Bonum Certa Men Certa

“Federal Circuit Had Affirmed on Every Issue in 77.4% of the Patent Trial and Appeal Board Appeals it Had Seen” in 2016

Summary: The Federal Circuit (CAFC) and Patent Trial and Appeal Board (PTAB) continue to squash a lot of patents on software, in contrast to that fake news from patent maximalists

WHENEVER PTAB (or a petitioner) puts forth an inter partes review the likelihood that the patent in question will be invalidated is high. In a sense, even without any lawyers and lawsuits, old rubbish patents find their way into the wastebasket. It's like a cleanup operation inside the USPTO and the patent microcosm absolutely loathes it.



Some firms celebrate managing to escape the jaws of PTAB, whereas others see their patents turn to dust. They sought patents on non-inventions in the first place, so what did they expect?

Writing about a case which was mentioned here before, here is another report about an inter partes review:

Phigenix was a "for-profit discovery stage biotechnology, pharmaceutical, and biomedical research company". Although Phigenix did not make products, it purported to have an extensive IP portfolio, including US Patent 8,080,534 (the ''534 patent'), which Phigenix alleged covered Genentech's activities relating to Kadcyla. Phigenix asserted that it "was forced" to challenge ImmunoGen's '856 patent in IPR2014-00676 after Genentech refused to license Phigenix's '534 patent. In that inter partes review proceeding the Patent Trial and Appeal Board (PTAB) ultimately found ImmunoGen's '856 patent valid. Phigenix appealed the PTAB's decision to the Federal Circuit.


"A great deal of angst [angst only for the patent microcosm] has been generated by the Patent Trial and Appeal Board's decision," wrote another site, "in Ex parte Itagaki and Nishihara, regarding the panel's application of Section 101 (sua sponte as a new ground of rejection under 37 C.F.R. ۤ 41.50(b)) that claims to a magnetic resonance imaging machine do not recite patent-eligible subject matter."

Section 101 pertains to software patents, among other things. Here are some interesting new statistics about the Federal Circuit's agreement with PTAB:

As of the end of the year, the Federal Circuit had affirmed on every issue in 77.4% of the Patent Trial and Appeal Board appeals it had seen. Finnegan has analysed what parties can expect from cases that are remanded to the Board

Finnegan Henderson Farabow Garrett & Dunner has published the latest statistics on the success of Patent Trial and Appeal Board (PTAB) appeals at the Federal Circuit.


This helps refute a lot of the nonsense we have been seeing at Watchtroll -- a site so focused on attacking PTAB, even cherry-picking cases ("graphical user interface patent") to make it seem as though CAFC changed its tune. To quote Watchtroll's accompanying tweet: "Will the PTAB find claims ineligible in a CBM that the CAFC just found to be eligible in litigation?"

Dennis Crouch also wrote about graphical user interface patents this week. These are essentially design and/or software patents, like that infamous progress bar patent. They should not have been granted in the first place.

"The Federal Circuit will also issue two en banc decisions from PTAB appeals," MIP wrote the other day. It's mentioned among US "Cases to look out for in 2017," which include Lee v Tam:

The Supreme Court in the past two months has added two more patent cases – and they are both big ones – as well as hearing arguments in two others.

Following arguments in Lee v Tam on January 18, so far this term the Supreme Court will have heard arguments in five intellectual property cases (and already decided one of them) and is awaiting arguments in three more.


It's a trademark case (still USPTO, as the "T" does not stand for patents) and it's a subject that Patently-O repeatedly covered recently [1, 2]. Today it wrote: "First Amendment says: “Congress shall make no law … abridging the freedom of speech.” My question that I still do not understand for the Tam case: How is Tam’s speech being abridged by denial of his registration?"

The USPTO will never be perfect, but the very existence of PTAB is a step in the right direction and software patents, as per CAFC, are a barrier if not a violation of free speech (First Amendment). It is also useful to see statistics reaffirming CAFC's support for PTAB, contrary to what the patent microcosm is trying to tell us (sparking perception of feuds that do not actually exist).

