06.25.17

Gemini version available ♊︎

The Supreme Court Can Reassert the Legitimacy of the Patent Trial and Appeal Board (PTAB) Later This Year or Next Year

Posted in America, Courtroom, Law, Patents at 12:39 pm by Dr. Roy Schestowitz

Making Patent Quality Great Again

PTAB

Summary: What lawyers-centric media characterises as a risk to PTAB may actually be an opportunity to silence critics of PTAB and help it carry on squashing bogus patents

THE Patent Trial and Appeal Board (PTAB) is one of the best aspects of AIA, which the current chief of the US patent system played a role in.

We wrote about the Court of Appeals for the Federal Circuit (CAFC) just earlier today (a couple of hours ago), noting the rather bad CAFC record on justice. When it comes to patents, it almost always gets it wrong, judging at least by cases that SCOTUS grabs to reassess. As a reminder to readers who don’t know this yet or simply forgot, CAFC is responsible for the introduction of software patents in the US, whereas SCOTUS is responsible for the elimination of software patents with its 2014 decision on Alice. CAFC and SCOTUS are often opposites when it comes to patents.

“…CAFC is responsible for the introduction of software patents in the US, whereas SCOTUS is responsible for the elimination of software patents with its 2014 decision on Alice.”What about PTAB and CAFC? Well, statistics from this year and last year suggest an 80% rate of concurrence, i.e. cases where both PTAB and CAFC agree on the in/validity of patents. As for some newer statistics, shared recently by Managing IP: “Patent Trial and Appeal Board filing in May was below average for the year, but included a record amount of PGR petitions.”

So PTAB is still doing OK. Earlier this year it peaked, which was indicative of growing demand for reassessment of patents through petitions (IPRs).

One patent maximalist clings onto the exceptions, noting a “small ray hope 4 #patent practitioners PTAB judge says “significant, important invention” that helps people read is NOT “abstract idea”” (but how often does this happen really? See image in tweet).

“So PTAB is still doing OK. Earlier this year it peaked, which was indicative of growing demand for reassessment of patents through petitions (IPRs).”PTAB, for the uninitiated, is consistently reviled by patent maximalists. They’re terrified of it. Some of them openly insult it (or the judges). IAM, for example, has just called PTAB judges “death squads” in an effort to demonise those who apply Alice (§101) and invalidate software patents. To quote: “With the PTAB’s forthcoming anniversary in mind, the data analytics team at Lex Machina crunched the numbers and this morning released a comprehensive five-year report which digs down into topics like the most common resolutions of board trials, the top petitioners, most targeted patent owners and the leading law firms.”

Lex Machina’s numbers are often the ones Managing IP — not just IAM — goes by. It’s a good service which is provided by a trolls-hostile academic (who is behind Lex Machina). Writing about pharmaceutical aspects of PTAB, IAM just ranted again, whereas Patent Progress was optimistic. “The differences,” it said, “continue after institution. When you look at the final written decisions, there are significant differences between IPRs as a whole and drug patent IPRs.”

In simple terms, the ability to invalidate patents at PTAB (through IPR/s) varies across sectors. When it comes to software patents, PTAB can seem merciless. An IPR alone can herald the death knell of a patent.

Written some days ago by the above patent maximalist was this tweet: “PTAB says @uspto §101 guidelines r NOT RELEVANT 4 determining patentability https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005945-06-20-2017-1 … use when Examiner cites only guidelines?”

“…the ability to invalidate patents at PTAB (through IPR/s) varies across sectors.”Well, §101 and Alice are not exactly the same thing. They are only related and a powerful lobby is attempting to change §101 rather than the SCOTUS decision (Alice), which is final and immutable.

There is a growing danger, however, that not only §101 will be changed but also PTAB itself. PTAB’s decision on some patents (but not software patents on the face of it) will go to SCOTUS for consideration quite soon. There have been many articles about this so far. This one from Managing IP has a very misleading headline, suggestive of existential threat to PTAB. Here is a more balanced article from Managing IP, another one from Patently-O, and an even better one from Joe Mullin, who wrote: “The US Supreme Court will soon weigh the constitutionality of “inter partes reviews,” a procedure that has been hailed by many in the tech sector as one of the most effective ways of weeding out bad patents.”

