Bonum Certa Men Certa

Supreme Court Justices and 35 U.S.C. ۤ 101 Are Fixing the USPTO, Voiding 'Fake Patents'

The patent trolls' lobby (IAM) focuses on the few and rare 'success stories' of patent litigation

Sonos and IAM "If you muscht ask..." (they don't even say how much they got paid!)



Summary: With the demise of the Eastern District of Texas (as litigation venue) and the demise of software patents we're starting to see the USPTO going back to the original purpose of patent systems

THE PATENT news is still awash with/dominated by Apple news (the Samsung verdict). It's about design patents, which are notorious for all sorts of reasons.



There's some good news, however... it's not some breaking/overnight news but part of a long, arduous process. Patent scope is being narrowed in the US, owing to a large degree to the Justices at SCOTUS. They may be doing some terrible things to civil rights, copyright law and so on. When it comes to patents, however, we couldn't ask for more. They typically just 'get' it these days...

The patent maximalist Richard Lloyd (IAM) keeps whining about it. His blog posts are typically rants about the US patent system/courts and he lobbies Iancu. A few days ago, for a change, Lloyd wrote about a patent settlement. It's about a 'fossil' of a company, Sonos, which resorted to patent aggression a while back (like many other dying companies, this one being private with only one store left). Lloyd wrote:

Sonos, the connected speaker company, announced last week that it had reached a settlement with Denon, so drawing a line under almost four years of litigation. Although the terms of the agreement remained confidential, it’s fair to say that the run of things in court has largely gone Sonos’s way since it sued D&M Holdings (an investment company that owned Denon) in US district court for alleged infringement of at least four of its patents. Late last year Sonos scored a key victory in a jury trial which ruled that three of its patents in suit were valid


So after "almost four years of litigation," which must have cost a fortune, one small company compelled another small company to pay (maybe zero). It did not even win the case! The patents weren't upheld. It's merely a settlement. One can bet that the biggest winner in this whole affair was the legal team (i.e. lawyers). No wonder "the agreement remained confidential"; the numbers are probably laughable and pathetic, so we expect Sonos to use this secrecy to go after other companies, demanding 'protection' money based on imaginary assertions/claims. Apple and other companies have been doing the same thing for nearly a decade.

Nice 'success story' you got there, Mr. Lloyd!

Moving on, a PTAB case was covered yesterday by Watchtroll. It's actually an appeal to the Federal Circuit and as a bit of background, "Mallinckrodt owns the ’112 patent, which is directed to methods of distributing nitric oxide cylinders for pharmaceutical operations. Praxair petitioned for inter partes review of claims 1-19 of the ’112 patent, which the Board instituted. The Board held that claims 1-8 and 10-19 would have been obvious over four prior art references. However, claim 9 survived. Praxair appealed from the Board’s decision regarding claim 9, and Mallinckrodt cross-appealed regarding claims 1-8 and 10-11."

This ought to have been enough to undermine the patent as a whole.

"The Board also found “compelling” Mallinckrodt’s evidence of secondary considerations that “patients were not excluded” from an INOT22 study," Watchtroll continued, "despite the known relationship between the nitric oxide treatment and pulmonary edema for patients with LVD. However, because the Court concluded that claim 9 requires administering nitric oxide to patients with LVD, Mallinckrodt’s evidence of secondary considerations regarding the failure of researchers to exclude such patients from the INOT22 study lacked sufficient nexus to the claim. Both the Board’s findings regarding the differences between the prior art and claim 9 and its findings on secondary considerations depended on an incorrect interpretation of that claim. Thus, the Court reversed the Board’s decision that claim 9 is not unpatentable as obvious."

Notice double negation there ("not unpatentable"); this is never helpful and the Supreme Court recently did this also (it got called out on it). Speaking of the Supreme Court and style, several prominent people have complained about the English of the Trump-appointed (and nominated) Neil Gorsuch. He became a Justice last year, he has served for quite some time since, and Dennis Crouch still cannot spell his surname correctly; he wrote "Gorsach" a few days ago. We find it funny because Crouch ought to know better; we guess that after all this time he still doesn't know who runs the highest court. The post is about 35 U.S.C. ۤ 101, which pertains to many things including software patents. To quote:

The petition asks the following questions:

Does 35 U.S.C. €§ 282 allow for challenges to a patent’s validity based on patent eligibility under 35 U.S.C. €§ 101?

In addition, and in close alignment with the first question, is it proper to find patents invalid under 35 U.S.C. ۤ 101 after full examination before the U.S. Patent and Trademark Office in response to 12(b)(6) challenges when they are presumed valid under 35 U.S.C. ۤ 282?

Is it proper to grant a Rule 12(b)(6) motion to dismiss when the record contains unrebutted factual evidence that the invention is patent-eligible under ۤ 101?


