Bonum Certa Men Certa

Misleading (or Partial) Information About PTAB, CAFC, Software Patents, and Patent Trolls in EDTX

Law firms are not being frank about the reality of inter partes reviews (IPRs), low success rates of software patents, and biases of courts in East Texas

Robert Kardashian
Robert Kardashian of the Simpson murder case



Summary: New articles about the Patent Trial and Appeal Board (PTAB), the Court of Appeals for the Federal Circuit (CAFC), and the Eastern District of Texas (EDTX) which neglect to show the full picture, typically for promotional (marketing) purposes

THERE are many sayings about lawyers. Among them:





There are many more. The main point, however, is that whatever lawyers say should be taken with a grain of salt because lawyers work for lawyers (themselves) and sometimes they need to also give a sufficiently compelling impression that they work for clients.

"The main point, however, is that whatever lawyers say should be taken with a grain of salt because lawyers work for lawyers (themselves) and sometimes they need to also give a sufficiently compelling impression that they work for clients."In the domain of patents, our view of lawyers was largely shaped by what we had read from them. When they don't manage to embed themselves in articles from actual journalists they write nonsense in their own sites (or "blogs"), sometimes even in journals that target other lawyers and give tips, otherwise simply preach to the choir. There is an utter lack of honest, independent journalism about patent law, as we habitually point out.

Unified Patents, not to be mistaken for Unified Patent Court (UPC), has just taken on some trolls by challenging their patents, i.e. the only things that they have. We covered that earlier this year and patent maximalists now say that Unified Patents filed as many as 64 petitions against patents. The piece, from a law firm, is basically shameless self promotion, but in it there are some interesting numbers:

Petitioner Unified Patents, LLC filed an IPR petition challenging 29 claims of US Pat. No. 8,640,183 owned by Convergent Media Solutions, LLC. Unified’s numerous inter partes review (“IPR”) petitions rarely reach a final written decision, but here the Board issued such a decision and invalidated all of the remaining challenged claims. Unified Patents, LLC. v. Convergent Media Solutions, LLC, IPR2016-00047, Paper 23 (P.T.A.B. March 29, 2017).

[...]

To date, Unified has filed 64 IPR petitions, many of which are still pending or settled before a final decision. Unified typically challenges software and electrical patents, which have an aggregate institution rate of 71% (1931/2724). Unified’s institution rate is much lower at 49% (19/39). Even more notable is the fact that only 8.5% (4/47) of Unified’s completed, no longer pending, IPRs have reached a final written decision. This is much lower than the aggregate rate of 34% (1474/4345) for all patent IPRs.


What they are trying to say is, come to us, we'll protect your patents from challenges. Sadly for them, however, petitions (IPRs) come from many more directions than Unified Patents and these are typically successful (patent/s invalidated).

"Unified Patents, not to be mistaken for Unified Patent Court (UPC), has just taken on some trolls by challenging their patents, i.e. the only things that they have."Another law firm, Pearl Cohen Zedek Latzer Baratz LLP, has just published this piece that promotes the perception software patents have become more potent. Caleb Pollack and Kyle Auteri from this firm use their cherry-picking skills to paint a misleading picture. As one who has been following it closely, this is nonsensical cherry-picking of very old CAFC cases (as old as a year ago and most recent half a year ago). Here is the core argument:

While this is only one panel of three judges out of over 115 judges participating in ex-parte appeals at the PTAB, and it is unclear if the PTAB is more inclined towards finding claims are patent eligible than examiners, it is clear that the chances of overcoming software related rejections have improved since the Federal Circuit decisions in Enfish, Bascom, and McRO, decided in May 12, 2016, June 27, 2016, and September 13, 2016, respectively.


If these law firms were more honest, they would acknowledge that never before, at least in recent decades, were patents on software so hard to defend in court (never mind lenient examination at USPTO).

"Some of the worst (meritless) patent cases go to East Texas and still, in spite of the low quality of patents, the judges rule for the plaintiff, even when the plaintiff makes nothing at all."Last but not least, here is a new article about the likely fate of East Texas as 'litigation central' or 'rocket docket'. Earlier this week and last week we wrote a great deal about it, but here is more:

On paper, Kraft v. TC Heartland is not a very exciting case. It’s a lawsuit involving artificial sweeteners and the plastic containers they come in. It’s not the kind of case one would expect to make it all the way to the US Supreme Court and have sweeping implications for the future of the US technology industry. But let’s back up.

Kraft makes a product called MiO, a liquid artificial sweetener it calls a “Liquid Water Enhancer.” TC Heartland, a limited-liability company based in Indiana, makes a similar product: the “Refreshe Fruit Punch Drink Enhancer.” Kraft sued TC Heartland in 2014, saying it infringed upon three patents related to the containers the products come in.

[...]

Clearly, the idea here is that patent trolls have some sort of advantage in East Texas. But what is it? Do juries in this court tend to lean toward the plaintiffs? That was a question Justice Anthony Kennedy put to Kraft’s lawyer, William Jay, during the arguments last Monday. He asked whether “generous jury verdicts enter into this, or is that something we shouldn’t think about?”


The courts and the district actually advertise this bias. Is this not any more obvious? Some of the worst (meritless) patent cases go to East Texas and still, in spite of the low quality of patents, the judges rule for the plaintiff, even when the plaintiff makes nothing at all.