“There is a growing danger, however, that not only §101 will be changed but also PTAB itself.”Even the more mainstream media wrote about it some days ago. To quote: “From the start, some patent-holders have questioned the constitutionality of these new ways to invalidate patents. Now the Supreme Court has finally agreed to hear a case that addresses this question. In Oil States Energy Services LLC v. Greene’s Energy Group LLC, Greene’s Energy used one of these procedures to challenge the Oil States patent on a lockdown mechanism for equipment used in the oil industry. In 2015, the PTAB struck many of Oil States’ claims, and in 2016, the Federal Circuit Court of Appeals affirmed the decision. At the Supreme Court, Oil States is arguing that this is wrong. Oil States says that its patent is private property (like a land grant), which, once granted, can be revoked only through a decision of a court, where the patent-holder basically has a right to a jury. Greene’s Energy, on the other hand, would classify patents as essentially public rights, like rules of the road. As such, it claims that Congress was within its authority when it established these procedures and allowed the PTO to revisit the merits of the Oil States patent.”

Patently-O‘s Dennis Crouch (who worked hard to delegitimise PTAB or CAFC's handling of PTAB appeals) took a closer look and Managing IP published a third article to say: “The Supreme Court has granted cert to Oil States Energy Services v Green’s Energy Group to assess whether inter partes review violates the Constitution by not providing a jury trial. It is the third PTAB case the court will hear…”

Well, herein we have an important case which is going to look into an essential tool for crushing bogus software patents. Even though the patent in question is not a software patent, the authority is being questioned. To put it more gently, it is being reconsidered and PTAB can, as a result, be sort of enshrined into law if Justices are on its side. So it can be seen as an opportunity for legitimacy.

“…herein we have an important case which is going to look into an essential tool for crushing bogus software patents.”“Supreme Court agrees to hear constitutional challenge to the PTAB, against wishes of Trump administration,” said this headline from IAM.

Finally, another new article from Managing IP spoke of institution rates at PTAB, based on a study from a generic company.

There is a lot at stake in this case, for various sectors other than software in fact. Will SCOTUS defend PTAB? We believe that it will. As we shall show in our next post, SCOTUS has just reversed yet another CAFC decision (Sandoz v Amgen).

Speaking of PTAB, it is worth taking note of this case where “PTAB in Fujifilm Corp. v. Sony Corp. (IPR 2017-01267 & 2017-01268) granted permission to the patentee to file a motion to disqualify an expert for the petitioner. APJ Kokoski, after a teleconference, granted permission to file the motion.”

Whatever removes or discredits allegations of foul play or mistrial will serve PTAB better in the long run.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Society Needs to Take Back Computing, Data, and Networks

    Why GemText needs to become 'the new HTML' (but remain very simple) in order for cyberspace to be taken away from state-connected and military-funded corporations that spy on people and abuse society at large



  2. [Meme] Meanwhile in Austria...

    With lobbyists-led leadership one might be led to believe that a treaty strictly requiring ratification by the UK is somehow feasible (even if technically and legally it's moot already)



  3. The EPO's Web Site is a Parade of Endless Lies and Celebration of Gross Violations of the Law

    The EPO's noise site (formerly it had a "news" section, but it has not been honest for about a decade) is a torrent of lies, cover-up, and promotion of crimes; maybe the lies are obvious for everybody to see (at least EPO insiders), but nevertheless a rebuttal seems necessary



  4. The Letter EPO Management Does Not Want Applicants to See (or Respond to)

    A letter from the Munich Staff Committee at the EPO highlights the worrying extent of neglect of patent quality under Benoît Battistelli and António Campinos; the management of the EPO did not even bother replying to that letter (instead it was busy outsourcing the EPO to Microsoft)



  5. IRC Proceedings: Saturday, December 04, 2021

    IRC logs for Saturday, December 04, 2021



  6. EPO-Bribed IAM 'Media' Has Praised Quality, Which Even EPO Staff (Examiners) Does Not Praise

    It's easy to see something is terribly wrong when the people who do the actual work do not agree with the media's praise of their work (a praise motivated by a nefarious, alternate agenda)



  7. Tux Machines is 17.5 Years Old Today

    Tux Machines -- our 'sister site' for GNU/Linux news -- started in 2004. We're soon entering 2022.



  8. Approaching 100

    We'll soon have 100 files in Git; if that matters at all...



