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03.16.17

A Fight Over Patent Quality in the United States

Posted in America, Patents at 12:07 pm by Dr. Roy Schestowitz

The court system versus a self-justifying patent ‘industry’, which tries to guard and expand its power by broadening patent scope ad infinitum

“But each proposal must be weighed in the light of a broader consideration: the need to maintain balance in and among national programs — balance between the private and the public economy, balance between cost and hoped for advantage — balance between the clearly necessary and the comfortably desirable; balance between our essential requirements as a nation and the duties imposed by the nation upon the individual; balance between actions of the moment and the national welfare of the future. Good judgment seeks balance and progress; lack of it eventually finds imbalance and frustration. “

Dwight D. Eisenhower

Summary: The latest developments in the United States, which is now attempting to undo the damage caused by overpatenting — a trap which the EPO and SIPO are currently being lured into

FOLLOWING the SCOTUS ruling on Alice — a ruling which was embraced by the Court of Appeals for the Federal Circuit (CAFC) after corrupt people like Randall Rader had left (he is still trying to return to positions of power) — software patents have been invalidated centre, right and left. It’s actually pretty major news, typically celebrated by the patent microcosm, when a software patent is upheld by a high court as valid. Whatever the USPTO grants, it doesn’t matter much until the patent is actually put up to the test at a court of law. More often than not we find out that the USPTO granted patents in error (worryingly enough a trend which will grow in Europe now that patents are flying off the EPO‘s shelves, including software patents that are by principle invalid).

“More often than not we find out that the USPTO granted patents in error (worryingly enough a trend which will grow in Europe now that patents are flying off the EPO’s shelves, including software patents that are by principle invalid).”The US patent system became notorious for granting patents on all sorts of things provided it says “over the Internet”, “on a computer”, and more recently “on a phone”. We saw one such example in yesterday’s ‘news’, namely “Patent for smartphone connectable scanner published in USA” (it’s about exactly what it sounds like, nothing novel here). One of the most notorious patent trolls in the US was going systematically after every conceivable business that could cough up money and used a scanner (we wrote about that many times before). It’s something akin to business methods if not software patents.

It is in light of this that the arrival of PTAB is very much welcomed and needed. According to this new article, a “Versata Patent [is] Targeted By Ford Ineligible For CBM Review” by PTAB:

The Patent Trial and Appeal Board declined Wednesday to institute an America Invents Act covered business method review of a Versata Development Group Inc. software patent that was challenged by Ford Motor Co., finding the patent was not eligible for the review program.

The AIA states that the CBM program — which allows the PTAB to review patents on grounds not available in inter partes reviews, including that it is directed to an abstract idea — is designed for patents that are related to financial products…

Another new PTAB article from the a trolls-friendly publisher (IAM) bemoans these reviews and sobs for a firm that produces nothing at all. To quote:

According to Lex Machina, during the period between 17th January and 17th February, IP Bridge was on the receiving end of 18 IPRs filed by GlobalFoundries, 4 filed by Xilinx and one each from Taiwan Semiconductor Manufacturing Company (TSMC) and ARM.

The Xilinx petitions came on the same day that the US chip company made a complaint for declaratory judgment of patent non-infringement covering 12 patents. The San Jose-based company also challenged the validity of four of those patents. IP Bridge had earlier sued Xilinx in the Eastern District of Texas over two separate rights, neither of which is being challenged at the PTAB.

We wrote about this quite recently, after IAM had published another sob story for the aggressor.

It certainly looks as though PTAB is gradually becoming a force for good, whose workload is also increasing. It deserves expansion, i.e. more staff (the same goes for the EPO’s appeal boards). People like Dennis Crouch try to slow PTAB down and yesterday he wrote about the term “technical”, which itself is somewhat of an abstract term. He looked closely at Clarilogic v FormFree Holdings. He said: “The principle that patent prosecutors are following today is in the headline: Get Technical or Get Denied.”

“It certainly looks as though PTAB is gradually becoming a force for good, whose workload is also increasing.”MIP, another patent maximalist, wrote about a case against the US government and Elbit (covered here over the weekend). This was not the usual case outcome, so they like to bring attention to it (drawing attention to the 20% or so of cases that are ruled in favour of the patent microcosm).

What we ought to note here is that none of this is new; people who are in the business of patents just want more and more of them. They’ll never have “enough”.

“The patenting of living organisms remains controversial, despite decades of debate. Sirena Rubinoff provides a guide to the arguments,” MIP wrote in a separate news article.

“The problem boils down to granting of patents based on greedy people’s guidelines — those who quantify the “success” of a granting authority (patent office) by the number of patents granted rather than the quality of patents granted (which is a much harder thing to objectively measure).”These patents are outrageous and unacceptable; it isn’t patent-eligible in most places. Even the EPO was forced, at least temporarily, to stop doing it (after it had repeatedly failed to comply with directives).

Such patents are not just abstract but pertaining to naturally-recurring (reproducible in nature) things. How long will it take for people to recognise that sites like IAM or MIP describe as a victim anyone whose supposed patents are not respected by courts? The problem boils down to granting of patents based on greedy people’s guidelines — those who quantify the “success” of a granting authority (patent office) by the number of patents granted rather than the quality of patents granted (which is a much harder thing to objectively measure).

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