02.26.18

Gemini version available ♊︎

US Patent Courts Gravitate Towards Patent Justice Rather Than Patent Maximalism

Posted in America, Courtroom, Law, Patents at 4:32 am by Dr. Roy Schestowitz

Less focus on the flow of money (between lawyers) and more focus on science and technology

A gaol

Summary: The rational approach adopted by the US courts, all the way down from the Supreme Court to Sharon Prost of the Federal Circuit (CAFC), means that technology companies can finally focus on actual work and pay less to a bunch of lawyers

THE court system in the United States isn’t exactly renowned for justice (that’s a gaol at the top; the US has actual market “demand” for prisoners as jails are run like proper, for-profit businesses). The USPTO too has a certain “demand”, which explains why many low-quality patents have been issued. It’s difficult to say the same thing about patent courts however. They’re not so “demand”-driven and their success is measured by criteria like the number of times their decisions are overturned.

The Court of Appeals for the Federal Circuit (CAFC) saw many decisions it had made (under the disgraced chief judge Rader) being overturned by the Supreme Court. It appears to have decided to change that under Sharon Prost. CAFC is now a lot better. Just days ago it once again rebuked the disgraced judge Gilstrap.

Very good. Another case of Alice thwarting bad patents.

CAFC has come under attack from patent extremists, such as Watchtroll, who went as far as to call/ask judges to step down after they had ruled against software patents. This is ridiculous, but that’s how much respect those people have for judges. Watch what Dennis Crouch did some days ago.

Here we have a new article from the patent microcosm portraying CAFC as unreasonable just because it’s efficient. To quote:

The number of patent cases the Federal Circuit ruled on without writing an opinion is in decline for the first time in recent years, amid criticism over the court’s use of these “silent decisions” and a plateau in its patent workload.

Statistics compiled by Law360 show the court affirmed patent decisions from the Patent Trial and Appeal Board or district court without a written explanation 161 times in 2017, which accounted for 38 percent of its patent rulings.

PTAB deals with literally thousands of legitimate petitions, so it’s unreasonable for PTAB (and CAFC too) to always delve down to written determinations. Surely they understand that, no? Patently-O attempted to play this card about a year ago in order to slow down the courts.

Elsewhere in last week’s ‘news’ (more like shameless self-promotion by the patent microcosm) we saw Squire Patton Boggs’ Daniel Rabinowitz writing about software patents (in National Law Review with paid-for copies elsewhere). He said: “In Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012), and Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the Supreme Court of the United States established a two part test for determining patent subject…”

As usual, the patent microcosm (not just Rabinowitz) looks for ways to dodge the rules. This is their main expertise or service. The demise of software patents is not a “problem” but a blessing. It’s a belated act of justice from the Justices, but watch this new article by Benjamin Hattenbach and Rosalyn Kautz (“A Recurring Problem In Patentability Of Computer Software”). It’s a rant about the Federal Circuit:

Section 101 of the United States Patent Act protects “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”[1] Historically, this been interpreted to “include anything under the sun that is made by man.”[2]

From 2014 to 2017, however, the Federal Circuit has rejected an overwhelming majority of patents for computer-implemented inventions as ineligible for protection under Section 101.

That’s not a problem, it’s a desirable thing and the US Supreme Court (SCOTUS) should have made it so decades ago.

“Did the Supreme Court rely on extra-record evidence in its assertion of an abstract idea in Alice v. CLS?”

So asks another person from the patent microcosm. It’s quite revealing that SCOTUS decisions drive them nuts. Other courts too have become unsympathetic towards the patent microcosm. Software parents are dead ducks in the US; there’s no imminent turnaround because SCOTUS isn’t interested in revisiting the matter.

How about this new example where the court rejected a patent under § 101? Docket Navigator called it an “abstract idea.”

The court granted defendant’s motion for summary judgment because the asserted claims of plaintiffs’ audio/visual playback patent encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea.