Don't expect the Supreme Court to bother with 35 U.S.C. ۤ 101; it has had many opportunities since Alice and it always turns these down. Three days ago Marc J. Rachman and Devin A. Kothari (Davis & Gilbert) wrote about patents and the Supreme Court, asserting that the "Supreme Court Seeks To Curb The Worst Abuses Of The Patent System," notably in litigation. To quote:

Congress, commentators and a wide variety of industry leaders have long noted that the patent system was broken. Besieged by a tide of weak patents and baseless patent troll litigations, these stakeholders argued that the current patent climate incentivized the weaponization of patent rights, thereby raising operational and legal costs and stifling innovation.

In 2017, the Supreme Court responded by taking aim at some of the worst abuses of the patent system in two landmark cases. The first, TC Heartland v. Kraft Foods, addressed the issue of venue. Hoping to limit the aggressive forum shopping of plaintiffs – which often led to an outsized number of cases in plaintiff-friendly places like the Eastern District of Texas – the Supreme Court held that venue is only proper in a patent case in the state where the defendant is incorporated or where it has a regular and established place of business. In narrowing the proper avenues for bringing suit, the Court reduced any home-field advantage for patent trolls.

In Impression Products v. Lexmark Int'l, the Supreme Court rejected Lexmark's efforts to prohibit purchasers of printer ink cartridges from refilling and reselling them. The Supreme Court found these restrictions to be a violation of the "first sale" doctrine, which protects downstream users of a product by exhausting a patent owner's rights in a product after it is first sold, thereby narrowing the field of legitimate patent defendants, and giving peace of mind to retailers and consumers.


On the subject of Alice, see what Donald Zuhn wrote about Genetic Veterinary Sciences, Inc. v LABOklin GmbH (Eastern District of Virginia) the other day. It's yet another one of those many cases where Alice works its magic because "claims 1-3 of U.S. Patent No. 9,157,114, which is assigned to Defendant University of Bern, are invalid under 35 U.S.C. ۤ 101."

To quote some relevant bits:

Earlier this month, in Genetic Veterinary Sciences, Inc. v. LABOklin GmbH, Senior District Judge Henry Coke Morgan, Jr. of the U.S. District Court for the Eastern District of Virginia granted a motion for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure filed by Plaintiff Genetic Veterinary Sciences, Inc. (doing business as Paw Prints Genetics) that claims 1-3 of U.S. Patent No. 9,157,114, which is assigned to Defendant University of Bern, are invalid under 35 U.S.C. ۤ 101. Genetic Veterinary Sciences ("GVS") had initiated the dispute between the parties by filing a complaint for declaratory judgment of invalidity and noninfringement of the '114 patent.

[...]

In assessing the patent eligibility of claims 1-3 of the '114 patent, the District Court noted that the analysis follows the two-step framework set forth by the Supreme Court in Alice Corp. Ptv. Ltd. v. CLS Bank Int'l (2014). Pursuant to that framework, courts first determine whether the claims at issue are directed to a patent-ineligible concept, and if so, then consider the elements of each claim both individually and as an ordered combination to determine whether the additional elements transform the claim into a patent-eligible application. The District Court noted that this second step "represents a 'search for an 'inventive concept''—i.e., an element or combination of elements that is 'sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.'"


This is a district court; these tend to be even less strict than the Federal Circuit, so this is noteworthy. Also from a district court there's this update on Magna Electronics, Inc. v Valeo, Inc. et al, stating that "[t]he court granted defendant's motion to compel further interrogatory responses regarding conception and reduction to practice."

We certainly hope that, over time at least (the long run), courts as low as these and even the patent office will sympathise with defendants (merely being accused) rather than self-acclaimed 'inventors'; many patent applicants are charlatans or people who overestimate the importance of their ideas, seeking a monopoly on these ideas while relying on examiners' benefit of the doubt and/or profit motive.

Recent Techrights' Posts

IBM Red Hat on "era of cloud computing", pushing "hey hi" (AI) hype in Microsoft Azure
LLM slop might actually be more benign than Microsoft promotion
Corruption and Rule-Breaking Prevail at the European Patent Office (EPO), Europe's Second-Largest Institution
The law does not really exist at the EPO; it can be perceived as merely a "recommendation"
404 Media Says "Workers at NASA Told to Drop Everything to Scrub Mentions of Indigenous People, Women from Its Websites" But There's Also Accessibility in the Firing Line
In the case of abandoning accessibility, everyone stands to be hurt and proprietary software can be brought in to replace standards
Just Because People on Top of the Microsoft Pyramid Made a Lot of Money Doesn't Mean Microsoft is Wealthy
The bigger they are the harder they fall
 
