Bonum Certa Men Certa

US Patent Courts Gravitate Towards Patent Justice Rather Than Patent Maximalism

Less focus on the flow of money (between lawyers) and more focus on science and technology

A gaol



Summary: The rational approach adopted by the US courts, all the way down from the Supreme Court to Sharon Prost of the Federal Circuit (CAFC), means that technology companies can finally focus on actual work and pay less to a bunch of lawyers

THE court system in the United States isn't exactly renowned for justice (that's a gaol at the top; the US has actual market "demand" for prisoners as jails are run like proper, for-profit businesses). The USPTO too has a certain "demand", which explains why many low-quality patents have been issued. It's difficult to say the same thing about patent courts however. They're not so "demand"-driven and their success is measured by criteria like the number of times their decisions are overturned.



The Court of Appeals for the Federal Circuit (CAFC) saw many decisions it had made (under the disgraced chief judge Rader) being overturned by the Supreme Court. It appears to have decided to change that under Sharon Prost. CAFC is now a lot better. Just days ago it once again rebuked the disgraced judge Gilstrap.

Very good. Another case of Alice thwarting bad patents.

CAFC has come under attack from patent extremists, such as Watchtroll, who went as far as to call/ask judges to step down after they had ruled against software patents. This is ridiculous, but that's how much respect those people have for judges. Watch what Dennis Crouch did some days ago.

Here we have a new article from the patent microcosm portraying CAFC as unreasonable just because it's efficient. To quote:

The number of patent cases the Federal Circuit ruled on without writing an opinion is in decline for the first time in recent years, amid criticism over the court’s use of these “silent decisions” and a plateau in its patent workload.

Statistics compiled by Law360 show the court affirmed patent decisions from the Patent Trial and Appeal Board or district court without a written explanation 161 times in 2017, which accounted for 38 percent of its patent rulings.


PTAB deals with literally thousands of legitimate petitions, so it's unreasonable for PTAB (and CAFC too) to always delve down to written determinations. Surely they understand that, no? Patently-O attempted to play this card about a year ago in order to slow down the courts.

Elsewhere in last week's 'news' (more like shameless self-promotion by the patent microcosm) we saw Squire Patton Boggs' Daniel Rabinowitz writing about software patents (in National Law Review with paid-for copies elsewhere). He said: "In Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012), and Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S. Ct. 2347 (2014), the Supreme Court of the United States established a two part test for determining patent subject..."

As usual, the patent microcosm (not just Rabinowitz) looks for ways to dodge the rules. This is their main expertise or service. The demise of software patents is not a "problem" but a blessing. It's a belated act of justice from the Justices, but watch this new article by Benjamin Hattenbach and Rosalyn Kautz ("A Recurring Problem In Patentability Of Computer Software"). It's a rant about the Federal Circuit:

Section 101 of the United States Patent Act protects "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof."[1] Historically, this been interpreted to "include anything under the sun that is made by man."[2]

From 2014 to 2017, however, the Federal Circuit has rejected an overwhelming majority of patents for computer-implemented inventions as ineligible for protection under Section 101.


That's not a problem, it's a desirable thing and the US Supreme Court (SCOTUS) should have made it so decades ago.

"Did the Supreme Court rely on extra-record evidence in its assertion of an abstract idea in Alice v. CLS?"

So asks another person from the patent microcosm. It's quite revealing that SCOTUS decisions drive them nuts. Other courts too have become unsympathetic towards the patent microcosm. Software parents are dead ducks in the US; there's no imminent turnaround because SCOTUS isn't interested in revisiting the matter.

How about this new example where the court rejected a patent under ۤ 101? Docket Navigator called it an "abstract idea."

The court granted defendant's motion for summary judgment because the asserted claims of plaintiffs’ audio/visual playback patent encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea.


"We’re seeing a lot more companies actively exploring what they can do with their unused IP," IAM wrote the other day. Well, all those low-quality patents, as they eventually find out, are typically a waste of time and effort (for startups anyway). As it turns out, decisions on the matter are not being challenged as much anymore. Here are some new statistics: "From July 25, 2016 to February 22, 2018, Fish & Richardson had 143 appeals. Finnegan was second with 78 appeals. And Knobbe was third with 60 appeals. While Fish and Knobbe had roughly the same number of patent applications (60,916 and 58,170, respectively) across all customer numbers searched, Fish had more than double the appeals. Even Finnegan, which totaled a third fewer applications (41,194) than Knobbe, had more appeals than Knobbe."

Watchtroll wrote about something related to this a couple of days ago. What we have here is Amanda G. Ciccatelli and Watchtroll speaking to a lawyer about his 'agony', alluding explicitly to the "intellectual property industry."

"According to Storm," Watchtroll said, "the decline in contingency representation over the last few years can be explained by weakened patents making success on the merits less likely. Even if the patent owner does prevail, what will the win? After a win at trial, the law of damages has made large damages less and likely to achieve in the first place, and keep even if awarded after trial."

It's just not worth the risk anymore. This is a real problem for the "intellectual property industry," as the above dubs it (this 'industry' just a parasite looking to inflame more lawsuits and a legal mess; Like the arms industry which lobbies for tensions and wars).

