Bonum Certa Men Certa

The Patent Maximalists Are Losing the Battle Over PTAB/CAFC Policies/Caselaw, Resulting in Underhanded Tactics

Palacio Legislativo en Montevi



Summary: Policies don't favour the patent maximalists anymore; but they attempt to use anything they can to change these policies, even if that means manipulation of information and deceptive tactics (stirring up controversies where there are none)

WE typically mention the Federal Circuit (CAFC) in relation to the Patent Trial and Appeal Board (PTAB) because PTAB appeals go to CAFC, which typically just affirms PTAB's decisions.

PTAB and CAFC are generally disliked by Patently-O, which tries to slow them down and mocks judges (only to apologise when blasted for it).

"In this case," Patently-O wrote yesterday, "Prof. Lemley is representing the patentee Nichia who’s asserted claims were found invalid by a jury. The patent, U.S. Patent No. 5,998,925, covers an improved white-light LED."

"PTAB and CAFC are generally disliked by Patently-O, which tries to slow them down and mocks judges (only to apologise when blasted for it)."This is a CAFC case and one which Patently-O sheds light on (pardon the pun) because it suits Patently-O's agenda. The Alice test (or Section 101) has long been applied by CAFC to invalidate software patents, i.e. something vastly different from the "white-light LED" noted above. Sites like Watchtroll and Patently-O will no doubt look for anything to discredit PTAB and CAFC, even 'borrowing' cases that have nothing to do with Section 101. Here is an example from 4 days ago and another which concerns Mayo rather than Alice (i.e. life, not software), as we noted a week ago. Dennis Crouch (Patently-O) wrote about it in relation to SCOTUS. To quote Crouch:

The claim in Vanda is directed toward a method of treating a patient suffering from schizophrenia with the drug iloperidone. The drug was already known as a schizophrenia treatment prior to the invention here, but some individuals did not tolerate the drug well (risk of “QTc prolongation”). The major discovery of the inventors here was that a genetic difference (the “CYP2D6 genotype”) led to those folks likely being poor metabolizers of iloperiodon.


This is really about Mayo rather than Alice. But it relates to Section 101, so they cite it anyway. Not only Watchtroll and Crouch do this but also his blog colleague, Jason Rantanen, who wrote about Broadest Reasonable Interpretation (BRI) rather than patent scope. They try to alter PTAB/CAFC scope of operation by soliciting input from the patent maximalists (who are their principal target audience). Watch what Patent Docs has just published.

"Considering the utter lack of favourable (to their agenda) cases, it's hardly surprising that they already attempt to spin numbers..."The pattern we wish to highlight here (again pardon the pun) is one where patent maximalists cherry-pick cases about lights and life. They pick patent cases and potential interventions in PTAB and CAFC, hoping to set off a controversy and compel the administration of the USPTO to change course. Considering the utter lack of favourable (to their agenda) cases, it's hardly surprising that they already attempt to spin numbers as noted yesterday evening. They're totally losing it.

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