Ubuntu Desktop Director of Engineering Has Only One Blog Post. It Promotes Microsoft Windows.
Remember that even 15 years ago (more or less, maybe 16 years ago) Canonical appointed a a 'former' Microsoft manager (Spencer) to lead Ubuntu on the desktop
statCounter: More Countries Where Windows is Around 1% "Market Share" (People Have Moved to Android/Linux)
in some nations Windows is already 1% or less
When BetaNews Writes Real Articles About "Linux" They Promote Windows
The Web is in a bad state. We need to at least try to correct this.
Gemini Links 06/02/2025: Cynicism and "Real Magic on the C64"
Links for the day
Links 06/02/2025: New Sanctions, Layoffs, and Executive Orders
Links for the day
Distros and Desktop Environments, Devices
GNU/Linux focused
New Rumours of IBM Layoffs in 2025, IBM Consulting Still Struggles, Based on Management
"Hey hi" (AI) has been a common excuse for business failure
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, February 05, 2025
IRC logs for Wednesday, February 05, 2025
Links 05/02/2025: Kessler Syndrome and News Online
Links for the day
statCounter: Monaco Now 7% GNU/Linux ("Proper")
GNU/Linux, not counting Chromebooks, is on the rise
Many Parts of Google Lose Money
It's quite apparent that many parts of Google - even some that rely on ad revenue or push ads - aren't profiting
European Internet Forum (EIF) is Dominated by American Corporations and Microsoft Lobbyists, Staff Take the Lead
Should the officials over here or the European Parliament pay attention to these people?
Links 05/02/2025: Connection without Connectivity and Unionised Grocery Workers
Links for the day
Gemini Links 05/02/2025: Learning, Madman Ruling a Mad Country, Back in Geminispace
Links for the day
statCounter Shows "WIntel" Chasing a Dying Market
Microsoft acts as if it's running out of money
Free Software Foundation, Inc. (FSF) Still Raising Money, Richard Stallman Contributes
total exceeding $430k
A Lot of Stuff About "Linux" in Google News is LLM Slop, Fake 'Articles'
It seems to be getting worse
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 04, 2025
IRC logs for Tuesday, February 04, 2025
'Official' Debian Sites That Sell Proprietary and Surveillance
"Azure API throttling strikes back"
statCounter: Only 1 in ~40 Web Users in Ireland Uses Microsoft Browser, One in Six Uses Windows
When/if Windows market share goes down, so will Edge
Links 04/02/2025: Social Control Media Bans and US Fighting Its Allies, Not Russia
Links for the day
Links 04/02/2025: Birth of a Calf, FOSDEM, and More
Links for the day
Anti-Linux FUD Sites cybersecuritynews.com and gbhackers.com Turn Out to be LLM Slop, Even Plagiarism That Spreads Lies
Beware false headlines and fake text from cybersecuritynews.com and gbhackers.com
BetaNews Began Removing LLM Slop About "Linux", But More of It Keeps Coming From Guardian Digital, Inc (at linuxsecurity.com)
the other Serial Slopper, Guardian Digital, Inc
Mollamby, Suicide Cluster, not trademark, the real reasons for Debian legal expenses, evidence
Reprinted with permission from Daniel Pocock
Links 04/02/2025: Mass Layoffs at Salesforce, Economic Pressures, Trade Wars
Links for the day
The Latest Microsoft Layoffs Are a Wake-up Call: The Company is Running Low on Money
in most areas it is not even profitable
[Video] Richard Stallman Auctioning a GNU (Gnu) at Surathkal, India
clip is only a minute-long
Software Freedom Month at NITK Surathkal and Yesterday's Talk by Richard Stallman
the message being spread by the person who started it all
Richard Stallman Has Another Talk in India Tomorrow, at Least Fourth India Talk in Recent Days
In the past month he has given at least half a dozen talks
statCounter: GNU/Linux and ChromeOS Now Measured at 2.78% in Japan (It Used to be Less Than 0.5%)
really 'took off' half a decade ago
GNU/Linux Reaches All-Time High in the United States, Based on statCounter
Windows is the loser; GNU/Linux grows at its expense
LLM Hype (Chatbots Hyped and Wrongly Characterised as "Artificial Intelligence") Cause Net Inflation
Net as in Internet, not limited to the Web
It Looks Like BetaNews' Managing Editor Wayne Williams is Taking Over From Fagioli After Repeat Pattern of LLM Slop (State-of-the-Art Plagiarism) About "Linux"
The most plausible explanation is, Fagioli got caught or his conduct could no longer be ignored
statCounter Reckons Less Than 10% in Mexico Still Use Windows to Access to Web and GNU/Linux Surges to All-Time High (Plus, Microsoft's Latest Debt Crisis)
Looking at Mexico in isolation
From India to Italy: Richard Stallman's Next Talk is Next Week in Torino
Announced less than a day ago
Corporate Media is Intentionally Lying for Microsoft, There's Now a Hiring Freeze, No Replacements for Workers Laid Off in Two Mass Layoffs Last Month
Maybe the media - at least some of it - actually deserves doom. If it covers up for the powerful to muzzle and gaslight the oppressed, then what sort of media is that anyway?
Gemini Links 04/02/2025: Tolkien and New Job
Links for the day
Covering EPO Scandals in an Age of Mass Censorship (and Europe Being Afraid to Introspect, for It Might "Help Putin")
It was all along expected that "external enemies" would be invoked to suppress discussion about EPO crimes
Facebook Finally Admits That It Censored Linux and Banned People for Mentioning It; statCounter Shows Rapid Growth for GNU/Linux in Southeast Asia
So GAFAM is losing its power
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, February 03, 2025
IRC logs for Monday, February 03, 2025