Bonum Certa Men Certa

Supreme Court and Federal Circuit Precedents Might Make District Courts (Outside Texas) More Sceptical of Patents

Related: US Patent Trolls Are Leaving and the Eastern District of Texas Sees Patent Cases Falling by More Than Half

Some poker cards



Summary: As patent lawsuits scatter around the United States (not as concentrated around Texas anymore) there's a real chance of turnaround in terms of outcomes; we look at some recent cases

IN our previous post about the Federal Circuit (CAFC) we said that it had come under attacks from patent maximalists -- similar to attacks on the Patent Trial and Appeal Board (PTAB) and inter partes reviews (IPRs). Basically, everything which leads to higher patent quality is seen as "evil". The USPTO certainly doesn't mind granting as many patents as possible (the same is true for EPO management, which judges itself based on the wrong yardsticks as though it's a factory).



"Litigation should always be the last resort and if the underlying patents are found to be invalid (or the lawsuit lacking merit), then it is frivolous. "What we didn't notice before was the involvement of Chief Judge Sharon Prost in the aforementioned CAFC case, which was covered a week prior by Steve Brachmann. Boston University becomes precedence. To quote: "On Wednesday, July 25th, the Court of Appeals for the Federal Circuit issued a precedential opinion in Trustees of Boston University v. Everlight Electronics Co., reversing a lower court’s denial of a motion for judgment as a matter of law (JMOL) that challenged the validity of the asserted patent. The Federal Circuit panel of Chief Judge Sharon Prost and Circuit Judges Kimberly Moore and Jimmie Reyna found that the asserted claim targeted in the JMOL motion wasn’t enabled as a matter of law."

Boston University has a tradition of patent aggression. What about Boston Scientific Corporation, which was brought up last week in relation to Nevro Corp. v Boston Scientific Corporation et al?

As Docket Navigator put it: "The court granted defendant's motion for summary judgment that it did not infringe plaintiff's chronic pain treatment patents because the post-trial use of the accused systems fell within the safe harbor provision of 35 U.S.C. ۤ 271(e)."

There have been quite a few patent trolls and complaints about them in Massachusetts lately (Boston is in Massachusetts); a giant law firm focused on the District of Massachusetts some days ago, having chosen to push out its wrap-up into lawyers' sites [1, 2].

Litigation should always be the last resort and if the underlying patents are found to be invalid (or the lawsuit lacking merit), then it is frivolous. Such is the danger of patent maximalism. Generally speaking, do they need patents on everything? How about this new article about a "US patent on 3D printing mashed potato" (still under examination)? To quote:

A team of Chinese researchers has recently applied for a US patent on 3D printing mashed potato. This application builds on an earlier Chinese patent for 3D printing mashed potatoes. The Jiangnan University team has a wide array of patients between them from the improvement of vegetable paper, to improve the flavor of mushroom paste, to unlocking systems for screen doors, backlight displays, and software testing systems. These three inventors Min Zhang Zhenbin Liu and Chaohui Yang have indeed been very busy one has nine patents for 2018 alone. The 3D printing potato patent goes on to reference a number of other patents that 3D print candy or face masks. Specifically, this patent notes that one adds pectin or xanthan gum to a mashed potato mixture and then you add chocolate.


Notice that China -- being China (SIPO) -- already granted such a ridiculous patent. A win for patent maximalism, that's for sure.

Managing IP, a patent maximalism platform, is meanwhile amplifying patent trolls, speaking to the plaintiff in the Apple case (same for IBM) rather than the defendant. Because this is what this site stands for...

From the summary:

WiLAN got “every penny we asked for,” WiLAN counsel Mike McKool tells Managing IP, “because we were reasonable.” By estimating damages too low, Apple may have poisoned its case

A Southern District of California jury awarded Canadian IP licensing company WiLAN $145.1 million in damages for Apple’s infringement of two of its patents relating to voice-over LTE wireless communication technology on August 1.


The real danger here is that WiLAN, a patent troll, will use the money (if received) to pursue companies less wealthy and aggressive than Apple. Apple's patent on virtual keyboards, as mentioned the other day (it's still being promoted as recently as yesterday, e.g. in "Apple won't make a touchscreen MacBook, but a virtual keyboard might be coming"), is likely a software/abstract patent.

Docket Navigator also covered Global Tubing LLC v Tenaris Coiled Tubes LLC et al last week. To quote the summary:

The court denied defendant's motion to dismiss plaintiff's declaratory judgment claim for lack of an actual case or controversy.


There are signs of litigation in the District of Kansas, but Texas isn't dominant anymore. TC Heartland has changed a lot of things.

Suing in improper districts over patents, knowing that most courts would reject patents on software, isn't unusual. Now in Nevada, for example, there's this dispute (Voip-Pal.com, Inc. v Twitter, Inc.):

The court granted defendant's motion to transfer for improper venue and rejected plaintiff's argument that In re Cray’s three-part definition for "regular and established place of business" should not apply to web-based businesses.


And the ruling said (quoted by Docket Navigator): "These facts demonstrate that Defendant [Twitter] maintains no place of business in Nevada, much less one that is both regular and established."

