Comments for Patently-O

Comment on PTAB Doubles Section 101 Reversal Rate Under Director Squires by paulf

paulf — Sat, 03 Jan 2026 00:15:02 +0000

Thanks for showing the doubled percentage of PTAB reversals of Section 101 [unpatentable subject matter] application rejections under Director John Squires. But, for its impact on patent litigation, what does that equate to in increased total numbers of allowed patents?
Also, an examiner-burdening “demanding evidentiary support for findings that claimed elements are “well-understood, routine, conventional activity” under Alice step two” should eliminate even more 101 rejections at the examiner level that will never even get to the PTAB.
I hope that clients will be competently advised before suing on such patents that these PTO reductions in application 101 examinations, based on current Director views of that case law, will not control or impress courts considering the usual 12(b)(6) motions based on controlling judicial views of that case law.

Comment on The Surprising Headline of 2025: USPTO Stability? by paulf

paulf — Wed, 31 Dec 2025 17:28:02 +0000

Will the statistics re recent significant changes in greatly decreased IPRs, increased reexaminations, and increased patent suits, not be fully available until after PTO FY 2026?

Comment on Marking Minefield: How NPE Settlements Can Kill Back Damages by paulf

paulf — Mon, 29 Dec 2025 21:24:24 +0000

In a state where the bar could not even successfully manage its attempted sanctioning of Sidney Powell, should these listed sanctionable PAE patent litigation activities in that state be surprising?

Comment on Most Cited Fed Cir Cases 2020-2025 by paulf

paulf — Fri, 26 Dec 2025 20:00:50 +0000

Re: “Most Cited Fed Cir Cases 2020-2025”

Thanks for this Christmas present

Comment on Should Abandoned Applications Be Presumed Enabling? Supreme Court Asks for Response by paulf

paulf — Thu, 25 Dec 2025 14:53:38 +0000

In reply to Poppy. How would elimination of the presumption of enablement of an anticipatory disclosure apply to the PTO? Unlike parties in litigation, PTO examiners do not have either the discovery tools or the time to investigate third party disclosure enablements.

Comment on Should Abandoned Applications Be Presumed Enabling? Supreme Court Asks for Response by John Guynn

John Guynn — Thu, 25 Dec 2025 04:51:24 +0000

In reply to paulf. It might be a good for obviousness of the broad genus but not necessarily for a sub-genus or species that actually worked. I think the argument that "try anything" is not enabling is not much different than an argument that "try anything" cannot make anything in particular obvious.

Comment on Should Abandoned Applications Be Presumed Enabling? Supreme Court Asks for Response by mginthed

mginthed — Wed, 24 Dec 2025 13:21:01 +0000

How would this work with software? The bar for enablement with software is already incredible low. Basically if one of the drawings has words in a box describing what the software will do that’s enough.

Comment on Should Abandoned Applications Be Presumed Enabling? Supreme Court Asks for Response by Poppy

Poppy — Tue, 23 Dec 2025 17:26:04 +0000

The burden would be difficult for either party. The patentee will have evidence of its own difficulty in arriving at its invention and that evidence could be useful in showing the lack of enablement of the published application. I realize in some cases more would be needed.

Comment on Should Abandoned Applications Be Presumed Enabling? Supreme Court Asks for Response by paulf

paulf — Tue, 23 Dec 2025 14:59:16 +0000

P.S. This is about an abandoned prior application, but I assume it must also have been published. Patent law before U.S. applications started to be published would not have challenges like this. Abandoned applications with no continuations or divisionals stayed secret and were not prior art.
Also, even if full enablement including efficacy were required for a 102, would not a fully anticpatory disclosure still be a highly effective POSITA suggestion as 103 prior art?

Comment on Federal Circuit’s Top Precedents (2025): Claim Construction Classics and the Procedural Turn by Taking_PatentlyO_behind_a_paywall_is_a_wrong_turn1

Taking_PatentlyO_behind_a_paywall_is_a_wrong_turn1 — Sat, 20 Dec 2025 22:15:15 +0000

Don’t forget the special unwritten BlueBook rule for citations to Phillips c. AWH — what I call with intentional sarcasm ‘the Phillips exception”: “a full citation to Phillips v. AWH shall not include the modifier ‘(en banc)’ notwithstanding the fact that the case was decided by the en banc court.” In my observation it is common, even more than a preponderance of the time, for parties citing Phillips in briefs filed in any tribunal, at any level, to not identify Phillips as en banc. I cannot fathom why. Even the Federal Circuit itself has done so, many times. Kudos to Professor Crouch for violating this rule.