03.05.17
PTAB and CAFC Crush Patents on Business Methods and Software, So Dennis Crouch Tries to Slow Them Down
Academic for patent maximalists, like those ‘oil academics’?
Summary: The Patent Trial and Appeal Board (PTAB) and Court of Appeals for the Federal Circuit (CAFC) have together eliminated perhaps several thousands of patents (even more by extension, by means of precedence), so the meta-industry associated with such patents strikes back, and occasionally this is painted as scholarly analysis albeit inherently biased
THE USPTO is full of rubbish patents (some of which infamously rubbish and the subject of public ridicule, e.g. this one), so there’s somewhat of a backlog for PTAB to deal with, essentially ‘undermining’ — or correctly invaliding — patents that should never have been granted at all (with or without further amendments).
“Not only can PTAB deal with many patents at one time; it can also do that at an affordable rate (easy access to appeals process) and without the patent aggressor asserting anything in court.”We recently came across this list of newly-issued patents and found among them a Dell patent on an antifeature, namely a “seamless method for booting from a degraded software raid volume on a UEFI system.” (for those who don’t know what UEFI is, see our Wiki). Recovery from error aside (in an already-expensive case of storage redundancy), why use UEFI in the first place?
The patent goes to Texas, where Dell originates from:
Dell Products, Round Rock, Texas, has been assigned a patent (9,569,297) developed by two co-inventors for “seamless method for booting from a degraded software raid volume on a UEFI system.” The co-inventors are Ahmad A.J. Ali of Austin, Texas, and Charles Rose of Nashua. The patent application was filed on July 16, 2014 (14/333,232).
This sounds like it involves hardware or a device (RAID), but plenty of RAIDs actually get implemented in software these days and UEFI itself is purely software, simply slapped on some chip. The above seems like a possible candidate for invalidation, e.g. by means of Alice, but putting all that aside, who would actually invalidate such a patent unless Dell chooses to take this to court (or threaten behind closed doors), in which case still there is no guarantee at all that a case would end without a settlement, i.e. without the patent facing any scrutiny. In most cases, companies such as Dell just threaten using a large bundle of patents (Microsoft is alleged to be using hundreds at a time) in order to overwhelm the target and overburden the defense, adding extraordinary volume to it, assuring it would be too expensive to pursue defense (settlement would be cheaper, even if at the cost of millions of dollars).
“We need more of PTAB. It needs to grow by orders of magnitude and clear the virtual ‘backlog’ which is rubbish patents waiting to be invalidated.”Such is the injustice incurred by a lax and lazy patent office. All the excruciating costs are being passed outwards, i.e. to so-called ‘externalities’. This is where PTAB comes handy. Not only can PTAB deal with many patents at one time; it can also do that at an affordable rate (easy access to appeals process) and without the patent aggressor asserting anything in court. We need more of PTAB. It needs to grow by orders of magnitude and clear the virtual ‘backlog’ which is rubbish patents waiting to be invalidated.
Patent maximalists obviously loathe PTAB. Some of them speak of it more politely than others. Watchtroll just insults judges, whereas Dennis Crouch — being an academic — must remain more subtle about it. It’s being agreed, he recently asserted, that “an expert can make conclusions of obviousness/non-obviousness and that the PTO can rely upon those statements.”
Here is the whole relevant part and how it relates to PTAB:
Expert Testimony on the Conclusion of Obviousness: In the inter partes reexamination case here, the issue arose with the patent challenger (Strava) used an expert witness to testify to the legal conclusion that the claims at issue were obvious. This is problematic because in ordinary circumstances it is improper for an expert witness to testify as to a question of law. Rather, the ordinary use of expert testimony is solely to “help the trier of fact to understand the evidence or to determine a fact in issue.” FRE 702. Of course, the Federal Rules of Evidence do not apply to the Patent Trial & Appeal Board proceedings or patent reexaminations.
On appeal here, the Federal Circuit appears to agree with the challenger – that an expert can make conclusions of obviousness/non-obviousness and that the PTO can rely upon those statements.
