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

Slopwatch: A Cause for Hope, the Hype is Dying
For about a month we showed that becoming a slopfarm - for several weeks - resulted in utter failure and ruin for BetaNews
The EFF Sided With the Team That Strangles Women and Tells Women to Kill Themselves
They say that apathy and inaction are a form of a "stance"
Exemplary List of Things That Are Not Artificial Intelligence or Even Intelligence
The "age of AI" or "era of AI" or "AI revolution" mostly boils down to rebranding, just like "the cloud"
GitHub Copilot Can Cause the Bankruptcy of GitHub to Come Sooner and GitHub to be Shut Down Just Like Skype
Some publicly available information suggests that even for each paid subscriber for plagiarism (LLM 'coding') GitHub Copilot still loses more money than it makes
Our Lawsuits Against the 'Cancel Mob' (Ringleaders) Helped Reduce Anti-Free Software Online Abuse
That's not to say that lawsuits are the best way to handle terrible people. But that can help.
 
Microsoft - Like IBM - Does the "Relocation" Tricks (Start Over Elsewhere, Then Get Sacked by Microsoft)
It is a "low blow" or a "dick move"
After the Free Software Foundation's Campaign to Raise Money Let's See Campaigns to Finish Off Microsoft (Vista 11, GitHub etc.)
Microsoft is in effect collapsing
Your Publications Have No Major Impact Unless or Until You "Get Some Heat"
we're on the right track
Links 11/07/2025: Censorship Worsening, 3D Printing Success Stories, UK and France Unite Around Nukes
Links for the day
Gemini Links 11/07/2025: Zorin OS and Scriptonite Updates
Links for the day
Links 11/07/2025: Hardware, Russia, and China
Links for the day
Links 11/07/2025: Intel Collapsing and Microsoft Resorts to Bribery to Push Slop Via Obligatory Education
Links for the day
"Nat [Friedman] and [the Serial Strangler From Microsoft] Were Always Exceptionally Close," Says Former Housemate and Colleague
Now Alex (hiding behind another name when that suits him) not only attacks women but also people who merely report what he did to women
New Letter From the European Patent Office Explains How the Office Plots to Grant Many Illegal Patents, a Self-Fulfilling Prophecy of 'Growth'
Open letter to Mr Rowan (VP1) and Mr Aledo Lopez (COO)
Abuse of Process
5RB is employing people who help violent men
What Microsoft's Nat Friedman and Microsoft Lunduke Have in Common
"Get in da car; No time to explain, loser"
Microsoft and IBM Don't Have Much of a Future (They Mostly Pretend at This Point)
IBM and Microsoft are in some ways alike but in many ways different
It's Not Just Twitter (or X.com) That's Dying, Microsoft's Equivalent is Dying Also
Unable to find a business model
Wayland is Bad for the Planet
If you use Wayland, it'll take you longer to accomplish tasks and you will consume more energy (or battery life)
Legitimising Those Who Sabotage You
Microsoft is a very malicious company
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 10, 2025
IRC logs for Thursday, July 10, 2025
On Microsoft Layoffs
we might be looking at about 60,000 Microsoft layoffs since 2023
EPO Management Already Breaks Its Own Promise (Lie) on "Bringing Teams Together"
This gut-punching move happened just 2 days ago
Gemini Links 11/07/2025: Occupation of 2025 and "Old Man Yells At Soundcloud"
Links for the day
Tomorrow is the Last Day of the Fund-Raising Campaign of the Free Software Foundation (FSF)
They will probably extend the date, as usual
Fixing Patents in Europe, Little by Little (by Transparency and Reporting of Suppressed Facts)
Tomorrow and throughout the weekend we shall focus some more on the EPO
The Two Lies Microsoft is Telling in "the News" This Week (to Distract From Layoffs and Decreased Interest in Slop/Chaff)
Microsoft is run by liars and frauds who SLAPP critics
Tux Machines Already Destroyed SLAPPs
Attacks on the mere publication of GNU/Linux news won't be tolerated
PCLinuxOS is Available for Download Again
PCLinuxOS is important to us also because its founder, back then the partner of Susan, helped create Tux Machines more than 21 years ago
Links 10/07/2025: Microsoft E-mail 'Services' Collapse Again, "Yet Another Strava Privacy Leak"
Links for the day
Gemini Links 10/07/2025: Automating Git Repo Updates and Small Web 'Zine'
Links for the day
GNU/Linux Leftovers
mostly Linux stuff
Audiocasts/Shows: Going Linux, FLOSS Weekly, and RHEL Clones
3 new picks
We Are Already Fighting - With Considerable Success - SLAPPs in the UK
we intend to tell the full story
Bullies With Pens and Papers (or Apple Macs With Templates)
Not all barristers are evil, but there are perhaps "rotten apples"
Slopwatch: webpronews.com, linuxsecurity.com, linuxjournal.com
a pile of trash disguised as 'articles'
Links 10/07/2025: Linda Yaccarino Divorces MElonazi Site, Wildfires Hit Syria
Links for the day
The History and the Policy of the EPO's Stance on Breastfeeding (Corporate Monopolies Versus Babies' Health)
"The Case for Introducing a Breastfeeding Policy at the EPO"
Gemini Links 10/07/2025: Inventing Chords and "Nightmare Boss"
Links for the day
Igor Ljubuncic Once Again Shows That for Technical Reasons Wayland Still Sucks, Performs Considerably Worse Than What Existed for Decades
That is aside from compatibility factors and other crucial factors
Links 10/07/2025: "Apple Vs The Law" and Twitter Became Full Nazi Bar
Links for the day
Unable to Find Anyone to Work as Their Media Lawyer, Brett Wilson LLP Will Continue Losing Female Staff
What sort of sick person would wish to join Brett Wilson LLP to carry this baton?
