09.10.17
Gemini version available ♊︎The Patent Trial and Appeal Board (PTAB) is Still Being Smeared by Circles That Benefit From Low-Quality Patents
Big Oil-funded institutions in favour of Oil States? No way!
Summary: Ahead of Oil States v Greene’s Energy Group, et al (upcoming Supreme Court decision) the ‘greasy’ academics and publishers greased up by patent law firms are trying to tarnish the image of PTAB, even though the technology sector very much supports PTAB
THE PREVIOUS post took note of attacks on Alice Corp. v CLS Bank International (Supreme Court’s decision), but there are other, overlapping attacks whose purpose is similar — to protect software patents that should never have been granted by the USPTO. In effect, PTAB enables just about anyone to challenge bad patents, in a similar way to oppositions and appeals at the EPO. Patent maximalists like neither, as both mechanisms help guard patent quality, which is a threat to patent maximalists’ bottom line.
“In effect, PTAB enables just about anyone to challenge bad patents, in a similar way to oppositions and appeals at the EPO.”The ideas behind this argument aren’t novel. They are not controversial, either. Some people just want more and more patents to exist, as that comes at the expense of various industries and becomes a form of tax that is neither beneficial nor necessary.
A few days ago Managing IP (patent maximalists) wrote about Nidec Motor v Zhongshan. Patent maximalists are waging a war on PTAB, for obvious reasons, and they want every court (Supreme, Federal, District) to stop patent quality assurance. To them, the very concept of quality — or the notion of quality control — is obscene. To them, the more patents society gets granted, the more innovation will occur (or so they try to tell us). So anyway, in this particular case there was a “concurring opinion in the Nidec Motor v Zhongshan Broad Ocean Motor appeal of a Patent Trial and Appeal Board (PTAB) decision at the Federal Circuit [which] has attracted a lot of attention.”
“Patent maximalists are waging a war on PTAB, for obvious reasons, and they want every court (Supreme, Federal, District) to stop patent quality assurance.”The decision, Nidec Motor v Zhongshan, was covered days later by the same site. It’s worth emphasising that PTAB gets the thumbs up from the Federal Circuit about 80% of the time. There’s not much of a feud there at all, but patent maximalists try to fuel or inflame one. They keep nitpicking/cherry-picking exceptions to the norm (which reveals their own bias) to give the impression that PTAB is naughty or “impotent” (their word). As Managing IP put it just before the weekend: “126 PTAB petitions were filed in August, while the Federal Circuit expressed concern with the Board’s practice of joinder and expanded panels in Nidec Motor v Zhongshan Broad Ocean Motor, said it abused its discretion for failing to consider material evidence in Ultratec v CaptionCall, and ruled that an IPR petitioner doesn’t need to satisfy Article III standing requirements to participate in a patent owner’s appeal in Personal Audio v EFF…”
They make it sound like the Federal Circuit is very upset at PTAB, but that’s not hard to do by picking apart just a handful (or less) of cases. That’s precisely what Patently-O was doing almost every day in August — a pattern we vocally complained about at the time. Patently-O is in fact still cherry-picking exceptions to the norm (the norm being PTAB doing a good job, the Federal Circuit then reaffirming it). Now it’s this:
In a new decision, the Federal Circuit has ruled that the PTAB erred in its inherency analysis, but ultimately affirmed the claim cancellation after finding the error harmless.
[...]
In its decision, the PTAB (board) used inherency in a particular way – finding first that it would have been obvious to combine the prior art to use the method described; and then finding that the 30% reduction would have inherently resulted from the combination. On appeal, the Federal Circuit rejected that analysis – holding that “the Board cited no evidence that a reduction of 30% in the pulling force would necessarily result from the claimed process, which contains no steps that ensure such reduction.” Rather, as the patentee argued, the 30% reduction serves as a guide for selecting the particular lubricants and arrangements.
[...]
In re Best, 562 F.2d 1252 (C.C.P.A. 1977). In Best, the court noted that inherency would be properly used in this situation for an anticipation decision, but that for obviousness, the PTO can simply find a prima facie obviousness case.
Cancellation affirmed.
So basically, this is more of the same, i.e. the Federal Circuit agreeing with PTAB (except when it comes to more minor details). Be sure a lot of briefs will be sent to the Supreme Court with a false narrative of PTAB as “impotent” or whatever. That’s just what the patent microcosm is trying to accomplish these days. Here is another new Patently-O post, also indirectly about PTAB. To quote:
The move is designed to prop the patents up against challenge via a tribal sovereign immunity claim. (Several of the transferred patents are being challenged before the PTAB in AIA Trials). Parallel claims have been quite successful for public universities in fending of both IPR and declaratory judgment lawsuits – even when the patents are exclusively licensed to commercial entities
[...]
Allergan is a frequent player of jurisdictional games. Its corporate “headquarters” is in Dublin for the tax benefits, although it is “actually” sited in New Jersey.
Tax dodger, tax evader, whatever. With Patent Boxes in Europe it’s clear that many patent maximalists simply help companies not pay tax. It’s a grey if not a black market.
“With Patent Boxes in Europe it’s clear that many patent maximalists simply help companies not pay tax.”Last but not least we have Adam Mossoff, who not an engineer, just a “law” person that keeps lobbying for the interests of patent trolls and the more radical elements in Texas. We mentioned him many times before. He seems like a de facto lobbyist (connected to Conservative think tanks) and not too shockingly he attacks PTAB now, having chosen a rightwing politcal site to publish his rant. “Anyone can file as many petitions as they want in challenging the validity of any patent,” he said, “and they can file it for any reason whatsoever, such as by an activist organization dedicated to eliminating all patents on computer software.”
If he is referring to EFF as “activist organization dedicated to eliminating all patents on computer software,” then he merely serves to reaffirm where he stands on the subject. He does not develop any software; he’s more like a pundit from the Antonin Scalia (Republican) Law School. Here is his conclusion: “Malone’s tale is now typical for all innovators. Accused infringers and commercial competitors now exploit the PTAB as a way to harass inventors, small businesses, and other innovators. The PTAB was supposed to address the problem of low-quality patents; it now threatens all patents, undermining the foundation of the American innovation economy.”
“We can expect attacks on PTAB to intensify as the SCOTUS decision is near and patent maximalists want to obliterate PTAB, or in other words destroy patent quality.”Got that? To petition PTAB is to “harass”, as if challenging a ludicrous patent asserted by some opportunistic troll is the “harassment”. As for that last sentence, if “the foundation of the American innovation economy” is a bunch of patents on things like one-click shopping, then the economy boils down to nothing but dirt, maybe shopping (not producing).
We can expect attacks on PTAB to intensify as the SCOTUS decision is near and patent maximalists want to obliterate PTAB, or in other words destroy patent quality. █
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