Bonum Certa Men Certa

The Patent Microcosm Takes Berkheimer v HP Out of Context to Pretend PTAB Disregards Fact-Finding Process

Berkheimer v HP
The original decision



Summary: In view or in light of a recent decision (excerpt above), patent maximalists who are afraid of the Patent Trial and Appeal Board (PTAB) try to paint it as inherently unjust and uncaring for facts

EARLIER this month we wrote about Berkheimer, a decision that had been distorted somewhat by the patent microcosm (as usual).



This distortion continues unfortunately (but expectedly), with sites such as Watchtroll writing about it yesterday. Dennis Crouch too panders to patent extremists with their false allegations that PTAB ignores/overlooks facts. Here is what he wrote:

Following upon its February 8 decision in Berkheimer, the Federal Circuit has again sided with the Patentee on eligibility grounds – holding here that the lower court’s judgment on the pleadings failed to consider disputed issues of material fact. Prior to this pair of cases, it was unclear whether eligibility analysis involved factual questions. Although pair of cases indicate a precedential sea-change, both opinions were written by Judge Moore and joined by Judge Taranto (Berkheimer was also joined by Judge Stoll).


Like we said before, this isn't necessarily about Section 101 and it does not imply what many patent extremists are trying to insinuate. Managing IP framed it as a Section 101 'thing' and also called it a “blockbuster” (in the headline even). It's only a blockbuster for those who want it to be. There was nothing fascinating about it. To quote the outline:

“Whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination,” writes Judge Moore. Observers have taken this as a sign of the pendulum swinging back towards patent owners on Section 101


"Observers"?

They mean the patent microcosm. Then again, consider whose megaphone sites like Watchtroll, Patently-O and Managing IP really are. We might need to do some more debunkings in the future when Berkheimer is brought up. We'll give some examples of that tomorrow and on Monday as it has become somewhat of a theme/pattern.

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