02.06.17

PTAB Should Initiate Inter Partes Reviews (IPRs) of Universities’ Dubious Patents as Long as They Feed Patent Trolls

Posted in America, Patents at 8:42 am by Dr. Roy Schestowitz

Universities and patent trolls

Summary: Academic institutions which enjoy public funding and are using it to pursue patents that are later sold for profit to patent trolls oughtn’t be immune to the Patent Trial and Appeal Board (PTAB), whose role is to ascertain and thus guard patent quality

IN OUR previous post we wondered aloud about suggestions against the Patent Trial and Appeal Board (PTAB). Patent maximalists have been attempting to destroy PTAB for a while, even by insulting it. Now they are trying to latch onto the so-called ‘Trump effect’ to accomplish their goals and advance their agenda.

“Patent maximalists have been attempting to destroy PTAB for a while, even by insulting it.”Some of the latest from IAM, e.g. [1, 2], is more of the same, i.e. scepticism if not hostility towards PTAB. Mister Patently-O has this new paper about it, titled (at least for now) “Wrongly Affirmed Without Opinion”. It’s about the Federal Circuit (CAFC) light of AIA and PTAB (the eliminators of software patents) and in this followup ha said that the “basic argument in the paper is that both the Patent Act and the Lanham Acts require the Federal Circuit to provide an opinion when issuing a judgment on an appeal from the Patent & Trademark Office (PTO).”

We we noted here last year, CAFC was suffering from a ‘shower’ of such appeals; it was unable to cope with the load. Michael Loney, who has been keeping track of various PTAB statistics, wrote about such issues before.

Right now he is writing about courts giving a special treatment to universities when it comes to potentially bogus patents. To quote:

The Patent Trial and Appeal Board has dismissed three inter partes review (IPR) petitions challenging the claims of a patent owned by the University of Florida Research Foundation (UFRF). The Board said UFRF was entitled to an Eleventh Amendment sovereign immunity defence against institution of an IPR.

A lot of US universities can now sell their patents to trolls (thanks to utterly terrible legislation), who then tax the public (again!) using patents the public actually paid for. It happens a lot, so universities don’t deserve a special kind of protection. Moreover, universities with public funding oughtn’t hoard patents in the first place. Patently-O wrote about it soon afterwards, but neither it nor Loney (Managing IP) mentioned this real conundrum, which made universities some kind of public-funded arsenal for trolls.

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