Bonum Certa Men Certa

The Patent Trial and Appeal Board (PTAB) and Patent Reform (AIA) Generally Too Popular to Stop, But Patent Law Firms Helped by Andrei Iancu Keep Trying

Patent maximalists' Office takeover isn't a court/s takeover

Andrei IancuSummary: The patent microcosm together with Andrei Iancu (who himself came from the patent microcosm) is frustrated to have come to grips with quality control; low-quality patents continue to be rejected by courts

WHETHER it likes it or not, the leadership of the USPTO will need to adapt to court rulings, not selectively but properly. Otherwise people will lose confidence in US patents and will no longer pursue these.



There's this thing we recently dubbed "Cult of Patents"; they're patent maximalists who insist that innovation cannot happen without patents, that patents are a "property", and that patents are justified for thoughts, nature etc. In short, they're pretty badly deluded.

"There's this thing we recently dubbed "Cult of Patents"; they're patent maximalists who insist that innovation cannot happen without patents, that patents are a "property", and that patents are justified for thoughts, nature etc."Mohamed Salem Abou El Farag from Qatar University's College of Law said in his paper dated May 5th (2018): "Intellectual property (IP) is the branch of law that protects innovations and creations..."

But no, it is a propaganda term rather than a law and sometimes -- if misused/overused -- it actually damages innovation and creation. This has been demonstrated empirically in the past. Why are some people still saying things like these? They can just stop saying "IP" altogether. It's a misleading propaganda term. If they mean patents, then they should say "patents", not "IP". How about this one (titled "Intellectual Property")? "There are four general areas of IP," it said some days ago, "patents, trade secrets, copyrights and trademarks. It’s important to understand the four types and how they differ."

"They can just stop saying "IP" altogether. It's a misleading propaganda term. If they mean patents, then they should say "patents", not "IP"."Why say IP or “Intellectual Property” at all? By the article's own admission, there are "patents, trade secrets, copyrights and trademarks."

They're completely different laws; they work differently.

Another new article of note speaks of patents "in connection with 3D printing technology" -- the sorts of patents which famously held back 3D printing for a number of decades (the same goes for drones). To quote:

An increase in attempts to obtain patent protection in connection with 3D printing technology means the patent space in this area has become very crowded, likely an indication that additive manufacturing is overtaking traditional manufacturing processes.

Not only 3D printers themselves but also certain mechanical parts for computing and manufacturing might be subject to patent protection. Of course, software used for 3D printing (like all software) enjoys copyright protection in most jurisdictions. But software can also be eligible for patent protection in some countries (such as the US).

Thus, new entrants must be careful not to infringe others’ patent rights. When trying to safeguard their own additive manufacturing's critical IP, businesses should analyse their options under patent law and consider securing IP through trade secret protection, copyright and design laws.


In the case of 3D printing we have a classic example of patents actually slowing down and preventing innovation. This does not quite apply to trademarks or even to copyrights, as similar ideas can be expressed under different brands and using different words.

Speaking of "different words", many people nowadays try to patent old things by using buzzwords and new/different words, e.g. "cloud" for server or "AI" for some clever algorithm. Here is an example of 'cloudwashing' in a press release from a few days ago:

The patent for invention 9,973,499 is issued for technology that extends greater endpoint trust, through identity verification and policy enforcement, for secure network-to-network and network-to-cloud connections.


This is, by the sound of it, a software patent. But the wording doesn't say anything remotely like that. Over at Watchtroll, Samuel Hayim and Kate Gaudry admit what many patent lawyers prefer to deny in order to attract/lure gullible businesses into software patent pursuits (in vain). "Eligibility Rejections are Appearing in Greater Frequency Across all Computer Related Technology Centers," says their headline and here are some bits:

Four years after the Alice decision...

[...]

The frequency of any particular rejection type may be influenced by seminal Federal Circuit and Supreme Court cases. Judicial decisions are interpreted into policy decisions by the United States Patent Office (USPTO) and distributed to patent examiners in the form of examination guidance memoranda and other training materials. At least initially, major changes in jurisprudence are more likely to burden applications in the technological art analyzed by the court than applications in other arts as the USPTO will extend the courts analysis to those applications pending in that technological art. Yet, as the dust settles, the full impact of these decisions may be seen across all technology centers (TCs) of the USPTO.

[...]

