Bonum Certa Men Certa

PTAB and CAFC Crush Patents on Business Methods and Software, So Dennis Crouch Tries to Slow Them Down

Academic for patent maximalists, like those 'oil academics'?

Dennis D. Crouch



Summary: The Patent Trial and Appeal Board (PTAB) and Court of Appeals for the Federal Circuit (CAFC) have together eliminated perhaps several thousands of patents (even more by extension, by means of precedence), so the meta-industry associated with such patents strikes back, and occasionally this is painted as scholarly analysis albeit inherently biased

THE USPTO is full of rubbish patents (some of which infamously rubbish and the subject of public ridicule, e.g. this one), so there's somewhat of a backlog for PTAB to deal with, essentially 'undermining' -- or correctly invaliding -- patents that should never have been granted at all (with or without further amendments).



"Not only can PTAB deal with many patents at one time; it can also do that at an affordable rate (easy access to appeals process) and without the patent aggressor asserting anything in court."We recently came across this list of newly-issued patents and found among them a Dell patent on an antifeature, namely a "seamless method for booting from a degraded software raid volume on a UEFI system." (for those who don't know what UEFI is, see our Wiki). Recovery from error aside (in an already-expensive case of storage redundancy), why use UEFI in the first place?

The patent goes to Texas, where Dell originates from:

Dell Products, Round Rock, Texas, has been assigned a patent (9,569,297) developed by two co-inventors for “seamless method for booting from a degraded software raid volume on a UEFI system.” The co-inventors are Ahmad A.J. Ali of Austin, Texas, and Charles Rose of Nashua. The patent application was filed on July 16, 2014 (14/333,232).


This sounds like it involves hardware or a device (RAID), but plenty of RAIDs actually get implemented in software these days and UEFI itself is purely software, simply slapped on some chip. The above seems like a possible candidate for invalidation, e.g. by means of Alice, but putting all that aside, who would actually invalidate such a patent unless Dell chooses to take this to court (or threaten behind closed doors), in which case still there is no guarantee at all that a case would end without a settlement, i.e. without the patent facing any scrutiny. In most cases, companies such as Dell just threaten using a large bundle of patents (Microsoft is alleged to be using hundreds at a time) in order to overwhelm the target and overburden the defense, adding extraordinary volume to it, assuring it would be too expensive to pursue defense (settlement would be cheaper, even if at the cost of millions of dollars).

"We need more of PTAB. It needs to grow by orders of magnitude and clear the virtual 'backlog' which is rubbish patents waiting to be invalidated."Such is the injustice incurred by a lax and lazy patent office. All the excruciating costs are being passed outwards, i.e. to so-called 'externalities'. This is where PTAB comes handy. Not only can PTAB deal with many patents at one time; it can also do that at an affordable rate (easy access to appeals process) and without the patent aggressor asserting anything in court. We need more of PTAB. It needs to grow by orders of magnitude and clear the virtual 'backlog' which is rubbish patents waiting to be invalidated.

Patent maximalists obviously loathe PTAB. Some of them speak of it more politely than others. Watchtroll just insults judges, whereas Dennis Crouch -- being an academic -- must remain more subtle about it. It's being agreed, he recently asserted, that "an expert can make conclusions of obviousness/non-obviousness and that the PTO can rely upon those statements."

Here is the whole relevant part and how it relates to PTAB:

Expert Testimony on the Conclusion of Obviousness: In the inter partes reexamination case here, the issue arose with the patent challenger (Strava) used an expert witness to testify to the legal conclusion that the claims at issue were obvious. This is problematic because in ordinary circumstances it is improper for an expert witness to testify as to a question of law. Rather, the ordinary use of expert testimony is solely to “help the trier of fact to understand the evidence or to determine a fact in issue.” FRE 702. Of course, the Federal Rules of Evidence do not apply to the Patent Trial & Appeal Board proceedings or patent reexaminations.

On appeal here, the Federal Circuit appears to agree with the challenger – that an expert can make conclusions of obviousness/non-obviousness and that the PTO can rely upon those statements.


We had this subject covered in last week's article and more articles before that. It's a common theme of outcomes and this was heavily covered recently, in light of cases like Apple, Inc. v Ameranth, Inc. [1, 2] -- a case which has gone on since the end of last year [1, 2].

