Bonum Certa Men Certa

Dennis Crouch, Joined by Gene Quinn (Watchtroll), Still Attacking PTAB to Protect Patent Trolls and Software Patents

One among very many Watchtroll 'articles' (attack pieces) that may have led to Michelle Lee's resignation

Watchtroll on USPTO



Summary: The attacks on the Patent Trial and Appeal Board (PTAB) and those who enable PTAB have not ended; instead, these attacks have intensified again because the Supreme Court will weigh in soon

THERE are two actions against the PTAB right now. We last wrote about that yesterday. One is at a legislative level, namely the anti-PTAB STRONGER Patent Act of 2017 (by "stronger" it actually means weaker and lower-quality patents). The other one is a US Supreme Court (SCOTUS) case, in which the anti-PTAB blog Patently-O can't help meddling. In most days of August it attacked PTAB (almost every single day), writing little more than/besides that.



"In most days of August it attacked PTAB (almost every single day), writing little more than/besides that."As a reminder to non-regular readers (or occasional watchers of patent matters), SCOTUS almost always rules to improve patents, i.e. to improve patent quality rather than 'dilute' the whole lot with lousy patents. SCOTUS overturned CAFC about half a dozen consecutive times. Another case had been decided by SCOTUS (years ago, not just now). It was not about software (even by a long shot), but patents as judged by SCOTUS in this case (misuse for protectionism) resulted in punishment in the form of legal bills for the plaintiff:

A federal appeals court has upheld a decision mandating that Icon Health and Fitness pay $1.6 million in attorney's fees for filing an unwarranted patent lawsuit against a competitor.

Icon sued Octane Fitness in 2009, saying that Octane's high-end elliptical machines infringed US Patent No. 6,019,710, which describes an elliptical machine that allows for adjustments to accommodate individual strides. After two years of litigation, a district court judge found that Octane's machines didn't infringe. Octane asked for an award of legal fees, but in 2011, a judge rejected the company's bid. That decision was upheld on appeal.

[...]

But the fact is that it was nearly impossible to win fees in a patent case in 2011. However, Octane didn't take its loss sitting down. The company appealed to the Supreme Court, which heard oral arguments on the case in 2014.

In a 9-0 vote, the court issued an opinion (PDF) making it much easier to get attorney's fees. Justice Sonia Sotomayor wrote the opinion, holding that patent laws call for awarding fees in an "exceptional" case, which is "simply one that stands out from others with respect to the substantive strength of a party's litigating position... or the unreasonable manner in which the case was litigated."


It's cases like these which discourage patent lawsuits. Suffice to say, the litigation 'industry' isn't happy about it. Not only does it attack Alice (SCOTUS) but also PTAB (which enforces or applies Alice-inspired tests). Regarding PTAB, yesterday came out this article from Above The Law, speaking about a case that would likely get "tossed out within six months on an Alice motion" (Section 101).

Here is a portion about the relevance to PTAB:

Today? That same case would likely have been tossed out within six months on an Alice motion, or perhaps would have quickly settled after the inevitable IPR institution by the PTAB. Furthermore, the plaintiff would have likely had to contend with potential IPR filings by a host of third-parties, including from potential future targets interested in nipping a potential threat in a proverbial bud.

[...]

Want to minimize the risk? Assert more patents. (It is no surprise that one of the recommendations offered to anxious branded pharmaceutical companies — worried about increased susceptibility to generic companies filing IPR’s — was for them to file more patents on their drugs.) Prospective patent plaintiffs know that the most sure-fire (but not foolproof) way to avoid seeing their enforcement campaigns wither under an IPR onslaught is to assert as many patents as possible.


"IPR" is just legalese (i.e. confusing, non-English term) to mean petition. This is what really scares the litigation 'industry' because it can thwart litigation early on in the process whilst also dampening any incentive to sue in the first place.

"Why do these people so stubbornly resist patent quality?"This is why patent maximalists such as Dennis Crouch and Gene Quinn (Watchtroll) are trying to scandalise PTAB. Shame on Crouch for doing this on academic payroll, unlike Quinn who has always been a rude blowhard. Crouch now promotes Watchtroll links like this one from a week ago. These are serious attacks on PTAB and on the USPTO -- reminiscent of their online and offline bullying of Michelle Lee. This sort of mob mentality does a great disservice to the US patent system, but they don't care. All they want is lots and lots of patents and especially a surge in lawsuits (mostly trolls).

