Bonum Certa Men Certa

The US Patent System: Where One Wastes Years in Court and Spends $8,000,000 in Lawyers' Fees Fighting a Bogus Patent

The US patent office has essentially externalised the costs to the public

Alice road



Summary: A roundup of news about software patents in the US and what they have led to, owing in part to the USPTO's declining patent quality (leaving others to clean up its mess)

THE ridiculously low standards of the USPTO come at a huge cost, albeit this cost is considered an externality by this greedy patent office. Unless this mess is sorted out soon, the US might have nothing left but large multinational corporations with tens of thousands of patents each, as opposed to agile startups with none.



Elliot Harmon says that this one particular software patent, which can possibly be demolished quite easily using Alice, has been used in the Eastern District of Texas and it's the "Stupid Patent of the Month" (as per the series of the EFF). To quote:

This month, a company called Voice2Text Innovations filed patent infringement lawsuits against two voice over Internet protocol (VoIP) services, Phone.com and Vitelity. Voice2Text has no website or any other information online; its sole asset appears to be US Patent No. 8,914,003—unsurprisingly, a patent on using voice recognition to convert a voicemail into a text message. Equally unsurprisingly, it’s filed those suits in the Eastern District of Texas, whose patent-troll-friendly practices we’ve thoroughly documented on this blog. The Voice2Text patent is so absurd that we had to honor it with our Stupid Patent of the Month award.


"Unless this mess is sorted out soon, the US might have nothing left but large multinational corporations with tens of thousands of patents each, as opposed to agile startups with none."In order to destroy such a patent one might need to spend quite a lot of money rather than settle. Consider this new story titled "Court Orders Plaintiff to Pay Defendants’ $8 Million in Attorney’s Fees in Patent Row". That's a lot of money; patent lawyers grossly overcharge and the system plays in their favour by inducing additional costs at many levels (e.g. appeals), thus favouring those with bigger budgets or deeper pockets, leaving small players vastly more vulnerable. To quote the concluding words: "This case illustrates that the courts will take strong action when faced with baseless claims, hidden or altered evidence, and misleading statements made to the court or opponents. It also serves as a strong reminder to consider your counsel carefully, and the advice that they provide, or a plaintiff may have to pay its own fees and those of the defendant, which in this case amounted to another $8 million."

This case may be the exception rather than the norm, but judging by NewEgg's decision to stand up to trolls, it often costs literally millions and there is no guarantee of the plaintiff -- upon loss -- bearing the cost of the defendant's (victim's) legal bills. NewEgg actually made history by managing to compel a patent troll to pay its victim's legal fees some months ago, owing to an unusual decision by the judge.

"NewEgg actually made history by managing to compel a patent troll to pay its victim's legal fees some months ago, owing to an unusual decision by the judge."Patently-O has just recommended Lynda J. Oswald's relatively new paper which criticises the term “strict liability” and whose abstract says: "In 1995, the Federal Circuit summarily attached the label of “strict liability” to direct patent infringement, even though that term does not appear in any U.S. Patent Act of the past two centuries. The catechism of “strict” direct patent infringement liability is now so well-engrained in patent doctrine that it is easy to lose sight of how recent the advent of this terminology is in the case law, and how troublesome application of this standard has proven, even to the Federal Circuit, which created it. The first patent act (1790) preceded the emergence of tort law as a distinct field of U.S. common law (mid-1800s) by a half-century or more, and the products liability explosion of the mid-twentieth century radically altered our understanding of strict liability. The implications of this forgotten timeline are profound. “Strict liability,” particularly in its modern formulation, is not a neutral, descriptive term. Rather, the term evokes social policy choices and balancing considerations that may be appropriate within the case law context of products liability or abnormally dangerous activities, but which are incongruous and inapposite in the statutory context of patent law. Deeming direct patent infringement to be a strict liability leads to two unanticipated and unwelcome effects. First, the adoption of the “strict liability” label for direct patent infringement liability improperly inflates the courts’ role in setting direct patent infringement liability standards and suggests — incorrectly — that patent liability is a case law construct, when in fact it is a statutory construct. Second, the “strict liability” label improperly shifts the focus of the patent infringement inquiry from the Patent Act’s protection of the plaintiff’s exclusive property interest in its patent right toward a value-laden examination of the social utility of the defendant’s conduct vis-à-vis the injury to the patent holder. Jettisoning the “strict liability” label for direct patent infringement would reframe the analysis and debate, moving direct patent infringement liability out of a policy framework and back toward its proper statutory setting."

