Bonum Certa Men Certa

PTAB Update: Invalidations Carry on, Patents on Life Tackled, Patent Trolls Worry, and Allergan is in Trouble

Allergan logo



Summary: The Patent Trial and Appeal Board (PTAB) maintains a high pace and good reputation, even in the face of never-ending attacks from the patent microcosm and controversial dodging attempts from the likes of Allergan

THE PTAB-aided USPTO has effectively cut down the number of software patents and sent out the message/signal that such patents are no longer worth pursuing, especially not in courts. PTAB is very popular among technology firms because it helps protect them from lawsuits of trolls and other types of nuisance litigation.



PTAB has become a hot topic very quickly. As one site put it the other day:

A recent Federal Circuit case illustrates perils of trying to show that patent claims are non-obvious by arguing that references would not have been combined. In Bosch Automotive Service Solutions. LLC v. Matal, No. 2015-1928 (Fed. Cir. Dec. 22, 2017) (non-precedential), the court affirmed a Patent Trial and Appeal Board (PTAB) finding of unpatentability, in an Inter Partes Review proceeding, of certain claims of U.S. Patent No. 6,904,796 (and, while not discussed in this post, also vacating the PTAB’s denial of the patent owner’s motion to amend certain claims). The court agreed with the PTAB that there was a sufficient motivation to combine references to achieve a single tool for activating tire sensors where different references taught each of the various functionalities now claimed in a single tool.


This party line is also promoted by proponents of patents on life (yes, on life! A whole site dedicated to that 'cause'). "In the IPR judgment, the Board found one set of Bosch’s proposed claims to be indefinite and one set to be obvious," it said.

PTAB is limiting if not cracking down on patents on life, not just software patents. From its report on the subject:

Petitioner Visionsense Corp. is challenging the '190 patent on four grounds as being anticipated under 35 U.S.C. €§ 102(b) (ground 1) or as obvious under 35 U.S.C. €§ 103(a) (grounds 2, 3, and 4). View the petition here. Administrative Patent Judges Hyun J. Jung (author), Michael L. Woods, and Amanda F. Wieker issued a decision instituting inter partes review of whether claims 1–3 are unpatentable under 35 U.S.C. €§ 103(a) over Little, Flower I, and Flower II; whether claims 1–3 are unpatentable under 35 U.S.C. €§ 103(a) over Flower I, Flower II, and Little or Goldstein; and whether claims 1–3 are unpatentable under 35 U.S.C. €§ 103(a) over Jibu, Flower I, and Little or Goldstein.


More of the usual PTAB bashing at Watchtroll (it's very much routine there) could be seen several days ago. These people are worried. Trolls are worried.

David Pridham, who heads the patent troll Dominion Harbor, joked or dismissed PTAB the other day, claiming that it is "ignoring legal precedent since 2012! What a joke."

This isn't actually true. Then again, truth does not matter to Pridham, who libeled me using kindergarten-level insults. The more these people bash PTAB, the more convinced we should become that PTAB cracks down on the right things. "PTAB can no longer place the burden of establishing the patentability of amended claims on the patent owner," [sic] wrote another site of the patent microcosm a few days ago, alluding to Chief Judge Ruschke with his statements (covered here at the time). They're looking hard for ways around PTAB's scrutiny.

On November 21, 2017, PTAB Chief Judge Ruschke issued a memorandum entitled "Guidance on Motions to Amend in view of Aqua Products." As we reported at the time, the Federal Circuit in Aqua Products determined that the PTAB can no longer place the burden of establishing the patentability of amended claims on the patent owner in IPR proceedings. However, that en banc Court was highly fractured, with five separate opinions joined by differing collections of judges. Therefore, most of the opinion could be described as "cogitations," as Judge O'Malley had put it.


The end of software patents in the US is getting ever more irreversible and real; it's hard to overturn PTAB decisions on the matter, but the PTAB-bashing Anticipat tries to sell its products/services around such prospects. Four days ago it said:

PTAB: Increasingly difficult to overturn abstract idea rejections on appeal



[...]

The latest data from Anticipat show that the effects of #AliceStorm are beginning to stabilize at the PTAB. At a webinar over the summer, we presented data on the reversal rates of abstract idea rejections. Month-to-month, we presented on a highly volatile, but overall low reversal rate for abstract ideas of about 17%. Now with several more months of data, the reversal rate appears to have stabilized around a lower overall reversal rate of 16%. See chart below.


We mentioned this earlier in the month. It's pretty significant when one inverts the numbers as it indicates that the Patent Trial and Appeal Board (PTAB) reaffirms USPTO rejections of abstract patents/applications ~83% of the time.

Anticipat hasn't got much to contribute; it's a waste of one's money. As for other attempts to thwart PTAB? Those too are futile. "Transfer of Allergan’s Patents to the St. Regis Mohawk Tribe," as Watchtroll recalled the other day (it published annual summaries), turns out to be an utter failure. As we pointed out in recent weeks/months, the tribal immunity ploy/scam is falling apart [1, 2, 3] and Allergan itself is falling apart, too. Published a few days ago was this report:

Allergan announced that it lost its patent appeal in its attempt to protect its Combigan eye drug from generic competition posed by Novartis’ Sandoz division.

According to Allergan, the U.S. Court of Appeals for the Federal Circuit affirmed the U.S. District Court for the Eastern District of Texas’ earlier decision that the Sandoz generic rival did not infringe two of Allergan’s patents and reversed a decision on a third patent in favor of Novartis.


