Bonum Certa Men Certa

Another Week of Federal Circuit Supporting PTAB and Acting Tough for Patent Quality in the United States

The patent elimination 'pipeline'

Secret documents



Summary: The Patent Trial and Appeal Board (PTAB) and the Court of Appeals for the Federal Circuit (CAFC) maintain a productive cycle of patent elimination, except when the patents do have merit (e.g. when they're on physical inventions and not nature or code)

THE Federal Circuit under its current chief has been doing a good job, encouraging -- shall we say for the most part -- the USPTO to evolve/improve patent policy. Sure, there are some exceptions which we shall cover separately, but generally speaking the judges grasp the Supreme Court's views or interpretation of the law. They're undoing decades of unbridled patent maximalism. One decision at a time they narrow down patent scope and litigation scope. This is good. It will help scientists at the expense of lawyers. It's about time, too.



The other day XY, LLC v Trans Ova Genetics, L.C. was brought up by a patent maximalists' site, which mentioned a "split decision [that] reveals an important dispute between Federal Circuit judges over the impact of AIA trials on pending litigation. In this case, XY’s six patents in suit relate to the sorting of semen by gender (used for farm animal breeding). My discussion below focuses on only one of the patents that was first enforced by the district court but later cancelled by a PTAB action."

"One decision at a time they narrow down patent scope and litigation scope. This is good."The author is a foe of PTAB and would like to see AIA trials phased out/replaced by something else. But he has not been getting his way. That's an understatement actually; his whole world crumbles around him and his readers. They've tried everything to undermine PTAB and nothing seems to work. We shall cover that separately in a later post.

The underlying patents in this case aren't on software but arguably on life (animal breeding). As is widely known by now, some companies like Monsanto have been attempting to patent nature/life everywhere in the world (it's a lot harder in India, owing to the Supreme Court's recent judgment). It's not just about breeding processes or genetic manipulation; later on some companies patent the resultant animals, too! Crazy world we live in, eh?

"It's pretty clear here that this patent maximalists' site cherry-picks cases with the agenda of undermining Inter Partes Reviews (IPRs) and the Patent Trial and Appeal Board which these fall under."The author explains "that the final paragraph is somewhat confusing because it appears to state two separate principles – (1) that affirmance of an invalidity finding [by the Federal Circuit] creates collateral estoppel on the issue of validity and also (2) that a final decision of patent invalidity moots pending district court findings of no invalidity. This begs the question of what would be the proper result if this case had been decided after the IPR decision cancelling the claims but before deciding the outcome of this appeal. When the court recognizes the potential issue – I expect that in most situations it would coordinate the appeals."

It's pretty clear here that this patent maximalists' site cherry-picks cases with the agenda of undermining Inter Partes Reviews (IPRs) and the Patent Trial and Appeal Board which these fall under. This isn't new. This has gone on for years and Oil States was the latest blow to such agenda. Later on we shall show how patent "scams" too have failed to undermine IPRs.

The same site also picked another Federal Circuit case, D Three Enterprises v SunModo Corp., which was about claim construction. This patent is at least on something physical. To quote:

D-Three’s patents in suit are directed to roof-mount sealing assemblies for solar panel installation. U.S. Patent Nos. 8,689,517; 9,068,339; and 8,707,655. The district court found the asserted claims invalid as obvious or anticipated. The basic central dispute, however, was whether the claims could rely upon a 2009 provisional application filing date. Although the formalities of the priority chain was met — the district court found a substantive problem. In particular, the court ruled that the 2009 provisional did not sufficiently disclose the inventions as claimed — i.e., failure of written description. Going one layer deeper, it seems that the real dispute is about claim construction — do the claimed assemblies require a “washerless” approach? The courts found that the claims recite a washerless assembly but that the limitation was not disclosed by the provisional application — so no priority.


