Bonum Certa Men Certa

Political Actions Against PTAB Are Still a Fringe Phenomenon and the Supreme Court's Justices Are Unlikely to be Swayed/Persuaded by Such 'Stunts'

Last weekend: Using Politics to Do the Patent Trolls' Bidding With STRONGER Patents Act, Just Like the UPC in Europe

Steve Stivers and Sarkozy



Summary: A little update about the Patent Trial and Appeal Board (PTAB) and attempts to disrupt PTAB inter partes reviews (IPRs) at a political level

THE big (and rather encouraging) strides of the USPTO's PTAB have been tracked here for years. We, notably software professionals, ought to guard PTAB from critics, who are mostly patent parasites who became accustomed to suing or threatening to sue using software patents. PTAB, for the uninitiated, eliminates a lot of software patents. There's no lack of examples and we're unable to keep abreast of them all (some try, mostly PTAB haters).



One very vocal PTAB hater recently spoke about a patent which he said got "rejected anyway under 101 because calculating cost of virtual processor cores is an "abstract idea" when you don't do anything tangible with the result..."

"PTAB, for the uninitiated, eliminates a lot of software patents.""Palantir loses patent case at PTAB," he also said, because "analyzing large data sets is just an "abstract idea"" and, among the exceptions: "Super RARE split decision at PTAB declares advertising in virtual worlds with Avatars is NOT "abstract idea" [...] What a difference a panel makes!"

PDFs are included there (original decisions).

A few days ago Docket Navigator took note of DODOCASE VR, Inc. f/k/a DODOcase, Inc. v MerchSource, LLC d/b/a Sharper Image et al. It's about denying a petition (IPR) at PTAB: "The court granted plaintiff's motion for a preliminary injunction requiring defendants to withdraw their petitions to the PTAB seeking to invalidate plaintiff's patents-in-suit because plaintiff established a likelihood of success on the merits of its related breach of contract claim."

"Those who dislike IPRs (and try to stop them altogether) are typically those possessing and actively using -- in a litigious sense -- weak patents. A lot of these are patent trolls."PTAB typically considers some very weak and very abstract software patents after defendants (or victims of extortion) petition it to do so. Those who dislike IPRs (and try to stop them altogether) are typically those possessing and actively using -- in a litigious sense -- weak patents. A lot of these are patent trolls. Sometimes it's their representatives and front groups, e.g. sites such as IAM.

Politicians for patent trolls, however, persist with their laughable proposal or a bill, the "STRONGER Patents Act" (actually weaker patents). Reposted yet again by Jones Day was this piece titled "STRONGER Patents Act Being Introduced to the U.S. House of Representatives" and United for Patent Reform wrote: “The STRONGER #Patents Act prevents state attorneys general from protecting their citizens from abusive #patenttrolls & creates numerous loopholes that will allow trolls to escape liability.” Read more of our letter to @RepSteveStivers and @RepBillFoster: http://bit.ly/2ukBoKS

We posted that letter earlier this month. The CCIA's Josh Landau has just mentioned another threat, this time from Senator Coons: He explains:

Senator Coons has long been interested in strengthening patents. While some of his efforts, like the STRONGER Patents Act, would actually harm the U.S.’s innovation economy by strengthening patents at the expense of innovation, his latest bill is different.

Last week, Senator Coons (along with Senator Hatch) introduced the Building Innovation Growth through Data for Intellectual Property Act, or “BIG Data for IP Act.” The bill has two main features—extending the Patent Office’s fee-setting authority, and requiring the Office to produce a report on its IT infrastructure, a plan for modernizing that infrastructure, and a report on the use of advanced data science techniques to improve the examination process.

Fee-Setting Authority Matters


Prior to the America Invents Act, the Patent Office didn’t actually set its own fees. Instead, Congress set them. This meant that, even though the Patent Office is supposed to fund its operations through the fees it collects, they couldn’t change those fees to reflect changing costs or to fund needed infrastructure—they had to wait for Congress to do it for them. That’s not an ideal situation.

But it’s actually worse than that. The Patent Office now collects enough, overall, to fund its own operations—but the fees for a given action don’t necessarily reflect the cost of that action. In particular, the fee for examining a patent is actually significantly lower than the cost of examination, with the shortfall made up for by issuance and renewal fees (which are significantly more expensive than the cost of issue or renewal.)

[...]

The final portion of the bill, reporting on the use of data science like machine learning and big data to improve the patent examination process, is also useful. Using big data tools like Google BigQuery, Patent Progress has been able to show that the Alice decision affects a very small proportion of patent applications and that so-called “IPR off-ramp” procedures are already available, if patentees want to use them.

If a patent lawyer can produce this kind of insight in a limited timespan using these kinds of tools, a trained data scientist with support from the Patent Office should be able to provide real insights into improving patent examination. And improved patent examination, in turn, leads to fewer low-quality patents issuing, fewer inter partes reviews to challenge low-quality patents after issue, and less abusive patent litigation.