Microsoft-Sponsored Propaganda Site Has Removed False 'Hit Piece' About Dr. Stallman (With Fake and Misrepresented Imagery) But Only After 4 Years
So they only removed that page some time around 2025, i.e. about 4 years after it had been published
Always Check Your Inputs
Garbage in, garbage out. Or wrong assumptions, wrong corollary.
Dan Neidle Said That Tax Evasion Facilitator Mr Zahawi (Working to Silence Bloggers Through Brett Wilson LLP) Targeted Not Only Him (But The Others Kept Quiet)
"Mr Neidle said after repelling Mr Zahawi he was contacted by bloggers and tweeters who had received similar threats. They deleted their work “and in most cases never commented publicly on anything again”."
SLAPP Funding Transparency Urgently Needed in the UK and Elsewhere (in Practice, Not Just in Theory)
Writing about crime - including Microsoft crime - is not a crime
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 09, 2025
IRC logs for Wednesday, July 09, 2025
Elodie Bergot Still Doing Illegal Things at the EPO, Based on the Local Staff Committee Munich
They keep taking away from the staff while compelling the staff to do illegal things
Gemini Links 09/07/2025: Extreme Testing and Golang Documentation in Geminispace
Links for the day
Vice President of the European Patent Office (EPO) Complains That Techrights Gives Visibility to Legal and Technical Issues at the EPO
"Follow-up on enquiries relating to Dir. 1218 and 1001"
Slopwatch: linuxsecurity.com and Various Slopfarms That Lie About "Linux" and Are Promoted by Google News
Google does not seem interested in tackling this problem
Links 09/07/2025: War Updates and Microsoft Moving to India to Cut Costs
Links for the day
GNU/Linux Was Always a 'Movement' of Inclusion of Tolerance
Even the licences themselves remove access barriers
Links 09/07/2025: "Subprime AI Crisis" and "OpenAI May Be in Major Trouble Financially"
Links for the day
Huge Piles of Legal Papers ('Paper DDoS') Do Not Impress Judges and Regulators
they just make judges and regulators even more suspicious of the eagerness to resort to 'paper DDoS'
Brett Wilson LLP Sent Over 5 Kilograms (or Over 12 Pounds) of Legal Papers! Because Writing About Microsoft Abuses is 'Illegal'.
How do you guys sleep at night? On a big pile of Microsoft money?
Extremism as a Weapon Against GNU/Linux (Microsoft Lunduke)
He ought to know the Halloween Documents. Wasn't he a Microsoft employee when these came out?
Lunduke Isn't Even Hiding His Anti-Linux Agenda (From "Linux Sucks" to "Linux is Pedophiles")
just trying to make a lot of trouble
Some People Use Computers to Get Actual Work Done
Tolerance and inclusion must extend to acceptance that some people don't agree with you, might never agree with you, and imposing what allegedly works for you on them is unreasonable
Example of "Old" Things That Still Work
The notion that something being "old" implies it must be discarded is typically advanced by those looking to sell more of something
Some Scheduled Maintenance Later Today
Typically the most vulnerable service during short interruptions is IRC
Computers Are Just a Tool
People don't get married because they love weddings, folks don't join the army because they love war, and most drivers don't drive to work because they love cars
Apple Way Past Its Prime
Apple deserves a decline
The FSF's SysOps Team Recovered From Serious Hardware Issue Within Hours
About half a day ago I noticed that all/most GNU/FSF sites were not reachable and thus reached out to a contact for any details
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 08, 2025
IRC logs for Tuesday, July 08, 2025
Slopwatch: Turning Bugs Into FUD About "Linux", Getting Basic Facts Wrong
all the screenshots are of fake articles; we don't want to link to any
Technical Reasons, Not Politics: With Wayland "it feels a lot like Linux from 20-25 years ago, which is horrendously frustrating, because it feels like we wasted one or two decades of progress and stability"
Lately, quite a few benchmarks were published to show Wayland compares poorly compared to what we had
PCLinuxOS Recovering From Fire
It looks like a nightmare scenario, where even backups onsite get destroyed
Links 09/07/2025: More Heatwaves, Officials Culled in Russia
Links for the day
Gemini Links 09/07/2025: XScreensaver and Resurrection
Links for the day