Bonum Certa Men Certa

Lack of Patent Quality Means Lack of Patent Validity and Lack of Legal Certainty

Why Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) actually help improve justice, whereas embargoes based on bogus patents are a grave injustice

Not sure about the quality
"Not sure about the quality"



Summary: 35 U.S.C. €§ 101 at the U.S. Patent and Trademark Office (USPTO) -- like the European Patent Convention (EPC) on the Grant of European Patents -- stresses patent quality and scope; will patent offices get things right before it's too late or too expensive to undo?

THE USPTO is supposed to have narrowed patent scope, owing for the most part to court rulings at higher levels. But has much really changed? At the Office rather than court? Well, the USPTO continues to grant a very high number of patents.



Over at Lexology, Maria Reilly (AWA) wrote the usual nonsense a few days ago, conflating patents with innovation. China grants notorious patents, which can barely be understood by outsiders because of the language. Recent reports suggest that some patents are so bad that renewals fees aren't even being paid to maintain these.

"Recent reports suggest that some patents are so bad that renewals fees aren't even being paid to maintain these."Imagine what would happen if anyone could open a patent office at home. Just certify that office of John or Jane (or give them accreditation from WIPO or whatever). One could write a computer program or a script to just grant a billion computer-generated patents per minute and call that "innovation" (by virtue of these patents' existence, no matter their merit or lack thereof). I am not against patents and certainly not against these offices; like many examiners I am for patent quality, which is another thing altogether. If we grant a monopoly on any conceivable thing (10 million things in the US and about a million things per year in China) we reward crap, not innovation. Days ago the Pittsburgh Post-Gazette published an article titled "His customers wanted a new sound for their electric guitars, so he patented one" (so we can assume patents on sounds are also a 'thing' now).

Windows Central, a pro-Microsoft site, wrote about a new Microsoft patent. There's plenty of prior art all over this one, but Microsoft relies on nobody actually testing its patents. It's about flinging/bundling/suing using as many bogus ones as possible in bulk. It's about quantity, not quality.

That now brings us to underlying laws. Daniel Winston and Bryana McGillycuddy try to give lawyers tricks for manipulating courts into tolerating patents that are obvious, thus bunk. Days ago they wrote this:

Secondary considerations, or objective indicia of nonobviousness, can be a useful tool for patent owners attempting to overcome an obviousness challenge under 35 U.S.C. €§ 103.


Patent Docs has meanwhile (earlier today) advertised a "Webinar on Obviousness Standard" and Watchtroll complained that the "Supreme Court Denies Cert in Two-Way Media v. Comcast, Refuses Another 101 Case" (so SCOTUS is consistent at the very least regarding Alice).

Watchtroll, writing about Comcast again on the same day, said that "Comcast Invalidates Rovi Patents at PTAB that Previously Secured Limited Exclusion Order at ITC" (as a reminder, ITC just ignores Patent Trial and Appeal Board (PTAB) rulings as though embargo is above the rule of law and burden of proof/presumption of innocence exists no more).

That case just proves that ITC is out of control. To quote:

In recent weeks the Patent Trial and Appeal Board (PTAB) has issued a series of final written decisions terminating inter partes review (IPR) proceedings where Comcast Cable Communications petitioned patents owned by technology developer Rovi Guides. In each of the final written decisions the PTAB determined that Comcast proved the invalidity of all challenged claims. These latest skirmishes relate to an ongoing patent war between the two companies over Rovi patents on remote scheduling services. A little more than ten months ago Rovi had the upper hand, winning a favorable ruling from the U.S. International Trade Commission (ITC).


Two days prior to this Watchtroll complained about PTAB doing its job when it said: "In early October, the Patent Trial and Appeal Board (PTAB) instituted a series of covered business method (CBM) reviews on patents owned by American stock exchange Nasdaq. The CBM reviews were petitioned by trading platform provider Miami International Holdings (MIAX) and challenge the validity of patents which Nasdaq has asserted against MIAX in U.S. district court."

