Bonum Certa Men Certa

The Importance of the Patent Trial and Appeal Board Proven by the Fact That It's Under Endless Attacks From the Patent Microcosm

Patent maximalists just want patents on everything

PTAB impotence



Summary: The Patent Trial and Appeal Board (PTAB) continues to invalidate patents that should never have been granted in the first place, not slowing down even in the face of greater and louder opposition from reckless patent maximalists

THE SCIENCE-LED PTAB is one of the best aspects of the USPTO. It's almost like the equivalent of the besieged appeal boards at the EPO and it helps ensure high patent quality.



"The patent microcosm just can't stand the idea of high-profile patents (with high royalties) being subjected to proper scrutiny."Don't assume that PTAB is popular with everyone. Not all people have the same goals; peace, for example, isn't an objective when you sell weapons. There's bemoaning of PTAB in IAM 'magazine' this month (more of the usual) and MIP writes about Kyle Bass essentially making money out of PTAB. Making money by blowing away bad patents is not an evil thing; in a way, this should be very much encouraged. "The Patent Trial and Appeal Board has invalidated the claims of a patent covering Shire’s Gattex drug," MIP wrote. Well, good riddance then. Bass does not just go after solid, decent patents. The patent maximalists call him a "troll" (or "reverse troll") for it. The patent microcosm just can't stand the idea of high-profile patents (with high royalties) being subjected to proper scrutiny.

In re Aqua, one high profile case involving PTAB, got covered at Patently-O in recent days/weeks [1, 2]. It's one of those increasingly common cases where a company gets a bogus patent application past careless examiners at the USPTO and then PTAB steps it, threatening to throw it away, whereupon the grantee wants to modify/change the patent (post-grant) for apparent merit. What is this system going to look like if there are post-issuance edits? What are the patent maximalists sinking/stooping down to? To quote Patently-O:

The only pending en banc patent case before the Federal Circuit is In re Aqua Products (Appeal No. 15-1177) involving claim amendments during inter partes review. The Patent Statute contemplates claim amendments as a possibility but not a right — notably, 35 U.S.C. 316(d) states that “the patent owner may file 1 motion to amend the patent” with additional motions to amend permitted in limited situations. The scope of amendment is also limited to (A) cancelling challenged claims and (B) proposing “a reasonable number of substitute claims” that do not “enlarge the scope of the claims of the patent or introduce new matter.”


Another article from Patently-O says that "[i]n a split opinion, the Federal Circuit has affirmed the PTAB’s determination of obviousness. Biota’s patent claims influenza treatment through oral inhalation of zanamivir while the prior art teaches the identical treatment by nasal inhalation. A second prior art reference also suggests that similar compound can be taken via “inhalation” (without the nasal or oral modifier). On appeal, the Federal Circuit affirmed that the general inhalation disclosure “is reasonably understood to disclose inhalation by either the nose alone, mouth alone, or both.”"

It sure looks like attacks on the legitimacy of PTAB come from many directions and they usually fall flat on their face. The PTAB Litigation Blog, one or those blogs that are managed or run by the patent microcosm (Jones Day in this case), has this new article titled "The Equitable Doctrine of Assignor Estoppel Does Not Prevent PTAB from Instituting an IPR".

"What is this system going to look like if there are post-issuance edits?"It's all about stopping PTAB, isn't it? It's a serial destroyer of software patents, which is a lot more efficient than US courts (more patents invalidated more quickly).

Finnegan et al (other firms that profit from patents) are increasingly afraid of PTAB and do anything within their capacity to politely (more than Watchtroll) delegitimise it. Finnegan, Henderson, Farabow, Garrett & Dunner LLP can be seen here poking PTAB again. They just never give up, do they?

Michael Loney, who has done a lot of coverage regarding PTAB this year, has this roundup which includes PTAB news and going back to Patently-O, this one new article is attempting to use any tricks in the book to shoot down PTAB because it invalidates patents and does its job by ensuring high patent quality. To quote one very recent article: "Patent Academic Ray Mercado also took advantage of the request for a responsive brief to file an amicus brief. Mercado argues that patents should be seen as “private rights” and therefore cannot be administratively cancelled. He writes: “Once the historical uniqueness of patent law is taken into account, it is clear that patents are ‘private rights’ for purposes of this Court’s separation of powers jurisprudence, and their validity must be decided by Article III courts.”"