“We’re seeing a lot more companies actively exploring what they can do with their unused IP,” IAM wrote the other day. Well, all those low-quality patents, as they eventually find out, are typically a waste of time and effort (for startups anyway). As it turns out, decisions on the matter are not being challenged as much anymore. Here are some new statistics: “From July 25, 2016 to February 22, 2018, Fish & Richardson had 143 appeals. Finnegan was second with 78 appeals. And Knobbe was third with 60 appeals. While Fish and Knobbe had roughly the same number of patent applications (60,916 and 58,170, respectively) across all customer numbers searched, Fish had more than double the appeals. Even Finnegan, which totaled a third fewer applications (41,194) than Knobbe, had more appeals than Knobbe.”

Watchtroll wrote about something related to this a couple of days ago. What we have here is Amanda G. Ciccatelli and Watchtroll speaking to a lawyer about his ‘agony’, alluding explicitly to the “intellectual property industry.”

“According to Storm,” Watchtroll said, “the decline in contingency representation over the last few years can be explained by weakened patents making success on the merits less likely. Even if the patent owner does prevail, what will the win? After a win at trial, the law of damages has made large damages less and likely to achieve in the first place, and keep even if awarded after trial.”

It’s just not worth the risk anymore. This is a real problem for the “intellectual property industry,” as the above dubs it (this ‘industry’ just a parasite looking to inflame more lawsuits and a legal mess; Like the arms industry which lobbies for tensions and wars).

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. IRC Proceedings: Sunday, October 17, 2021

    IRC logs for Sunday, October 17, 2021



  2. How (Simple Technical Steps) to Convince Yourself That DuckDuckGo is Just Spyware Connected to Microsoft, Falsely Advertised as 'Privacy'

    In recent days we published or republished some bits and pieces about what DuckDuckGo really is; the above reader dropped by to enlighten us and demonstrate just how easy it is to see what DuckDuckGo does even at the client side (with JavaScript); more people need to confront DuckDuckGo over this and warn colleagues/friends/family (there’s more here)



  3. Austria's Right-Wing Politicians Displaying Their Arrogance to EPO Examiners

    The EPO‘s current regime seems to be serving a money-hungry lobby of corrupt officials and pathological liars; tonight we focus on Austria



  4. [Meme] Friedrich Rödler's Increasingly Incomprehensible Debt Quagmire, Years Before EPO Money Was Trafficked Into the Stock Market

    As it turns out, numerous members of the Administrative Council of the EPO are abundantly corrupt and greedy; They falsely claim or selfishly pretend there’s a financial crisis and then moan about a "gap" that does not exist (unless one counts the illegal gambling, notably EPOTIF, which they approved), in turn recruiting or resorting to scabs that help improve ‘profit margins’



  5. The EPO’s Overseer/Overseen Collusion — Part XV: Et Tu Felix Austria…

    Prior to the Benoît Battistelli and António Campinos regime the EPO‘s hard-working staff was slandered by a corrupt Austrian official, Mr. Rödler



  6. Links 17/10/2021: Blender 2.93.5, Microsoft Bailouts

    Links for the day



  7. Links 17/10/2021: GhostBSD 21.10.16 and Mattermost 6.0

    Links for the day



  8. IRC Proceedings: Saturday, October 16, 2021

    IRC logs for Saturday, October 16, 2021



  9. [Meme] First Illegally Banning Strikes, Then Illegally Taking Over Courts

    The vision of Team Battistelli/Campinos is a hostile takeover of the entire patent system, not just patent offices like the EPO; they’d stop at nothing to get there



  10. Portuguese Network of Enablers

    Instead of serving Portuguese people or serving thousands of EPO workers (including many who are Portuguese) the delegation from Portugal served the network of Campinos



  11. In Picture: After Billions Spent on Marketing, With Vista 11 Hype and Vapourware, No Real Gains for Windows

    The very latest figures from Web usage show that it’s hardly even a blip on the radar; Windows continues bleeding to death, not only in servers



  12. [Meme] [Teaser] Double-Dipping Friedrich Rödler

    As we shall see tomorrow night, the EPO regime was supported by a fair share of corrupt officials inside the Administrative Council



