EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

10.30.16

The Importance of the Patent Trial and Appeal Board Proven by the Fact That It’s Under Endless Attacks From the Patent Microcosm

Posted in America, Patents at 12:44 pm by Dr. Roy Schestowitz

Patent maximalists just want patents on everything

PTAB impotence

Summary: The Patent Trial and Appeal Board (PTAB) continues to invalidate patents that should never have been granted in the first place, not slowing down even in the face of greater and louder opposition from reckless patent maximalists

THE SCIENCE-LED PTAB is one of the best aspects of the USPTO. It’s almost like the equivalent of the besieged appeal boards at the EPO and it helps ensure high patent quality.

“The patent microcosm just can’t stand the idea of high-profile patents (with high royalties) being subjected to proper scrutiny.”Don’t assume that PTAB is popular with everyone. Not all people have the same goals; peace, for example, isn’t an objective when you sell weapons. There’s bemoaning of PTAB in IAM ‘magazine’ this month (more of the usual) and MIP writes about Kyle Bass essentially making money out of PTAB. Making money by blowing away bad patents is not an evil thing; in a way, this should be very much encouraged. “The Patent Trial and Appeal Board has invalidated the claims of a patent covering Shire’s Gattex drug,” MIP wrote. Well, good riddance then. Bass does not just go after solid, decent patents. The patent maximalists call him a “troll” (or “reverse troll”) for it. The patent microcosm just can’t stand the idea of high-profile patents (with high royalties) being subjected to proper scrutiny.

In re Aqua, one high profile case involving PTAB, got covered at Patently-O in recent days/weeks [1, 2]. It’s one of those increasingly common cases where a company gets a bogus patent application past careless examiners at the USPTO and then PTAB steps it, threatening to throw it away, whereupon the grantee wants to modify/change the patent (post-grant) for apparent merit. What is this system going to look like if there are post-issuance edits? What are the patent maximalists sinking/stooping down to? To quote Patently-O:

The only pending en banc patent case before the Federal Circuit is In re Aqua Products (Appeal No. 15-1177) involving claim amendments during inter partes review. The Patent Statute contemplates claim amendments as a possibility but not a right — notably, 35 U.S.C. 316(d) states that “the patent owner may file 1 motion to amend the patent” with additional motions to amend permitted in limited situations. The scope of amendment is also limited to (A) cancelling challenged claims and (B) proposing “a reasonable number of substitute claims” that do not “enlarge the scope of the claims of the patent or introduce new matter.”

Another article from Patently-O says that “[i]n a split opinion, the Federal Circuit has affirmed the PTAB’s determination of obviousness. Biota’s patent claims influenza treatment through oral inhalation of zanamivir while the prior art teaches the identical treatment by nasal inhalation. A second prior art reference also suggests that similar compound can be taken via “inhalation” (without the nasal or oral modifier). On appeal, the Federal Circuit affirmed that the general inhalation disclosure “is reasonably understood to disclose inhalation by either the nose alone, mouth alone, or both.””

It sure looks like attacks on the legitimacy of PTAB come from many directions and they usually fall flat on their face. The PTAB Litigation Blog, one or those blogs that are managed or run by the patent microcosm (Jones Day in this case), has this new article titled “The Equitable Doctrine of Assignor Estoppel Does Not Prevent PTAB from Instituting an IPR”.

“What is this system going to look like if there are post-issuance edits?”It’s all about stopping PTAB, isn’t it? It’s a serial destroyer of software patents, which is a lot more efficient than US courts (more patents invalidated more quickly).

Finnegan et al (other firms that profit from patents) are increasingly afraid of PTAB and do anything within their capacity to politely (more than Watchtroll) delegitimise it. Finnegan, Henderson, Farabow, Garrett & Dunner LLP can be seen here poking PTAB again. They just never give up, do they?

Michael Loney, who has done a lot of coverage regarding PTAB this year, has this roundup which includes PTAB news and going back to Patently-O, this one new article is attempting to use any tricks in the book to shoot down PTAB because it invalidates patents and does its job by ensuring high patent quality. To quote one very recent article: “Patent Academic Ray Mercado also took advantage of the request for a responsive brief to file an amicus brief. Mercado argues that patents should be seen as “private rights” and therefore cannot be administratively cancelled. He writes: “Once the historical uniqueness of patent law is taken into account, it is clear that patents are ‘private rights’ for purposes of this Court’s separation of powers jurisprudence, and their validity must be decided by Article III courts.””

