Bonum Certa Men Certa

Another Week of Federal Circuit Supporting PTAB and Acting Tough for Patent Quality in the United States

The patent elimination 'pipeline'

Secret documents



Summary: The Patent Trial and Appeal Board (PTAB) and the Court of Appeals for the Federal Circuit (CAFC) maintain a productive cycle of patent elimination, except when the patents do have merit (e.g. when they're on physical inventions and not nature or code)

THE Federal Circuit under its current chief has been doing a good job, encouraging -- shall we say for the most part -- the USPTO to evolve/improve patent policy. Sure, there are some exceptions which we shall cover separately, but generally speaking the judges grasp the Supreme Court's views or interpretation of the law. They're undoing decades of unbridled patent maximalism. One decision at a time they narrow down patent scope and litigation scope. This is good. It will help scientists at the expense of lawyers. It's about time, too.



The other day XY, LLC v Trans Ova Genetics, L.C. was brought up by a patent maximalists' site, which mentioned a "split decision [that] reveals an important dispute between Federal Circuit judges over the impact of AIA trials on pending litigation. In this case, XY’s six patents in suit relate to the sorting of semen by gender (used for farm animal breeding). My discussion below focuses on only one of the patents that was first enforced by the district court but later cancelled by a PTAB action."

"One decision at a time they narrow down patent scope and litigation scope. This is good."The author is a foe of PTAB and would like to see AIA trials phased out/replaced by something else. But he has not been getting his way. That's an understatement actually; his whole world crumbles around him and his readers. They've tried everything to undermine PTAB and nothing seems to work. We shall cover that separately in a later post.

The underlying patents in this case aren't on software but arguably on life (animal breeding). As is widely known by now, some companies like Monsanto have been attempting to patent nature/life everywhere in the world (it's a lot harder in India, owing to the Supreme Court's recent judgment). It's not just about breeding processes or genetic manipulation; later on some companies patent the resultant animals, too! Crazy world we live in, eh?

"It's pretty clear here that this patent maximalists' site cherry-picks cases with the agenda of undermining Inter Partes Reviews (IPRs) and the Patent Trial and Appeal Board which these fall under."The author explains "that the final paragraph is somewhat confusing because it appears to state two separate principles – (1) that affirmance of an invalidity finding [by the Federal Circuit] creates collateral estoppel on the issue of validity and also (2) that a final decision of patent invalidity moots pending district court findings of no invalidity. This begs the question of what would be the proper result if this case had been decided after the IPR decision cancelling the claims but before deciding the outcome of this appeal. When the court recognizes the potential issue – I expect that in most situations it would coordinate the appeals."

It's pretty clear here that this patent maximalists' site cherry-picks cases with the agenda of undermining Inter Partes Reviews (IPRs) and the Patent Trial and Appeal Board which these fall under. This isn't new. This has gone on for years and Oil States was the latest blow to such agenda. Later on we shall show how patent "scams" too have failed to undermine IPRs.

The same site also picked another Federal Circuit case, D Three Enterprises v SunModo Corp., which was about claim construction. This patent is at least on something physical. To quote:

D-Three’s patents in suit are directed to roof-mount sealing assemblies for solar panel installation. U.S. Patent Nos. 8,689,517; 9,068,339; and 8,707,655. The district court found the asserted claims invalid as obvious or anticipated. The basic central dispute, however, was whether the claims could rely upon a 2009 provisional application filing date. Although the formalities of the priority chain was met — the district court found a substantive problem. In particular, the court ruled that the 2009 provisional did not sufficiently disclose the inventions as claimed — i.e., failure of written description. Going one layer deeper, it seems that the real dispute is about claim construction — do the claimed assemblies require a “washerless” approach? The courts found that the claims recite a washerless assembly but that the limitation was not disclosed by the provisional application — so no priority.


Kluwer Patent Blog has meanwhile delved into another patent case where PTAB and the Federal Circuit dealt with a patent on something physical. "In an interference proceeding," it said, "the Patent Trial and Appeal Board correctly determined that claims 65-67 of applicant General Hospital Corporation’s (GHC’s) U.S. Patent Application No. 13/789,575 for methods of removing hair by using nanoparticles to damage hair follicles lacked sufficient written description under €§ 112 of the Patent Act, the U.S. Court of Appeals for the Federal Circuit has ruled."