  13. The EPO’s Overseer/Overseen Collusion — Part XIV: Battistelli's Iberian Facilitators - Portugal

    How illegal “Strike Regulations” and regressive ‘reforms’ at the EPO, empowering Benoît Battistelli to the detriment of the Rule of Law, were ushered in by António Campinos and by Portugal 5 years before Campinos took Battistelli’s seat (and power he had given himself)



  14. Links 16/10/2021: SparkyLinux Turns 10 and Sculpt OS 21.10

    Links for the day



  15. “Facebook Whistleblowers” Aside, It Has Been a Dying Platform for Years, and It's Mentally Perverting the Older Generation

    Guest post by Ryan, reprinted with permission



  16. [Meme] Microsoft Has Always Been About Control Over Others

    Hosting by Microsoft means subjugation or a slavery-like relationship; contrary to the current media narrative, Microsoft has long been censoring LinkedIn for China’s autocratic regime; and over at GitHub, as we shall show for months to come, there’s a war on information, a war on women, and gross violations of the law



  17. EFF Pushes for Users to Install DuckDuckGo Software After Being Paid to Kill HTTPS Everywhere

    Guest post by Ryan, reprinted with permission



  18. The Reign in Spain

    Discussion about the role of Spain in the EPO‘s autocratic regime which violates the rights of EPO staff, including Spanish workers



  19. [Meme] Spanish Inquisition

    Let it be widely known that Spain played a role in crushing the basic rights of all EPO workers, including hundreds of Spaniards



  20. Why You Shouldn’t Use SteamOS, a Really Incompetent GNU/Linux Distribution With Security Pitfalls (Lutris is a Great Alternative)

    Guest post by Ryan, reprinted with permission



  21. IRC Proceedings: Friday, October 15, 2021

    IRC logs for Friday, October 15, 2021



  22. Links 16/10/2021: Xubuntu 21.10 and DearPyGui 1.0.0

    Links for the day



  23. DuckDuckGo’s HQ is Smaller Than My Apartment

    Guest post by Ryan, reprinted with permission



  24. Post About Whether Vivaldi is a GPL violation Was Quietly Knifed by the Mods of /r/uBlockOrigin in Reddit

    Guest post by Ryan, reprinted with permission



  25. The EPO’s Overseer/Overseen Collusion — Part XIII: Battistelli's Iberian Facilitators - Spain

    The EPO‘s António Campinos is an ‘Academy’ of overt nepotism; what Benoît Battistelli did mostly in France Campinos does in Spain and Portugal, severely harming the international image of these countries



  26. From Competitive (Top-Level, High-Calibre, Well-Paid) Jobs to 2,000 Euros a Month -- How the EPO is Becoming a Sweatshop by Patent Examiners' Standards

    A longish video about the dreadful situation at the EPO, where staff is being ‘robbed’ and EPO funds get funnelled into some dodgy stock market investments (a clear violation of the institution’s charter)



  27. [Meme] Protecting European Patent Courts From EPO 'Mafia'

    With flagrant disregard for court rulings (or workarounds to dodge actual compliance) it seems clear that today's EPO management is allergic to justice and to judges; European Patents perish at unprecedented levels in national European courts and it should be kept that way



  28. Links 15/10/2021: Pine64's New PinePhone Pro and Ubuntu 22.04 LTS Codename

    Links for the day



  29. [Meme] GitHub Isn't Free Hosting, It's All About Control by Microsoft

    Deleting GitHub isn’t a political statement but a pragmatic decision, seeing how Microsoft routinely misuses its control over GitHub to manipulate the market



  30. With EPO 'Strike Regulations' Belatedly Ruled Unlawful, EPO Management May be Lowering the Salary Even Further by Introducing Outside 'Temps' or Casual Workers

    Institutional capture by an 'IP' (litigation) Mafia is nearly complete; with illegal so-called (anti) 'Strike Regulations' out the door, they're quickly moving on to another plan, or so it seems on the surface


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts