Bonum Certa Men Certa

The United States Supreme Court Should Further Restrict Patent Scope and Not Question PTAB's Work (Which Merely Enforces That Scope)

PTAB has probably been the best when it comes to enforcing Supreme Court decisions such as Alice

United States Supreme Court

Summary: A glance at the ongoing debate over which patent case/s the Justices of the United States Supreme Court should look at next

PTAB is a good, valuable ally of the software industry, for it invalidates a lot of software patents. PTAB is defended by almost every software company but protested against by the patent microcosm (striving to tax software companies).



"PTAB is defended by almost every software company but protested against by the patent microcosm (striving to tax software companies)."Based on this new press release, a lawsuit which was mentioned here earlier this week got escalated by the defendant, which sought help from PTAB. Taser (now renamed) is battling to dodge PTAB's scrutiny (as it can potentially invalidate the patent they use aggressively) and this time it got its way. But that's not the end of it. PTAB is generally a get-out clause in case a patent lawsuit is meritless based on the patent/s at hand. Failing PTAB, there are still judges and sometimes also a jury to determine whether a patent asserted is bogus or not. Just because an examiner at the USPTO decided to grant a patent doesn't necessarily mean it's both novel and patent-eligible. Prior art is sometimes discovered in court proceedings and expert witnesses can attest to the triviality of some patents. In some cases, the trial itself constitutes misconduct; we gave an example of that yesterday, citing Patently-O, whose contributor David did a followup. "First off," he wrote, "according to the panel-majority, mere negligence by litigation counsel is enough to justify an adverse inference under the law of this regional circuit..."

"As we explained here before, Patently-O is no friend of PTAB and certainly it is a friend of software patents."Over the years we have given many examples of misconduct, e.g. companies asserting patents that they don't even 'own' (are assigned). In some cases, expired patents are being used to intimidate companies.

As we explained here before, Patently-O is no friend of PTAB and certainly it is a friend of software patents. Moreover, its lead writer (Crouch) is still trying to slow down or discourage CAFC's support for PTAB. Yesterday he did that again. To quote the relevant paragraph:

A third petition for writ of certiorari to the United States Supreme Court has now been filed stemming from the Federal Circuit’s Rule 36 Debacle. Despite the need for clear guidance on the implementation of AIA Trials, most such appeals are being decided by the Federal Circuit without any opinion. I have argued that the process violates a provision of the Patent Act that requires an the court to issue an opinion in cases on appeal from the Patent & Trademark Office.


We already wrote extensively about why it's justified. There's a massive 'scatterback' of appeals from PTAB and CAFC cannot possibly issue a pertinent written opinion for each individual appeal. Crouch should know that. He's a law professor, but at the same time he's also immersed in the patent microcosm, which hates PTAB with a very great passion (to the point of insulting judges).

"He's a law professor, but at the same time he's also immersed in the patent microcosm, which hates PTAB with a very great passion (to the point of insulting judges)."The US Supreme Court (SCOTUS) is already busy with more important matters, such as patent scope and patent trolls. In fact, it has already deemed business methods-related patents invalid. There's Bilski and Alice. Now it's down to the courts below SCOTUS to obey precedents/prior decisions. But Crouch wonders aloud whether the matter will be revisited yet again:

Although the Federal Circuit walked through its Alice/Mayo analysis, I expect that a more infringer-friendly panel would have almost certainly sided with the district court. Now, Openet has petitioned the Supreme Court for writ of certiorari – arguing that the Federal Circuit improperly reached beyond the clearly overbroad claims when making its decision.


"Rao decided to write for The Hill about an Apple case against an Android OEM."Experience suggests that almost always the SCOTUS will overrule the Court of Appeals for the Federal Circuit (CAFC). But does it need to revisit something it already dealt with? Even Crouch touches that aspect (see the above post).

In other news, yesterday there was a publication from Nagesh Rao, who is described as "a former U.S. patent examiner and senior policy advisor with the Department of Commerce-U.S. Patent and Trademark Office and Office of Innovation and Entrepreneurship. He represents the United States as an Eisenhower Fellow and advisor to the American Association for the Advancement of Science (AAAS) Lemelson Invention Ambassadors Program."

"Rao explains that “if not for low-quality patents […] we would not even be having this discussion right now.”"Rao decided to write for The Hill about an Apple case against an Android OEM. It was the biggest Android OEM at the time the lawsuit was filed. He said that the "Supreme Court could strengthen the patent system" and by strengthen he means make more strict, not what "STRONGER" means in that infamous bill ("The STRONGER Patents Act" is reducing their quality to spur frivolous litigation).

Rao explains that “if not for low-quality patents […] we would not even be having this discussion right now.”

People inside the EPO have told us that highly dubious patents (EPs) are being granted to Apple in Europe as well. It's a global problem.

Patent quality is brought up by Rao as follows:

I mentioned patent quality is at the core of this case. As a former U.S. patent examiner that’s an issue I feel very strongly about. After all, if not for low-quality patents (it’s not just my opinion, the U.S. appeals court that originally found some of Apple’s controversial patents to be invalid would likely agree), we would not even be having this discussion right now.

The Supreme Court should hear this case and seize the opportunity to defend higher patent quality for a number of reasons – an issue that the USPTO has for years attempted to address, and made great strides in assuring. And in what some view as a positive step towards review, on Monday, the Court asked the acting U.S. Solicitor General to weigh in on the case.


We certainly hope that the Supreme Court will assess this case and overturn it in favour of Free software (Android). In this day and age when software is free (usually in terms of freedom and also price) there's no room for all this 'taxation' by declining firms -- at least in the mobile sector -- such as Apple.

Recent Techrights' Posts

Microsoft Layoffs and Closures Now Reported in Africa
Microsoft Uninstalls Nigeria as it closes African Development Centre (ADC) in Lagos
Microsoft OSI Uses Its Money to Hire PR Agencies That Spy and Spread Mindless Openwashing of GPL-Violating Microsoft Ploy
`We're under attack. But the attackers smile at us and hire PR firms to spy, mislead etc.
In Nigeria, Africa's (by Far) Largest Population, Microsoft Bing is the 0%
To Microsoft, Africa is just "someplace" to get intensive, hard-working human 'resources' (tech labour) at 2 dollars 'apiece' as in per person per hour
 