Examiners have not been the only obstacle to securing patents for business-method technologies. For example, we recently analyzed Patent Trial and Appeal Board (PTAB) ex parte appeal decisions having had Appeal Briefs filed after the Alice decision. We reviewed PTAB decisions from computer related technology centers, including TCs 2100, 2400, 2600 and the business method portion of TC 3600. Nearly all eligibility rejections at issue stemmed from the business-method art units[5], and a mere 7% of those appeals were successful (i.e. reversed).[6] Thus, the Alice decision had a significant impact on the applications from business method art units.


Patent maximalists have meanwhile gone so insane or incredibly selfish that they nowadays bash their own country, notably the US, using sheer lies while glamouring China not because it's good but because patents are out of control there, software patents included. We wrote about that twice over the weekend.

Adding insult to injury (to the system), some patent lawyers have gone as far as plotting patent "scams" wherein patents are being passed to tribes to avoid justice. That just wouldn't fly however (at many levels, including Congress/Senate, courts, PTAB and public forums). Here's the latest of that:

Earlier this week, the Supreme Court released their decision in Upper Skagit Indian Tribe v. Lundgren. The opinion effectively held that the simple fact of in rem jurisdiction does not always bar claims of tribal sovereign immunity.

In rem jurisdiction is one argument that might bar the new practice of renting tribal sovereign immunity to a patent owner in order to shield the patent from inter partes review (IPR). That argument, among others, is now being reviewed by the Federal Circuit in the St. Regis Mohawk Tribe v. Allergan case. (CCIA joined an amicus brief in front of the Federal Circuit.)

[...]

At first glance, it’s not obvious why the immovable property exception is relevant to patents. Patents are public franchises, not land. And patents are intangible property, not land tightly bound to a particular physical location.

But patents are a form of property, as Oil States made sure to emphasize. And patents have territorial limits, the scope of which are being decided in the WesternGeco case right now.

That second statement is important. Patents share an important characteristic with land—they are both geographically limited forms of property, and those geographical limits are fixed and immovable. Land has boundaries; United States patents apply only within the United States. While you can transfer ownership of a patent to a foreign entity, just like you can sell land, the patent itself will still only apply within the United States and the rights associated with the land will only apply within the deeded boundaries.

That means that, like land, patents are (at least in a sense) immovable property permanently situated within the United States. And any decision which allows the application of sovereign immunity to patents thus creates an offense to the sovereignty of the United States in the same way that applying sovereign immunity to prevent a state from determining the status of its own land offends the sovereignty of that state.


Unified Patents has declared (6 days ago) that a patent "asserted in more than 50 district court cases" will no longer bother the world, owing to a PTAB IPR:

On May 18, 2018, Anuwave LLC (an IP Edge entity) and Unified Patents Inc. filed a joint request to terminate IPR2018-00223 prior to institution pursuant to settlement. U.S. Patent 8,295,862, the subject of the IPR petition, relates to banking through SMS and has been asserted in more than 50 district court cases.


Therein lies the power of PTAB. But an ideal situation would have been invalidation.

The bottom line is, the USPTO granted far too many dubious patents whose potential is to harm rather than to foster innovation. That ought to change. Patents are supposed to advance the public interest.

Recent Techrights' Posts

Confirmed in French Media: Mass Layoffs (10% Culled) in Microsoft France
Now some reports in French
Microsoft in Freefall in Finland
Can Finland eradicate Windows from all its infrastructure, including core operations that are sensitive to sabotage by cracking?
Google's Chrome Passes 70% and Web Standards Are Dying
The Web is quickly becoming devoid of any standards
Slopwatch: Plagiarism and Ponzi Scheme, Bubble About to Burst Entirely, Admits Goldman Sachs
the hype that Google News and The Register MS actively participate and profit from
The Register MS Says "AI Web Crawlers Are Destroying Websites", So Why Does The Register MS Help 'AI' Companies? (Spoiler: Money)
People need to call out The Register MS on its hypocrisy
Slopfarms Already Peaked, They Will Die When Slop Companies Run Out of Money to Borrow
slopfarms will lack an actual "engine"
Why We Publish Information About the SLAPPs (But Not About the Legal Process), an Abuse of Process by Americans Trying to Silence Critics of Their Employer, Microsoft
It doesn't take thousands of pages to explain something simple
 
