Bonum Certa Men Certa

Lack of Patent Quality Means Lack of Patent Validity and Lack of Legal Certainty

Why Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) actually help improve justice, whereas embargoes based on bogus patents are a grave injustice

Not sure about the quality
"Not sure about the quality"



Summary: 35 U.S.C. €§ 101 at the U.S. Patent and Trademark Office (USPTO) -- like the European Patent Convention (EPC) on the Grant of European Patents -- stresses patent quality and scope; will patent offices get things right before it's too late or too expensive to undo?

THE USPTO is supposed to have narrowed patent scope, owing for the most part to court rulings at higher levels. But has much really changed? At the Office rather than court? Well, the USPTO continues to grant a very high number of patents.



Over at Lexology, Maria Reilly (AWA) wrote the usual nonsense a few days ago, conflating patents with innovation. China grants notorious patents, which can barely be understood by outsiders because of the language. Recent reports suggest that some patents are so bad that renewals fees aren't even being paid to maintain these.

"Recent reports suggest that some patents are so bad that renewals fees aren't even being paid to maintain these."Imagine what would happen if anyone could open a patent office at home. Just certify that office of John or Jane (or give them accreditation from WIPO or whatever). One could write a computer program or a script to just grant a billion computer-generated patents per minute and call that "innovation" (by virtue of these patents' existence, no matter their merit or lack thereof). I am not against patents and certainly not against these offices; like many examiners I am for patent quality, which is another thing altogether. If we grant a monopoly on any conceivable thing (10 million things in the US and about a million things per year in China) we reward crap, not innovation. Days ago the Pittsburgh Post-Gazette published an article titled "His customers wanted a new sound for their electric guitars, so he patented one" (so we can assume patents on sounds are also a 'thing' now).

Windows Central, a pro-Microsoft site, wrote about a new Microsoft patent. There's plenty of prior art all over this one, but Microsoft relies on nobody actually testing its patents. It's about flinging/bundling/suing using as many bogus ones as possible in bulk. It's about quantity, not quality.

That now brings us to underlying laws. Daniel Winston and Bryana McGillycuddy try to give lawyers tricks for manipulating courts into tolerating patents that are obvious, thus bunk. Days ago they wrote this:

Secondary considerations, or objective indicia of nonobviousness, can be a useful tool for patent owners attempting to overcome an obviousness challenge under 35 U.S.C. €§ 103.


Patent Docs has meanwhile (earlier today) advertised a "Webinar on Obviousness Standard" and Watchtroll complained that the "Supreme Court Denies Cert in Two-Way Media v. Comcast, Refuses Another 101 Case" (so SCOTUS is consistent at the very least regarding Alice).

Watchtroll, writing about Comcast again on the same day, said that "Comcast Invalidates Rovi Patents at PTAB that Previously Secured Limited Exclusion Order at ITC" (as a reminder, ITC just ignores Patent Trial and Appeal Board (PTAB) rulings as though embargo is above the rule of law and burden of proof/presumption of innocence exists no more).

That case just proves that ITC is out of control. To quote:

In recent weeks the Patent Trial and Appeal Board (PTAB) has issued a series of final written decisions terminating inter partes review (IPR) proceedings where Comcast Cable Communications petitioned patents owned by technology developer Rovi Guides. In each of the final written decisions the PTAB determined that Comcast proved the invalidity of all challenged claims. These latest skirmishes relate to an ongoing patent war between the two companies over Rovi patents on remote scheduling services. A little more than ten months ago Rovi had the upper hand, winning a favorable ruling from the U.S. International Trade Commission (ITC).


Two days prior to this Watchtroll complained about PTAB doing its job when it said: "In early October, the Patent Trial and Appeal Board (PTAB) instituted a series of covered business method (CBM) reviews on patents owned by American stock exchange Nasdaq. The CBM reviews were petitioned by trading platform provider Miami International Holdings (MIAX) and challenge the validity of patents which Nasdaq has asserted against MIAX in U.S. district court."

James Korenchan, looking for some way to twist PTAB news, wrote in his summary: "PTAB Affirms Patent Eligibility of Claims for Using Dwell Time to Rank Search Results" (technically true, but rather abnormal).

