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

11.28.16

Patents Roundup: Patent Trolls, Patent Quality, and the Patent Trial and Appeal Board (“PTAB”)

Posted in America, Patents at 7:27 am by Dr. Roy Schestowitz

Game of backgammon

Summary: A week’s roundup of patent news from the United States, where there’s a mixture of good news, bad news, good reporting, and misleading (or selective) reporting

TAKING a break from European scandals and looking at the USPTO for a moment, there’s some good news and some bad news. This post is an outline of recent coverage and some interpretation of recent developments.

IoT and Other Buzzwords Targeted by Trolls

Using buzzwords for patent thickets, MIP published “Defining the IP landscape in IoT” several days ago. In simple terms , IoT is just a device with a TCP/IP stack, where IP stands for Internet Protocol, not Intellectual Property (quite a buzzword in its own right).

Another new article, published by a site that piggybacks the buzzword “IoT” (as meaningless as the buzzword “smart”), is titled “IoT Time: Don’t Feed the Trolls” and it speaks of a real and growing problem. Patent trolls, including some of Microsoft’s, are trying to tax — using patents — every device out there, even routers. One of Microsoft’s patent trolls that does this is still fighting for software patents. Here is what the article said:

The White House estimates that 62 percent of all patent-related lawsuits in 2014-2015 came from these trolls. And although it is a problem in the hardware space, it’s a much bigger one for software folks.

The New York Times in 2012 reported that the number of software patents has gone through the roof in the last few years, and software is hard for courts to nail down in terms of what, specifically, is the proprietary bit of code. Much of the code looks like any other code, even to experts, which leads to after-the-fact lawsuits asking for huge settlements years later.

Improved Patent Quality Means Less Litigation

The US patent system gives us many reasons for optimism, Trump’s presidency aside (we wrote about this last night). With better quality control in recent years the number of lawsuits sank, especially frivolous lawsuits from trolls. Here is how IAM put it:

It has been clear for most of 2016 that the number of new patent litigation cases was going to be down this year in the US. But it is now becoming ever more likely that the fall will be dramatic. According to the latest estimate from Lex Machina, the total amount of suits for 2016 is expected to be 4,586; that’s down from 5,822 last year, which was the second busiest on record.

This data from Lex Machina was mentioned elsewhere as well, though not in publications that are busy glorifying patents and attempting to inflate their value (no emphasis needed on such articles).

PTAB, Inter Partes Reviews (IPRs) and the Courts

David from Patently-O, a rather scholarly site, said that “courts continue to split on whether IPRs (reeexam, reissue, etc.) are “prosecution.””

In our view, a good analogy or parallel here is the EPO’s Boards of Appeal. Here is what David wrote:

I’ve written a lot about so-called prosecution bars (buy some of the books for Christmas gifts here! They make great stocking stuffers for toddlers), and this case is in many ways not that unusual but it does raise one interesting issue and serves as a reminder to both check your side and the other’s for folks who may need to be subjected to a bar, and its scope.

The opinion is not online that I can find but is Emerson Electric Co. v. Sipco, LLC, 2016 WL 6833741 (N.D. Cal. Case No.16-mc-80164-DMR, Nov. 21, 2016). A third party, Linear Technologies Corporation (“LTC”) was served with a subpoena that included a request for its source code. LTC sought to ensure that one of the party’s experts, Ameroth, would not have access to it because he was participating in IPRs. LTC had not instituted the IPRs and was not a party to the litigation.

Everyone agreed to amend to include a prosecution bar in the protective order (apparently it did not, before the subpoena, contain one), but the dispute was over whether Ameroth could view LTC’s source code and still participate in the IPR.

Suffice to say, we’re huge fans of IPRs and of PTAB in general. It helps ensure greater and more reliable control over the quality of patents. It’s a bit like an independent (sort of) regulator of examiners. Its very existence is enough to compel examiners to think twice before they grant a patent in error. PTAB is almost like a watchdog, i.e. the very opposite of Watchtroll who just keeps attacking PTAB. It was sorely needed for over a decade and now it’s under never-ending attacks from the patent microcosm (profiting from the absence of such oversight mechanism).

