Bonum Certa Men Certa

The Patent Trial and Appeal Board (PTAB) Under Persistent Attack From the Patent Microcosm

But the Court of Appeals for the Federal Circuit (CAFC) is not standing in the way

Areopagus



Summary: The bureaucratic layers/levels added for dealing with the loosening of patent quality are still subjected to endless scrutiny from those who profit from more and more patents (including frivolous litigation which they bring about)

The patent microcosm, as usual, is trying to undermine Alice, Section 101, PTAB and AIA. "Thus far," Patently-O just wrote, "the Federal Circuit has successfully ducked any direct holding on whether eligibility under 35 U.S.C. 101 is a “condition of patentability” or a proper invalidity defenes. [...] Versata decision which held that the PTAB has authority to decide Section 101 challenges in a CBM review." Another new post from Patently-O says that "Ethicon has filed its expected petition for writ of certiorari challenging the USPTO’s delegation of IPR Institution Decisions to the Patent Trial and Appeal Board."



"Why does this matter? Because there's a coordinated effort to make PTAB less effective, less efficient, and less accessible so as to slow down its invalidation of bad patents."They are doing anything they can to stop what they call "death squad" because this board puts an end to a lot of software patents (bad for patent lawsuits, but good for everybody else). "The Federal Circuit has outlined a two-part framework for deciding whether it can review an institution decision, in its in Husky Injection Molding Sys v Athena Automation decision," MIP wrote.

Why does this matter? Because there's a coordinated effort to make PTAB less effective, less efficient, and less accessible so as to slow down its invalidation of bad patents. IAM 'magazine' wrote two days ago [1, 2] that "PTAB [is] already too expensive for SMEs. @uspto now proposes increasing fees! Will just entrench IPRs as a BigCo tool. http://www.uspto.gov/about-us/news-updates/uspto-seeking-comments-proposed-patent-fee-adjustments [...] To be fair, also unspecified proposals to broaden scope of fees cap for micro and small entities. But this has been ineffective up to now."

"PTAB should follow the polluter payer principle," Benjamin Henrion replied, suggesting a proportional fee, e.g. to size of appellant, holder etc.

"AIA gave us PTAB, which now kills software patents in very large numbers, but not everyone is happy."The "Court of Appeals for the Federal Circuit upheld the Patent Trial and Appeal Board’s (PTAB’s or Board’s) decision," the National Law Review wrote a few days ago. To quote in full: "In an opinion addressing the standard for claim construction of a patent that expires during reexamination, the US Court of Appeals for the Federal Circuit upheld the Patent Trial and Appeal Board’s (PTAB’s or Board’s) decision finding all challenged claims invalid, but found that the PTAB had used the incorrect standard for its claim construction. In re: CSB-System Int’l, Inc., Case No. 15-1832 (Fed. Cir., Aug. 9, 2016) (Stoll, J)."

AIA gave us PTAB, which now kills software patents in very large numbers, but not everyone is happy. Here is another one those rants from patent maximalists, serving to prove that PTAB did the right thing by limiting patent scope:

The AIA ushered in significant changes in the patent system. At the time, there was much consternation about the change to a first-inventor-to-file system. The prospect of enhanced post-grant challenges was an afterthought, dismissed as a variation in inter partes reexamination. Inter partes reexamination filings even spiked in 2012, as practitioners were reluctant to let go of the familiar process in favor of the new post-grant trial system.

Five years on, the emphasis has flipped; first inventor to file is accepted as not much different than the patent systems in the rest of the world. Post-grant trials now get much more attention. Some see them as the only way to save American business; others call the system disastrous for innovation. However you classify the impact, AIA trials have been significant.


Only for clerical reasons -- not technical -- can the Patent Trial and Appeal Board (PTAB) let bogus patents be, based on new stories/cases such as this:

In a recent decision, the Patent Trial and Appeal Board (PTAB) denied the institution of a covered business method (CBM) patent review on an Internet Portal System patent because the claims lacked any recitation of a financial product or financial activity. The decision serves well to inform petitioners that the focus for CBM decisions is becoming more on the claim language itself, in contrast to some earlier decisions by the Board where a liberal reading and interpretation of the patent in general was allowed to institute a CBM trial.

[...]

Thus, the PTAB was clear that because the challenged claims of the '077 patent are of general utility with no explicit or inherent finance-related terminology or limitations, this patent was not considered a CBM patent eligible for review. The CBM review was thus not instituted.


We maintain our position that PTAB is a very important tool if tightening patent scope and improving patent quality is the goal. It is clear that all the above sites (patent maximalists) don't share the view that patent quality ought to be a priority and they do whatever they can to weaken (if not put an end to) Alice, Section 101, PTAB and AIA.