Recent Techrights' Posts

Terms of Service (TOS) Under Scrutiny - Part XV - "Zoom's terms of service change sparks worries over AI uses" (and More)
Then they wonder why users get all grumpy?
IBM is Cutting - Almost in Half - Its Office Space in Austin, So Expect Many Layoffs (RAs)
IBM reduces office space by 187,00 square feet or 37%
IRC Proceedings: Saturday, September 07, 2024
IRC logs for Saturday, September 07, 2024
They Used to Say Avoid Nginx (or NGINX) Because It's Russian. Now You Can Say Avoid It Because It's Microsoft.
Thankfully we quit using NGINX when we shut down our HTTP proxy for Gemini
Instead of Telegram People Should Use Free Software (Telegram Was Always Unsafe for Use)
"Modern" so-called 'smart' 'phones' are compromised at the OS level or baseband side
Techrights is a Demonstrably Popular Site, Reporting Suppressed Facts. Those Vouching for Its 'Unpopularity' Express a Desire Rather Than a Condition or a Fact.
Our 100% source protection record will hold up
Terms of Service (TOS) Under Scrutiny - Part XIV - Zoom the Beast
breakdown of the Zoom TOS and corresponding privacy statement
 
Peter Eckersley and 'Afterlife'
It's better to look after one's health at present than to pursue all sorts of perceived 'insurance' policies
Terms of Service (TOS) Under Scrutiny - Part XVI - When Radio is No Longer "Read-Only" (Listening Mode) Because Someone Listens and Sells Your Data
Who would want to put up with this?
redhat.com is Promoting Revisionism and Lies Regarding the Origin of the Term "Open Source"
debunked many times before
Software Patents Against GNU/Linux Again
Patent extortion against OpenShift and Red Hat Enterprise Linux
Over at Tux Machines...
GNU/Linux news for the past day
Gemini Links 07/09/2024: Self Hosting (Not "CLOUD") and Site Reliability Engineering
Links for the day
The Arrest of Pavel Durov is Changing Telegram
Remember that Telegram's founder, who is also French, cannot leave France until he satisfies those who detained him
The Growth of GNU/Linux is Now a Mainstream Topic With Widespread Awareness
We can do less counting (of baskets and eggs) and more advocacy
The Free Software Movement Must Not Assume That Truth and Science Always Win
Sometimes the bad people and the liars get ahead
John Pilger's Site Relaunches, Wikileaks' Site Has Not Been Updated in Years
We have long hoped that, more so after the release of Assange, Wikileaks will have some kind of "relaunch" or recovery
Rage in the Propaganda Machine
There has never been a better time to quit social control media
Certificate Authorities (CAs) Are Serving the Authorities, Not You
The centralised CAs "model" is not working
A Terms of Service (TOS) Notion of "Consent"
We're well past the true notion of real consent
Links 07/09/2024: Qualcomm May Buy Parts of Intel, YouTube Deletes Channels for the US Government
Links for the day
No, Mastodon is Not Growing, Social Control Media is Generally Waning
Our sister site pulled the plug on the whole thing over a year ago, seeing it was mostly a source of online abuse
A Loss for Fake Security, a Win for Net Autonomy
Crucifixion of domains has been ramping up this past week; it's a cautionary signal
Links 07/09/2024: UK Police Raid Journalist's Home, Epoch Times Setbacks, and Karma
Links for the day
FSFE: Donate to Us to Co-Fund With Microsoft the Unpaid Underage Labour, YH4F
Latest from FSFE
Links 07/09/2024: China's Financial "Bond" to Africa and Attempts to Postpone Trump Criminal Cases
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, September 06, 2024
IRC logs for Friday, September 06, 2024
linuxsecurity.com is Still Spamming the Web
This is not harmless to Linux and it definitely merits a shun
Gemini Links 07/09/2024: Freedom in Bareness, Reactions in Addictive Social Control Media
Links for the day
Why We Are Suing Matthew J. Garrett for Harassment and Why It's Important to Everybody in the Community
There's a limit to how much abuse to me and to my family I can tolerate for the act of merely reporting on corporate corruption
[Meme] Confused Michael
Teaser...
Links 06/09/2024: Censorship of Sites by US, Hype Around LLMs Noted
Links for the day
[Meme] Hijacking the Brands
"Linux? Ah, you mean Microsoft!"
Google: We Help Combat What We Are Guilty of
The search itself is a conflict of interest
Linux Foundation Technical Advisory Board Has Election, But Google is Already Guaranteed Over 33.3% of the Seats ('Reserved' for It)
It has too much power/influence and it looks like a stacked panel
[Video] Theodore Ts'o Says How He Brought Linux to the United States (MIT) and What Makes Linux Leadership Effective
Microsofters keep attacking him
Layoffs Are Healthy and Not Happening
Good news for a change?
[Meme] Trickle-Down Ponzi Scheme
Where does money actually come from?
Considering Microsoft's Totally Fake Finances It Too is at Risk of Being Delisted From the Dow Jones Industrial Average and Other Indexes (NASDAQ, S and P) in the Near Future
Microsoft and Apple both had many layoffs this year
Asking Ourselves What Topics to Strategically Focus on
A lot of the tech media - if not "mainstream" media too - is already covering the growth of GNU/Linux
Media Needs to Stop Asking If "AI" is Just Hype (It Is, It's Not a Question)
The media should stop asking if the "AI" thing is bubble about to pop
Lots of GNU/Linux Detected in Palau and Windows Falls to New All-Time Low (14%)
Windows is falling further
Gemini Links 06/09/2024: Degoogling, LLMs, and ROOPHLOCH
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, September 05, 2024
IRC logs for Thursday, September 05, 2024