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12.06.18

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

Posted in America, Patents at 9:27 am by Dr. Roy Schestowitz

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.

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