Bonum Certa Men Certa

The Evil, Truly 'Evil' Patent Trial and Appeal Board (PTAB) and the Courts Have the Audacity to Verify/Disprove Patent Validity

J Nicholas GrossSummary: The concept of patent justice seems rather elusive to those who make a living out of pretending not to grasp it (like Mr. Gross on the right); US patent caselaw, however, continues to improve over time

TECHRIGHTS spent well over a decade complaining about USPTO patents that had been wrongly granted, leading to invalidation attempts. Prior to PTAB this was a lot harder. This meant that patent justice was hard to find unless one had deep pockets (court battles are extremely expensive, especially with appeals taken into account).

"They just don't care about patent justice, only patent maximalism (maximising litigation and extortion opportunities)."Patent trolls typically rely on software patents. They also depend on dodging actual court battles where validity of patent can be questioned/challenged (before PTAB only courts could do this). This is why trolls' proponents like Watchtroll, IAM and so on protest against PTAB so much. They just don't care about patent justice, only patent maximalism (maximising litigation and extortion opportunities).

The Droplets case was recalled by Watchtroll on Friday. James Yang wrote:

Droplets, Inc. v. ETrade Bank

In Droplets, Inc. v. ETrade Bank (Fed. Cir. 2018), ETrade filed a petition for inter partes review against U.S. Patent 8,402,115 (‘115 Patent) which was owned by Droplets, Inc. ETrade was attempting to invalidate the 115 patent because Droplets (patent owner) alleged that ETrade was liable for patent infringement.

The ‘115 Patent was the last patent in a family lineage of four patent applications. See diagram below. The Franco PCT is based on the 917 provisional.

[...]

When reviewing a patent for a noninfringement opinion, do not assume that the prosecution was done properly. As discussed in this case, even though the 115 did not claim priority back to the Franco PCT, the examiner did not use the Franco PCT which would be the best prior art reference against the 115 because presumably at least certain portions were identical to each other.


We already wrote about such noninfringement opinions. Expect sites like Watchtroll, IAM and so on to resort to judge-bashing, lobbying of Iancu etc. We'll give some examples later today. Another CAFC case has already just been covered by Watchtroll, taking note of a patent which became unenforceable:

The invention disclosed in the ’993 patent, at issue in this appeal, involves heating water on demand during the fracking process instead of using preheated water. Mr. Hefley, the sole named inventor and founder of Heat On-The-Fly, LLC (“HOTF”), filed the earliest provisional application on September 18, 2009. Prior to the critical date of September 18, 2008, Mr. Hefley and his companies performed on-the-fly heating of water on at least 61 fracking jobs using the system described in the ’993 patent application and collected over $1.8 million for those services. Although Mr. Hefley discussed the requirements of the on-sale bar against patent eligibility with his business partner, he did not disclose any of the 61 fracking jobs to the Patent and Trademark Office (“PTO”). The patent issued on May 8, 2012.

Energy Heating LLC (“Energy”), one of HOTF’s competitors, began using its accused process of heating water in 2012. After HOTF raised the possibility of a patent infringement lawsuit and Energy lost a business contract, Energy sought a declaratory judgment that the ’993 patent was unenforceable for inequitable conduct, invalid as obvious, and not infringed.

The district court granted declaratory judgment, finding the patent unenforceable for inequitable conduct, and denied Energy’s motion for attorneys’ fees under 35 U.S.C. €§ 285. The Federal Circuit affirmed the court’s finding of inequitable conduct but vacated the denial of attorneys’ fees and remanded on that issue alone.