Over the weekend we showed how Google's reliance on a third party with operations in Texas made it incapable of leaving Texas, in spite of TC Heartland.

Last but not least, Docket Navigator wrote about Bayer Healthcare Pharmaceuticals Inc. v Biogen Idec Inc.

The new 'daddy' of Monsanto (Bayer) is suing rivals, using patents of questionable validity, not too shockingly in the home state of Monsanto where many chemicals are being made, causing infamous pollution levels. "The court denied plaintiff's motion for summary judgment," it said, "that defendant was not entitled to lost profits damages for infringement of its interferon therapy patent on the ground that only defendant's subsidiary sold treatments in the U.S."

This case -- like many others -- isn't about patent scope, but it's worth noting that district court cases are all over the place, more so after TC Heartland. Will that make district courts statistically similar to CAFC? Time will tell...

Recent Techrights' Posts

Microsoft's Bing Falls to Fourth in the Europe/Asia-Based Turkey, Share Halved Since LLM Hype, Now Only 1% (Sometimes Less)
Turkey (Eurasia) is another example of Microsoft failing with LLM hype and just burning a lot of energy in vain (investment without returns)
Backlash and Negative Press After Microsoft Tells Diversity, Equity, and Inclusion (DEI) People to DIE
Follow-up stories
Censorship as Signal of Opportunity for Reform
It remains sad and ironic that Wikileaks outsourced so much of its official communications to Twitter (now X)
The World Wide Web Has Been Rotting for Years (Quality, Accuracy, and Depth Consistently Decreasing)
In the past people said that the Web had both "good" and "bad" and that the good outweighed the bad
Comoros: Windows Plunges to Record Low of About 6% in Country of a Million People (in 2010 Windows Was 100%)
Many of these people earn a few dollars a day; they don't care for Microsoft's "Hey Hi PC" hype
The Mail (MX) Server Survey for July 2024 Shows Microsoft Collapsing to Only 689 Servers or 0.17% of the Whole (It Used to be About 25%)
Microsoft became so insignificant and the most astounding thing is how the media deliberate ignores it or refuses to cover it
Windows Down From 98.5% to 22.9% in Hungary
Android is up because more people buy smaller mobile devices than laptops
Microsoft Windows in Algeria: From 100% to Less Than 15%
Notice that not too long ago Windows was measured at 100%. Now? Not even 15%.
Microsoft Windows "Market Share" in New Zealand Plunges to 25%
Android rising
SUSE Goes Aryan: You May Not Use the Germanic Brand Anymore (It's Monopolised by the Corporation)
Worse than grammar Nazis
Gratis But Not Free as in Freedom: How Let's Encrypt is Dying in Geminispace
Let's Encrypt is somewhat of a dying breed where the misguided CA model is shunned
 