By cherry-picking the exception rather than the norm, e.g. Ex parte Bolivar, the patent maximalists dwell or obsess over something that's not even a patent but a mere application. This is all they've got now. Laughable.

To quote: "The claims had been rejected under 35 U.S.C. €§ 101 as being directed to an abstract idea. [...] In the briefing, the Appellants attempted to argue that the Examiner did not establish a prima facie case of patent-ineligibility, but the Board disagreed. [...] While welcome, this decision is further evidence of the Board's inconsistent patent-eligibility determinations. One could imagine a different panel reaching the opposite decision. Still, the bar for patent-eligible improvements to computer technology is often set too high, and this decision is a refreshing entry that lowered the bar."

These people do anything they can to water down 35 U.S.C. €§ 101 and/or suppress PTAB's application of it. Watchtroll has a new article entitled "Writing a Software Patent Application" and another (from yesterday) entitled "Patent Drafting Basics (how to fool examiners).

What these people neglect to say is that even when USPTO grants software patents the courts later reject these so the victory (grant/award) is a Pyrrhic one. Software patents are a losing game now.

How about those VoIP patents brought up by Watchtroll some days ago when it wrote: "On October 1st, the Court of Appeals for the Federal Circuit heard oral arguments in an appeal of a patent infringement case decided in favor of Sprint Communications and against Time Warner Cable. The appeal to arose from a jury verdict in the District of Kansas, which awarded Sprint reasonable royalty damages of $139.8 million for Time Warner’s infringement of patents related to voice over Internet protocol (VoIP) technologies developed by Sprint."

With software patents on their demise, the technology sector is happy. CCIA's Josh Landau (representing CCIA members, which are technology companies) wrote the following 3 days ago under the headline "IPR And Alice Appear Responsible For Reduced Patent Litigation Costs":

The AIPLA data illustrates the change in median cost of various forms of IP litigation over time. The blue line, representing the cost of patent lawsuits with over $25 million at risk, shows a general increase from 2005 to 2013, and then significant declines over the next two years. While IPR became available in 2012, the first impacts of IPR on litigation tactics weren’t seen until the beginning of 2013 when merits decisions in IPRs began to issue. And Alice was handed down in 2014, with a similar lag until district courts began ruling on Alice motions. The data illustrates a slower decline from 2013-2015 after IPR became available, and then a steeper decline in the 2015-2017 period with the impact of both IPR and Alice, consistent with the decline being attributable at least in part to IPR and Alice. (As IPR cost estimates are around $350,000 median cost, the increased cost required to file an IPR is more than overcome by the reductions in litigation cost—to the tune of more than $2 billion.)

However, it’s possible that the litigation cost declines seen in patent litigation could have been due to external factors unrelated to changes in the patent landscape like IPR and Alice. In order to control for this, we can compare costs to other areas of intellectual property law that haven’t seen the same major impacts. Using copyright and trademark litigation with similar amounts at risk as a control, the data illustrates that while there have been cost reductions in the 2015-2017 time frame for all three areas of litigation, the reduction has been most pronounced in patent litigation.


This is a much-needed improvement, which the EPO could learn from; in recent years it viciously attacked its appeal boards (similar to PTAB in Europe) -- to the point where they constantly complain about lack of independence.

President of the Austrian Patent Office Mariana Karepova, speaking to Neil Wilkof of IP Kat, has just made it implicitly clear that Austria is "currently contemplating a Patent Office copyright or software register" instead of software patents. To quote the relevant passages:

IP in the software domain. The new industrial revolution as well as the Internet of Things entail a preponderance of software in practically all innovations. However, neither Austria, nor Europe more generally, is presently able to provide patent protection for this aspect of an innovation. This is an extremely unsatisfactory situation. In order to rectify this, we’re currently contemplating a Patent Office copyright or software register, which would provide companies with a robust legal instrument enabling them to enforce their rights with a greater chance of success. At least that’s what we’re discussing right now in Austria.


Unlike the EPO, they do not tolerate software patents in Europe, i.e. pretty much the same as in every other member state. Sadly, the EPO quit caring about patent quality altogether. It's all about quantity now, even in clear defiance of the EPC.