Recent Techrights' Posts

Microsoft: Our "Goodwill" Gained Over 51 Billion Dollars in the Past Nine Months Alone, Now "Worth" as Much as All Our Physical Assets (Property and Equipment)
The makeup of a Ponzi scheme where the balance sheet has immaterial nonsense
FSFE (Ja, Das Gulag Deutschland) Has Lost Its Tongue
Articles/month
 
Links 27/04/2024: Spying Under Fire, Intel in Trouble Again
Links for the day
Lucas Kanashiro & Debian/Canonical/Ubuntu female GSoC intern relationship
Reprinted with permission from disguised.work
Pranav Jain & Debian, DebConf, unfair rent boy rumors
Reprinted with permission from disguised.work
Links 27/04/2024: Kaiser Gave Patients' Data to Microsoft, "Microsoft Lost ‘Dream Job’ Status"
Links for the day
Gemini Links 27/04/2024: Sunrise Photos and Slow Productivity
Links for the day
Almost 2,700 New Posts Since Upgrading to Static Site 7 Months Ago, Still Getting More Productive Over Time
We've come a long way since last autumn
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 26, 2024
IRC logs for Friday, April 26, 2024
Overpaid lawyer & Debian miss WIPO deadline
Reprinted with permission from disguised.work
Brian Gupta & Debian: WIPO claim botched, suspended
Reprinted with permission from disguised.work
Microsoft's XBox is Dying (For Second Year in a Row Over 30% Drop in Hardware Sales)
they boast about fake numbers or very deliberately misleading numbers that represent two companies, not one
Ian Jackson & Debian reject mediation
Reprinted with permission from disguised.work
[Meme] Granting a Million Monopolies in Europe (to Non-European Companies) at Europe's Expense
Financialization of the EPO
Salary Adjustment Procedure at the EPO Challenged
the EPO must properly compensate staff in order to attract and retain suitably skilled examiners
How to get selected for Outreachy internships
Reprinted with permission from disguised.work
Links 26/04/2024: Surveillance Abundant, Restoring Net Neutrality Rules (US)
Links for the day
Gemini Links 26/04/2024: uConsole and EXWM and stdu 1.0.0
Links for the day
Red Hat Corporate Communications is "Red" Now
Also notice they offer just two options: MICROSOFT or... MICROSOFT!
Links 26/04/2024: XBox Sales Have Collapsed, Facebook's Shares Collapse Too
Links for the day
Albanian women, Brazilian women & Debian Outreachy racism under Chris Lamb
Reprinted with permission from disguised.work
Microsoft-Funded 'News' Site: XBox Hardware Revenue Declined by 31%
Ignore the ludicrous media spin
Mark Shuttleworth, Elio Qoshi & Debian/Ubuntu underage girls
Reprinted with permission from disguised.work
Karen Sandler, Outreachy & Debian Money in Albania
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 25, 2024
IRC logs for Thursday, April 25, 2024
Links 26/04/2024: Facebook Collapses, Kangaroo Courts for Patents, BlizzCon Canceled Under Microsoft
Links for the day
Gemini Links 26/04/2024: Music, Philosophy, and Socialising
Links for the day
Microsoft Claims "Goodwill" Is an Asset Valued at $119,163,000,000, Cash Decreased From $34,704,000,000 to $19,634,000,000 and Total Liabilities Grew to $231,123,000,000
Earnings Release FY24 Q3
More Microsoft Cuts: Events Canceled, Real Sales Down Sharply
So they will call (or rebrand) everything "AI" or "Azure" or "cloud" while adding revenues from Blizzard to pretend something is growing
CISA Has a Microsoft Conflict of Interest Problem (CISA Cannot Achieve Its Goals, It Protects the Worst Culprit)
people from Microsoft "speaking for" "Open Source" and for "security"
Links 25/04/2024: South Korean Military to Ban iPhone, Armenian Remembrance Day
Links for the day
Gemini Links 25/04/2024: SFTP, VoIP, Streaming, Full-Content Web Feeds, and Gemini Thoughts
Links for the day
Audiocasts/Shows: FLOSS Weekly and mintCast
the latest pair of episodes
[Meme] Arvind Krishna's Business Machines
He is harming Red Hat in a number of ways (he doesn't understand it) and Fedora users are running out of patience (many volunteers quit years ago)
[Video] Debian's Newfound Love of Censorship Has Become a Threat to the Entire Internet
SPI/Debian might end up with rotten tomatoes in the face
Joerg (Ganneff) Jaspert, Dalbergschule Fulda & Debian Death threats
Reprinted with permission from disguised.work
Amber Heard, Junior Female Developers & Debian Embezzlement
Reprinted with permission from disguised.work
[Video] Time to Acknowledge Debian Has a Real Problem and This Problem Needs to be Solved
it would make sense to try to resolve conflicts and issues, not exacerbate these
Daniel Pocock elected on ANZAC Day and anniversary of Easter Rising (FSFE Fellowship)
Reprinted with permission from Daniel Pocock
[Video] IBM's Poor Results Reinforce the Idea of Mass Layoffs on the Way (Just Like at Microsoft)
it seems likely Red Hat layoffs are in the making
Ulrike Uhlig & Debian, the $200,000 woman who quit
Reprinted with permission from disguised.work
IRC Proceedings: Wednesday, April 24, 2024
IRC logs for Wednesday, April 24, 2024
Over at Tux Machines...
GNU/Linux news for the past day