"...what we continued to see this past week was a strong and consistent record of patents-sceptic Federal Circuit which fully supports PTAB."PTAB was defended for this, as usual. Watchtroll -- being the most anti-PTAB site out there -- chose to deal with this Federal Circuit case wherein PTAB had dismissed a challenge (and was later defended by the court). To quote:

Gilead produces and sells several products containing an antiviral agent used in the treatment of AIDS, and AIDS Healthcare Foundation (“AHF”) buys these products to provide care to persons afflicted with AIDS. AHF filed suit requesting declaratory judgment of invalidity for five patents purportedly covering the antiviral agent and associated products, hoping to “clear out the invalid patents” such that AHF could partner with generic makers and purchase generic versions of the antiviral agent as soon as it could become available on expiration of the five-year New Chemical Entity exclusivity provided by FDA approval of the antiviral agent. The district court dismissed, ruling that AHF’s status as a mere consumer and its interest in purchasing such products did not create a case of actual controversy.

On appeal, AHF argued that it is an indirect infringer of the patents because it requested potential producers to provide the patented products, Gilead’s non-response to AHF’s request for a covenant not to sue created a present controversy, and public policy favors invalidation of invalid patents.


It is strange to say that "public policy favors invalidation of invalid patents." Obviously if patents are invalid, then they are invalid, no matter what policy might say. Either way, what we continued to see this past week was a strong and consistent record of patents-sceptic Federal Circuit which fully supports PTAB. Had it not been the case, patent maximalists would make a huge deal out of it and herald that everything changes (like they nowadays do with Berkheimer v HP).

Recent Techrights' Posts

Garrett Announces LibreLocal Instance in Northampton, Massachusetts (USA)
his message was the only one last month
Attacks on Techrights Make Techrights Stronger and Attract More Whistleblowers to Techrights
The harder they attack us, the more productive we become
An American War on GNU/Linux, Software Freedom, and British Investigative, Science-Based Reporting - Part III - Very Strong Legal Basis for an Appeal
The case is now being escalated to a Foreign Secretary and former Deputy Prime Minister
No Slop Found in RSS Feeds, Only in Google News
No slopfarm will survive for very long, certainly it'll go bust as soon as readers (if it had any) know what it is
 