We had this subject covered in last week's article and more articles before that. It’s a common theme of outcomes and this was heavily covered recently, in light of cases like Apple, Inc. v Ameranth, Inc. [1, 2] — a case which has gone on since the end of last year [1, 2].
“Both PTAB and CAFC increasingly go after patents on business methods, not just software patents, which are inherently similar in many cases (as many business operations are done on computers through software).”The latest on Ameranth, courtesy of Foley & Lardner LLP (law firm), says that “Apple successfully invalidated three patents for failure to recite patent eligible subject matter. Apple, Inc. v. Ameranth, Inc., 2015-1792, 2015-1793 (Fed. Cir. 2016). The patents relate to synchronous communication systems for electronically generating and transmitting menu selections. While the covered technology is not directly related to personalized medicine, the Federal Circuit’s review of the patents’ specifications and the court’s claim constructions in the context of a 35 U.S.C. § 101 challenge is instructive to patent applicants seeking to patent methods that may be characterized as an abstract idea, such as methods linking treatment options or clinical trials to potential patients.”
This CBM challenge, using § 101, was successful also at the CAFC, as is usual. Both PTAB and CAFC increasingly go after patents on business methods, not just software patents, which are inherently similar in many cases (as many business operations are done on computers through software).
Professor Crouch is, in our humble assessment, just trying to slow down PTAB (or appeals of its determinations). PTAB, which actually did good work and improved the US patent system, is of no good for the likes of Crouch. They view it as a threat to their profession, as we noted here several years ago.
“We have already explained a sort of ‘scatterback’ effect at CAFC, wherein an avalanche of appeals lands on CAFC’s lap.”Michael Loney, writing from a litigation capital, says that “Law professor Dennis Crouch is calling for the Federal Circuit to not give Rule 36 affirmances in PTAB appeals, arguing it is required by statute to issue an opinion. The court has continued to issue them but has asked for briefing in two en banc rehearing requests of affirmances” (it has a lot to catch up with).
We have already explained a sort of ‘scatterback’ effect at CAFC, wherein an avalanche of appeals lands on CAFC’s lap. They need to rush things up a bit, otherwise the whole system will get clogged up and the queue — or ‘backlog’ so to speak — will grow unbearably long.
“Maybe that will teach patent holders to stop wasting CAFC’s time with these appeals, which are fruitless about 4 out of 5 times anyway (as the appeals are meritless).”Resistance from patent maximalists when it comes to PTAB — which continues to enjoy CAFC’s and the Supreme Court’s support — is understandable, but the patent maximalists are not the actual industry. They just try to justify their own needless and growingly-sordid existence, which gave rise to trolls and extortion rackets. Now that PTAB is axing lots of crappy patents we expect to see Crouch continuing to shower us with posts such as this, ranting about lack of opinion. “Another new petition for rehearing,” he wrote the other say, “has been filed with the Federal Circuit asking the court to reconsider its Rule 36 Jurisprudence in light of the statutory requirements that the court issue an opinion in cases appealed from the Patent & Trademark Office.”
He said that “[a]fter losing before the PTAB, the petitioner appealed and the Federal Circuit issued a R.36 “Affirmance without Opinion.””
“Stop worrying so much about patent holders and stop comparing patents to property (patents are certainly not property).”Yes, well done. Do it even faster. Maybe that will teach patent holders to stop wasting CAFC’s time with these appeals, which are fruitless about 4 out of 5 times anyway (as the appeals are meritless).
In another post from the same site it is being argued that “[t]he Supreme Court has asked for the USPTO’s input on whether it should hear the pending dispute Oil States Energy Services v. Greene’s Energy Group (Supreme Court 2017). The case again raises constitutional questions as to the power of an executive agency (the USPTO) to cancel issued patent rights.”
Stop worrying so much about patent holders and stop comparing patents to property (patents are certainly not property). It’s stuff like the above which led us to treating Crouch less as an academic and more as a front for patent maximalists. He demonstrates that not only Big Oil has an impact — typically financial strings — on academia. █
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