Bonum Certa Men Certa

US Patent Courts Gravitate Towards Patent Justice Rather Than Patent Maximalism

Less focus on the flow of money (between lawyers) and more focus on science and technology

A gaol



Summary: The rational approach adopted by the US courts, all the way down from the Supreme Court to Sharon Prost of the Federal Circuit (CAFC), means that technology companies can finally focus on actual work and pay less to a bunch of lawyers

THE court system in the United States isn't exactly renowned for justice (that's a gaol at the top; the US has actual market "demand" for prisoners as jails are run like proper, for-profit businesses). The USPTO too has a certain "demand", which explains why many low-quality patents have been issued. It's difficult to say the same thing about patent courts however. They're not so "demand"-driven and their success is measured by criteria like the number of times their decisions are overturned.



The Court of Appeals for the Federal Circuit (CAFC) saw many decisions it had made (under the disgraced chief judge Rader) being overturned by the Supreme Court. It appears to have decided to change that under Sharon Prost. CAFC is now a lot better. Just days ago it once again rebuked the disgraced judge Gilstrap.

Very good. Another case of Alice thwarting bad patents.

CAFC has come under attack from patent extremists, such as Watchtroll, who went as far as to call/ask judges to step down after they had ruled against software patents. This is ridiculous, but that's how much respect those people have for judges. Watch what Dennis Crouch did some days ago.

Here we have a new article from the patent microcosm portraying CAFC as unreasonable just because it's efficient. To quote:

The number of patent cases the Federal Circuit ruled on without writing an opinion is in decline for the first time in recent years, amid criticism over the court’s use of these “silent decisions” and a plateau in its patent workload.

Statistics compiled by Law360 show the court affirmed patent decisions from the Patent Trial and Appeal Board or district court without a written explanation 161 times in 2017, which accounted for 38 percent of its patent rulings.


PTAB deals with literally thousands of legitimate petitions, so it's unreasonable for PTAB (and CAFC too) to always delve down to written determinations. Surely they understand that, no? Patently-O attempted to play this card about a year ago in order to slow down the courts.

Elsewhere in last week's 'news' (more like shameless self-promotion by the patent microcosm) we saw Squire Patton Boggs' Daniel Rabinowitz writing about software patents (in National Law Review with paid-for copies elsewhere). He said: "In Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012), and Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S. Ct. 2347 (2014), the Supreme Court of the United States established a two part test for determining patent subject..."

As usual, the patent microcosm (not just Rabinowitz) looks for ways to dodge the rules. This is their main expertise or service. The demise of software patents is not a "problem" but a blessing. It's a belated act of justice from the Justices, but watch this new article by Benjamin Hattenbach and Rosalyn Kautz ("A Recurring Problem In Patentability Of Computer Software"). It's a rant about the Federal Circuit:

Section 101 of the United States Patent Act protects "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof."[1] Historically, this been interpreted to "include anything under the sun that is made by man."[2]

From 2014 to 2017, however, the Federal Circuit has rejected an overwhelming majority of patents for computer-implemented inventions as ineligible for protection under Section 101.


That's not a problem, it's a desirable thing and the US Supreme Court (SCOTUS) should have made it so decades ago.

"Did the Supreme Court rely on extra-record evidence in its assertion of an abstract idea in Alice v. CLS?"

So asks another person from the patent microcosm. It's quite revealing that SCOTUS decisions drive them nuts. Other courts too have become unsympathetic towards the patent microcosm. Software parents are dead ducks in the US; there's no imminent turnaround because SCOTUS isn't interested in revisiting the matter.

How about this new example where the court rejected a patent under ۤ 101? Docket Navigator called it an "abstract idea."

The court granted defendant's motion for summary judgment because the asserted claims of plaintiffs’ audio/visual playback patent encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea.


"We’re seeing a lot more companies actively exploring what they can do with their unused IP," IAM wrote the other day. Well, all those low-quality patents, as they eventually find out, are typically a waste of time and effort (for startups anyway). As it turns out, decisions on the matter are not being challenged as much anymore. Here are some new statistics: "From July 25, 2016 to February 22, 2018, Fish & Richardson had 143 appeals. Finnegan was second with 78 appeals. And Knobbe was third with 60 appeals. While Fish and Knobbe had roughly the same number of patent applications (60,916 and 58,170, respectively) across all customer numbers searched, Fish had more than double the appeals. Even Finnegan, which totaled a third fewer applications (41,194) than Knobbe, had more appeals than Knobbe."

Watchtroll wrote about something related to this a couple of days ago. What we have here is Amanda G. Ciccatelli and Watchtroll speaking to a lawyer about his 'agony', alluding explicitly to the "intellectual property industry."

"According to Storm," Watchtroll said, "the decline in contingency representation over the last few years can be explained by weakened patents making success on the merits less likely. Even if the patent owner does prevail, what will the win? After a win at trial, the law of damages has made large damages less and likely to achieve in the first place, and keep even if awarded after trial."

It's just not worth the risk anymore. This is a real problem for the "intellectual property industry," as the above dubs it (this 'industry' just a parasite looking to inflame more lawsuits and a legal mess; Like the arms industry which lobbies for tensions and wars).

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