Bonum Certa Men Certa

The Appeal Board (PTAB) and Federal Circuit (CAFC) Maintain Good Pace of Patent Elimination Where Scope Was Exceeded

It's driving the patent maximalists nuts!

PTAB impotence



Summary: The Court of Appeals for the Federal Circuit (CAFC) continues to accept about 4 out of 5 decisions of the Patent Trial and Appeal Board (PTAB) and the US Supreme Court (SCOTUS) refuses to intervene

WE are very gratified to see the USPTO improving patent quality by means of appeals, or by revisiting and reassessing already-granted patents. There has been a lot of news about that this past week and below is an outline.



CSIRO/CRISPR



We previously wrote a number of articles about CSIRO and CRISPR, which served to demonstrate unjust patents that went against public interests, sometimes at the expense of the public. Well, PTAB, based on this new blog post, finally -- one might say belatedly -- takes on CRISPR and the patent parasite, CSIRO (Commonwealth Scientific and Industrial Research Organisation), which earned a lot of disdain/notoriety for its patent strategy. "The gene-editing tool CRISPR," IAM wrote, "is in the process of transforming the life sciences industry."

"We certainly hope that PTAB will somehow take public interests into account, but that's not how PTAB works."IAM means privatising and monopolising, even by means of lawsuits. The promotional and defensive language carried on as follows: "Perhaps not surprisingly with such a revolutionary technology still in its relative infancy, a dispute over patents between universities and research institutes that have been at the forefront of its development, erupted over just who owns some of the foundational IP."

Maybe nobody? Especially given that money for this work came from the public?

We certainly hope that PTAB will somehow take public interests into account, but that's not how PTAB works. It assesses patents not on ethical grounds but based on the guidelines/laws/rules.

Watchtroll Still at It... Denying Facts



Watchtroll's PTAB bashing is nothing new (see screenshot at the top). The site continued with this bashing today (factually-flawed and structurally-incoherent drivel that's akin to fake news). According to this new article, which is based on statistics from the first day of the month, "Federal Circuit PTAB Appeal Statistics" suggest that in addition to the all-time high for PTAB in January, CAFC agrees with PTAB ~80% of the time. It means that PTAB is doing its job capably and correctly. To quote from Lexology: "Through February 1, 2017, the Federal Circuit decided 161 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 125 (77.64%) of the cases, and reversed or vacated the PTAB on every issue in 13 (8.07%) of the cases. A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 14 (8.70%) of the cases."

"Put in simple terms, PTAB maintains its ability to crush bad patents and CAFC generally agrees with PTAB in 77.64% of the cases it looks at. "The statistics for 2016 were very similar, as we noted here before (the exact number was 77.4% rather than 77.64%, so the increase is marginal). Put in simple terms, PTAB maintains its ability to crush bad patents and CAFC generally agrees with PTAB in 77.64% of the cases it looks at.

ImmunoGen Case



Based on more news, PTAB continues to smash patents to pieces, and CAFC agrees, as usual. To quote:

After the Patent Trial and Appeal Board found claims of ImmunoGen Inc.'s U.S. Patent No. 8,337,856 nonobvious, non-practicing entity Phigenix, Inc. appea​led to the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit dismissed the appeal, finding that Phigenix lacked standing to appeal because it had not established it had suffered an injury in fact.

Prior to filing its inter partes review petition, Phigenix was engaged in litigation with a third company, Genentech, Inc., over a Phigenix patent, U.S. Patent No. 8,080,534. Phigenix asserted that the '534 patent covered Genentech's manufacture and sale of a drug, Kadycla. Genentech produces the drug under a "worldwide exclusive license" from ImmunoGen for the '856 patent. As part of its efforts to commercialize its own patent portfolio, Phigenix filed the petition for inter partes review of the '856 patent, alleging claims 1–8 were invalid as obvious over various prior art references.


Depomed Case



CAFC is again (as usual) agreeing with PTAB that Depomed's patent should be invalidated, based on this new report:

The Federal Circuit on Tuesday affirmed the U.S. Patent and Trial Appeal Board’s decision in an America Invents Act inter partes review that Depomed's patent on extended-release drug technology is invalid as obvious, saying the board’s conclusion is backed by substantial evidence.


Novartis Case



There is another high-profile 'case' (petition rather) in the pipeline. Here are the details from the news:

Days after rejecting a challenge from Roxane Laboratories to a patent related to Novartis' blockbuster cancer drug Afinitor, the Patent Trial and Appeal Board agreed recently to review the patent based on a challenge from another generic drugmaker, Par Pharmaceutical.