  9. Improving Gemini by Posting IRC Logs (and Scrollback) as GemText

    Our adoption of Gemini and of GemText increases; with nearly 100,000 page requests in the first 3 days of Decembe (over gemini://) it’s clear that the growing potential of the protocol is realised, hence the rapid growth too; Gemini is great for self-hosting, which is in turn essential when publishing suppressed and controversial information (subject to censorship through blackmail and other ‘creative’ means)



  10. Links 4/12/2021: IPFire 2.27 Core Update 162 and Genode OS Framework 21.11

    Links for the day



  11. Links 4/12/2021: Gedit Plans and More

    Links for the day



  12. Links 4/12/2021: Turnip Becomes Vulkan 1.1 Conformant

    Links for the day



  13. IRC Proceedings: Friday, December 03, 2021

    IRC logs for Friday, December 03, 2021



  14. Links 4/12/2021: EndeavourOS Atlantis, Krita 5.0.0 Beta 5, Istio 1.11.5, and Wine 6.23; International Day Against DRM (IDAD) on December 10th

    Links for the day



  15. Another Gemini Milestone: 1,500 Active Capsules

    This page from Balázs Botond plots a graph, based on these statistics that now (as of minutes ago) say: “We successfully connected recently to 1500 of them.” Less than a fortnight ago more than 1,800 capsules overall were registered by Lupa, almost quadrupling in a single year



  16. [Meme] António Campinos and Socialist Posturing

    Staff of the EPO isn’t as gullible as António Campinos needs it to be



  17. António Campinos as EPO President is Considered Worse Than Benoît Battistelli (in Some Regards) After 3.5 Years in Europe's Second-Largest Institution

    The EPO's demise at the hands of people who don't understand patents and don't care what the EPO exists for is a real crisis which European media is unwilling to even speak about; today we share some internal publications and comment on them



  18. Media Coverage for Sale

    Today we're highlighting a couple of new examples (there are many other examples which can be found any day of the year) demonstrating that the World Wide Web is like a corporate spamfarm in "news" clothing



  19. Links 3/12/2021: GNU Poke 1.4 and KDDockWidgets 1.5.0

    Links for the day



  20. IRC Proceedings: Thursday, December 02, 2021

    IRC logs for Thursday, December 02, 2021



  21. Links 3/12/2021: Nitrux 1.7.1 and Xen 4.16 Released

    Links for the day



  22. Links 2/12/2021: OpenSUSE Leap 15.4 Alpha, Qt Creator 6

    Links for the day



  23. The EPO's “Gender Awareness Report”

    There’s a new document with remarks by the EPO’s staff representatives and it concerns opportunities for women at the EPO — a longstanding issue



  24. IRC Proceedings: Wednesday, December 01, 2021

    IRC logs for Wednesday, December 01, 2021



  25. EPO Staff Committee Compares the Tactics of António Campinos to Benoît Battistelli's

    The Central Staff Committee (CSC) of the EPO talks about EPO President António Campinos, arguing that “he seems to subscribe to the Manichean view, introduced by Mr Battistelli…”



  26. Prof. Thomas Jaeger in GRUR: Unified Patent Court (UPC) “Incompatible With EU Law“

    The truth remains unquestionable and the law remains unchanged; Team UPC is living in another universe, unable to accept that what it is scheming will inevitably face high-level legal challenges (shall that become necessary) and it will lose because the facts are all still the same



  27. Links 1/12/2021: LibrePlanet CFS Extended to December 15th and DB Comparer for PostgreSQL Reaches 5.0

    Links for the day



  28. EPO Cannot and Will Not Self-Regulate

    The term financialisation helps describe some of the activities of the EPO in recent years; see Wikipedia on financialisation below



  29. [Meme] Germany's Licence to Break the Law

    Remember that the young Campinos asked dad for his immunity after he had gotten drunk and crashed the car; maybe the EPO should stop giving diplomatic immunity to people, seeing what criminals (e.g. Benoît Battistelli) this attracts; the German government is destroying its image (and the EU’s) by fostering such corruption, wrongly believing that it’s worth it because of Eurozone domination for patents/litigation



  30. EPO Dislikes Science and Scientists

    The EPO's management has become like a corrupt political party with blind faith in money and monopolies (or monopoly money); it has lost sight of its original goals and at this moment it serves to exacerbate an awful pandemic, as the video above explains


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

Recent Posts