Bonum Certa Men Certa

US Courts Make the United States' Patent System Sane Again

“The only patent that is valid is one which this Court has not been able to get its hands on.”

--Supreme Court Justice Jackson



Summary: 35 U.S.C. €§ 101 (Section 101), the Patent Trial and Appeal Board (PTAB) and other factors are making the patent system in the US a lot more sane

THE U.S. Patent and Trademark Office and the courts aren't the best of friends these days. The courts often disagree with the decisions of the Office. The higher courts also increasingly resist/anatagonise Office-friendly and trolls-friendly litigation venues. Consider TC Heartland and its application by lower courts.



"Seven Networks LLC on Friday urged the Federal Circuit not to reconsider a ruling that allowed a patent lawsuit it brought against Google LLC to remain" (in Texas), Matthew Bultman (Law360) wrote. Also from Bultman and colleagues we have this: "Verizon subsidiary Oath Holdings Inc. can defend a patent suit over advertisement technology in Delaware, a New York federal judge has ruled, following the Federal Circuit’s decision that the judge failed..."

"The higher courts also increasingly resist/anatagonise Office-friendly and trolls-friendly litigation venues."Lawyers are trying to find creative new ways to pick courts/judges in patent cases. It's not working for them. Well done, US courts and judges. When it comes to tackling the Cult of Patents at least. When I say "Cult of Patents" I don't mean to suggest all patents are inherently evil. The same goes for religion. It's when people take it to the extreme that the whole broth spoils and the system looks like rubbish. Here is more on this from Watchtroll and from Law360: "A Texas federal court has jurisdiction to hear whether several banks infringe a licensing company’s patents covering electronic banking procedures because the company sent demand letters to the institutions..."

There's nothing such parasites won't do to drag victims to patent courts that advertise their bias.

"It's when people take it to the extreme that the whole broth spoils and the system looks like rubbish."It has meanwhile been pointed out, e.g. in a couple tweets [1, 2] spotted by Florian Müller, that Makan Delrahim (former lobbyist, consistent with a pattern of corrupt officials) may be having yet more problems [1, 2].

"William Barr," one said, "who may become the next attorney general, had a serious dispute with Makan Delrahim, the Justice Department's top antitrust lawyer, implicitly accusing him and his deputy of lying about a meeting on the AT&T-Time Warner Merger https://www.washingtonpost.com/technology/2018/12/07/trumps-likely-pick-attorney-general-said-justice-departments-antitrust-chief-gave-inaccurate-account-meeting-with-time-warner/?utm_term=.964435282f54 …"

"Makan Delrahim just backed the Antitrust Division out of the 2013 agreement with the PTO on FRAND remedies," said the other tweet, "apparently it now takes the position that you can get an injunction even if you've committed not to."

The CCIA's Josh Landau has meanwhile written a blog post about it. To quote:

This alone threatens to reduce U.S. competitiveness in standardized technologies. But Delrahim goes further, claiming that competitors will be subjected to new antitrust scrutiny for making reasonable commercial decisions about which standard-setting organizations (SSOs) to participate in.

For example, Delrahim threatens to sue companies that choose to avoid SSOs that are too favorable to patent holders. Participation in a standard-setting organization is voluntary.1 Stating that “competitors would come under scrutiny if they orchestrated a group boycott of an SSO with a patent policy that is unfavorable to their commercial interests,” Delrahim appears to suggest that DoJ will use its authority to investigate companies who don’t want to participate in standards that have unfavorable commercial terms and organize competing standards with better terms.


Separately, Landau wrote: "My sympathy for journalists grows in direct proportion to the number of Friday night emails I receive calling me “enemy of the people” for having the gall to post a summary of a paper showing evidence that NPEs don’t promote innovation."

"There's nothing such parasites won't do to drag victims to patent courts that advertise their bias."I received death wishes for criticising patent trolls. These people bully companies for a living, so why not bully their critics as well?

