Bonum Certa Men Certa

The Patent Trial and Appeal Board (PTAB) Under Persistent Attack From the Patent Microcosm

But the Court of Appeals for the Federal Circuit (CAFC) is not standing in the way

Areopagus



Summary: The bureaucratic layers/levels added for dealing with the loosening of patent quality are still subjected to endless scrutiny from those who profit from more and more patents (including frivolous litigation which they bring about)

The patent microcosm, as usual, is trying to undermine Alice, Section 101, PTAB and AIA. "Thus far," Patently-O just wrote, "the Federal Circuit has successfully ducked any direct holding on whether eligibility under 35 U.S.C. 101 is a “condition of patentability” or a proper invalidity defenes. [...] Versata decision which held that the PTAB has authority to decide Section 101 challenges in a CBM review." Another new post from Patently-O says that "Ethicon has filed its expected petition for writ of certiorari challenging the USPTO’s delegation of IPR Institution Decisions to the Patent Trial and Appeal Board."



"Why does this matter? Because there's a coordinated effort to make PTAB less effective, less efficient, and less accessible so as to slow down its invalidation of bad patents."They are doing anything they can to stop what they call "death squad" because this board puts an end to a lot of software patents (bad for patent lawsuits, but good for everybody else). "The Federal Circuit has outlined a two-part framework for deciding whether it can review an institution decision, in its in Husky Injection Molding Sys v Athena Automation decision," MIP wrote.

Why does this matter? Because there's a coordinated effort to make PTAB less effective, less efficient, and less accessible so as to slow down its invalidation of bad patents. IAM 'magazine' wrote two days ago [1, 2] that "PTAB [is] already too expensive for SMEs. @uspto now proposes increasing fees! Will just entrench IPRs as a BigCo tool. http://www.uspto.gov/about-us/news-updates/uspto-seeking-comments-proposed-patent-fee-adjustments [...] To be fair, also unspecified proposals to broaden scope of fees cap for micro and small entities. But this has been ineffective up to now."

"PTAB should follow the polluter payer principle," Benjamin Henrion replied, suggesting a proportional fee, e.g. to size of appellant, holder etc.

"AIA gave us PTAB, which now kills software patents in very large numbers, but not everyone is happy."The "Court of Appeals for the Federal Circuit upheld the Patent Trial and Appeal Board’s (PTAB’s or Board’s) decision," the National Law Review wrote a few days ago. To quote in full: "In an opinion addressing the standard for claim construction of a patent that expires during reexamination, the US Court of Appeals for the Federal Circuit upheld the Patent Trial and Appeal Board’s (PTAB’s or Board’s) decision finding all challenged claims invalid, but found that the PTAB had used the incorrect standard for its claim construction. In re: CSB-System Int’l, Inc., Case No. 15-1832 (Fed. Cir., Aug. 9, 2016) (Stoll, J)."

AIA gave us PTAB, which now kills software patents in very large numbers, but not everyone is happy. Here is another one those rants from patent maximalists, serving to prove that PTAB did the right thing by limiting patent scope:

The AIA ushered in significant changes in the patent system. At the time, there was much consternation about the change to a first-inventor-to-file system. The prospect of enhanced post-grant challenges was an afterthought, dismissed as a variation in inter partes reexamination. Inter partes reexamination filings even spiked in 2012, as practitioners were reluctant to let go of the familiar process in favor of the new post-grant trial system.

Five years on, the emphasis has flipped; first inventor to file is accepted as not much different than the patent systems in the rest of the world. Post-grant trials now get much more attention. Some see them as the only way to save American business; others call the system disastrous for innovation. However you classify the impact, AIA trials have been significant.


Only for clerical reasons -- not technical -- can the Patent Trial and Appeal Board (PTAB) let bogus patents be, based on new stories/cases such as this:

In a recent decision, the Patent Trial and Appeal Board (PTAB) denied the institution of a covered business method (CBM) patent review on an Internet Portal System patent because the claims lacked any recitation of a financial product or financial activity. The decision serves well to inform petitioners that the focus for CBM decisions is becoming more on the claim language itself, in contrast to some earlier decisions by the Board where a liberal reading and interpretation of the patent in general was allowed to institute a CBM trial.

[...]

Thus, the PTAB was clear that because the challenged claims of the '077 patent are of general utility with no explicit or inherent finance-related terminology or limitations, this patent was not considered a CBM patent eligible for review. The CBM review was thus not instituted.


We maintain our position that PTAB is a very important tool if tightening patent scope and improving patent quality is the goal. It is clear that all the above sites (patent maximalists) don't share the view that patent quality ought to be a priority and they do whatever they can to weaken (if not put an end to) Alice, Section 101, PTAB and AIA.

