05.13.18

Gemini version available ♊︎

Three Weeks After Oil States the Patent Microcosm Has Already ‘Buried’ the Subject and 35 U.S.C. § 101 is Under Threat

Posted in America, Deception, Patents at 11:01 pm by Dr. Roy Schestowitz

Drinking their sorrows away

Patent Lawyers' Tears

Summary: The agenda of patent trolls, who are hoping to make Oil States go away, is well served by patent lawyers, who keep bringing up far less important (and far older) cases whose outcome better suited their financial interests

WILL THE USPTO take Oil States seriously? We asked this question ‘aloud’ in our last post. It’s the sort of thing that patent extremists hope the Office will just forget already. We took note of it in previous coverage about the Oil States decision, e.g. in:

Our prediction that patent maximalists would try to bury Oil States was largely correct. It’s barely even mentioned anymore (in sites dominated by law firms, except perhaps in new IAM ‘ads’, i.e. self-promotional pieces).

“Funny timing to bring up Alice all of a sudden (4 years after the decision and just days apart from Oil States).”To put it a little more bluntly, patent maximalists are still licking their wounds over Oil States — a decision that makes PTAB stronger and patents more limited in scope/magnitude. The patent microcosm generally promotes the next PTAB threats, namely cases like Droplets v Iancu or some class action ‘stunt’. They also push the SAS case, we noted about 24 hours ago in this advertisement for a ‘stacked panel’ event. “The panel will provide an analysis of the Court’s Oil States and SAS decisions and discuss the impact of these decisions on daily patent practice,” it says. Guess who’s on this panel…

“Watchtroll went back to writing about WesternGeco yesterday. It’s old.”Going back to April 24th (around the same time as the Oil States decision), mind what Workman Nydegger’s Brad Barger wrote: “Is Alice Coming Home From Wonderland? Finally Finding Direction in the Fairy Tale of 101 Jurisprudence”

Funny timing to bring up Alice all of a sudden (4 years after the decision and just days apart from Oil States). To quote:

In its 2014 decision, Alice v. CLS Bank, the Supreme Court dramatically reshaped the application of 35 U.S.C. § 101, which defines patent eligible subject matter. Much to the chagrin of inventors and patent practitioners around the world, the Supreme Court established a poorly defined test that the courts have struggled to apply in ways that result in consistent and predictable outcomes. The muddled rules and guidance provided by the courts have resulted in similarly inconsistent and unpredictable application of the law at the United States Patent and Trademark Office (USPTO). Strong anecdotal and statistical differences in the application of Alice could be seen across different art units, between different examiners within the same art units, and even between different panels of the Federal Circuit.

Fortunately, it appears that the USPTO is now taking concrete steps to stabilize the application of the Alice by examiners within the USPTO. Much of this change at the USPTO appears to be driven by the appointment of Director Iancu. In a recent appearance before the Senate Judiciary Committee, Director Iancu testified that the USPTO was addressing the confusion related to Alice by “work[ing] to provide more concrete tests – to the extent possible given Supreme Court precedent – that guide examiners and the public toward finding the appropriate lines to draw with respect to eligible subject matter.”

Watchtroll went back to writing about WesternGeco yesterday. It’s old. Oil States not interesting anymore?

Oil States not interesting anymore?”Around the same time the patent microcosm (people who profit from lawsuits) also brought up the Kamstrup A/S case — one that we mentioned earlier this month. To quote:

In Apator Miitors ApS v. Kamstrup A/S, No. 2017-1681 (Fed. Cir. Apr. 17, 2018), the Federal Circuit affirmed the PTAB’s conclusion that Apator failed to swear behind a prior art reference, because Apator did not sufficiently corroborate the inventor’s testimony of conception prior to the reference’s filing date.

This was an important decision that serves to reaffirm PTAB’s authority, but it barely received any coverage.

Other sites of the patent microcosm wrote about a petition/case “seeking to invalidate [...] patent in a cannabis IPR currently pending before the PTAB.” To quote:

On this point, the PTAB recently conducted a trial and heard oral arguments from a canna-patent owner and a party seeking to invalidate that patent in a cannabis IPR currently pending before the PTAB. Specifically, IPR2017-00503 (previously flagged here) involves one of GW Pharma’s patents related to treating seizures with cannabidiol (CBD), the non-psychoactive cannabinoid found in the cannabis plant. GW Pharma is a British biopharmaceutical company known for its cannabis-based products, which it protects, in part, with its large cannabis-related patent portfolio (comprising around 100 patents and published applications in the U.S. alone), many of which are directed to treating diseases with cannabis-based compounds. GW Pharma is also currently pursuing FDA approval for its cannabinol drug for treatment of seizures and is well on its way to having the first drug derived from the cannabis plant approved in the U.S.

This is one of those cases where PTAB gets involved in disputes over patents on drugs, not software. We tend to focus on PTAB cases which involve Alice/§ 101.

“We tend to focus on PTAB cases which involve Alice/§ 101.”Speaking of § 101, on May 8th an interesting docket report came out from XpertUniverse, Inc. v Cisco Systems, Inc.

This is extraordinary especially because the Supreme Court (in Alice) changed patenting criteria in the US — serving to annul pretty much all software patents — but a jury relied on a very old ruling to deny justice:

The court granted plaintiff’s motion for summary judgment that defendant’s challenge under 35 U.S.C. § 101 was barred by collateral estoppel because a jury found the patent-in-suit valid in the parties’ prior action.

They’re alluding to 2012: “There is no evidence that a Section 101 defense was completely unavailable to [defendant] under the framework set out in [Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1282 (2012)], or that such a challenge would have been futile prior to Alice.”

“Speaking to people in the jury in technical terms won’t help; it often just confuses them and it makes it easier for lawyers to manipulate them.”This is why we oppose patent trials by juries, who are typically nontechnical and incapable of grasping the underlying claims in patents. Jury trials are OK for particular things that everyday newspapers cover (e.g. petty crime), but patents? Speaking to people in the jury in technical terms won’t help; it often just confuses them and it makes it easier for lawyers to manipulate them.

To say more on § 101, Gary Cohen, Mark Nowotarski and Trent Ostler did some propaganda on it half a week ago. We don’t want to delve into every single sentence and paragraph (in effect amplifying them), so we’ll just say that when Watchtroll uses terms like “Surviving Alice” it is basically perpetuating the bogus narrative that people with bogus patents that they often use to scam people into paying ‘protection’ money are actually the victims, trying to merely “survive” in court. It’s them who file the lawsuits!

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. Links 4/12/2021: Gedit Plans and More

    Links for the day



  2. Links 4/12/2021: Turnip Becomes Vulkan 1.1 Conformant

    Links for the day



  3. IRC Proceedings: Friday, December 03, 2021

    IRC logs for Friday, December 03, 2021



  4. Links 4/12/2021: EndeavourOS Atlantis, Krita 5.0.0 Beta 5, Istio 1.11.5, and Wine 6.23; International Day Against DRM (IDAD) on December 10th

    Links for the day



  5. Another Gemini Milestone: 1,500 Active Capsules

    This page from Balázs Botond plots a graph, based on these statistics that now (as of minutes ago) say: “We successfully connected recently to 1500 of them.” Less than a fortnight ago more than 1,800 capsules overall were registered by Lupa, almost quadrupling in a single year



  6. [Meme] António Campinos and Socialist Posturing

    Staff of the EPO isn’t as gullible as António Campinos needs it to be



  7. António Campinos as EPO President is Considered Worse Than Benoît Battistelli (in Some Regards) After 3.5 Years in Europe's Second-Largest Institution

    The EPO's demise at the hands of people who don't understand patents and don't care what the EPO exists for is a real crisis which European media is unwilling to even speak about; today we share some internal publications and comment on them



  8. Media Coverage for Sale

    Today we're highlighting a couple of new examples (there are many other examples which can be found any day of the year) demonstrating that the World Wide Web is like a corporate spamfarm in "news" clothing



  9. Links 3/12/2021: GNU Poke 1.4 and KDDockWidgets 1.5.0

    Links for the day



  10. IRC Proceedings: Thursday, December 02, 2021

    IRC logs for Thursday, December 02, 2021



  11. Links 3/12/2021: Nitrux 1.7.1 and Xen 4.16 Released

    Links for the day



  12. Links 2/12/2021: OpenSUSE Leap 15.4 Alpha, Qt Creator 6

    Links for the day



  13. The EPO's “Gender Awareness Report”

    There’s a new document with remarks by the EPO’s staff representatives and it concerns opportunities for women at the EPO — a longstanding issue



  14. IRC Proceedings: Wednesday, December 01, 2021

    IRC logs for Wednesday, December 01, 2021



  15. EPO Staff Committee Compares the Tactics of António Campinos to Benoît Battistelli's

    The Central Staff Committee (CSC) of the EPO talks about EPO President António Campinos, arguing that “he seems to subscribe to the Manichean view, introduced by Mr Battistelli…”



  16. Prof. Thomas Jaeger in GRUR: Unified Patent Court (UPC) “Incompatible With EU Law“

    The truth remains unquestionable and the law remains unchanged; Team UPC is living in another universe, unable to accept that what it is scheming will inevitably face high-level legal challenges (shall that become necessary) and it will lose because the facts are all still the same



  17. Links 1/12/2021: LibrePlanet CFS Extended to December 15th and DB Comparer for PostgreSQL Reaches 5.0

    Links for the day



  18. EPO Cannot and Will Not Self-Regulate

    The term financialisation helps describe some of the activities of the EPO in recent years; see Wikipedia on financialisation below



  19. [Meme] Germany's Licence to Break the Law

    Remember that the young Campinos asked dad for his immunity after he had gotten drunk and crashed the car; maybe the EPO should stop giving diplomatic immunity to people, seeing what criminals (e.g. Benoît Battistelli) this attracts; the German government is destroying its image (and the EU’s) by fostering such corruption, wrongly believing that it’s worth it because of Eurozone domination for patents/litigation



  20. EPO Dislikes Science and Scientists

    The EPO's management has become like a corrupt political party with blind faith in money and monopolies (or monopoly money); it has lost sight of its original goals and at this moment it serves to exacerbate an awful pandemic, as the video above explains



  21. Links 1/12/2021: LibreOffice 7.3 Beta, Krita 5.0, Julia 1.7

    Links for the day



  22. Links 1/12/2021: NixOS 21.11 Released

    Links for the day



  23. IRC Proceedings: Tuesday, November 30, 2021

    IRC logs for Tuesday, November 30, 2021



  24. Links 1/12/2021: Tux Paint 0.9.27 and WordPress 5.9 Beta

    Links for the day



  25. [Meme] EPO Administrative Council Believing EPO-Bribed 'Media' (IAM Still Shilling and Lying for Cash)

    IAM continues to do what brings money from EPO management and Team UPC, never mind if it is being disputed by the patent examiners themselves



  26. The EPO's Mythical “Gap” Has Been Found and It's Bonuses for People Who Use Pure Fiction to Steal From Patent Examiners

    The phony president who has the audacity to claim there's a budget gap is issuing millions of euros for his enablers to enjoy; weeks ahead of the next meeting of national delegates the Central Staff Committee (CSC) tells them: "Events show that the delegations’ concerns about functional allowances have materialised. The lack of transparency and inflation of the budget envelope gives rise to the suspicion that high management is pursuing a policy of self-service at the expense of EPO staff, which is difficult to reconcile with the Office’s claimed cost-saving policy, and to the detriment of the whole Organisation."



  27. Video: Making the Internet a Better Place for People, Not Megacorporations

    Following that earlier list of suggested improvements for a freedom-respecting Internet, here's a video and outline



  28. Links 30/11/2021: KDE Plasma 5.23.4, 4MLinux 38.0, Long GitHub Downtime, and Microsoft's CEO Selling Away Shares

    Links for the day



  29. A Concise Manifesto For Freedom-Respecting Internet

    An informal list of considerations to make when reshaping the Internet to better serve people, not a few corporations that are mostly military contractors subsidised by the American taxpayers



  30. Freenode.net Becomes a 'Reddit Clone' and Freenode IRC is Back to Old Configurations After Flushing Down Decades' Worth of User/Channel Data and Locking/Shutting Out Longtime Users

    Freenode is having another go; after “chits” and “jobs” (among many other ideas) have clearly failed, and following the change of daemon (resulting in massive loss of data and even security issues associated with impersonation) as well as pointless rebrand as “Joseon”, the domain Freenode.net becomes something completely different and the IRC network reopens to all


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