Bonum Certa Men Certa

Misleading (or Partial) Information About PTAB, CAFC, Software Patents, and Patent Trolls in EDTX

Law firms are not being frank about the reality of inter partes reviews (IPRs), low success rates of software patents, and biases of courts in East Texas

Robert Kardashian
Robert Kardashian of the Simpson murder case



Summary: New articles about the Patent Trial and Appeal Board (PTAB), the Court of Appeals for the Federal Circuit (CAFC), and the Eastern District of Texas (EDTX) which neglect to show the full picture, typically for promotional (marketing) purposes

THERE are many sayings about lawyers. Among them:





There are many more. The main point, however, is that whatever lawyers say should be taken with a grain of salt because lawyers work for lawyers (themselves) and sometimes they need to also give a sufficiently compelling impression that they work for clients.

"The main point, however, is that whatever lawyers say should be taken with a grain of salt because lawyers work for lawyers (themselves) and sometimes they need to also give a sufficiently compelling impression that they work for clients."In the domain of patents, our view of lawyers was largely shaped by what we had read from them. When they don't manage to embed themselves in articles from actual journalists they write nonsense in their own sites (or "blogs"), sometimes even in journals that target other lawyers and give tips, otherwise simply preach to the choir. There is an utter lack of honest, independent journalism about patent law, as we habitually point out.

Unified Patents, not to be mistaken for Unified Patent Court (UPC), has just taken on some trolls by challenging their patents, i.e. the only things that they have. We covered that earlier this year and patent maximalists now say that Unified Patents filed as many as 64 petitions against patents. The piece, from a law firm, is basically shameless self promotion, but in it there are some interesting numbers:

Petitioner Unified Patents, LLC filed an IPR petition challenging 29 claims of US Pat. No. 8,640,183 owned by Convergent Media Solutions, LLC. Unified’s numerous inter partes review (“IPR”) petitions rarely reach a final written decision, but here the Board issued such a decision and invalidated all of the remaining challenged claims. Unified Patents, LLC. v. Convergent Media Solutions, LLC, IPR2016-00047, Paper 23 (P.T.A.B. March 29, 2017).

[...]

To date, Unified has filed 64 IPR petitions, many of which are still pending or settled before a final decision. Unified typically challenges software and electrical patents, which have an aggregate institution rate of 71% (1931/2724). Unified’s institution rate is much lower at 49% (19/39). Even more notable is the fact that only 8.5% (4/47) of Unified’s completed, no longer pending, IPRs have reached a final written decision. This is much lower than the aggregate rate of 34% (1474/4345) for all patent IPRs.


What they are trying to say is, come to us, we'll protect your patents from challenges. Sadly for them, however, petitions (IPRs) come from many more directions than Unified Patents and these are typically successful (patent/s invalidated).

"Unified Patents, not to be mistaken for Unified Patent Court (UPC), has just taken on some trolls by challenging their patents, i.e. the only things that they have."Another law firm, Pearl Cohen Zedek Latzer Baratz LLP, has just published this piece that promotes the perception software patents have become more potent. Caleb Pollack and Kyle Auteri from this firm use their cherry-picking skills to paint a misleading picture. As one who has been following it closely, this is nonsensical cherry-picking of very old CAFC cases (as old as a year ago and most recent half a year ago). Here is the core argument:

While this is only one panel of three judges out of over 115 judges participating in ex-parte appeals at the PTAB, and it is unclear if the PTAB is more inclined towards finding claims are patent eligible than examiners, it is clear that the chances of overcoming software related rejections have improved since the Federal Circuit decisions in Enfish, Bascom, and McRO, decided in May 12, 2016, June 27, 2016, and September 13, 2016, respectively.


If these law firms were more honest, they would acknowledge that never before, at least in recent decades, were patents on software so hard to defend in court (never mind lenient examination at USPTO).

"Some of the worst (meritless) patent cases go to East Texas and still, in spite of the low quality of patents, the judges rule for the plaintiff, even when the plaintiff makes nothing at all."Last but not least, here is a new article about the likely fate of East Texas as 'litigation central' or 'rocket docket'. Earlier this week and last week we wrote a great deal about it, but here is more:

On paper, Kraft v. TC Heartland is not a very exciting case. It’s a lawsuit involving artificial sweeteners and the plastic containers they come in. It’s not the kind of case one would expect to make it all the way to the US Supreme Court and have sweeping implications for the future of the US technology industry. But let’s back up.

