Bonum Certa Men Certa

The US Patent System: Where One Wastes Years in Court and Spends $8,000,000 in Lawyers' Fees Fighting a Bogus Patent

The US patent office has essentially externalised the costs to the public

Alice road



Summary: A roundup of news about software patents in the US and what they have led to, owing in part to the USPTO's declining patent quality (leaving others to clean up its mess)

THE ridiculously low standards of the USPTO come at a huge cost, albeit this cost is considered an externality by this greedy patent office. Unless this mess is sorted out soon, the US might have nothing left but large multinational corporations with tens of thousands of patents each, as opposed to agile startups with none.



Elliot Harmon says that this one particular software patent, which can possibly be demolished quite easily using Alice, has been used in the Eastern District of Texas and it's the "Stupid Patent of the Month" (as per the series of the EFF). To quote:

This month, a company called Voice2Text Innovations filed patent infringement lawsuits against two voice over Internet protocol (VoIP) services, Phone.com and Vitelity. Voice2Text has no website or any other information online; its sole asset appears to be US Patent No. 8,914,003—unsurprisingly, a patent on using voice recognition to convert a voicemail into a text message. Equally unsurprisingly, it’s filed those suits in the Eastern District of Texas, whose patent-troll-friendly practices we’ve thoroughly documented on this blog. The Voice2Text patent is so absurd that we had to honor it with our Stupid Patent of the Month award.


"Unless this mess is sorted out soon, the US might have nothing left but large multinational corporations with tens of thousands of patents each, as opposed to agile startups with none."In order to destroy such a patent one might need to spend quite a lot of money rather than settle. Consider this new story titled "Court Orders Plaintiff to Pay Defendants’ $8 Million in Attorney’s Fees in Patent Row". That's a lot of money; patent lawyers grossly overcharge and the system plays in their favour by inducing additional costs at many levels (e.g. appeals), thus favouring those with bigger budgets or deeper pockets, leaving small players vastly more vulnerable. To quote the concluding words: "This case illustrates that the courts will take strong action when faced with baseless claims, hidden or altered evidence, and misleading statements made to the court or opponents. It also serves as a strong reminder to consider your counsel carefully, and the advice that they provide, or a plaintiff may have to pay its own fees and those of the defendant, which in this case amounted to another $8 million."

This case may be the exception rather than the norm, but judging by NewEgg's decision to stand up to trolls, it often costs literally millions and there is no guarantee of the plaintiff -- upon loss -- bearing the cost of the defendant's (victim's) legal bills. NewEgg actually made history by managing to compel a patent troll to pay its victim's legal fees some months ago, owing to an unusual decision by the judge.

"NewEgg actually made history by managing to compel a patent troll to pay its victim's legal fees some months ago, owing to an unusual decision by the judge."Patently-O has just recommended Lynda J. Oswald's relatively new paper which criticises the term “strict liability” and whose abstract says: "In 1995, the Federal Circuit summarily attached the label of “strict liability” to direct patent infringement, even though that term does not appear in any U.S. Patent Act of the past two centuries. The catechism of “strict” direct patent infringement liability is now so well-engrained in patent doctrine that it is easy to lose sight of how recent the advent of this terminology is in the case law, and how troublesome application of this standard has proven, even to the Federal Circuit, which created it. The first patent act (1790) preceded the emergence of tort law as a distinct field of U.S. common law (mid-1800s) by a half-century or more, and the products liability explosion of the mid-twentieth century radically altered our understanding of strict liability. The implications of this forgotten timeline are profound. “Strict liability,” particularly in its modern formulation, is not a neutral, descriptive term. Rather, the term evokes social policy choices and balancing considerations that may be appropriate within the case law context of products liability or abnormally dangerous activities, but which are incongruous and inapposite in the statutory context of patent law. Deeming direct patent infringement to be a strict liability leads to two unanticipated and unwelcome effects. First, the adoption of the “strict liability” label for direct patent infringement liability improperly inflates the courts’ role in setting direct patent infringement liability standards and suggests — incorrectly — that patent liability is a case law construct, when in fact it is a statutory construct. Second, the “strict liability” label improperly shifts the focus of the patent infringement inquiry from the Patent Act’s protection of the plaintiff’s exclusive property interest in its patent right toward a value-laden examination of the social utility of the defendant’s conduct vis-à-vis the injury to the patent holder. Jettisoning the “strict liability” label for direct patent infringement would reframe the analysis and debate, moving direct patent infringement liability out of a policy framework and back toward its proper statutory setting."

