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

Alyssa Rosenzweig's LibrePlanet Talk About Freeing the Apple GPU
Alyssa Rosenzweig is the graphics witch behind the reverse-engineered drivers for the Apple GPU. She previously led Panfrost, the free drivers for Arm Mali GPUs powering devices like the Pinebook Pro. She graduated in 2023 with a Computer Science degree from the University of Toronto and now writes free software full-time.
Links 30/06/2024: LLMs Under Fire and Dictatorship of the Old
Links for the day
[Meme] Walking Outside the Guardrails of the Walled Gardens Built by Monopolies
So-called "advertiser-unfriendly" material was never a problem for Wikileaks
This War Crime Footage, Nothing Political Per Se, Is What They Made Julian Assange Plead Guilty To (War Criminals Not Convicted, Only Those Who Expose Them)
Wikileaks' Julian Assange: Exposing the US Military Crimes
20 Years Passed, Let's Go Even Faster Now
We are hoping to bring more original stories
Windows Lost Almost 92% Market Share in Egypt
From over 99% to just over 7%
 
Destination 'Five Percent'
We reckon GNU/Linux can break the 5% barrier some time by the end of this year, even without counting Chromebooks
A Crisis of Online Journalism
Almost a week ago a journalist was forced to plead guilty for an act of journalism
Germany One of Many Countries Where Microsoft's Bing Lost Market Share After All That LLM Nonsense (Bing Chat and Further Rebrands/Renames)
openai.com traffic plunged 60% last month
Microsoft’s Latest Antitrust Scrutiny
4 new stories
Microsoft Layoffs, Mass Plagiarism, and More
outrage included
GNU/Linux Climbed 0.25% This Month (in statCounter)
Around midday on Tuesday we'll start seeing preliminary data for July
Ilya Gulko Introduces Pollyanna
"Pollyanna is a web framework that makes it easy to create your own libre social space, such as a social network or blog."
'FSFE': Underage Labour, GAFAM Fronting, and Identity Theft to Undermine the FSF's Current Fundraiser
looking to raise funds at the same time as the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 29, 2024
IRC logs for Saturday, June 29, 2024
Links 29/06/2024: Astronauts at Risk, Ukraine Updates
Links for the day
Fedora and Red Hat Leftovers
mostly redhat.com
Microsoft is Now Googlebombing or Spamming 'Open Source' and 'Linux' to Promote Proprietary Surveillance, Azure
Notice the title and the image, what's being promoted etc.
Seychelles: GNU/Linux Doing OK
Seychelles cannot be considered poor
Gemini Protocol Isn't Even Remotely "Dead"
"Lupa knows of 505,000 (half a million!) working Gemini URLs at present, up from about 425,000 this time last year"
About 10 New Free Software Foundation (FSF) Members Per Day
The total changed from 46 to 47 while typing the article
Vista 11 Adoption Unusually Low in Germany and It's Going Down, Not Up
This is not happening only in Germany
Kevin Korte on Computers Being Allowed to Make Decisions Based on Cryptic Algorithms and Proprietary/Secret Data
It uses buzzwords where none are needed
[Meme] Garbage In, Garbage Out (linuxsecurity.com)
It is neither Linux nor security, just chatbot-generated slop
Microsoft-Invaded CISA Spreads Anti-Free Software FUD (as If Proprietary Software Has No Memory Safety Issues), Brittany Day Uses Chatbots to Amplify and Permutate the Microsoft FUD
linuxsecurity.com became an anti-Linux spam site
Microsoft Laying Off Staff in an Act of Retaliation and Union-Busting
retaliatory layoffs at Microsoft
Gemini Links 29/06/2024: Content Drowning in 'Goo' and LLM Slop
Links for the day
In Ecuador, GNU/Linux Adoption Surged From Under 1% to Over 4% in About 3 Years
Not even counting Chromebooks
LibrePlanet: Cultivating Backups (of Recordings)
an appeal to recover some of these talks
Microsoft/Windows Machines Are Turned Off (or Windows Deleted/Decommissioned) in Web Servers, as the "Market Share" Collapse Continues
Taking full history into account, this is a decrease of over 90% in some cases
Corwin Brust Hosting Freedom: A Behind-the-scenes Tour With the GNU Savannah Hackers
"the "smiling faces" behind it."
