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

Linuxiac May Have Reverted Back to LLM Slop (Updated Same Day)
Is he back off the wagon?
Links 15/01/2026: Internet Blackouts, Jackboots Society in US
Links for the day
The Last 'Dilberts' or Some of the Last Salvaged (Comic Strips Which Disappeared Shortly After They Had Been Published)
Around the time the creator of Dilbert went silent he published some strips mocking TikTok and usage of it
GAFAM is a National and International Threat to Everybody
GAFAM is just a tentacle in service of imperialism
Don't Cry for Gaslighting Media in a Country Which Loathes the Press
my wife and I received threats for merely writing about Americans
 
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, January 15, 2026
IRC logs for Thursday, January 15, 2026
Gemini Links 16/01/2026: House Flood and Pragmatic Retrocomputing Dogfooding
Links for the day
Links 15/01/2026: Starlink Weaponised for Regime Change (by Man Who Boasted About Annexing South American Countries for Tesla's Mining), Corruption in Switzerland Uncovered by JuristGate
Links for the day
GAFAM and IBM Layoffs Outline
a lot of the layoffs happen in secrecy and involve convincing people to resign, retire, relocate etc.
Coming Soon: Impact With EPO Cocainegate
Will Campinos survive 2026?
The Creator of Git Probably Doesn't Know How to Install and Deploy Git
Nobody disputes this: Mr. Torvalds created Git
Slop is a Liability
Slopfarms too will become extinct because people aren't interested in them
EPO People Power - Part XXXVI - In Conclusion and Taking Things Up Another Notch
They often say that the law won't deter or stop criminals because it's hard to enforce laws against people who reject the law
Running Techrights is Fun, Rewarding, and Gratifying
In Geminispace we are already quite dominant
Red Hat is Connected to the Military, Its Chief Comes From Military Family (From Both Sides)
The founder of Red Hat's parent company literally saluted Hitler himself (yes, a Nazi salute)
Red Hat (IBM) is Driving Away Remaining Fedora Users
I've not used Fedora since Moonshine
Robert X. Cringely Has Already Explained IBM's Bullying Culture (Towards Its Own Staff)
IBM is a fairly nasty company
Proton Mail compromise, Hannah Natanson (Washington Post) police raid & Debian
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, January 14, 2026
IRC logs for Wednesday, January 14, 2026
Gemini Links 15/01/2026: "Ode to elinks", envs.net Pubnix and Downtime at geminiprotocol.net
Links for the day
Still Condoning Child Labour and Exploiting Unpaid Children Developers as PR Props (to Raise Monopoly Money)
These people lack morals. So they project.
"Security, AI or Quantum" on "the IBM Titanic"
Who's RMS?
Hours Ago The Register MS Published Microsoft Windows SPAM "Sponsored by Intel." The Fake 'Article' Says "AI" 34 Times.
The Register MS isn't a serious online newspaper
EPO People Power - Part XXXV - Where Else Will Corruption and Substance Abuse be Tolerated?
We need to raise standards
Status and Capital
People who do a lot are too busy to boast about it and wear fancy garments
IBM Paying the Price for Treating Workers Badly and Discarding Real Talent (Because It's "Expensive")
IBM is dead man walking
Turbulence Ahead
I last rebooted my laptop in 2023
Google News Rewards Plagiarism With LLMs (About Linux, Too)
Google is in the slop business now
Links 14/01/2026: Failing Economy and Conquest Abroad as a Distraction From Domestic Woes
Links for the day
Gemini Links 14/01/2026: The Ephemerality of Our Digital Lives and "Summer of Upgrades"
Links for the day
Projection Tactics - Part III: Silencing Inconvenient Voices Online
If X gets banned in the UK, it'll be hard to see what the spouse says in public
Outsourcing on Microsoft's Agenda, Offshoring Also
"In some cases, India hiring is poised to replace certain roles previously based in the U.S."
Links 13/01/2026: 'Dilbert' creator Scott Adams Passes Away With Cancer, Ban on X/Twitter Considered for CSAM Profiteering
Links for the day
The Goal is Software Freedom for All
Anything to do with "Linux Foundation" is timewasting
Reminder That Red Hat Enterprise Linux (RHEL) Is Not Free, And It's Because of IBM
software freedom just 'gets in the way'
Under IBM, in Order to Game the Stock Market, Red Hat Resorted to Boosting the Biggest Ponzi Scheme in Human History
This is what IBM turned Red Hat into
Revision handed Microsoft the keys to the distortion of the past/history
This isn't the first time The Register MS rewrites computing history in Microsoft's favour, as we pointed out several times in past years
What Will Happen to GAFAM After the US Defaults Rather Than Bails Out the Market?
Or tries to topple every government that doesn't play by its rules?
EPO People Power - Part XXXIV - Bad Optics for the European Union (for Failing to Act and Tolerating Cocaine Use in Europe's Second-Largest Institution)
There are principles in laws which tie awareness with complicity
EPO's Central Staff Committee is Now Redacting (Self-Censoring) Due to Threats From the EPO "Mafia"
"On the agenda: salary adjustment procedure for 2025 (as of January 2026)"
"AI" (Slop) 'Demand' Isn't Growing, It's Fake, It's a Pyramid Scheme
They try to resort to 'creative' accounting (fraudulent schemes like circular financing)
Difficult Times at IBM and Microsoft Ahead of Mass Layoffs (Probably Before This Month's Results Unless Postponed to 'Prove' Rumours 'Wrong')
IBM and Microsoft used to be tech giants. Nowadays they mostly pretend by pumping up their stock and buying back their own shares.
Canonical: Make Ubuntu Bloated (Debian With Snaps), Then Sell the 'Debloated' Version for a Fee
If people want a light distro, then they ought not pay Canonical but instead choose a light (by design) GNU/Linux distro
People Don't Want "Just Enough", They'll Look for Quality
That's why slopfarms will go away or become inactive
Gemini Links 14/01/2026: 3D and Tiny Traffic Lights Pack
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, January 13, 2026
IRC logs for Tuesday, January 13, 2026
Slop Waning Whilst Originals Perish
Slop is way past its "prime"
XBox's 'Major Nelson' Loses His Job Again, This Time in a Microsoft Mono Pusher
Microsoft hasn't much of a future in gaming. XBox's business is in rapid decline and people who push Mono to game developers are the same