Kluwer Patent Blog has meanwhile delved into another patent case where PTAB and the Federal Circuit dealt with a patent on something physical. "In an interference proceeding," it said, "the Patent Trial and Appeal Board correctly determined that claims 65-67 of applicant General Hospital Corporation’s (GHC’s) U.S. Patent Application No. 13/789,575 for methods of removing hair by using nanoparticles to damage hair follicles lacked sufficient written description under €§ 112 of the Patent Act, the U.S. Court of Appeals for the Federal Circuit has ruled."

"...what we continued to see this past week was a strong and consistent record of patents-sceptic Federal Circuit which fully supports PTAB."PTAB was defended for this, as usual. Watchtroll -- being the most anti-PTAB site out there -- chose to deal with this Federal Circuit case wherein PTAB had dismissed a challenge (and was later defended by the court). To quote:

Gilead produces and sells several products containing an antiviral agent used in the treatment of AIDS, and AIDS Healthcare Foundation (“AHF”) buys these products to provide care to persons afflicted with AIDS. AHF filed suit requesting declaratory judgment of invalidity for five patents purportedly covering the antiviral agent and associated products, hoping to “clear out the invalid patents” such that AHF could partner with generic makers and purchase generic versions of the antiviral agent as soon as it could become available on expiration of the five-year New Chemical Entity exclusivity provided by FDA approval of the antiviral agent. The district court dismissed, ruling that AHF’s status as a mere consumer and its interest in purchasing such products did not create a case of actual controversy.

On appeal, AHF argued that it is an indirect infringer of the patents because it requested potential producers to provide the patented products, Gilead’s non-response to AHF’s request for a covenant not to sue created a present controversy, and public policy favors invalidation of invalid patents.


It is strange to say that "public policy favors invalidation of invalid patents." Obviously if patents are invalid, then they are invalid, no matter what policy might say. Either way, what we continued to see this past week was a strong and consistent record of patents-sceptic Federal Circuit which fully supports PTAB. Had it not been the case, patent maximalists would make a huge deal out of it and herald that everything changes (like they nowadays do with Berkheimer v HP).

Recent Techrights' Posts

IBM: Many Thousands of Layoffs in 2025
If 2025 is expected to be the same, then perhaps about 20,000 IBM workers will no longer be there
Google: Your Only Option is Google YouTube (Coming Soon: Mandatory DRM and Attestation?)
Digital Restrictions (DRM) to follow? Only for "approved" (attestation) browsers?
The Munich-Based EPO is Still Using a Platform That Promotes the Far Right and Rehabilitates Nazism
Active Twitter account
How the EPO Pressures Staff Into Minting More Monopolies (Patents), Even Illegal Ones That Harm Europe and Ultimately Dismantle the Rule of Law
insights into the pressure examiners are under
LLM Slop Machines Are Not a Win for "Open Source" and If They Get Cheaper, It's Even Worse
If some program that claims to be "Open Source" pollutes the Web with fake articles (Microsoft SPAM and fake "Linux" articles), whose win is it?
Richard Stallman Speech in Bengaluru, "Silicon Valley of India"
62 years have passed since his "young nerd" days and he's still at it
 
