Bonum Certa Men Certa

The US Patent and Trademark Office’s (USPTO) Patent Trial and Appeal Board (PTAB) Maintains High Pace of Patent Invalidation, in Spite of Appeals to CAFC

CAFCA (or Kafka) won't save bad patents from their inevitable demise, as the boards of appeal in the US grow stronger, whereas in the EPO (Eponia) they grow weaker and increasingly understaffed, lacking independence, and too expensive to be reachable

USPTO and EPO



Summary: The Court of Appeals for the Federal Circuit (CAFC), i.e. the court system, has become the last resort of serial litigators, as the PTAB gets in their way more and more often following AIA and Alice

THE quality of patents enshrined or 'blessed' by the USPTO must improve in lieu with high courts' decisions, e.g. Alice (2014). Otherwise the applicants with their newly-granted patents will simply lack confidence in their patents and will be too reluctant to pursue patent licensing, litigation. etc. Patents are only worth anything if there is sufficient evidence to back claims of novelty and non-triviality. Otherwise, these patents are only useful for trolls (preying in cash-limited businesses and pursuing out-of-court settlements en masse). Patents were originally conceived for the purpose of publication and dissemination of knowledge, but nowadays nobody with a clue will look into them for insight because that can lead to wilfulness in infringement (i.e. higher damages). Some patent professionals at very large companies have said so explicitly and publicly.



Last year and earlier this year, the appeals board at the US (PTAB) eliminated a very large number patents. This has had a profound effect not only on the patents directly affected; companies and patent trolls found out that even if they don't sue with a patent but merely strut around and pursue 'protection money' they can have their patents spontaneously eliminated (shortly after petition/s for review). Suffice to say, patent maximalists and apologists of patent trolls were upset about it; in some cases CAFC was chased to rescue them from the justice of the board, after they had claimed injustice. This merely wasted CAFC's time (and limited resources) as CAFC usually did nothing to oppose the boards' decisions; it barely even bothered looking into it.

Another CAFC case regarding patents reviewed by PTAB made some headlines last week. As Patently-O put it:

In an important obviousness decision, the Federal Circuit has reversed the PTAB IPR decision – holding that the PTAB failed to sufficiently explain its ruling that a person having ordinary skill in the art (PHOSITA) would have been motivated to combine the prior art teachings to create the patented invention. Although expressing its intent to follow KSR, the court here comes closer to trodding upon that (oft maligned) precedent.

The case involves an Inter Partes Review (IPR) challenge of NuVasive’s spinal fusion implant patent (U.S. Patent No. 8,361,156). The claims require that the implants include, inter alia, radiopaque markers on the medial plane. The PTAB found the claims invalid as obvious based upon a collection of prior art references related to spinal fusion.


"Federal Circuit vacates PTAB decision on NuVasive patent" was the headline of another article about this case. To quote:

The US Court of Appeals for the Federal Circuit has vacated and remanded a patent suit which NuVasive had appealed against after having patent claims invalidated.

The decision from yesterday, December 7, followed an appeal from the US Patent and Trademark Office’s (USPTO) Patent Trial and Appeal Board (PTAB), which held that certain claims of US patent number 8,361,156 are invalid as obvious.

NuVasive is the owner of the ‘156 patent, which relates to a “System and method for spinal fusion comprising a spinal fusion implant of non-bone construction releasably coupled to an insertion instrument dimensioned to introduce the spinal fusion implant into any of a variety of spinal target sites”.


This patent does not involve software, but it has an impact on various future PTAB cases, many of which do involve software. Any Inter Partes Review (IPR) can end up in the CAFC's queue/desk, so this has broader ramifications, hence the media coverage. Patently-O's Dennis Crouch has meanwhile been asking about Ex Parte, not IPR: "Have you read any great writing on the difference between the process of judging a contested case vs an uncontested (or ex parte) case?"

These things are worth keeping track of as they generally define the level of certainty associated with patent lawsuits (or other forms of patent assertion). Michael Loney, writing for MIP from New York, shows that the number of PTAB filings is roughly steady compared to last year, in terms of petitions files. "This year is still below the record highs of 2015," he notes (by a small margin), "but it has got closer as the year has progressed. The monthly average for the whole of 2015 was 149.8 petitions filed. So far this year the monthly average is 145.6."

That's just an average difference of 4 petitions per month. In other words, PTAB isn't going away. Compare that to the massive year-to-year difference when it comes to patent litigation in the US -- a subject covered here on numerous occasions before. It sure sounds promising and we certainly hope that patent disputes will, over time, be brought before PTAB (cheaper to both parties) rather than courts. It's certainly not good for patent lawyers, but then again, what were they ever good for if not just themselves?

Recent Techrights' Posts

Michael “Monty” Widenius: It Started in 1983 With Richard Stallman (RMS)
The other co-founder of MySQL is a bit notorious for confronting RMS rather viciously
For the Second Time in a Few Weeks Microsoft Lunduke Makes False Accusations Against Senior Red Hat Staff to Incite a Despicable 'Troll Army'
Nothing that Microsoft Lunduke claims of says can be trusted
su lisa && rm -rf /home/ibm/power
Novell was ruined by another person from IBM, Ronald Hovsepian
A Record Demand at Microsoft: Demand to Cancel
What we're witnessing is a very ungraceful destruction of XBox
Richard Stallman is Going to Finland to Give a Talk Next Thursday
A day later he speaks in Sweden
 
