Bonum Certa Men Certa

Alice/35 U.S.C. €§ 101 and PTAB Are Here to Stay and Even Their Critics (Patent Maximalists) Have Come to Accept That

Capitol building



Summary: Taking stock of the latest PTAB news and rants; the latter has become scarce because efforts to undermine PTAB have all failed

THE recent changes at the USPTO were relatively minor. Guidelines have barely changed, the chief judge of the Patent Trial and Appeal Board (PTAB) is merely swapping seats, and the courts continue to rule pretty consistently on patent matters. There's no real room for profound change and this, in a strange sort of way, is a good thing because Alice/35 U.S.C. €§ 101, frequently enforced by PTAB, renders a lot of software patents obsolete. The Federal Circuit (CAFC) affirms.



"There's no real room for profound change and this, in a strange sort of way, is a good thing because Alice/35 U.S.C. €§ 101, frequently enforced by PTAB, renders a lot of software patents obsolete."Over the past week we've been patiently watching new cases and new decisions. We're also still watching events like this one about PTAB; a few months ago there were many anti-PTAB events, but Oil States more or less ended that. PTAB is here to stay and patent maximalists are slowly learning to accept that.

"SCOTUS is instead looking into matters such as damage calculations and litigation venue, along with PTAB itself (two decisions about it earlier this summer)."What about 35 U.S.C. €§ 101? It hasn't really changed. There are talks about amending guidelines, but nothing substantial has changed and SCOTUS refuses to revisit the matter. SCOTUS is instead looking into matters such as damage calculations and litigation venue, along with PTAB itself (two decisions about it earlier this summer). 3 days ago San Antonio Business Journal wrote an update about the USAA case, wherein the underlying patent claims are currently being disputed. How typical. How depressing to patent maximalists this must be...

Steve Brachmann wrote about BSG Tech LLC v. BuySeasons, Inc. -- a case that we mentioned some days ago because it deals with software patents and Section 101 at a high level. Watchtroll also seems rather befuddled and confused by the fact that CAFC doesn't give a damn about the Berkheimer hype and still throws away/tosses out any such lousy software patents.

"On Wednesday, August 15th," Brachmann wrote, "the Court of Appeals for the Federal Circuit issued a precedential decision in BSG Tech LLC v. BuySeasons, Inc. which upheld a decision by the district court to invalidate patent claims owned by BSG Tech as patent-ineligible under 35 U.S.C. €§ 101. The Federal Circuit panel of Circuit Judges Jimmie Reyna, Evan Wallach and Todd Hughes found that the district court correctly determined that patent claim asserted by BSG Tech were invalid as abstract ideas lacking any inventive step under the Alice/Mayo framework."

Well, get used to it.

Knobbe Martens (a law firm, not a person) soon wrote about it as well. A bunch of lawyers said this:

Under step one of Alice, the Federal Circuit agreed with the district court that the asserted claims were directed to the abstract idea of considering historical usage information while inputting data. The Federal Circuit found that this was not a method “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of” wide access databases. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014). Further, the Federal Circuit found that the claims were not saved from abstraction merely because they require a specific database structure that is more specific than a generic computer. Also, the Federal Circuit stated that the claims did not recite any improvement to the way in which databases store or organize information.


CAFC on PTAB inter partes reviews (IPRs) has truly transformed the way examiners operate; they think twice before granting software patents and we increasing read reports about rejections. Here's a new CAFC decision regarding IPRs:

The US Court of Appeals for the Federal Circuit yesterday ruled that an inter partes review (IPR) filing is still subject to a time limitation even if a previous patent infringement claim has been dismissed.

In doing so, the Federal Circuit sided with Click-to-Call Technologies (CTC) and overturned a previous decision by the Patent Trial and Appeal Board (PTAB).

According to section 315(b) of 35 USC, an IPR petition cannot be instituted if it is filed more than one year after the petitioner was served with a patent infringement complaint.