Here is a very recent article titled “Federal Circuit PTAB Appeal Statistics – November 2016″. It’s from a site of patent law firms and it says:

Through November 1, 2016, the Federal Circuit decided 128 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 101 (78.91%) of the cases, and reversed or vacated the PTAB on every issue in 9 (7.03%) 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 (8.59%) of the cases.

78.91% affirmation rate is very high and it’s similar to the rate of CAFC invalidations of software patents.

MIP also wrote about PTAB last week (Mr. Loney writes a lot on the subject from New York). “Though the AIA and PTAB have made strides in curtailing the practices of the non-practicing “trolls”,” it said, “patents can still be monetized through these same methods by operational and non-operational companies alike.”

Watch what PTAB does to the patent troll of Ericsson, based on this report from MIP: “In Unwired Planet v Google, the Federal Circuit has declared: “The Board’s application of the ‘incidental to’ and ‘complementary to’ language from the PTO policy statement instead of the statutory definition renders superfluous the limits Congress placed on the definition of a CBM patent””

A lot of the press coverage last week actually focused on this one case. They have been pretty much ignoring all the cases which did not suit them and instead cherry-pick this one case. We’ll deal with that separately later.

PTAB made many people realise that passing the examiners’ ‘quality’ control at the USPTO is not enough, or as IAM put it: “The extent to which patent value and validity are correlated in the current market was called into question last week at Unified Patents’ annual meeting in Silicon Valley.” To quote IAM’s headline (it’s a blog post), “To understand a patent’s true value these days you have to factor in the PTAB” (which habitually shoots down patents even after a grant and without the patents being tested in court).

Remember how companies used to issue press releases to brag about being granted a patent or two? Well, watch how PTAB too gains recognition, based on this press release:

Voip-Pal Announces the USPTO Has Denied on All Grounds Institution of Unified Patents Inc.’s Petition for Inter Parted Review Filed

Voip-Pal.com, Inc. (“Voip-Pal,” the “Company”) (VPLM) is pleased to announce that on November 18, 2016 the Patent Trial and Appeal Board (“PTAB”) of the United States Patent and Trademark Office (“USPTO”) denied on all grounds a petition for Inter Partes Review (“IPR”), IPR2016-01082, filed by Unified Patents Inc. against Voip-Pal’s Routing, Billing and Rating Patent (“RBR”), Patent No. 8,542,815 (“815”)

Patent Microcosm Makes a Mountain Out of a Molehill

As we noted above, in one particular case CAFC did not agree with PTAB. It’s one of those exceptions or rare situations. As expected, patent law firms try to use this one case against PTAB’s legitimacy and they hope to overturn software patents’ death. How many articles did we find about it last week? Plenty! See [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15] and also “Federal Circuit Tightens Standard for AIA Review” (behind paywall), which generalises based on one single case. Greedy law firms ignored what CAFC has said about PTAB’s function until they got something that supports their narrative/business model, so now they amplify it. It obviously got PTAB foes (patent maximalists) all riled up (see Watchtroll) and various sites that wrote about it were careful to note that it’s just one case of many. If one actually bothers visiting the USPTO’s site, there’s a post there which calls PTAB a success. To quote: “As part of the USPTO’s ongoing Enhanced Patent Quality Initiative, in April 2016 we launched the Post Grant Outcomes Pilot, focused on pending patent applications that are related to issued patents undergoing an America Invents Act (AIA) trial proceeding before the Patent Trial and Appeal Board (PTAB). We’d like to report that the Post Grant Outcomes Pilot has succeeded in making examiners aware of patents related to applications they are examining that are involved in PTAB trials, and in turn has facilitated the timely and effective examination of applications.”