In a Feb. 15 decision, the PTAB found that Par Pharmaceutical Inc. had shown the patent was likely invalid as obvious. Par, which was previously sued for infringement, filed a petition seeking inter partes review last summer.


TradeStation Case



Justice does not seem plausible and is not perceived as legitimate when the outcome is always the same (like FISA rubber-stamping), so there are also exceptions. Here, for a change, "PTAB Follows Fed. Circ. Lead, Upholds Trading Patent" and to quote:

A split Patent Trial and Appeal Board on Friday followed the lead of the Federal Circuit and upheld a Trading Technologies International Inc. electronic trading patent, finding it was not invalid under the U.S. Supreme Court’s Alice ruling.

In a 2-1 decision, the PTAB said TradeStation Group Inc. and IBG LLC had not shown why it should break from the appellate court’s Jan. 18 decision, when the court ruled that a judge correctly found this and another Trading Technologies patent covered technological improvements, not abstract ideas...


PTAB Scares the Patent Microcosm



It's no secret that patent maximalists, unlike actual companies that make things, hate PTAB. In general, PTAB can help save/defend practicing companies, to whom patents are still a two-edged sword. Here we have a law firm asking (seeking attention from potential clients), "Can Your Patent Be Invalidated Without a Trial?"

"As there is no foreseeable case at the SCOTUS which involves software patents, we are pretty certain that there will be no challenge to Alice any time soon."Well, yes, and many software patents are already as valuable as nothing at all. They are toothless. Trying to litigate with them would benefit nobody except lawyers at both sides. In that sense, such patents may be even worse than none at all. But to quote the above: "Patent owners should be keeping a close eye on a case that may come before the Federal Circuit Court of Appeals that could potentially block challenges to patent validity outside of the courtroom. Cascades Projection v. Epson and Sony 1 asks the court to decide whether the rights granted by a patent are public or private and, in turn, if those rights are capable of being revoked without access to a jury trial."

We wrote about it earlier in the month. These are edge cases or rare exceptions; thus, promoting these to prospective clients is rather disingenuous and misleading. Or as one might call it -- marketing!

SCOTUS Defends CAFC and by Extension PTAB



One interesting case that we spotted today in the news involves a company called Big Baboon (real company name!) and its unusual attempts to challenge patent scope etc. at the US Supreme Court (SCOTUS). Software patents are still dead/dying after Alice, so Big Baboon attempted another angle and failed. To quote:

The U.S. Supreme Court on Monday declined to hear a petition by a Silicon Valley software company asserting that the Federal Circuit has routinely imputed patent law claims into lawsuits that challenge the U.S. Patent and Trademark Office’s procedures in order to exert jurisdiction over the cases.

The high court declined to hear Big Baboon Inc.’s Oct. 10 petition for writ of certiorari, which argued that it was in the public's interest that the justices stop the appellate court from the "ongoing and palpable" harm it...


This is good news. As there is no foreseeable case at the SCOTUS which involves software patents, we are pretty certain that there will be no challenge to Alice any time soon. There is also no indication from the Trump administration that AIA (which brought PTAB) will be in any sense revoked/undone.

Recent Techrights' Posts

The Solicitors Regulation Authority (SRA) Under Scrutiny Today in the British Government's Meeting, Grilled for Its Failure to Regulate Rogue Law Firms
Things are not improving
 