Proponents of patent maximalism, typically a bunch of law firms, aren't happy about this status quo. Mr. Gross, an attorney who writes for patent trolls, recently unleashed a bunch of rants against PTAB, such as this (regarding Section 101):

Bad 101 decisions continue to multiply like viruses at PTAB bc, as they say: "the decisional mechanism courts now apply is to examine earlier cases... and which way they were decided" https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005922-04-26-2018-1 … Since 90% decisions are adverse, system is rapidly being poisoned


No, the system is actually being repaired for those who want to mind their own business, creating things rather than suing. Is that so difficult to understand? Here he goes again (regarding Section 101, as usual):

See, this is the additional collateral crap PTAB is now pulling when CAFC affirms using Rule 36... citing Morsa as approving rejection of claims on targeted advertising, bc CAFC too lazy to do review on merits and explain fine distinctions in 101: e-foia.uspto.gov/Foia/RetrieveP…


He says that "PTAB continues bastardizing [Section] 101 caselaw", but he actually means applying, not "bastardizing":

PTAB continues bastardizing 101 caselaw, including Diehr, to reject claims on "controlling a torque output of an electric machine of an electrified vehicle during a vehicle creep condition" e-foia.uspto.gov/Foia/RetrieveP… Mess continues unabated


And again Section 101:

Like hundreds of other small innovators, Invidi gets their patent application on targeted asset delivery system nixed by PTAB as "abstract idea" e-foia.uspto.gov/Foia/RetrieveP…


Mr. Gross also took note of Microsoft having its software patents thrown away (Section 101):

LinkedIn bought these patent applications years ago; this is one of 1st of many on "fact checking" technology to be reviewed and rejected by PTAB under 101: they have a long road ahead: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017001329-04-30-2018-1 …


Then the obligatory IBM example (Section 101 invalidation):

IBM Can't Win at the PTAB; The PTAB Reversed the Examiner's 101 Rejection But Instituted a New 101 Rejection of the Same Claims: https://anticipat.com/pdf/2018-04-30_13396177_178276.pdf …


Notice the profound impact of Section 101. Without even going to court, various parties actively work to eliminate software patents of patent aggressors.

"It puts engineers/programmers back in control, at the expense of parasitic lawyers who got accustomed to exploiting/taxing them."What's not to like?

Well, when one does litigation for a living (and let's face it, that's what the above people do) this whole "PTAB thing" is a living nightmare. It puts engineers/programmers back in control, at the expense of parasitic lawyers who got accustomed to exploiting/taxing them.

Recent Techrights' Posts

GNU/Linux Growing Worldwide (the Story So Far!)
Microsoft is unable to stop GNU/Linux
Red Hat Loves Microsoft Monopoly (and Proprietary Surveillance With Back Doors)
full posting history in RedHat.com
Microsoft-Connected Sites Trying to Shift Attention Away From Microsoft's Megabreach Only Days Before Important If Not Unprecedented Grilling by the US Government?
Why does the mainstream media not entertain the possibility a lot of these talking points are directed out of Redmond?
Windows Has Fallen Below 5% in Iraq, GNU/Linux Surged Beyond 7% Based on statCounter's Stats
Must be something going on!
Read "Google Is Not What It Seems" by Julian Assange
In this extract from his new book When Google Met Wikileaks, WikiLeaks' publisher Julian Assange describes the special relationship between Google, Hillary Clinton and the State Department -- and what that means for the future of the internet
Julian Assange: Factual Timeline From an Online Friend
a friend's account
Breaking News: Assange Wins Right to Challenge Extradition to the US
This is great news, but maybe the full legal text will reveal some caveat
 