Here is an article about that:

Post grant pilot a success, says PTAB chief judge

A US initiative called the “post grant outcomes pilot” has been a success, according to the chief judge of the Patent and Trial Appeal Board (PTAB).

In a blog by David Ruschke, chief judge at the PTAB, and Drew Hirschfeld, commissioner for patents, the pair noted that the pilot had “succeeded in making examiners aware of patents related to applications they are examining”.

This in turn facilitated “the timely and effective examination of applications”.

As part of the US Patent and Trademark Office’s (USPTO) ongoing “enhanced patent quality initiative”, the pilot was launched in April to focus on pending patent applications that are related to issued patents undergoing an America Invents Act (AIA) trial proceeding.

We sure hope that Ruschke and his colleagues will keep their job after the Trump administration fills the swamp, as it so habitually does amid transition. It looks like Lee will be pushed out, so what will that mean for PTAB and the America Invents Act (AIA)?

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. The Appeal Board (PTAB) and Federal Circuit (CAFC) Maintain Good Pace of Patent Elimination Where Scope Was Exceeded

    The Court of Appeals for the Federal Circuit (CAFC) continues to accept about 4 out of 5 decisions of the Patent Trial and Appeal Board (PTAB) and the US Supreme Court (SCOTUS) refuses to intervene



  2. Software Patents Are Ebbing Away, But the “Swamp” Fights Back and Hijacks the Word “Fix”

    The club of patent maximalists, or those who profit from excess prosecution and legal chaos, isn't liking what has happened in the United States and it wants everything reversed



  3. Report From Yesterday's Debate About the European Patent Office (EPO) at the Bavarian Landtag

    A report of the EPO debate which took place at the Bavarian Landtag yesterday (21/2/2017)



  4. Links 22/2/2017: Wine-Staging 2.2, Nautilus 3.24

    Links for the day



  5. French Politician Richard Yung Tells the Government About Abuses at the European Patent Office (EPO)

    The subject of EPO scandals has once again landed in French politics, just a couple of months since it last happened



  6. The Sickness of the EPO – Part II: Background Information and Insights

    With a privatised, in-house (sometimes outsourced and for-profit) force for surveillance, policing, justice, public relations and now medical assessment (mere vassals or marionettes of the management) the EPO serves to show that it has become indistinguishable from North Korea, where the Supreme Leader gets to control every single aspect (absolutely no separation of powers)



  7. EPO Cartoon/Caricature by KrewinkelKrijst

    A new rendition by Dutch cartoonist and illustrator KrewinkelKrijst



  8. Inverting Narratives: IAM 'Magazine' Paints Massive Patent Bully Microsoft (Preying on the Weak) as a Defender of the Powerless

    Selective coverage and deliberate misinterpretation of Microsoft's tactics (patent settlement under threat, disguised as "pre-installation of some of the US company’s software products") as seen in IAM almost every week these days



  9. The Sickness of the EPO – Part I: Motivation for New Series of Articles

    An introduction or prelude to a long series of upcoming posts, whose purpose is to show governance by coercion, pressure, retribution and tribalism rather than professional relationship between human beings at the European Patent Office (EPO)



  10. Insensitivity at the EPO’s Management – Part VII: EPO Hypocrisy on Cancer and Lack of Feedback to and From ECPC

    The European Cancer Patient Coalition (ECPC), which calls itself "the largest European cancer patients' umbrella organisation," fails to fulfill its duties, says a source of ours, and the EPO makes things even worse



  11. Links 21/2/2017: KDE Plasma 5.9.2 in Chakra GNU/Linux, pfSense 2.3.3

    Links for the day



  12. EPO Caricature: Battistelli's Wall

    Battistelli's solution to everything at the EPO is exclusion and barriers



  13. The 'New' Microsoft is Still Acting Like a Dangerous Cult in an Effort to Hijack and/or Undermine All Free/Open Source Software

    In an effort to combat any large deployment of non-Microsoft software, the company goes personal and attempts to overthrow even management that is not receptive to Microsoft's agenda