Recent Techrights' Posts

The Free Software Foundation (FSF) Has Un-cancelled the Best People, Just in Time for the Big 4-0
Mr. Oliva should have been there all along (since 2019)
Most "Modern" Technology Makes You Slower and Dumber
Because proprietary software makes you worse off
"What Comes After Free Software?" Wrongly Insinuates We've Reached the Goal (Prison is Not the Goal)
The oil tycoons use similar tactics against environmentalists, giving them fake "wins"
Making More Work Space
I learned the hard way that less is more in circumstances where more means distraction
MAHA is a Lie, Public Officials Never Valued Citizens' Health (They Still Value Private Businesses, Their Sponsors)
Reject demagogues
New Techrights Turns 2
Today starts the third year of the SSG-based Techrights
What Scares Them the Most is Independent News Sites That They Cannot Control and Censor
Wikileaks was a good example of this
If You Don't Control Your Online Platform, Then Someone Else is Controlling You
be (or become) independent
The Solicitors Regulation Authority (SRA) Has a Policy on Racism and Sexism
In then future we'll show the misogyny and racial slurs
Links 22/09/2025: Murdochs Might Join Fentanylware (TikTok) 'Investors' (Masters), United Kingdom Recognises Palestinian Statehood
Links for the day
 
Brett Wilson LLP Has Just Been Sued (by Their Own Clients!)
Vladimir and Alla Yanpolsky sued Brett Wilson LLP in BL-2025-001167 at the end of last week
The Complaint About Brett Wilson LLP - Part II - UK SLAPPs for Americans, SLAPPs for Profit
Brett Wilson LLP has a track record of this kind
Mayday: Optus emergency calling crisis
Reprinted with permission from Daniel Pocock
Links 23/09/2025: Massive Data Breach, Slop Versus Productivity, and Vista 11 Update Breaks Things Again
Links for the day
Code of Censorship
Extortion is peace
Free Software Foundation (FSF) Has a New Press Kit for the Weekend After Next Weekend (40th Anniversary)
miles better than social [sic] media [sic] quips, moderated by narcissists and oil tycoons.
Microsoft Had Two Waves of Mass Layoffs This Month (That We Know of) and It'll Get Worse for Microsoft Soon
Will the axe fall again by month's end?
Gemini Links 23/09/2025: Happy Equinox, Photronic Arts, and Perception Cognition
Links for the day
Lessons We've Learned After 17 Years of American Hosting
GAFAM is "all-in" with the "Trump agenda"
Back to Normal Now, We Plan to Do More In-Depth Series (or Multi-part Stories)
Articles (or series thereof) that contain philosophy are important to us
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 22, 2025
IRC logs for Monday, September 22, 2025
Microsoft Media is Panicking Amid Mass Layoffs Every Month, H-1B Fees, and "Seattle’s Tech Scene in Trouble"
In "late stage Microsoft", copyleft becomes proprietary
The Next Wave of IBM/Red Hat Layoffs Being Discussed Already
Red Hat is sort of disappearing the way Tivoli did
Oracle Started This Year With Slop. Then It Stopped.
Passing fads are like this
Distros That Run on PCs Made 20 Years Ago and Don't Use Systemd
Betas for now
The Complaint About Brett Wilson LLP - Part I - Abusing British Women on Behalf of American Men Who Abuse American Women
Transparency is important to us, so we've decided to make this series
Slopwatch: Google News and the Evident Slopfarm Infestation
This is what people get about Linux when they query Google for Linux
Gemini Links 22/09/2025: Esperanto Music History and Apps For Android
Links for the day
Links 22/09/2025: More American 'Censorship' (Retaliation for Journalism), Cheeto "Might Be Losing His Race Against Time"
Links for the day
The Blob Slop
Give me more words, give me some text
The 50-Pound Note Experiment and the "War on Cash"
Britain is actually seeing a rebound in cash payments, and it's not a temporary phenomenon
Slopwatch: Blaming the Victims for Microsoft's Failures and Plagiarising Phoronix
That's what Google has been reduced to: slop and slopfarms
Links 22/09/2025: Breaches, Windows TCO, and Arrests
Links for the day
Gemini Links 22/09/2025: Rabbit Hole and DeGoogling Fairphone
Links for the day
Links 22/09/2025: Russian War Planes Invade NATO Airspace While Dihydroxyacetone Man Escalates Attack on Free Speech Because of Critics
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 21, 2025
IRC logs for Sunday, September 21, 2025
Links 21/09/2025: "Hey Hi" (Hype) Under Fire, Fakes Identified; Tesla Burns Family
Links for the day
Google's Software is Malware and Malware in Mobile Devices
Originally posted by Rob Musial
Links 20/09/2025: Hegemony Coming to a Close, Luigi Mangione Ruled Not Terrorist
Links for the day
Gemini Links 21/09/2025: "Charlie Kirk Was a Hateful Piece of Shit" and Slop Code Attempted by Microsofter
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, September 20, 2025
IRC logs for Saturday, September 20, 2025