Bonum Certa Men Certa

CAFC is Under Attack by the Patent Microcosm, Whose Scrutiny is Starting to Resemble PTAB-Bashing

The Patent Trial and Appeal Board (PTAB) is defended by the Supreme Court (Oil States decision), but will patent extremists manage to scandalise and oust judges in another branch?

Watchtroll



Summary: The Court of Appeals for the Federal Circuit (CAFC) is attacked by patent maximalists whenever it suits them, is occasionally being misrepresented by the patent microcosm and is generally coming under intense scrutiny by the perishing 'industry' of patent parasites and trolls

THE Court of Appeals for the Federal Circuit (CAFC) is the basis/substance of Section 101 caselaw, which the USPTO follows. CAFC, in turn, adopts decisions other than its own, notably those of the Supreme Court, e.g. Alice and Oil States. As we shall show tomorrow, the USPTO is altering a few things in its guidelines, based on CAFC and the Supreme Court; it's nothing radical, but patent maximalists do try to make it sounds profound and revolutionary. They hope to affect the outcome that way.



The Federal Circuit Bar Association (FCBA) is a group of patent maximalists. As per this promotion from earlier today, there's a session coming later this month:

The Federal Circuit Bar Association (FCBA) will be offering a webcast entitled "Last Party Standing: Who Has Standing to Appeal Administrative Decisions to the Federal Circuit?" on May 22, 2018 from 3:00 pm to 4:30 pm (EST).


FCBA being FCBA, it will be speaking for patent maximalists rather than actual patent judges from CAFC. This is expected. We expect nothing else.

In this age of Trump/Trumpism we're seeing many attacks on judges (like their President). The latest attacks on CAFC -- not just on PTAB -- come from cowboy hats-donning self-acclaimed "inventors" (who used terms like "draining the swamp" in relation to USPTO Director Michelle Lee). They spewed this out at Watchtroll 5 days ago. So the site has just attacked CAFC (a high court) yet again. We're sure that the judges at CAFC will be very impressed. This only further alienates them. Watchtroll habitually calls for firing or resignation of judges (CAFC judges included) if they 'dare' say something that patent maximalists do not wish to hear. It's mob mentality. Theodore Chiacchio does the same (4 days ago), albeit more politely. Writing about the decisions of CAFC is OK, but bashing the decisions, the courts and even individual judges is not honourable. It's not illegal, but it's disrespectful and it paints these attorneys/pundits as people who disregard the law except when a decision suits them.

So putting aside these nasty attacks, let's look at what CAFC actually did do. We don't wish to feed/entertain insults or words about them.

First of all, patent lawyers engage in misconduct again. Referred to as "unclean hands", this was covered by Watchtroll and others before it [1, 2]. Ashley M. Winkler (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) wrote that "CAFC Affirms District Court Decision Finding Unclean Hands In Gilead V. Merck" and here's the substance of the argument:

In Gilead Sciences, Inc. v. Merck & Co. Inc., Nos. 16-2302, 16-2615 (Fed. Cir. Apr. 25, 2018), the CAFC affirmed the district court's finding that misconduct attributable to Merck barred it from asserting two patents against Gilead under the unclean hands doctrine. This appeal arose from an action relating to treatments for Hepatitis C, and more particularly Gilead's treatments Solvadi€® and Harvoni€®, which use the compound sofosbuvir. Further discussion of the decision can be found on Finnegan's Federal Circuit IP Blog.


Another CAFC decision was covered by Charles R. Macedo and Jung Hahm, who oddly enough chose Watchtroll as a platform:

The decision on appeal turned on the construction of a term of art, “non-exhaustive search,” in the field of database search algorithms. Below, the Board’s construction was supported by the specification and the Board’s factual findings—based on objective evidence and credibility determinations—on what “non-exhaustive search” means in the field. Applying its construction, the Board confirmed the patentability of most of the claims challenged in the IPRs. On appeal, the Federal Circuit panel reversed the Board’s construction, vacated in part and remanded those IPR decisions with respect to claims using this term of art. Google LLC v. Network-1 Techs., Inc., No. 16-2509, slip op. (Fed. Cir. Mar. 26, 2018) (nonprecedential) (“Opinion”).


Algorithms are abstract as per Section 101 and should thus be unworthy of patents; any patents on these (even if they call the said database/s "blockchain" or whatever) ought to be voided by the court. In this particular case CAFC seems to be even tougher than PTAB. It makes it quite interesting.

Another blog of patent maximalists spoke about the rare situation "[w]hen two decisions are released simultaneously [and] how [one can] treat the precedential value of the cases relative to one another" (like a chronology rule of thumb). The Supreme Court often releases decisions in tandem and it recently released two decisions -- both pertaining to PTAB -- simultaneously. To quote this post, which actually focuses on CAFC:

The tension between the cases in this situation is actually fairly small, but the setup raises an interesting question in my mind. When two decisions are released simultaneously, how should we treat the precedential value of the cases relative to one another? My initial answer is that the cases should be treated as we would a plurality Supreme Court decision.

Veering away from the simultaneous release — would it matter if one were uploaded to PACER (the Docket) a few hours before the other? Under Federal Rules of Appellate Procedure R. 36, “a judgment is entered when it is noted on the docket.” The rules do not, particularly define priority of precedent, and I have not seen any Federal Circuit precedent on-point. Supreme Court becomes precedent immediately upon release. Federal Circuit decisions should seemingly have the same result by Default.