Links 02/09/2025: Oligarch Tech and Text Encoding Concerns in Ada
Links for the day
"Internal Changes at Red Hat / IBM"
It seems like quite a few people are leaving
"People on LinkedIn Saying That They've Left Red Hat."
We already saw signs of it a month ago and named some of the people
Gone With the BRICs (or BRICS): "Linux 8" in Cuba
GAFAM must be worried
Telecompaper Reports Microsoft to Reduce the Workforce by Another 10% (in France)
Imagine what this will do to staff's morale
India is Back to Windows 8 (Market Share Down to 8%) as Android Soars to a New Record High
For Microsoft, India is a runaway market
Links 02/09/2025: SCO Summit and Russia Suspected Of Jamming GPS
Links for the day
Gemini Links 02/09/2025: Mediterranean Marriage and Staying Connected at 35,000 Feet
Links for the day
Links 02/09/2025: Attacks on Unions, Microsoft TCO, and DDoSing a Growing Problem
Links for the day
Internet Relay Chat Didn't Fall Off a Cliff
IRC will turn 40 in less than 3 years from now
The UEFI 9/11 - Part V - This is Not a Drill (Disable "SecureBoot" Now)
A "9/11" Coming
There's No Obligation to Speak to Anybody
The very fact that "bkuhn" is till spending time in social control media says a lot about his poor judgment
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 01, 2025
IRC logs for Monday, September 01, 2025
Microsoft Trying to Force People to Resign (Amid Mass Layoffs) a Strategy That Takes Its Toll
Microsoft seems to be circling down the drain and the "final flush" will be the moment the "hey hi" (AI) bubble implodes completely
Google Simply Cannot Be Trusted
Only fools would trust GAFAM
Admission That a Third Party (or Parties) Funds the SLAPPs Against Techrights
This can end up costing them over a million dollars
Modifying and Writing One's Own Computer Programs is Not a Crime (or: Google Proves That Stallman Was Right)
We're generally gratified to see so many positive mentions of him
Why We Stopped Publishing Videos (for Now)
We'll probably get back to videos one day, but it's hard to say when or to what extent
What Animal Rights Activism Teaches Us About Sympathy and Focus
It's possible to believe that the planet is warming, that we must do something about it, and still eat eggs and butter
When You Turn Web Sites About Tech Into Political Sites
A lot of people fall into the trap of catering only for particular groups
Gemini Links 02/09/2025: ROOPHLOCH 2025 and Lagrange 1.19 Released
Links for the day
Gemini Links 01/09/2025: News Corp. WSJ and A Month With NixOS
Links for the day
“Sideloading” Never Killed Anybody
There are many online discussions this week about the misnomer "sideloading"
Slopwatch: Google News as FUD Vector Against Linux and Plagiarism Enhancer, Serial Slopper (SS) Uses LLMs to Googlebomb "Linux"
Slop destroys the Web not just by screwing with search engines and helping plagiarists. It's also responsible for de facto DDoS attacks...
Links 01/09/2025: "Attacks on Science" and China's "Soft Power" Grows
Links for the day
Links 01/09/2025: Fresh Backlash Against Slop and "Norway’s Electricity Crisis is About to Hit Britain"
Links for the day
Writing and Coding Isn't Always Enough
Last year we had to assume a role we didn't have before: litigants
Links 01/09/2025: Catching Up (Mostly via Deutsche Welle), "Windows TCO" Effect in UK
Links for the day
Gemini Links 01/09/2025: Linguistic Barriers and "Web 1.0 Hosting"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, August 31, 2025
IRC logs for Sunday, August 31, 2025
Autumn Has Come
Autumn should be exciting in all sorts of ways; it'll also mark our anniversary
The UEFI 9/11 - Part IV - External Interference
They all seem to be playing a role in crushing Software Freedom and self-determination for users
Links 31/08/2025: Baggage Claim Scams, an Insurrectionist’s War on Culture, and a Sudden Robotics Hype
Links for the day
Gemini Links 31/08/2025: Reviewing Netsurf and Slightly Less Historic Ada Design
Links for the day
IBM Has Taken Control of GNOME
Don't expect a successor to be found any time soon
Links 31/08/2025: Google Gmail Data Breach and LF Puff Pieces for Pay
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, August 30, 2025
IRC logs for Saturday, August 30, 2025
This is What Google News Has Become
Moments ago