"PTAB is increasingly being used to correct the USPTO's errors, but why not dig deep into the root of the problem and simply tackle the USPTO's unrestrained greed?"What's worth noting here is that a lot of the risk has been passed to defendants, not to plaintiffs, who often rely on poor quality examination by the USPTO (resulting in the grant of bogus patents). PTAB is increasingly being used to correct the USPTO's errors, but why not dig deep into the root of the problem and simply tackle the USPTO's unrestrained greed?

CAFC won't be coming to one's rescue after PTAB, according to one example just put forth by Patently-O. To quote Patently-O: "The Federal Circuit has denied en banc review of decisions in four inter partes review proceedings brought by Gnosis. Federal Circuit had previously affirmed the Patent Trial and Appeal Board’s IPR determination that the challenged Merck and SAMSF patent claims were invalid as obvious."

The relevance of this was ever more apparent when Bass gamed the value of companies by invalidating key patents -- a move which IAM now conflates with patent trolls by comparing Bass to trolls. Spangenberg is a patent troll, Bass invalidates patents. They have a very different modus operandi, but as IAM put it, the connection lies within a team-up: "Since teaming up with former IPNav CEO Erich Spangenberg to launch their first US inter partes review (IPR) in February last year – challenging a pharmaceutical dosage-related patent owned by Acorda Therapeutics – Kyle Bass has become one of the IP business world’s highest-profile players. Whether he should primarily be seen as antagonist, protagonist or the antihero somewhere in-between depends on your point of view. What is certain is that the validity actions being pursued by him and Spangenberg through their Coalition for Affordable Drugs – targeting patents belonging to pharmaceutical ‘originator’ companies – rocked the post-America Invents IP landscape."

"The USPTO's poor quality -- a trap which the EPO growingly falls into -- helps trolls, strategic predatory investors/hedge funds, and monopolists which do a disservice to innovation."What is worth noting here is that if the patents invalidated upon request by Bass were not granted by the USPTO in the first place, none of this would have happened. The USPTO's poor quality -- a trap which the EPO growingly falls into -- helps trolls, strategic predatory investors/hedge funds, and monopolists which do a disservice to innovation. Watch IBM's patent chief having the audacity this weekend to complain about the system which David Kappos from IBM made worse (in IBM's favour; IBM pays him now for lobbying), furthermore complaining about a system outside his own country (Australia) because it attempts to improve patent quality, as we noted yesterday.

Recent Techrights' Posts

We Are Sad to Hear the Story of Jonathan Riddell, Champion of KDE and GNU/Linux on Desktops/Laptops
I have enormous respect for Jonathan and everything he has done
 