James Korenchan, looking for some way to twist PTAB news, wrote in his summary: "PTAB Affirms Patent Eligibility of Claims for Using Dwell Time to Rank Search Results" (technically true, but rather abnormal).

By cherry-picking the exception rather than the norm, e.g. Ex parte Bolivar, the patent maximalists dwell or obsess over something that's not even a patent but a mere application. This is all they've got now. Laughable.

To quote: "The claims had been rejected under 35 U.S.C. €§ 101 as being directed to an abstract idea. [...] In the briefing, the Appellants attempted to argue that the Examiner did not establish a prima facie case of patent-ineligibility, but the Board disagreed. [...] While welcome, this decision is further evidence of the Board's inconsistent patent-eligibility determinations. One could imagine a different panel reaching the opposite decision. Still, the bar for patent-eligible improvements to computer technology is often set too high, and this decision is a refreshing entry that lowered the bar."

These people do anything they can to water down 35 U.S.C. €§ 101 and/or suppress PTAB's application of it. Watchtroll has a new article entitled "Writing a Software Patent Application" and another (from yesterday) entitled "Patent Drafting Basics (how to fool examiners).

What these people neglect to say is that even when USPTO grants software patents the courts later reject these so the victory (grant/award) is a Pyrrhic one. Software patents are a losing game now.

How about those VoIP patents brought up by Watchtroll some days ago when it wrote: "On October 1st, the Court of Appeals for the Federal Circuit heard oral arguments in an appeal of a patent infringement case decided in favor of Sprint Communications and against Time Warner Cable. The appeal to arose from a jury verdict in the District of Kansas, which awarded Sprint reasonable royalty damages of $139.8 million for Time Warner’s infringement of patents related to voice over Internet protocol (VoIP) technologies developed by Sprint."

With software patents on their demise, the technology sector is happy. CCIA's Josh Landau (representing CCIA members, which are technology companies) wrote the following 3 days ago under the headline "IPR And Alice Appear Responsible For Reduced Patent Litigation Costs":

The AIPLA data illustrates the change in median cost of various forms of IP litigation over time. The blue line, representing the cost of patent lawsuits with over $25 million at risk, shows a general increase from 2005 to 2013, and then significant declines over the next two years. While IPR became available in 2012, the first impacts of IPR on litigation tactics weren’t seen until the beginning of 2013 when merits decisions in IPRs began to issue. And Alice was handed down in 2014, with a similar lag until district courts began ruling on Alice motions. The data illustrates a slower decline from 2013-2015 after IPR became available, and then a steeper decline in the 2015-2017 period with the impact of both IPR and Alice, consistent with the decline being attributable at least in part to IPR and Alice. (As IPR cost estimates are around $350,000 median cost, the increased cost required to file an IPR is more than overcome by the reductions in litigation cost—to the tune of more than $2 billion.)

However, it’s possible that the litigation cost declines seen in patent litigation could have been due to external factors unrelated to changes in the patent landscape like IPR and Alice. In order to control for this, we can compare costs to other areas of intellectual property law that haven’t seen the same major impacts. Using copyright and trademark litigation with similar amounts at risk as a control, the data illustrates that while there have been cost reductions in the 2015-2017 time frame for all three areas of litigation, the reduction has been most pronounced in patent litigation.


This is a much-needed improvement, which the EPO could learn from; in recent years it viciously attacked its appeal boards (similar to PTAB in Europe) -- to the point where they constantly complain about lack of independence.

President of the Austrian Patent Office Mariana Karepova, speaking to Neil Wilkof of IP Kat, has just made it implicitly clear that Austria is "currently contemplating a Patent Office copyright or software register" instead of software patents. To quote the relevant passages:

IP in the software domain. The new industrial revolution as well as the Internet of Things entail a preponderance of software in practically all innovations. However, neither Austria, nor Europe more generally, is presently able to provide patent protection for this aspect of an innovation. This is an extremely unsatisfactory situation. In order to rectify this, we’re currently contemplating a Patent Office copyright or software register, which would provide companies with a robust legal instrument enabling them to enforce their rights with a greater chance of success. At least that’s what we’re discussing right now in Austria.


