Bonum Certa Men Certa

The Federal Circuit Has Become the Go-To Place For Patent Appeals Arising From USPTO Errors

Knit US flagSummary: Patent appeals that come to CAFC as a result of bad Patent Office decisions now outnumber the appeals coming from district courts (an extraordinary situation)

THE Court of Appeals for the Federal Circuit (CAFC) is the court which deals with many patent lawsuits and is one level below the Supreme Court. It's the court which brought software patents to the US, but it's also the court which now (after Alice at Supreme Court level) invalidates many of these, more so than district (lower) courts do, pro rata.



CAFC is essential to our understanding of US patent law. Litigation is down sharply in the US, at least when it comes to patent litigation, and trolls too are a dying (albeit not dead) breed.

In our efforts to keep abreast of CAFC, this past week we learned about its decision on patents pertaining to chemicals [1, 2] and found this article from James P. Cleary and Paul Brockland of Mintz Levin Cohn Ferris Glovsky and Popeo PC. This new reports confirms to us that the USPTO process is being further restricted/limited by courts:

Though the Federal Circuit’s decision extended waiver to post-merger communications in this case, waiver may not apply in many post-merger discussions. For instance, the Federal Circuit emphasized limiting the scope of waiver based on subject matter and fairness. Accordingly, although attorney submissions during patent prosecution may result in waiver, such waiver is less likely to extend to subsequent patent owners or later discussions with trial counsel. However, waiver may extend if a court finds the application and patent prosecution disclosures were made with an eye toward litigation.


Put in simple terms, submissions to the US patent office regarding legal waivers would be fewer. This might be applicable if, for example, a company like Red Hat gets sold with its patents.

In another new post, this one about Prism (mentioned here a few days ago), it says that the "Federal Circuit has denied Prism Tech‘s petition for en banc rehearing on the question of deference to district court factual-findings that underlay a decision on patent eligibility."

Jason Rantanen, a Professor at the University of Iowa College of Law, took stock of CAFC decisions and said: "Given the increase in appeals from the PTO over the past few years, this graph is not all that surprising–but it’s still quite dramatic. As of mid-2017, the number of decisions in appeals arising from the PTO has exceeded the number of decisions from the district courts for the first time in the history of the Federal Circuit to my knowledge."

Yes, and hence the importance of the CAFC's pattern of decisions. As CAFC is a lot more likely to invalidate software patents (than district courts), this is good news too.

As patents and misconduct go hand in hand sometimes (we covered some examples of that), worth noting is the following report also:

Inequitable conduct in failing to disclose a reference is a defence to patent infringement that requires a showing of the materiality of a withheld reference and specific intent to deceive the US Patent and Trademark Office (USPTO) by withholding the reference during prosecution of the patent application. If proven, inequitable conduct renders the entire patent unenforceable.

In Regeneron Pharmaceuticals, Inc v Merus NV the Federal Circuit surprisingly affirmed that specific intent to deceive the USPTO can be inferred as a result of misconduct during a patent infringement lawsuit, even if such misconduct occurs several years after prosecution of the patent.


The basis for dismissing patent lawsuits seems to have become broader. CAFC in particular seems intolerant of anything that deems patents questionable.

There are exceptions, however, and one of these was covered a few days ago in relation to “programmable operational characteristic” in hardware. In this case, CAFC actually overturned a district court's judgment in favour of patents, so Patently-O was quick to (cherry-) pick it:

In a split opinion, the Federal Circuit has sided with the patentee and reversed a the [sic] district court judgment that Visual Memory’s patent claims improperly encompass an abstract idea. The opinion filed by Judge Stoll was joined by Judge O’Malley. Judge Hughes wrote in dissent.

Claim 1 of asserted U.S. Patent No. 5,953,740 is directed to a “computer memory system” that includes a “main memory” and also a “cache” both connected to a bus that can then be connected to a processor. The inventive element, is that the cache’s operation is programmable – allowing it to work efficiently with different processors. The claim particularly requires “a programmable operational characteristic of said system determines a type of data stored by said cache.” In the words of the court, “the memory system is configured by a computer to store a type of data in the cache memory based on the type of processor connected to the memory system.”


We remind readers that CAFC was historically very problematic when it comes to patent because it facilitated an explosion in the number of patents. However, the Supreme Court overturned CAFC almost every time in recent years. We hope that CAFC is learning its lessons and correcting its ways to avoid any further embarrassments, namely the Justices calling CAFC out.

It's time to help the patent bubble implode. It does nobody (except the patent 'industry') any favours.

Recent Techrights' Posts

Advocacy of Software Freedom Changed, LUGs Became Less Relevant
The way we see it, support groups like LUGs sort of outlived their usefulness when it became easier to install GNU/Linux
For the Second Time in a Few Weeks Microsoft Lunduke Makes False Accusations Against Senior Red Hat Staff to Incite a Despicable 'Troll Army'
Nothing that Microsoft Lunduke claims or says can be trusted
Compromised by NVIDIA Proprietary Library
Meanwhile in Boston there are "[r]oundtable talk with FSF volunteers (both in-person and online)"
How Software Patents Were Viewed or Their General Status Changed Over Time
A rough summary
 
