07.16.17
In the Face of Malicious Lobbying, High Tech Inventors Alliance (HTIA) and Computer and Communications Industry Association (CCIA) Protect PTAB
We too want — and need — to protect PTAB
Summary: A new push by the patent microcosm to eliminate PTAB and marginalise Section 101 (which helps suppress software patents) is quickly met with opposition from concerned politicians and groups that represent actual technology companies
OUR USPTO coverage is somewhat behind in the sense that less important stories we shelve until more information becomes available. We have been watching for a while the lobby against PTAB. It’s more or less clear who’s behind it and we wrote about it earlier this summer.
“The term “PTAB” (or “IPR”) typically means “your patent is about to be thrown away…””“PTAB” has become a very scary word to trolls, patent maximalists and the likes of them.
The term “PTAB” (or “IPR”) typically means “your patent is about to be thrown away…”
They know it. They shudder.
“On remand,” said a PTAB opponent the other day, “the PTAB will need to reevaluate the scope of the claims and then determine whether the recited prior art discloses the requisite particulars.”
“…the patent microcosm, Watchtroll in particular, would have us believe that PTAB deems about 90% of all US patents invalid.”PTAB is seemingly everywhere these days! It deals with more patents than courts do. It definitely invalidates a lot of patents and Watchtroll’s “swamp” now actively engages in active smears or activism against PTAB. The tone of their messages in Twitter, for example, is truly despicable. Watching the responses to them from software patents opponents (FFII, Red Hat etc.) is worthwhile, but we don’t wish to link to that. It would just “feed the trolls”, as the old saying goes (where the term “troll” refers not necessarily to Internet trolls but potentially to patent trolls).
As one can imagine, IAM is into that too. Patent maximalist and IAM ‘lobbyist’ Richard Lloyd (pro-patent trolls, overtly pro-software patents) hates recent SCOTUS decisions and rants about them in public, saying (in the headline) that these “could severely harm American businesses” when the very opposite is patently true. IAM, in this particular case, is just copy-pasting Shaked & Co, a legal firm rather than a firm that actually makes something. Such great ‘reporting’ by IAM… more like the usual lobbying.
“PTAB does not always eliminate patents; it just looks into the ones that are among the worst or are actively being used to unjustifiably sue companies.”Putting aside all those rants from the patent microcosm, what we find in progressive sites are articles like this one from 6 days ago. It correctly states that “if the PTAB is invalidating a lot of patents, it seems to be because there are a lot of invalid patents being granted and challenged.”
Exactly. But the patent microcosm, Watchtroll in particular, would have us believe that PTAB deems about 90% of all US patents invalid. Outrage over a bogus ‘scandal’?
Here is more context:
Now, these months were selected because they had particularly high rates of PTAB judges changing their mind. In other months, the numbers are different, and generally more claims are cancelled. But this fact suggests that, contrary to the rhetoric, PTAB judges are perfectly happy to find a patent valid—if it’s actually novel and non-obvious. It’s only when a patent is invalid that it gets cancelled.
In other words: if the PTAB is invalidating a lot of patents, it seems to be because there are a lot of invalid patents being granted and challenged.
PTAB does not always eliminate patents; it just looks into the ones that are among the worst or are actively being used to unjustifiably sue companies. See this new press release that says: “Last Thursday, the Patent Trial and Appeal Board (“PTAB”) denied Ford Motor Company’s (“Ford”) attempt to have six of Versata Software, Inc.’s (“Versata”) patents reviewed for legitimacy—cementing their significance in revolutionizing the automotive industry. To date, Ford has sought nearly 30 challenges to the underlying patents of Versata’s software, all of which have been dismissed by the U.S. Patent and Trademark Office (“PTO”).”
“…PTAB has been good at applying Alice to patents which were granted before Alice (2014), thereby removing threats to innocent software companies or companies that merely use software.”So sometimes PTAB proves that it’s not hostile towards every patent (even a questionable or questioned patent). PTAB is just doing its job, which is similar to the job of the appeal boards in Europe. PTAB is a valuable tool that helps assure patent quality. Patent offices are notorious for granting lots of patents for financial gain or goals. So PTAB acts as somewhat of a safeguard.
