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

Slop's Achilles Heel: It Increases the Workload, Not Just Costs
Set aside its inability to scale well
Improving techrights.org
Technical debt (like 17 years with WordPress) is something that's better to address early, not later
Laos Leaving GAFAM Behind, Gradually
Yesterday evening it was measured at 10% for GNU/Linux at one point
China Says Goodbye to Microsoft
It is hardly surprising that Windows is shedding off userbase all around the world
 
Instant Impact: GNU/Linux Skyrockets to 10% in China Days After Policy Changes
Let's see what the 'aftermath' looks like by year's end
Links 19/08/2026: Timothy James King (AmigaDOS) Dies, GitHub Goes Offline, Finland Wants to Shun Social Control Media
Links for the day
Mass Layoffs at Dropbox, Blame the Debt, Not Slop Hype
The debt of Dropbox Inc., which isn't an imaginary (estimated) thing, is over 4 billion dollars
Microsoft is 'Angel of Death' to Developers (Even Its Own), 'Voluntary' Layoffs Happening Again
From what we are hearing and reading, there are 'voluntary' layoffs again
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, August 18, 2026
IRC logs for Tuesday, August 18, 2026
Gemini Links 19/08/2026: Shirts, Handwriting, and Fights in Geminispace
Links for the day
They Were Wrong All Along
Two women combined won't deliver a healthy baby in just 4.5 months
A "Tech Journalist" Would Not Cover Vote on LLMs as a Sex Issue
For a moment there you have to pause and wonder, is this a "Tech Journalist" or the Daily Stormer?
20,000 by Year's End
The "New Techrights" will have 20,000 pages by year's end
Last Night GNU/Linux Measured at 9% in Africa
Nighttimes in Africa are times when GNU/Linux usage on desktop/laptop devices typically surges, based on Clownflare [...] It changes in favour of GNU/Linux
Gemini Links 18/08/2026: Google Bait and Switch (Getting College People 'Hooked' on 'Cheap' Storage, Then Backups Gone), a "Question of E-mail"
Links for the day
Bluesky is in Trouble
Bluesky is a private company (unlike Bluesky Digital Assets Corp. in Toronto, that one runs a pyramid scheme!), so it's hard to know for sure just how much money it is losing
Links 18/08/2026: US Abandons South Korea, New Legal Disputes Over Slop Plagiarism in the Music Scene
Links for the day
Linux Losing Interest in Users' Freedom, Pursues DRM Instead
"Linux" is (or was, as GNU/Linux) meant to empower - not artificially restrict - the users
GNU/Linux in Ecuador and Colombia: Growing, Still Below International Average
locals turn away from Windows and try GNU/Linux instead
IBM is Dead or Dying. Now It Asks Workers to 'Resign' Voluntarily.
To save face, to pretend no layoffs are happening (as it might alarm shareholders) [...] We keep hearing more and more stories like that
Links 18/08/2026: Sergey Brin Controlling State Policies, "Dario Amodei's (Anthropic) Wife Is Closely Linked to Jeffrey Epstein"
Links for the day
SBS News Interviews Daniel Pocock
The locals say this PR stunt (by the bigot, Farage) was a waste of money
Clownflare Sees One in 7 Web Requests in Libya Originating From GNU/Linux
GNU/Linux has taken a (foot)hold there
Openwashing and Manifestos Composed in Private by Dictators With Deliberately Addictive (and Subsidised, Bundled) 'Tech'
It's long, so make a cuppa first
SLAPP Censorship - Part 153 Out of 200: Decades of Debt, Weaponising Borrowed Money to Try to Put Their Critics in Debt
they've always had a financial report by now
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, August 17, 2026
IRC logs for Monday, August 17, 2026
Gemini Links 18/08/2026: Solar Power, Kipple and Impermanence, Catastrophe Ethics
Links for the day
Evri (HermesUK) is Now Run by Bots and Hallucinating Scammers
Years ago they virtually removed support and tried chatbots instead
Less Technology, More Life
Technology is being associated (sometimes rightly) with physical and mental problems
Google Search Has Gotten Worse (a Lot Worse)
getting worse
Birthday in 80 Days
we'll start decorating and party online with our community
Loans and Massive Debt at Microsoft, This Won't End Well.
Microsoft running out of money to pay salaries (to the point of paying people for 'voluntary' layoffs) is a positive sign?
Gemini Links 17/08/2026: Life in Plain Text, Mimicking KARL, Release of Jugulans, Avoiding Slop
Links for the day
Clown Storage Without Backups
Setting up several reliable copies of the data, plus several off-site backups (this data is nowhere as sensitive as medical data), should only cost a few grand
FreeCAD is Becoming Slop-ware, Use LibreCAD Instead
It has regular releases and "Qt5 is mandatory" now [...] they at least audit what they add
Cuba and Venezuela High in Adoption of GNU/Linux
some of the "communist" nations
Links 17/08/2026: Myanmar’s Cholera Outbreak, China Sends Commercial Vessels Through Arctic
Links for the day
GAFAM Loyalty Has Come to an End, Morale Low, People Whose Future is Uncertain Choose to Become "Lifers"
morale is low and there's no loyalty anymore
SLAPP Censorship - Part 152 Out of 200: Injunctions Do Not Cover Criticism, They Have Scope
self-incriminating communications
Clownflare Sees About Quarter of Web Requests in Ireland Coming From GNU/Linux
Well, in Ireland it seems like many people adopted GNU/Linux
Clownflare: In Australia and New Zealand GNU/Linux Peaks at Over 10% During Working Hours
That right there is interesting in its own right
Slowing Down by Intention
At the moment we have 6 or 7 ongoing series
Gemini Links 17/08/2026: Chamboree, Partial Solar Eclipse, Lady Macbeth
Links for the day
Links 17/08/2026: "Bluesky Is Down Again!" and "Anti-Social Media"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, August 16, 2026
IRC logs for Sunday, August 16, 2026