Bonum Certa Men Certa

The Evil, Truly 'Evil' Patent Trial and Appeal Board (PTAB) and the Courts Have the Audacity to Verify/Disprove Patent Validity

J Nicholas GrossSummary: The concept of patent justice seems rather elusive to those who make a living out of pretending not to grasp it (like Mr. Gross on the right); US patent caselaw, however, continues to improve over time

TECHRIGHTS spent well over a decade complaining about USPTO patents that had been wrongly granted, leading to invalidation attempts. Prior to PTAB this was a lot harder. This meant that patent justice was hard to find unless one had deep pockets (court battles are extremely expensive, especially with appeals taken into account).

"They just don't care about patent justice, only patent maximalism (maximising litigation and extortion opportunities)."Patent trolls typically rely on software patents. They also depend on dodging actual court battles where validity of patent can be questioned/challenged (before PTAB only courts could do this). This is why trolls' proponents like Watchtroll, IAM and so on protest against PTAB so much. They just don't care about patent justice, only patent maximalism (maximising litigation and extortion opportunities).

The Droplets case was recalled by Watchtroll on Friday. James Yang wrote:

Droplets, Inc. v. ETrade Bank

In Droplets, Inc. v. ETrade Bank (Fed. Cir. 2018), ETrade filed a petition for inter partes review against U.S. Patent 8,402,115 (‘115 Patent) which was owned by Droplets, Inc. ETrade was attempting to invalidate the 115 patent because Droplets (patent owner) alleged that ETrade was liable for patent infringement.

The ‘115 Patent was the last patent in a family lineage of four patent applications. See diagram below. The Franco PCT is based on the 917 provisional.

[...]

When reviewing a patent for a noninfringement opinion, do not assume that the prosecution was done properly. As discussed in this case, even though the 115 did not claim priority back to the Franco PCT, the examiner did not use the Franco PCT which would be the best prior art reference against the 115 because presumably at least certain portions were identical to each other.


We already wrote about such noninfringement opinions. Expect sites like Watchtroll, IAM and so on to resort to judge-bashing, lobbying of Iancu etc. We'll give some examples later today. Another CAFC case has already just been covered by Watchtroll, taking note of a patent which became unenforceable:

The invention disclosed in the ’993 patent, at issue in this appeal, involves heating water on demand during the fracking process instead of using preheated water. Mr. Hefley, the sole named inventor and founder of Heat On-The-Fly, LLC (“HOTF”), filed the earliest provisional application on September 18, 2009. Prior to the critical date of September 18, 2008, Mr. Hefley and his companies performed on-the-fly heating of water on at least 61 fracking jobs using the system described in the ’993 patent application and collected over $1.8 million for those services. Although Mr. Hefley discussed the requirements of the on-sale bar against patent eligibility with his business partner, he did not disclose any of the 61 fracking jobs to the Patent and Trademark Office (“PTO”). The patent issued on May 8, 2012.

Energy Heating LLC (“Energy”), one of HOTF’s competitors, began using its accused process of heating water in 2012. After HOTF raised the possibility of a patent infringement lawsuit and Energy lost a business contract, Energy sought a declaratory judgment that the ’993 patent was unenforceable for inequitable conduct, invalid as obvious, and not infringed.

The district court granted declaratory judgment, finding the patent unenforceable for inequitable conduct, and denied Energy’s motion for attorneys’ fees under 35 U.S.C. €§ 285. The Federal Circuit affirmed the court’s finding of inequitable conduct but vacated the denial of attorneys’ fees and remanded on that issue alone.


Proponents of patent maximalism, typically a bunch of law firms, aren't happy about this status quo. Mr. Gross, an attorney who writes for patent trolls, recently unleashed a bunch of rants against PTAB, such as this (regarding Section 101):

Bad 101 decisions continue to multiply like viruses at PTAB bc, as they say: "the decisional mechanism courts now apply is to examine earlier cases... and which way they were decided" https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005922-04-26-2018-1 … Since 90% decisions are adverse, system is rapidly being poisoned


No, the system is actually being repaired for those who want to mind their own business, creating things rather than suing. Is that so difficult to understand? Here he goes again (regarding Section 101, as usual):

See, this is the additional collateral crap PTAB is now pulling when CAFC affirms using Rule 36... citing Morsa as approving rejection of claims on targeted advertising, bc CAFC too lazy to do review on merits and explain fine distinctions in 101: e-foia.uspto.gov/Foia/RetrieveP…


He says that "PTAB continues bastardizing [Section] 101 caselaw", but he actually means applying, not "bastardizing":

