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06.11.16

Patent Lawyers Want a ‘Death Squad’ to Kill PTAB, Which Eliminates Software Patents at a Growing Pace

Posted in America, Europe, Law, Patents at 1:06 pm by Dr. Roy Schestowitz

EPO killing the appeals department, whereas the USPTO strengthens it

PTAB

Summary: The Patent Trial and Appeal Board causes the patent microcosm to get all worried and vindicative, having come to the point of reviewing over 2,000 patents per year (expected to exceed 2,000 this year), i.e. almost a 10,000% growth since it all started

THE protests from patent lawyers against PTAB are rather revealing. They help demonstrate that PTAB is doing something right. IAM, which is funded by patent trolls and all sorts of patent parasites, tries to reinforce the discrediting/insulting label, “death squad”, in relation to PTAB. This isn’t the first time and now it’s right at the middle of the headline. Yes, “patent death squad” is what the patent propagandists are nowadays calling appeals, or specialised groups of scientists and/or judges who identify invalid patents, trashing these before they do enormous damage to small firms (or sole developers) which cannot afford legal defense.

“IAM, which is funded by patent trolls and all sorts of patent parasites, tries to reinforce the discrediting/insulting label, “death squad”, in relation to PTAB.”To quote IAM: “No patent owner likes to find itself subject to an inter partes review or covered business method patent procedure before the Patent Trial and Appeal Board at the USPTO. Not only do you end up spending good money to defend your position, but the statistics show that the chances are you will find at least some of your claims – if not the entire patent in question – being wiped out.”

How about the people who become victims of these patents, not the “patent owners” [sic]? One single patent can be used to attack, e.g. with extortion-like nastygrams dispatched in a warehouse/retail/wholesale fashion, literally thousands of small developers. It happens every year, but IAM does not care for them. They don’t fund IAM.

Looking at MIP, which is a lot more balanced than IAM, here are some information and numbers. “Managing IP rounds up interesting quotes, statistics, slides and tidbits from speakers at the US PTAB Forum 2016 in New York,” it claims, “which included panels on Patent Trial and Appeal Board rule changes, Federal Circuit appeals, district court strategies, pharma challenges and more” (quite an informative series).

“Watch how the number of petitions/appeals grew: 25 in 2012, 562 the following year, then 1489, 1897 last year and so far this year (just five months) 1053, which means it’ll go over 2000 this year, assuming the same pace persists.”Here is MIP showing the raw numbers. It’s sumamrised as “PTAB Monthly Data: Ford filed the most PTAB petitions in May, with Versata the most-targeted patent owner. Four PGR petitions were filed, a sign that this type of petition is gaining traction” (not just this type).

Watch how the number of petitions/appeals grew: 25 in 2012, 562 the following year, then 1489, 1897 last year and so far this year (just five months) 1053, which means it’ll go over 2000 this year, assuming the same pace persists.

“Whatever makes these greedy folks angry or puts them in a bit of a panic must be real impediment to software patents and various other abstract patents.”PTAB (or USPTO) needs to hire more and more people for this as there’s clearly high demand for the service. An experienced chief judge was recently added. While the EPO systematically crushes its quasi-equivalent of PTAB, sometimes by getting rid of people and not hiring replacements, the USPTO seems to gain/hire more such people. In other words, as the bubble inevitably bursts the USPTO regains some sanity (e.g. Alice test), whereas the EPO goes in the opposite direction, emulating neoliberal errors.

IP Hawk, a patents maximalist, bemoans the above. “CAFC crushed the PTAB,” he wrote, and “will likely issue a scathing Precedential opinion” (wishful thinking or lobbying). Here is another patents maximalist joining the echo chamber, quoting: “I don’t know what the Board thinks it’s doing” (or words to that effect).

Well, judging by those who are afraid of PTAB right now [1, 2, 3] we have some reassurance that it is doing the right thing. Whatever makes these greedy folks angry or puts them in a bit of a panic must be real impediment to software patents and various other abstract patents.

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