Another patent maximalist wrote yesterday that "ancient (1997) patent filing on net advertising gets killed under ۤ101, u know, to protect Google kids' monopoly: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2015003916-08-24-201"

"PTAB does not "kill" anything, it just belatedly assesses software patents to find errors made by the USPTO," I told him.

"So to claim that PTAB just blindly eliminates patents is simply untrue. But that's the sort of myth constantly being promoted by the above maximalists (all of them)."Why do these people so stubbornly resist patent quality?

Matthew Bultman, writing for Law 360 yesterday, picked out one of the rare cases where PTAB did, for a change, tolerate a software patent. To quote:

Xactware Solutions Inc. has failed to show a patent related to aerial rooftop measurement software is invalid, the Patent Trial and Appeal Board said Monday, in another disappointing decision for the New Jersey company in its effort to take down patents it’s accused of infringing.


So to claim that PTAB just blindly eliminates patents is simply untrue. But that's the sort of myth constantly being promoted by the above maximalists (all of them). Watch what Crouch is now doing with a new multi-part series; it's that tactic of using self-fulfilling prophecy-type predictions. Yet more lobbying by Crouch, as if PTAB is already dead:

An easy practical answer is that Oil States would effectively overrule those administrative decisions and thus removes any preclusive impact of an IPR cancellation. That approach runs into significant problems when a court has already relied upon an IPR cancellation to issued a final judgment (with appeals exhausted). Our federal courts strongly favor finality of judgments and are wont to revisit those judgments even when later evidence suggests that the judgment was based upon faulty information.


We are going to watch closely this sort of lobbying for the interests of trolls. They try to undo years if not almost a decade of progress. Without resistance they might even pull this off.

Recent Techrights' Posts

Removing the Tumour From IRC
looking back
Windows Sinking Below 13% Market Share in the Island of Jamaica
Microsoft's decline continues and will mostly likely continue indefinitely in Jamaica and its neighbours
Women in Free Software (FOSS) Need Action, Not Mere Words
the men who are loudest about women's rights are some of the very worst offenders
Embrace, Extend, Extinguish Minecraft
These folks should check out Minetest
Techrights Statement on Men Who Viciously Attack Women in Free Software
history shows women will win
 
