Bonum Certa Men Certa

The Federal Circuit's Decision on Ancora Technologies v HTC America is the Rare Exception, Not the Norm

The Patent Trial and Appeal Board (PTAB) didn't even disagree

"Let me make my position on the patentability of software clear. I believe that software per se should not be allowed patent protection. […] We take this position because it is the best policy for maintaining a healthy software industry, where innovation can prosper."

--Adobe Systems (old position explained by Douglas Brotz)



Summary: Even though the PTAB does not automatically reject every patent when 35 U.S.C. ۤ 101 gets invoked we're supposed to think that somehow things are changing in favour of patent maximalists; but all they do is obsess over something old (as old as a month ago) and hardly controversial

BEGRUDGINGLY adopting 35 U.S.C. ۤ 101, the U.S. Patent and Trademark Office (USPTO) nowadays rejects quite a few applications for software patents. Even before any inter partes review (IPR) gets filed.

Patent maximalists keep hoping that the Federal Circuit will get 'tired' of invalidating software patents, but in reality it has gotten even stricter than PTAB, as we've been pointing out in recent weeks. There are rarely any exceptions, but when they do happen the patent maximalists will carry on obsessing over them for months. Stephen J. Kontos complains that, in his own words, "[e]ven the PTAB thought this was patent eligible," before the Federal Circuit:

The Federal Circuit found that a method for increasing computer security is patent eligible under ۤ101. The decision is Ancora Technologies, Inc. v. HTC America, Inc., Appeal No. 2018-1404 (Fed. Cir. 2018).

The patent at issue can be found here. The Federal Circuit treated claim 1 as representative.

The concept has to do with using a modifiable part of the computer’s BIOS to determine whether the program is licensed to run on the computer.

[...]

It makes sense. If the PTAB institutes and invalidates the patent, the District Court can dismiss the lawsuit without risk of being overturned at the Federal Circuit.

Anyway, the patent owner appealed to the Federal Circuit, which resulted in the opinion linked above. So maybe the District Court should have given the PTAB’s decision more weight?


We expect this to be brought up again and again in months to come. They've already written dozens of articles about this while totally ignoring dozens of cases whose outcome didn't suit their agenda. Mr. Gross has just taken note of this old IPR nearly a month late and said it proves "once again, that if you can finesse SOME kind of GUI element into your patent claims, you will should be able to overcome 101 rejections at PTAB: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2018004423-11-13-2018-1 …"

The Federal Circuit's bias on GUI patents is a subject we wrote about a great deal about a year ago and then again months ago in relation to Corel. That was back in October.

Those are, suffice to say, rare exceptions. It is meanwhile being pointed out by Robert Jain that they're invalidating the patent of a patent troll called Mobility Workx, which is suing in the Eastern District of Texas. The patent has been deemed or "found likely unpatentable" a few days ago:

On December 3, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 8,213,417 owned and asserted by Mobility Workx, LLC, an NPE. This decision marks the third time the Board has rejected arguments that Unified’s members are real parties-in-interest since the Federal Circuit addressed RPI in Applications in Internet Time, LLC v. RPX. The '417 patent, directed to a "system, apparatus, and methods for proactive allocation of wireless communication resources," has been asserted in the Eastern District of Texas against Verizon and T-Mobile.


These patent trolls are a dying breed. They typically rely on very shallow patents and only courts like the ones in the Eastern District of Texas (that are harder to approach after TC Heartland) facilitate blackmail/income sources. PTAB makes it cheaper to challenge and Unified can further reduce financial burden by fronting for multiple defendants.

