Bonum Certa Men Certa

The Appeal Board (PTAB) and Federal Circuit (CAFC) Maintain Good Pace of Patent Elimination Where Scope Was Exceeded

It's driving the patent maximalists nuts!

PTAB impotence



Summary: The Court of Appeals for the Federal Circuit (CAFC) continues to accept about 4 out of 5 decisions of the Patent Trial and Appeal Board (PTAB) and the US Supreme Court (SCOTUS) refuses to intervene

WE are very gratified to see the USPTO improving patent quality by means of appeals, or by revisiting and reassessing already-granted patents. There has been a lot of news about that this past week and below is an outline.



CSIRO/CRISPR



We previously wrote a number of articles about CSIRO and CRISPR, which served to demonstrate unjust patents that went against public interests, sometimes at the expense of the public. Well, PTAB, based on this new blog post, finally -- one might say belatedly -- takes on CRISPR and the patent parasite, CSIRO (Commonwealth Scientific and Industrial Research Organisation), which earned a lot of disdain/notoriety for its patent strategy. "The gene-editing tool CRISPR," IAM wrote, "is in the process of transforming the life sciences industry."

"We certainly hope that PTAB will somehow take public interests into account, but that's not how PTAB works."IAM means privatising and monopolising, even by means of lawsuits. The promotional and defensive language carried on as follows: "Perhaps not surprisingly with such a revolutionary technology still in its relative infancy, a dispute over patents between universities and research institutes that have been at the forefront of its development, erupted over just who owns some of the foundational IP."

Maybe nobody? Especially given that money for this work came from the public?

We certainly hope that PTAB will somehow take public interests into account, but that's not how PTAB works. It assesses patents not on ethical grounds but based on the guidelines/laws/rules.

Watchtroll Still at It... Denying Facts



Watchtroll's PTAB bashing is nothing new (see screenshot at the top). The site continued with this bashing today (factually-flawed and structurally-incoherent drivel that's akin to fake news). According to this new article, which is based on statistics from the first day of the month, "Federal Circuit PTAB Appeal Statistics" suggest that in addition to the all-time high for PTAB in January, CAFC agrees with PTAB ~80% of the time. It means that PTAB is doing its job capably and correctly. To quote from Lexology: "Through February 1, 2017, the Federal Circuit decided 161 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 125 (77.64%) of the cases, and reversed or vacated the PTAB on every issue in 13 (8.07%) 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 14 (8.70%) of the cases."

"Put in simple terms, PTAB maintains its ability to crush bad patents and CAFC generally agrees with PTAB in 77.64% of the cases it looks at. "The statistics for 2016 were very similar, as we noted here before (the exact number was 77.4% rather than 77.64%, so the increase is marginal). Put in simple terms, PTAB maintains its ability to crush bad patents and CAFC generally agrees with PTAB in 77.64% of the cases it looks at.

ImmunoGen Case



Based on more news, PTAB continues to smash patents to pieces, and CAFC agrees, as usual. To quote:

After the Patent Trial and Appeal Board found claims of ImmunoGen Inc.'s U.S. Patent No. 8,337,856 nonobvious, non-practicing entity Phigenix, Inc. appea​led to the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit dismissed the appeal, finding that Phigenix lacked standing to appeal because it had not established it had suffered an injury in fact.

Prior to filing its inter partes review petition, Phigenix was engaged in litigation with a third company, Genentech, Inc., over a Phigenix patent, U.S. Patent No. 8,080,534. Phigenix asserted that the '534 patent covered Genentech's manufacture and sale of a drug, Kadycla. Genentech produces the drug under a "worldwide exclusive license" from ImmunoGen for the '856 patent. As part of its efforts to commercialize its own patent portfolio, Phigenix filed the petition for inter partes review of the '856 patent, alleging claims 1–8 were invalid as obvious over various prior art references.


Depomed Case



CAFC is again (as usual) agreeing with PTAB that Depomed's patent should be invalidated, based on this new report:

The Federal Circuit on Tuesday affirmed the U.S. Patent and Trial Appeal Board’s decision in an America Invents Act inter partes review that Depomed's patent on extended-release drug technology is invalid as obvious, saying the board’s conclusion is backed by substantial evidence.


Novartis Case



There is another high-profile 'case' (petition rather) in the pipeline. Here are the details from the news:

Days after rejecting a challenge from Roxane Laboratories to a patent related to Novartis' blockbuster cancer drug Afinitor, the Patent Trial and Appeal Board agreed recently to review the patent based on a challenge from another generic drugmaker, Par Pharmaceutical.

In a Feb. 15 decision, the PTAB found that Par Pharmaceutical Inc. had shown the patent was likely invalid as obvious. Par, which was previously sued for infringement, filed a petition seeking inter partes review last summer.