Recent Techrights' Posts

[Meme] The Heart of Staff Rep
Rowan heartily grateful
Microsoft's Windows Falls to All-Time Low and Layoffs Reported by Managers in the Windows Division
One manager probably broke an NDA or two when he spoke about it in social control media
 
Gemini Links 18/04/2024: Google Layoffs Again, ByteDance Scandals Return
Links for the day
Gemini Links 18/04/2024: Trying OpenBSD and War on Links Continues
Links for the day
IRC Proceedings: Wednesday, April 17, 2024
IRC logs for Wednesday, April 17, 2024
Over at Tux Machines...
GNU/Linux news for the past day
North America, Home of Microsoft and of Windows, is Moving to GNU/Linux
Can it top 5% by year's end?
Management-Friendly Staff Representatives at the EPO Voted Out (or Simply Did Not Run Anymore)
The good news is that they're no longer in a position of authority
Microsofters in 'Linux Foundation' Clothing Continue to Shift Security Scrutiny to 'Linux'
Pay closer attention to the latest Microsoft breach and security catastrophes
Links 17/04/2024: Free-Market Policies Wane, China Marks Economic Recovery
Links for the day
Gemini Links 17/04/2024: "Failure Is An Option", Profectus Alpha 0.5 From a Microsofter Trying to Dethrone Gemini
Links for the day
How does unpaid Debian work impact our families?
Reprinted with permission from Daniel Pocock
When you give money to Debian, where does it go?
Reprinted with permission from Daniel Pocock
How do teams work in Debian?
Reprinted with permission from Daniel Pocock
Joint Authors & Debian Family Legitimate Interests
Reprinted with permission from Daniel Pocock
Bad faith: Debian logo and theme use authorized
Reprinted with permission from Daniel Pocock
Links 17/04/2024: TikTok Killing Youth, More Layoff Rounds
Links for the day
Jack Wallen Has Been Assigned by ZDNet to Write Fake (Sponsored) 'Reviews'
Wallen is selling out. Shilling for the corporations, not the community.
Links 17/04/2024: SAP, Kwalee, and Take-Two Layoffs
Links for the day
IRC Proceedings: Tuesday, April 16, 2024
IRC logs for Tuesday, April 16, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Inclusion of Dissent and Diversity of Views (Opinions, Interpretations, Scenarios)
Stand for freedom of expression as much as you insist on software freedom
Examining Code of Conduct violations
Reprinted with permission from the Free Software Fellowship
Ruben Schade's Story Shows the Toxicity of Social Control Media, Not GNU/Linux
The issue here is Social Control Media [sic], which unlike the media rewards people for brigading otherwise OK or reasonable people
Upgrading IRCd
We use the latest Debian BTW
The Free Software Community is Under Attack (Waged Mostly by Lawyers, Not Developers)
Licensing and legalese may seem "boring" or "complicated" (depending on where one stands w.r.t. development), but it matters a great deal
Jonathan Cohen, Charles Fussell & Debian embezzlement
Reprinted with permission from disguised.work
Grasping at Straws in IBM (Red Hat Layoff Rumours in 2024)
researching rumours around Red Hat layoffs
GNU/Linux Continues to Get More Prevalent Worldwide (Also on the Desktop)
Desktops (or laptops) aren't everything, but...
Who is a real Debian Developer?
Reprinted with permission from Daniel Pocock
Links 16/04/2024: Many More Layoffs, Broadcom/VMware Probed (Antitrust)
Links for the day
Links 16/04/2024: Second Sunday After Easter and "Re-inventing the Wheel"
Links for the day
Upcoming Themes and Articles in Techrights
we expect to have already caught up with most of the administrivia and hopefully we'll be back to the prior pace some time later this week
Links 16/04/2024: Levente "anthraxx" Polyák as Arch Linux 2024 Leader, openSUSE Leap Micro 6 Now Alpha, Facebook Blocking News
Links for the day
Where is the copyright notice and license for Debian GNU/Linux itself?
Reprinted with permission from Daniel Pocock
Halász Dávid & IBM Red Hat, OSCAL, Albania dating
Reprinted with permission from the Free Software Fellowship
Apology & Correction: Daniele Scasciafratte & Mozilla, OSCAL, Albania dating
Reprinted with permission from the Free Software Fellowship
Next Week Marks a Year Since Red Hat Mass Layoffs, Another Round Would be "Consistent With Other Layoffs at IBM."
"From anon: Global D&I team has been cut in half."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, April 15, 2024
IRC logs for Monday, April 15, 2024