Bonum Certa Men Certa

The Malicious Campaign to Slow Down or Cripple the Patent Trial and Appeal Board (PTAB)

The patent microcosm wants to reduce patent quality (for profit)

PTAB



Summary: The primary mechanism for defense from patents on software (and patent trolls that exploit these) is still under attack from those who profit from patent maximalism, i.e. low patent quality and frivolous litigation

THE impact of Alice and €§ 101 is profound. The patent microcosm is in somewhat of a panic because, in its own view, it's all just a storm (to their business model of litigation).​



Assisting this microcosm are a few sites which we took note of before. Dennis Crouch of Patently-O, for example, is still hoping to slow PTAB down and help patent trolls etc. -- those who rely on software patents the most. The other day he reprinted a piece from Saurabh Vishnubhakat of Texas A&M University School of Law (near the capital of patent trolls). When Patently-O covers a PTAB 'case' it's usually a pro-software patents one (Cuozzo in this case) and this one is no exception. To quote:

The Federal Circuit’s panel decision in Achates Reference Publ’g, Inc. v. Apple Inc. held that PTAB decisions to institute IPR are unreviewable even where the €§ 315(b) time bar may have been violated. The en banc question here is whether to overrule Achates.

The USPTO’s interest in the case was clear from the large group of agency employees in attendance, including members of the PTAB and the Solicitor’s Office as well as Director Michelle Lee herself. The USPTO also formally intervened in the case and designated Mark Freeman from the DOJ Civil Division’s Appellate Staff to argue.



On another day last week Patently-O again complained that the Court of Appeals for the Federal Circuit (CAFC) isn't wasting its time delivering a written judgment on every appeal from PTAB (as that would be almost infeasible). "The Federal Circuit," Patently-O wrote, "has denied Leak Survey’s petition for rehearing en banc on the issue R.36. Perhaps ironically, the court has continued to remain silent on its justification for issuing judgments without opinion. Although the Supreme Court has generally empowered appellate courts to issue summary affirmances without explaining reasoning for their judgment, the statutes provide special rules for cases arising from patent and trademark cases. On the patent side, 35 U.S.C. €§ 144 requires the Federal Circuit to hear appeals from the PTO, “review the decision,” and, once a decision is reached “the court shall issue to the Director its mandate and opinion.”"

How long is Crouch going to keep 'harassing' them in an effort to stifle the work of PTAB? Currently, CAFC agrees with PTAB about 80% of the time, based on an exhaustive survey of cases (both last year and this year). The thing about the patent maximalists is, they want more litigation and patent feuds. That's just what they make money from and PTAB together with CAFC disrupt that. The patent microcosm is hoping to slow down PTAB, as we pointed out before, and Michael Loney says that they may be succeeding as after a record month there's this slump: "The 121 Patent Trial and Appeal Board (PTAB) petitions filed in April was the lowest since the 118 in March last year. This follows a record quarter for filing at the start of this year, with 246 petitions filed..."

We certainly hope to see PTAB's invalidation rate going up and number of petitions accelerating over time, in spite of smears and personal attacks from the patent microcosm.

A couple of days ago Morrison & Foerster LLP published this piece at IP Watch in which it said:

Thus, it appears likely that the Commission and the ITC Judges will be required to increasingly consider parallel IPR proceedings in ongoing Section 337 investigations, particularly where IPRs are at “advanced” stages.


What it means to say is, there are ITC cases (impending embargoes) that are hinged on dubious patents which may be about to get trashed by PTAB. Earlier today we wrote about one such case involving Microsoft's patent troll Intellectual Ventures. We certainly hope that Alice, leveraged by PTAB judges, will help stop such trolls.

