Bonum Certa Men Certa

Federal Circuit Judges Moore, Dyk and Reyna Tell Allergan That It is Not Above the Law

The Court of Appeals for the Federal Circuit (CAFC) in the United States finally says what ought to have been pretty obvious all along

Australian House of Parliament
Australian House of Parliament, where similarly important decisions have been made lately (including de facto ban on software patents as per IP Australia's policy)



Summary: Allergan and a Native American tribe have lost their ridiculous case; after swapping tens of millions of dollars in pursuit of immunity for patents they've lost again (in what's likely their last resort/appeal); expect the patent microcosm to attempt to distract from it (like they did Oil States)

THE Patent Trial and Appeal Board's (PTAB) inter partes reviews (IPRs) aren't just secured by Oil States; the new Director of the USPTO will need to coexist with PTAB, seeing that nothing but a case with his name on it (SAS and Iancu) favours PTAB cutbacks.



The latest boost for PTAB comes from a high patent (and beyond) court. It's quite likely the final stop. The 'scammers' who threatened me with legal action (for speaking out against their bogus patents and dirty tricks) have just lost their case. IP Watch's Steven Seidenberg said this: "The strategy was breathtaking in its boldness. Just days before the USPTO was to hear a challenge to Allergan Inc.’s patents on a dry-eye drug, Restasis, the company transferred those patents to a Native American tribe; the tribe then sought to dismiss the USPTO proceedings by asserting sovereign immunity. Following this action, a number of other patentees made similar transfers to Native tribes, in order to protect their patents. More patentees were poised to do so, should this ploy prove effective. It, however, did not. On 20 July, the Federal Circuit Court of Appeals ruled the tribe’s sovereign immunity did not protect its patents from USPTO review. The ruling thus kept intact a key component of America’s patent system."

"It's quite likely the final stop."The remainder is behind a paywall.

"Allergan is not protected from PTAB review by the Saint Regis Mohawk Tribe’s sovereign immunity, says the appeals court in a ruling that relies on the Supreme Court’s FMC opinion," Michael Loney wrote.

Over at Patent Progress, Josh Landau (CCIA) wrote:

Today, in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals, the Federal Circuit held that tribal sovereign immunity does not provide a right of immunity in inter partes reviews (IPR).

In an opinion by Judge Moore, writing for herself and Judges Dyk and Reyna, the Federal Circuit focused on the PTO Director’s ability to decide whether or not to proceed with an IPR, a decision which ensures that “if IPR proceeds on patents owned by a tribe, it is because a politically accountable, federal official has authorized the institution of that proceeding.” This aspect of IPR is sufficient to treat IPR as a proceeding “in which an agency chooses whether to institute a proceeding on information supplied by a private party,” exactly the type of proceeding which the Supreme Court has previously held would not be subject to state sovereign immunity, and by extension to tribal sovereign immunity. (CCIA joined an amicus brief suggesting the Federal Circuit deny tribal immunity on this ground, among others.)


Watchtroll mentioned "an opinion authored by Judge Moore," choosing not to simply attack the judge, for a change. It's Mayer whom the site (in)famously attacked, not Moore; "It is time for Judge Mayer to Step Down," said the headline (there has been more of that since).

"Watchtroll is of course cherry-picking outcomes or cases that serve to distract from the majority of cases..."Moore was recently mentioned in relation to a decision about Alice, with words taken out of context to insinuate that Congress should look into it. We debunked these lies from the patent microcosm at the time. Vis-à-vis Judge Moore, yesterday Watchtroll mentioned her and and her superior Chief Judge Sharon Prost:

On Monday, July 16th, the Court of Appeals for the Federal Circuit issued a precedential decision in Blackbird Tech v. ELB Electronics, which vacated an earlier judgment of non-infringement of a patent asserted by Blackbird in the District of Delaware. The Federal Circuit panel of Chief Judge Sharon Prost and Circuit Judge Kimberly Moore determined that the district court had erred at construing the claim term “attachment surface” in finding non-infringement of the asserted claims. Circuit Judge Jimmie Reyna dissented in this case.

