Bonum Certa Men Certa

Alice/35 U.S.C. ۤ 101 and PTAB Are Here to Stay and Even Their Critics (Patent Maximalists) Have Come to Accept That

Capitol building



Summary: Taking stock of the latest PTAB news and rants; the latter has become scarce because efforts to undermine PTAB have all failed

THE recent changes at the USPTO were relatively minor. Guidelines have barely changed, the chief judge of the Patent Trial and Appeal Board (PTAB) is merely swapping seats, and the courts continue to rule pretty consistently on patent matters. There's no real room for profound change and this, in a strange sort of way, is a good thing because Alice/35 U.S.C. ۤ 101, frequently enforced by PTAB, renders a lot of software patents obsolete. The Federal Circuit (CAFC) affirms.



"There's no real room for profound change and this, in a strange sort of way, is a good thing because Alice/35 U.S.C. ۤ 101, frequently enforced by PTAB, renders a lot of software patents obsolete."Over the past week we've been patiently watching new cases and new decisions. We're also still watching events like this one about PTAB; a few months ago there were many anti-PTAB events, but Oil States more or less ended that. PTAB is here to stay and patent maximalists are slowly learning to accept that.

"SCOTUS is instead looking into matters such as damage calculations and litigation venue, along with PTAB itself (two decisions about it earlier this summer)."What about 35 U.S.C. ۤ 101? It hasn't really changed. There are talks about amending guidelines, but nothing substantial has changed and SCOTUS refuses to revisit the matter. SCOTUS is instead looking into matters such as damage calculations and litigation venue, along with PTAB itself (two decisions about it earlier this summer). 3 days ago San Antonio Business Journal wrote an update about the USAA case, wherein the underlying patent claims are currently being disputed. How typical. How depressing to patent maximalists this must be...

Steve Brachmann wrote about BSG Tech LLC v. BuySeasons, Inc. -- a case that we mentioned some days ago because it deals with software patents and Section 101 at a high level. Watchtroll also seems rather befuddled and confused by the fact that CAFC doesn't give a damn about the Berkheimer hype and still throws away/tosses out any such lousy software patents.

"On Wednesday, August 15th," Brachmann wrote, "the Court of Appeals for the Federal Circuit issued a precedential decision in BSG Tech LLC v. BuySeasons, Inc. which upheld a decision by the district court to invalidate patent claims owned by BSG Tech as patent-ineligible under 35 U.S.C. ۤ 101. The Federal Circuit panel of Circuit Judges Jimmie Reyna, Evan Wallach and Todd Hughes found that the district court correctly determined that patent claim asserted by BSG Tech were invalid as abstract ideas lacking any inventive step under the Alice/Mayo framework."

Well, get used to it.

Knobbe Martens (a law firm, not a person) soon wrote about it as well. A bunch of lawyers said this:

Under step one of Alice, the Federal Circuit agreed with the district court that the asserted claims were directed to the abstract idea of considering historical usage information while inputting data. The Federal Circuit found that this was not a method “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of” wide access databases. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014). Further, the Federal Circuit found that the claims were not saved from abstraction merely because they require a specific database structure that is more specific than a generic computer. Also, the Federal Circuit stated that the claims did not recite any improvement to the way in which databases store or organize information.


CAFC on PTAB inter partes reviews (IPRs) has truly transformed the way examiners operate; they think twice before granting software patents and we increasing read reports about rejections. Here's a new CAFC decision regarding IPRs:

The US Court of Appeals for the Federal Circuit yesterday ruled that an inter partes review (IPR) filing is still subject to a time limitation even if a previous patent infringement claim has been dismissed.

In doing so, the Federal Circuit sided with Click-to-Call Technologies (CTC) and overturned a previous decision by the Patent Trial and Appeal Board (PTAB).

According to section 315(b) of 35 USC, an IPR petition cannot be instituted if it is filed more than one year after the petitioner was served with a patent infringement complaint.


A blog post by Dennis Crouch also remarked on this:

In an unusual en banc footnote, the Federal Circuit has ruled that the litigation time-bar found in 35 U.S.C. ۤ 315(b) applies even in cases where the plaintiff-patentee voluntarily dismisses the lawsuit without prejudice. Click-to-Call Tech., LP v. Ingenio, Inc. and Iancu (Fed. Cir. 2018).


"Court says the PTAB was wrong to decide that voluntary dismissal without prejudice of a civil action in which the complaint was served “does not trigger” the one-year time bar under Section 315(b)," Michael Loney wrote.

IPR proceedings will continue unabated and entities such as Unified Patents will file IPRs as they see fit.

