Bonum Certa Men Certa

Opponents of the Patent Trial and Appeal Board (PTAB), People Who Profit From Litigation, Accuse PTAB of Horrible Things to Stir up Imaginary 'Controversies'



Summary: The abundance of inter partes reviews (IPRs) which invalidate US patents by the Patent Trial and Appeal Board (PTAB) may mean very little litigation in years to come; that does not motivate and in fact very much demoralises those who make a living out of patent lawsuits

PTAB faces some hostilities from the new Director of the U.S. Patent and Trademark Office (USPTO), who cites perceived 'issues' expressed by patent maximalists like himself. The reality of the matter is, companies that actually make something support and appreciate PTAB.



Watchtroll, as always, keeps bashing PTAB. As recently as yesterday (Sunday) Steve Brachmann wrote about PTAB invalidating yet another patent and one day earlier Watchtroll had published "The PTAB Promotes Petitioner Promiscuity" (yes, this anti-PTAB extremists' site used the word "promiscuity" and maybe tomorrow these extremists will call judges "prostitutes").

These patent lawyers and law firms are awful. The latest attack comes from David Wanetick, who calls himself "a world-renowned authority on the issue of intellectual property valuation" (there is no such thing as "intellectual property" as we last explained yesterday).

PTAB nowadays uses or leverages €§ 101 to squash hundreds of software patents per month. It is not hard to imagine who would oppose that.

Dennis Crouch constantly complains about US courts invaliding fake patents that are software patents. Here's a new example:

For the past several years, I have been conducting an annual patent law moot court competition at Mizzou. This year – the eighth annual – the case was was captioned as an appeal of a recent dismissal by District Court Judge Indira Talwani in Cardionet, LLC v. Infobionic, Inc., 2018 U.S. Dist. LEXIS 177305, 2018 WL 5017913 (D. Mass October 16, 2018). In her decision, Judge Talwani dismissed the case for failure to state a claim — ruling CardioNet’s heart monitor patent is directed to an abstract idea rather than a patent eligible invention. U.S. Patent Number 7,941,207 (“the ‘207 patent”). The moot court is sponsored by McKool Smith and so the winner receives $1,000.

[...]

CardioNet sued InfoBionic for infringement in March 2017. Rather than filing an answer, InfoBionic filed a Motion to Dismiss for “failure to meet the pleading standard of Twombly and Iqbal and for patent ineligibility of the ‘207 patent pursuant to €§ 101.” While the district court was considering the briefed motion, the Federal Circuit decided Aatrix and Berkheimer but did not permit supplemental briefing regarding material facts at issue in the case. The district court then granted the motion to dismiss with prejudice – finding the claims invalid as directed to an abstract idea. The court explained “the innovation of the … patent may be to use computer equipment and logic to monitor the variability of beats, but nothing in these claims places any limitation on that abstract idea.”


Janal Kalis highlights (as usual) the rare exceptions to the norm, e.g. this PTAB intervention that overturned an examiner's decision/judgment: "The PTAB Reversed an Examiner’s [Section] 101 Rejection of Claims for a Method of Making an Infeasible Assembly of Parts Feasible: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017003103-10-22-2018-1 …"

Here's another: "The PTAB Reversed a [Section] 101 Rejection of Claims in an Airbus Defence Patent Application: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017010645-09-27-2018-1 …"

Those are very rare. They're also far less interesting or relevant than Federal Circuit appeals.

We understand that these prominent patent maximalists aren't happy with PTAB; but their motivation is rather clear; alluding to another PTAB determination of obviousness (escalated to CAFC), Watchtroll wrote:

On Friday, November 9th, the Court of Appeals for the Federal Circuit issued a nonprecedential decision in NuVasive, Inc. v. Iancu, which vacated certain findings of the Patent Trial and Appeal Board (PTAB) in an inter partes reexamination proceeding involving a NuVasive patent covering a system and methods for minimally invasive surgical procedures. The Federal Circuit panel of Circuit Judges Pauline Newman, Raymond Chen and Todd Hughes determined that on the issue of secondary considerations the PTAB erred in finding no nexus between NuVasive’s claimed method and the surgical procedure actually commercialized by NuVasive. The panel also held that further fact-finding was required in order to determine whether an asserted prior art publication teaches a certain nerve-monitoring technique necessary to support the Board’s determination of obviousness. Therefore, the decision of the PTAB was vacated and the case remanded for further proceedings consistent with the Court’s opinion.

[...]

NuVasive asserted the ‘057 patent in an infringement suit filed against Globus Medical in October 2010. The following February, Globus filed the request for the reexamination on claims of the ‘057 patent to determine obviousness based on combinations of four pieces of asserted prior art. In the first office action, the examiner rejected all claims as obvious because all of the references pertained to minimally invasive surgical techniques and a skilled artisan would have found it obvious to combine them to achieve the claimed system and methods.


This is another case of cherry-picking because, based on last year's year-long statistics, CAFC affirms PTAB's decisions about 80% of the time (in the rare cases it even expresses willingness to reevaluate).

All in all, we expect to continue to see such attempts to make "scandals" out of nothing, using words like "promiscuity" to characterise PTAB just doing its job, which is to assess patents' validity after a grant, not just before it.