Kraft makes a product called MiO, a liquid artificial sweetener it calls a “Liquid Water Enhancer.” TC Heartland, a limited-liability company based in Indiana, makes a similar product: the “Refreshe Fruit Punch Drink Enhancer.” Kraft sued TC Heartland in 2014, saying it infringed upon three patents related to the containers the products come in.

[...]

Clearly, the idea here is that patent trolls have some sort of advantage in East Texas. But what is it? Do juries in this court tend to lean toward the plaintiffs? That was a question Justice Anthony Kennedy put to Kraft’s lawyer, William Jay, during the arguments last Monday. He asked whether “generous jury verdicts enter into this, or is that something we shouldn’t think about?”


The courts and the district actually advertise this bias. Is this not any more obvious? Some of the worst (meritless) patent cases go to East Texas and still, in spite of the low quality of patents, the judges rule for the plaintiff, even when the plaintiff makes nothing at all.

Recent Techrights' Posts

SLAPP Censorship - Part 32 Out of 200: Garrett Made Spurious Requests (Later Withdrawn) the Same Week Someone He Later Spoke to by E-mail Sent Threats to Our Webhost
The "plot thickens" because there's a multi-party tag-team act, as confirmed by Garrett after he had sworn on the Bible
GNU/Linux Measured at All-Time High in Sweden
Can 'influencers' have played a role
 