Landau (in his capacity as CCIA staff) cites the recent work of Colleen Chien and Jiun-Ying Wu on 35 U.S.C. €§ 101 and says "Increase In €§ 101 Rejections Due Almost Entirely To Rejected Business Methods" (there are other aspects we covered here, such as fewer people even bothering to sue with weak patents). To quote Landau:

Prof. Colleen Chien, along with her student Jiun-Ying Wu, recently published an analysis of the impact of €§ 101 on patent prosecution. While their analysis clarifies which art units are impacted by €§ 101 decisions like Alice and Mayo, the published article doesn’t clearly answer the question of how each art unit contributes to the overall impact on prosecution from €§ 101. Fortunately, thanks to Prof. Chien and Wu’s decision to publish the code used to derive their data from the Google Patents public dataset for BigQuery, it’s easy to answer that question.

And the answer isn’t surprising. Essentially the entire increase in rejections from €§ 101 is driven by increased rejections of business method patents.


Another group that combats patent maximalism is Unified Patents, whose CEO was recently interviewed. Watchtroll really, really does not like Unified Patents. This should mean that patent trolls hate Unified Patents. This means Unified Patents is technology's friend. Here is what Watchtroll wrote 6 days ago: "On Tuesday, November 27th, the Patent Trial and Appeal Board (PTAB) issued a redacted version of a decision to institute an inter partes review (IPR) proceeding petitioned by Unified Patents to challenge the validity of patent claims that have been asserted in district court against at least one of Unified’s subscribing members. The PTAB panel of administrative patent judges (APJs) decided to institute the IPR despite the patent owners’ assertion that the petition should be denied because Unified didn’t identify all real parties in interest (RPIs) including members of Unified’s Content Zone."

"Unified Patents does a valuable service, whose net effect is removal of bogus patents, using Sections 101-103 typically."Yes, there's no reason why Unified Patents, which lowers the costs of IPRs by sort of crowdfunding them, can be seen as ineligible a petitioner. PTAB agrees. Unified Patents does a valuable service, whose net effect is removal of bogus patents, using Sections 101-103 typically. Prior art, for example, has just been found for U.S. Patent 7,050,043. Bad news for this patent troll as the panel will tackle Proximity Sensors with an inter partes review (IPR):

Unified is pleased to announce the PATROLL crowdsourcing contest winner, Hanhwe Kim, who received a cash prize of $1000 for his prior art submission for U.S. Patent 7,050,043, owned by Proximity Sensors of Texas, LLC, a well-known NPE. The '043 patent, directed toward a proximity sensor, has been asserted against several companies in district court litigation. To help the industry fight bad patents, we have published the winning prior art below.

We would also like to thank the dozens of other high-quality submissions that were made on this patent. The ongoing contests are open to anyone, and include tens of thousands of dollars in rewards available for helping the industry to challenge NPE patents of questionable validity by finding and submitting prior art in the contests. Visit PATROLL today to learn more about how to participate.


And another patent troll, this time E-Credit Express, was mentioned by Unified Patents on the same day. Prior art found again:

Unified is pleased to announce the PATROLL crowdsourcing contest winner, Hanhwe Kim, who received a cash prize of $1,500 for his prior art submission for U.S. Patent 8,909,551, owned by E-Credit Express, LLC, an NPE. The '551 patent, directed toward an electronic credit and loan processing method, has been asserted against several companies in district court litigation. To help the industry fight bad patents, we have published the winning prior art below.

We would also like to thank the dozens of other high-quality submissions that were made on this patent. The ongoing contests are open to anyone, and include tens of thousands of dollars in rewards available for helping the industry to challenge NPE patents of questionable validity by finding and submitting prior art in the contests. Visit PATROLL today to learn more about how to participate.


People can now win $1000 by helping an interception of the patent weaponised by Kojicast, another patent troll. As Unified Patents put it the following day:

On December 7, 2018, Unified added a $1,000 contest to PATROLL seeking prior art for US Patent No. 9749380 owned and asserted by Kojicast, LLC (an NPE). The '380 patent, generally related to a media streaming method and system, has been asserted against Dailymotion S.A. in the Texas Eastern District Court.


A lot of these are software patents, which could probably also be tackled by Section 101. The legal angle depends on the petitioner's attorney.

"People can now win $1000 by helping an interception of the patent weaponised by Kojicast, another patent troll."And speaking of software patents, TechDirt now compares them to pot patents with plenty of prior art.

