Bonum Certa Men Certa

Another Week of Federal Circuit Supporting PTAB and Acting Tough for Patent Quality in the United States

The patent elimination 'pipeline'

Secret documents



Summary: The Patent Trial and Appeal Board (PTAB) and the Court of Appeals for the Federal Circuit (CAFC) maintain a productive cycle of patent elimination, except when the patents do have merit (e.g. when they're on physical inventions and not nature or code)

THE Federal Circuit under its current chief has been doing a good job, encouraging -- shall we say for the most part -- the USPTO to evolve/improve patent policy. Sure, there are some exceptions which we shall cover separately, but generally speaking the judges grasp the Supreme Court's views or interpretation of the law. They're undoing decades of unbridled patent maximalism. One decision at a time they narrow down patent scope and litigation scope. This is good. It will help scientists at the expense of lawyers. It's about time, too.



The other day XY, LLC v Trans Ova Genetics, L.C. was brought up by a patent maximalists' site, which mentioned a "split decision [that] reveals an important dispute between Federal Circuit judges over the impact of AIA trials on pending litigation. In this case, XY’s six patents in suit relate to the sorting of semen by gender (used for farm animal breeding). My discussion below focuses on only one of the patents that was first enforced by the district court but later cancelled by a PTAB action."

"One decision at a time they narrow down patent scope and litigation scope. This is good."The author is a foe of PTAB and would like to see AIA trials phased out/replaced by something else. But he has not been getting his way. That's an understatement actually; his whole world crumbles around him and his readers. They've tried everything to undermine PTAB and nothing seems to work. We shall cover that separately in a later post.

The underlying patents in this case aren't on software but arguably on life (animal breeding). As is widely known by now, some companies like Monsanto have been attempting to patent nature/life everywhere in the world (it's a lot harder in India, owing to the Supreme Court's recent judgment). It's not just about breeding processes or genetic manipulation; later on some companies patent the resultant animals, too! Crazy world we live in, eh?

"It's pretty clear here that this patent maximalists' site cherry-picks cases with the agenda of undermining Inter Partes Reviews (IPRs) and the Patent Trial and Appeal Board which these fall under."The author explains "that the final paragraph is somewhat confusing because it appears to state two separate principles – (1) that affirmance of an invalidity finding [by the Federal Circuit] creates collateral estoppel on the issue of validity and also (2) that a final decision of patent invalidity moots pending district court findings of no invalidity. This begs the question of what would be the proper result if this case had been decided after the IPR decision cancelling the claims but before deciding the outcome of this appeal. When the court recognizes the potential issue – I expect that in most situations it would coordinate the appeals."

It's pretty clear here that this patent maximalists' site cherry-picks cases with the agenda of undermining Inter Partes Reviews (IPRs) and the Patent Trial and Appeal Board which these fall under. This isn't new. This has gone on for years and Oil States was the latest blow to such agenda. Later on we shall show how patent "scams" too have failed to undermine IPRs.

The same site also picked another Federal Circuit case, D Three Enterprises v SunModo Corp., which was about claim construction. This patent is at least on something physical. To quote:

D-Three’s patents in suit are directed to roof-mount sealing assemblies for solar panel installation. U.S. Patent Nos. 8,689,517; 9,068,339; and 8,707,655. The district court found the asserted claims invalid as obvious or anticipated. The basic central dispute, however, was whether the claims could rely upon a 2009 provisional application filing date. Although the formalities of the priority chain was met — the district court found a substantive problem. In particular, the court ruled that the 2009 provisional did not sufficiently disclose the inventions as claimed — i.e., failure of written description. Going one layer deeper, it seems that the real dispute is about claim construction — do the claimed assemblies require a “washerless” approach? The courts found that the claims recite a washerless assembly but that the limitation was not disclosed by the provisional application — so no priority.


Kluwer Patent Blog has meanwhile delved into another patent case where PTAB and the Federal Circuit dealt with a patent on something physical. "In an interference proceeding," it said, "the Patent Trial and Appeal Board correctly determined that claims 65-67 of applicant General Hospital Corporation’s (GHC’s) U.S. Patent Application No. 13/789,575 for methods of removing hair by using nanoparticles to damage hair follicles lacked sufficient written description under €§ 112 of the Patent Act, the U.S. Court of Appeals for the Federal Circuit has ruled."

"...what we continued to see this past week was a strong and consistent record of patents-sceptic Federal Circuit which fully supports PTAB."PTAB was defended for this, as usual. Watchtroll -- being the most anti-PTAB site out there -- chose to deal with this Federal Circuit case wherein PTAB had dismissed a challenge (and was later defended by the court). To quote:

Gilead produces and sells several products containing an antiviral agent used in the treatment of AIDS, and AIDS Healthcare Foundation (“AHF”) buys these products to provide care to persons afflicted with AIDS. AHF filed suit requesting declaratory judgment of invalidity for five patents purportedly covering the antiviral agent and associated products, hoping to “clear out the invalid patents” such that AHF could partner with generic makers and purchase generic versions of the antiviral agent as soon as it could become available on expiration of the five-year New Chemical Entity exclusivity provided by FDA approval of the antiviral agent. The district court dismissed, ruling that AHF’s status as a mere consumer and its interest in purchasing such products did not create a case of actual controversy.

On appeal, AHF argued that it is an indirect infringer of the patents because it requested potential producers to provide the patented products, Gilead’s non-response to AHF’s request for a covenant not to sue created a present controversy, and public policy favors invalidation of invalid patents.


It is strange to say that "public policy favors invalidation of invalid patents." Obviously if patents are invalid, then they are invalid, no matter what policy might say. Either way, what we continued to see this past week was a strong and consistent record of patents-sceptic Federal Circuit which fully supports PTAB. Had it not been the case, patent maximalists would make a huge deal out of it and herald that everything changes (like they nowadays do with Berkheimer v HP).

Recent Techrights' Posts

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?
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?
 
[Video] Microsoft's Attack on Education
Microsoft's cult-like activities and overt entryism
Canonical and Red Hat Are Not Competing With Microsoft Anymore
What a shame they hired so many people from Microsoft...
Links 21/05/2024: "Hating Apple Goes Mainstream", Lots of Coverage About Julian Assange Ruling
Links for the day
Gemini Links 21/05/2024: Losing Fats and Modern XMPP
Links for the day
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
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
Windows Has Fallen Below 5% in Iraq, GNU/Linux Surged Beyond 7% Based on statCounter's Stats
Must be something going on!
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
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
Fact check: relation to Julian Assange, founded Wikileaks at University of Melbourne and Arjen Kamphuis
Reprinted with permission from Daniel Pocock
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
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