PTAB continues bastardizing 101 caselaw, including Diehr, to reject claims on "controlling a torque output of an electric machine of an electrified vehicle during a vehicle creep condition" e-foia.uspto.gov/Foia/RetrieveP… Mess continues unabated


And again Section 101:

Like hundreds of other small innovators, Invidi gets their patent application on targeted asset delivery system nixed by PTAB as "abstract idea" e-foia.uspto.gov/Foia/RetrieveP…


Mr. Gross also took note of Microsoft having its software patents thrown away (Section 101):

LinkedIn bought these patent applications years ago; this is one of 1st of many on "fact checking" technology to be reviewed and rejected by PTAB under 101: they have a long road ahead: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017001329-04-30-2018-1 …


Then the obligatory IBM example (Section 101 invalidation):

IBM Can't Win at the PTAB; The PTAB Reversed the Examiner's 101 Rejection But Instituted a New 101 Rejection of the Same Claims: https://anticipat.com/pdf/2018-04-30_13396177_178276.pdf …


Notice the profound impact of Section 101. Without even going to court, various parties actively work to eliminate software patents of patent aggressors.

"It puts engineers/programmers back in control, at the expense of parasitic lawyers who got accustomed to exploiting/taxing them."What's not to like?

Well, when one does litigation for a living (and let's face it, that's what the above people do) this whole "PTAB thing" is a living nightmare. It puts engineers/programmers back in control, at the expense of parasitic lawyers who got accustomed to exploiting/taxing them. ⬆

Recent Techrights' Posts

The Register MS Made Millions of Pounds by Participating in the Slop Hype Campaign (It's Still Doing It), Now It Admits That It's Just a Bubble
the slop frenzy played a role in the Microsoft meltdown
Intercontinental Brigading - Part XXXXX - Pyramid Schemes (Planned Plunder) and Canceled/Botched Surgeries Aren't "Funny", They Cause Serious Harm and Distress
We were right about Microsoft
The Real Issue With The Register MS is Not the Politics of Some Staff's "Tweets", It's That The Register MS Publishes Fake Articles for Sponsors (50,000 Pounds Minimum)
AWS and Google each pay millions for fake articles which beget journalistic bias too (they literally pay the salaries of the 'reporters')
Microsoft Total Cost of Ownership (TCO): We Need Accountability Because Many People Die and It's Because of Microsoft Diehards or People Bribed by Microsoft to Deploy Microsoft Where Lives Are at Risk
They're trying to save face right now
What the Media Misses: It's Not an NVIDIA Issue, Super Micro Computer Inc Also Fell From $45 to $26 in the Period NVIDIA Lost 33% of Its Faked 'Value', NVIDIA is Collapsing Like Intel
History goes in circles
Waste of Money: Giving More Money to Toothless Regulators That Don't Even Examine Evidence
Shame in SRA
 