Watch the FSF Party Live (via Livestream)
It's in WebM format, which is widely supported by now
When Microsoft "Integrates" Something With "AI" It Means It's Losing Money and Is Generally Hopeless
how did Bing fare after 36 months of LLM slop being hyped up as "replacement" for search?
Most Certificates Don't Improve Security, They Mostly Increase Downtime (for No Good Reason)
The 'Gemini sites' (capsules) are a growing force
The statCounter Site Has Data Integrity Problems
Maybe we'll get back to statCounter when its data becomes more "stable" again
10 Ways to Combat Software Patents
software patents are loathed also by proprietary software developers
"Just a Little Bit of Meat..."
Free software "absolutism" is not a radical stance, more so if the only "radical" belief the user possesses is that he or she must be in control of his or her software, and by extension his or her computer
Red Hat is Ignoring the Free Software Community, It's a "Fortune 1000" Vendor
Red Hat's blog also participates a lot in promoting of Wall Street's latest pump-and-dump "AI" scheme
Free Software Foundation Party Has Begun
We shall be focusing a lot on software patents today
Former Head of the Federal Trade Commission (FTC) Lina Khan Knows Whatever Microsoft Touches Will Die
Just like Skype (as recently as months ago) [...] When Microsoft grabs things, or when it buys things, it almost never ends well
Slopwatch: Fake Articles About LibreOffice in Austria and Wine 10.16
very short
Links 04/10/2025: "attempted Coup" Noted in Facebook, Russia Kills Journalists via Drones
Links for the day
Gemini Links 04/10/2025: Anesthesia and Baudpunk
Links for the day
Links 04/10/2025: "Privacy Harm Is Harm", Criticism Outlawed in US
Links for the day
Garmin Uses Linux for Some of the Garmin Products, Now It's Sued by Strava Using Software Patents
Software patents should never have been granted in the first place
Richard Stallman Will Give a Talk in Sweden in 6 Days
Dr. Stallman, despite his battle with cancer is still alive and mentally sharp
FSF Turns 40
We'll be focusing on patent-related topics this weekend
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 03, 2025
IRC logs for Friday, October 03, 2025
Gemini Links 04/10/2025: Distro Hopping and "Part Time"
Links for the day
We Are Turning 19 in One Month, FSF Turns 40 in 3 Hours (CET)
For our anniversary next month we still have no concrete plans
Patent Docs (or PatentDocs) Learned the Wrong Lessons From the Death of TypePad
Had they gone ahead with an SSG, they'd become a lot more future-proof
USPTO Patent Bubble Already Imploding, After Decades of Artificial Inflation, Entire Offices Close for Good
we can deduce that financial pressures (lack of "demand" for monopolies) play a role
TikTok is Not Harmless (Being CheeTok in the US Will Advance Orange Agenda)
Social control media isn't "fun and games"; it's a digital weapon that lets hostile groups or nations infiltrate others, then turn them against themselves
Andy Farnell and Helen Plews Explain What "Modern" Tech Does to Old People
Imposing terrible tech "religion" on people is not helping them
Tomorrow the Free Software Foundation (FSF) Turns 40 and Its Web Site is Still Slow Due to DDoS by LLM Slop Bots
For an advocacy group, uptime is important (for its message to remain accessible)
Slopwatch: Google News as a Firehose of LLM Slop About "Linux"
Google News is really bad
Datamation, Where I Used to Publish Articles, Appears to Have Been Sold to TechnologyAdvice Only to Become a Slopfarm
I'd prefer to not associate with that site anymore
Links 03/10/2025: "NPR’s Economics Lessons Come With Neoliberal Spin" and Canada Post at Risk
Links for the day
Gemini Links 03/10/2025: Panic Attacks and Food Adulteration
Links for the day
Links 03/10/2025: Lawyers Caught Using LLM Slop Explain Why They Did It, LibreSSL 4.1.1 and 4.0.1 Released
Links for the day
FSF Board Grew 50% Since Last Year, Has New President, Turns 40 in Two Days
It's a good move for the FSF and - by extension - for software freedom
Links 03/10/2025: Conflicts, Death of TypePad, and TikTok/CheeTok Gives a Boost to Far Right Groups in Europe
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 02, 2025
IRC logs for Thursday, October 02, 2025
Slopwatch: Linux Journal, Google News, and LinuxSecurity
They carry on polluting the Web with fake articles
Gemini Links 02/10/2025: Kubernetes With FreeBSD and robots.txt
Links for the day
Links 02/10/2025: 'Open' 'AI' Resorting to Gimmicks and Fake Funding, Europe’s ‘Drone Wall’ Discussed
Links for the day
Links 02/10/2025: Brave Passes 100M Users Milestone, Kodak Selling Its Own Film Again
Links for the day
Michael “Monty” Widenius: It Started in 1983 With Richard Stallman (RMS)
The other co-founder of MySQL is a bit notorious for confronting RMS rather viciously
su lisa && rm -rf /home/ibm/power
Novell was ruined by another person from IBM, Ronald Hovsepian
A Record Demand at Microsoft: Demand to Cancel
What we're witnessing is a very ungraceful destruction of XBox
Microsoft is Losing Europe
Hence all the "support" and "discount" offers that are limited to Europe
The Free Software Foundation Starts Fund-raising for 40th Anniversary
New pop-up 2-3 days ahead of the 40th anniversary event
Systemd Breaks Networking in Debian and Microsoft Staff Rushes to Make Face-Saving Excuses in LWN
Microsoft's bluca is already there in the comments, his Microsoft money pays for LWN to let him leave comments early
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 01, 2025
IRC logs for Wednesday, October 01, 2025
What the End of XBox Will Look Like: a Fiery Crash
XBox is the next Skype. It won't last much longer. Expect many more layoffs.
Richard Stallman is Going to Finland to Give a Talk Next Thursday
A day later he speaks in Sweden
Gemini Links 02/10/2025: SMTP Pipelining and End of ROOPHLOCH 2025
Links for the day