"The Lost Generation" Came Back, This Time Literally
Based on my limited experience with young people ("alphas"), they're lost
IBM is Not Likely to Survive Another Decade
Despite having already survived over a century [...] Last week we saw claims that some company would likely acquire IBM for its remaining assets
IBM Has Just Been Sued Again by Its Own Staff (This Time a Manager, Stephen P. Gutierrez)
IBM's behaviour towards its staff can prove costly
When a Company Says Its Layoffs are "Due to AI" Check the Debt (Typically the Real Reason for Mass Layoffs)
The mass layoffs at Microsoft continue, but Microsoft hides those in some of the same ways IBM does
Doing More With Less
primacy of concepts rather than bells and whistles
Andy and Helen in Cybershow on Divesting From the United States' Technology and Politics
It is no longer considered a taboo to say this and it's not "anti-American" because many Americans can relate to and agree with such criticism
Links 10/03/2026: "GEMA v. Suno Copyright Case" and "Valve Faces PRS Lawsuit Over Allegedly Unlicensed Steam Music"
Links for the day
Gemini Links 10/03/2026: Woods in UK, Slop Laziness, and "Small Technology and Small Economic"
Links for the day
Microsofters' SLAPP Censorship - Part 8 Out of 200: Gross Misuse of UKGDPR to Protect the Agenda of American Back Doors (Mass Surveillance)
Responding to bunk claims regarding UKGDPR and claims of 'analytics' in our sites
Links 10/03/2026: Oil Prices Rising, South Korean/US Military Assets Redirected
Links for the day
Links 10/03/2026: Rust Rewrites by Slop "20,171 Times Slower", "You MUST Review LLM-generated Code"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 09, 2026
IRC logs for Monday, March 09, 2026
The Register MS Has Just Taken Money From Google (Where the Former Chief Editor Now Works) for Femmewashing and Ponzi Scheme Promotion
now The Register MS not only promotes a Ponzi scheme but also bags money to pretend Google respects women
People at IBM Are Still Smart Enough to Understand What's Really Going on
"I would never refer someone to work at IBM that I liked! I hope all of you have reviewed IBM on Glassdoor."
European Patent Office (EPO) to "Eventually Eliminate the Tasks Performed by Formalities Officers"; EPO Run by People Without Experience in Patents
full paper
RMS is 73 Next Week
Richard Matthew Stallman (RMS) turns 73 exactly 7 days from now
Iran & FSFE: blackmailing women, from football to the French Government (CNIL)
Reprinted with permission from Daniel Pocock
Police investigations, lawsuits & Debian leader election candidate shortage
Reprinted with permission from Daniel Pocock
Richard Stallman (RMS) Has Defeated Cancel Culture, a Mostly American Phenomenon
RMS is talking now
Links 09/03/2026: Many Security Breaches and a Pandemic of Censorship
Links for the day
People Who Work or Worked at IBM Hate It
bluewashing is only the first step
Richard Stallman (RMS) Talks in 30 Minutes, Next Stop Bern (Last Stop)
We assume he'll travel back to Boston after that
IBM's Fedora as a Booster of Slop Disguised as Code or Computer Programs
Maybe we should also stop seeing a doctor and instead ask chatbots about symptoms?
Richard Stallman (RMS) Talk Five Hours From Now
there is growing recognition for what he really did for everybody
What the Solicitors Regulation Authority (SRA) and Action Fraud UK Have in Common
Don't let London become the world's "crime capital"
EPO Strike 10 Days From Now, Planning Assembly Tomorrow, Last Couple of Strikes Had High Participation Rates (1,500-1,600 Staff Went on Strike)
The next strike is in 10 days' time and then there will be another strike
Dr. Andy Farnell on How GAFAM, NVIDIA and Others Lie to People Via the Sponsored Media to Prop Up Lies Under the Guise of "AI"
Lots of key aspects are covered
Links 09/03/2026: GAFAM Outsourcing, "MAGA Political Meddling" in EU, Indonesia Bans Social Control Media for Children Under 16
Links for the day
Using Slop (and Slop in Articles) to Attack Copyleft 'on Budget'
This article is pure BS from an anti-GPL and anti-RMS 'activist'
Why The Register MS Sold Out to Microsoft: They're Losing Lots of Money, The Register MS is Bleeding to Death, Based on Its Own Financial Records
With over 6 million pounds in debt (nearly 10 million US dollars) we guess it's likely some other company will take over the site (if it deems it worthwhile)
Microsofters' SLAPP Censorship - Part 7 Out of 200: Like With the Serial Strangler From Microsoft, Misuse of UK-GDPR to Try to Hide Embarrassing Facts
They do and say really bad things, then allege it's a "privacy violation" to mention those things
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 08, 2026
IRC logs for Sunday, March 08, 2026
Gemini Links 09/03/2026: Exponentials and Tailscale
Links for the day
Sloppyleft
Article by Alexandre Oliva
Hard to Replace 'Human Touch'
The reason many people insist on using GNU
Richard Stallman Gives Talk in 20 Hours at Ostschweizer Fachhochschule Campus in Rapperswil-Jona
The talk is in English
The Slop Companies Gamble at Our Economy's Expense and They Know It's a Losing Bet (So It's a de Facto Robbery)
The crash of this bubble isn't just inevitable, it's already happening and receding sporadically because of false announcements about money that does not actually exist (to "buy time")
Suppressing Speech by Blackmail, the Iran Story
When Debian wanted to stage a seemingly legitimate election it needed to have more than one candidate running; so eventually the female partner of a geek rose to the challenge (had no coding skills at all, no technical history in Debian) and lost to the "incumbent German"
Too Focused on Buzzwords the Media is Paid to Saturate the Collective Mind With
Just because companies do really bad things in the digital realm does not imply "AI" or follow from "AI"
Discrimination and Prejudice Against Female Journalists
we can shame people who attack a reporter on the grounds of gender
An American War on GNU/Linux, Software Freedom, and British Investigative, Science-Based Reporting - Part II - Trying to Put People in Prison for Committing the Act of Journalism
This is abuse of process
Attack on Copyright and Copyleft by Code Conversion Is Nothing New, It Predates Slop (Code Produced by LLMs) by Several Decades
Even back in the 90s many people converted programs from one language to another. That could invalidate copyleft (and copyright), which already existed
Almost a Slopless Weekend for "Linux"
Let's hope slop will come to an end or sites will cease linking to slop
Insiders Explain Why IBM is Dying and the Inherent Culture Problem
There are many ways to shave this IBM cat
Links 08/03/2026: Microsoft Lost $400 Million on "Project Blackbird" and Half the States Sue Over Illegal Tariffs
Links for the day
Links 08/03/2026: Cisco Holes Again and "Blatant Problem With OpenAI That Endangers Kids"
Links for the day
Activism/Journalism in Our Blood
one must fight for one's principles
Gemini Protocol in Its Prime
What's particularly neat about Gemini Protocol is that it's fast and cheap
Microsofters' SLAPP Censorship - Part 6 Out of 200: Intentionally Misnaming Women, People Who Offered to Testify That They Too Had Been Subjected to Similar Abuse
Today it is International Women's Day
Even Fedora Leadership Cannot Figure Out the Microsoft Kill Switch/Back Door, 'Secure' Boot
It does not actually enhance security
Bruce Perens: Richard Stallman "Has Achieved His Goal"
Stallman's next talk is tomorrow
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 07, 2026
IRC logs for Saturday, March 07, 2026