"Both PTAB and CAFC increasingly go after patents on business methods, not just software patents, which are inherently similar in many cases (as many business operations are done on computers through software)."The latest on Ameranth, courtesy of Foley & Lardner LLP (law firm), says that "Apple successfully invalidated three patents for failure to recite patent eligible subject matter. Apple, Inc. v. Ameranth, Inc., 2015-1792, 2015-1793 (Fed. Cir. 2016). The patents relate to synchronous communication systems for electronically generating and transmitting menu selections. While the covered technology is not directly related to personalized medicine, the Federal Circuit’s review of the patents’ specifications and the court’s claim constructions in the context of a 35 U.S.C. €§ 101 challenge is instructive to patent applicants seeking to patent methods that may be characterized as an abstract idea, such as methods linking treatment options or clinical trials to potential patients."

This CBM challenge, using ۤ 101, was successful also at the CAFC, as is usual. Both PTAB and CAFC increasingly go after patents on business methods, not just software patents, which are inherently similar in many cases (as many business operations are done on computers through software).

Professor Crouch is, in our humble assessment, just trying to slow down PTAB (or appeals of its determinations). PTAB, which actually did good work and improved the US patent system, is of no good for the likes of Crouch. They view it as a threat to their profession, as we noted here several years ago.

"We have already explained a sort of 'scatterback' effect at CAFC, wherein an avalanche of appeals lands on CAFC's lap."Michael Loney, writing from a litigation capital, says that "Law professor Dennis Crouch is calling for the Federal Circuit to not give Rule 36 affirmances in PTAB appeals, arguing it is required by statute to issue an opinion. The court has continued to issue them but has asked for briefing in two en banc rehearing requests of affirmances" (it has a lot to catch up with).

We have already explained a sort of 'scatterback' effect at CAFC, wherein an avalanche of appeals lands on CAFC's lap. They need to rush things up a bit, otherwise the whole system will get clogged up and the queue -- or 'backlog' so to speak -- will grow unbearably long.

"Maybe that will teach patent holders to stop wasting CAFC's time with these appeals, which are fruitless about 4 out of 5 times anyway (as the appeals are meritless)."Resistance from patent maximalists when it comes to PTAB -- which continues to enjoy CAFC's and the Supreme Court's support -- is understandable, but the patent maximalists are not the actual industry. They just try to justify their own needless and growingly-sordid existence, which gave rise to trolls and extortion rackets. Now that PTAB is axing lots of crappy patents we expect to see Crouch continuing to shower us with posts such as this, ranting about lack of opinion. "Another new petition for rehearing," he wrote the other say, "has been filed with the Federal Circuit asking the court to reconsider its Rule 36 Jurisprudence in light of the statutory requirements that the court issue an opinion in cases appealed from the Patent & Trademark Office."

He said that "[a]fter losing before the PTAB, the petitioner appealed and the Federal Circuit issued a R.36 “Affirmance without Opinion.”"

"Stop worrying so much about patent holders and stop comparing patents to property (patents are certainly not property)."Yes, well done. Do it even faster. Maybe that will teach patent holders to stop wasting CAFC's time with these appeals, which are fruitless about 4 out of 5 times anyway (as the appeals are meritless).

In another post from the same site it is being argued that "[t]he Supreme Court has asked for the USPTO’s input on whether it should hear the pending dispute Oil States Energy Services v. Greene’s Energy Group (Supreme Court 2017). The case again raises constitutional questions as to the power of an executive agency (the USPTO) to cancel issued patent rights."

Stop worrying so much about patent holders and stop comparing patents to property (patents are certainly not property). It's stuff like the above which led us to treating Crouch less as an academic and more as a front for patent maximalists. He demonstrates that not only Big Oil has an impact -- typically financial strings -- on academia.

