Bonum Certa Men Certa

The Evil, Truly 'Evil' Patent Trial and Appeal Board (PTAB) and the Courts Have the Audacity to Verify/Disprove Patent Validity

J Nicholas GrossSummary: The concept of patent justice seems rather elusive to those who make a living out of pretending not to grasp it (like Mr. Gross on the right); US patent caselaw, however, continues to improve over time

TECHRIGHTS spent well over a decade complaining about USPTO patents that had been wrongly granted, leading to invalidation attempts. Prior to PTAB this was a lot harder. This meant that patent justice was hard to find unless one had deep pockets (court battles are extremely expensive, especially with appeals taken into account).

"They just don't care about patent justice, only patent maximalism (maximising litigation and extortion opportunities)."Patent trolls typically rely on software patents. They also depend on dodging actual court battles where validity of patent can be questioned/challenged (before PTAB only courts could do this). This is why trolls' proponents like Watchtroll, IAM and so on protest against PTAB so much. They just don't care about patent justice, only patent maximalism (maximising litigation and extortion opportunities).

The Droplets case was recalled by Watchtroll on Friday. James Yang wrote:

Droplets, Inc. v. ETrade Bank

In Droplets, Inc. v. ETrade Bank (Fed. Cir. 2018), ETrade filed a petition for inter partes review against U.S. Patent 8,402,115 (‘115 Patent) which was owned by Droplets, Inc. ETrade was attempting to invalidate the 115 patent because Droplets (patent owner) alleged that ETrade was liable for patent infringement.

The ‘115 Patent was the last patent in a family lineage of four patent applications. See diagram below. The Franco PCT is based on the 917 provisional.

[...]

When reviewing a patent for a noninfringement opinion, do not assume that the prosecution was done properly. As discussed in this case, even though the 115 did not claim priority back to the Franco PCT, the examiner did not use the Franco PCT which would be the best prior art reference against the 115 because presumably at least certain portions were identical to each other.


We already wrote about such noninfringement opinions. Expect sites like Watchtroll, IAM and so on to resort to judge-bashing, lobbying of Iancu etc. We'll give some examples later today. Another CAFC case has already just been covered by Watchtroll, taking note of a patent which became unenforceable:

The invention disclosed in the ’993 patent, at issue in this appeal, involves heating water on demand during the fracking process instead of using preheated water. Mr. Hefley, the sole named inventor and founder of Heat On-The-Fly, LLC (“HOTF”), filed the earliest provisional application on September 18, 2009. Prior to the critical date of September 18, 2008, Mr. Hefley and his companies performed on-the-fly heating of water on at least 61 fracking jobs using the system described in the ’993 patent application and collected over $1.8 million for those services. Although Mr. Hefley discussed the requirements of the on-sale bar against patent eligibility with his business partner, he did not disclose any of the 61 fracking jobs to the Patent and Trademark Office (“PTO”). The patent issued on May 8, 2012.

Energy Heating LLC (“Energy”), one of HOTF’s competitors, began using its accused process of heating water in 2012. After HOTF raised the possibility of a patent infringement lawsuit and Energy lost a business contract, Energy sought a declaratory judgment that the ’993 patent was unenforceable for inequitable conduct, invalid as obvious, and not infringed.

The district court granted declaratory judgment, finding the patent unenforceable for inequitable conduct, and denied Energy’s motion for attorneys’ fees under 35 U.S.C. €§ 285. The Federal Circuit affirmed the court’s finding of inequitable conduct but vacated the denial of attorneys’ fees and remanded on that issue alone.


Proponents of patent maximalism, typically a bunch of law firms, aren't happy about this status quo. Mr. Gross, an attorney who writes for patent trolls, recently unleashed a bunch of rants against PTAB, such as this (regarding Section 101):

Bad 101 decisions continue to multiply like viruses at PTAB bc, as they say: "the decisional mechanism courts now apply is to examine earlier cases... and which way they were decided" https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005922-04-26-2018-1 … Since 90% decisions are adverse, system is rapidly being poisoned


No, the system is actually being repaired for those who want to mind their own business, creating things rather than suing. Is that so difficult to understand? Here he goes again (regarding Section 101, as usual):

See, this is the additional collateral crap PTAB is now pulling when CAFC affirms using Rule 36... citing Morsa as approving rejection of claims on targeted advertising, bc CAFC too lazy to do review on merits and explain fine distinctions in 101: e-foia.uspto.gov/Foia/RetrieveP…


He says that "PTAB continues bastardizing [Section] 101 caselaw", but he actually means applying, not "bastardizing":

PTAB continues bastardizing 101 caselaw, including Diehr, to reject claims on "controlling a torque output of an electric machine of an electrified vehicle during a vehicle creep condition" e-foia.uspto.gov/Foia/RetrieveP… Mess continues unabated


And again Section 101:

