Bonum Certa Men Certa

PTAB Inter Partes Reviews (“IPRs”) Are Essential in an Age When One Can Get Sued for Merely Mocking a Patent

Reexaminations (akin to but not identical to IPRs) can help weed out "stupid patents" like the one below

US patent 6368227 B1
USPTO patent 'quality' (US 6368227 B1)



Summary: The battle over the right to criticise particular patents has gotten very real and the Electronic Frontier Foundation (EFF) fought it until the end; this is why we need granted patents to be criticised upon petitions too (and often invalidated as a result)

THE USPTO, prior to some recent reforms, had been granting a lot of dubious patents on software -- patents which were later invalidated by PTAB, the appeal board which is half a decade old (US patents typically last two decades).



“GEMSA wrote to EFF accusing us of “false and malicious slander.” It subsequently filed a lawsuit and obtained an injunction from a South Australia court purporting to require EFF to censor itself.”
      --EFF
We are very gratified to see PTAB's growth and the crackdown on software patents. Earlier today I saw this press release about a new software patent on brain segmentation (my field of research). Do examiners seriously think that computer vision is anything but software and reducible to mathematics? Did words like "brain" and fancy jargon like "dynamic atlas" make them think that this is not an algorithm? This is where PTAB comes handy and such "stupid patents" (as the EFF calls them) get invalidated as though they were never granted.

Yesterday we saw this press release about Axon potentially losing its patent lawsuit (patent aggression against a practising rival [1, 2) after intervention by PTAB. To quote: "The U.S. Patent Office previously had rejected Axon’s attempts to invalidate Digital’s Patent No. 9,253,452 (the “’452 Patent”) through two separate petitions for inter partes review (“IPR”). This was Axon’s final attempt to invalidate the ‘452 Patent before the Patent Office. Despite its loss before the Patent Office, Axon desperately sought to convince the Court to maintain the stay of the litigation to avoid answering to Digital and a jury for its willful infringement of Digital’s ‘452 Patent. On Friday, November 17, 2017, the Court rejected Axon’s request and lifted the stay of the litigation. In ruling on the motion regarding the stay, the Court found that the evidence submitted by Digital “weigh heavily against continuing the stay of the ‘452 patent” and that “the Court denies Defendant’s [Axon’s] request to continue the stay of this case with respect to the ‘452 patent.” The Court has set a hearing for December 14, 2017, to discuss a schedule for moving the case forward to trial."

“We declined and filed a suit in the U.S. District Court for the Northern District of California seeking a declaration that EFF’s post is protected speech.”
      --EFF
This is not about software, but still, it's interesting to see if PTAB can defuse and disarm the aggressor. It's no secret that many of the millions of US patents (a total which exceeds 10 million) are of questionable quality, especially those that have not yet expired (because the patent bar was lowered).

PTAB is very scary to patent trolls and other aggressors, whose apologist Dennis Crouch tries hard to help. This week, as usual, he travels almost 150 years back in time to scrape something which looks like an argument against PTAB. As a reminder, Crouch spent a great deal of time trying to discredit and/or slow down PTAB (his PTAB-bashing posts were almost a daily occurrence some months back) ahead of a Supreme Court's decision on it. Shortly before this, Crouch wrote about these ridiculous design patents that we mentioned a month ago and said:

I previously wrote about Columbia Sportswear design patent verdict and damages award against Serius. The patent – D657,093 – covers a wavy-pattern as part of a heat reflective material. Post trial, the court has now issued an emergency Temporary Restraining Order (TRO) enjoining Serious from initiating a reexamination of the design patent — finding that the reexamination could improperly “avoid the jury’s verdict in this case.”


Just look at that design. It's outrageous that a patent would be granted on that and any sane reexamination would immediately invalidate the patent.