Recent Techrights' Posts

They Want You To Talk About Trump or 'The Other Bill' in Relation to Trafficking of Underage Girls for Sexual Exploitation
Just something we wanted to say...
How to Quadruple Your "Goodwill" Value and Grow Your (Wall) Street "Value" From $152B to $4000B Without Producing a Single Successful Product/Service
The longer it goes on for, the bigger the implosion will be
Staying Productive
Two very reputable institutions recently told us they now reckon Microsoft is somehow funding those SLAPPs against us
66 Countries Where More People Use iPhones (or iPads) Than Microsoft Windows, According to statCounter Data
a list of countries where iOS now exceeds Windows
Windows All-Time Lows, Android All-Time Highs in Kuwait
New lows for Windows can be found in many countries this month
The Register is Desperate for Money, According to The Register
I decided to check how they're doing as a business
Some Cola Formulas Aren't Secret, But the Barrier is the Branding
That's the power of the channel/distribution, marketing, and brand recognition (accomplished through endless marketing)
 
FOSSY 2025 Conference Safety
The GAFAM-funded FOSSY 2025 is over
Microsoft's Favourite Pay-to-Say 'Analyst' Firm Has Just Collapsed
'Analysts' that helped propel Microsoft to fictional values akin to Ponzi schemes
Ask Google (Jeeves)
What does Google "know", not know, or would rather forget (or embellish)?
A Blow for Patent Ambitions of Bill Epsteingate
It's about money
Apple's iOS Bigger Than Microsoft Windows in Many Countries
This ought to alarm Microsoft
The Mainstream Media Talks About Spotify Share Price and Price Hikes, Not Its Debt Increasing by About 33% in Just 12 Months
Spotify isn't a company in good shape
New "US Editor for The Register" is 80% Microsoft and Windows
they typically just treat Microsoft like the "Holy Grail" of "IT"
Microsoft is Apparently Sending Gag Orders or NDAs to Staff That Got Laid Off (“We were told not to post on LinkedIn. Not to say anything.”)
The main lies we keep seeing
Richard M. Stallman Has Published AI Memos Since 1980 (45 Years Ago)
Back when the term AI actually meant something
Gemini Links 06/08/2025: BitTorrent and Feedly Bots
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, August 05, 2025
IRC logs for Tuesday, August 05, 2025
Openwashing Slop... Using Slop!
So get ready for "open" "hey hi" with its proprietary models to engage in openwashing, helped by serial sloppers who use the LLMs to produce fake 'articles'.
On "Tragedy of the Commons in the Production of Digital Artifacts"
There's a better way to do things. None of that should involve GAFAM.
Gemini Links 05/08/2025: Opel Zoo near Frankfurt and Alhena 5.2.5
Links for the day
The Inflammatory Influence of Social Control Media Giants
CPC's ByteDance says it's cool
Microsoft v Planet Earth
Is Microsoft profitable?
IRC Turns 37
Internet Relay Chat (short: IRC), which started in 1988, turns 37 this month
Shortly After a Microsofter Took Over The Register as Editor in Chief Microsoft Tim (Tim Anderson) is Back and It's Still Microsoft Propaganda, Sometimes Funded by Microsoft
Notice his focus
Stricter Enforcement of Worker Adjustment and Retraining Notification (WARN) Act is Sorely Needed
Who's keeping track anyway?
Calling Plagiarism "Intelligence" is Pure Genius, Brilliance!
One thing to "like" (or dislike) about LLMs is how they're falsely marketed using various buzzwords
Geminispace Promises Simplicity But Also Provides a "bunch of forums that get flood-filled by agitation against the very essence of Gemini itself"
claims of stagnation in Geminispace started because of a person who spent a long time agitating against GNU/Linux as well
Zimbabweans Aren't Into Windows or Microsoft
This cannot be good news for GAFAM
Microsoft's Washington Layoffs Aren't Everything, They're Definitely Not Happening in Just One State in the US
Washington is just more strict with WARN notices
Gemini Links 05/08/2025: Lagrange v1.18.6, No Stagnation in Geminispace, and Fake Coding (Slop)
Links for the day
The Register's Editor in Chief (Who Left for Google) Told Me "AI" Was a Bubble, But Now The Register Gets Paid to Participate in Inflating This Bubble
