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01.20.17

“Federal Circuit Had Affirmed on Every Issue in 77.4% of the Patent Trial and Appeal Board Appeals it Had Seen” in 2016

Posted in Courtroom, Patents at 12:59 pm by Dr. Roy Schestowitz

Summary: The Federal Circuit (CAFC) and Patent Trial and Appeal Board (PTAB) continue to squash a lot of patents on software, in contrast to that fake news from patent maximalists

WHENEVER PTAB (or a petitioner) puts forth an inter partes review the likelihood that the patent in question will be invalidated is high. In a sense, even without any lawyers and lawsuits, old rubbish patents find their way into the wastebasket. It’s like a cleanup operation inside the USPTO and the patent microcosm absolutely loathes it.

Some firms celebrate managing to escape the jaws of PTAB, whereas others see their patents turn to dust. They sought patents on non-inventions in the first place, so what did they expect?

Writing about a case which was mentioned here before, here is another report about an inter partes review:

Phigenix was a “for-profit discovery stage biotechnology, pharmaceutical, and biomedical research company”. Although Phigenix did not make products, it purported to have an extensive IP portfolio, including US Patent 8,080,534 (the ”534 patent’), which Phigenix alleged covered Genentech’s activities relating to Kadcyla. Phigenix asserted that it “was forced” to challenge ImmunoGen’s ’856 patent in IPR2014-00676 after Genentech refused to license Phigenix’s ’534 patent. In that inter partes review proceeding the Patent Trial and Appeal Board (PTAB) ultimately found ImmunoGen’s ’856 patent valid. Phigenix appealed the PTAB’s decision to the Federal Circuit.

“A great deal of angst [angst only for the patent microcosm] has been generated by the Patent Trial and Appeal Board’s decision,” wrote another site, “in Ex parte Itagaki and Nishihara, regarding the panel’s application of Section 101 (sua sponte as a new ground of rejection under 37 C.F.R. § 41.50(b)) that claims to a magnetic resonance imaging machine do not recite patent-eligible subject matter.”

Section 101 pertains to software patents, among other things. Here are some interesting new statistics about the Federal Circuit‘s agreement with PTAB:

As of the end of the year, the Federal Circuit had affirmed on every issue in 77.4% of the Patent Trial and Appeal Board appeals it had seen. Finnegan has analysed what parties can expect from cases that are remanded to the Board

Finnegan Henderson Farabow Garrett & Dunner has published the latest statistics on the success of Patent Trial and Appeal Board (PTAB) appeals at the Federal Circuit.

This helps refute a lot of the nonsense we have been seeing at Watchtroll — a site so focused on attacking PTAB, even cherry-picking cases (“graphical user interface patent”) to make it seem as though CAFC changed its tune. To quote Watchtroll’s accompanying tweet: “Will the PTAB find claims ineligible in a CBM that the CAFC just found to be eligible in litigation?”

Dennis Crouch also wrote about graphical user interface patents this week. These are essentially design and/or software patents, like that infamous progress bar patent. They should not have been granted in the first place.

“The Federal Circuit will also issue two en banc decisions from PTAB appeals,” MIP wrote the other day. It’s mentioned among US “Cases to look out for in 2017,” which include Lee v Tam:

The Supreme Court in the past two months has added two more patent cases – and they are both big ones – as well as hearing arguments in two others.

Following arguments in Lee v Tam on January 18, so far this term the Supreme Court will have heard arguments in five intellectual property cases (and already decided one of them) and is awaiting arguments in three more.

It’s a trademark case (still USPTO, as the “T” does not stand for patents) and it’s a subject that Patently-O repeatedly covered recently [1, 2]. Today it wrote: “First Amendment says: “Congress shall make no law … abridging the freedom of speech.” My question that I still do not understand for the Tam case: How is Tam’s speech being abridged by denial of his registration?”

The USPTO will never be perfect, but the very existence of PTAB is a step in the right direction and software patents, as per CAFC, are a barrier if not a violation of free speech (First Amendment). It is also useful to see statistics reaffirming CAFC’s support for PTAB, contrary to what the patent microcosm is trying to tell us (sparking perception of feuds that do not actually exist).

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