"This is actually quite reminiscent of the mess that came with software patents," Benjamin Henrion wrote, citing "What Do Pot And Software Have In Common? Stupid Patent Thickets Based On A Lack Of Patented Prior Art" (originally published in TechDirt and soon thereafter reposted by Above The Law). It's about the time the Federal Circuit (CAFC) opened the door to software patents (before today's 35 U.S.C. €§ 101):

Basically, there hasn't been that much official prior art because pot was considered illegal for so many years, and no one was rushing to patent anything. And, of course, patent examiners are somewhat limited in what they're set up to research regarding prior art, and they often rely on earlier patents and scientific articles as the basis for prior art searches. And, with pot, there aren't so many of those.

Of course, this is actually quite reminiscent of the mess that came with software patents. For a long time, most people didn't consider most software to be patentable (this is not entirely accurate, as there are software patents going back many decades, but many people considered it limited to a few special cases of software). However, in 1998, we got the State St. Bank case, in which the Court of Appeals for the Federal Circuit basically threw open the doors on patenting almost any software. And those doors remained completely wide open until the Alice v. CLS Bank decision in 2014 (which hasn't totally cleaned up the mess of the State Street ruling, but has certainly helped dial back the insanity).

But, for nearly two decades after the State Street ruling, the US Patent Office was patenting software willy nilly -- often despite much of it having tons of prior art or being completely obvious. A big part of the problem was that examiners, again, focused on mainly looking at earlier patents and scientific journals for evidence of prior art. But because so many people didn't think that most software was patentable, there were very few patents to look at, and it's pretty rare for anyone to write up the details of software in scientific journals (they just make the damn software).


Days ago there was this report titled "Higher Law: Bay State Marijuana Shops Open | Tracking Pot Patent Cases | Plus: Who Got the Work" (litigation work).

"The patent system may be out of control, but there's still hope that PTAB and the courts above it will correct things."Welcome the parasites of pot. Who will benefit from people getting high? Yes, the lawyers (they wanted patents everything, making themselves 'necessary').

The patent system may be out of control, but there's still hope that PTAB and the courts above it will correct things. What about European courts?

Yesterday we said there should be no patents on plants (like pot) and people now point out that "On 7 December 2018, the EPO posted a report on its website relating to the decision" (to allow patents on plants at the EPO, even in defiance of the EPC). The next comment speaks of the UPC (which is likely dead): "You seem to forget that the EPC has 38 member states and the EU presently 28 and soon only 27. You might thus have a long time to wait until the EU takes control of the EPO on the pretext of harmony. If the EU could have taken over the EPO, we would not have to do with the UPC, but EPLA would probably be in place now. However, Opinion C 1/09 came in between. I do not think that even the children of my grandchildren will see the EU take the control of the EPO!"

Given the direction the EPO has taken, it might not even survive much longer. Patent maximalism can doom offices (presumption of validity gone).

Recent Techrights' Posts

Maintenance Reminder
We'll carry on publishing
EPO "Cocaine Communication Manager" - Part VIII - Mobbing and Silencing of Dissenting Staff
that's the very cornerstone of functional democracies with real opposition parties
Reader Shares Recent Memes on Slop and 'Coding' by LLMs
"just some funny memes I thought were relevant to current coverage."
Invitation to General Assembly After 1,200 EPO Workers Participated in the Demonstration 3 Days Ago
"the strike of 19 March was also very well followed."
SLAPP Censorship - Part 17 Out of 200: A Long Track Record of Online Abuse, Then Choosing a Low-Cost Law Firm to Muzzle People Who Have Illuminated This Abuse for Over a Decade
Censorship by targeting ISPs and webhosts isn't unprecedented
 