“It sure looks like attacks on the legitimacy of PTAB come from many directions and they usually fall flat on their face.”So they try to scrutinise the very existence of PTAB. How predictable. Another new article from Patently-O reveals that large companies are exploring ways to overcome PTAB and maintain their invalid, bogus patents. Here are some of the details: “On rehearing in Medtronic v. Robert Bosch, the Federal Circuit panel has reaffirmed its earlier determining that the PTAB’s vacatur of an IPR institution decision is a decision as to “whether to institute an inter partes review” and therefore is “final and nonappealable.” The original Medtronic decision had been released prior to Cuozzo v. Lee (2016) and the rehearing decision now explains that “nothing in Cuozzo is to the contrary.” [...] An additional difficulty with all of this stems from the pending Ethicon petition and the difference between action by the Director and action by the PTAB. The statute separates the roles – indicating that the PTO Director’s role is in determining “whether to institute” an IPR. Under the statute, the PTAB then steps in to conduct the trial. Those separate roles were then combined by PTO regulation which states “The Board institutes the trial on behalf of the Director.” 37 CFR 42.4. A question – unanswered in this case – is whether the Director’s regulatory delegation above should be interpreted to also extend to vacating and terminating petitions. I’m not sure that it does.”

To clarify, IPRs are about invalidation of patents including software patents (killing software patents one at a time, which isn’t optimal/ideal). Anyone in this domain already knows this, yet law firms spin it as “settlement”. That’s highly misleading a characterisation. Watch what Finnegan, Henderson, Farabow, Garrett & Dunner LLP is saying: “Through October 1, 2016, the Federal Circuit decided 120 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 95 (79.17%) of the cases, and reversed or vacated the PTAB on every issue in 9 (7.50%) of the cases. A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 11 (9.17%) of the cases.”

“We expect PTAB to come under plenty of new/fresh attacks, including complaints to politicians, to courts, and misinformation (targeting the public and stakeholders).”No matter how much law firms may attempt to destroy the reality (for profit), there are no effective changes to PTAB. Its large-scale patents invalidation progress is not slowing down, not judging by these latest figures. As MIP put it: “The ability to include testimonial evidence with patent owner preliminary responses in Patent Trial and Appeal Board proceedings has not been much help since it was introduced in May, according to an analysis by Oblon’s Scott McKeown”

We expect PTAB to come under plenty of new/fresh attacks, including complaints to politicians, to courts, and misinformation (targeting the public and stakeholders). We’ll keep a close eye on progress and report on it periodically.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. In Attempt to Promote the Horrific UPC (Poor Quality of Patents Everywhere), Minnoye and Casado Cerviño Attack Their Own Staff for Saying the Truth

    An attack on truth itself -- the disintegration of the European Patent Office (EPO) -- carries on, after staff found the courage to tell delegates what had happened due to Battistelli's policies and incredible oppression that prevails and expands



  2. Another Likely Casualty of the Battistelli Regime at the EPO: Validity of Decisions of Terrified Boards of Appeal Judges

    Under pressure and habitual intervention from a demoralising, overreaching, and out-of-control President (from an entirely different division), examiners and judges 'normalise' the practice of granting patents on genetics -- a very slippery slope in terms of patent scope



  3. Benoît Battistelli 'Pulls an Erdoğan' Faster Than Erdoğan

    An explanation of what the imminent departure of Minnoye (this summer) will mean for Benoît Battistelli and his confidants, who now resemble some of the world's most ruthless dictatorships



  4. With Important Supreme Court Decisions Looming, Mainstream Media Tackles Patent Trolls

    The US Supreme Court (SCOTUS) will soon rule on TC Heartland and Lexmark, potentially restricting abusive patent behaviour even further (making room for freedom to innovate and for competition)



  5. IAM Magazine is Very Blatantly Promoting Patent Trolls and Their Agenda

    IAM Media, which produces a magazine every now and then while posting online every day, maintains its pro-trolls agenda, which is becoming so clear to see that it is definitely worth documenting yet again



  6. A “Perfect Recipe for Fraud” at the European Patent Office (EPO)

    How the world's leading patent office became a world-leading source of abuse, corruption, nepotism, injustice, incompetence, censorship, alleged bribery, pure deception, distortion of media, defamation, and suicides (among many other things)



  7. Techrights Was Right About the Unitary Patent (UPC)

    No Unified Patent Court in the UK and probably nothing like it in the rest of Europe any time soon (if ever)



  8. Patents on Life and Patents on Software Serve to Show That EPO Patent Quality Fell Well Behind the US (PTO)

    Anything goes at the EPO, except dissent; any patent application seems to be grantable, provided one uses simple tricks and persists against overworked examiners who are pressured to increase so-called 'production'



  9. Links 28/3/2017: Linux 4.11-rc4 Kernel Released, Red Hat Surge on Sales

    Links for the day



  10. The Crook Goes to Brussels to Lie About the Unitary Patent (UPC)

    The person who spent years lying about the UPC and severely attacking critics (usually by blatantly lying about them) goes to Brussels for another nose extension



  11. The EPO's HR Roadmap Retrospective

    A look back at the terrible ‘accomplishments’ of the Jesper Kongstad-led Administrative Council, which still issues hogwash and face-saving lies, as one might expect from a protector of Battistelli that lies to national representatives and buries inconvenient topics