The patent-at-issue is U.S. Patent No. 7086747, titled Low-Voltage Apparatus for Satisfying After-Hours Lighting Requirements, Emergency Lighting Requirements, and Low Light Requirements. Issued in August 2006, it covers an energy-efficient lighting apparatus having a ballast cover, a plurality of ballast cover holes, a circuit board having a plurality of light-emitting diodes (LEDs) which protrude through the ballast cover holes, wherein the lighting apparatus is connected to a wall switch and the illumination of the LEDs is based upon the position of the wall switch. The resulting invention provides a lighting apparatus which meet after-hours or emergency lighting requirements more efficiently and conveniently for commercial building environments.


For those who don't know (or forgot), Blackbird is a highly notorious patent troll [1, 2, 3, 4, 5]. It calls itself "Blackbird Technologies", but it makes no such thing. It's a parasite and the CAFC's staff ought to recognise this. Watchtroll is of course cherry-picking outcomes or cases that serve to distract from the majority of cases -- ones in which SCOTUS decisions are being followed and patents squashed -- not just the cases but the underlying patents (for invalidity rather than non-infringement).

Recent Techrights' Posts

Big Blue's Quiet Axe - Poem Regarding IBM "RAs"
No idea who posted this, but it is profound
Growing Proportion of Linux Commits Being Made by LLMs Not a Sign of LLMs Working, It's a Sign of Linux Development Being Shifted From Community to GAFAM and Other Slop Pushers
antagonist became apologist
Worse Than "Taking Your Job", the Slop Pyramid Scheme Will "Take Your Pension"
This will not end well
Rumours of Further IBM Shutdowns
IBM is going out of existence
Many Anniversaries
Many anniversaries in quick succession
 