If Justices' decisions (such as Oil States, which we shall cover later) become precedents "immediately upon release," then it must spell trouble to a lot of cases against PTAB, including the publicity stunt which is class action (also to be covered later and separately).

Recent Techrights' Posts

Microsoft's Attack Dogs Have Failed. Now What?
It would be utterly foolish to assume that Microsoft has any intention of changing
All Your "Github Projects" Will be Gone One Day (Just Like Skype)
If you have code you wish to share and keep, then start learning how to do so on your own
Fedora Already Lost Its Soul Under IBM
Fedora used to be very strict compared to many other distros and it had attracted very bright volunteers
Links 17/04/2025: Calling Whistleblowers at Microsoft, Slop Doing More Harm Everywhere
Links for the day
 
Links 18/04/2025: Layoffs at Microsoft Infosys and Qt Becoming Increasingly Proprietary (Plus Slop)
Links for the day
Google News is Dying
treating MElon's algorithmic/biased site as a source of verified news
To Understand Who's Truly Controlling You Follow the Trail of Censorship (or Self-Censorship)
Do not let media steal and steer the narrative; CoCs are not about "social justice", they're about corporate domination
Microsoft is Still Attacking GNU/Linux and the Net
Microsoft bribed the government using money that did not even exist
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 17, 2025
IRC logs for Thursday, April 17, 2025
Gemini Links 18/04/2025: Pinephone Pro and Linux is too Easy
Links for the day
Links 17/04/2025: Russian Bot Farms Infect TikTok (Which US Government and SCOTUS Decided to Block January 19), US Hardware Stocks Crash Due to Tariffs
Links for the day
Gemini Links 17/04/2025: Sticking to Free Software, Smolnet, and Counting the Reals
Links for the day
Open Source Initiative (OSI) Privacy Fiasco in Detail: In Conclusion and Enforcement Action Proceeds Against OSI at the California Privacy Protection Agency (CPPA)
There's too much to cover in one single part
When You Fail to Filter Your Clients You End Up SLAPPing Reporters on Behalf of Bad People From Microsoft in Another Continent
“American Psycho”
Links 17/04/2025: LayoffBot and Tesla Cheats Buyers
Links for the day
Gemnini Links 17/04/2025: Role of Language and Back to Mutt for E-mail
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 16, 2025
IRC logs for Wednesday, April 16, 2025
Trump Authority (CA) With a Trump NSA is All About Security, But Whose?
A "turnkey tyranny", as the NSA whistleblower Thomas Drake loved to call it
Confirming IBM Shutdowns and Layoffs Today
It's not over yet
Gemini Links 16/04/2025: The 2010s Are Calling and Why "Tools Will Not Liberate Us"
Links for the day
You Should Probably Self-Host Your E-mail and Never Use a Web Browser for Mail
Does anyone still believe Gmail is "free"?
Links 16/04/2025: Cliff Lynch RIP, More Attacks on Science (NASA)
Links for the day
StatCounter Shows the Market Share of Vista 11 is Decreasing in Ukraine This Year
Microsoft abandoning Vista 10 users would be a victory for Vladimir Putin
Google Promotes Fake Articles (LLM Slop) Instead of Originals, Relaying Microsoft's Linux FUD Emanating From Microsoft LLMs
Shame on Google for participating in the slopfest
In Some Countries the Largest OEMs Already Dump Microsoft Windows
Windows at 18.9%, Android 60.2%
The "Gold" Rule: Taking Money for Reputation Laundering and Openwashing Under the "Linux" Banner
Seller of expensive toilet paper, Jim Zemlin
LLM Slop Says Slop is "coming for white-collar jobs. Microsoft’s layoffs are just the start"
Look what the Web has become
Microsoft Down From 100% to 10% in Myanmar/Burma
only about 4% of Web requests in Myanmar/Burma come from Vista 11, soon to be the only "supported" version of Windows
Reporting Facts About Violence Against Women Deserves Awards, Not Frivolous Lawsuits and Threats
What is Microsoft's stance on women's safety?
Linux.com as Spamfarm of the Linux Foundation, Partner of the Gates Foundation
They no longer publish articles
When Fedora Said It Was Looking to Integrate "AI" It Meant Promoting Microsoft's Proprietary Spyware and GPL-Violating Slop
When they say "AI" they mean Microsoft
Slopwatch: The Typical Slopfarms and the 'Brian Fagioli Dilemma'
To the Web and to society (exposed to the Web) LLMs are a net negative
It Used to be IBM, Now It's Microsoft (Why You Need to Fire Microsofters or CIOs Working for Microsoft)
Typically the only effective solution is to identity and remove Microsofters from one's project/organisation (before they can bring more Microsofters in)
IBM Closes Offices and Labs in the United States to Open New Ones in India
It's not layoffs per se; they're substituting/swapping veteran employees for lesser-paid ones
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 15, 2025
IRC logs for Tuesday, April 15, 2025
Gemini Links 16/04/2025: IndieWeb Carnival, Tinylog RFC, "Focus, the Web and Gemini"
Links for the day