A blog post by Dennis Crouch also remarked on this:

In an unusual en banc footnote, the Federal Circuit has ruled that the litigation time-bar found in 35 U.S.C. €§ 315(b) applies even in cases where the plaintiff-patentee voluntarily dismisses the lawsuit without prejudice. Click-to-Call Tech., LP v. Ingenio, Inc. and Iancu (Fed. Cir. 2018).


"Court says the PTAB was wrong to decide that voluntary dismissal without prejudice of a civil action in which the complaint was served “does not trigger” the one-year time bar under Section 315(b)," Michael Loney wrote.

IPR proceedings will continue unabated and entities such as Unified Patents will file IPRs as they see fit.

Watchtroll posted a new example of it earlier today. "Plano, TX-based patent owner American Vehicular Sciences LLC recently filed a petition for rehearing en banc with the Court of Appeals for the Federal Circuit. The petition relates to its appeal of inter partes review (IPR) proceedings conducted at the Patent Trial and Appeal Board (PTAB), which initiated as the result of a petition filed by Unified Patents," Watchtroll said.

American Vehicular Sciences, as we noted back in June, is part of a Microsoft-connected patent troll. Will it be disarmed?

Certainly we shall see PTAB-bashing in the future, but the frequency of that has greatly diminished. Here's Anticipat on Section 101 and PTAB:

As reported in today’s recap email, in Ex Parte GELFAND et al (Aug. 2, 2018), the Board reversed a lack of utility rejection. This continues a longstanding trend of the Board frequently reversing such rejections.


This is nonsense, there's no such trend. Anticipat is a malicious propaganda site against Section 101 and PTAB, just like Bilski Blog and Watchtroll, IAM etc. There has barely been, at best, a minuscule if not negligible difference and that too can be explained differently.

There are still some PTAB-hostile events on the way; earlier today Patent Docs advertised webinars of the patent microcosm on "PTAB Proceedings on Bio/Pharma Patents", the Intellectual Property Owners Association (IPO) on "Post-Grant Proceedings" and the scavengers from the U.S. Chamber of Commerce (malicious lobby group) lobbying lawmakers on patents:

The U.S. Chamber of Commerce Global Innovation Policy Center (GIPC) and the South Dade Chamber of Commerce and the Glen Ellyn, Lombard, Western DuPage, and Wheaton Chambers of Commerce will host two intellectual property and innovation business roundtables in Florida and Illinois


Being from the Chamber of Commerce, it's obvious whose agenda that will advance.

Patent Docs also advertised more benign webinars such as this, but the site as a whole has been full of PTAB-bashing. Their bias is impossible to hide. Then again, their frustration too has become impossible to hide.

Recent Techrights' Posts

SLAPP Censorship - Part 194 Out of 200: The Court Needs to Also Look Into Microsoft-Controlled Restricted Boot Advanced by An American (Garrett) to Promote Monopoly and Back Doors Everywhere
Kill switch sold as 'security' is like euthanasia sold as a cure
Linux Kernel Becoming a Slopfest - Part 7 - Infested With or Plagued by Bot-Generated Slop, Committed by Microsofters
Slop is a security threat; even the person committing slop to Linux might not be aware that there's a back/bug door in the code
Edward Snowden Lost His Voice, Then His Leaks Lost Exposure (Access Denied)
When states want to deny people access to some information they have many tools at hand
Things Will Only Get Better (as We Go Backwards)
It only gets better. If you go back in time.
UK High Court Shows SRA is Totally Useless in Curbing SLAPPs, This Has Impact on Our Reporting on the SRA Next Week
We'll carry on our coverage and soon finish the current series that so we can get on with more time-sensitive ones
 