"It sure looks like attacks on the legitimacy of PTAB come from many directions and they usually fall flat on their face."So they try to scrutinise the very existence of PTAB. How predictable. Another new article from Patently-O reveals that large companies are exploring ways to overcome PTAB and maintain their invalid, bogus patents. Here are some of the details: "On rehearing in Medtronic v. Robert Bosch, the Federal Circuit panel has reaffirmed its earlier determining that the PTAB’s vacatur of an IPR institution decision is a decision as to “whether to institute an inter partes review” and therefore is “final and nonappealable.” The original Medtronic decision had been released prior to Cuozzo v. Lee (2016) and the rehearing decision now explains that “nothing in Cuozzo is to the contrary.” [...] An additional difficulty with all of this stems from the pending Ethicon petition and the difference between action by the Director and action by the PTAB. The statute separates the roles – indicating that the PTO Director’s role is in determining “whether to institute” an IPR. Under the statute, the PTAB then steps in to conduct the trial. Those separate roles were then combined by PTO regulation which states “The Board institutes the trial on behalf of the Director.” 37 CFR 42.4. A question – unanswered in this case – is whether the Director’s regulatory delegation above should be interpreted to also extend to vacating and terminating petitions. I’m not sure that it does."

To clarify, IPRs are about invalidation of patents including software patents (killing software patents one at a time, which isn't optimal/ideal). Anyone in this domain already knows this, yet law firms spin it as "settlement". That's highly misleading a characterisation. Watch what Finnegan, Henderson, Farabow, Garrett & Dunner LLP is saying: "Through October 1, 2016, the Federal Circuit decided 120 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 95 (79.17%) of the cases, and reversed or vacated the PTAB on every issue in 9 (7.50%) of the cases. A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 11 (9.17%) of the cases."

"We expect PTAB to come under plenty of new/fresh attacks, including complaints to politicians, to courts, and misinformation (targeting the public and stakeholders)."No matter how much law firms may attempt to destroy the reality (for profit), there are no effective changes to PTAB. Its large-scale patents invalidation progress is not slowing down, not judging by these latest figures. As MIP put it: "The ability to include testimonial evidence with patent owner preliminary responses in Patent Trial and Appeal Board proceedings has not been much help since it was introduced in May, according to an analysis by Oblon’s Scott McKeown"

We expect PTAB to come under plenty of new/fresh attacks, including complaints to politicians, to courts, and misinformation (targeting the public and stakeholders). We'll keep a close eye on progress and report on it periodically.

Recent Techrights' Posts

Slop Nihilism is Funded by Big Oil
Eventually human civilisation will destroy itself
Professor Eben Moglen Recovering From Open Heart Surgery
From his public pages (this is not secret)
 