SLAPP Censorship - Part 18 Out of 200: Third Parties Funding Attacks on the Messengers, Lawsuits Against GAFAM-Critical Voices That Uphold Real National Security
Women are like kryptonite to them
Never Trust People Who Write Their Own Wikipedia Pages (Vanity Pages About Themselves) or Ask Friends to Do So. Also: Jono Bacon is Married to Microsoft.
We'd hardly be the first to point out Wikipedia isn't what it seems
No Tolerance for Attacks on Family Members
Being a Free software activist ought not lead to "collateral damage" like attacks on family members, including doxing
Sirius Open Source is Just a Zombie Firm With Shell Entities
Many companies fake their health and their size
Communities Can Only Survive When Trust Prevails
PCLinuxOS is still a vibrant and authentic community
Techrights Was Always a Community Site
The harder we're attacked, the more people participate in the site
Behind the PR Smokescreen and Microsoft-Sponsored Chaff, Microsoft Layoffs in "AI" Alleged This Month
In an age when ~1,000 simultaneous layoffs aren't enough to receive any media coverage, what can we expect remaining publishers to tell us about Microsoft layoffs in 2026?
Bluewashing at Confluent: Some Workers to Leave Within 3 Months (IBM Mass Layoffs)
Is the "era of AI" an era when none of the media will mention over 800 layoffs? [...] There's a lesson here about the state of the contemporary media, not just IBM and bluewashing
Microsoft OpenAI, Drowning in Debt and Forced to Make Significant Cuts (as Reports Reveal This Month), Does Hiring Disguised as "Takeovers" to Fake Value or Alleged Potential
Remember what happened to Skype last year
Slop Does Not Replace Art, It Contaminates Everything With Reckless Nonsense
many Computer Scientists do not want programs to get contaminated by slop
Coders Don't Just Reject 'Vibe Coding' Because They're "Luddites", They Just Know the True Cost of Slop
if some programmer says slop sucks, don't rush to assume selfishness or defence of one's occupation
When Nobody Else Covers the News
There's an obvious "media blackout" regarding the mass layoffs
Links 21/03/2026: David Botstein Dies, Slop as Censorship Apparatus
Links for the day
Links 21/03/2026: Metastablecoin Fragmentation and Crescent Moon
Links for the day
Gemini Links 21/03/2026: Historic Ada Docs; The Lurking LLM on the SmolNet
Links for the day
HSBC the Latest Failed Bank Using Slop as Excuse for Its Financial Failure
"HSBC is planning on cutting as many as 20,000 jobs in the near future as the company allies with AI revolution."
A/Prof Susan G Kleinmann, Enkelena Haxhija & Debian-private risk to MIT
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 20, 2026
IRC logs for Friday, March 20, 2026
Plagiarism in "Linux" Clothing (LLM Slop in linuxiac.com, LinuxTeck.com, and linuxsecurity.com)
The net effect of those slopfarms is very negative
Links 20/03/2026: Facebook Weaponised Politically, Openwashing by LF and NVIDIA, Encyclopedia Britannica Sues Microsoft Proxy for Plagiarism
Links for the day
The EPO's Local Staff Committee Munich (LSCMN) Explains to the Administrative Council (AC) How Bad Things Have Become at Europe's Second-Largest Institution, Biggest Patent Office, and Corruption/Cocaine Hub (Jobs Sold to Friends)
We'll say a bit more tomorrow
IBM's Red Hat Diversity: Only 3 Women (Out of 11 Leaders)
For comparison's sake, the FSF is about 50% female
Symptom of Publishers Dying: They Move to Adopt Slop. Symptom of Software Companies Dying: They Move to Adopt Slop ('Vibe').
It'll always fail. It's hype. It's a bubble.
Under IBM, Red Hat Replaces Code With LLM Slop, Fedora is Slopware
Not even hiding it, those things are in plain sight
Gemini Links 20/03/2026: Depictions of Culture and The Social Smolnet
Links for the day
SimilarWeb Was Never a Reliable Yardstick for Traffic
5RB may need some "house-cleaning"
Strangulation, suffocation, Jonathan Carter & Debian toxic culture confirmed
Reprinted with permission from Daniel Pocock
Reports or Hearsay Suggest Ogilvy Broke Up With IBM and Insiders Report Mass Layoffs in "Infrastructure" (Might Impact Red Hat Entrants)
hearsay in Social Control Media
Scheduled Server Maintenance Tomorrow Night
Starting 9PM
None of the Above (NotA) & Debian snubbing Sruthi Chandran