Eastern District of Texas again. And the loss may have a profound effect/ramifications for the company. Maybe it will even go out of business in the not-so-distant future. PTAB can soon proceed to invalidating some of those patents it's trying to 'hide' behind the Mohawks.

Recent Techrights' Posts

IBM Sends Money to Microsoft
Red Hat basically helps sponsor the company that's a attacking our community
When the Cancer 'Metastasises'
We had a red flag
Attacks on the EPC: Reality and Fiction
EPO leaks
 
Links 02/03/2024: More Lawsuits Against Microsoft, Facebook Killing Hard-To-Find News
Links for the day
ZDNet (Red Ventures) Works for Microsoft (Redmond), Many Of Its Pages Are Spam/Advertisements Paid for by Microsoft
Here is the "smoking gun"
Wikipedia Demotes CNET Due to Chatbot-Generated Spew as 'Articles'; It Should Do the Same to ZDNet (Also Red Ventures, Also Microsoft Propaganda)
Redmond Ventures?
The Direction WordPress (GPL) Has Taken is an Embarrassment
it comes with strings attached
March in Techrights (EPO Litigation and More)
One theme we'll explore a lot when it comes to GNU/Linux is the extent to which communities truly serve communities
Don't Forget to Also Follow Tux Machines
We've split the material
Yandex Usage Has Surged Since the Invasion of Ukraine, Microsoft Fell to 0.7% (It Was 1.7% Before the 'Bing Chat' Hype Campaign)
In Soviet Russia, Bing searches user
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 01, 2024
IRC logs for Friday, March 01, 2024
Sellout Completed: Linux Foundation Converging With the Gates Foundation
not a joke
Hitler Rants Parodies on Steve Ballmer
Parody created using clips from Downfall (Der Untergang)
With Windows This Low (27% of the "OS" Market), Steve Ballmer Would Have Thrown Another Chair
The media produced many puff pieces about Nadella at 10 (as CEO), but what has he done for Windows? Nothing.
[Meme] The Naked President
EPO Suffers From Shrinkage
Understanding Cardinal George Pell prosecution, Institutional abuse & Debian cybertorture
Reprinted with permission from Daniel Pocock
Links 01/03/2024: Many More Layoffs, "Funerals" for Software Patents in the US
Links for the day
Gemini Links 01/03/2024: OFFLFIRSOCH 2024 and Dark Streets Tech Demo
Links for the day
Links 01/03/2024: Navalny Funeral and Media Under Attack
Links for the day
Gemini Links 01/03/2024: Making Art and the Concept of Work Management
Links for the day
Schriftleitergesetz: Hiding the Holocaust with censorship
Reprinted with permission from Daniel Pocock
[Meme] His Lips Moved
Here is your national "news" for today
statCounter: GNU/Linux Exceeded 6% in Asia Last Month (Compared to 4% Just 12 Months Earlier)
numbers may be biased
What the End of Journalism Looks Like
All on the same day
Links 01/03/2024: Microsoft 'Retiring' More Services and Raspberry Pi Celebrates 3rd Birthday (Launched on February 29th, 2012)
Links for the day
Women's Empowerment
Sponsored by Bill Gates
Gemini Links 01/03/2024: Speed Bumps and Analog Stuff
Links for the day
[Meme] Those Greedy EPO Examiners
Says the litigation industry, charging 300 euros an hour per attorney
EPO Discriminates Against Families of Its Own Workers, the Union Explains Legal Basis Upon Which It's Likely Illegal and Must be Challenged
To the Council, the EPO boasts about its wealth (seeking to impress by how much breaking the law "pays off")
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, February 29, 2024
IRC logs for Thursday, February 29, 2024
Links 01/03/2024: Misuse of Surveillance Against UK-Based Journalism, EPO Conflict Now in the Media
Links for the day
Taking a Break From Paid Promotion of the Illegal, Unconstitutional Kangaroo Court for Patents (UPC)
JUVE returns to its 'roots'?
FSFE admits losing funds from bequest by insulting and ignoring Fellowship representative
Reprinted with permission from Daniel Pocock
Gemini Links 29/02/2024: Raspberry Pi Incus Cluster and Aya 0.5.0 Coming Soon
Links for the day
Links 29/02/2024: Layoffs at Apple, Expedia, and Electronic Arts
Links for the day
Gemini Links 29/02/2024: Web Enshittification and Firefox user-agents
Links for the day
Spiked Piece/Censoreed Piece: 'Microsoft Copilot is a gimmick', says top CIO
Issues relate to connectivity and cost
Enrico Zini, Mattia Rizzolo, Plagiarism & Debian
Reprinted with permission from Daniel Pocock
[Meme] Clergy of GNU/Linux (Corporations Like IBM)
Volunteers as powerless "followers" of companies that "harvest" their labour
There Will Be Lots More Apple Layoffs (Already Years in the Making)
The corporate media still tries to shape the narrative to prevent panic or delay market hysteria
Latest SUEPO (Staff Union of EPO) Report For The Hague Reveals EPO Does Not Obey Court Orders, Refuses to Allow Workers to Freely Talk to One Another
working in a place where communication itself is restricted
[Meme] The Oppression Will Continue Until EPO 'Quality' Improves
wonder why EPO morale is so low?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, February 28, 2024
IRC logs for Wednesday, February 28, 2024
Outreachy, GSoC-mentors & Debian-Private may soon become public records in federal court
Reprinted with permission from Daniel Pocock