Links 04/08/2026: GAFAM Expressing Concerns About Dangerous Disinformation by Slop, Bill Epsteingate-Connected Litigation Firm Salivating Over Europe
Links for the day
Gemini Links 04/08/2026: Root Shell and "Duty of Care"
Links for the day
Alternate Data (Not IBM's Headcount) to Show Mass Layoffs' Effect at IBM (Despite Many Acquired Workers Via M&A)
mass layoffs at Hashicorp and at Confluent this year (media did not cover either).
Abundance of Fake (Sometimes Paid-for) 'News' About IBM Will Discredit the Media as a Whole
In 'the news' today
Microsoft is Trying Vapourware Again (to Keep Developers and Gamers From Fleeing)
For XBox, the main thing over the horizon is additional layoffs
statCounter Reckons 12.33% of Web Traffic in Gambia Can be Attributed to GNU/Linux, Even 15% If Adding ChromeOS
Will this be sustainable?
Reminder: The Pedophilia Problem Comes From the Accusers
Attacks on Richard Stallman are a distraction; his accusers are themselves the culprits
SLAPP Censorship - Part 139 Out of 200: Solicitors Regulation Authority (SRA) Needs More Public Scrutiny (New Management Changed Nothing, It's Costing a Lot of Taxpayers' Money)
millions or maybe billions of pounds wasted
Brigading Against Women - Part II - Threatening Women Using the Human Rights Tribunal of Ontario (HRTO) and Then False Threats Miscarrying the Name of a Court
In this series we intend to show the threats, the outcomes of those threats, the response to those threats
Collapse of MElon Companies a Taste of What's to Come for Slop Bubble and GAFAM (Trillions in Debt, Justified as Slop "Investments")
One good example of this was SpaceX
The 'Hyperinflation' in Hardware Dooms Video Hosting (Very Large Files)
a terabyte of video files would be expensive
Rumours of Silent Layoffs in Microsoft This Month (August 2026), PIPs and Global Voluntary Separation Agreement (GVSA), aka "Buyouts"
Will any investigative journalism follow or just shallow puff pieces and LLM trash from slopfarms?
Links 04/08/2026: "Framework for Musician Burnout" and Alexa+ "is a Buggy Embarrassment"
Links for the day
Signs That XBox as a Console is Coming to an End, Windows Gaming Will be Called "XBox"
"XBox" is the next "Surface"
Microsoft's Share in Search Falls Sharply in Europe
The layoffs at Microsoft's Bing will carry on
Romania: GNU/Linux Reaches 4% (Less Than EU Average)
We expect this same upward trend to carry on
Microsoft Sites or Sites Sponsored by Microsoft Angry That GNU/Linux is Gaining
The Microsofters cannot easily dismiss reports of GNU/Linux growth as "bots" or just allege that statCounter alone is wrong
Ableism in the Free Software Movement Typically Comes From GAFAM Operatives and Proprietary Software Apologists
And their hired guns
Afghanistan: GNU/Linux Steadily Rises to 9%
Windows is steadily declining
IBM Innovation: It Has Invented New Methods of Silent Layoffs or Secret RAs
How IBM disguises mass layoffs now
LLM Slop Won't Replace People and Jobs (in the Long Run)
At the end of the day, people who know their job offer more useful information, whereas LLMs waste people's time (typically an 'externality' to the entity deploying chatbots)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, August 03, 2026
IRC logs for Monday, August 03, 2026
Over 3,500 Known Gemini Capsules Accessible and Active According to Lupa
It finally happened this morning
Gemini Links 04/08/2026: Library Cards, Dead Ends in Software Development, and DOS on USB Key
Links for the day
IBM Has Embraced and Rewarded Liars
The IBM culture vanished
statCounter Estimates GNU/Linux at 5.32% in Kuwait, Years Ago It Was Near 0%
Kuwait rose to fame in the 1990s because of a war
Swatting People Who Write About Corruption, Misogyny, Criminal Misuse of Funds
we've given ourselves a decade to cover all those stories
GNU/Linux Rises Above 6% in Colombia
In Colombia, which is a large south American country, GNU/Linux has risen steadily in recent years
SLAPP Censorship - Part 138 Out of 200: Garrett Has Basically "Lost" and It is "Embarrassing" to Them
they just wound up costing hundreds of thousands of pounds
Gemini Links 03/08/2026: Great Exodus, xkcd as Text, and Dead Ends
Links for the day
GNU/Linux Has Surged to 6.3% in Madagascar
Madagascar's adoption of Free software is a subject we covered a lot in past years
Microsoft's Slop Bet is Killing the XBox Even Faster
LLMs destroy almost anything they touch
The Cyber Show on "Weaponised Antisocial Technology"
by Andy
Alexandre Oliva on Slippery Slop (LLMs)
By Alexandre Oliva
RMS Won the Argument and Now GNU Wins Over Computer Users
He can look back at nearly 43 years of GNU and say, "I was right..."
statCounter Corrects GNU/Linux Estimates, Now Measured at 9% Worldwide
Windows has sunk like a rock