Links 30/01/2025: Microsoft Wants Convicted Felon to Give Fentanylware (TikTok) to It (After Making a Phonecall Asking for That in 2019), "Moving Away From Google's Ecosystem"
Links for the day
Jack M. Germain (LinuxInsider) Seems to Have Turned to LLM Slop, Graphics Slop, and B2B SPAM
LinuxInsider is barely active anymore
Links 30/01/2025: Amazon Layoffs and DeepSeek Panic
Links for the day
Gemini Links 30/01/2025: Chaos Reigns, E-mail, Searching
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, January 29, 2025
IRC logs for Wednesday, January 29, 2025
Mastodon Was Always Biased (Just Like Twitter After Abandoning Chronological and Neutral Timelines in Order to Become More Like Facebook)
So bury-brigading and click-farming control what people see
Certificate Authority Let's Encrypt Falls to Only 0.4% of the Total in Geminispace
Geminispace does not need to outsource trust
Links 29/01/2025: Dismantling Public Health in the US, Air Busan Plane Up in Flames (South Korea's Air Disasters Streak)
Links for the day
Announcements and Administrivia
This week we're going out for two days in a row to celebrate an achievement that's very respectable
Gemini Links 29/01/2025: Japan, GTD, and More
Links for the day
Sir, Yes, Sir. The Life of EPO Patent Examiners.
If working for the EPO makes it harder to sleep at night, take action
Links 29/01/2025: Data Privacy Day and Growing Tensions in Europe
Links for the day
Nazi Twitter (aka "X") Became a Troll Site That Lets People Buy a Blue Tick While Its Boss Actively Promotes Neonazi Politicians
the intellectual level of people who infest the Web through "Twitter" or "X"
This is Why They're So Afraid of Richard Stallman (He Tells People the Correct History)
Then they post about it to Microsoft's LinkedIn
Claim: Facebook Deletes Posts of IBM Red Hat Critics
As always, follow the money (advertisers)
Links 29/01/2025: Climate Crisis and "It’s time for the Xbox to fade away" (Microsoft Lose)
Links for the day
Links 29/01/2025: Buying Groceries During a Trade War, Political 'Retro'
Links for the day
More Illegal Patents at the EPO, Legality of Granted European Patents No Longer Matters to the Office
breaking the law for profit
Network Improvements Tomorrow
"Network maintenance" down in London
Sharing is Caring (But Advocating Copyleft Makes You a "Target")
GPLv3 does not close all the loopholes which the "Affero" helps close
Articles About Free Speech at Facebook
'Facebook vs Linux' story is now receiving a lot more media coverage
We Were Right About stallmansupport.org Making an Error by Joining Social Control Media. mastodon.social Suspends stallmansupport.org.
From what we can guess, accounts can be banned by some oversensitive admin or a mob of users ("bury brigades")
"Latest Technology News" in BetaNews Still LLM Slop and SPAM Composed by LLMs (It's Basically a Spamfarm Disguised as a News Site)
Only a fool would visit BetaNews in search of actual news
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, January 28, 2025
IRC logs for Tuesday, January 28, 2025
The EPO's Corruption, If It Remains Untackled, Helps the Far Right and Enemies of European Unity/Solidarity
Do not negotiate with evil
The Web, Including Wikipedia, Gets Filled With Lies About Bill Gates, Added by Bill Gates and His PR Team
Of course Wikipedia is funded by Gates
Facebook Banning Linux Sites (or People Who Link to Linux Sites) is Another Symptom of the Web's Demise
The state of media on the Web is really bad; Social Control Media amplifies the badness, as Facebook serves to show
Gemini Links 29/01/2025: Neovim Telescope and Writing Less
Links for the day
Links 28/01/2025: Chaffbot as Commodity Fad, New Import Restrictions in Thailand
Links for the day
Links 28/01/2025: "Against Social [Control] Media", "Smart" Buses' Ticketing System Cracked
Links for the day
[Video] Richard Matthew Stallman (RMS) in India, Talking About Proprietary Software's Dangers Only Yesterday
WebM file
Gemini Links 28/01/2025: Thinking About Not Much, Computing Fatigue, the Curse of JavaScript
Links for the day
"SuccessFactors" (SAP) Stunts at the EPO Used to Break Laws and Constitutions, Staff Tricked Into Harming Themselves
Ongoing corruption and lawlessness became the norm; Europe's second-largest institution (EPO) along with the largest institution (EU) has its very own Minsk
The GNU Manifesto Turns 40 in a Few Weeks
The FSF turns 40 later this year, too
Continued Support and Momentum at the Free Software Foundation (FSF)
"This helps protect our community."
Another Talk by Richard Stallman Tomorrow, This Time in Bengaluru
This means that in January 2025 he is giving at least 5 public talks
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, January 27, 2025
IRC logs for Monday, January 27, 2025