PTAB IPRs, part of AIA (America Invents Act), will certainly come under many attacks ahead of a decision on Oil States (expected to come soon from the US Supreme Court). Over the past week, for example, Watchtroll ramped up its attacks on CAFC and on PTAB, even during the holiday.

"PTAB IPRs, part of AIA (America Invents Act), will certainly come under many attacks ahead of a decision on Oil States (expected to come soon from the US Supreme Court)."Joseph Robinson and Robert Schaffer wrote two pieces just before Easter [1, 2] in which they speak about PTAB (the Board).

"The Federal Circuit thus vacated the Board’s claim construction as erroneous," they wrote, "construed aseptic to mean the “FDA level of aseptic,” as previously decided, vacated the Board’s non-obviousness determination, and remanded for further proceedings."

Robinson and Schaffer basically picked one of those rare cases. Here's a more common outcome:

The ’435 patent, owned by Steuben, is directed to a sterilization tunnel pressurized with sterile air, as part of aseptic packaging of food products. After Nestle challenged the ’435 patent in an inter partes review, the Board found a number of the claims obvious and unpatentable. The claims recited a specific sterilant concentration levels in the different zones of the sterilization tunnel. Steuben appealed, and the Federal Circuit affirmed.


Watchtroll went a lot further than this in recent days, but we shall cover that separately. Attacks of PTAB recently become attacks on Techrights itself. I've received threats.

Recent Techrights' Posts

EPO General Consultative Committee (GCC) Agenda: Reduction of Staff's Salaries (Compared to Inflation)
knocking salaries down some more
What's 4Chan and Why It's So Problematic
Incels and losers converge around online echo chambers
Python is Attempting an Outreach to African-Americans, Microsoft Lunduke Has a Problem With That
Did he manage to brainwash himself into this ideology wherein bigotry is in fact tolerance, inclusion, equity?
IBM is Googlebombing Its Way Out of Trouble and Criticism
IBM is a dying giant
After Denial (of the Issues) Comes Censorship
Every critic of the status quo is "racist" and every criticism is "racism"
Intel, Facing Mass Layoffs (Including Many Key Engineers Who Work on Linux Kernel), is Pushing for Slop Inside Linux
replacing proper, well-tested code (and documentation thereof) with slop
More People Want to Quit Windows (Vista 10 is "End of Life"), Restricted Boot (UEFI) Makes That Harder
It's widely agreed (a consensus) that Restricted Boot is a bad thing for GNU/Linux
How We Managed to Make IRC Inclusive and Free Speech-Tolerant Without Banning People
People in IRC seldom agree on everything, more so if politics are aired and especially in the wrong context/s
Germany-Based Focus Online is Apparently Covering Up Cocaine Use at Europe's Second-Largest Institution, the European Patent Office
More contact details for the German press - Focus online
Photos From Richard Stallman's Talk in Argentina Earlier Today (Remote Talk)
Dr. Stallman's talk went ahead
 