Gemini Links 16/06/2024: Hand Held Maneuvering Unit and Hugo Static Files
Links for the day
[Meme] The Free(dom) Software Engineer in European Elections
“When the debate is lost, slander becomes the tool of the loser.”
Vista 11 Was 'Leaked' Exactly 3 Years Ago and This One Picture Says It All
how 'well' Vista 11 has done
A Smokescreen for Brad Smith
Maybe the key point was to say "Linux is not secure either" or "Windows and Linux are equally vulnerable", so don't bother dumping Microsoft
Links 15/06/2024: Microsoft's Intellectual Ventures Attacks Kubernetes With Software Patents, More Layoff Waves
Links for the day
Gemini Links 15/06/2024: On Lagrange and on YouTube Getting Worse
Links for the day
Edward Brocklesby: hacker received advance notice of zero-day vulnerabilities in MH and NMH email software
Reprinted with permission from Daniel Pocock
[Meme] Code Liberates Kids
Matthias Kirschner: I can't code, but I can write a book
In Armenia, Bing is Measured at 0.6%, About Ten Times Less Than Yandex
Bing will probably get mothballed in the coming years
[Meme] A Pack and Pact (Collusion Against Computer Users)
They never really cared about users, no more than drug dealers care about drug users...
GNU/Linux in Azerbaijan: From ~0.1% to 7%
Azerbaijan is around the same size as Portugal
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 14, 2024
IRC logs for Friday, June 14, 2024
[Meme] People Who Cannot Find Gainful Employment Because of Their Poor Behaviour Online (Not the People Who Merely Call Them Out on It)
Imagine trying to become a lecturer while talking like this in public
You Too Would Get Nervous
countries where Windows is down to 2%
[Meme] The Two Phases (and Faces) of Microsofters
Microsofters: stalk IRC, then troll IRC
The 'Nobody Reads Techrights Anyway' Crowd
Send In the Clowns
Books in the Making
I intend to spend a considerable amount of time explaining what my family and I were subjected to for the 'crime' of promoting/covering Free software
Microsoft is Still Losing Malta
And GNU/Linux is doing well on laptops and desktops
Tux Machines: Third Party Impending
There will be more next week
Links 14/06/2024: Microsoft Layoffs in the News Again, East-West Conflict/Tensions Update
Links for the day
Links 14/06/2024: Comments on the Death of Email and Lagrange Commentary
Links for the day
Dutch Government Appoints Microsofters to Combat "OSS Fetishism"
What corruption looks like
Microsoft's Collapse in Africa and Shutdown of Entire 'Development Centre'
Unlike what Microsoft claimed in face-saving statements
[Meme] Not Your Typical IRC Troll and Harasser
I say, let's punch nazis...
GNU/Linux's Journey in Qatar: From 0.1% to Over 3%
Windows is no longer an important contender there
Secret Contracts and Corpses
The media pretends it's just some generic "IT" issue, but it is not
Bing Has Run Out of Time and Microsoft Might Dismantle It (Save a Financial Miracle)
How much more of investors' money is Microsoft willing to throw in the trash?
Statement on Antisemitism in Our IRC Network and in Social Control Media
In an ideal world nobody would have to be banned from IRC
Gemini Links 14/06/2024: Ads vs. Content, Why Aliases Are Har
Links for the day
Vista 11 Has Fallen in Switzerland, a Country That is More Microsoft Friendly Than Most of Europe
GNU/Linux rose to its highest level there in almost half a decade
Microsoft is Dying in Africa
Based on the Central African Republic, which "is around the same size as France"
[Meme] Microsoft in Africa
Are you telling me Windows is now down to 1% 'market share' in some countries?
Management of the European Patent Office Misleads Staff on Views of the Office's Staff Committee
The EPO as a workplace very rapidly deteriorates
[Meme] Newer is Worse
"They say those are New Ways of Working (NWoW); New does not mean better, it is worse"
Microsoft Needs to be Banned From Contracts, Including Government Contracts, Not Just for Security Failings But for Criminal Negligence, Corruption, and Fatal Cover-ups
How many deaths will it take for Microsoft to face real, effective scrutiny rather than kid gloves treatment?
Links 14/06/2024: Violence, Famines, and Montana Has More Cows Than People
Links for the day
Microsoft Telecom Layoffs, Facebook Layoffs in Africa: A Month After Microsoft's Mass Layoffs in Lagos (Nigeria) Facebook/Meta Does the Same and Microsoft is Now Retreating and Quitting an Entire Sector! (Affirmed Networks and Metaswitch)
Disasters in the making for GAFAM. Money down the drain.
Papua New Guinea: GNU/Linux Growing, Windows Down Below 15%
it seems indisputable there's headway and momentum
"Planets" Cannot Replace Social Control Media, They're Very Much Akin to It (Censorship Hubs, Gatekeepers)
Don't be subjected to gaslighting; make your own OPML file
Topics That Truly Irritate and Consistently Infuriate the Microsofters (Whenever We Cover These)
Censoring uncomfortable information is a difficult activity that has its limits, even in Reddit
Honduras: Vista 11 Down, GNU/Linux Up
Valve sees GNU/Linux as bigger than Apple's MacOS
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 13, 2024
IRC logs for Thursday, June 13, 2024
LibrePlanet 2024 and the Lost Video/Audio of Talks
After the event was over someone informed us that due to technical issues they had lost (or failed to acquire) recordings of the talks
Choosing Between Options to Outsource to Evades the Best Solution (Self-Hosting)
Most users don't need this sort of complexity
IBM Layoffs at Kyndryl
This can soon spill over to Red Hat
Turkmenistan: GNU/Linux Leaps Past 5% This Month?
This is how statCounter sees it
Watch This Space
what matters most is not the volume or quantity of publications but their underlying depth and quality