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

SLAPP Censorship - Part 120 Out of 200: Garrett Undermines His Own Application Because His Friend Graveley Failed to Accomplish What They Had Both Aimed For
Hold off the "popcorn"
Don't Settle for Slop
Slop is a bit of a symptom of where society is told to go
Summer Plans in Tux Machines
July is nearly upon us
Saying "No" is Not a Bad Thing
Society benefits from people who say "No!" even when it seems impolite (and possibly inconvenient) to say so
Next Week's "Bloodbath" at Microsoft Includes "Silent Layoffs" (Which Microsoft Won't Count)
The notion of "silent layoffs" is fast becoming the "new normal"
 
Jim Not Dead Yet
Let's wait a few more days
Microsoft Layoffs So Big They Cannot Even Wait for 'D-Day' (July 1)
"Layoffs at Xbox Appear to Have Already Begun, with Multiple Compulsion Games Employees Announcing Their Departures"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 27, 2026
IRC logs for Saturday, June 27, 2026
Links 28/06/2026: Heatwave in Europe and Media Failing to Actually Criticise Power
Links for the day
Gemini Links 28/06/2026: Poems, Photographs, and Neoliberalism as Religion
Links for the day
Gemini Links 27/06/2026: Photography From Interlaken to Shynige Platte, Slop 'Code', and Distro Hopping
Links for the day
TIGER COMPUTING LTD Sent Us Threats Half a Decade Ago (Because of Criticism of Their In-House Debian Developer), Now the Company's Debt is Deepening
So what is they're connected to the military?
GNU/Linux in Mexico Near All-Time High
With all the tourists packing the place (or hotels) we can imagine big changes to be seen next month (many portable devices)
Gopher (Protocol) Turns 35, Gemini is 28 Years Younger
Bad technology comes and goes very fast
Be Like Stallman and Assange, Not Like MElon or Bill Epsteingate
these people treat women like worse than dirt
Exposure Leads to More Whistleblowing
In areas like IBM or European patent affairs we've always earned a lot of trust
European Patent Office (EPO) Series Will Run Well Into July
We still have a very significant chunk of EPO "trench" stories
Links 27/06/2026: Journalists Kicked Out of China, Torture in Iran and Turkey
Links for the day
How Microsoft is Preventing or Slowing Down Adoption of GNU/Linux (Fake 'GNU' Controlled by GitHub in Windows, WSL, Sabotage at Boot Level, Not Limited to Dual-Booting)
Microsoft is still at it
Rising Computer Prices Good News for GNU/Linux and Free Software
This can greatly assist the adoption of BSDs and GNU/Linux
Links 27/06/2026: More Restrictions on Social Control Media and Russia is Leveraging Cellebrite/Back Doors
Links for the day
Akira Urushibata on the Likely False (Unverifiable) Claims Anthropic Makes About Defects for Marketing/Hype
Some pro-LLM person has managed to derail the discussion on this topic
European Patent Office (EPO) Series: "Team Campinos" in Split
The EPO team was of course headed by Campinos himself who delivered a "forward-looking" keynote speech to the assembled audience consisting mainly of Administrative Council delegates from the national IP offices
Supporting Women in the Free Software Community
The common theme here is abuse of women
Left IBM After Many Years, Came to Microsoft/XBox, Now Silent Layoffs at XBox
many inside XBox will have their last day next week
Gemini Links 27/06/2026: Homeworlds and Tarot Cards
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 26, 2026
IRC logs for Friday, June 26, 2026
Links 26/06/2026: SoftBank Forbids Mentioning That Slop is a Scam, "'We Need Courageous People' to Combat Greed and Corruption"
Links for the day
Gemini Links 26/06/2026: "Negativity of Reddit" and "Moving Blog to Gemini"
Links for the day
Same MIT Site That Fabricated the Fake News for IBM is Still Being Paid to Produce Fake "Reports" That Prop Up a Ponzi Scheme
If this is the media we deserve as a society and believe keeps us informed, then we are all doomed
'Social' Slop: The Social Control Media and Slop Crises Are Converging
Social Control Media and slop may have a shared fate. People will shun them both.
XBox Being Discontinued, Some Models of XBox Canceled, Not on Sale Anymore
First some of the largest retailers quit stocking/selling XBox, now a 2TB model is axed
Union Syndicale Fédérale (USF) Speaks Out Against Campinos and Informs the Chairman of the EPO Administrative Council
Does Mr. Kratochvíl pay any attention at all?
'António the Pretender' Campinos is Digging His Own Grave With Grotesque Lobbying Intended to Undermine Democracy in Europe's Second-Largest Institution
One way or another, the EPO will never be the same again
The Principle of "Do No Harm"
"Do No Harm" is a common saying
After Years of Bluewashing People Who Are Still Labelled "Red Hat" Suddenly 'Leave' (Might be PIPs), IBM in "Forever Layoffs" Loop
Remember that Red Hat had mass layoffs this year
Microsoft Staff Bracing for Impact Ahead of "Layoffs Lottery"
some people start to assess who will get culled next
Donald Trump and IBM's CEO: Twins Separated at Birth, Saturating the Media With False Reports About Things That Don't Exist
Every "journalist" that went ahead with this fake news should be sacked on the spot for a rejection of fact-checking
The Register MS Will Become Indistinguishable From Spamfarms at This Current Pace
Follow the money...
Microsoft Layoffs Have Already Begun in Its PR Department
It is called Waggener Edstrom
Techrights Community as Litigants in Person (LIPs)
Unwittingly and due to circumstances we're had to step in to protect women abused by monstrous men who lack empathy
European Patent Office (EPO) Series: Rest and Recuperation on the Adriatic Coast
The EPO President's connections with the Croatian SIPO date back to his days as head of the EU trademark agency EUIPO
Firehose of Spam (Fake News) From The Register MS Today
This is how awful the state of news sites really is
Slopfarms Becoming Scarce and Few (or Inactive)
we'll try to refrain from even giving the remaining slopfarms any visibility
The Register MS Promotes Things That Do Not Exist... for Money
How much more ZTE spam will come out before 5PM?
Links 26/06/2026: RIP, Om Malik, 1966-2026
Links for the day
Memory Leaks Suck
Slop ('vibe') coding means lots of bad programs
Natural Disasters and Personal Disasters
Thank you, Om Malik, for the positive memories
Gemini Links 25/06/2026: Life Philosophy and Misery
Links for the day
GAFAM Became a Mainstream Term, and Why Words Matter
Conveying problems in useful terms [...] Impairing propaganda attempts (e.g. calling parrots "intelligence", back doors "confidential", and outsourcing "cloud") should be the first step
European Patent Office (EPO) on Strike Today, Next Week Another Historic Week
If you live in Europe, contact your delegates today
FSF FreeJS Project (Part of the GNU Project's Goals) Advanced Further in 2026
They're moving to reduce dependence on anything to do with Microsoft
SLAPP Censorship - Part 119 Out of 200: Our Suggestions to Our Politicians and Heads of State
coverage about SLAPPs and related matters
Microsoft Already Closing Down Studios, According to Some Publishers
It is being compared to what happened in Intel
IBM PIP Stories Told in Public, Fake IBM News (Fabricated Claims) Drown Media Sites
IBM is seeding fake news to help justify the bailout
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 25, 2026
IRC logs for Thursday, June 25, 2026