Ethics in Perspective, Free Software and Morality
top clients of Jeffrey Epstein are one happy family
Richard Stallman (RMS) at Universidad Central del Ecuador (Guayaquil), Cuenca, Campus Sur Universidad Politecnica Salesiana (Quito), and Ohio State University
Long live the message and mission of RMS
They Paid Workers in 'Shares' (That Lost Almost Half Their Value in One Month)
Welcome back 1999 or 2007
Links 14/11/2026: "OpenAI Is Sustaining Enormous Losses" and Slop "Loses the Popular Vote"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, November 13, 2026
IRC logs for Friday, November 13, 2026
Gemini Links 14/11/2026: Code of Conduct, Back to Gemini, and Gemlog to Inbox
Links for the day
Slop Promotion, Including Paid-for Slop Promotion for So-called 'Linux' Foundation (Its Clients Are Slop Companies)
We've noticed a lot of this lately in "It's FOSS" and to a lesser degree in "FOSS Force"
Gemini Links 13/11/2026: Productivity Metrics and Antenna Outage
Links for the day
It's Not About China or Sex, It's About Corruption at NVIDIA and a Pyramid Scheme Perpetrated Under the Guise of "Hey Hi Revolution" (That Wasn't, It's Manufactured and Hyped by Bribes, Subsidised by Multi-Trillion-Dollar Loans, People's Pension Funds and More)
What's at stake here is a lot bigger than the "Ponzi hub" of Jensen Huang
No, You're Not a "Most Valuable Company" When Everything is Down for Half a Day in the Entire Planet
Still down, still no explanation (maybe they too aren't sure)
"Techrights Statement on Phoronix" Still Valid Five Years Later
Our position as stated in early 2022 has not changed
Vista 11's 'Growth' Has Stalled, It's Measured at Only 17.9% in the US This Year
That helps put in perspective Microsoft's attempt to discard almost 30% of its remaining workforce
"NVIDIA is Enron" (Subsidising the Pyramid Scheme That It Profited From), Microsoft is Next to be Down for the Count
Microsoft increasingly looks like the "next NVIDIA"
Richard Stallman Travels to South America to Give Talks About Free Software in Spanish, FSF Raises Money
The FSF is raising money (goal is $400,000) and the FSF has just mentioned the upcoming talks by the FSF's founder
United States Adding ~300 Billion in Government Debt Per Month, Wall Street Shaves Off Trillions in 'Value' in Less Than One Week
cushioning "assets" by helping them fake "value"
Microsoft: Pay Us for the Stuff That's Offline and We Cannot Fix
Learn to take control of the technology that you rely on
Links 13/11/2026: "Copyright-Strike-for-Hire" and "Stevie Wonder Photo Lawsuit"
Links for the day
The Slop Bubble (or Pyramid Scheme) Relied on Trust and Patience (Being Patient as Losses Grow and Debt Explodes, Trusting the Roadmap of Cheaters and Frauds)
Remember that it all began with trust
Anthropic's IPO Depends on $895.4 Billion in Debt (Money It Doesn't Have, It Loses Over 100 Billion Dollars Per Reporting Period), NVIDIA Has Just Lost Almost 2 Trillion Dollars In Value and Its Debt Trebled in Three Months
This coming week will be very, very entertaining for slop critics/sceptics to watch
At Microsoft, "Buyouts" or "Global Voluntary Separation Agreement" (GVSA) Not Much Different From Layoffs (Severance Shockingly Low)
From what we are able to gather, many people are leaving Microsoft 'voluntarily'
Is Microsoft the Next Fake-Valued Corporation to Lose 35% in "Market Value"? Is Slop Bringing Microsoft Down?
Will NDAs prevent people talking or journalists finding out the true cause?
Lorenzo Stoakes (ARM) the Latest of Many to Quit Linux Development Over Linus Torvalds' Obsession With Slop (Linus Wants to Work With Bots, Not Humans Who Understand Whatever Code They Write)
Linus caught the 'brain virus'
Silent Layoffs at IBM (and Red Hat) Continue in November 2026
IBM's CEO is "a Palliative Care Doctor Who Slides [IBM] Gently Into the Night"
Microsoft Asks 60,000 Workers to Leave, Some Leave, Services Go Down
Microsoft laid off about 40,000-50,000 people in past years
Gemini Links 13/11/2026: Roku Exits the Smart Home Market and Poor Reporting/Journalism Regarding Slop Plagiarism
Links for the day
Links 13/11/2026: "Apple Support Community Forums to Permanently Close" and "The Slop Market is Getting Nervous"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, November 12, 2026
IRC logs for Thursday, November 12, 2026
Gemini Links 12/11/2026: A Firing of a Boss and Geminispace Growing Fast
Links for the day
Bill Epsteingate-Funded BBC "Totally Ignoring the $1.7 Trillion Wiped off NVIDIA Stocks"
Imagine how many pension funds are tied to this NVIDIA pyramid scheme
A Few Hours Before NVIDIA CEO Canned (and NVIDIA Shares Plunged) the NVIDIA-Funded The Register MS Published Paid Spam With "AI" 18 Times in It
Anything to inflate the bubble
Links 11/11/2026: NVIDIA Decapitated, "The Company That Published Fake Journalists in Sports Illustrated is Collapsing Dramatically"
Links for the day
Intercontinental Brigading - Part XXXXIX - We Didn't Start the Fire
It started in 2012
Photo Ops Are Liabilities
NVIDIA is not a "family business" and its CEO isn't some modest genius
NVIDIA’s Total Debt Trebled in Three Months!
Not the hallmark of a rich company unless its accounting is fraudulent
NVIDIA Turns Out to be Serial Cheater, Stock Plunges 33% in 5 Weeks
The "slop bros" have long relied on patience and blind faith
Adopting LLM Slop is Still Suicide
Suicide (in the literal sense) is also linked to adoption of chatbots
On Laundering Licences and Code
A "Second SCO" waiting to happen
The Cyber Show on Slop and the Ministry Of Truth in "Nineteen Eighty Four"
"cultural erasure" by slop
Intercontinental Brigading - Part XXXXVIII - Keeping Both Eyes on the Ball
One upside of these disputes is that they raise at least two very important issues concerning the law
Gemini Links 12/11/2026: Encryption is Easy, Human Emacs, and Legislation in Italy
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, November 11, 2026
IRC logs for Wednesday, November 11, 2026