Recent Techrights' Posts

Big Trouble in GNOME
even GNOME people admit the CoC went wrong
New Article Explains How the GPL Came About and WordPress Having Copyleft Obligations
Having been involved in the WordPress development community since almost the beginning, I know why it chose the GPL and how it restricts abuse by Automattic
Dr Richard Stallman (RMS) Gives Talk in Oxford University in 4 Hours
If you live nearby, go there (it's free as in gratis)
Using a Law Firm's Licence to Exercise Politics Through Frivolous SLAPPs and Nastygrams (to Silence People, Remove Pages, Demand Fake or Forced 'Apologies')
Things must be getting really bad when lawyers act for raving antisemites
 
Things Get Increasingly Nasty at Microsoft Ahead of the Fake Results and May's Mass Layoffs Wave
They try to get people to 'resign' so that they won't count as layoffs and the company's 'wellbeing' will seem better
IBM's Debt Ballooned by 8.5 Billion Dollars in Just 3 Months!
Hallmark of a company in a state of disarray, trying to spend its way out of trouble
Serial Sloppers Are Killing the Web (They Probably Don't Care, Either)
Slop is a disease on the Web
Slopping the Trough: Disney Plus Loses Billions and the Decline of Physical Media in America
Reprinted with permission from Ryan Farmer
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 24, 2025
IRC logs for Thursday, April 24, 2025
Links 24/04/2025: GAFAM Problems and No Peace (or Ceasefire) in Sight
Links for the day
Slopfarms on the Web Almost Always Generate Anti-Linux FUD When They Produce "Linux" Output
Welcome to the dying Web
Richard Stallman's Oxford Talk Has Just Ended, Here Are Some Photos
he might hop over to another European country
Gemini Links 24/04/2025: Birthday and Good Work of Academia in Esotericism
Links for the day
Links 24/04/2025: EU fines Apple and Facebook, Another Microsoft GitHub Security Blunder
Links for the day
IBM Gained Almost 6 Billion Dollars in "Goodwill" Value in Just 3 Months, According to IBM
Congrats to the management!
In Belarus, Yandex is Now Measured as 50 Times More 'Popular' (by Usage) Than Microsoft
Yandex continues to gain, whereas Bing cannot even register at 1%. Last month it was registered or measured at a measly 0.65%.
IBM Cannot Lie to Shareholders Anymore
"I would not be surprised if we see a layoff every quarter this year."
We're Working to Make Full-Site Search Available
This site has over 1,000 'wiki' pages, many thousands of documents, several thousands of videos, and about 50,000 blog posts or articles. We need to make them easier to find/navigate.
Links 24/04/2025: IBM Loses Many Contracts, Intel to Lay Off Over 20% (Not Counting Those Who Leave 'Voluntarily')
Links for the day
Richard Stallman Can Explain to Oxford Artificial Intelligence Society Why LLM Slop is Not Artificial Intelligence and Why It Hurts Society
another 'crop' of LLM slop that damages GNU/Linux and facts
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 23, 2025
IRC logs for Wednesday, April 23, 2025
Open Source Initiative (OSI) Promoting Microsoft and Proprietary Software Using Microsoft Operatives
Because nothing says "Open Source" like GPL violations facilitated by Microsoft
Another Site Bites the Dust: "Open Source For You" Becoming a Slopfarm (LLM Slop)
What a shame. Another dead site.
Links 23/04/2025: Crackdowns on Dissent, Palin Loses Libel Retrial Against New York Times
Links for the day
Links 23/04/2025: Hard Times and Digital Amnesia
Links for the day
The GNU/Linux Site Formerly Known as "linoxide.com" is Back... as an LLM Slopfarm!
Better for linoxide.com to go offline than to do this
Get Rid of Back Doors, Don't Obsess Over Bounties and Other Corporate PR Stunts (or Needless Reboot Rituals)
Security as a term has mostly lost its meaning due to repeated misuse for many years
Richard Stallman to Speak in Oxford University Exactly a Day From Now
outsourced to GAFAM
Links 23/04/2025: "Hiding Corruption" and "The Cost of Defunding Harvard"
Links for the day
Microsoft 'Studies' Again? Leon Musolff is Writing Papers With Microsoft.
Even if one can see/find a link to "the study" (in the Bezos-controlled publication), most people won't look any further and just take everything at face value.
Towards GNU World Domination
The FSF led by Geoffrey S. Knauth with his friend Richard Stallman in the FSF's Board [...] Let's encourage people to adopt GNU/Linux. There has never been a better time.
statCounter Helps Visualise Just How Deep in Trouble Microsoft is (Especially in Africa)
Microsoft sabotaged efforts to connect Africans and equip them with GNU/Linux laptops
The Register is Using Linux-Hostile Clickbait in Articles of Linux Proponents
Don't be a "whore" to advertisers, team El Reg
Microsoft Windows in Cyprus Lacking a Future
Most people access the Web there from mobile
Matrix Has a Severe Problem With Illegal Images
If Matrix cannot get the CP problem under control, many projects and people will dump Matrix
Never Try to Justify Strangulation of Women (Not in the US and Not in the UK)
Joint post by Mrs. Rianne Schestowitz and Dr. Roy Schestowitz
Links 23/04/2025: Tesla Profits Plunge 71%, Intel Ready to Lay Off 20% of Staff, Microsoft and IBM Layoffs
Links for the day
Microsoft's Most Profound Issue is That People Moved to 'Mobile' and "App Stores" (Microsoft's Presence There is Negligible)
Expect a wild ride for Microsoft this year
Google News is Amplifying FUD and Lies About Linux (and OpenSSH/SSH) by Promoting Slopfarms With Machine-Generated FUD and Slop Images
Google should know better
Gemini Links 23/04/2025: Librarians, Anubis, and Refactoring a Gemini Capsule
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 22, 2025
IRC logs for Tuesday, April 22, 2025