Watchtroll posted a new example of it earlier today. "Plano, TX-based patent owner American Vehicular Sciences LLC recently filed a petition for rehearing en banc with the Court of Appeals for the Federal Circuit. The petition relates to its appeal of inter partes review (IPR) proceedings conducted at the Patent Trial and Appeal Board (PTAB), which initiated as the result of a petition filed by Unified Patents," Watchtroll said.

American Vehicular Sciences, as we noted back in June, is part of a Microsoft-connected patent troll. Will it be disarmed?

Certainly we shall see PTAB-bashing in the future, but the frequency of that has greatly diminished. Here's Anticipat on Section 101 and PTAB:

As reported in today’s recap email, in Ex Parte GELFAND et al (Aug. 2, 2018), the Board reversed a lack of utility rejection. This continues a longstanding trend of the Board frequently reversing such rejections.


This is nonsense, there's no such trend. Anticipat is a malicious propaganda site against Section 101 and PTAB, just like Bilski Blog and Watchtroll, IAM etc. There has barely been, at best, a minuscule if not negligible difference and that too can be explained differently.

There are still some PTAB-hostile events on the way; earlier today Patent Docs advertised webinars of the patent microcosm on "PTAB Proceedings on Bio/Pharma Patents", the Intellectual Property Owners Association (IPO) on "Post-Grant Proceedings" and the scavengers from the U.S. Chamber of Commerce (malicious lobby group) lobbying lawmakers on patents:

The U.S. Chamber of Commerce Global Innovation Policy Center (GIPC) and the South Dade Chamber of Commerce and the Glen Ellyn, Lombard, Western DuPage, and Wheaton Chambers of Commerce will host two intellectual property and innovation business roundtables in Florida and Illinois


Being from the Chamber of Commerce, it's obvious whose agenda that will advance.

Patent Docs also advertised more benign webinars such as this, but the site as a whole has been full of PTAB-bashing. Their bias is impossible to hide. Then again, their frustration too has become impossible to hide.

Recent Techrights' Posts

Martina Ferrari & Debian, DebConf room list: who sleeps with who?
Reprinted with permission from Daniel Pocock
Europe Won't be Safe From Russia Until the Last Windows PC is Turned Off (or Switched to BSDs and GNU/Linux)
Lives are at stake
Links 23/04/2024: US Doubles Down on Patent Obviousness, North Korea Practices Nuclear Conflict
Links for the day
Stardust Nightclub Tragedy, Unlawful killing, Censorship & Debian Scapegoating
Reprinted with permission from Daniel Pocock
 