The Deleted Article About Mass Layoffs at IBM (April 2026)
Resurrected
Lots of Positive News Lately, Microsoft GitHub in Trouble
it's not too crazy to speculate about GitHub being the next Skype (or CodePlex)
The Register MS Has "Webinars" (Marketing); They're Promoting Ponzi Schemes or Slop But Disguised as "Intelligence"
These "webinars" are just spam displayed to people as if it contains real information
It Was Always About Freedom and Sovereignty (or Self-Determination)
About 24 hours from now Richard Stallman (RMS) will be giving a talk in Texas
Mass Layoffs at IBM Again, Just in Time for the Fake "Results" Next Week
Slopfarm will issue some chaff to give an illusion of journalism
Windows (Microsoft) in Botswana Falls to Another New Low
Botswana is a fairly large country
SLAPP Censorship - Part 47 Out of 200: British Courts Are Not Censorship Offices for Americans Funded by Affluent Third Parties
Solicitors Regulation Authority (SRA) was scrutinised by our government
More Than 6 Months After a Very Close Friend of António Campinos and EPO Official Caught With Cocaine Campinos is Cracking Down on - or Stealing From - EPO Staff
Now they go after the "Education and Childcare Allowance"
Links 14/04/2026: Data Breaches and LLM Slop in Courts
Links for the day
Gemini Links 14/04/2026: Mastodon in the Terminal and a Voxel Engine
Links for the day
Links 14/04/2026: Against US Monopolies in UK, Legal Action Against Twitter
Links for the day
The Series About SLAPPs Funded by Third Parties: All Parts Thus Far
index for today
SLAPP Censorship - Part 46 Out of 200: Alex Graveley's Attorney Rick Cofer Did Not Deny That Graveley Had Strangled Women; He Did, However, Pay Local Officials
some background about SLAPPs that began in 2021 very shortly after I wrote about corruption at Microsoft GitHub
The EPO's Attitude Towards Women and Media Silence on EPO Unrest
There's media blackout about very critical matters
Gemini Links 14/04/2026: Greed Versus Stability; Board and Card Games
Links for the day
Links 14/04/2026: Cheeto Loses Defamation Lawsuit Against the Media, "France Takes Its 129 Tonnes of Gold Uut of New York"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, April 13, 2026
IRC logs for Monday, April 13, 2026
IBM Agrees With Microsoft That Slop is Just for "Entertainment" and "at Your Own Risk"
So what can IBM sell now?
Microsoft Windows "Market Share" in USA Down to 40% According to Government Sites or 31% Overall
The world is changing, so do Americans
SLAPP Censorship - Part 45 Out of 200: Garrett and Graveley Cases Inherently the Same, Their Legal Team Can Barely Even Distinguish (Full Timeline)
"million-dollar men"
Gemini Links 13/04/2026: Pronouns for an LLM, Fakecoins Promotion Piggybacking Iran, "Your Face is Now a Search Query"
Links for the day
Links 13/04/2026: Higher Costs Hurt Both Rich and Poor Country, a "Landslide Win to Oust Orban"
Links for the day
Tens of Thousands of Days of Strike at Europe's Second-Largest Institution, Nobody in the Media Has Mentioned It
Since the "extraordinary general meeting"
SPAM That Mentions "AI" 16 Times (in "Security" Clothing, But Selling Back Doors), a Paid Placement in The Register MS
This will doom the reputation of the publication, The Register MS
At Least 23 Days of EPO Strikes
Why does the media not deem this newsworthy?
Links 13/04/2026: Impersonating ProPublica Reporter, More Attacks on the Press (Occupation With Little and No Compensation, Only High Risk)
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 12, 2026
IRC logs for Sunday, April 12, 2026
Gemini Links 13/04/2026: Freiburg, GUIX, and Announcing Satellite Antenna (SA)
Links for the day
Links 12/04/2026: Climate, Conflict, and Change in Hungaristan
Links for the day
Gemini Links 12/04/2026: Passports, Science, and Lateral Thinking with Withered Technology
Links for the day
The Energy Crisis Will Likely Carry on and Kill the Slop Industry
To the slop charlatans, "this is the end, my friend..."
SLAPP Censorship - Part 44 Out of 200: Garrett and Graveley 'Copypasta' Sunday (Copy-Paste, Add One Word, Change 'T' to 't')
recycling text
EPO on Strike This Past Friday (All Major Sites), Massive Strike Continues Tomorrow
strikes have trebled, not trembled, compared to last month (in Munich)
Links 12/04/2026: SLAPPs Against Thai Journalists Who Expose High-Level Corruption, Maharlika (Philippines/Marcos) Threatens to Lawyer Up Against GAFAM to Demand Censorship of Critics
Links for the day
Racism and IBM
at IBM and Red Hat people who are hard-working and proficient are now being fired based on their ethnicity and nationality (or either)
When Cruelty is the Point (American SLAPPs in London, the United Kingdom, Europe)
Consider the following
Resistance to SLAPPs in the UK: Coalition Growing
thankfully awareness of SLAPPs in the UK is improving
Links 12/04/2026: Mass Rebellion Against Slop, UK Crackdown on Nudification by Slop
Links for the day
Gemini Links 12/04/2026: "Objective Truth" and Flutter
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, April 11, 2026
IRC logs for Saturday, April 11, 2026
Red Hat: We Kill People, But Please Obey the CoC or We'll Banish You
From Red Hat's own site