Bonum Certa Men Certa

Patents Roundup: Patent Litigation is Down and Seems to Have Shifted Away From Software Patents

Shift on keyboard



Summary: A roundup of recent patent cases of interest and what can be deduced from them, especially but not exclusively in the United States

AS THE weeks and months go by we see the USPTO moving further and further away from software patents; it's hardly a surprise that patent litigation has nosedived and many patent trolls have gone out of 'business' (they never had a legitimate business, only a litigation/extortion pipeline). Cemented by a long series of Federal Circuit decisions (especially in 2017) and a growing demand for Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), this trend carries on pretty much unabated. It has been pleasing to watch because we started campaigning on the matter a very long time ago, well over a decade.



Watchtroll has, at least to us, become somewhat of a laughing stock. It's just attacking courts, attacking judges, and blaming everything on Google. 4 days ago it wrote about Jazz Pharmaceuticals and a Federal Circuit which we covered here before. This isn't about Secrion 101. Neither is this other case covered by Watchtroll in relation to Power Integrations:

Power Integrations, Inc. owns U.S. Patent Nos. 6,212,079 (“the ‘079 patent”) and 6,538,908 (“the ‘908 patent”). Power Integrations sued Fairchild Semiconductor Corporation and Fairchild (Taiwan) Corporation (collectively “Fairchild”) for infringement.


Notice that these have nothing to do with software. It recently wrote about this rejection of a patent leading to accusations that a company had "committed fraud because it did not notify shareholders" (yes, fraud).

Watchtroll said:

Citron does not allege, and could not credibly allege, that the PolarityTE has been lying to the United States Patent and Trademark Office. Nor did Citron allege subterfuge surround the technology or science underlying the patent application in question. Indeed, Citron specifically says in the report that they “will not discuss the science behind PolarityTE”. Instead, the astonishing claim is made that PolarityTE has committed fraud because it did not notify shareholders that the patent examiner issued a non-final rejection in a patent application.


This case, again, isn't about software. Yesterday night Florian Müller wrote about Qualcomm (now in our latest daily links) after he had covered this latest twist in Huawei v Samsung -- a case covered by him in recent months. To quote:

This week in Huawei v. Samsung delivered two more sethacks for the Chinese Android device maker and increasingly aggressive patent enforcer (I don't want to call them a "patent bully" just yet, though it may be an appropriate label at a later stage).

First, he trial that Judge William H. Orrick will preside over in the Northern District of California in December is going to be far narrower, and potentially less impactful, than Huawei had hoped. As I had noted toward the end of this recent post, Huawei previously informed of the court of its willingness to withdraw its request for a declaratory judgment on worldwide FRAND licensing terms to its standard-essential patents, subject to an agreement with Samsung on the specifics. That agreement has indeed materialized, suggesting that Huawei saw a high risk of Judge Orrick throwing out the claim (whose dismissal Samsung was already formally seeking) at any rate. Instead of having to make a decision, Judge Orrick merely had to grant the parties' stipulation of a dismissal that is formally without prejudice, allowing Huawei to try again, but only in a different case and not for at least nine months (this post continues below the document):


It certainly looks like Huawei is losing its momentum; its case against Samsung -- like Apple's cases -- is becoming a "winner" only for patent lawyers.

Another new report, this one about a case in New York, has one party "seeking, inter alia, declaratory judgments of noninfringement and invalidity of U.S. Patent No. RE39,470, U.S. Patent No. 7,382,334, and U.S. Patent No. 6,430,603 (collectively, the "Patents-in-Suit")."

Here are the details:

On July 13, 2018, United States District Judge Laura Taylor Swain (S.D.N.Y.) granted a motion by Plaintiff— BroadSign International, LLC ("BroadSign") —for leave to file a Second Amended Complaint against Defendant T-Rex Property AB ("T-Rex"), seeking, inter alia, declaratory judgments of noninfringement and invalidity of U.S. Patent No. RE39,470, U.S. Patent No. 7,382,334, and U.S. Patent No. 6,430,603 (collectively, the "Patents-in-Suit").

BroadSign supplies hardware and software solutions to operators of networks of digital signs. T-Rex has sued several of BroadSign's customers that make, use, or sell digital signage systems, for direct patent infringement on one or more of the Patents-in-Suit.


It's too early to tell what will happen, but by the sound of it Section 101 might be applicable here.