Spanish Focus Coming Soon and Maturity of Site Search
We'll soon be focusing on Spain
Slopwatch: LLM Slopfarms Seem to be Slowing Down Somewhat
LLM addiction is a very unhealthy addiction
The "Nazi Bars"
We don't condone or condemn the label "Nazi Bar"
Thailand: Windows Down Sharply, Microsoft Loses Share to GNU/Linux
the Thai economy is strategic and relatively important in the region
Gaming Journalist and Guru Jason Schreier Says Microsoft is Indeed Behaving Like It Exits the Console Market
Remember that many shops no longer sell or stock XBox
Links 17/11/2025: ‘Agentic OS’ Backlash and Facebook ('Meta') Loses Yann Le Cun
Links for the day
Gemini Links 17/11/2025: Technology's Harm in Schools, 3D Printer Blurb
Links for the day
Coming Soon: EPO Trip in Spain
António Campinos being 'Marcosed'
Links 17/11/2025: "You Don't Need Animations" and Blocking Copyright-Infringing Sites Inevitably Goes Wrong
Links for the day
The Register MS: Slop is "FOMO" (Fear of Missing Out), FOMO is Funding Us
even former management (Editor in Chief of The Register MS) admitted to me it was aware of this issue
Difficult to Win Arguments When the Simple Facts Are Not on One's Side
Starting arguments over things when you know the facts (unlike money!) aren't on your side is a dumb move that can only ever result in severe loss of credibility
Tribalism Injures Projects
In Free software communities, there are many species and "breeds". Some developers are happy to work with everyone else based upon technical merit
No, There is Nothing Impressive About Slop Plagiarism-Enabled, Computer-Generated Images in Your Web Site...
When people use slop they do not broadcast an embrace of innovation; they merely signal they're lazy, unethical, and unscrupulous
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, November 16, 2025
IRC logs for Sunday, November 16, 2025
IRCNow Helped Techrights
If you want to gain more independence or "sovereignty" over your communications and need help setting things up (no prior experience setting up/configuring IRC), go to IRCNow
UEFI 'Restricted Boot' Will Usher in Rootkits Into Linux
Those of us who understand and value what it means to truly own our devices should definitely be alarmed by these trends
Plan for European Patent Office (EPO) Coverage This Month, Next Month, and Next Year
How much longer can European politicians ignore all this corruption?
opensource.net Dead Since Middle of Summer, opensource.org (OSI) Still Leaderless
At the moment the brand "Open Source" is misused so heavily that we have considered adding a new category to our Daily Links, focusing a lot less on "Open" and more on software freedom as a concept
Slopwatch: Google News Full of Slop
Google News has serious problems
Gemini Links 16/11/2025: The Cure for Slop, Rapsberry Pi Zero 2 W, and POSIX from Ada
Links for the day
NHS Data Breach Caused by Proprietary Software, as Usual, The Register MS Blames "Hackers" and "Cybercriminal Gang"
Nothing will get solved unless we have a rethink and media quits using the "hacker" narrative, which shifts blame from the holes to those who merely exploit them
IBM is Vanishing (First Moving, Then Going Away Completely)
Salary reduction is only the first step
Links 16/11/2025: Japan-China Tensions Grow, Surveillance Giant Google Checked for Breach of the Digital Markets Act (DMA)
Links for the day
Links 16/11/2025: Censorship Battles and Margaret Sullivan Speaks
Links for the day
German Media and German Politicians: Working for the Public or Manipulating the Public?
The "common person" does not have printing presses
Informing the Public of Suppressed Facts
We are all in this together
Canadian Linus Meets Finnish-American Linus
LTT does have a very large audience, which it can steer away from Microsoft and Windows
The UK's Online Safety Act (OSA) Discourages Technological Entities, Including Free Software Projects, Being Based in or Near the UK
When it comes to IRC hosting, we never had any serious speech restrictions imposed upon us by the UK
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, November 15, 2025
IRC logs for Saturday, November 15, 2025
Father of GNU Giving Keynote Talk Today, Father of Linux Collaborating With Linus Tech Tips (LTT)
Some time soon we can expect Linus Tech Tips (LTT) / Linus Media Group / Linus Gabriel Sebastian to produce something with Torvalds
Gemini Links 16/11/2025: Emacs Font Fun and UI x TUI x CLI
Links for the day
Flagging or Labelling LLM Slop Meaningfully to Discourage the Practice
We're still refining the annotation for better contrast
LLM Slop is an Addiction One Can Quit
Sites that crossed over to "the dark side" (slop) can still return, and even fully regain the trust lost by betraying people with 'botspew'.
BILD is Apparently Covering Up Cocaine Use at Europe's Second-Largest Institution, the European Patent Office, as It's Based on Germany
Journalist contact details
Techrights Site Search Pushed to 'Stable'
we've just added it to the navigation menu and footer
Situation Publishing's DevClass (Sister Site of The Register MS, Run by MS Tim) Has Been Abandoned, Microsoft's MS Tim Now Interjects Anti-Linux Directly Into The Register MS
Not only does this sell Microsoft; it's also googlebombing - as before - the real "maui" (or "MauiKit" in Linux).
Many IBM Workers to Become Unemployed a Few Weeks - Maybe Just Days - Before Christmas
as one last humiliating exercise IBM pimps/trots them out in social control media, telling "happy" stories
Slopwatch: LinuxSecurity, WebProNews, and Linux Journal (Slopfarms)
More fake articles about "Linux"
Links 15/11/2025: Openwashing of Kubernetes and Austerity Planned for Canada
Links for the day
Links 15/11/2025: "Small Web, Big Voice" and China Cracking Down on Slop
Links for the day
Links 15/11/2025: Science, Conflicts, and International Politics
Links for the day
Annus Horribilis at the European Patent Office (EPO)
The article explains how the EPO "Cocainegate" scandal is turning 2025 into an Annus Horribilis for Campinos
Links 15/11/2025: Latest in "Component Abuse Challenge" and Qt Keeps Promoting LLM Slop
Links for the day
Gemini Links 15/11/2025: Egoism, Misunderstood Universe, DeX, and "Why desktop Linux is growing"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, November 14, 2025
IRC logs for Friday, November 14, 2025
Richard Stallman Talk Tomorrow in Ethereum Cypherpunk Congress 2
It's not clear if a livestream of some kind will exist
Many "Last Days" at IBM on Allegedly the "Last Day" for IBM to RA People This Quarter
"Last day" is "social media code" for "got laid off", more so at IBM because they compel people to act like it's a happy departure with gratitude, photos and so on