Unlike the EPO, they do not tolerate software patents in Europe, i.e. pretty much the same as in every other member state. Sadly, the EPO quit caring about patent quality altogether. It's all about quantity now, even in clear defiance of the EPC.

Recent Techrights' Posts

Ubuntu Becomes Microsoft GitHub, Based on Decision Made by British Army Officer
You're hopeless, Canonical
Sharing Code and Recipes
It helps explain the triviality of software freedom
How Many Women Has Microsoft's Alex Balabhadra Graveley Already Strangled and Where Does That End?
If you too are a victim of this man and wish to share information, contact us
"We Might Save Somebody's Life"
I follow the example of my father
Gemini Links 16/07/2025: Tmux and OCC25 Working TLS
Links for the day
Reboots Should Never be Necessary
"BUT WHAT ABOUT SECURITY!!"
 
Links 16/07/2025: Chip Bans and Microsoft’s “Digital Escort” Program
Links for the day
Revolving Doors: One Day You're a Judge, the Next Day You're an Attorney Paying Public Officials and Working for Violent and Dangerous Microsoft Employees
how the US justice system works
Slopwatch: Noise, Plagiarism and Even Fear, Uncertainty, Doubt/Fear-mongering/Dramatisation
What are we meant to do to prevent a false association or misleading connotations? Game the LLMs? No. Boycott slopfarms.
Gemini Links 16/07/2025: BaseLibre Numerical System and Simple Web Browsing with TLS
Links for the day
Links 16/07/2025: Fascist Slop Takes "Intelligence" Clothing, New Criminal Case Against MElon
Links for the day
Why I am Suing the Serial Strangler From Microsoft, Alex Balabhadra Graveley, in the UK High Court This Week
Out of respect to the process and to the Court, I shall not share any pertinent details about the case
Links 16/07/2025: China’s Economy Grows Steadily, France Takes Action Regarding Harm to Children by GAFAM and Fentanylware (TikTok)
Links for the day
It is Not About Politics
Beware the people who try to make this about politics
Good Journalism Saves Lives
a shocking number of women die or get seriously hurt every day due to violence from a partner
Recognition of Women's Contributions to Free Software
Being passive is not an option when bad things are happening
Slopfarms Are Going to Perish Because Public Opinion is Changing
Many slopfarms will simply go offline
19 Years of Standing Up for Justice, Equality, and Truth
This week we shall take it up a notch
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 15, 2025
IRC logs for Tuesday, July 15, 2025
Links 15/07/2025: LLM Pollution and Pushback in Ukraine
Links for the day
Gemini Links 15/07/2025: xkcd, New Cert, and Alhena Gemlog
Links for the day
Links 15/07/2025: Press Freedom at Risk and New Facebook Blunders
Links for the day
There's Still Hope for the World Wide Web
Let's hope that the trajectory of the Web won't be leading us to over-reliance on Google, nor will it reward worthless slopfarms
Gemini Links 15/07/2025: Smolweb and Alhena 5.1.7
Links for the day
The Danes Want GNU/Linux
David Heinemeier Hansson recently moved to GNU/Linux
Cory Doctorow Explains Why Software Freedom Matters, Whereas "Open Source" Misses the Point and Helps Monopolies
It's a very long article
BillPR (EpsteinGate-Bribed NPR) is Turning Into a Partial Slopfarm that Promotes Slop
"I went on a date with a chatbot!"
Two Weeks Passed Since Latest Large Wave of Microsoft Layoffs, More Expected Next Month
Blaming the debt on "AI" is just self-serving storytelling
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 14, 2025
IRC logs for Monday, July 14, 2025
Gemini Links 15/07/2025: Gemini "Style Sheets" and Switching From Microsoft GitHub to Codeberg
Links for the day
Coming Soon: Another OSI Scandal, This One Implicating Molly de Blanc