What Ruben Amorim and Stefano Maffulli Have in Common
Censors Wikipedia and Social Control Media
Microsoft Won't Cooperate in Trying to Tackle EPO Corruption (Microsoft Profits From This Corruption)
Use something like BigBlueButton, Jami, Ring, and Jitsi instead
Solved Less Than an Hour Ago: Trying to Escape Windows, 'Secure Boot' Gets in the Way
'Secure Boot' wasn't meant to even exist in the first place
Stefano Maffulli, Executive Director of the Open Source Initiative, Resigns or Gets Removed (We'll Continue Covering OSI Scandals)
A dozen mentions of "AI", not much about "Open Source"
Andy Has Just Nailed It (Regarding Complexity and Failure, a la UEFI)
The users no longer own or control what they buy
Compatibility Support Module (CSM) Versus GNU/Linux Simplicity
what Andy recently called "solutionism"
Links 15/09/2025: "Postal Traffic to US Down by Over 80%" and 'Smart' Spinozacampus Laundry Room Goes AWOL
Links for the day
Gemini Links 15/09/2025: Dungeon Hustle and Deleting Oneself From the Net
Links for the day
Breach of EPO's Duty of Care or Cigna Reimbursement Issues
This is the sort of thing that motivated Luigi Mangione to assassinate a CEO
Ask Ubuntu About "Secure Boot" Violation and Laptops That Don't Boot GNU/Linux
Does anyone still believe that "Secure Boot" has anything at all to do with security?
Talking About the Problem vs Talking to the Problem
Wanting an audience is never a good excuse for compromising one's values and principles
Focusing on Patents
The reason we cover the EPO so much is that it's close to home
"Secure Boot Violation": The 'Joys' of Fake Security Gone Wrong
Not everyone reboots every day
Links 15/09/2025: Russia Invades Romanian Airspace, Penske Media Sues Google Over LLM Slop
Links for the day
Links 15/09/2025: Bitcoin ATMs Scam and "Conservative Cryptography" (Backdoors Fantasies)
Links for the day
EPO Imitates Microsoft: "Three Days or More Per Week" Inside the Office to Get a Desk to Work on; "the Office Breaches Its Promise Towards Staff and Acts in Breach of Its Duty of Care"
The EPO serves no actual function in Europe
Links 15/09/2025: Political Affairs, Censorship, and Copyrights
Links for the day
Gemini Links 15/09/2025: Music Genres, Invisible Networks, and Akademy 2025
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 14, 2025
IRC logs for Sunday, September 14, 2025
Satya's Plan B: Try to Hide the Massive Extent/Scale/Scope of Microsoft Layoffs
fewer people buy Microsoft
Red Hat News About De Facto Mass Layoffs (Bluewashing) Gone From Reddit (Censored by Gatekeepers), Still Online in The Register
With RTOs, PIPs, relocation etc. expect IBM to "shed off" many Red Hatters
UEFI "Secure Boot Doesn’t Play Nice at the Moment"
UEFI "Secure Boot" does not improve security. It's an artificial obstacle in service of monopoly.
Gemini Links 14/09/2025: ROOPHLOCH, Music, and Reddit
Links for the day
If You Want to "make your 'Windows PC' lean, mean, and fast" You Will Install GNU/Linux or Some BSD
That kind of article says a lot about IDG
Slopwatch: Google News Infested With Slop (About Half of the Results for "Linux" Today)
This is the sort of junk one finds when looking for "Linux" in Google News these days
Links 14/09/2025: Ricky Hatton Dies and McDonald's Declares War on Tipping Culture
Links for the day
Links 14/09/2025: Disasters for CEOs Obsessed With Slop and Slop Companies School Like Fish
Links for the day
"Bad Shim Signature" (Microsoft 'Secure' Boot)
"Fresh install not booting"
What Microsoft Garrett and Microsoft Lunduke Have in Common
Similar tactics, different "wings"
Links 14/09/2025: US "Economy Sagging", "Michigan Economy Wobbles From Tariffs"
Links for the day
Gemini Links 14/09/2025: Minimalist Snippet Manager and Omarchy Linux
Links for the day
The Face of the Digital Far Right: Microsoft Lunduke
Microsoft Lunduke is an online extremist that belongs to and panders to the far right
20 Years Later and Academia Isn't the Same
"I never dreamed of being a professor"
'Cancel Culture' by the Right: Microsoft Lunduke Contacts People's Employers Trying to Get Them Fired
