Bonum Certa Men Certa

Alice/35 U.S.C. €§ 101 and PTAB Are Here to Stay and Even Their Critics (Patent Maximalists) Have Come to Accept That

Capitol building



Summary: Taking stock of the latest PTAB news and rants; the latter has become scarce because efforts to undermine PTAB have all failed

THE recent changes at the USPTO were relatively minor. Guidelines have barely changed, the chief judge of the Patent Trial and Appeal Board (PTAB) is merely swapping seats, and the courts continue to rule pretty consistently on patent matters. There's no real room for profound change and this, in a strange sort of way, is a good thing because Alice/35 U.S.C. €§ 101, frequently enforced by PTAB, renders a lot of software patents obsolete. The Federal Circuit (CAFC) affirms.



"There's no real room for profound change and this, in a strange sort of way, is a good thing because Alice/35 U.S.C. €§ 101, frequently enforced by PTAB, renders a lot of software patents obsolete."Over the past week we've been patiently watching new cases and new decisions. We're also still watching events like this one about PTAB; a few months ago there were many anti-PTAB events, but Oil States more or less ended that. PTAB is here to stay and patent maximalists are slowly learning to accept that.

"SCOTUS is instead looking into matters such as damage calculations and litigation venue, along with PTAB itself (two decisions about it earlier this summer)."What about 35 U.S.C. €§ 101? It hasn't really changed. There are talks about amending guidelines, but nothing substantial has changed and SCOTUS refuses to revisit the matter. SCOTUS is instead looking into matters such as damage calculations and litigation venue, along with PTAB itself (two decisions about it earlier this summer). 3 days ago San Antonio Business Journal wrote an update about the USAA case, wherein the underlying patent claims are currently being disputed. How typical. How depressing to patent maximalists this must be...

Steve Brachmann wrote about BSG Tech LLC v. BuySeasons, Inc. -- a case that we mentioned some days ago because it deals with software patents and Section 101 at a high level. Watchtroll also seems rather befuddled and confused by the fact that CAFC doesn't give a damn about the Berkheimer hype and still throws away/tosses out any such lousy software patents.

"On Wednesday, August 15th," Brachmann wrote, "the Court of Appeals for the Federal Circuit issued a precedential decision in BSG Tech LLC v. BuySeasons, Inc. which upheld a decision by the district court to invalidate patent claims owned by BSG Tech as patent-ineligible under 35 U.S.C. €§ 101. The Federal Circuit panel of Circuit Judges Jimmie Reyna, Evan Wallach and Todd Hughes found that the district court correctly determined that patent claim asserted by BSG Tech were invalid as abstract ideas lacking any inventive step under the Alice/Mayo framework."

Well, get used to it.

Knobbe Martens (a law firm, not a person) soon wrote about it as well. A bunch of lawyers said this:

Under step one of Alice, the Federal Circuit agreed with the district court that the asserted claims were directed to the abstract idea of considering historical usage information while inputting data. The Federal Circuit found that this was not a method “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of” wide access databases. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014). Further, the Federal Circuit found that the claims were not saved from abstraction merely because they require a specific database structure that is more specific than a generic computer. Also, the Federal Circuit stated that the claims did not recite any improvement to the way in which databases store or organize information.


CAFC on PTAB inter partes reviews (IPRs) has truly transformed the way examiners operate; they think twice before granting software patents and we increasing read reports about rejections. Here's a new CAFC decision regarding IPRs:

The US Court of Appeals for the Federal Circuit yesterday ruled that an inter partes review (IPR) filing is still subject to a time limitation even if a previous patent infringement claim has been dismissed.

In doing so, the Federal Circuit sided with Click-to-Call Technologies (CTC) and overturned a previous decision by the Patent Trial and Appeal Board (PTAB).

According to section 315(b) of 35 USC, an IPR petition cannot be instituted if it is filed more than one year after the petitioner was served with a patent infringement complaint.


A blog post by Dennis Crouch also remarked on this:

In an unusual en banc footnote, the Federal Circuit has ruled that the litigation time-bar found in 35 U.S.C. €§ 315(b) applies even in cases where the plaintiff-patentee voluntarily dismisses the lawsuit without prejudice. Click-to-Call Tech., LP v. Ingenio, Inc. and Iancu (Fed. Cir. 2018).


