Bonum Certa Men Certa

Distortion of the Patent System Masked Behind Acronyms Like CAFC/PTAB and Foreign-Sounding Jargon Like Estoppel or Inter Partes Review (IPR)

It's no secret, some argue, that lawyers make it difficult to understand the law so that you'll always need them to 'help'

Estoppel
Reference: Estoppel at Wikipedia



Summary: A quick look at some recent decisions/developments from the higher/highest patent courts in the US and PTAB's judgments that help improve patent quality (and are therefore hated by the patent 'industry')

CAN one patent a GUI at the USPTO? The Court of Appeals for the Federal Circuit (CAFC) does not understand GUIs/software development [1, 2], so it recently defended a patent on a GUI, contrary to common sense. As somebody from Texas put it (Jonathan Szarzynski): "Nice Precedential win for Core Wireless at the CAFC. A precedential opinion that discusses 101 and eligibility, and finds that a user interface that speeds a user's navigation through various views and windows is patentable subject matter."

"The case involves Synopsys, which now owns the nefarious, Microsoft-connected Black Duck."This is a potentially dangerous decision. Cascading menus are nothing new and to uphold a patent on those would open the floodgates to all sorts of trivial lawsuits (like Apple's "slide to unlock").

Recently, CAFC also looked at the case of patent assignor Hsiun (mentioned here before). The case involves Synopsys, which now owns the nefarious, Microsoft-connected Black Duck. The case is about assignor estoppel and it was mentioned by Patently-O a few days ago. As a bit of background:

EVE-USA was founded by former employees of Mentor — the named inventors on Mentor’s emulation software patents. Initially Mentor licensed the patents to EVE for its use, but that license was terminated when Synopsys later acquired EVE. Mentor then sued Synopsys and won a $36 million jury verdict for infringement of its U.S. Patent No. 6,240,376. Following the Federal Circuit’s decision largely supporting the verdict, EVE/Synopsis have petitioned the Supreme Court for writ of certiorari asking two questions relating respectively to Assignor Estoppel and Apportionment of Damages.


The US Supreme Court (SCOTUS) will look into it. This means that briefs will likely be submitted by the patent microcosm and we know in whose favour. The patent microcosm generally wants patents to get more 'teeth' at SCOTUS. The other day it wrote about the WesternGeco case, arguing that "SCOTUS could make patents more valuable in WesternGeco case" (not about patent scope).

"The patent microcosm generally wants patents to get more 'teeth' at SCOTUS.""Can a patent holder collect lost-profit damages if infringement of a US patent occurs abroad? The US Supreme Court will decide in WesternGeco v Ion Geophysical," Managing IP wrote. This may have an impact on trade, e.g. with China.

Going back to CAFC, there's the Arthrex patent (8,821,541) which CAFC recently decided on. PTAB was supported by CAFC (as usual) and Dennis Crouch wrote about the estoppel (it's an edge case at CAFC). To quote:

The dispute in this case is about what should happen when a patentee disclaims its patent claims prior to an inter partes review institution decision. The Arthrex patent at issue is U.S. Patent No. 8,821,541 which covers a suture anchor — similar to a dry-wall anchor, but sticks into flesh.

After Smith & Nephew filed its IPR petition Arthrex disclaimed the challenged claims. PTO rules state that “No inter partes review will be instituted based on disclaimed claims.” 37 C.F.R. €§ 42.107(e). And, following the rule, the PTAB (acting pre-institution on in the shoes of the PTO director) terminated the petition without instituting the IPR.


Estoppel is becoming more of a 'thing' in relation to PTAB nowadays. Consider this post titled "The PTAB Estoppel Keeping Patent Prosecutors Awake at Night". Does the author, Scott McKeown, think that people who are bullied using patents don't lose sleep or stay awake at night? Anyway, here is what he said: "Patent prosecutors might consider PTAB estoppel a pure post-grant concern. That is, a litigation issue restricted to district courts after a failed PTAB challenge, or an issue raised in the context of a second-bite at the PTAB apple. But, PTAB estoppel can effect both failed petitioners and unsuccessful patent owners. Patent owner estoppel, often overlooked, is only now beginning to impact patent prosecution."