Links 10/05/2024: Burner Phones in 6-Eyes Government, “Hatred and Demonization” on the Rise
Links for the day
[Video] Richard Stallman, "I Saw You Playing Your Recorder in Paris" (Due to Proprietary Software Only)
Corporate autocrats do not want counterparts or alternatives to even exist
Five Years After the Extensive Campaign of Defamation Against Richard Stallman He's Still Giving Public Talks
"Richard Stallman will give a talk, in French, Free Software and Freedom in a Digital Society at Centrale Supelec in Saclay, on May 15."
Microsoft Is Rebranding Its 'Chatbot' Search for the Third Time Because It Fails to Gain Adoption
it always means that something has failed - not that they'll openly admit it
Richard Stallman Gives a Talk in Paris Next Week (in French) and It's About Freedom
another talk, which he has only just announced
Pace Up, Distractions Down
We've made our curation process faster and more efficient
In Algeria, GNU/Linux Estimated to Have Grown Tenfold in a Decade
a sharp rise in GNU/Linux usage
[Meme] Red Hat Diversity
Red Hat: don't mention Haghighi
Our Sister Site Turns 20 in Exactly One Month
twentieth anniversary of the site
Corporate Media Focuses on Who's Suing Red Hat, Not What It's Sued For
The unfortunate thing is, anybody who has an opinion on this lawsuit will inevitably be framed as "pro-Trump" or "anti-Trump"
Links 10/05/2024: Many More Microsoft Layoffs on the Way
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 09, 2024
IRC logs for Thursday, May 09, 2024
Gemini Links 10/05/2024: geminispace.info to Shut Down in 3 Weeks
Links for the day
Links 09/05/2024: Journalists in Detention, China Banning Songs or Anthems
Links for the day
Support for harassment and abuse victims
Reprinted with permission from Daniel Pocock
Gemini Links 09/05/2024: Being Sick Enough and End of “World of Ends“
Links for the day
Links 09/05/2024: 'Hey Hi' (AI) Bubble Implodes Some More, Microsoft Layoffs So Widespread It's Hard to Keep Track
Links for the day
Speaking of Enshittification and Freedom, We've Still Not Begun Tackling the UEFI 'Secure' Boot Mess (Preventing GNU/Linux From Even Booting!)
Microsoft continues to fly under the radar and commit competition crimes with impunity
Microsoft Has Just Confirmed Mass Layoffs in Nigeria, It Now Adds Insult to Injury With Price Hikes for Locals
It's not like Microsoft paid them good salaries
Software Enshittification or Freedom? It's not a hard choice!
Reprinted from Alexandre Oliva
Links 09/05/2024: More Microsoft Layoffs on the Way
Links for the day
Amid Microsoft Layoffs in Nigeria GNU/Linux Climbs Above 6% Market Share (Not Including ChromeOS)
Hundreds are being laid off by Microsoft in Nigeria, based on yesterday's reports
[Meme] Blame the Robots or the 'Hey Hi' (AI), It Always Works in Today's Media
Companies do not have financial troubles! They have "efficiencies"...
News Reports Say Many More Microsoft Layoffs on the Way, Rumours Say Red Hat Also Imminently a Target
Microsoft is slipping out of control
Links 09/05/2024: Diplomacy Efforts With China, AstraZeneca Stops Experimenting With COVID-19 Vaccines
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 08, 2024
IRC logs for Wednesday, May 08, 2024
Gemini Links 09/05/2024: Registered Computer Professionals and TLS (The Long Slog)
Links for the day
Links 08/05/2024: Android Malware and "AI" Hype
Links for the day
[Meme] Technical Committee With People Who Are Not Technical
the computing/computer industry being occupied by people who lack suitable background
The Demise of Computer Science Education
Education is essential for the future; without it, whole nations will perish
[Video] Prisons for the Minds and for Tech Workers
Today's video talks about what happens to workforces (across disciplines) in recent years
[Meme] Struggling to Leave Its Nazi Past Behind
digital arson
Microsoft Declines to Talk About How Many People It Has Just Laid Off
Hours ago in IGN: "Microsoft did not say how many staff will lose their jobs, but significant layoffs are inevitable. IGN has asked Bethesda for comment. Microsoft declined to expand further when contacted by IGN."
Microsoft Windows in South America: From 99% to 87%
the latest from statCounter
It's Rather Obvious Why They Try to Silence Richard Stallman, Eben Moglen, and Daniel Pocock
Some of them already sent physically menacing messages to Daniel Pocock
IRC Network of Techrights Turns 3 (or 16 if We Count the Freenode Days)
In a few months IRC turns 36
Sedating Oneself (and Shareholders) With Fuzzy Buzzwords and Pointless Acquisitions
IBM trying to buy time
Clickfraud Spamnil Ran Out of Clickfraud Budget, Apparently
sooner or later charlatans and frauds run out of steam
Techrights Gets Under the Skin of Bad, Corrupt, Immoral People (That's a Good Thing)
Journalism is the lifeblood of democracy and free societies
Companies Do Not Shut Down Offices and Lay Off Staff en Masse (Morale and Reputation Issue) Unless They're in Deep Financial Trouble
Microsoft has been faking its financial performance for years
IRC Proceedings: Tuesday, May 07, 2024
IRC logs for Tuesday, May 07, 2024
Over at Tux Machines...
GNU/Linux news for the past day
[Video] Leaving Microsoft Behind for the Sake of National Security
Threats to "National Security" aren't some users with an Android phone but Microsoft at the root of things
GNU/Linux and ChromeOS Now at 6% in France, According to statCounter
numbers from statCounter