Reprinted with permission from Daniel Pocock
Links 20/03/2026: Cryptography Pioneers Win Turing Award and BMG Sues Anthropic for Copyright Infringement
Links for the day
Even Uganda Understands That Journalists Never Belong in Prison
"Ugandan authorities must respect the spirit of this ruling and abandon any measures that seek to jail Ugandans for the free flow of ideas."
Inaction Helps Your Enemies
Without freedom, there's nothing else left
Windows Down From 99% to ~50% in Republic of Seychelles (République des Seychelles)
Windows fell by a lot
"systemd is essentially a corporate IBM/Redhat project and corporations of course will comply"
Microsoft and IBM care about users' freedom like Cheeto Lump cares about the US Constitution
Confluent Insiders: IBM Laid Over Over 800 at Confluent, Not Just 800
For the record, the layoffs at Confluent won't be over. After the bluewashing there will be "IBM RAs" impacting Confluent folks, aside from PIPs
The Layoffs at IBM Carry on (Shades of Enron)
Is IBM another Enron?
"IBM boss Arvind Krishna... financial package valued at $38 million in calendar 2025 - equivalent to the average collective pay of 765 Big Blue workers."
continues to ruin the company to enrich himself while pretending he has a strategy
Gemini Links 20/03/2026: Digital Identity Bifurcation and a "Return to Gemini"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 19, 2026
IRC logs for Thursday, March 19, 2026
SLAPP Censorship - Part 16 Out of 200: Detailing the Actors and Explaining Techrights' Own Internet Relay Chat (IRC) Network
For those who have not followed our story
Microsoft "hiding behind bigger news of war, Epstein, other companies' layoffs"
They know what's coming, they just don't know when
Joerg Jaspert (Debian Account Manager/DAM) personally approved Raphael Hertzog's wife Sophie Brun
Reprinted with permission from Daniel Pocock
Letter 'A' prohibited by Code of Conduct extremism
Reprinted with permission from Daniel Pocock
Spoiler: Diversity & Debian means different things to different people
Reprinted with permission from Daniel Pocock
Solicitors Regulation Authority (SRA) Admits Failures and Criticism of Inaction on SLAPPs
many if not all solicitors and solicitor firms in the UK are in effect unregulated
Archiving or Preserving Pages About IBM Layoffs
Layoffs at IBM and the media does not talk about these
ABC, the American National Broadcaster, "Now Publishes Slop"
If the "big media" absorbs slop, it'll no longer be trusted and therefore not read/watched by the public
Links 19/03/2026: Culling Deepfakes of Artists’ Music and "Age Verification Isn’t the Answer"
Links for the day
Gemini Links 19/03/2026: "Aktion GPT-4" and "Kill All Descendants"
Links for the day
"AI" 15 Times in Short 'Article' From The Register MS. And The Register MS Got Paid to Publish It.
gets paid to do this
People Who Decided to Boycott Novell Over Its Microsoft Alliance Should Also Boycott Canonical
As an associate put it, "selling out further, due to Microsoft moles inside Canonical"
Links 19/03/2026: "AI Glasses" as Euphemism for Mass Surveillance and ABC (US) Has Begun Publishing Slop as 'News'
Links for the day
The European Patent Office, Europe's Second-Largest Institution, is on Strike Today
Lots more to come
What People Impacted by the Bluewashing Layoffs at IBM Confluent Say (While the Media Says Nothing at All, in Effect Burying the News)
Worse yet, the mainstream media spreads lies about it right now
IBM Has Turned Red Hat and Fedora Into Slop
This is IBM policy
IBM is Being Robbed, Companies and Jobs Are Destroyed
Companies taken over by IBM will be exploited and destroyed to keep a bubble inflated for a little while longer
In Confluent Layoffs, IBM Vapourises a Quarter of Its Workforce (IBM Buys Something That It Destroys Already)
In the past, such things were typically referred to as "media blackout"; now it's just "the norm".
IBM Effect at Confluent: Mass Layoffs and IBM's Business Conduct Guidelines (BCGs) Said to be Violated
For Confluent employees who survived the layoffs there will be "culture chock"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 18, 2026
IRC logs for Wednesday, March 18, 2026
Links 19/03/2026: LLM Fatigue (It Doesn't Work as Advertised), "Small Web Feeds"
Links for the day