TradeStation Case



Justice does not seem plausible and is not perceived as legitimate when the outcome is always the same (like FISA rubber-stamping), so there are also exceptions. Here, for a change, "PTAB Follows Fed. Circ. Lead, Upholds Trading Patent" and to quote:

A split Patent Trial and Appeal Board on Friday followed the lead of the Federal Circuit and upheld a Trading Technologies International Inc. electronic trading patent, finding it was not invalid under the U.S. Supreme Court’s Alice ruling.

In a 2-1 decision, the PTAB said TradeStation Group Inc. and IBG LLC had not shown why it should break from the appellate court’s Jan. 18 decision, when the court ruled that a judge correctly found this and another Trading Technologies patent covered technological improvements, not abstract ideas...


PTAB Scares the Patent Microcosm



It's no secret that patent maximalists, unlike actual companies that make things, hate PTAB. In general, PTAB can help save/defend practicing companies, to whom patents are still a two-edged sword. Here we have a law firm asking (seeking attention from potential clients), "Can Your Patent Be Invalidated Without a Trial?"

"As there is no foreseeable case at the SCOTUS which involves software patents, we are pretty certain that there will be no challenge to Alice any time soon."Well, yes, and many software patents are already as valuable as nothing at all. They are toothless. Trying to litigate with them would benefit nobody except lawyers at both sides. In that sense, such patents may be even worse than none at all. But to quote the above: "Patent owners should be keeping a close eye on a case that may come before the Federal Circuit Court of Appeals that could potentially block challenges to patent validity outside of the courtroom. Cascades Projection v. Epson and Sony 1 asks the court to decide whether the rights granted by a patent are public or private and, in turn, if those rights are capable of being revoked without access to a jury trial."

We wrote about it earlier in the month. These are edge cases or rare exceptions; thus, promoting these to prospective clients is rather disingenuous and misleading. Or as one might call it -- marketing!

SCOTUS Defends CAFC and by Extension PTAB



One interesting case that we spotted today in the news involves a company called Big Baboon (real company name!) and its unusual attempts to challenge patent scope etc. at the US Supreme Court (SCOTUS). Software patents are still dead/dying after Alice, so Big Baboon attempted another angle and failed. To quote:

The U.S. Supreme Court on Monday declined to hear a petition by a Silicon Valley software company asserting that the Federal Circuit has routinely imputed patent law claims into lawsuits that challenge the U.S. Patent and Trademark Office’s procedures in order to exert jurisdiction over the cases.

The high court declined to hear Big Baboon Inc.’s Oct. 10 petition for writ of certiorari, which argued that it was in the public's interest that the justices stop the appellate court from the "ongoing and palpable" harm it...


This is good news. As there is no foreseeable case at the SCOTUS which involves software patents, we are pretty certain that there will be no challenge to Alice any time soon. There is also no indication from the Trump administration that AIA (which brought PTAB) will be in any sense revoked/undone.

Recent Techrights' Posts

Free Software Foundation's Miriam Bastian: We Surpassed Our Year-end Goal of $400,000 USD Thanks to You!
Miriam Bastian: We surpassed our year-end goal of $400,000 USD!
Red Hat Offers DRM, TPM, and Backed Doored 'Confidential' Containers (CoCo) for Microsoft (Proprietary Spyware)
No kidding!
[Meme] Plagiarism Does Not Eliminate Jobs by Replacing Humans, It Replaces Human Knowledge With False Cruft
We need to boycott sites that fake their output
[Meme] Doing Dog's Job (Not God's Job)
The FSF did not advertise the talk by RMS (its founder), who spoke in France almost exactly 23 hours ago
 
