Bonum Certa Men Certa

The Board Continues to Leverage 35 USC § 101/Alice to Invalidate More and More Software Patents in the United States

The Board (PTAB) is doing its job just fine with no signs of stopping (perhaps emboldened by Oil States)

David Ruschke



Summary: In spite of incredible pressure on PTAB and its Chief Judge David Ruschke (official photograph above), the Supreme Court and the US patent office (USPTO) fully support it; this means that software patents continue to perish in the US and patent maximalists attempt all sorts of things to escape PTAB

THE patent examination guidelines at the USPTO have barely changed in any concrete way since Iancu came. There have been discussions about it, but changes remain to be actually seen. As things stand at the moment -- Alice and Section 101 taken into account -- getting software patents isn't easy. PTAB increasingly interacts with examiners. Throughout the day today we'll write several articles about that. PTAB can handle the pressure and shake off criticism from a bunch of patent zealots like Watchtroll.

On Thursday at Watchtroll a patent lawyer called Elizabeth Crompton (never heard of her before) was going nearly two months back in pursuit of a 'convenient' (to lawyers' narrative) case. SimpleAir's case against Google (filed in the Eastern District of Texas [1, 2]) is one such case.

"As things stand at the moment -- Alice and Section 101 taken into account -- getting software patents isn't easy."Anticipat, a day prior to that, published some PTAB statistics which showed it had gotten hard to prove software patents' validity in the US -- so hard in fact that reversal (overturning of decisions) rates are very, very low. Only around 1 in ten (yes, 10!) cases/times does this work. Why would anyone bother then? Why obsess over or pursue software patents?

The Practising Law Institute (PLI), a patent maximalists' front group, now advertises its anti-PTAB 'program', nothing that the "registration fee for the program is $1,850."

"PTAB can handle the pressure and shake off criticism from a bunch of patent zealots like Watchtroll."What a waste of money. That's consistent with events about patents which are actually sponsored by corporations that stand to benefit from the panel (e.g. Samsung in this case or big oil companies).

Another anti-PTAB event will soon take place courtesy of McDonnell Boehnen Hulbert & Berghoff LLP. It was advertised a few hours ago as follows:

McDonnell Boehnen Hulbert & Berghoff LLP will be offering a live webinar entitled "Sovereign Immunity and Patents at the PTAB and District Courts" on May 22, 2018 from 10:00 am to 11:15 am (CT).


Even "scams" have already been attempted in order to dodge PTAB's scrutiny of patents. PTAB is a major nightmare to patent maximalists and it's simply not going away, as we shall explain later on in relation to Oil States.

Among the latest PTAB rants from Mr. Gross we have:

In re Eberra (Fed. Cir. 2018): Fed. Circuit Affirmed PTAB's Finding of Patent Application Claim Ineligibility under 101/Alice: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2394.Opinion.5-2-2018.1.PDF …


Unusually long 101 decision by PTAB arrives at usual conclusion: claims are just an "abstract idea" https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016003546-04-30-2018-1 …


Nvidia game controller with novel suspend and resume functionality is diluted down by PTAB to be "...directed to the abstract concept ofsaving and restoring data" Another bad 101 rejection... No patent for you! https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016003699-04-25-2018-1 …


Notice how often Section 101 is invoked (and enforced by PTAB).

The patent microcosm has meanwhile found a rare case of PTAB saying OK to a software patent (a patent on encryption basically). Here are the details:

After a patent examiner in a business methods art unit rejects claims as patent-ineligible under 35 USC § 101 and the Alice test, what does it take for the PTAB to reverse? Here is an example of an ex parte appeal in which the PTAB deemed claims directed to encrypting a financial account number to present a technical solution that survived the Alice test. Ex Parte Faith, Appeal 2016-008020, Application 12/778,638, Technology Center 3600 (PTAB March 30, 2018).

The claims at issue recite encrypting a portion of a financial account number to generate a new account number and a “verification value” for the purpose of inhibiting fraud. The examiner had rejected the claims under 35 USC § 101 as allegedly directed to the unpatentable “abstract idea of determining account information based on mathematical analysis and ‘participating in a transaction.’” The examiner made the familiar allegation that the claims were simply directed to “mathematical relationships, organizing information through mathematical correlations, collecting and comparing known information, and organizing human activity or performing processes using pen and paper.”


Notice how old this decision is. They're arriving to that nearly a month late.

It's pretty clear that opponents of software patents ought to stand firmly behind PTAB. It's an ally of circusmtances.

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