitioned by Apple, Samsung and Google against Smartflash, which were instituted by APJ panels at the PTAB. Although the APJ panels in these cases found that petitioners did not establish a likelihood that Smartflash’s patent claims were invalid under on 35 U.S.C. €§ 102 grounds for novelty or 35 U.S.C. €§ 103 grounds for obviousness, they did find a likelihood that the patent claims were invalid on Section 101 grounds for being directed to patent-ineligible subject matter. In the CBM reviews, the PTAB panels applied the two-part Alice test to determine first that the claims were directed to the abstract idea of conditioning and controlling access to content based upon payment, and then second that the additional elements of the claims did not contain an inventive step, thus rendering the claims invalid under Section 101. Smartflash appealed the PTAB’s final written decisions and the Federal Circuit issued a Rule 36 affirmance upholding the PTAB’s decisions without an opinion.


These "decisions without an opinion" aren't so unusual and less than a day ago we wrote about Patently-O's long-going lobby on the matter.

At the moment we generally see the patent maximalists working hard to shut down or at least weaken PTAB at the legislative, judicial, and executive levels. They also hope that Iancu, a Trump appointee from the patent microcosm (Trump had paid his firm), will simply disregard courts' decisions. Such a mindset is a dangerous mindset and surrogate of institutional corruption. ⬆

Recent Techrights' Posts

In Reporting, Timing is Everything
If you keep calling people "paedophiles" when you yourself are connected to paedophiles (or are a paedophile), you're attracting a lot of unwanted attention to yourself
Links 25/10/2026: TMZ Revisits Epstein's Connections to Bill Epsteingate, "Italy Hit by New Cost of Living Protests"
Links for the day
Intercontinental Brigading - Part XIV - Six Years of Learning Irish, But the Real Issue Was Microsoft-controlled 'Secure' (Restricted) Boot
Had I not opposed back doors in Linux, not of this would come about
 
Intercontinental Brigading - Part XV - Annualised Consequences for Opposing Microsoft Back Doors in Linux Since 2012
a roundup of what we got from GGG
Links 25/10/2026: Microsoft Layoffs and Cuts, Luiz Inácio Lula da Silva Wins Election
Links for the day
Gemini Links 26/10/2026: Brazilian Politics and Leaving Bear Blog
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 25, 2026
IRC logs for Sunday, October 25, 2026
Another Form of Microsoft Silent Layoffs: Workers That 'Expire'
When the media becomes a lapdog, not a watchdog, false narratives gain traction
Carte Blanche for GPL Violations 4 Days Ago (by Torvalds)
Slop disclosure is no longer required for the Linux Kernel
There Are No Women That Are Kernel Developers Sent by Corporations Which Claim to Champion Diversity
As noted the other day
Sites with "Linux" in Their Name Cannot Slop and Retain Readers
if they write about "linux "(or "Linux") using LLMs they will be caught, then shunned
At Microsoft, the Silent Layoffs Impact Executives Also
Microsoft hid the real story of Helen Chiang
Linus Torvalds Defected to Enshittification
Linus Torvalds is betraying a generation of high(er) standards
Microsoft’s Spin About Mass Layoffs and Shutdowns: They "Never Should Have Existed"
Microsoft-sponsored spin
It's Slop
Maybe we'll exclude It's Slop from our curation. It's a Linux Foundation outpost of sorts, an apologist of sloppy code and plagiarism.
Gemini Links 25/10/2026: Moana (2026) and OpenBSD Updates
Links for the day
The Netherlands Fast to Adopt GNU/Linux, "Market Share" Rises to Two-Digit Value (on Desktops/Laptops)
It peaked at around 20% yesterday
DST Still Needs to Get Abolished
Get rid of DST, efficiency will improve and systems will become more reliable
PHP2Shell as Paid-for FUD Campaign (Intended to Help Sell Slop and Fake "Market Value" of Slop Pushers)
PHP2Shell considered overhyped [...] Remember all the paid-for hype regarding Mythos? What happened to all that?
Microsoft Sort of Tried to Sell XBox Piecewise (Offloading Microsoft)
XBox is in a morbid state
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, October 24, 2026
IRC logs for Saturday, October 24, 2026
Gemini Links 24/10/2026: Arch Linux Journey and Amin Bandali's Priorities
Links for the day
Bluewashing as a Form of Silent Layoffs
IBM will continue to shed off loads of workers while its debt climbs
Turning 20 in 2 Weeks and Upcoming Network Maintenance
That ought not interrupt our anniversary
Microsoft Shutdowns Accelerating, More Shutdowns Revealed (Not Connected to Gaming)
Silent layoffs disguised as "voluntary" "exits"
Links 24/10/2026: Microsoft Blackmail and Lingering Unrest in France:
Links for the day
Gemini Links 24/10/2026: From Bendigo to Kerang, Enshittification of Radio and Music in the UK
Links for the day
Red Hat Sinks With the Blue (IBM) Ship
As IBM's debt continues to soar so do the silent layoffs
Linux is Not Controlled by Linus (Torvalds)
Torvalds has become "90% marketing hype"
The "No Pain No Gain" Expectations in Publishing
Sometimes truth hurts; but that does not mean it mustn't be told
Intercontinental Brigading - Part XIII - Censorship by All Means Available in a Continent So Far Away, as 'Secure' (Restricted, Restriction by Microsoft) Boot Has a Crisis of Legitimacy
it's about America controlling sites and computers everywhere
Links 24/10/2026: Oligarchs Already Buy US Elections, GAFAM Front Group "EFF" Speaks of "Vulnerability Apocalypse"
Links for the day
Gemini Links 24/10/2026: Automobile Differential Tire Movement, Samsung Washer Woe, and Slop Scraping
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 23, 2026
IRC logs for Friday, October 23, 2026