It's a fairly new thing in this context. Expect this to be increasingly used to defang PTAB petitions.

Dennis Crouch has just mentioned bizarre if not laughable patents that PTAB belatedly tossed out:

Ex Parte Barrego, APPEAL 2016-006527 (PTAB January 2018). Barrego’s claim is directed to a roofing underlay with a number of features including “a pattern having the appearance of a shingled roof printed on at least one surface of the underlayment.” Here, the PTAB affirmed the indefiniteness rejection — finding that “one of ordinary skill would [not] be able to determine definitely whether many particular underlayment patterns do or do not have the appearance of a shingled roof.”


"Unfortunately, the patent microcosm relies on legalese to keep technical people out of the discussion, thus uninvolved or apathetic."This is actually a good thing, but not for the patent microcosm. Watchtroll just continues its ritualistic attacks on the integrity of PTAB (in order to help patent trolls) and although it habitually publishes something worth reading (e.g. [1, 2]) the site is polluted with ads, press releases and even pure puff pieces (like this borderline marketing from Dan Ovanezian and Scott Breining); no depth, classic fluff. We have chosen to keep an eye on Watchtroll (especially because of its attacks on PTAB and CAFC judges), but we prefer not to entertain it too much.

Unfortunately, the patent microcosm relies on legalese to keep technical people out of the discussion, thus uninvolved or apathetic. This is a problem we have been mentioning for years. Sadly, we need to adopt some of their own (often misleading) terms. It has become essential for communication.

Recent Techrights' Posts

[Video] Leaving Microsoft Behind for the Sake of National Security
Threats to "National Security" aren't some users with an Android phone but Microsoft at the root of things
World Press Freedom Day: WIPO censors Debian suicide cluster
Reprinted with permission from Daniel Pocock
Links 07/05/2024: Pulitzer for Supreme Court Expose, New Threats to Media Reported
Links for the day
 
