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07.13.16

Fourth-Busiest Quarter for Patent Trial and Appeal Board (PTAB), Which Invalidates Software Patents That USPTO Foolishly or Selfishly Granted

Posted in America, Patents at 6:17 pm by Dr. Roy Schestowitz

The higher, the worse (for USPTO patent quality control)

PTAB graph

Summary: New data from the United States demonstrates that the number of allegedly bogus patents (which should never have been granted in the first place) is in the thousands per year, and those are just the patents that actually come under challenge/reassessment/scrutiny

THE USPTO begrudgingly moves towards a post-software patents era. Where the examiners fail PTAB staff (scientists) step in and typically invalidate bogus patents on abstract ideas. They don’t have a financial incentive to be rubberstampers.

“What is worth noting is that if USPTO actually did its job properly, PTAB would not be necessary.”Michael Loney of MIP has taken some data from Docket Navigator and posted the chart above. This basically shows a certain slowdown in terms of the number of PTAB filings. “Petition filing at the Patent Trial and Appeal Board (PTAB) in the first half of 2016 is down on the pace set last year,” he explained. “However,” he added, “filing in the second quarter of the year was up on the first quarter, and the highest since the second quarter of last year.”

What is worth noting is that if USPTO actually did its job properly, PTAB would not be necessary. But systemic malpractice, or the practice of granting patents to about 92% of applicants, led to this chaos which only now gets corrected somewhat. Under Battistelli, the EPO follows the same path.

Meanwhile, looking at this new article about “Subject Matter Jurisdiction”, the author says: “Like I said at the start, there are critical differences between the USPTO rules and many state rules and often those differences tell us whether Bob keeps his license, or not. More often, choice of law becomes an issue in disqualification motions and in legal malpractice cases. Ethical rules like state bar rules and then USPTO rules are are applied in disqualification and malpractice cases. If something is ethical under the USPTO rules, but unethical under state law, choice of law may provide the answer to what’s right — whether a client has a malpractice claim, or a lawyer is subject to disqualification.”

Unless or until USPTO demonstrates that it’s no longer run by a bunch of self-serving corporate lobbyists for rubberstamping of applications from large corporations (see how Battistelli's EPO does this), we’ll just continue to safely assume that the USPTO is central to many of the problems (like patent trolls) and PTAB is part of the solution. The USPTO isn’t breaking any laws and probably not even its internal rules; it sure looks like the rules would be something like, “if in doubt, grant” or “if it’s from a large applicant, grant in bulk” (because that’s what keeps money flowing in).

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