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 17, 2025
IRC logs for Wednesday, September 17, 2025
Slopwatch: Fake Articles, Fake Text, Fake Images, Negative Slant on "Linux"
Google News has lost its value; the signal-to-noise ratio has fallen off a cliff
Gemini Links 17/09/2025: Relax-and-Recover on Proxmox and New Smolweb File Transfer Service
Links for the day
Fact: EFF Got Corrupted by Corporate Money. Microsoft Lunduke (Political Noise): The Issue With EFF is, It Kills Babies.
Microsoft Lunduke - as usual - finds a way to make it about abortions
Pacing Publication Up a Bit
The news cycles have gotten rather light and slow
Links 17/09/2025: Power Outages, Digital Controls, and Attacks on the Mainstream Media (by Insecure and Corrupt Dictators)
Links for the day
Gemini Links 17/09/2025: Flashing LineageOS and ROOPHLOCH
Links for the day
Links 17/09/2025: Long COVID Study, "Exposing Pegasus", and Chatbots Exposing Sensitive Data
Links for the day
Links 17/09/2025: Secret Settlement for Internet Archive and Google’s LLM Slop Summaries Attracting Lawsuits
Links for the day
The True Cost of 'Generative Models'
Funded and promoted by the companies that profit from the waste
'Big Slop' Attacks Contemporary Information/Knowledge and Creative Works, 'Big Copyright' (Cartel) Attacks the Old
Someone at IA will hopefully "blow the whistle" on what they actually agreed
Why We Find It Difficult to Trust Rust
A comparison between C/C++ and Rust
Watching the OSI: Our Series Will Carry on Irrespective of the Chief's 'Resignation'
the OSI isn't even the real guardian of the term "Open Source"
Just What LibreOffice Needs? Another Language? (Rust)
what's all this concern about memory safety?
Many Microsoft Managers Are Leaving
"Hey hi" chaff or chaff about "hey hi" cannot eternally distract from the difficulties inside the company
There Are Red Hat (IBM) Layoffs, But Google News is Infested With Slopfarms
It contributes a lot to misinformation and it encourages plagiarism
Tomorrow, Microsoft's Tim Anderson's 'The Register MS' Offshoot Will Have Been Inactive for 2 Months (There's Also a Slop Problem)
We've already caught The Register MS using LLM slop for articles
Microsoft's Chief Legal Officer Leaves Microsoft After Nearly 30 Years
And not retiring
Even Windows Users Are Having Problems With "Secure Boot"
When it comes to security - Microsoft strives for the very opposite
Another Competition Crime of Microsoft, Long Facilitated and Advocated by a Bad Actor, Who is Funded by a Third Party to Commit Extortion Against People Who Have Correctly and Repeatedly Warned About It for Over 13 Year
We must always go back to the core issues
3 More Reasons to Replace Mozilla Firefox With LibreWolf
Thankfully there are de-enshittified versions of Firefox
USA Not a Place for Free Speech
In America, as in the US, the attacks seem more enhanced or advanced these days
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 16, 2025
IRC logs for Tuesday, September 16, 2025
Links 17/09/2025: Google Layoffs in "Hey Hi" (AI), Perplexity Hit With More "Hey Hi" (Plagiarism) Lawsuits
Links for the day
Gemini Links 17/09/2025: Reclaiming Things in a Digital Age and Moon Phases in CGI
Links for the day
Slopwatch: Google News is Slop, Google News is Plagiarism, Google News is Dying
Google is off the rails
Links 16/09/2025: "The Censorship Alarm Is Ringing in the Wrong Direction" and ASRock Does Microsoft E.E.E. on GNU/Linux
Links for the day
Serious "Breach of Confidentiality of Personal Data" in Europe's Second-Largest Institution, the EPO
Yes, the same EPO that routinely uses "data protection" and "GDPR" as a pretext for hiding or covering up its corruption and white-collar crimes (it even uses that as an excuse for refusing to obey courts' orders)
Adrienne Rockenhaus Says Her Husband Was Arrested for Running Tor and Denied Basic Rights in the United States
the US seems to be getting "russified" in its approach towards Tor
This is What Happens When Microsoft Canonical Lets Decisions on Ubuntu be Made by a Youngster From the British Army (Where He Did Mass Surveillance)
"Is Ubuntu Compromised?"
Back Doored Windows Giving GNU/Linux a Hard Time (Under the Guise of 'Security')
Is this complication intentional? Most likely, yes
Links 16/09/2025: Science, Security, and Conflicts
Links for the day
Gemini Links 16/09/2025: Command-line Options in POSIX Shell and Introducing Acre 0.9
Links for the day
Microsoft 'Secure' Boot Versus Dual Boot With GNU/Linux
they're meant to assume everything is OK
Links 16/09/2025: While Oracle Pretends to be Rich It's Firing About 70 MySQL Workers, "Oracle's Revenge" (Faking Demand With "AI")
Links for the day
Microsoft Has Just Published a New Web Page About "Secure Boot Update Process" (Microsoft Also Admits Issues; PCs Can Stop Booting)
Why was this page issued and published only hours ago?
Microsoft Lunduke: I Spread Hate and Then I Receive Hate
Cry us a river, Microsoft Lunduke
"Use Wayland" Isn't a Bugfix for X (X11 is Still Necessary)
They tell us X is "dead" and we must all be herded into Wayland ASAP
"Disable Secure Boot and Fast Boot. Wipe and Start Over."
At least they didn't say, buy a new computer...
The Oracle Ponzi Scheme
Oracle isn't doing well, but it's nowadays fashionable to say "clown" and "hey hi" to prop up one's stock, even based on nothing at all
The New Head of OSI is an "Hey Hi" (AI) Obsessed Person
when Bryant says "AI" that doesn't mean AI
Taking Out the Battery, Opening Up Your Computer, Just Like a "Normie" Would
At this stage, any person who still says "enable Secure Boot" is misguided or persuaded by companies that sell rootkits
Slopwatch: Serial Sloppers and Slopfarms Still Infesting Google News (Fake 'Articles' About "Linux" Spreading FUD)
searching for "Linux" today yields a lot of FUD
"Governments, local authorities, schools and hospitals can lead by example by procuring only Free Software"
Crossposted from Tux Machines
Cindy Cohn Leaving the Electronic Frontier Foundation While Its Co-founder John Gilmore, Whom She Apparently Helped Oust, Will Celebrate 40 Years of the Free Software Foundation, Inc.
EFF has been busy hoarding GAFAM money, whereas the latter is where all the real activism is done
The Reach of Techrights Has Broadened
We nowadays cover a broader range of issues
"Google is Googlebombing KDE's Project Banana"
So is Google googlebombing KDE's Project Banana? You decide.
Complicating Things for No Actual Benefit, Just Added Risk and More Difficulties Adding GNU/Linux and BSDs
Watch what it's like for people who wish to use BSDs
Some Very Large IRC Networks Are Growing
IRC will turn 38 next year
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 15, 2025
IRC logs for Monday, September 15, 2025
Links 16/09/2025: Autumn Party, RPG Planet, and Optical ROOPHLOCH
Links for the day