"Court says the PTAB was wrong to decide that voluntary dismissal without prejudice of a civil action in which the complaint was served “does not trigger” the one-year time bar under Section 315(b)," Michael Loney wrote.

IPR proceedings will continue unabated and entities such as Unified Patents will file IPRs as they see fit.

Watchtroll posted a new example of it earlier today. "Plano, TX-based patent owner American Vehicular Sciences LLC recently filed a petition for rehearing en banc with the Court of Appeals for the Federal Circuit. The petition relates to its appeal of inter partes review (IPR) proceedings conducted at the Patent Trial and Appeal Board (PTAB), which initiated as the result of a petition filed by Unified Patents," Watchtroll said.

American Vehicular Sciences, as we noted back in June, is part of a Microsoft-connected patent troll. Will it be disarmed?

Certainly we shall see PTAB-bashing in the future, but the frequency of that has greatly diminished. Here's Anticipat on Section 101 and PTAB:

As reported in today’s recap email, in Ex Parte GELFAND et al (Aug. 2, 2018), the Board reversed a lack of utility rejection. This continues a longstanding trend of the Board frequently reversing such rejections.


This is nonsense, there's no such trend. Anticipat is a malicious propaganda site against Section 101 and PTAB, just like Bilski Blog and Watchtroll, IAM etc. There has barely been, at best, a minuscule if not negligible difference and that too can be explained differently.

There are still some PTAB-hostile events on the way; earlier today Patent Docs advertised webinars of the patent microcosm on "PTAB Proceedings on Bio/Pharma Patents", the Intellectual Property Owners Association (IPO) on "Post-Grant Proceedings" and the scavengers from the U.S. Chamber of Commerce (malicious lobby group) lobbying lawmakers on patents:

The U.S. Chamber of Commerce Global Innovation Policy Center (GIPC) and the South Dade Chamber of Commerce and the Glen Ellyn, Lombard, Western DuPage, and Wheaton Chambers of Commerce will host two intellectual property and innovation business roundtables in Florida and Illinois


Being from the Chamber of Commerce, it's obvious whose agenda that will advance.

Patent Docs also advertised more benign webinars such as this, but the site as a whole has been full of PTAB-bashing. Their bias is impossible to hide. Then again, their frustration too has become impossible to hide. ⬆

Recent Techrights' Posts

When Some Footage Causes Your 'Company' to Lose Almost Half a Trillion Dollars in 'Value' in a Few Minutes Your Company is Fictionally Valued
stock slips 8% because the CEO cheats on the wife
Intercontinental Brigading - Part XXXXV - The Brand (and Reputation)
"Russell Brand sentenced to 10 years and six months for rape and sexual assault"
Links 09/11/2026: Nvidia CEO Jensen Huang Cheats on Wife With A Suspected Chinese Spy, "400,000 Russians Killed in Battle Since 2022 Invasion"
Links for the day
 
