Bonum Certa Men Certa

“Federal Circuit Had Affirmed on Every Issue in 77.4% of the Patent Trial and Appeal Board Appeals it Had Seen” in 2016

Summary: The Federal Circuit (CAFC) and Patent Trial and Appeal Board (PTAB) continue to squash a lot of patents on software, in contrast to that fake news from patent maximalists

WHENEVER PTAB (or a petitioner) puts forth an inter partes review the likelihood that the patent in question will be invalidated is high. In a sense, even without any lawyers and lawsuits, old rubbish patents find their way into the wastebasket. It's like a cleanup operation inside the USPTO and the patent microcosm absolutely loathes it.



Some firms celebrate managing to escape the jaws of PTAB, whereas others see their patents turn to dust. They sought patents on non-inventions in the first place, so what did they expect?

Writing about a case which was mentioned here before, here is another report about an inter partes review:

Phigenix was a "for-profit discovery stage biotechnology, pharmaceutical, and biomedical research company". Although Phigenix did not make products, it purported to have an extensive IP portfolio, including US Patent 8,080,534 (the ''534 patent'), which Phigenix alleged covered Genentech's activities relating to Kadcyla. Phigenix asserted that it "was forced" to challenge ImmunoGen's '856 patent in IPR2014-00676 after Genentech refused to license Phigenix's '534 patent. In that inter partes review proceeding the Patent Trial and Appeal Board (PTAB) ultimately found ImmunoGen's '856 patent valid. Phigenix appealed the PTAB's decision to the Federal Circuit.


"A great deal of angst [angst only for the patent microcosm] has been generated by the Patent Trial and Appeal Board's decision," wrote another site, "in Ex parte Itagaki and Nishihara, regarding the panel's application of Section 101 (sua sponte as a new ground of rejection under 37 C.F.R. ۤ 41.50(b)) that claims to a magnetic resonance imaging machine do not recite patent-eligible subject matter."

Section 101 pertains to software patents, among other things. Here are some interesting new statistics about the Federal Circuit's agreement with PTAB:

As of the end of the year, the Federal Circuit had affirmed on every issue in 77.4% of the Patent Trial and Appeal Board appeals it had seen. Finnegan has analysed what parties can expect from cases that are remanded to the Board

Finnegan Henderson Farabow Garrett & Dunner has published the latest statistics on the success of Patent Trial and Appeal Board (PTAB) appeals at the Federal Circuit.


This helps refute a lot of the nonsense we have been seeing at Watchtroll -- a site so focused on attacking PTAB, even cherry-picking cases ("graphical user interface patent") to make it seem as though CAFC changed its tune. To quote Watchtroll's accompanying tweet: "Will the PTAB find claims ineligible in a CBM that the CAFC just found to be eligible in litigation?"

Dennis Crouch also wrote about graphical user interface patents this week. These are essentially design and/or software patents, like that infamous progress bar patent. They should not have been granted in the first place.

"The Federal Circuit will also issue two en banc decisions from PTAB appeals," MIP wrote the other day. It's mentioned among US "Cases to look out for in 2017," which include Lee v Tam:

The Supreme Court in the past two months has added two more patent cases – and they are both big ones – as well as hearing arguments in two others.

Following arguments in Lee v Tam on January 18, so far this term the Supreme Court will have heard arguments in five intellectual property cases (and already decided one of them) and is awaiting arguments in three more.


It's a trademark case (still USPTO, as the "T" does not stand for patents) and it's a subject that Patently-O repeatedly covered recently [1, 2]. Today it wrote: "First Amendment says: “Congress shall make no law … abridging the freedom of speech.” My question that I still do not understand for the Tam case: How is Tam’s speech being abridged by denial of his registration?"

The USPTO will never be perfect, but the very existence of PTAB is a step in the right direction and software patents, as per CAFC, are a barrier if not a violation of free speech (First Amendment). It is also useful to see statistics reaffirming CAFC's support for PTAB, contrary to what the patent microcosm is trying to tell us (sparking perception of feuds that do not actually exist).