Recent Techrights' Posts

Techrights Does Not Compete With LLM Slop, It Exposes the Bastards, Plagiarists and Scammers Who Do That
People like Scam Altman, still facing a lawsuit from his own sister for sexual abuse against her
Slopwatch: Planet Ubuntu Became LLM Slop and Some People Fail to See the Immorality of Plagiarism
it lessens the incentive for people to publish real articles
Microsoft Layoffs Again in Bay Area
Microsoft relies on people's false belief that being "in LinkedIn" will get you a job; well, seems like even working inside LinkedIn really sucks and you lose the job
 
The "AI" (Slop) Bubble Already Popped, But It's Not an Overnight Collapse
where Microsoft put its money
No More Steven Astorino at IBM, Chatter About Weekly/Nonstop Layoffs at IBM
What happened? Good luck guessing.
Looking at Corruption in Europe, Going Beyond the EPO
Expect a new series to kick off very soon
Slopwatch: Security SPAM and LLM Slop for SEO and FUD Purposes, Perpetually Tarnishing the Perception of Linux and (Open)SSH Security
A lot of this Fear, Uncertainty, Doubt (FUD) comes from Microsoft and its LLMs
Links 30/05/2025: Google's LLM Slop Pushers Are Killing Journalism and Shira Perlmutter Fails to Stop Bribed Regime From Legalising Plagiarism (in "AI" Clothing)
Links for the day
Links 30/05/2025: Offline Arts and "Threshold of Patience"
Links for the day
Signing Off Serious Lies With a Statement of Truth is No Joking Matter
It's not hard to see what's happening here
Links 30/05/2025: LLM Slop Already Ingests and Vomits Its Own Garbage, Facebook Exec Admits Copyrights a Concern Too
Links for the day
Mass Layoffs at Microsoft Result in More Whistleblowers From Microsoft
Microsoft's predatory pricing is further
EPO Poll: 68% Dissatisfied With Quality of Slop (Wrongly Framed as "AI") for Patent Classification
Slop does not work, it's just falsely advertised with extra hype (funded by slop pushers that sponsor the major media)
Big Crowds Gather to Learn About Software Freedom From the Man Who Started GNU/Linux in 1983
"It was a great success"
Gemini Links 30/05/2025: Fighting Against the Bad News, and Slop is Dehumanisation Disguised as "Intelligence"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 29, 2025
IRC logs for Thursday, May 29, 2025
Links 29/05/2025: Chinese Cracking Against EU Institutions (Prague), More Assaults on Media and Its Funding Sources
Links for the day
EPO Workers Caution That the Officials Are Still Illegally Trying to Replace Staff With Slop (to Lower Quality and Validity of European Patents)
Nobody in Europe voted for any of this
Links 29/05/2025: US Health Deficit and Malware Disguised as Slop Generator
Links for the day
Links 29/05/2025: Turtle Roadkill, Modern 'Tech' as a Sting
Links for the day
Thanks for All the Fish, Linux Format
people who once wrote for it (or for other magazines) comment on the importance of this news
People's Understanding of the History of GNU/Linux is Changing
RMS is not a radical, he's just clever enough to see and foresee what's going on
Microsofters Were Scheming to Take Over This Entire Web Site (in Their Own Words!)
Money gets spent censoring/deplatforming people who speak about real issues; no money gets spent actually tackling those underlying issues
Bicycles for the Minds and the Story Harrison Bergeron
"The goal of having people in charge of the tools they use and that the tools should amplify ability" has long been abandoned
Links 29/05/2025: YouTube Problem and Giant Privacy Hole in Microsoft OneDrive
Links for the day
[Video] Cory Doctorow Explains DMCA: DRM in the Browser (or Webapp) Will "Make It a Felony to Protect Your Privacy While You Use It."
Pycon US Keynote Speaker Cory Doctorow
United States Courts With Sworn Testimonies Are on Our Side, We'll Present the Same Here
Chronicling what happened is a moral imperative
Serial Sloppers Ruin and Lessen the Incentive to Cover "Linux"
The Serial Sloppers (SSs) ought to be named and shamed, but almost nobody does this
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 28, 2025
IRC logs for Wednesday, May 28, 2025
Links 28/05/2025: 'Emulation Layers' (Measurements and Linguistics), Libraries, and Discomfort
Links for the day
Links 28/05/2025: More Arrests for Bitcoin-Connected Torture and Prosecutions for Dieselgate-Linked Executives
Links for the day
Even Microsoft (MSN) Covers Richard Stallman's Public Talk in Milan 2 Days Ago
He spoke in Spanish earlier this month (Alicante)
Gemini Links 28/05/2025: Techo-authoritarianism With Slop Plagiarism and "No Online June" (Going Offline)
Links for the day
Links 28/05/2025: GitHub MCP Exploited and MathWorks Discovers Huge Windows TCO
Links for the day
Very High Attendance Level at Richard Stallman's Talk Shows People Can Relate to His Message
Smear campaigns have their limits
Gemini Links 28/05/2025: Celsius-Fahrenheit, Endless Scrolling/Infinite Scrolling, and Trapping LLM Slop Bots
Links for the day
Prison gate backdrop to baptism by Fr Sean O'Connell, St Paul's, Coburg
Reprinted with permission from Daniel Pocock
More Photos From This Week's Milan Talk by Richard Stallman
The posts are in Italian, not English
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, May 27, 2025
IRC logs for Tuesday, May 27, 2025