"PTAB is increasingly being used to correct the USPTO's errors, but why not dig deep into the root of the problem and simply tackle the USPTO's unrestrained greed?"What's worth noting here is that a lot of the risk has been passed to defendants, not to plaintiffs, who often rely on poor quality examination by the USPTO (resulting in the grant of bogus patents). PTAB is increasingly being used to correct the USPTO's errors, but why not dig deep into the root of the problem and simply tackle the USPTO's unrestrained greed?

CAFC won't be coming to one's rescue after PTAB, according to one example just put forth by Patently-O. To quote Patently-O: "The Federal Circuit has denied en banc review of decisions in four inter partes review proceedings brought by Gnosis. Federal Circuit had previously affirmed the Patent Trial and Appeal Board’s IPR determination that the challenged Merck and SAMSF patent claims were invalid as obvious."

The relevance of this was ever more apparent when Bass gamed the value of companies by invalidating key patents -- a move which IAM now conflates with patent trolls by comparing Bass to trolls. Spangenberg is a patent troll, Bass invalidates patents. They have a very different modus operandi, but as IAM put it, the connection lies within a team-up: "Since teaming up with former IPNav CEO Erich Spangenberg to launch their first US inter partes review (IPR) in February last year – challenging a pharmaceutical dosage-related patent owned by Acorda Therapeutics – Kyle Bass has become one of the IP business world’s highest-profile players. Whether he should primarily be seen as antagonist, protagonist or the antihero somewhere in-between depends on your point of view. What is certain is that the validity actions being pursued by him and Spangenberg through their Coalition for Affordable Drugs – targeting patents belonging to pharmaceutical ‘originator’ companies – rocked the post-America Invents IP landscape."

"The USPTO's poor quality -- a trap which the EPO growingly falls into -- helps trolls, strategic predatory investors/hedge funds, and monopolists which do a disservice to innovation."What is worth noting here is that if the patents invalidated upon request by Bass were not granted by the USPTO in the first place, none of this would have happened. The USPTO's poor quality -- a trap which the EPO growingly falls into -- helps trolls, strategic predatory investors/hedge funds, and monopolists which do a disservice to innovation. Watch IBM's patent chief having the audacity this weekend to complain about the system which David Kappos from IBM made worse (in IBM's favour; IBM pays him now for lobbying), furthermore complaining about a system outside his own country (Australia) because it attempts to improve patent quality, as we noted yesterday.

Recent Techrights' Posts

Pushers of systemd Rewrite History (Richard Stallman Said UNIX "Was Portable and Seemed Fairly Clean")
Unlike systemd
Trajectory of The Register: From News Site/s Into "B2B"... and Into Microsoft Salespeople
Something isn't right at The Register
 