Android at 90% or More in Chad
Windows below 2%
David Wilson: Cultivating a Welcoming Free Software Community That Lasts
"a feeling of shared ownership for all users."
Julian Assange Might Continue Wikileaks, But Certainly Not Yet (Recovery Time Needed)
And probably at a symbolic capacity only
Bringing in 12 Santas and Taking 13 Out (Old Interview With Julian Assange)
Julian Assange's life inside the Ecuadorian embassy
Neil Plotnick on GNU/Linux in the High School Classroom
uploaded to the LibrePlanet instance of MediaGoblin
Asia Appears to be Fastest to Adopt GNU/Linux
the home of a considerable majority of the world's population
Alexandre Oliva's LibrePlanet 2024 Talk About "Software Enshittification"
in spite of technical difficulties encountered while recording
What They Used to Do With Mono They Now Do With Systemd (Lower and Deeper Down Than Userspace)
Now we have a project started primarily by Red Hat (and managed by Microsoft GitHub, which is proprietary) being managed by Microsoft and primarily serving Microsoft and IBM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 28, 2024
IRC logs for Friday, June 28, 2024
Links 28/06/2024: Kangaroo Courts and Patents Spam, EFF Still Fighting for CPC's TikTok (a Digital Weapon)
Links for the day
Links 28/06/2024: Overton window and Polarization
Links for the day
[Meme] In 50 Years...
Microsoft's Vista 11 will take 50 years to be fully adopted
Only About 1 in 8 Russian Windows Users is Using Vista 11
it looks like over the past 12 months Vista 11 hardly grew and it remains very low at around 12% of Windows usage in Russia
Links 28/06/2024: More Attacks on the Press, More Censorship in Russia
Links for the day
Gemini Links 28/06/2024: Christmas Prematurely, Self-hosting
Links for the day
IBM: So Long, Suckers. Your Free OS is Now Proprietary. Pay IBM or Else.
almost exactly a year after turning RHEL into proprietary software
Vista 11 is Doomed and Despite Lack of Adoption Microsoft Already Speaks of Vapourware ("12")
"Microsoft has pulled a Windows 11 update after users reported boot loops and startup failures."
ChromeOS Reaches Highest Share in Years at the World's Most Populous Nation, Windows Now at All-Time Low of 13%
We're talking about India today
[Video] "It Is Incredible That Julian Assange Survives"
There was a positive and mutual relationship between Wikileaks and Dr Jill Stein
Never Assume That Because the Law Exists the Powerful Will Follow the Law
Who's going to hold them accountable now?
Nearly a Month Has Passed and Nobody at the Debian Project Even Attempted to Explain What Seems Like Back-dooring of Debian (and Hundreds of Distros That Are Debian-Derived)
I can cynically guess that only matters when a user with a Chinese name does it
[Video] Julian Assange Explains Wikileaks' Logistics
predating indefinite detention
IBM Was Never the "Good Guy", Just a Self-Serving and Opportunistic Money- and Power-Hungry Monopolist, Living Off of Taxpayers' Money (Government Contracts)
The Nazi Party of Germany was its second-biggest client at one point and now it's looking to profit from the work of slaves
"I Hated Working at IBM. They Were the Most Unfriendly People."
Don't forget what Watson the son did to a poor woman on a plane
State of the News (and Depletion of Journalism Online, Not Just Offline)
Newspapers are not coming back and the Web is not coming back either
GNU/Linux Consolidates in North America
Android rising a lot this year, too
[Meme] More Monopolies Granted While Patent Examiners Die (Overworking for Less Compensation)
Work more; Get less
Staff Union of the EPO (SUEPO) is Taking the New Pension Scheme (NPS) to an International Tribunal (ILOAT)
SUEPO wants more EPO staff to participate in collective action
Stella Assange and the Legal Team Speak to the Media a Day After WikiLeaks Founder Julian Assange Arrives in Australia
Published yesterday by a number of mainstream publishers
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 27, 2024
IRC logs for Thursday, June 27, 2024
RIP Daniel Bristot de Oliveira, Red Hat death
Reprinted with permission from Daniel Pocock