One more case of interest is Ariosa Diagnostics v Illumina, wherein prior art is brought into question/scrutiny because "the courts all agree that the disclosures found in an issued patent or published application count as prior art as of the patent’s filing date." To quote:

In the simple case outlined above, the courts all agree that the disclosures found in an issued patent or published application count as prior art as of the patent’s filing date. The difficulty comes when we bring priority-claims into play (such as priority to a provisional application).

In this case, the Federal Circuit ruled that a published application can count as prior art as of its provisional filing date — but only as to features actually claimed in the application. According to the court, features disclosed in the provisional but not claimed in the published application will only be prior art as of their date of public disclosure.

The patent challenger argues that this interpretation is wrong — and particularly that the effect of the priority claim should be governed by 35 U.S.C. €§€§ 119(e)(1) and 120, which provide for applications properly claiming priority back to an earlier filing “shall have the same effect, as to such invention, as though filed on” the earlier date. On the other side – the statutory hook for the Federal Circuit’s limitation here is the fact that the statute gives priority for “the invention” — i.e., the claimed invention — but not for the disclosure as a whole. In addition Sections 119 and 120 develop the rules for patents claiming priority — not for prior art.


Indecision here too (for now)?

On the difference between knowing about patent infringement and not even being aware (which is the upside of never reading any patents), check out this Docket Report about Olaf Soot Design, LLC v Daktronics, Inc., et al. As the Docket Navigator put it the other day:

The court granted defendants' motion for summary judgment that they did not willfully infringe plaintiff's winch system patent because plaintiff presented insufficient evidence of knowledge through the knowledge of defendants' outside prosecution counsel.


So it's better not to be aware or to not to do one's 'homework'.

Last but not least, there's this report behind paywall saying that "Philips SEP [is] validated by UK High Court," which basically means patent tax one cannot work around, even in Europe. To quote:

The High Court has validated a Philips standard essential patent, making it “two-one to Philips as it moves towards the FRAND trial” in its litigation with Asus and HTC


The UK's position on FRAND was quite covered a lot last year after a judgment had been issued by Colin Birss. Whether or not that spells doom or helps bring software patents to Britain remains to be seen; no doubt the fate of the UPC would play a considerable role. ⬆

Recent Techrights' Posts

Intercontinental Brigading - Part XXXXII - Running One's Mouth
British Police told me "making a false complaint to police is a crime" in relation to Lozza
 