The EPO's Central Staff Committee (CSC) Shows Job Insecurity at Europe's Second-Largest Institution
Who would want to join a company with such low job security?
There Are Thousands More Microsoft Layoffs (Including Silent Layoffs), Not Hundreds
Microsoft does have layoffs and today is no exception (except Microsoft talks about it)
Gemini Links 22/09/2026: Disability Studies, Slop Boosters, and TkInter
Links for the day
Links 22/09/2026: Flock is Collapsing Amid Mass Backlash and Internet Society Collaborates With the 'Epstein Class' (Trafficking of Women)
Links for the day
Raspberry Pi Has Microsoft Secrets Inside, Now DRM
now we deal with SBCs that have DRM in them, put there for commercial reasons
2 Hours Ago The Register MS Published a Page That Says "AI" 42 Times Because It Was Paid to Do So
Still inflating the bubble for money
Gemini Links 22/09/2026: Scout Night, Cybernetic Capitalism, and Thoughts on Companies Forcing People to Adopt Plagiarism Engines
Links for the day
Links 22/09/2026: "An Arsenal of Surveillance" and Slop Bots Suggest Starting Wars
Links for the day
SLAPP Censorship - Part 193 Out of 200: Breaks GNU and Linux, Tries to Silence Critics, Loses All Money, Looks for Microsoft Allies and Sponsors
The latest emotional knee-jerk reactions serve to confirm what we have long said
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 21, 2026
IRC logs for Monday, September 21, 2026
Links 21/09/2026: "Lies of the Hey Hi (AI) Industry" and Solar Power Is Getting Cheap
Links for the day
Gemini Links 21/09/2026: Equinox and Beginner's Guide to Gemini
Links for the day
Links 21/09/2026: "Back On My Bicycle" and American Regime's War on Media Escalates Further
Links for the day
SLAPP Censorship - Part 192 Out of 200: The Hired Guns of Garrett and Graveley Sent Us USB Sticks (One to Me, One to My Wife) Showing Lozza Talking to Garrett About Censoring/Deplatforming Techrights the Same Time Graveley Was Copy-Pasting Garrett's Lawsuit
Next year we plan to bring this matter to the Court of Appeal
Linux Kernel Becoming a Slopfest - Part 6 - Seeing Who Contaminates Linux With Slop (And Also Admits It)
Today we begin looking at some culprits
2026: The Year Galleries Realised the Need to Flag or Cull Slop Images
Society needs to shun slopfarms, people who use LLM slop (for anything at all), companies that use bots (which they dub "agents"), and so-called 'coders' who volley garbage into project and software hubs
Software Freedom Day Celebrated in 5 or 6 Continent
Software Freedom Day (SFD) 2026 was big this year
SLAPP Censorship - Part 191 Out of 200: Garrett, Graveley and Lozza
They talk to and coordinate with one another
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 20, 2026
IRC logs for Sunday, September 20, 2026
Gemini Links 21/09/2026: Digital Hoarder, GTD, Minimalism vs Digital Minimalism, Rejection of LLMs
Links for the day
Links 20/09/2026: "Google Now Asking For Users’ Video Selfies" and Energy Prices Set to Rise
Links for the day
Enjoy the Giving/Sharing, Not Taking
We've long supported what we believed in, even with the little money we had
Links 20/09/2026: Amazon Layoffs, Flock 'Buyouts' (Silent Layoffs)
Links for the day
USCIS and Microsoft Rumours: Curbs on Lowering Salaries by Importing Cheaper Replacements?
It seems like Microsoft's mass layoffs and efforts to cheapen the workforce face obstacles
Gemini Links 20/09/2026: "Music While Working" and Radio Silence
Links for the day
Clownflare Data From Canada
We've like to think many people are attempting to install GNU/Linux over the weekend
SLAPP Censorship - Part 190 Out of 200: Plagiarism, Back Doors, and Sabotage of Linux
This can go on for a decade or longer
Linux Kernel Becoming a Slopfest - Part 5 - Kernel Dependency on Plagiarism Giant Microsoft is a Death Blow to Any Kernel
Microsoft is bringing copyright-infringing slop into Linux
GNU/Linux Has Grown a Lot Lately
Based on Clownflare
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, September 19, 2026
IRC logs for Saturday, September 19, 2026