EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

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.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Privacy Statement

    Today, May 25th, the European General Data Protection Regulation (GDPR) goes into full effect; we hereby make a statement on privacy



  2. Saint-Germain's Poisonous Legacy of "Toxic Loans": The SIDRU “Toxic Loan” Débâcle and Criticism of Lamy From Local Opposition Groups

    The EPO‘s entrance into the “toxic loans” trap as of a few months back (just like in Saint-Germain) is a sign of potential trouble ahead; The SIDRU “toxic loan” débâcle is highlighted as per criticism of mayor Lamy (St Germain-en-Laye, where Battistelli is deputy mayor) from local opposition groups



  3. New EPO Caricature: The Rubber Stamp

    Cartoon which circulates in EPO 'circles', encapsulating the concern many people have about the quality of granted patents and unrealistic expectations from the management



  4. Links 24/5/2018: RIP Robin “Roblimo” Miller, Qt 5.11 Released

    Links for the day



  5. Walmart, Bank of America, Allied Security Trust (AST) and the Rush for 'Blockchain' Patents

    The hoarding of patents on novel-sounding code has reached ridiculous levels; very large corporations and even patent trolls arm themselves with such patents, hoping to make returns by means of litigation or an 'arms trade'



  6. Stupid Blogs, Stupid Lawsuits, and Stupid Patents

    The stupidity of the patent microcosm, which would like to see everything in the world patented and which would gleefully smear or even sue its critics (the EFF was sued several times for libel over its "Stupid Patent of the Month" series)



  7. Perpetuating the Big Lie That Unitary Patent (UPC) is About to Kick Off

    The (in)famous old lie about UPC being "just around the corner" is still being circulated, mainly if not only by patent law firms which stand to benefit from a litigation Armageddon in Europe



  8. EPO Validation in Former French Colonies That Have Zero European Patents

    The strategy of the EPO seems to be centered around the interests of Benoît Battistelli and his political career rather than that of the EPO; validation deals and dubious 'Inventor Awards' seem to be part of this pattern



  9. Saint-Germain's Poisonous Legacy of "Toxic Loans": The Cautionary Tale of SIDRU and Its “Toxic Loans”

    The town where the EPO‘s President (Battistelli) is a deputy mayor has a track record of financial hardship and alleged financial misconduct, attributed to the same financial practices Battistelli has just implemented at the EPO



  10. Links 23/5/2018: DragonFlyBSD 5.2.1 and Kata Containers 1.0 Released

    Links for the day



  11. Masking Abstract Patents in the Age of Alice/§ 101 in the United States

    There are new examples and ample evidence of § 101-dodging strategies; the highest US court, however, wishes to limit patent scope and revert back to an era of patent sanity (as opposed to patent maximalism)



  12. PTAB's Latest Applications of 35 U.S.C. § 101 and Obviousness Tests to Void U.S. Patents

    Validity checks at PTAB continue to strike out patents, much to the fear of people who have made a living from patenting and lawsuits alone



  13. France is Irrelevant to Whether or Not UPC Ever Becomes a Reality, Moving/Outsourcing de Facto Patent Examination to European Courts Managed in/Presided by France

    Team UPC is still focusing on France as if it's up for France to decide the fate of the UPC, which EPO insiders say Battistelli wants to be the chief of (the chief, it has already been decided, would have to be a Frenchman)



  14. Saint-Germain's Poisonous Legacy of "Toxic Loans": The Emperor’s New Investment Guidelines

    Details about a secret vote to 'gamble' the EPO's budget on "a diversified portfolio managed by external experts"



  15. Saint-Germain's Poisonous Legacy of "Toxic Loans": Cautionary Tale for the EPO?

    Preface or background to a series of posts about Battistelli's French politics and why they can if not should alarm EPO workers



  16. Links 22/5/2018: Parrot 4.0, Spectre Number 4

    Links for the day



  17. Chamber of Commerce Lies About the United States Like It Lies About Other Countries for the Sole Purpose of Patent Maximalism

    When pressure groups that claim to be "US" actively bash and lie about the US one has to question their motivation; in the case of the Chamber of Commerce, it's just trying to perturb the law for the worse



  18. Links 21/5/2018: Linux 4.17 RC6, GIMP 2.10.2

    Links for the day



  19. The Attacks on the Patent Trial and Appeal Board (PTAB) Have Lost Momentum and the Patent Microcosm Begrudgingly Gives Up

    The Patent Trial and Appeal Board (PTAB), reaffirmed by the Court of Appeals for the Federal Circuit (CAFC) and now the Supreme Court as well, carries on preventing frivolous lawsuits; options for stopping PTAB have nearly been exhausted and it shows



  20. Software Patenting and Successful Litigation a Very Difficult Task Under 35 U.S.C. § 101

    Using loads of misleading terms or buzzwords such as "AI" the patent microcosm continues its software patents pursuits; but that's mostly failing, especially when courts come to assess pertinent claims made in the patents



  21. António Campinos Will Push Toward a France-Based Unified Patent Court (UPC)

    Frenchmen at EPO will try hard to bring momentum if not force to the Unified Patent Court; facts, however, aren't on their side (unlike Team UPC, which was always on Team Battistelli's side)



  22. In Apple v Samsung Patents That Should Never Have Been Granted May Result in a Billion Dollars in 'Damages'

    A roundup of news about Apple and its patent cases (especially Apple v Samsung), including Intel's role trying to intervene in Qualcomm v Apple



  23. Links 20/5/2018: KDevelop 5.2.2 and 5.2.3, FreeBSD 11.2 Beta 2

    Links for the day



  24. Aurélien Pétiaud's ILO Case (EPO Appeal) an Early Sign That ILO Protects Abusers and Power, Not Workers

    A famous EPO ‘disciplinary’ case is recalled; it’s another one of those EPO-leaning rulings from AT-ILO, which not only praises Battistelli amid very serious abuses but also lies on his behalf, leaving workers with no real access to justice but a mere illusion thereof



  25. LOT Network is a Wolf in Sheep's Clothing

    Another reminder that the "LOT" is a whole lot more than it claims to be and in effect a reinforcer of the status quo



  26. 'Nokification' in Hong Kong and China (PRC)

    Chinese firms that are struggling resort to patent litigation, in effect repeating the same misguided trajectories which became so notorious in Western nations because they act as a form of taxation, discouraging actual innovation



  27. CIPU is Amplifying Misleading Propaganda From the Chamber of Commerce

    Another lobbying event is set up to alarm lawmakers and officials, telling them that the US dropped from first to twelfth using some dodgy yardstick which favours patent extremists



  28. Patent Law Firms That Profit From Software Patent Applications and Lawsuits Still 'Pull a Berkheimer' to Attract Business in Vain

    The Alice-inspired (Supreme Court) 35 U.S.C. § 101 remains unchanged, but the patent microcosm endlessly mentions a months-old decision from a lower court (than the Supreme Court) to 'sell' the impression that everything is changing and software patents have just found their 'teeth' again



  29. A Year After TC Heartland the Patent Microcosm is Trying to 'Dilute' This Supreme Court's Decision or Work Around It

    IAM, Patent Docs, Managing IP and Patently-O want more litigation (especially somewhere like the Eastern District of Texas), so in an effort to twist TC Heartland they latch onto ZTE and BigCommerce cases



  30. Microsoft Attacks the Vulnerable Using Software Patents in Order to Maintain Fear and Give the Perception of Microsoft 'Safety'

    The latest patent lawsuits from Microsoft and its patent trolls (which it financially backs); these are aimed at feeble and vulnerable rivals of Microsoft


CoPilotCo

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

CoPilotCo

Recent Posts