GNU/Linux-Centric Blogs Belatedly Pick Up News About GNU/Linux Gains: 4-8% Depending on the Surveyor
more people will get curious and give it a go
Links 03/08/2026: Strike By Flight Attendants (WestJet) and Greedflation
Links for the day
Links 03/08/2026: EU Curtailed Slop, Frank Zappa Recalled
Links for the day
Daniel Pocock on Sky News This Morning
No harm done
Morten Linderud Has Helped Microsoft Put Locks (and Kill Switches) on the PCs of Arch Linux Users
"the first rule of "secure boot" is to disable "secure boot"
In Poor Peru, GNU/Linux Surges From 1% to 5% in a Few Years
Windows is dying
All Social Control Media is a Weapon (Against Its Users, Serving the Real Owners)
That social control networks are weaponised isn't a new concept
Fanning the Flames of Journalism
This week we have several surprises coming
Forcing the Slop Bubble to Implode Fully to Save the Economy From an Even Greater Collapse and Societal Harm
Let's blow up the bubble. The sooner, the better
GNU/Linux at 8% in Croatia
somewhat of a GNU/Linux adoption hotbed
It's Easy to Predict Microsoft Layoffs for October 2026 Because of the Financial 'Results' That Month (More Faking, More Secret Debt and Buzzwords to Perfume This Debt as "Investment")
From what we've read, Microsoft is silently laying off people this month based on LITE, which leads to PIPs
Not Hard to Guess Who Will Pay for IBM's Collapse (Due to False Statements Made to Shareholders), Red Hat May Disappear
IBM's leadership is never being punished for its failures
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, August 02, 2026
IRC logs for Sunday, August 02, 2026
Gemini Links 03/08/2026: Collectibles, Cities of the Red Night, and Lali Lambda
Links for the day
IBM's August 2026 Promotions (Annual Ritual) Can Turn Into a "Bloodbath" (RAs, Layoffs)
IBM Common Stock is set to open in the red (minus) on Monday
Microsoft Culture Explained by People Who Work at Microsoft
"Be ready for politicking and working over time and weekends."
Codes of Conduct Attract Hoarders and Sociopaths, They Are Intolerant Towards Good People
Codes of Conduct (CoCs) are also promoted using violence
XBox is in Trouble, Sunday News Shows How Serious a Problem It Now Faces
it seems impossible to resuscitate at this point
statCounter Observes GNU/Linux at 10% in Libya
this month statCounter finally sees GNU/Linux approaching "double-figures" there
Thailand: GNU/Linux Approaching 15%, Windows in a Freefall
It makes perfect sense for Thailand to adopt GNU/Linux for technical reasons, not just political reasons
GNU/Linux in Bulgaria Back Up
part of a trend in Europe
Cuba Sees Leap in GNU/Linux Usage, as Reported by statCounter
For the ordinary Cuban it makes sense to reduce a dependence on GAFAM
Gemini Links 02/08/2026: Drift, Crawlers in Gopher Space, Purpose, and Python
Links for the day
Links 02/08/2026: Some Large Slop Investors "Crumbling", Russia Intensifies Bombing of Kiev
Links for the day
IBMers Discuss Who Killed IBM (It Impacts Red Hat)
Fedora is fast becoming like another CentOS
GNU/Linux Rises to 6% in Mexico
Did the soccer (football) matches have some impact or just the "unknowns" being deciphered (or omitted) by statCounter?
GNU/Linux Leaps to 8% in Asia
In Asia, is it a bit higher because of GAFAM distrust? Maybe some other factor/s?
Clownflare Web Usage Survey: About 10% in North America Use GNU/Linux, Worldwide 6.7%
surveyors that showed GNU/Linux growth
SLAPP Censorship - Part 137 Out of 200: Discovering That Spending a Million British Pounds (1,348,250.01 United States Dollars) on Lawyers Cannot Take Down One's Critics
just outright bullying and criminality
Steam Survey, analytics.usa.gov, and statCounter All Point to GNU/Linux Gains (Again)
This must be very annoying to Microsoft
GNU/Linux Exceeds 6% in Spain
In recent years the "market share" steadily grew from 3% to over 6%
Brazil: GNU/Linux Record High, 5%
On average, GNU/Linux has evidence of growth in many countries this summer
Amid 2026 Bing Layoffs Microsoft Share in Search Collapses
How much longer before Microsoft throws in the towel or rebrands again?
United Kingdom: GNU/Linux up to 7%, ChromeOS Another 5% (Total 12%)
further significant gains for GNU/Linux this month
Links 02/08/2026: Cheeto "Blurted Out Vile Plot to Censor ABC"; New York Times Fights 'Intimidation'
Links for the day
Why Techrights Will Still be Active a Decade From Now
Techrights will carry on for many years to come
We Are Witnessing the End of IBM
IBM cannot find growth by moving downwards, by lowering standards
The Slop Presumption Rule
Tainting oneself can take one day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, August 01, 2026
IRC logs for Saturday, August 01, 2026
Gemini Links 02/08/2026: Older Books, Esperanto Music History, and Slop Making Things Worse
Links for the day