Protestants at the EPO Fight On, Rising in Opposition to and Against Corruption, Also Against GAFAM
Don't say we didn't warn you...
Boosters of Non-reciprocal Licensing Are Just Trying to Cancel Richard Stallman (RMS) and His Baby, GNU
If only they liked freedom as much as they love Microsoft (or Microsoft's GitHub, which is proprietary and unsafe)
Gemini Links 09/11/2026: Zephyr, Wireless Planet, and Old E-mail
Links for the day
IBM: From Illegal NDAs to Illegal Secret Settlements (Money in Exchange for Promise Not to Sue)
Insiders also explain why RAs may come weeks from now [...] IBM has marked 40,000 workers it wishes to get rid of
Links 09/11/2026: 'Humanitarian' Putin Knocks 600,000 Civilians Off the Grid, Eminem’s Publisher Sues Suno
Links for the day
Like Crooked Politicians, The Register MS is Selling "Dinners" (Access, Sponsors)
Talk about "hey hi".
The Register MS is Not Objective Regarding "AI", It's Paid by Pushers of the Pyramid Scheme (including Nvidia)
Some time soon we'll name some companies that pay millions to The Register MS in order to cement their role in the house of cards (while it lasts)
GAFAM Moribund
A lot of what we say about Microsoft in respect to debt is equally applicable to the rest of GAFAM
NVIDIA as a Scam Company Run by Scammers Who Fake Demand for Their Waste of Energy (Subsidising GPU Sales for Use Cases That Don't Exist)
First they targeted gamers, then fake 'currencies' (which turned out to be a bust), now it's slop (obfuscation of plagiarism using brute force and fusion) [...] We're quite glad that Huang publicly broadcasts how untrustworthy he is
Zero Tolerance for Slop
very few sites that dabbled in slop ended up well off (for it)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, November 08, 2026
IRC logs for Sunday, November 08, 2026
Gemini Links 09/11/2026: "The Blue Wave Won't Save Us" and "Discoverability Is Only Solved If You Can Be Discovered"
Links for the day
IBM 'Robbery': No More Car Allowance in the UK, Severance Shredded, CEO Pay Up 51% in One Year While Thousands Laid Off in Secret
Why does a CEO reward himself so much when the company does so badly?
Digitalisation Is Not Inevitable or Unavoidable
Nor inescapable
Gemini Links 08/11/2026: "Back", Zot, and Information Overload
Links for the day
Intercontinental Brigading - Part XXXXIV - Why the Swatting Failed
After that we only ever heard from or spoke to cops when we invited them to our home to collect evidence
“Concerned Microsoft Workers” Say “Working at Microsoft Has Become Joyless and Demoralizing.” (That's What Microsoft Wants, More Will Leave That Way)
Many Microsoft employees are going to leave
The Register MS is Losing Hundreds of Thousands of Pounds a Year While Directors Pay Themselves Hundreds of Thousands of Pounds a Year in Dividends
they take money from slop pushers and have clearly compromised some journalistic standards in the process
GNU/Linux Measured at 7.4% in the UK This Weekend: Clownflare Radar
I hope that one day GNU/Linux will be everywhere here
Never a One-Person Project
Just because I'm the main "public face" of the site (who takes all the insults and SLAPPs) doesn't mean I deserve all the credit
“I Always Expect to Lose. I Fight Anyway, and Sometimes I Win.” — Richard Stallman
To change the world meaningfully people must think big
Stop Looking for News About "Layoffs", Layoffs Are Over (They've Been Rebranded)
To properly assess the status quo we need other yardsticks
Links 08/11/2026: Bosses Who Were Forcing Their Workers to Use Slop Change Mind, "Rapper RBX Files Ninth Circuit Appeal in Fraud-Focused Class Action Lawsuit Against Spotify"
Links for the day
Links 08/11/2026: Why Vikings Stayed in Iceland and "TikTok Accused Of Promoting Sex Industry To Young Girls"
Links for the day
Gemini Links 08/11/2026: "Before Sunrise" and LLM Scrapers Versus Self-Hosting (or Web in General)
Links for the day
Intercontinental Brigading - Part XXXXIII - Weaponising Cops in Another Continent (Europe), Knowing They Cannot Come to Your Home in America, While Threatening Women
This year it culminated in death threats
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, November 07, 2026
IRC logs for Saturday, November 07, 2026
The Decade Ahead, a Decade of Suppressed Stories
Our stories aren't discouraged or considered taboo because of racism or "toxic politics" or anything like that; they just hurt powerful people and corporations
Solicitors Regulation Authority (SRA) Inaction and Incompetence - Part V - "Reports Closed Without the Evidence Being Examined."
Totally what the SRA did regarding Brett Wilson LLP
Gemini Links 07/11/2026: Illusion Garden and Lagrange 2
Links for the day
Complexity is the Tyrant's Friend
Slop is for feeble minds and cheaters
IBM Firings (or Silent Layoffs) After Bluewashing; "IBM’s Employment History is More Troubling Than its Patriotic Marketing Suggests"
"It has zip to do with race but everything to do with the greed of the 1% who have been doing all they can to destroy the middle class..."
“Week van de Werkstress” and Work-Related Stress at the EPO, Where Staff is Bullied Into Granting Illegal Patents for Foreign Monopolists
"poor working environments, including discrimination and inequality, excessive workloads, low job control and job insecurity pose a risk to mental health"
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
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
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