As we noted here before, PTAB has been good at applying Alice to patents which were granted before Alice (2014), thereby removing threats to innocent software companies or companies that merely use software.
Watch this article titled “Betting on Facial Recognition Breakthrough, Advanced Discovery Patents AI Software” (published about a week ago also in Law.com). Since this is my domain, it is clear to me that it’s all about software patents. All of it! These are pure mathematics so even if granted, such patents would likely be deemed invalid by a court or PTAB (the latter is cheaper). Now that Alice repeatedly prevails (the lobbyists won’t manage to squash it) we need someone to apply the test and squash patents before they reach the courts (necessitating legal bills).
“Now that Alice repeatedly prevails (the lobbyists won’t manage to squash it) we need someone to apply the test and squash patents before they reach the courts (necessitating legal bills).”There are of course those so-called ‘bills’ which bill themselves as "STRONGER Patents", but they actually strive to accomplish the very opposite (allowing shallow patents, not high-quality patents). “The chances of that bill being passed are remote,” IAM admitted the other day, having subtly promoted this anti-PTAB bill. To quote:
Half of the group’s members (Adobe, Cisco, Google and Salesforce) also belong to United for Patent Reform, the group of big tech, retail and other businesses which was set up in 2015 to seek broad-based reform of the US patent system. Two others, Dell and Oracle, were originally part of the group but are no longer listed as members.
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He pointed out that the USPTO and the courts continue to confront some of the most pressing issues facing the patent system, including possible changes to IPRs. The Supreme Court is set to address the constitutionality of the review process later this year in the Oil States Energy Services case, while pressure is growing on the USPTO from some sectors to lessen the impact of the Patent Trial and Appeal Board (PTAB) – something that the SCOTUS decision in Cuozzo made clear the next permanent director of the agency would have the power to do.
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The focus, however, increasingly appears to be in areas such as reform of patent eligible subject matter or changes to IPRs that the HTIA member companies oppose. The STRONGER Patents Act, which was recently introduced in the Senate, proposes a series of measures that are largely unpalatable to big tech. The chances of that bill being passed are remote, but it does draw attention to possible reforms that have largely been ignored by other proposed legislation.
That reference to the High Tech Inventors Alliance (HTIA) is important. The group says in its Web site (announcement on Friday) that “[l]ow-quality patents harm our patent system and stifle innovation, economic growth and American jobs” [via] and here are the politicians who support it:
The High Tech Inventors Alliance (HTIA) applauds Chairman Bob Goodlatte for focusing on how low-quality patents harm our patent system and stifle innovation, economic growth and American jobs.
HTIA was formed so that our member companies have a strong voice when advocating for a healthy patent system. Our companies represent a big slice of the innovative world. They employ 447K employees, including many of the world’s best computer scientists and engineers. Their contributions in technology and commerce have transformed society in countless ways. They spent $63B on R&D last year, they hold 115K U.S. patents, and they have a collective market cap exceeding $1.75 trillion.
In 2011, the America Invents Act created the Inter Partes Review (IPR) program, which has effectively helped to weed out bad patents from the system in a very cost effective manner. IPR strengthens the U.S. patent system by improving patent quality. It is a key reason that patent troll litigation dropped in 2016 compared to 2015. With this track record, diluting IPR at this time is both unnecessary and unwise.
Josh Landau, writing for another pseudo-progressive group which is run by the Computer and Communications Industry Association (CCIA), stated that “the Computer and Communications Industry Association submitted comments on America Invents Act (AIA) trial procedures in response to the PTO’s ongoing request for such feedback, most recently at the PTAB Judicial Conference in June.”
This too was published on Friday (same day as the above from HTIA). These groups do share an interest with us as they too wish to protect both Alice and PTAB.
There is nothing bipartisan about the so-called “STRONGER [sic] Patents” Act. Watch it go nowhere very fast! █
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