Microsoft Layoffs and Closures Now Reported in Africa
Microsoft Uninstalls Nigeria as it closes African Development Centre (ADC) in Lagos
Links 08/05/2024: Android Malware and "AI" Hype
Links for the day
[Meme] Technical Committee With People Who Are Not Technical
the computing/computer industry being occupied by people who lack suitable background
The Demise of Computer Science Education
Education is essential for the future; without it, whole nations will perish
[Video] Prisons for the Minds and for Tech Workers
Today's video talks about what happens to workforces (across disciplines) in recent years
[Meme] Struggling to Leave Its Nazi Past Behind
digital arson
Microsoft Declines to Talk About How Many People It Has Just Laid Off
Hours ago in IGN: "Microsoft did not say how many staff will lose their jobs, but significant layoffs are inevitable. IGN has asked Bethesda for comment. Microsoft declined to expand further when contacted by IGN."
Microsoft Windows in South America: From 99% to 87%
the latest from statCounter
It's Rather Obvious Why They Try to Silence Richard Stallman, Eben Moglen, and Daniel Pocock
Some of them already sent physically menacing messages to Daniel Pocock
IRC Network of Techrights Turns 3 (or 16 if We Count the Freenode Days)
In a few months IRC turns 36
Sedating Oneself (and Shareholders) With Fuzzy Buzzwords and Pointless Acquisitions
IBM trying to buy time
Clickfraud Spamnil Ran Out of Clickfraud Budget, Apparently
sooner or later charlatans and frauds run out of steam
Techrights Gets Under the Skin of Bad, Corrupt, Immoral People (That's a Good Thing)
Journalism is the lifeblood of democracy and free societies
Companies Do Not Shut Down Offices and Lay Off Staff en Masse (Morale and Reputation Issue) Unless They're in Deep Financial Trouble
Microsoft has been faking its financial performance for years
IRC Proceedings: Tuesday, May 07, 2024
IRC logs for Tuesday, May 07, 2024
Over at Tux Machines...
GNU/Linux news for the past day
GNU/Linux and ChromeOS Now at 6% in France, According to statCounter
numbers from statCounter
Gemini Links 07/05/2024: Music Spotlight and Network Knobs
Links for the day
Only Weeks After Microsoft Closed Offices and Studios It is Closing Several More (Many Layoffs, Still Deeply Debt-Saddled)
When the sad news writes itself
Bolivarian Republic Of Venezuela: GNU/Linux Reaches 9% (ChromeOS Included)
Venezuela must have lost interest in some American proprietary software when users were locked out of their own data (Adobe) and the costs could no longer be justified
[Video] Microsoft is Like Big Oil, Big Tobacco, and Other Perpetrators of Fear, Uncertainty, Doubt/Fear-mongering
openwashing, Microsoft lobbying, and Microsoft subsidies (e.g. bailouts in the form of 'defence' contracts)
Security & Debian: Urgent: New Feed URLs after another WIPO censorship
Reprinted with permission from Daniel Pocock
Gemini Links 07/05/2024: Smashing Windows (Moving to GNU/Linux) and Mastodon Time-wasting
Links for the day
Links 07/05/2024: Cheap EVs and Cloudflare Layoffs
Links for the day
Berlin police declined to investigate FSFE Nazi comparisons
Reprinted with permission from Daniel Pocock
[Meme] Communities Governed by Parasitic Elements and Girlfriends (Who Can't Understand Those Communities)
Karen Sandler and Molly de Blanc present at DebConf18
[Meme] You Can't Kill an Idea (or Facts)
Thankfully, in Western societies, there's still due process, rule of law etc. You don't just hire assassins or imprison critics
[Meme] Software in the Public Interest (SPI), Inc, Values Articles of Daniel Pocock at ~$5,000 Each (and Fails to Hide the Facts)
we are laughing, not grieving
IRC Proceedings: Monday, May 06, 2024
IRC logs for Monday, May 06, 2024
Over at Tux Machines...
GNU/Linux news for the past day
[Meme] About 2,564 Internet Sites Now at Risk of Hostile Takeover by Microsoft-Sponsored Software in the Public Interest (SPI)
WIPO censors Debian suicide cluster
Links 07/05/2024: Burning Plastic Waste, Facebook Censoring Politicians
Links for the day
Gemini Links 07/05/2024: Smashing Windows (Microsoft Losing Users to GNU/Linux), Sixty Years of BASIC
Links for the day
Southern Asia is All Android (Majority) Now
It's looking better (almost) every month
Windows Already Down to 1% "Market Share" in Some Countries
it is a dying breed
Tesla Has Become a Ponzi Scheme or a 'Meme Stock'
They tell us Tesla is "worth" almost twice as much as a company that sold about 30 times more cars
For People at Red Hat "Job is at Risk"
Red Hat is consulting some notorious firms to implement cuts
Linux.com Became Mostly Dead, de Facto Marketing Site of "Linux" Foundation Products (Unrelated to Linux)
what has happened to the authoritative domain Linux.com
Microsoft GitHub: A Hair Salon Where You Get Awards for Nothing (NFT Vanity)
People aren't defined by some private (proprietary) database and Microsoft does not universally "score" developers
In Europe, Android is Bigger Than Windows (Android Now Measured at 45.1% Worldwide)
Right now in statCounter...
Links 06/05/2024: Al Jazeera Raided, Wildfire Season Coming
Links for the day
On Character Assassination Tactics
The people who leverage these dirty politics typically champion projection tactics
Links 06/05/2024: Scams and Politics
Links for the day
Gemini Links 06/05/2024: Reading and Computers
Links for the day
United States Entering the $100 Trillion Debt Trap, We Compare GAFAM Debt
Google's debt is about 6 times less than Amazon's
GitLab's Losses Grew From $172,311,000 to $424,174,000 Per Annum
Letting this company have control over your (or your company's) development/code forge may cost you a lot in the future
statCounter's Latest: Android Bouncing to New All-Time Highs, Windows Down to Unprecedented Lows
Android rising
Can't Bear the Thought We're Happy and Productive
If someone is now harassing online friends, attacking the wife, attacking my family (not just attacking and defaming people I know online) there are legal ramifications
IRC Proceedings: Sunday, May 05, 2024
IRC logs for Sunday, May 05, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Erinn Clark & Debian: Justice or another Open Source vendetta?
Reprinted with permission from disguised.work