OSI has been fairly quiet lately
Outreachy & Debian pregnancy cluster, Meike Reichle evidence
Reprinted with permission from Daniel Pocock
Again, "Lunduke is Actually Sending His Audience to Attack People"
Microsoft Lunduke is not trying to "protect" Linux
XBox is Rapidly Turned Into a Slopfarm by Microsoft
Slop isn't about efficiency and saving money
One of the Most Hilarious Things About the Microsoft SLAPPs
It's so ridiculous
Financial Support for the Free Software Foundation or the GNU Project
The FSF has extended until Friday its fund-raising campaign
Illegally Hiding (or Demanding Secrecy Around) Illegal Requests or Attempts at Extortion
unlawful communications like threats
Microsoft's Halloween Documents and systemd, Wayland, Etc.
Maybe one day Wayland will be widespread. Or maybe not.
Gemini Links 14/07/2025: BOFH Archive, Updating Old Palm PDAS, and Nginx vs Slop Bots
Links for the day
Ubuntu is Becoming GAFAM-Like
What does that say about Canonical and Ubuntu?
Slopfarms Which Take Real Articles About GNU/Linux and Turn Them Into Copycats Which Are False
Even before the LLM hype those were quite common
The Firm That Picks on Techrights is Accustomed to Working With Criminals
Techrights never did anything illegal. So why is it being picked on by people who work with criminals?
Microsoft Said the Mass Layoffs Were for "Investment" in "AI", But It's Also Laying Off the "AI" and "Copilot" Staff
Months ago we showed many so-called "AI" people were getting the boot and this time it's the same
DryDeadFish is Dead, Long Live DryDeadFish
We kept checking, hoping it can recover from some temporary technical issue
For Quite Some Time Already Microsoft Attracts Crackpots, Scams, and More
Occasionally we talk about the situation at IBM as there are many parallels
Links 14/07/2025: Chatbots Broken Again, McHire LLM Shows Limits of the Hype
Links for the day
Changing One's Name Won't Change One's Past
People who have earned a bad reputation are not magically "entitled" to reset
People Who Assault Women Are Not Victims of "Distress"
It seems like an American tradition. In a country with almost 50 presidents, not even one was a female.
Slashdot Media Turned Linux Journal Into a Slopfarm and Now Slashdot Actively Promotes Anti-Linux Slopfarms
Yes, "no-nonsense" apparently means actual nonsense
Adoption of Gemini Protocol Still Growing
Gemini Protocol is being obscured by the media - it doesn't help that Google 'hijacked' the word "Gemini" - but people still manage to find out about it, download a client, and use it
Links 14/07/2025: Arresting Photographers, Threats to Revoke US Citizenship Over Criticism
Links for the day
More EPO Leaks on the Way
We hope that Mr. Rowan will actually try to refute what we say and show, not merely point the finger at the messengers
Decommodification is a Corporate Strategy Against Communities
systemd is led by Microsoft and hosted by Microsoft
copyleft.org 'Hijacked' by the People Who Attack the Person Who Created Copyleft
So far there's nothing "tasteless" in copyleft.org, but that can change at any time in the future
Asking People to Take Down Articles and Videos Only Makes These More Popular and "Viral"
If you do something bad, one of the worst things you can possibly do it try to silence those who speak about it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 13, 2025
IRC logs for Sunday, July 13, 2025
Two-Thirds Towards FSF Goal, Richard Stallman to Give Talks in Europe
There are 67 left before reaching the target
Brett Wilson LLP "Takes it Personal" (Character Assassination, Not Professionalism). Everybody Can See That.
On behalf of violent men
Gemini Links 14/07/2025: Politicised Tech and "Leaving GitHub"
Links for the day