Recent Techrights' Posts

Free University of Bozen-Bolzano Proud to Host Free Software Talk by Richard Stallman
ahead of Monday's talk
Slopwatch: Anti-Linux Machine-Generated FUD (LLM Slop) From GBHackers, CybersecurityNews, and Guardian Digital, Inc (Google News Promotes Slop Plagiarism, Misinformation)
Companies that lie try to drown out the signal with falsehoods
 
Microsoft's Market Share in Cameroon Falls to New Lows
This means a lot of Android users (iOS is about 4 times smaller), but Android does not mean freedom
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, February 21, 2025
IRC logs for Friday, February 21, 2025
The Streisand Effect is Real
So don't be evil. Also, don't strangle women.
Links 21/02/2025: Linux Foundation Openwashing, Microsoft Copilot Goes Down
Links for the day
Links 21/02/2025: Doomscrolling and European Ham Radio Show
Links for the day
Links 21/02/2025: TikTok Layoffs, WebOS Software Patents in Bad Hands
Links for the day
Gemini Links 21/02/2025: Web Browsers, Mechanical Shortcuts, and Internet Hygiene
Links for the day
Richard Stallman 'Only' Founded the FSF
there's no reason to be upset at the FSF for keeping their founder in the Board
Techrights Disconnected From the United States Two Years Ago
Did people really need to wait for the US government to become this hostile towards the media before recognising the threat?
Before Trying Censorship by Extortion the Serial Strangler From Microsoft Literally Begged Us to Delete Pages
This is very clearly just a broad campaign of intimidation
Hype Watch: Weeks After Microsoft Disappointed Investors With "Hey Hi" It's Trying Some "Quantum" Hype (Adding Impractical Vapourware to Accompany This Hype and Even LLM Slop in 'News' Clothing)
Remember "metaverse"? What happened to media hype about "blockchain" and "IoT"?
Report About February Mass Layoffs at Microsoft (Third Wave of Microsoft Layoffs in 2025) Comes Back From the Dead
Yesterday we wrote about an article in CRN (reporting Microsoft layoffs) being removed without any reasons specified
Links 21/02/2025: Myanmar Scam Centre and Disruptions at USPTO
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, February 20, 2025
IRC logs for Thursday, February 20, 2025
gbhackers.com is Not Hackers, It's LLM Slop Outputs (Fake 'Articles') That Attack 'True Hackers'
A site called linuxsecurity.com keeps doing this and now we see the slopfarm gbhackers.com doing the same
Gemini Links 20/02/2025: Law of Warming and Cooling, Health, and Devlog
Links for the day
linuxsecurity.com Continues to Spread Lies or Machine-Generated FUD (Microsoft LLMs Likely the Source) About OpenSSH and Linux
this LLM problem is global
Links 20/02/2025: Microsoft Infosys Layoffs and IRS Layoffs (Good News for Rich Tax Evaders)
Links for the day
IBM Layoffs in Europe Already Happening or Underway (UK and Spain). They Try Not to Call These "Layoffs".
"CIO" in particular was repeatedly mentioned lately, as was Consulting
People Who Came From Microsoft Demanding Removal of Articles About Them, About Microsoft, and About Microsoft GitHub is "Generous" (According to Them)
Imagine choosing a law firm that borrows money in the same year just to avoid overdraft in the bank!
Possibly a Third Round of Mass Layoffs at Microsoft in 2025 ("Cloud Solution Architects, Customer Roles"), Report Removed or Censored
This is literally the top story for "microsoft layoffs" right now
Instead of 'DoS Protection' Cloudflare is Allegedly Conducting 'DoS Attacks' on Users of Browsers Other Than Firefox and GAFAM's DRM Sandboxes (Chrome, Safari and Others)
If you value the Web, you will avoid Cloudflare
Mixing Real With Fake in One 'Article' (by "Director of Content, Help Net Security")
From what we can gather, he got machines to generate some slop for him
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, February 19, 2025
IRC logs for Wednesday, February 19, 2025