Like hundreds of other small innovators, Invidi gets their patent application on targeted asset delivery system nixed by PTAB as "abstract idea" e-foia.uspto.gov/Foia/RetrieveP…


Mr. Gross also took note of Microsoft having its software patents thrown away (Section 101):

LinkedIn bought these patent applications years ago; this is one of 1st of many on "fact checking" technology to be reviewed and rejected by PTAB under 101: they have a long road ahead: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017001329-04-30-2018-1 …


Then the obligatory IBM example (Section 101 invalidation):

IBM Can't Win at the PTAB; The PTAB Reversed the Examiner's 101 Rejection But Instituted a New 101 Rejection of the Same Claims: https://anticipat.com/pdf/2018-04-30_13396177_178276.pdf …


Notice the profound impact of Section 101. Without even going to court, various parties actively work to eliminate software patents of patent aggressors.

"It puts engineers/programmers back in control, at the expense of parasitic lawyers who got accustomed to exploiting/taxing them."What's not to like?

Well, when one does litigation for a living (and let's face it, that's what the above people do) this whole "PTAB thing" is a living nightmare. It puts engineers/programmers back in control, at the expense of parasitic lawyers who got accustomed to exploiting/taxing them.

Recent Techrights' Posts

Plot Twist: Microsoft MSN Relays Articles Hinting at or Pointing to Mass Layoffs Soon, Other Gossip
the narrative from Microsoft's "PR bunny" (Shaw) is showing mold already
'Vibe Coding' is Not "AI", It's a Sewer, It is Junk
Linus Torvalds was wrong. 'Vibe coding' isn't good for anything.
GNU/Linux May be Approaching 10% "Market Share" in Montenegro
The surge started around 2021
More IBM Layoffs in India
If IBM cannot afford to retain workers in India, then something is truly "out of control" at IBM
Dr. Richard Stallman Has Done No Harm to the GNU Project or the FSF (He Had Benefited Both, Always, Even After the Attacks on Him Began)
Some people try to prevent Dr. Stallman from speaking or having a platform where many people can hear him
Microsoft Isn't Denying the Mass Layoffs
Still silence from Microsoft
In Western Africa GNU/Linux Flirts With 5% Market Share
there's a gradual increase in GNU/Linux usage there
Gemini Links 09/01/2026: Pro1 X Repair and the Mercury Protocol
Links for the day
No, Microsoft Did Not Deny the Q1 Mass Layoffs (Microsoft Can Delay These)
Maybe they disperse or delay the layoffs (changing plans), but the layoffs are going to happen
EPO People Power - Part XXIX - Getting DER SPIEGEL, FAZ, Deutschlandfunk and Sueddeutsche Zeitung (SZ) to Cover EPO Scandals
We kindly ask our readers to contact their local media and urge it to cover the scandals
 
IBM is a Cancer That Attaches Itself to Everything
Red Hat should have remained an independent company
Links 09/01/2026: Google and Character.AI Implicitly Accept Chatbots Kill Kids and GLP-1 ‘Slimming Pens’ Turn Out to be a Lot Worse Than Advertised
Links for the day
At IBM, "Employee Reviews" (or Appraisals in the UK) Are a "Trojan Horse" for RAs (Mass Layoffs), a Waste of Time
comments from IBMer serve to suggest that appraisals can be precursors
Links 09/01/2026: Technical Blogging Lessons Learned and Google's Gmail Getting a Lot Worse
Links for the day
Escaping GAFAM Colonialism Requires Homegrown Free Software
GNU/Linux now measured at 3% in Zambia
GNU/Linux at 4% in Saudi Arabia, Says statCounter
Some years ago Windows fell to a "market share" of just 11% there
Links 09/01/2026: Cambodia and China Extradition, "NATO’s High-risk Patrols Near Ukraine"
Links for the day
Only One Person in Charge of Fedora is Not IBM Staff
This is not a community project, it's just a way for IBM to onboard unpaid volunteers
This Is Not a Drill, GNU/Linux is Really Going 'Mainstream' on Laptops (and Desktops)
It is important to explain to people software freedom
IBM Albany Layoffs
not only did many in the site lose their job; there's more to come "and likely another one in February" (weeks from now)
EPO Workers' Industrial Action to Include Many Strikes, to Last Several Months
In some ways, The Hague and Bavaria are becoming almost indistinguishable from Moscow
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, January 08, 2026
IRC logs for Thursday, January 08, 2026
Gemini Links 08/01/2026: "New Year, Old Plans" and Alex's "Butlerian Jihad"
Links for the day
LLM Slop About "Linux" Scarce and of Very Low Quality
At this rate, we reckon there may be one (or zero) per day by year's end
IBM's "Forever Layoffs" (to Bypass Warnings or Notices as Required by WARN Act)
There is a bunch of speculations about when the next "major round" of RAs will be
Attempts to Undermine This Site's Latest Series Using Intimidation, Threats, and Presumptuous Accusations
threatening language is less effective when everyone is an alibi
Links 08/01/2026: "Golden Smartphone" Scam and Riseup Account Issues
Links for the day
Links 08/01/2026: Possible "Collapse of NATO Over Greenland"; Journalistic Malpractice and "US Voters Hate Slop"
Links for the day
EPO People Power - Part XXVIII - A Sensitive Issue for Germany and The Netherlands
If Germans who read this series can communicate this to public officials or to their media, maybe they can strike a nerve and get the ball rolling
Age Discrimination at IBM Discussed Amid Mass Layoffs (Especially in the United States)
Workers are anxious. Are they next to face the axe?
Gemini Links 08/01/2026: Potentiometer Calculator, Power Outages, Why You Should Abandon Discord for IRC (e.g. Ergo), and Formatting Gopher Posts
Links for the day
Links 08/01/2026: More Software Patents Squashed, White House Repeats Misinformation From the Kremlin
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, January 07, 2026
IRC logs for Wednesday, January 07, 2026
The Free Software Foundation (FSF) Looking to Add Associate Members
"Celebrate '26 by helping us reach our New Year's goal before Jan. 16: join as an associate member today. You will help the FSF remain strong and independent to empower technology users everywhere. Join us today and help us reach our goal of 100 new associate members!"
Only Google is Still Spreading Lots of Slopfarms' Fake News and Plagiarism About Linux
2 days' worth of Google News spewing crap out about "Linux"
Georgia Institute of Technology (Georgia Tech) Formally Announces Upcoming Richard Stallman Talk
Room 100, Scheller College of Business
Links 07/01/2026: Europe's 'Binding Commitments' on Ukraine's Security, "Venezuelan Leaders Project Independence"
Links for the day
Gemini Links 07/01/2026: Smart Toaster and Social Control Media Fatigue
Links for the day
Projection Tactics - Part II: Causing "Serious Harm" to Many People (Even Animals)
Narcissists and sociopaths are like that
Even Microsofters Now Speak About Microsoft Reportedly Planning to Sack 10% of Its Staff (as Early as This Month, or 2 Weeks From Now) as Real Income Falls
Microsoft buying from Microsoft isn't real income, it is accounting fraud
The four freedoms and GNU/Linux naming controversy, by Akira Urushibata
Social control media owned and run by 'broligarchs' keeps attacking RMS for insisting on names that include GNU
Crans-Montana, Le Constellation: journalists, victims' families, ProtonMail users at risk, police raids
Reprinted with permission from Daniel Pocock
GNU/Linux Reaches All-Time High in Tanzania
This month (and year) GNU/Linux is measured at an all-time high there, based on the data that statCounter can see
Open Source Initiative (OSI) Not Doing Its Job, Instead It's Promoting Microsoft Ponzi Schemes
it participates in Microsoft's Ponzi scheme, which helps Microsoft distract from or excuse the mass layoffs
Links 07/01/2026: Microsoft ChatGPT Killing People and Microsoft "Github monopoly is destroying the open source ecosystem"
Links for the day
The Register MS: Installing Free Software on Your Device is 'Sideloading'
This is a form of propaganda
Mass Layoffs in Microsoft's XBox Soon, Just Like We've Said for Months
IBM and Microsoft are heading in a similar trajectory and are hiding how bad things are using similar tactics
Mozilla's Assisted Suicide, Assisted by GNOME
Firefox is meant to get better all the time, but instead it gets worse
Now It's a Mainstream Media (MSM) Story: Microsoft Layoffs Coming, They'll be Vast (and They Blame "AI", As Usual!)
the books were cooked (accounting fraud) to hide what really went on
Frankly Getting Sick of Slop About "AI" (Slop)
Calling everything out there "AI" serves nobody and nothing but the Ponzi scheme
Stick to the Science, the Facts, the Observable Reality
Science is at the heart of this site
Africa's Search Market Has Been Unfavourable to Microsoft
In Africa, as we've just noticed, Bing is moving down, even more sharply this year
Slideshare is Slop
Be sure fools will rewrite history online
Gemini Links 07/01/2026: Looking at 2026, Linux Anti-Minimalism, Diode Function Generators, and Inkscape
Links for the day
Projection Tactics - Part I: What is "Serious Harm"? Or Whose?
the most serious harm was done to us
Links 07/01/2026: More Signs XBox the Console is Dead/Dying, Convicted Felon Repeats Threats of Greenland Annexation
Links for the day
EPO People Power - Part XXVII - Science- and Principles-First Journalism About Issues That Matter
journalism became so shallow that nowadays it can be replaced by bots
Media Gaslighting Dooms the Media
this "AI" gaslighting is done because publishers get paid to do so
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, January 06, 2026
IRC logs for Tuesday, January 06, 2026