Links 02/10/2025: 'Open' 'AI' Resorting to Gimmicks and Fake Funding, Europe’s ‘Drone Wall’ Discussed
Links for the day
Links 02/10/2025: Brave Passes 100M Users Milestone, Kodak Selling Its Own Film Again
Links for the day
Microsoft is Losing Europe
Hence all the "support" and "discount" offers that are limited to Europe
The Free Software Foundation Starts Fund-raising for 40th Anniversary
New pop-up 2-3 days ahead of the 40th anniversary event
Systemd Breaks Networking in Debian and Microsoft Staff Rushes to Make Face-Saving Excuses in LWN
Microsoft's bluca is already there in the comments, his Microsoft money pays for LWN to let him leave comments early
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 01, 2025
IRC logs for Wednesday, October 01, 2025
What the End of XBox Will Look Like: a Fiery Crash
XBox is the next Skype. It won't last much longer. Expect many more layoffs.
Gemini Links 02/10/2025: SMTP Pipelining and End of ROOPHLOCH 2025
Links for the day
Slopwatch: Plagiarism, Fake Articles, and FUD About Linux
not a day goes by without Google News feeding FUD from slopfarms
Gemini Links 01/10/2025: Chat Control and End of Life
Links for the day
Links 01/10/2025: Long Covid Risk Reiterated, "Bitcoin Queen" Caught
Links for the day
Links 01/10/2025: EA $55 Billion Deal is Debt and Slop "Raises Vishing Risks"
Links for the day
Bluewashing at Red Hat Means Redundancies
The man who sold Red Hat to IBM meanwhile became a Microsoft Mono booster
After Killing OpenSource.com, IBM ('Red Hat') and OSI Told Us OpenSource.net Would Replace It (But That Didn't Happen)
Now it's time to move on, perhaps tarnishing the "Open Source" label some more (for whatever sponsor wants this)
Linux is Not a Community Project, It's a Wall Street Product
The core goal should be freedom
Bad Actors Abusing the Free Software Community, Vandalising It Using Rogue Politics and Old Tactics
Oil giants have long attempted to do this; now, the digital equivalent of Big Oil does this in technology
Social Control Media Isn't the Future, The Federation or Fediverse Isn't Growing, People's Accounts Vanish for Good
users' accounts will get deleted, not just become inactive
IBM is Failing, This Helps Show Wall Street is Entirely Detached From Actual Commercial Performance
IBM is unable to grow, it's just constantly shrinking
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 30, 2025
IRC logs for Tuesday, September 30, 2025
Clerical Aspects of Publishing and Development
In Free software, the management aspects are considerably reduced
Slopwatch: Fake Articles and Google News Promoting "Linux" Spam or Bot-Generated Fear, Uncertainty, Doubt (FUD)
These slopfarms help misplace blame
Third Wave of Microsoft Layoffs in September, This Time Many in Liverpool Affected
Be ready for more waves of layoffs ahead of the so-called "results" in late October
Gemini Links 30/09/2025: Motorcycling in Central Oregon, Protocol Styles and the Flag of Sark
Links for the day
Links 30/09/2025: Death Sentences, Internet Censorship, and Internet Shutdowns
Links for the day
Gemini Links 30/09/2025: Social Control Media and ROOPHLOCH
Links for the day
Richard Stallman About to Give More Talks in Europe, Some Confirmed Already
In Göteborg
Links 30/09/2025: CERN in "Have I Been Pwned" and More Windows TCO Blunders
Links for the day
Microsoft Canonical is Selling Mass Surveillance and Back Doors as "Security for Ubuntu"
If you are looking for a GNU/Linux distro to use, just remember that Microsoft has Ubuntu in the bag
Justice for Wildlife
animals cannot speak to humans who hate animals
Cowboys Gonna Be Cowboys (on the Internet, They're Not a New Problem)
Boys will be boys
Cowboys of the "Left" and Cowboys of the "Right"
Don't believe the lie that this is some "leftist" thing
When Codes of Conduct Serve to Protect Criminals From Much-Deserved Scrutiny
CoCs are typically unfit for purpose because enforcement lacks context and suitable understanding of the full background (the "full story")
It Took the Open Source Initiative (OSI) 4+ Years to Address the 'Data Breach' or Data Protection Violation Reported to the California Privacy Protection Agency (CPPA) in March 2025
We may never know the dialogue or its nature
Even Microsoft's Biggest Boosters (and Media Operatives) Are Turning Against Microsoft
Expect many more layoffs before the fake "results" next month
GNU Was Right 42+ Years Ago
Since then the abusive, user-hostile technology has spread like mushrooms
Old Isn't Always Inadequate
How many gadgets manufactured today (in 2025) will still work in 2075?
The Monkey Business of Rust People
Compatibility won't matter
Almost Half of the FSFE's Money (the Fake 'FSF', Misusing the Brand) Comes From Vodafone
That money always comes with strings, even if they're invisible to most of us
Microsoft Lunduke Spreads Deliberate Lies to Incite Online Mobs
Has he lost his reading comprehension skills?
Our 19th Birthday (in Just Over 5 Weeks From Now)
We meanwhile have ongoing, solid plans to cover patent-related issues when the FSF turns 40
British GNU/Linux Distro FydeOS Tops DistroWatch
That seems like a decent site and decent effort to keep an eye on
We'll Soon Have 75,000 GemText Pages
avoid many perils of today's Web
Google Used Free Software to Build a Monopoly. Now Google Kicks Free Software to the Curb
The "G" in "Google" does not stand for GNU. It never did. It's just another greedy company.
Gemini Links 30/09/2025: Retro Hardware, Federated Fragmentation, and Nex Server Written in C
Links for the day
4 More Days Till "4 decades, 4 freedoms, 4 all users"
We are now just 4 days away from the rare anniversary
Two Months After Merging to Hide GitHub Losses Microsoft is Doing It Again (This Time Windows)
Merging those two together is not a sign of strength but a tightening of budget
Speculations About the Next Large Wave of IBM/Red Hat Layoffs
the mass layoffs are likely to happen on week 3 or 4 in October
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 29, 2025
IRC logs for Monday, September 29, 2025