Zach Snyder patent



"Just look at that design. It's outrageous that a patent would be granted on that and any sane reexamination would immediately invalidate the patent."The worrying thing is, if one is big and wealthy enough (like the EFF) and decides to criticise ridiculous patents, there's a risk of getting sued. It happened several times to the EFF and, as we've covered before, the EFF eventually won the case (albeit at a great expense, namely legal fees). To quote TechDirt, which is itself subjected to a SLAPP lawsuit: "GEMSA, perhaps not surprisingly, declined to show up in the California court, leading EFF to move for default. A magistrate judge initially recommended against this, arguing that the court did not have personal jurisdiction over GEMSA. EFF asked the court to try again, and in a extraordinarily detailed and careful ruling, Judge Jon Tigar rejects the magistrate's recommendation and gives EFF the default judgment it sought. We've complained in the past that often the problem with default judgments is that courts are only too willing to just grant them if one party declines to show up for the case. This is not one of those situations. Tigar goes out of his way to explore pretty much every possible argument that GEMSA might have for why the court shouldn't have jurisdiction, for why the SPEECH Act should not apply and for why EFF's post may have been defamatory. And one by one by one, he points out why GEMSA is wrong and EFF is right. I won't repeat all the reasoning here, in part because there are so many different elements, though it's a fun and quick read in the filing."

The EFF has just written about it as well: "A federal judge has ruled that EFF need not obey an Australian injunction ordering EFF to take down a “Stupid Patent of the Month” blog post and never speak of the patent owner’s intellectual property again.

"It should be OK to criticise patents that should not have been granted, but in a country as litigious as this (the US is notorious for litigiousness) the above legal action can cause "chilling effect"; it would lead organisations such as the EFF to fear of "slander" (defamation/libel) lawsuit when stating the simple truth.""It all started when Global Equity Management (SA) Pty Ltd (GEMSA)’s patent was featured as the June 2016 entry in our Stupid Patent of the Month blog series. GEMSA wrote to EFF accusing us of “false and malicious slander.” It subsequently filed a lawsuit and obtained an injunction from a South Australia court purporting to require EFF to censor itself. We declined and filed a suit in the U.S. District Court for the Northern District of California seeking a declaration that EFF’s post is protected speech."

It should be OK to criticise patents that should not have been granted, but in a country as litigious as this (the US is notorious for litigiousness) the above legal action can cause "chilling effect"; it would lead organisations such as the EFF to fear of "slander" (defamation/libel) lawsuit when stating the simple truth.

Recent Techrights' Posts

The "Alicante Mafia" - Part VII - The Industrial Actions Began Yesterday, Here's Why
The "Alicante Mafia" might not last much longer
openai.com Traffic Said to Have Fallen 50% in the Past Three Months, Reports Say It Nearly Ran Out of Money to Borrow
After the slop frenzy all we'll have left is environmental destruction
Rudeness and Vulgarity Won't Stop Journalism About Free Software
we seem to be on the right path
IBM Plans for Layoffs Becoming Clearer With "Employee Reviews"
Of course this impacts Red Hat as well
 