Recent Techrights' Posts

The U.S. Patent and Trademark Office Hijacked Again by Patent Litigation Industry, as President Cheeto Prioritises Aggressors
The "mafia" has taken over the "industry" and the Federal system (justice and constitutions trampled upon)
Ubuntu Slop and FUD Manufactured With LLMs and Funded (by Oneself) 'Studies'
Slop and FUD are ruining the Web
 
Gemini Links 02/04/2025: Books and Cold Tea
Links for the day
Links 02/04/2025: More Layoffs, Nokia Again Takes Advantage of Illegal and Unconstitutional Patent Court With Nokia Staff as 'Judges'
Links for the day
Links 02/04/2025: Seizures and Returns to Windows of 24 Years Ago
Links for the day
LLM Slop Helps Obscure and Distort News About Layoffs (IBM, GAFAM)
It's hard to find accurate information
Links 02/04/2025: Microsoft Developers Are Threatening to Go on Strike, World Backup Day Noted
Links for the day
Gemini Protocol Has Growing Appeal (the Web Got Too Bloated and Full of LLM Slop)
For any "data plan" with bandwidth limits or "tiers" it would be cheaper to use/browse Geminispace
The Web Can Survive LLM Slop, But Only If We Collectively Shun and Discourage Serial Sloppers
Doing nothing ought not be a possibility
Amid Secret Shut-downs and Mass Layoffs at Microsoft (4 Waves of Layoffs in 3 Months of 2025) Some Microsoft Staff Expected to Go On Strike
workers going on strike
Gemini Links 02/04/2025: No more on Mastodon and Gemini Mention Script in Go
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 01, 2025
IRC logs for Tuesday, April 01, 2025
My Motion Disbarring or “Striking Off” Brett Wilson LLP for Enabling Violent Americans Who Try to Crush Microsoft Critics in the United Kingdom by Multiple SLAPPs
"Guns for hire" (for Microsoft people who received Microsoft salaries)
Gemini Links 01/04/2025: Games and More
Links for the day
Links 01/04/2025: Apple Fined $162M for Privacy Abuses, Disinformation Online a Growing Concern
Links for the day
Why We're Reporting Brett Wilson LLP for Apparently Misusing Their Licence to Protect American Microsofters Who Attack Women
For those who have not been keeping abreast
Newer Press Reports Confirm That Microsoft Shuts Down 'Hey Hi' (AI) Labs Despite All the Hype
The "hey hi" (AI) bubble is not sustainable
Links 01/04/2025: Mass Layoffs at Eidos and "Microsoft Pulls Back on Data Centers" (Demand Lacking); "Racist and Sexist" Slop From Microsoft
Links for the day
Stefano Maffulli and His Microsoft-Funded OSI Staff Are Killing the OSI and Killing "Open Source" (All for Money!)
This is far from over
Gemini Links 01/04/2025: XKCDpunk and worldclock.py
Links for the day
50 Years of Sabotage and a Gut Punch to Computer Science (and Science in General)
Will we get back to science-based computing rather than cult-like following?
Techrights Headlines as Semaphore
"If you are hearing this, thank you"
3 Months in 2025, 4 Waves of Mass Layoffs at Microsoft, Now Offices Shut Down Permanently
"A recent visit by the South China Morning Post confirmed that the office was dark, unoccupied, and had its logo removed."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 31, 2025
IRC logs for Monday, March 31, 2025
Links 31/03/2025: China Tensions, Bombs Falling in Myanmar After Earthquake
Links for the day
Gemini Links 31/03/2025: Falling Out of Love With Tech, Sunsetting openSNP
Links for the day
R.T.O. at IBM in Texas and Atlanta (State of Georgia) Expected as "Soft Layoffs" Catalyst This Coming Year
It also sounds like more IBM layoffs are in the making
Law Firms Can Also Lose Their Licence for Clearly Misusing It
The bottom line is, never made the false assumption that because you can pile up SLAPPs in a docket you will not suffer from bad reputation or even get disbarred
Link between institutional abuse, Swiss jurists, Debianism and FSFE
Reprinted with permission from Daniel Pocock
LLM Slop Piggybacking News About GNU/Linux and Distorting It
new examples
Links 31/03/2025: Press and Democracy Under Further Attacks in the US, Attitudes Towards Slop Sour
Links for the day
Open Source Initiative (OSI) Privacy Fiasco in Detail: The OSI Does Not Respect Anybody's Privacy
The surveillance mafia that bans dissent or key people (even co-founders) with dissenting views
Gemini Links 31/03/2025: More X-Filesposting and Dreaming in Emacs
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 30, 2025
IRC logs for Sunday, March 30, 2025