[3~Czech Republic: GNU/Linux Rises Above 5% in Desktops and Laptops
A year ago it was somewhere around 4%
EPO's Local Staff Committee The Hague Says Almost or About a Third of Staff Assembled to Organise at "a Time of Continued Social Unrest"
They speak of "circa 850 staff members in attendance" (in The Netherlands there are about a couple thousand)
Suggestions That XBox Will be Offloaded by Microsoft, Rather Than Shut Down, Make the False Assumption XBox is Profitable (It's Not, It's a Liability)
Microsoft has serious financial troubles
Which "Smart" "Phone", Which "Social" "Media", and Which "Cloud" "Storage"?
Let's take back control of the language
State of the (Linux) Slop, Late 2026 Edition
Google News (Gulag Noise) is a plagiarism booster
Year 21
It's 5PM here
Links 07/11/2026: "Flock Cameras Got Eviscerated by the Midterms" and Joshua Wong Shows China is Highly Repressive and Fully Controls Hong Kong
Links for the day
At The Register MS the Net Liabilities Doubled in One Year, Tangible Assets Down About 35% in One Year
signed off in 2026
Another 20 Years of Exposing Corruption
We'll focus on carrying on what we do
EPO Budget and Finance Committee (in Very Recent Meeting) Increases Bribes to People Who Vote on Campinos Reappointment ("Cooperation Activities")
Buying 'elections' to protect the cocaine-stained regime in Europe's second-largest institution
Links 07/11/2026: London's SLAPP Industry Now Targets Kirkenes (Northern Norway) at the Behest of Corrupt Thieves in Russia and Microsoft’s 'Buyout' Offer Crashes Microsoft Systems
Links for the day
Links 07/11/2026: "The Moon is Waning Crescent", Homeworlds, and "Can't Handle The AVIF!"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, November 06, 2026
IRC logs for Friday, November 06, 2026
IBM Compels Workers - Even at Red Hat - to Become "Retired-ish"
Who needs RAs (layoffs, which have been rebranded as "buyouts" like pink slips are generous "gifts") when workers can have their butts kicked every day and WARN Act reporting thresholds are never approached?
Links 06/11/2026: "XBox Is Closer Than Ever to Being Sold Off" and "BuzzFeed Stock in Free Fall"
Links for the day
Gemini Links 06/11/2026: Dao and Dreams
Links for the day
20 Years of Techrights
Celebrating 2 decades of abuses of power being watched (and looking back at key changes)
Linux (and Linus Torvalds) Sleepwalking Into a Binance-Level Catastrophe With Slop 'Code'
Someone should ask Linus Torvalds or his boss (Linux Foundation) if they deem slop, which nobody audits, trustworthy enough to add to every computer out there running the Linux kernel
Vitaly Orlov Weaponises Deep Pockets to Leverage High Court of Justice in London for Censorship and Punishment of Critics
reproduced in full for more exposure and to make censorship harder
Intercontinental Brigading - Part XXXXI - What I Told British Police About Lozza the Same Month Garrett Was Preparing His First Nastygram From 'Hired Guns' Brett Wilson LLP
Lozza and Garrett
Outsourcing at IBM
Cheapening of the workforce is hardly a new problem
The Register MS: Turnover Fell by Over a Million Pounds (About 20%) in One Year, Administrative Expenses Rose by Almost Half a Million Pounds, The Register MS Operates at a Loss
This is not a (commercially) healthy publisher
Links 06/11/2026: Slop "Companies Race to Lock Down Oil Clients" and Salon Shuts Down
Links for the day
Our Third Decade
Our anniversary is tonight at midnight
Freedom Is Not Free of Charge, Freedom Can be Very Expensive
Being someone's "slave" is the "default" when no resistance exists
Intercontinental Brigading - Part XXXX - Swatting by Proxy
Using imbeciles who lie to cops and then dox cops (and already have arrest record and court documents wherein they admit being stoned in front of the cops)
Intel Craters at Taxpayers' Expense (Bailouts for Failing Companies Simple Don't Work)
GOP, which did this, has lost many seats
Mass Layoffs at IBM, Also Outsourcing to India
What IBM does to itself it is doing to other entities as well
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, November 05, 2026
IRC logs for Thursday, November 05, 2026
During Strikes and Industrial Actions Lots of EPO Staff Organised Yesterday and Will Do the Same Next Week
There really needs to be a genuine election, not a reappointment
Gemini Links 06/11/2026: Hadestown and "Where Has the Electronics Shop Gone?"
Links for the day
Links 05/11/2026: Rule of Law Vanishing in Turkey, Joshua Wong Still Martyred by Chinese Regime
Links for the day
Gemini Links 05/11/2026: Classical Music, Politics, and Seeed Studio
Links for the day
Like Almost Every Slopfarm, UbuntuBuzz Seems to Have Thrown in the Towel
Linuxsecurity and Linuxiac (to some extent Linuxjournal) are still going, but for how much longer?
EPO 'Midterm' Elections Should Oust the Dictator
Tentatively a failure to secure another (unprecedented) reappointment before Christmas
Secret IBM Layoffs and Increase in PIPs (Silent Layoffs)
The media is failing to do its job
Links 05/11/2026: "Voice is Underutilized" and How Data Centres Lost the Midterm Elections
Links for the day
Intercontinental Brigading - Part XXXIX - Crime Numbers Regarding GGG (Americans) and Why Those Still Matter
Time does not undo the actions
Intercontinental Brigading - Part XXXVIII - Telling the Police About the Defamatory Blog Where Posts Targeted My Wife and I (From Across the Atlantic Ocean)
Two years ago we spoke to cops a lot
The Register MS is Losing Money Again, Based on The Register MS
Selling out didn't pay off for very long
There Are No "Layoffs" Anymore, Layoffs Got Rebranded
We're entering bizarre times when layoffs are said to be "down" (according to the regime that suffered a 'bloodbath' in the election) because companies quit using the term "layoffs"
Gemini Links 05/11/2026: Rivers of London, Soul Cakes, STMicroelectronics, and Slop
Links for the day
The Register MS Has Just Published Fake Article With "AI" 84 Times in the Page Because It Was Paid to Do This!
Astounding number of mentions of "AI" (84 in total)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, November 04, 2026
IRC logs for Wednesday, November 04, 2026