Recent Techrights' Posts

Windows Has Fallen to All-Time Lows in Switzerland Since GNU Celebrated 40th Anniversary (GNU’s 40th Birthday in Biel, Switzerland)
GNU/Linux has been doing well in Switzerland
One Person's Take on Jef Spaleta, the New Fedora Project Leader
"With a little searching, I wonder what else may be found regarding Microsoft."
LLM Slop Has Virtually Killed unixmen.com and Many Other Sites
There's no longer any incentive to write real articles in there
 
In Some Countries, Laptops and Desktops Become a Dying Breed (Even Before Tariffs), Windows Has Nowhere to Go
expect more GNU/Linux on new and existing laptops
When the Credibility or 'Quality' of Clients Ceases to Matter, It's About Helping Rich Companies Like Microsoft Censor Critics (No Matter the Risks)
Bad ideas typically result in undesirable outcomes
UAE: GNU/Linux and Android at Record Levels, Windows at New Lows and Falling Below Apple
Even iOS is measured as bigger than Windows this month
Links 07/04/2025: Reddit Occupied (Social Control Media Controlled by Oligarchy), Demise of Globalisation Ongoing
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 06, 2025
IRC logs for Sunday, April 06, 2025
Links 07/04/2025: Leaving Gemini/smolweb and Mastodon Migrations
Links for the day
In Iraq, Windows 3.1 (Percent)
There's also zero
Links 06/04/2025: Flood, Cool Gemini Capsule, and Long Form
Links for the day
Links 06/04/2025: Science, Politics, and Pricier Goods
Links for the day
Sharp Declines for Microsoft Windows in Bangladesh (Pop. ~175,000,000), Big Gains for GNU/Linux
Microsoft Windows has been having a really hard time in poor countries
Links 06/04/2025: Fake Reviews, Privatisation Heists, and "AI" as Smokescreen for Impoverishing Humans
Links for the day
Taking a Moral Stand Against Strategic Lawsuits Against Public Participation (SLAPPs) and the Worst Offenders/Facilitators
Any other stance would sidle with moral depravity or moral hazard
Links 06/04/2025: Many New Acts of Repression and Elements of Financial Depression
Links for the day
In Qatar GNU/Linux Rose From Under 1% to Over 4% in Two Years (or Over 5% If Counting ChromeOS)
It's a big improvement compared to what we saw last year
LLM Scrapers Are a Nuisance, But They're Also a Reminder It's Time to Make Your Site Static
Perhaps the best protection is the ability to endure surges
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, April 05, 2025
IRC logs for Saturday, April 05, 2025
Links 06/04/2025: Attacks on Education, Fake Patents, and Fake (Illegal) Patent Courts
Links for the day
France: Apple and Microsoft Down, GNU/Linux Up to New Record Levels
How will tariffs against France impact things in the coming months?
Open Source Initiative (OSI) Privacy Fiasco in Detail: What Was Reported to the California Privacy Protection Agency (CPPA)
We hope to finish this whole lot within a week, then move on to election, lobbying etc.
Links 05/04/2025: Tariffs Backfiring, YouTuber Arrested, X/Twitter Set to be Fined
Links for the day
Gemini Links 05/04/2025: Offline is For Everyone, Copyright Colonialism, and More
Links for the day
Links 05/04/2025: TikTok Unsold (Still), Royal Society is Dead
Links for the day
Techrights Will Spend the Next Few Years Writing a Lot About Strategic Lawsuits Against Public Participation (SLAPPs)
It's a growing problem
The State of EPO Staff's Health in Rijswijk or The Hague
We're going to cover the EPO some more later in the month
NVIDIA Corp Lost 36% of Its "Value" Since Cheeto Inauguration, But "Gen Hey Hi" (GenAI) is Totally Not a Bubble
Selling loads of unneeded hardware based on hysterical hype; like selling shovels during a Gold Rush
GNU/Linux Growing in East Asia, Windows by Default No More?
GNU/Linux is now on the shelf
Slopwatch: Anti-Linux 'Articles' From Linux-Hostile LLMs
It is almost always negative things and nobody can be held responsible for it except the charlatans prompting the LLMs
Links 05/04/2025: Fentanylware (TikTok) "Sale Looks Highly Imminent" (US), Stock Market Drowning in Panic
Links for the day
Gemini Links 05/04/2025: Moving Plants, No to Smartwatches, RAID Hygiene
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 04, 2025
IRC logs for Friday, April 04, 2025