Links 22/01/2025: "The AI Bubble Is Bursting" and Microsoft's Scam Altman is Already Looking for De Facto Bailout From the Insurrectionist
Links for the day
Dr. Andy Farnell's Latest Article About Software Freedom and Richard Stallman
why Dr. Stallman is being picked on
Geminispace (Gemini Protocol) Offers an Escape From Social Control Networks Owned by Oligarchs and Governments
Gemini capsules that promote fascism and retreat to feudalism are rare and scarce
The Free Software Foundation (FSF) Has Formally Added an Outreach and Communications Coordinator
Maybe the addition happened last year (we mentioned it in passing), but now it's in the "rota"
Electronic Frontier Foundation: Fighting 'for the Poor and Powerless' While Taking Home $336,000 in Annual Salary
nowadays works for or serves not the interests of the masses
Of Note: The Misguided, Infiltrated, Weakened Electronic Frontier Foundation (EFF) Now Operating at a Loss of Over a Million Dollars
Worst since the COVID-19 lockdowns
[Meme] Omit Microsoft When It's a Scandal or a Breach, Whereupon It Becomes Just an 'IT Company'
Microsoft is like a cult. Members of this cult promote the opposite of security, expecting to be financially rewarded for it.
Calling Out Windows (TCO) is Apparently Impermissible in Some News Sites
The online news sites are failing us (and corporate sponsors play a role)
Richard Stallman's Remarks on His Pain
Published two days ago
Focusing on the Issues
we'll do our best to find the news and not talk about "Mr. T"
Only About 3.6% of Web Users in Pakistan Use Vista 11, According to statCounter
It's not hard to see why so far in 2025 Microsoft has already had several waves of mass layoffs - more than any other company
Rumour: In IBM, Impending "25% Reduction in Finance Roles"
25% to be laid off?
[Meme] Fake Articles From linuxsecurity.com (Just Googlebombing "Linux" With LLM Slop)
Google should really just entirely delist that site
RedHat.com Written by Microsoft Staff, Promoting Microsoft' Proprietary Software That Does Not Even Run on Linux!
This is RedHat.com this week...
Links 22/01/2025: Mass Layoffs at Stripe, Microsoft's Illegal Accounting Practices Under Scrutiny
Links for the day
Fake 'Article' by Brittany Day (Guardian Digital, Inc) About Linux Mint 22.1 'Xia'
Apparently they've convinced themselves that this is OK
Red Hat Dumps "Inclusive Language", Puts "Master" In Official Communications and Headlines
Red Hat: you CANNOT say "master" (because it is racist). Also Red Hat: we put in it our headlines.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, January 21, 2025
IRC logs for Tuesday, January 21, 2025
Gemini Links 21/01/2025: Media Provocations and Nazis Not Tolerated
Links for the day
Slopwatch: BetaNews Plagiarism and LLM Slop by UNIXMen
"state-of-the-art" plagiarism
What Fedora, OpenSUSE, and Debian Elections Teach Us About the State of Weak (or Fake) Communities
They show a total lack of trust in these communities
Links 21/01/2025: Mass Layoffs in "Security" at Microsoft (Despite Microsoft Promising It Would Improve After Many Megabreaches), Skype is Dead (Quietly)
Links for the day
Alternate Version of Daniel Pocock's 2024 Talk, "Technology in European Parliament Election Campaign"
There's loud ovation at the end of the talk
Gemini Links 21/01/2025: London Library, Kobo Sage, and Beyerdynamic DT 48 E
Links for the day
The January 20 Public Talk by Richard Stallman (Around Midday ET), Livestream 'Assassinated' by Google's YouTube
our guess is that the 'cancel mob' sabotaged it, possibly by making a lot of false reports to YouTube
[Meme] Free Software and Socially-Engineered Groupthink (to Serve Big Sponsors Like Google and Microsoft)
They do this to RMS all the time
[Video] Daniel Pocock's Public Talk About Free Software Politics, Social Engineering, Debian Deaths and Suicides, Coercion and Exploitation of Women
took many months to get
BetaNews Cannot Survive If Its Fake Articles Are Just SPAM for Companies Like AOHi and Aren't Even Composed by Humans
This is what domains or former "news" sites do when they die and look very desperately for "another way"
Pocock shot in the face, shot in the back, shot on Hitler's birthday saving France, Belgium and FOSDEM
Reprinted with permission from Daniel Pocock
Dr Richard Stallman in Montpellier, Robert Edward Ernest Pocock in France
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, January 20, 2025
IRC logs for Monday, January 20, 2025
Links 20/01/2025: Conflict, Climate, and More
Links for the day
Gemini Links 20/01/2025: Conflicted Feelings and Politics
Links for the day
Daniel Pocock's ClueCon 2024 Presentation Was Also Streamed Live in YouTube and Later Removed by Google, Citing "Copyrights". Now It's Back.
The talk covers social control media, Debian, politics, and more
Google 'Cancels' RMS
Is the talk happening?
Microsoft Revisionism Debunked by Microsoft's Own Words About “the Failure of OS/2”
The Register on “the failure of OS/2”
Improving Daily Links by Culling Spam, Chaff, and LLM Slop
the Web is getting worse
Links 20/01/2025: Indonesia to Prevents Kids' Access to Social Control Media (Addiction and Worse), Climate News Catchuo
Links for the day
[Meme] EPO Targets
Targets mean nothing if or when you measure the wrong thing
EPO Union Says Monopoly-Granting Targets at EPO "Difficult to Achieve Without Compromising [Staff] Health, Personal Time or the Quality of the Final Products" (Products as in Monopolies, Not Real Products)
To those of us (over 99.999% of people impacted by this) who do not work at the EPO the misuse of words like "products" (monopolies are not products) should be disturbing
The EPO is Nowadays Trying to Trick Staff Into Settling Instead of Solving the Underlying Problems of Corruption and Injustice
This seems like a classic case of "divide-and-rule" or using misled/weak people to harm the whole group (or "the village")
Links 20/01/2025: More PR Stunts by ByteDance and MLK’s Legacy Disrespected
Links for the day
Gemini Links 20/01/2025: Magnetic Fields, NixOS, and Pleroma
Links for the day
BetaNews Spreads Donald Trump Propaganda, Promotes Scams, and Publishes Fake 'Articles' About "Linux"
This is typical BetaNews
Richard Stallman 'Unveils' His January 20 Talk in Montpellier, France
It's free (gratis)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, January 19, 2025
IRC logs for Sunday, January 19, 2025