The Week to Come
Planning ahead
LLM Slop Has Only Been a Boon for Misinformation Online
The very same companies that were supposed to maintain quality (again, not limited to Google with PageRank) are now actively participating in generating and spreading slop
When They Tell You It's Free, Does That Mean No Charges (If So, Who's Paying and Why)?
there's "no free lunch"
We're Going to Focus Less on the Molotov Cocktail-Throwing Microsofters and More on Patents
We can get back to focusing on what we wanted to focus on all along
Just Trying to Keep Web Sites Honest (Journalistic Integrity)
the latest articles in LinuxIac are real
Links 27/07/2025: Political Affairs, Data Breaches, Attacks on Freedom of the Press
Links for the day
Gemini Links 27/07/2025: Hot in Japan and Terminal Escape Codes
Links for the day
Links 27/07/2025: More Microsoft Layoffs Coming, Science and Hardware News
Links for the day
Links 27/07/2025: FSF Hackathon and "Hulk Hogan Was a Very Bad Man"
Links for the day
Gemini Links 27/07/2025: DAW Mixer Chains and Simple Software
Links for the day
The Register MS is Inventing or Giving Air Time to New Conspiracy Theories so as to Distort the Narrative As High-Profile Agencies Fall Prey to Microsoft Holes
But the problem is holes, i.e. Microsoft making bad products; the problem is Microsoft
Most Editors at The Register Are American, Including the Editor in Chief, a Decade-Long Microsoft Stenographer (Writing Prose to Sell Microsoft)
It's not easy to tell where the site is based (we tried) because it's hiding behind ClownFlare and CrimeFlare hasn't been well lately
"New Techrights" Soon Turns 2 (A Few Days Before the FSF Turns 40)
We have a lot more to say about LLM bots
When Silence Says So Much
Garrett, a 'secure' boot pusher, will need to defend himself in the UK High Court
The Register in Trouble
There is not much that can be done at this point
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 26, 2025
IRC logs for Saturday, July 26, 2025
Misinformation in Social Control Media
Social control media passes around all sorts of tropes
Slopwatch: Fake Linux 'Articles' and Slopfarms With "Linux" in Their Names/Domains
throwing bots at "Linux" to make some fake articles
Links 26/07/2025: Amazon Shutdown in China, Russian Economy Slows
Links for the day
Gemini Links 26/07/2025: History of Time (1988) and Gemini Games
Links for the day
Links 26/07/2025: 50 Percent Tariffs in Amazon, Dying Intel Offloads Network and Edge Group (NEX)
Links for the day
Doing My Share to Tackle Online Slop and SPAM
Trying my best to 'fix' the Web
Blaming Programming Languages for Users' and Developers' Bad Practices
That's like blaming cars for drivers who crash into things
Slopwatch: Fakes, FUD, Duplicates, and Charlatans Galore
The Web as we once know it is collapsing. Some opportunists try to replace it with low-quality slop.
The Register UK Seems to Have Become American and Management is Changing (Microsofter as Editor in Chief)
The Register 'UK' is now controlled by the Directions on Microsoft guy
Many People Still Read Techrights Because It Says the Truth, Produces Evidence, and Does Not Self-Censor
Unlike so many other sites
The Register is Desperate for Money, According to The Register
I decided to check how they're doing as a business
Microsoft Finally Finds a Use Case for Slop?
Create low-quality chaff to shift the media's attention?
Microsoft Windows Lost 400 Million Users in a Few Years, Why Does The Register Double Down on Windows With New US Editor?
days ago they hired a new US editor
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 25, 2025
IRC logs for Friday, July 25, 2025
For Libel Reform One Must First Bring (or Raise) Awareness to the Issues and Their Magnitude
I myself know, from personal experience
Links 26/07/2025: Rationed Meals in the US and TikTok Repels Investments (Too Toxic)
Links for the day
Gemini Links 26/07/2025: "Bloody Google" and New People in Geminispace
Links for the day
Response to Solderpunk (Father of Gemini Protocol) About the Gemini Community
Solderpunk responds to non-sequitur
HTML and the Web Used to be Something a Child Could Learn, "Modern" Web is a Puzzle of Frameworks, Bloat, and Worse
When the Web was more like Gemini Protocol
New US Editor in The Register is 84% Microsoft/Windows Booster
It'll be worrying if it carries on like this
Links 25/07/2025: Slop Blunders and China Has Code of Conduct for Lawmakers in HK
Links for the day
Gemini Links 25/07/2025: Some Books and Babies and Capital
Links for the day
Links 25/07/2025: NOAA Cuts Endanger Lives, "Europe's Self Inflicted Cloud Crisis"
Links for the day
They Try to Lecture Us on Ethics
They even removed "master" from Microsoft GitHub
The Future of the Web is One Rendering Engine or 'Flavours' of Chrome
The future of the Web does not look bright at all
Best Sites Are Not Optimised for Any Browser, They Work Equally Well With All of Them
Red Hat (IBM) is making rubbish sites
YouTube is a Spamfarm, Slopfarm, and Clickfarm (a Lot of Numbers There Are Fake)
Those who don't fake look unpopular and unimportant
We Don't Do JavaScript and Pages Are Small
Thankfully Gemini Protocol has nothing like JavaScript
'Tech' is Not Technology
Some people use terms like 'Old Tech'
IBM's Debt Rose by Almost 10 Billion Dollars in the Past 6 Months Alone
The "hey hi" circus is coming to an end
Yes, Master
Gaslighting by actual racists
Microsoft Bribes and Buys Politicians to Tell Europe What to Do About Free Software (Which It's Attacking)
Microsoft: we speak for the thing that we are attacking! Follow the money...
Making Backups Quickly and Reliably
Backups are imperative, more so in an age of uncertainty, unpredictable weather, and worsening standards (quality of products going down while prices go up)
Techrights Investigation: Estimating the Point in Time LinuxIac Turned Into LLM Slop (Part of the Time)
Bobby Borisov got lazy
10th Month, Ten Weeks From Now, at Ten AM
In Wentworth Institute of Technology in Boston
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 24, 2025
IRC logs for Thursday, July 24, 2025
A Nadella Memo Distracts From Microsoft's Cheapening Of the Workforce
Right now the "MSM" (mainstream media) is flooded/overwhelmed by garbage pieces that relay lies for Nadella
Vanishing Faces of GNU/Linux
Free software projects do not depend on any one person or company to still exist
Microsoft Says It Lost 400 Million Windows Users, Now It's Waiting for GNU/Linux to Stop Booting on 'Old' PCs
When it comes to Windows, Microsoft is fully aware of the issue and statements it made earlier this summer suggest it lost 400 million Windows users
Slopwatch: LinuxTechLab, linuxsecurity.com, LinuxIac, and More
Also: The Register's Microsoft agenda (new editor)
Gemini Links 25/07/2025: Gemtext Aware Titan Editor and Gemini Protocol Comeback
Links for the day