  14. PTAB Petitioned to Help Against Patent Troll InfoGation Corp., Which Goes After Linux/Android OEMs in China

    A new example of software patents against Free software, or trolls against companies that are distributing freedom-respecting software from a country where these patents are not even potent (they don't exist there)



  15. Links 20/2/2017: Linux 4.10, LineageOS Milestone

    Links for the day



  16. No, Doing Mathematical Operations on a Processor Does Not Make Algorithms Patent-Eligible

    Old and familiar tricks -- a method for tricking examiners into the idea that algorithms are actual machines -- are being peddled by Watchtroll again



  17. Paid-for UPC Proponent, IAM 'Magazine', Debunked on UPC Again

    The impact of the corrupted (by EPO money) media goes further than one might expect and even 'borrows' out-of-date news in order to promote the UPC



  18. Lack of Justice in and Around the EPO Drawing Scrutiny

    The status of the EPO as an entity above the law (in Germany, the Netherlands, Switzerland and so on) is becoming the subject of press reports and staff is leaving in large numbers



  19. Links 19/2/2017: GParted 0.28.1, LibreOffice Donations Record

    Links for the day



  20. The EPO is Becoming an Embarrassment to Europe and a Growing Threat to the European Union

    The increasingly pathetic moves by Battistelli and the ever-declining image/status of the EPO (only 0% of polled stakeholders approve Battistelli's management) is causing damage to the reputation of the European Union, even if the EPO is not a European Union organ but an international one



  21. Patent Misconceptions Promoted by the Patent Meta-Industry

    Cherry-picking one's way into the perception of patent eligibility for software and the misguided belief that without patents there will be no innovation



  22. As the United States Shuts Its Door on Low-Quality Patents the Patent Trolls Move to Asia

    Disintegration of Intellectual Ventures (further shrinkage after losing software patents at CAFC), China's massive patent bubble, and Singapore's implicit invitation/facilitation of patent trolls (bubble economy)



  23. Links 17/2/2017: Wine 2.2, New Ubuntu LTS

    Links for the day



  24. Bad Advice From Mintz Levin and Bejin Bieneman PLC Would Have People Believe That Software Patents Are Still Worth Pursuing

    The latest examples of misleading articles which, in spite of the avalanche of software patents in the United States, continue to promote these



  25. Patents Are Not Property, They Are a Monopoly, and They Are Not Owned But Temporarily Granted

    Patent maximalism and distortion of concepts associated with patents tackled again, for terminology is being hijacked by those who turned patents into their "milking cows"



  26. SoftBank Group, New Owner of ARM, Could Potentially Become (in Part) a Patent Troll or an Aggressor Like Qualcomm

    SoftBank grabbed headlines (in the West at least) when it bought ARM, but will it soon grab headlines for going after practicing companies using a bunch of patents that it got from Inventergy, ARM, and beyond?



  27. Technicolor, Having Turned Into a Patent Troll, Attacks Android/Tizen/Linux With Patents in Europe

    Technicolor, which a lot of the media portrayed as a patent troll in previous years (especially after it had sued Apple, HTC and Samsung), is now taking action against Samsung in Europe (Paris, Dusseldorf and Mannheim)



  28. Michelle Lee is Still “in Charge” of the US Patent System

    Contrary to a malicious whispering campaign against Lee (a coup attempt, courtesy of patent maximalists who make a living from mass litigation), she is still in charge of the USPTO



  29. Our Assessment: EPO Wants a Lot of Low-Quality Patents and Low-Paid Staff With UPC (Prosecution Galore)

    The European Patent Office seems to be less interested in examination and more interested in facilitating overzealous prosecution all across Europe and beyond; The Administrative Council has shown no signs that it is interested in profound changes, except those proposed by Battistelli in the face of growing resistance from staff and from ordinary stakeholders



  30. Links 16/2/2017: HITMAN for GNU/Linux, Go 1.8

    Links for the day


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