Microsoft is Shutting Down Offices and Studios (Microsoft Layoffs Every Month This Year, Media Barely Mentions These)
Microsoft shutting down more offices (there have been layoffs every month this year)
Balkan women & Debian sexism, WeBoob leaks
Reprinted with permission from disguised.work
Links 24/04/2024: Advances in TikTok Ban, Microsoft Lacks Security Incentives (It Profits From Breaches)
Links for the day
Gemini Links 24/04/2024: People Returning to Gemlogs, Stateless Workstations
Links for the day
Meike Reichle & Debian Dating
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 23, 2024
IRC logs for Tuesday, April 23, 2024
[Meme] EPO: Breaking the Law as a Business Model
Total disregard for the EPO to sell more monopolies in Europe (to companies that are seldom European and in need of monopoly)
The EPO's Central Staff Committee (CSC) on New Ways of Working (NWoW) and “Bringing Teams Together” (BTT)
The latest publication from the Central Staff Committee (CSC)
Volunteers wanted: Unknown Suspects team
Reprinted with permission from Daniel Pocock
Debian trademark: where does the value come from?
Reprinted with permission from Daniel Pocock
Detecting suspicious transactions in the Wikimedia grants process
Reprinted with permission from Daniel Pocock
Gunnar Wolf & Debian Modern Slavery punishments
Reprinted with permission from Daniel Pocock
On DebConf and Debian 'Bedroom Nepotism' (Connected to Canonical, Red Hat, and Google)
Why the public must know suppressed facts (which women themselves are voicing concerns about; some men muzzle them to save face)
Several Years After Vista 11 Came Out Few People in Africa Use It, Its Relative Share Declines (People Delete It and Move to BSD/GNU/Linux?)
These trends are worth discussing
Canonical, Ubuntu & Debian DebConf19 Diversity Girls email
Reprinted with permission from disguised.work
Links 23/04/2024: Escalations Around Poland, Microsoft Shares Dumped
Links for the day
Gemini Links 23/04/2024: Offline PSP Media Player and OpenBSD on ThinkPad
Links for the day
Amaya Rodrigo Sastre, Holger Levsen & Debian DebConf6 fight
Reprinted with permission from disguised.work
DebConf8: who slept with who? Rooming list leaked
Reprinted with permission from disguised.work
Bruce Perens & Debian: swiping the Open Source trademark
Reprinted with permission from disguised.work
Ean Schuessler & Debian SPI OSI trademark disputes
Reprinted with permission from disguised.work
Windows in Sudan: From 99.15% to 2.12%
With conflict in Sudan, plus the occasional escalation/s, buying a laptop with Vista 11 isn't a high priority
Anatomy of a Cancel Mob Campaign
how they go about
[Meme] The 'Cancel Culture' and Its 'Hit List'
organisers are being contacted by the 'cancel mob'
Richard Stallman's Next Public Talk is on Friday, 17:30 in Córdoba (Spain), FSF Cannot Mention It
Any attempt to marginalise founders isn't unprecedented as a strategy
IRC Proceedings: Monday, April 22, 2024
IRC logs for Monday, April 22, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Don't trust me. Trust the voters.
Reprinted with permission from Daniel Pocock
Chris Lamb & Debian demanded Ubuntu censor my blog
Reprinted with permission from disguised.work
Ean Schuessler, Branden Robinson & Debian SPI accounting crisis
Reprinted with permission from disguised.work
William Lee Irwin III, Michael Schultheiss & Debian, Oracle, Russian kernel scandal
Reprinted with permission from disguised.work
Microsoft's Windows Down to 8% in Afghanistan According to statCounter Data
in Vietnam Windows is at 8%, in Iraq 4.9%, Syria 3.7%, and Yemen 2.2%
[Meme] Only Criminals Would Want to Use Printers?
The EPO's war on paper
EPO: We and Microsoft Will Spy on Everything (No Physical Copies)
The letter is dated last Thursday
Links 22/04/2024: Windows Getting Worse, Oligarch-Owned Media Attacking Assange Again
Links for the day
Links 21/04/2024: LINUX Unplugged and 'Screen Time' as the New Tobacco
Links for the day
Gemini Links 22/04/2024: Health Issues and Online Documentation
Links for the day
What Fake News or Botspew From Microsoft Looks Like... (Also: Techrights to Invest 500 Billion in Datacentres by 2050!)
Sededin Dedovic (if that's a real name) does Microsoft stenography
Stefano Maffulli's (and Microsoft's) Openwashing Slant Initiative (OSI) Report Was Finalised a Few Months Ago, Revealing Only 3% of the Money Comes From Members/People
Microsoft's role remains prominent (for OSI to help the attack on the GPL and constantly engage in promotion of proprietary GitHub)
[Meme] Master Engineer, But Only They Can Say It
One can conclude that "inclusive language" is a community-hostile trolling campaign
[Meme] It Takes Three to Grant a Monopoly, Or... Injunction Against Staff Representatives
Quality control
[Video] EPO's "Heart of Staff Rep" Has a Heartless New Rant
The wordplay is just for fun
An Unfortunate Miscalculation Of Capital
Reprinted with permission from Andy Farnell
[Video] Online Brigade Demands That the Person Who Started GNU/Linux is Denied Public Speaking (and Why FSF Cannot Mention His Speeches)
So basically the attack on RMS did not stop; even when he's ill with cancer the cancel culture will try to cancel him, preventing him from talking (or be heard) about what he started in 1983
Online Brigade Demands That the Person Who Made Nix Leaves Nix for Not Censoring People 'Enough'
Trying to 'nix' the founder over alleged "safety" of so-called 'minorities'
[Video] Inauthentic Sites and Our Upcoming Publications
In the future, at least in the short term, we'll continue to highlight Debian issues
List of Debian Suicides & Accidents
Reprinted with permission from disguised.work
Jens Schmalzing & Debian: rooftop fall, inaccurately described as accident
Reprinted with permission from disguised.work
[Teaser] EPO Leaks About EPO Leaks
Yo dawg!
On Wednesday IBM Announces 'Results' (Partial; Bad Parts Offloaded Later) and Red Hat Has Layoffs Anniversary
There's still expectation that Red Hat will make more staff cuts
IBM: We Are No Longer Pro-Nazi (Not Anymore)
Historically, IBM has had a nazi problem
Bad faith: attacking a volunteer at a time of grief, disrespect for the sanctity of human life
Reprinted with permission from Daniel Pocock
Bad faith: how many Debian Developers really committed suicide?
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 21, 2024
IRC logs for Sunday, April 21, 2024
A History of Frivolous Filings and Heavy Drug Use
So the militant was psychotic due to copious amounts of marijuana
Bad faith: suicide, stigma and tarnishing
Reprinted with permission from Daniel Pocock
UDRP Legitimate interests: EU whistleblower directive, workplace health & safety concerns
Reprinted with permission from Daniel Pocock