Pursuing a Case With No Prospects (Because It's "Funny")
the perpetrators are taking a firm that's considered notorious
GNU/Linux in Honduras: From 0.28% to 6%
Honduras remains somewhat of a hotspot
Good News From Manchester and London, Plus High Productivity in Techrights
what has happened and what's coming
[Video] The 'Linux' Foundation Cannot be Repaired Anymore (It Sold Out)
We might need to accept that the Linux Foundation lost its way
Links 21/05/2024: Tesla Layoffs and Further Free Speech Perils Online
Links for the day
Gemini Links 21/05/2024: New Gemini Reader and Gemini Games
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, May 20, 2024
IRC logs for Monday, May 20, 2024
[Video] Just Let Julian Assange Go Back to Australia
Assange needs to be freed
Microsoft Windows Used to Have Nearly 100% in China and Now Google Has 50% (With Android)
Will China bring about a faster "fall" for Microsoft?
The WWW declares the end of Google
Reprinted with permission from Cyber|Show
Gemini Links 20/05/2024: CMSs and Lua "Post to midnight.pub" Script Alternative
Links for the day
Brodie Robertson - Never Criticise The Linux Foundation Expenses (With Transcript)
Transcript included
Links 20/05/2024: Protests and Aggression by Beijing
Links for the day
Can an election campaign succeed without social media accounts?
Reprinted with permission from Daniel Pocock
Fact check: relation to Julian Assange, founded Wikileaks at University of Melbourne and Arjen Kamphuis
Reprinted with permission from Daniel Pocock
Gambia: Windows Down to 5% Overall, 50% on Desktops/Laptops
Windows was measured at 94% in 2015
Links 20/05/2024: Microsoft Layoffs and Shutdowns, RTO as Silent Layoffs
Links for the day
The Issue With Junk Traffic in Geminispace (Gemini Protocol)
Some people have openly complained that their capsule was getting hammered by bot
Peter Eckersley, Laura Smyth & the rushed closure of dial-up Internet in Australian universities
Reprinted with permission from Daniel Pocock
Brittany Day, Plagiarist in Chief (Chatbot Slinger)
3 articles in the front page of LXer.com right now are chatbot spew
Guardian Digital, Inc (linuxsecurity.com) Has Resorted to Plagiarism by Chatbots, Flooding the World Wide Web With Fake 'Articles' Wrongly Attributed to Brittany Day
busted
[Meme] Bullying the Victims
IBM: crybully of the year 2024
Ian.Community Should be Safer From Trademark Censorship
We wish to discuss this matter very quickly
Microsoft and Its Vicious Attack Dogs (Attacking Women or Wives in Particular)
Sad, pathetic, destructive people
Upcoming Series About the Campaign to 'Disappear' the Father of GNU/Linux
Today we have Julian Assange's fate to focus on
A Month From Now Gemini Protocol Turns 5
June 20
Colombia: From Less Than 0.5% to Nearly 4% for GNU/Linux
it's not limited to this one country
Rumour: Well Overdue Red Hat Layoffs to be Announced in About 3 Days
we know they've planned the layoffs for a while
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, May 19, 2024
IRC logs for Sunday, May 19, 2024
Gemini Links 20/05/2024: Updated Noto Fontpacks and gemfeed2atom
Links for the day
GNU/Linux in Georgia: Looking Good
Windows down from 99% to less than 33%
Tomorrow is a Historic Day for Press Freedom in the UK
Take note of the Julian Assange case
Hiding in a Forest Without a Phone and Hiding Behind the First Amendment in the United States (US)
some serial defamer is trying to invert the narrative
Links 19/05/2024: Iran's President Lost in Helicopter Crash, WikiLeaks’ Julian Assange Awaits Decisions in Less Than a Day
Links for the day
Links 19/05/2024: Microsoft Investigated in Europe
Links for the day
4 Old Articles About Microsoft/IBM SystemD
old but still relevant
Firefox Has Fallen to 2% in New Zealand
At around 2%, at least in the US (2% or below this threshold), there's no longer an obligation to test sites for any Gecko-based browser
Winning Streak
Free software prevalence
Links 19/05/2024: Conflicts, The Press, and Spotify Lawsuit
Links for the day
GNU/Linux+ChromeOS at Over 7% in New Zealand
It's also the home of several prominent GNU/Linux advocates
libera.chat (Libera Chat) Turns 3 Today
Freenode in the meantime continues to disintegrate
[Teaser] Freenode NDA Expires in a Few Weeks (What Really Happened 3 Years Ago)
get ready
GNU/Linux is Already Mainstream, But Microsoft is Still Trying to Sabotage That With Illegal Activities and Malicious Campaigns of Lies
To help GNU/Linux grow we'll need to tackle tough issues and recognise Microsoft is a vicious obstacle
Slovenia's Adoption of GNU/Linux in 2024
Whatever the factor/s may be, if these figures are true, then it's something to keep an eye on in the future
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, May 18, 2024
IRC logs for Saturday, May 18, 2024
Links 19/05/2024: Profectus Beta 1.2
Links for the day