A lot of the online media is a scam
Introducing Mission:Libre and FreeXR (and BreakXR)
efforts that accompany the foundations put there by the Free Software Foundation in 1985
Slopwatch: WebProNews, LinuxSecurity, and Some Success Stories
Google News still has a slopfarm issue
Links 05/08/2025: Hey Hi (AI) Passing Fads and GAFAM "Embracing the Military"
Links for the day
Links 05/08/2025: Samsung and Microsoft Layoffs
Links for the day
Rumours of Mass Layoffs at Red Hat Next Week (August 11th, 2025)
The eleventh means next Monday
IBM is Shutting Down (Piecewise)
IBM is basically being liquidated
The Debian Language Police Department (PD)
"there has never been complaints about anyone that was offended by this -off package"
Tesla's Debt More Than Doubled in 2 Years and the Company Will Operate in the Red (at a Loss) Quite Soon
If your first-quarter net income is $409 million and you borrow billions from banks, plus interest to pay on those loans, then you're not far from returning to losses
When The Register MS Says "Linux Backdoor" It Actually Talks About Malware
The leading story in The Register US/MS this morning is Microsoft
Microsoft Windows Fell to 19% "Market Share" in Montenegro
Microsoft must be well aware of this trend
Why We Also Include Gopher Links in Our Gemini (Protocol) Links
There are still many people who use Gopher to relay their messages (like blog posts). They're mostly technical people.
Shouting is an Indication of a Lack of Convincing Argument
Beware what they are attempting to distract from
Mongolia: Microsoft Windows at All-Time Low
in 2009 when Windows was at 99.45% in Mongolia the company was "worth" less than 200 billion dollars
About a Quarter of Today's "linux" News in Google News Came From One Domain and It's a Slopfarm
Not kidding!
Gemini Links 05/08/2025: Zombie Threat and Switching to NixOS
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, August 04, 2025
IRC logs for Monday, August 04, 2025
ChatGPT in Trouble
Watch out for the newer buzzwords
The Register MS Links to the Wrong statCounter Page
They link to older data
Dr. Andy Farnell Explains How Google Turned From "Librarian" Into "Oracle", Telling Us What to Think Instead of Where to Look
Google was always a lousy librarian
Microsoft Layoffs Continue in August 2025
If Microsoft is doing so well, how come about 10 rounds of layoffs in about 7 months in 2025?
Microsoft and Windows Have Many Back Doors, But LLM Slop Keep Claiming That Linux Has "Backdoor"
It's another example of LLM slop as FUD amplifier, via slopfarms as well
In Many Countries Vista 11 Adoption Stalled or Became Negative
Not just because people move to GNU/Linux
Microsofters' Lawyers Are Name-calling and Insulting Microsoft Critics, Even Their Spouses
How not to win arguments
Flagging or Tagging Slop That We Find Online
Right now we use ImageMagick
Links 04/08/2025: Very Bad Weather and Travel Restrictions in China
Links for the day
Gemini Links 04/08/2025: Misiamisia and Mobile Linux
Links for the day
Microsoft's Stock is Like a Religion, Microsoft Goes Into 'Hiding' (From Shareholders)
like a religious person or devout believer, the media just parrot anything Microsoft says
Links 04/08/2025: 80 Years Since Last Nuclear War, IPv6 in China
Links for the day
Groklaw Static Site Relaunches With New Theme, But Many Pages and All the Comments Are Missing
We suppose that's still a lot better than the site being offline, as it was for several months
"For Five decades; For freedoms; For all users" (Original EMACS Turns 50 Next Year)
Linus Benedict Torvalds was only 6 when EMACS started
In Spain, Microsoft's Search Engine Market Share Fell to 2%
16 years have passed since Bing was introduced
Protecting GNU/Linux-Centric Journalism From Serial Sloppers
Unoriginal slop is taking away traffic from the people who did all the real work
It Looks Like Managers at Oracle Now Use LLM Slop to Write Blog Posts
Did he cheat by prompting LLMs for mindless text "filler"?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, August 03, 2025
IRC logs for Sunday, August 03, 2025
Gemini Links 04/08/2025: Qubes OS and Curious crypto case of certificates (CCCC)
Links for the day