Microsoft Lunduke panders to extremists online
"Bad Shim Signature"; So 'Secure' That It Overrides Users' Preferences and Turns Itself Back on (Coercive Measure)
This was a few hours ago
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, September 13, 2025
IRC logs for Saturday, September 13, 2025
Microsoft is Rapidly Dropped From Web Servers, Shows Survey
Microsoft lost about 8% "market share" in just 3 months
Many GNU/Linux Users Report MOK (Machine Owner Key) Issues in Recent Days
many people don't report this online and never post in Reddit
We Covered UEFI 'Secure Boot' Scandals. The World Listened.
To hell with UEFI 'secure boot'
Links 13/09/2025: Escalations in East Europe and POTUS’ Health Cover-Up
Links for the day
Gemini Links 13/09/2025: Lagrange Turns 5 and Lagrange 1.19.2 Released
Links for the day
Microsoft Inside Your Linux: "Security vulnerability that allowed an attacker to bypass UEFI Secure Boot."
2 hours ago
A New Low for "Linux Journal": Promoting MICROSOFT WINDOWS Using LLM Slop
They've just jumped the shark entirely
Fake News With Fake Numbers About Microsoft
"This is what happens when the world's economy is governed by sick old men"
Slopwatch: "Google News" is Fast Becoming a Mashup of Slopfarms, Linux Journal ("LJ") is a Dump of LLM Slop
Well done, Google News. Google itself can flourish as a slopfarm mashup.
Torturing Users Who Just Want to Run GNU/Linux on Their Own PC
"Linux does not want to install"
The Register MS Still Takes Money to Hype Up "AI" in Articles by Microsoft Resellers With the Term "AI" 30+ Times in Them
Notice how many times they mention "AI"
The Apache Logo News is VERY Old, Racists and 'Anti-Woke' Bigots Look for Something to Incite Other Bigots With
Nothing to see here, move along
Linux Mint 9/11: "4th One Today..." (in Reddit)
Remember that not everyone having an issue reports it to social control media like Reddit
Nepal Will Fall Without a Single Shot Fired, Thanks to Social Control Media
Or very few shots (by the authorities)
European Corruption in the European Patent Office (EPO) Targets Culture
"In reality, the project includes a new “legal instrument” shifting administrative burden and liability on EPO staff while creating new uncertainty and externalising Amicale activities."
European Authorities, Already Bribed and Infiltrated by Microsoft, Won't Help You Find BigBlueButton, Jami, Ring, and Jitsi
Because they're paid by Microsoft and are Microsoft 'addicts' themselves
UEFI Secure Boot Failing, as Expected for Nearly 15 Years Already (Techrights Said This Since 2012)
in the media
Debian 9/11
people report this issue
Gemini and Web Links 13/09/2025: MElon's Slop Grift and "Autonomous Trains"
Links for the day
Moving From Content Management Systems (CMSs) to Static Site Generators (SSGs) Saves You Time, Makes You a Lot More Productive
try to reduce the cost (financial and computational) of running your site
Pursuing Peace Through Violence
You cannot "see" a person's mind, until the mouth opens
Leak: European Patent Office (EPO) is Now Attacking Amicale Clubs
corruption has become the norm and scientists are robbed of any dignity
Can We Please Stop Celebrating Shooters?
"An important point to hammer on is that CoCs were never intended for uniform or symmetric application"
Oracle Fraud (or Defrauding Shareholders)
"the obvious [lie] is that watts are (wasted) electricity [and] and FLOPS are computing capacity"
Geminispace is Growing Faster in 2025 Than It Did in 2024
What matters is that corporations haven't ruined it and LLM slop is extremely rare
Links 13/09/2025: China Punishes for 'Negative' Posts, US Police Unable to Find Shooter
Links for the day
Who's the Mystery Financier of SLAPP Against Techrights and Is That a Millionaire/Billionaire?
Whose idea was it to fund meritless lawsuits against my wife and I?
Slopwatch: Slow Slop Day
This distracts from or may take traffic away from the original articles, actually written by actual people
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, September 12, 2025
IRC logs for Friday, September 12, 2025