Yesterday Afternoon The Register MS Published Paid Microsoft SPAM Disguised as an Article About "AI PCs"
The Register MS cannot help itself, can it? [...] Follow the money.
Microsoft's XBox is in Effect Dead Already, Now It's a Streaming and Advertising Platform
Expect many layoffs soon
Richard Stallman's Talk at Georgia Tech is Just 2 Days Away
We're still curious to see how malicious people (or trolls) in social control media will try to slant his talk as "bad"
EPO's Web Site Misused for Propaganda About Illegal Kangaroo Courts to Distract From EPO Scandals and Judicial Crisis in Europe
UPC is illegal and unconstitutional
Gemini Links 21/01/2026: Edible Circuits and "Sayonara HTTP"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, January 20, 2026
IRC logs for Tuesday, January 20, 2026
IBM Hides Its Own Destruction (and Red Hat's)
It's like scenes out of '1984', which is what a now-famous advertisement from Apple compared IBM to
LLM Slop Not Dead Yet, Examples of Slop About "Linux"
We wish to see the totals down to zero
Links 20/01/2026: Cheeto Blackmails France Into 'Peace' While Looking to Annex EU, Mass Layoffs in Capgemini (Microsoft Reseller/Promoter) in France
Links for the day
Gemini Links 20/01/2026: Boxing and "Inbox Zero" Success
Links for the day
Windows and Slop Declining While Microsoft Silences Critics
Microsoft tries to suppress facts while faking 'demand' by imposing slop on everybody, everywhere
IBM Kills OzLabs, Signalling An Attack on Free Software (a Sign for Red Hat)
ibiblio also appears to have died (or experiences critical issues)
Red Hat Vice President Leaving After Nearly Two Decades
IBM's culture of secrecy is not compatible with Free software
Links 20/01/2026: "ChatGPT Health" (Latest Distraction From Being Insolvent) Flops and Raises Concerns, "The U.S. Military Faces a Reckoning on Greenland"
Links for the day
Readers Pleased With Layout Changes
Two days ago we began improving clarity and accessibility in the site
IBM is Outsourcing Red Hat's Fedora to Slop to 'Save Money'
If IBM cared about quality rather than alleged "cost savings" (cutting corners), it would assign more IBM staff to Fedora, but instead the exact opposite happened, with the likes of Cotton and Miller removed from the project
European Patent Office (EPO) Industrial Actions Formally Start in Two Hours
As per the latest (revised) action plan, today workers will slow down their work and limit patent grants
Microsoft Under Fresh Investigation by the Italian Competition Authority
In 2025 we kept a running tally of 30,000+ Microsoft layoffs, so 40k this year would not be unthinkable
The "Alicante Mafia" - Part VI - More Strikes Planned at the EPO, Starting This Month
Yesterday we said that friends of Berenguer or inside Berenguer's circle may have left
Gemini Links 20/01/2026: New Tea, Using a Roku at a Hotel, and "Voltage-Based Power Management for Any Raspberry Pi"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, January 19, 2026
IRC logs for Monday, January 19, 2026
If You Don't Want "Linux" to Become "Windows", Then Follow GNU
GAFAM isn't a friend of Linux; it's only a user in the same sense clients are "users" of a brothel
Links 19/01/2026: National Broadcasters on World or Local Affairs Up to a Week Ago
Links for the day
Gemini Links 19/01/2026: Game Boy and "The Lounge" (IRC) for the Elderly
Links for the day
Slopfarms in Google News (at Least Three Today) With Fake 'Articles' About "Linux"
Google itself is trying to promote its own slop ("Overview") at the expense of original and credible sources
Links 19/01/2026: ChatGPT’s Defects and The Guardian on Why So-called "AI Companies Will Fail"
Links for the day
This is What the Slop Bubble Popping Can Look Like
Maybe not an overnight collapse, but getting there gradually
IBM Quiet About Its Plan for Red Hat Amid Accelerated Bluewashing
Something is going on at Red Hat
The "Alicante Mafia" - Part V - It Seems Like Some People Are Already Leaving "The Mafia"
they have a rough idea of what's coming
Microsoft Means War, Microsoft is on the Side of ICE
Microsoft, people-ready
More Confirmatory Rumours Regarding "Massive" Red Hat Layoffs
Ecosystem and sales said to be targeted
Proprietary UNIX is What We'll Have If IBM Red Hat Gets Its Way
IBM Red Hat wants to control everything, even if that means killing everybody
Free Software in Times of Peace (and Times of War, Too)
GAFAM and IBM are war companies
Founder of GNU/Linux (RMS) Speaks in US University (College) This Week
The auditorium has very high capacity and this is his "college comeback" talk in the United States
Office Meetings Are Most Useful to the Least Productive Workers
In my "office life" days I really didn't like meetings
LinuxSecurity and Linuxiac Are Still Slopfarms, Even Anthony Pell Does It
We suppose waiting another month or another year won't change a thing
Claim That the Board of Directors at IBM Isn't Happy With How the Company is Run
IBM tries to project an image of strength to the whole world, especially to its clients
Links 18/01/2026: Legal Trouble for xAI, Climate Concerns, Data Breaches and More
Links for the day
'Vibe Coding', Chatbots, and Other Bots (e.g. "Agents" Disguised as "Superintelligence") Aren't Saving You Time
False marketing, FOMO marketing tactics
Gemini Links 19/01/2026: Analog Cameras and Plucker in 2026, US Losing Acceptability in Europe
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, January 18, 2026
IRC logs for Sunday, January 18, 2026