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11.05.17

Support for PTAB is Growing and US Congress Will Tackle Native American Tribes’ Misuse of Immunity in Two Days

Posted in America, Patents at 11:48 am by Dr. Roy Schestowitz

The relevant subcommittee is led by Darrell Issa of California

Darrell Issa
Photo in the public domain, via Wikipedia

Summary: The Patent Trial and Appeal Board (PTAB), which is responsible for eliminating patents that should not have been granted by the USPTO, will receive additional support from US politicians (the House Judiciary Committee), who 3 days ago said that they would address attempts to dodge scrutiny

THE improvement in the US has seen the climate of patent litigation coming to a standstill. Many companies no longer bother suing (unless they’re certain their patents are strong and defensible).

The other day Joe Mullin wrote about the EFF’s success story after the EFF had written a post about it (on Halloween). It’s a success story for PTAB too, as an inter partes review (IPRs) affirmed the EFF’s assertion that the patent had been wrongly granted. To quote:

Even spookier than a Halloween costume is a patent that just won’t die.

But it looks like a once-scary patent—Personal Audio LLC’s ridiculous claim to own podcasting—is finally gone. Personal Audio has been making headlines for years now, especially after it started threatening podcasters and became the target of an EFF crowdfunding campaign to raise funds to knock it out.

EFF used that money to file an “inter partes review” at the US Patent Office, which knocked out the patent in 2015.

Inter partes reviews don’t always result in invalidation. There’s a panel of experts (technical people) and a judge deciding on such matters.

FatPipe, which was mentioned here a couple of weeks ago in relation to PTAB, is an “inventor and holder of multiple patents for software-defined networks,” by its own description. Over the past week it spent a lot of money to disseminate this press release across many sites (e.g. [1, 2, 3]) only to say that a patent was upheld. The summary says:

Key Claim covers multi-line session and packet load balancing, over disparate networks, one of the main aspects of SD-WAN

What is good about this case is that it helps debunk accusations that patents are just being thrown away without proper assessment. That’s simply not true and various firms spend money dissemination all sorts of press releases bragging about new patents and a total number of patents. Not all press releases are marked as such; IP Pro Patents, for instance, a site we habitually name for dodgy behaviour, has just published this marketing spam for Fish & Richardson (a firm often involved in patent trolls’ cases). It’s a great example of articles that aren’t. Either way, PTAB is becoming a hotly-debated subject (almost more so than court cases) and it's expected that the US Congress will soon take action in support of PTAB. This was futher reaffirmed by Jan Wolfe (Reuters) on November 2nd [1, 2, 3]. He wrote a report to say this:

A U.S. House of Representatives subcommittee on Thursday called a Nov. 7 hearing on the legitimacy of an agreement between drugmaker Allergan Plc and a Native American tribe intended to shield patents from administrative review.

The House Judiciary Committee’s subcommittee on intellectual property, chaired by Republican Representative Darrell Issa of California, said in a statement that the hearing would include testimony from four experts on patent law, including a former in-house attorney at drug company Johnson & Johnson and a lawyer with a trade group representing the software industry.

An Allergan spokesman declined to comment on whether the company would send any executives to the hearing.

This was later covered by another high-profile site, bearing the headline “House committee to hold hearing on patent rights for Native American tribes” and stating:

The hearing has become necessary after a drug company named Allergan [corporate website] entered into a contract with the St. Regis Mohawk Tribe [official website] in which Allergan transferred a number of patents to the tribe in exchange for an exclusive license for the patents. The tribe then claimed that due to its sovereign immunity, the US Patent & Trademark Office [official website] has no jurisdiction to hold inter partes review (IPR) hearings against the patents. The IPR hearings are used to invalidate patents. Allergan is also filing lawsuits against competitors for violating the same patents that cannot be invalidated by the IPR hearings. SRC Labs LLC has also transferred patents to the same tribe and are suing Amazon and Microsoft for violating those patents.

[...]

Chairman Goodlatte has stated that the hearing is necessary to ensure the patent system protects and promotes American innovation. Subcommittee Chairman Issa stated the hearing is important to ensure that sovereign immunity is not being used to “game” the system to shield patents from checks and balances.

This is very good. Congress, judges and even large companies support PTAB. Soon it will be the Supreme Court (we hope). The EFF’s Vera Ranieri commented on the CCIA’s submission to the Supreme Court (in support of PTAB, obviously). She said: “I’m really interested to read @CCIA’s Oil States amicus, written by John Duffy. Section II is an interesting and intriguing take” (there’s a screenshot there).

From the official statement of CCIA: (via)

The Computer & Communications Industry Association joined a Supreme Court amicus brief filed Monday evening in a patent case that is being closely watched by the thousands of companies sued every year by those abusing the patent system.

The case will determine whether inter partes review (IPR) is constitutional. CCIA and others believe IPR is a crucial tool to fight poor quality patents, which are often used in abusive litigation.

For additional information, please see CCIA Patent Counsel Josh Landau’s blog post today.

We mentioned it before, in conjunction to the one important submission from the EFF. With such widespread and bipartisan support for PTAB we expect Justices to see that opposition to PTAB comes mainly from the litigation ‘industry’ and the patent trolls’ lobby.

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