Recent Techrights' Posts

Comparing U.E.F.I. to B.I.O.S. (Bloat and Insecurity to K.I.S.S.)
By Sami Tikkanen
New 'Slides' From Stallman Support (stallmansupport.org) Site
"In celebration of RMS's birthday, we've been playing a bit. We extracted some quotes from the various articles, comments, letters, writings, etc. and put them in the form of a slideshow in the home page."
Thailand: GNU/Linux Up to 6% of Desktops/Laptops, According to statCounter
Desktop Operating System Market Share Thailand
António Campinos is Still 'The Fucking President' (in His Own Words) After a Fake 'Election' in 2022 (He Bribed All the Voters to Keep His Seat)
António Campinos and the Administrative Council, whose delegates he clearly bribed with EPO budget in exchange for votes
Adrian von Bidder, homeworking & Debian unexplained deaths
Reprinted with permission from Daniel Pocock
Sainsbury’s Epic Downtime Seems to be Microsoft's Fault and Might Even Constitute a Data Breach (Legal Liability)
one of Britain's largest groceries (and beyond) chains
 
People Don't Just Kill Themselves (Same for Other Animals)
And recent reports about Boeing whistleblower John Barnett
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 18, 2024
IRC logs for Monday, March 18, 2024
Suicide Cluster Cover-up tactics & Debian exposed
Reprinted with permission from Daniel Pocock
Gemini Links 19/03/2024: A Society That Lost Focus and Abandoning Social Control Media
Links for the day
Matthias Kirschner, FSFE: Plagiarism & Child labour in YH4F
Reprinted with permission from Daniel Pocock
Linux Foundation Boasting About Being Connected to Bill Gates
Examples of boasting about the association
Alexandre Oliva's Article on Monstering Cults
"I'm told an earlier draft version of this post got published elsewhere. Please consider this IMHO improved version instead."
[Meme] 'Russian' Elections in Munich (Bavaria, Germany)
fake elections
Sainsbury's to Techrights: Yes, Our Web Site Broke Down, But We Cannot Say Which Part or Why
Windows TCO?
Plagiarism: Axel Beckert (ETH Zurich) & Debian Developer list hacking
Reprinted with permission from Daniel Pocock
Links 18/03/2024: Putin Cements Power
Links for the day
Flashback 2003: Debian has always had a toxic culture
Reprinted with permission from Daniel Pocock
[Meme] You Know You're Winning the Argument When...
EPO management starts cursing at everybody (which is what's happening)
Catspaw With Attitude
The posts "they" complain about merely point out the facts about this harassment and doxing
'Clown Computing' Businesses Are Waning and the Same Will Happen to 'G.A.I.' Businesses (the 'Hey Hi' Fame)
decrease in "HEY HI" (AI) hype
Free Software Needs Watchdogs, Too
Gentle lapdogs prevent self-regulation and transparency
Matthias Kirschner, FSFE analogous to identity fraud
Reprinted with permission from Daniel Pocock
Gemini Links 18/03/2024: LLM Inference and Can We Survive Technology?
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 17, 2024
IRC logs for Sunday, March 17, 2024
Links 17/03/2024: Microsoft Windows Shoves Ads Into Third-Party Software, More Countries Explore TikTok Ban
Links for the day
Molly Russell suicide & Debian Frans Pop, Lucy Wayland, social media deaths
Reprinted with permission from Daniel Pocock
Our Plans for Spring
Later this year we turn 18 and a few months from now our IRC community turns 16
Open Invention Network (OIN) Fails to Explain If Linux is Safe From Microsoft's Software Patent Royalties (Charges)
Keith Bergelt has not replied to queries on this very important matter
RedHat.com, Brought to You by Microsoft Staff
This is totally normal, right?
USPTO Corruption: People Who Don't Use Microsoft Will Be Penalised ~$400 for Each Patent Filing
Not joking!
The Hobbyists of Mozilla, Where the CEO is a Bigger Liability Than All Liabilities Combined
the hobbyist in chief earns much more than colleagues, to say the least; the number quadrupled in a matter of years
Jim Zemlin Says Linux Foundation Should Combat Fraud Together With the Gates Foundation. Maybe They Should Start With Jim's Wife.
There's a class action lawsuit for securities fraud
Not About Linux at All!
nobody bothers with the site anymore; it's marketing, and now even Linux
Links 17/03/2024: Abuses Against Human Rights, Tesla Settlement (and Crash)
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 16, 2024
IRC logs for Saturday, March 16, 2024
Under Taliban, GNU/Linux Share Nearly Doubled in Afghanistan, Windows Sank From About 90% to 68.5%
Suffice to say, we're not meaning to imply Taliban is "good"
Debian aggression: woman asked about her profession
Reprinted with permission from Daniel Pocock
Gemini Links 17/03/2024: Winter Can't Hurt Us Anymore and Playstation Plus
Links for the day