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08.03.17

PTAB/CAFC: Cleanup of Bogus Patents Carries On

Posted in America, Courtroom, Patents at 3:21 am by Dr. Roy Schestowitz

USPTO video: Typical Day for an Administrative Patent Judge at the Patent Trial and Appeal Board (PTAB)

Summary: Bad (erroneously-granted) patents are being swept away (invalidated) by the now-famous duo which can deal with about a thousand petitions to invalidate (IPRs) per year

THE USPTO recklessly grants a lot of software patents (still), but it is often stopped — where necessary — by the Patent Trial and Appeal Board (PTAB). As we argued yesterday, USPTO examiners ought to stop granting software patents altogether. These grants cause a lot of 'extrajudicial' damage. Sometimes these patents end up in court and if appeals are filed and a high court (re)examines the patents, they almost always get invalidated. This post outlines some relevant news and demonstrates that things may be improving.

“The first half of 2017 was a record for Patent Trial and Appeal Board (PTAB) petition filing,” Managing IP reminded readers this week when it listed some of the targeted [sic] patent owners [sic] (loaded language), revealing that Rovi (connected to Microsoft’s patent trolling operation [1, 2, 3]) is a top nuisance. Here is a passage from the publicly-accessible part:

Comcast taking its dispute with Rov ito the PTAB made them the top petitioner and patent owner at the PTAB in the first half of 2017. Apple and Samsung have fallen down the petitioner rankings while Fish & Richardson, Sterne Kessler and Finnegan dropped in the law firm rankings, with Banner Witcoff, Baker Botts and Ropes & Gray making strides

As a reminder, this year and last year the Court of Appeals for the Federal Circuit (CAFC) concurred with PTAB about 4 out of 5 times while the number of petitioned soared to all-time highs. This seems to upset patent maximalists like Dennis Crouch, who continue to focus on (if not attack) AIA, PTAB, IPRs, Section 101 etc. They view these as threats to their agenda and their business model.

“The interesting thing is, CAFC keeps getting it wrong on patents in the sense that it’s overly pro-patents (even weak patents).”The other day Patently-O said that as “we continue to transition to patent prosecution under the AIA, many of us have made misstatements drawn from the substantial rewriting of 35 U.S.C. 102.”

The interesting thing is, CAFC keeps getting it wrong on patents in the sense that it’s overly pro-patents (even weak patents). It got it wrong on TC Heartland and recently, as this new article put it this week, “SCOTUS Overturns Federal Circuit Decision On Patent Exhaustion”. A few years back CAFC was a deeply corruptible court (see Rader’s scandal) where patent injustice had become the norm. It’s CAFC that implicitly authorised software patents in the first place (decades ago). 4 days ago at IP Watch there was this critique of CAFC. To quote the introduction (outside the paywall): “It’s been another dismal term for the Federal Circuit Court of Appeals. Six of its patent law decisions were reviewed in the US Supreme Court’s 2016-17 term, and the Federal Circuit’s decisions were overturned in all six cases. That, unfortunately, is not surprising. Over the past 15 years, the tribunal once known as the nation’s “patent court” has seen many of its most important patent law decisions reversed by the Supreme Court– sometimes in withering opinions. This has seriously undermined the Federal Circuit’s power, reputation, jurisprudence, and (apparently) self-confidence – causing a major problem for the United States’ patent system.”

“It’s CAFC that implicitly authorised software patents in the first place (decades ago).”Yes, CAFC has become pretty bad and the patent microcosm seems rather mortified by it. In writing about CAFC, Dennis Crouch now refers to a nonprecedential decision in Enzo Biochem v Applera (mentioned here before). It’s about DOE (Doctrine of Equivalents), which Wikipedia explains is dealing with “legal rule in many (but not all) of the world’s patent systems that allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent to the claimed invention.”

“So here is another one of many cases where “litigation misconduct” is noted and reaffirmed by courts.”Going a few days back, Crouch’s site wrote about the court “finding Regeneron’s U.S. Patent No. 8,502,018 unenforceable based upon inequitable conduct during prosecution.”

It was also covered by Kevin E. Noonan here.

In a nutshell:

In a split decision, the Federal Circuit has affirmed a S.D.N.Y. judgment – finding Regeneron’s U.S. Patent No. 8,502,018 unenforceable based upon inequitable conduct during prosecution. The inequitable conduct allegation here follows the typical pattern – the patentee failed to submit four relevant prior art references. The majority opinion was penned by Chief Judge Prost and joined by Judge Wallach. Judge Newman wrote in dissent.

Although the materiality portion of the discussion is important, the most interesting segment is intent. No intent to deceive was found – rather the court affirmed the district court’s adverse inference of bad intent as a sanction for litigation misconduct. The case may be a wake-up-call for some litigators who will read through the list of misconduct and see it as only business-as-usual.

So here is another one of many cases where “litigation misconduct” is noted and reaffirmed by courts. What CAFC probably chooses to sweep under the rug is its own misconduct too. Thankfully, we have it all documented.

“The patent microcosm likes to use terms like “drain the swamp” (by which these people mean fire patent reformers), but it looks like the real swamp is basically a swamp of nearly a million US patents of questionable quality.”The bottom line is, patent litigation isn’t as easy as it used to be; it’s not necessarily because courts have changed their tune but because abusive patent trolls now dominate the system and a lot of bogus patents have been assigned US patent numbers (only to be voided later).

The patent microcosm likes to use terms like “drain the swamp” (by which these people mean fire patent reformers), but it looks like the real swamp is basically a swamp of nearly a million US patents of questionable quality.

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