SLAPP Censorship - Part 33 Out of 200: Garrett Sued by My Wife and I, Then His Microsoft Acquaintance Files Another Lawsuit and Our Webhost Receives Legal Threats Too
Today we also show how our solicitor Mark Lewis responded to it
Good Friday, Leaving IBM for Good
Even on holidays
Links 03/04/2026: Rejection of More Software Patents and Social Control Media in Several Continents
Links for the day
Malware in Proprietary Software - Latest Additions by Rob Musial
Original published yesterday in gnu.org
Visual Evidence/Documentation of IBM Dying Like the Dinosaurs
IBM has many of these giant white elephants lying around, with some getting demolished
Links 03/04/2026: USPTO’s Latest Greenwashing and Internet Blackouts Impact Journalists in War Zones
Links for the day
IBM is a Dying Company, Nowadays It Kills Red Hat With Slop
when your last day is a national holiday in IBM's country
"Independence Drives" and Community-Run Sites
Independence in reporting is a much-valued trait
When Charlatans Are Only Good at Losing Money and Storytelling (e.g. About Investment in Them)
Wait till a a barrel of oil costs $300
What Apple Fans Are Missing
Apple is a bad company
The "Pale Blue Dot" Moment Had Returned
To many people, the "bitter-sweet" observation of how small we are
Saudi Arabia Does Not Rely Much on Microsoft/Windows
Putting aside politics, this is good for Free software
Almost 12 Years of Exposing Corruption in Europe's Second-Largest Institution
The "unready" President is now an abandoned President
Easter Moon Mission and Its Reminder of IBM's Demise
A lot of NASA operations now rely on GNU/Linux
When Power is Scarce and GNU/Linux Has Power
In Cuba, GNU/Linux has long enjoyed high adoption rates
Don't Totally Dismiss the 'Survivalists'
'Survivalists' or similar terms are used to describe a particular mindset of people who prepare for some really awful scenarios
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 02, 2026
IRC logs for Thursday, April 02, 2026
A Much Better Use of Fuel Than Slop
Something positive for a change
Hoping for Peace
There are still many things to be enjoyed, including nature and kind people
Gemini Links 03/04/2026: "Slide Rule Triple Multiplication" and End of "Picture Pages"
Links for the day
Rumours of Microsoft Layoffs This Season
Just how much trouble is Microsoft in at this point?
SLAPP Censorship - Part 31 Out of 200: Speaking About 20+ Years of Alleged Harassment/Defamation and High-Profile 'Targets' of Garrett
attempts were made to settle (in effect end the case) by the person who started the case almost half a dozen times along the way
In Asia, Windows is in Its Teens (Below 20%)
On a global scale, Windows is down to about 26%
GNU/Linux Becoming More Universal
It seems likely the end of Vista 10 coinciding with a sharp rise in memory prices (and now energy prices) will benefit GNU/Linux and therefore give us more to write about
Low Morale at IBM and Perception of Destructive Management
IBM is going nowhere, fast
Gemini Links 02/04/2026: Super Mario Galaxy Movie and New Antenna Instance
Links for the day
It Seems Like Google News Cracked Down on (Omitted, Delisted) a Lot of Slopfarms
There's no justification/point in spending so much energy just to plagiarise things poorly
Can Economies Like the American One Hang On?
The coming weeks will be "interesting" unless wars end
Steam Survey for Last Month Says 5.33% Use GNU/Linux
big leap for GNU/Linux
Links 02/04/2026: Science News, Energy Scarcity, Oil Sold in Yuan
Links for the day
Links 02/04/2026: Apple Turns 50, Efforts To Ban VPNs
Links for the day
Gemini Links 02/04/2026: Kubernetes With FreeBSD, OFFLFIRSOCH, and Great Circle Distance
Links for the day
Dr. Andy Farnell on Microsoft Silencing or Deplatforming Opposition in the UK and Elsewhere
Microsoft as a king or a kind of "religion" one cannot question
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 01, 2026
IRC logs for Wednesday, April 01, 2026
SLAPP Censorship - Part 30 Out of 200: The Time We Reported Abuse to Greater Manchester Police (GMP) and It Was Escalated to Its Cybercrime Unit
he started trolling and harassing me for criticising his employers' monopolistic and users-hostile agenda
'Modern' Cars Not a Rosy Industry
The current "modern" cars already have a shelf life similar to that of many toothpastes
Wrongthink Detector and Filter in "Think About the Children" Clothing
It is not about "age verification", it's a Trojan horse for social control
IBM Facilities Now Deemed Legitimate (Military) Target, Along With GAFAM Bases
Does IBM have any defences in place to protect against "downtime by explosions"?
What Happens When Some Large News Sites Turn to Slop and Spew Out Nonsense
LLM slop makes such grotesque mistakes abundant
Hardly Seeing Slopfarms Today, Even in Google News
Google's adventures with slop increased its debt significantly
Links 01/04/2026: Quantum Hype (Turing and Google), "US Fuel Prices Surge Past $4 a Gallon"
Links for the day
Gemini Links 01/04/2026: "Sacred Week of Cycling" and Zenity for Scripts
Links for the day
Losing Debian: Sruthi Chandran election flop
Reprinted with permission from Daniel Pocock
French judgment: parasitisme by FSFE & Matthias Kirschner (CO23.002709)
Reprinted with permission from Daniel Pocock
Microsoft Uses April Fools to 'Joke' About Inserting "Age Verification" (Surveillance) Into Linux
MinceR says the "lkml [message/page] one is April Fools or at least they're trying to pass it off as April Fools [however] the [GitHub] one was archived on the 8th and yesterday, so that probably isn't..."
IBM "Headcount Reductions" by Early Retirement and Death
The tragedy at IBM started 33 years ago on the first of April
Red Hat: Latin-1 character set under threat from Bishop Michael Martin, North Carolina
Reprinted with permission from Daniel Pocock
Links 01/04/2026: Microsoft GitHub Now Pushing Ads Into People's Code/Commits, Earth Overshoot Day Draws Nearer
Links for the day
What IBM and EPO Workers Have in Common: European Media Not Covering Very Major News (Press Became Dysfunctional)
Are IBM operatives working to scuttle the process of investigative journalism?
Free Speech in the United Kingdom When "Chilling Effect" is Increasingly Prevalent
If politicians cannot even use a term like "parasitic behaviour", then where do we as a society end up?
Oracle Lays Off Because of Debt and Commercial Issues, Not Slop
Like Scam Altman, Larry Ellison hangs around Cheeto King because he could use some bailouts in the form of government contracts or phony money with an incredible name like "Stargate"
The Real Reason Many Sites and Forums Shun Microsoft Lunduke
When forums say that they banned Microsoft Lunduke or don't want him mentioned it's probably because they are familiar with the "stench" that follows him around
Gemini Links 01/04/2026: Hallucinations, Stitching, and Type Systems
Links for the day
Lots of Layoffs at IBM, "Media Blackout" About Mass Layoffs at IBM's HashiCorp and Confluent Last Month
IBM is a dying company circling down the drain while manipulating or paying the media to pretend everything is fine
Microsoft Under Investigation by the UK's Competition and Markets Authority (CMA) for Abusive Tactics
What's noteworthy is that this is "set to begin in May"
Sounds Like Red Hat (IBM) Layoffs in Slop Clothing
This is an IBM policy. They try to justify staff cuts.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, March 31, 2026
IRC logs for Tuesday, March 31, 2026