Fedora Week of Diversity (FWD) 2024 Attracting 0.01% of the IBM Staff "Was a Success"
They expect volunteers (unpaid slaves) to do the PR for them...
African's Largest Population (Nigeria) Approaching 80% Android "Market Share" Amid Steady Monthly Increases While Microsoft Has Mass Layoffs in Nigeria
Microsoft- and Apple-sponsored Western (or English-speaking) media chooses to ignore that or treat it as irrelevant (a racist disposition in its own right)
[Meme] The Warlord's Catspaw
Thugs that troll us
Microsoft Misogyny Will be the Fall of Microsoft (Covering Up for Misogynists is a Huge Mistake and Highly Misguided Short-term Strategy)
Microsoft's undoing may in fact be its attitude towards women
Red Hat Keeps Behaving Like a Microsoft Reseller (for Proprietary Stuff!), Microsoft Employees as Authors in redhat.com
In some ways this reminds us of Novell
UEFI 'Secure Boot' Once Again Bricking PCs and Fake Security Models Are Perishing in Geminispace
Let's Encrypt has just fallen again
Links 17/07/2024: New Attacks on the Press, European Patents Squashed Even at Kangaroo Court (UPC)
Links for the day
Gemini Links 17/07/2024: Proponents of Censorship and New Arrivals at Gemini
Links for the day
Links 17/07/2024: School Budget Meltdown and Modern Cars as Tracking Nightmares
Links for the day
This Should Certainly be Illegal, But the Person Who Helped Microsoft Do This is Still Attacking the Critics of It
perhaps time for an "I told you so post"
[Meme] A Computer With an Extra Key on the Keyboard Isn't Everyone's Priority
(so your telling me meme)
Africa as an Important Reminder That Eradicating Microsoft Doesn't Go Far Enough
Ideally, if our top goal is bigger than "get rid of Microsoft", we need to teach people to choose and use devices that obey them, not GAFAM
Billions of Computers Run Linux and Many Use Debian (or a Derivative of It)
many devices never get updated or even communicate with the Net, so exhaustive tallies are infeasible
[Meme] Microsoft is Firing
Don't worry, Microsoft will have some new vapourware coming soon
More DEI (or Similar) Layoffs on the Way, According to Microsoft Team Leader
What happened shortly before Independence Day wasn't the end of it, apparently
[Meme] Many Volunteers Now Realise the "Open" in "OpenSUSE" or "openSUSE" Was Labour-Mining
Back to coding, packaging and testing, slaves
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 16, 2024
IRC logs for Tuesday, July 16, 2024
[Meme] Ein Factory
A choice between "masters" (or "master race") is a false choice that results in mass exploitation and ultimately eradication (when there's little left to exploit)
Links 17/07/2024: Open Source Initiative Lies and Dark Net Thoughts
Links for the day
Media Distorting Truth to Promote Ignorance
online media is rapidly collapsing
Android Rises to New Highs of Almost 80% in Cameroon
How many dozens of nations will see Windows at under 10% this coming winter?
Links 16/07/2024: TikTok Ban in Europe and Yandex Split
Links for the day
Gemini Links 16/07/2024: On Packrafting and on Trump Shot
Links for the day
[Meme] Firefox Users Who Think They Know Better Than Mozilla
Enjoy Firebook
Firefox Used to Have About Half the Market in Switzerland, But It Doesn't Stand a Chance Anymore (Chrome Surging This Summer)
Mozilla has managed to alienate some of the biggest fans of Firefox
Microsoft's Biggest Losses Are in Europe This Summer
Microsoft's ability to milk a relatively rich Europe is fast diminishing
How to Make Software Suck and Discriminate Against People at the Same Time
ageism glorified
Bing Was at 2.6% in Russia When LLM Hype Started. Now It's Down to 0.8% (for 3 Months in a Row Already)
The sharp fall of Bing may mean that exiting the Russian market won't matter to anybody
[Meme] Microsoft Seems to be Failing to Comply With WARN Act (by Refusing to Announce Mass Layoffs as They Happen)
since when does Microsoft obey the law anyway?
Microsoft Layoffs Are Still Too Frequent to Keep Abreast of and Properly (or Exhaustively) Classify
The "HR" department knows what's happening, but whistleblowers from there are rare
Bahamas Joined the "5% Windows" Club
statCounter only traces back about 1 in 20 Web requests to Windows
Links 16/07/2024: Salesforce Layoffs and Microsoft's DMARC Fail
Links for the day
Antenna Abuse and Gemini Abuse (Self-hosting Perils)
Perhaps all this junk is a sign of Gemini growing up
Possibly Worse Than Bribes: US Politicians and Lawmakers Who Are Microsoft Shareholders
They will keep bailing out Microsoft to bail themselves out
The Software Freedom Conservancy Folks Don't Even Believe in Free Speech and They Act As Imposters (Also in the Trademark Arena/Sense)
Software Freedom Conservancy was already establishing a reputation for itself as a G(I)AFAM censor/gatekeeper
Djibouti Enters the Windows "10% Club" (Windows Was 99% in 2010)
In Africa in general Microsoft lost control
GNU/Linux Share Doubled in the United States of America (USA) in the Past 12 Months
Or so says statCounter
Even in North Korea (Democratic People's Republic Of Korea) Google Said to Dominate, Microsoft Around 1%
Google at 93.26%
[Meme] The Red Bait (Embrace... Extinguish)
They set centos on fire, then offer a (de facto) proprietary substitute for a fee
Shooting the Messenger to Spite the Message
segment of a Noam Chomsky talk
[Video] Boston Area Assange Defense (Yesterday)
It was published only hours ago
Guinea: Windows Down From 99.3% to 2.7% 'Market Share'
Guinea is not a small country
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 15, 2024
IRC logs for Monday, July 15, 2024
What's Meant by "Antenna Abuse" (Gemini)
syndication is not a monopoly in Gemini and if one doesn't condone political censorship, then one can create one's own syndication service/capsule
Microsoft Layoffs and Entire Unit Termination: Diversity, Equity, and Inclusion
What an announcement to make just before Independence Day
Links 16/07/2024: Old Computer Challenge and One Page Dungeon Contest
Links for the day
Microsoft Falls Further and Closer Towards 10% (Windows "Market Share") in Kuwait
more countries entering the "single-digit Windows" (under 10%) club
Gemini Links 15/07/2024: Antenna's Pro-Hamas Bias Revisited and Old Computer Challenge
Links for the day
[Video] Julian Assange, Over One Decade Ago, Cautioning About What the Internet Had Truly Become
video is not new
Homage to Malta
Malta is probably easy for Microsoft to bribe
IRC at 16
Logging has been used for us and against us
In Malta, Android/Linux Has Overtaken Microsoft Windows (According to statCounter)
statCounter milestone?
Links 15/07/2024: China’s Economic Problems, Boeing Under Fire
Links for the day
500 Days' Uptime Very Soon
Good luck doing that with Windows...
Windows Falls Below 20% in Tunisia
A month ago we wrote about GNU/Linux in Tunisia
Links 15/07/2024: Google Wants Wiz and Why "Sports Ruin Everything"
Links for the day
Gemini Links 15/07/2024: Old Computer Challenge and Sending Files via NNCP
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 14, 2024
IRC logs for Sunday, July 14, 2024