  12. Links 26/3/2017: Debian Project Leader Elections, SecureDrop and Alexandre Oliva FSF Winners

    Links for the day



  13. His Master's Voice, Jesper Kongstad, Blocks Discussion of Investigative and Disciplinary Procedures at the EPO

    The Chairman of the Administrative Council of the European Patent Organisation is actively preventing not just the dismissal of Battistelli but also discussion of Battistelli's abuses



  14. Heiko Maas and the State of Germany Viewed as Increasingly Complicit in EPO Scandals and Toxic UPC Agenda

    It is becoming hard if not impossible to interpret silence and inaction from Maas as a form of endorsement for everything the EPO has been doing, with the German delegates displaying more of that apathy which in itself constitutes a form of complicity



  15. With IP Kat Coverage of EPO Scandals Coming to an End (Officially), Techrights and The Register Remain to Cover New Developments

    One final post about the end of Merpel’s EPO coverage, which is unfortunate but understandable given the EPO’s track record attacking the media, including blogs like IP Kat, sites of patent stakeholders, and even so-called media partners



  16. Everyone, Including Patent Law Firms, Will Suffer From the Demise of the EPO

    Concerns about quality of patents granted by the EPO (EPs) are publicly raised by industry/EPO insiders, albeit in an anonymous fashion



  17. Yes, Battistelli's Ban on EPO Strikes (or Severe Limitation Thereof) is a Violation of Human Rights

    Battistelli has curtailed even the right to strike, yet anonymous cowards attempt to blame the staff (as in patent examiners) for not going out of their way to engage in 'unauthorised' strikes (entailing dismissal)



  18. Even the EPO's Administrative Council No Longer Trusts Its Chairman, Battistelli's 'Chinchilla' Jesper Kongstad

    Kongstad's protection of Battistelli, whom he is supposed to oversee, stretches to the point where national representatives (delegates) are being misinformed



  19. Thanks to Merpel, the World Knows EPO Scandals a Lot Better, But It's a Shame That IP Kat Helped UPC

    A look back at Merpel's final post about EPO scandals and the looming threat of the UPC, which UPC opportunists such as Bristows LLP still try hard to make a reality, exploiting bogus (hastily-granted) patents for endless litigation all around Europe



  20. EPO Critics Threatened by Self-Censorship, Comment Censorship, and a Growing Threat to Anonymity

    Putting in perspective the campaign for justice at the EPO, which to a large degree relies on whistleblowers and thus depends a great deal on freedom of the press, freedom of speech, and anonymity



  21. Links 25/3/2017: Maru OS 0.4, C++17 Complete

    Links for the day



  22. Judge and Justice Bashing in the United States, EPC Bashing at the EPO

    Enforcement of the law based on constitutional grounds and based on the European Patent Convention (EPC) in an age of retribution and insults -- sometimes even libel -- against judges



  23. Looking for EPO Nepotism? Forget About Jouve and Look Closely at Europatis Instead.

    Debates about the contract of Jouve with the EPO overlook the elephants in the room, which include companies that are established and run by former EPO chiefs and enjoy a relationship with the EPO



  24. Depressing EPO News: Attacks on Staff, Attacks on Life, Brain Drain, Patents on Life, Patent Trolls Come to Germany, and Spain Being Misled

    A roundup of the latest developments at the EPO combined with feedback from insiders, who are not tolerating their misguided and increasingly abusive management



  25. It Certainly Looks Like Microsoft is Already Siccing Its Patent Trolls, Including Intellectual Ventures, on Companies That Use Linux (Until They Pay 'Protection' Money)

    News about Intellectual Ventures and Finjan Holdings (Microsoft-funded patent trolls) reinforces our allegations -- not mere suspicions anymore -- that Microsoft would 'punish' companies that are not paying subscription fees (hosting) or royalties (patent tax) to Microsoft and are thus in some sense 'indebted' to Microsoft



  26. Links 24/3/2017: Microsoft Aggression, Eudyptula Challenge Status Report

    Links for the day



  27. Bernhard Rapkay, Former MEP and Rapporteur on Unitary Patent, Shoots Down UPC Hopes While UPC Hopefuls Recognise That Spain Isn't Interested Either

    Germany, the UK and Spain remain massive barriers to the UPC -- all this in spite of misleading reports and fake news which attempted to make politicians believe otherwise (for political leverage, by means of dirty lobbying contingent upon misinformation)



  28. Links 23/3/2017: Qt 5.9 Beta, Gluster Storage 3.2

    Links for the day



  29. The Administrative Council of the European Patent Organisation Has Just Buried an Innocent Judge That Battistelli Does Not Like

    An innocent judge (never proven guilty of anything, only publicly defamed with help from Team Battistelli and dubious 'intelligence' gathering) is one of the forgotten casualties of the latest meeting of the Administrative Council (AC), which has become growingly complicit rather than a mere bystander at a 'crime' scene



  30. Nepotism at the European Patent Office and Suspicious Absence of Tenders for Big Projects

    Carte blanche is a French term which now perfectly describes the symptoms encountered in the European Patent Office, more so once led by a lot of French people (Battistelli and his friends)


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts