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

11.12.17

Patent Trial and Appeal Board (PTAB) Defends Firms From Bogus Patents and US Congress Hears About How PTAB Dodgers Misuse Immunity

Posted in America, Patents at 3:19 am by Dr. Roy Schestowitz

Allergan’s deal with a Native American tribe “makes a mockery of Congressional authority and of the rule of law,” Jerrold Nadler (below on the left) explained.

Jerrold NadlerSummary: The debate about PTAB is being lost by the patent microcosm, whose attempt to dodge and demonise PTAB merely serves to reinforce PTAB’s importance and continued success

THE USPTO is no longer so friendly towards software patents. In fact, many such patents that have been granted are nowadays being invalidated. We wrote many articles about the subject.

The judges at PTAB too — not just patent courts — continue to nuke software patents (there are hundreds of thousands of these) and one of the latest examples received coverage some days ago, just after PTAB had decided that it boils down to things of a mathematical nature. To quote: “The PTAB just rejected its claims as abstract ideas. Claim 1 is a bit long but is listed below as a method for joining mis-matched portions of an object’s surface (NURBS patches) so that a whole object model is prepped for finite element analysis (FEA). The problem for the patentee is that it presents a step-by-step algorithm with such precision that the Examiner (and PTAB) saw it as claiming a mathematical algorithm.”

Obviously.

To us, this is like a dream come true. To patent lawyers, however, this is a nightmare.

Adam Baldridge and Nicole Berkowitz of Baker Donelson wrestle to find ways out of PTAB’s scrutiny (some have resorted to scams, as we shall show later). They even resort to misleading terms like “private rights” (as in, “[i]f the Supreme Court holds that patents involve private rights”) even though patents are neither rights nor private. It’s almost amusing to watch how they try to leverage immunity, bankruptcy and so on. They don’t seem to mind bending and even breaking the law just to protect patents from justice. What does that say about such law firms/lawyers?

PTAB is Defensive

According to this article which cites another (“Patexia Chart 44: Eighty Percent of IPR Filings are for Defensive Purposes”), PTAB has already dealt with nearly 7,000 patent challenges. “Pedram Sameni at Patexia has an interesting new post titled Eighty Percent of IPR Filings are for Defensive Purposes,” it noted, and “80% challenge patents that were already being asserted in district court.”

In other words, PTAB was invoked when patents were used aggressively. If the same tests were applied also to patents that are ‘dormant’, how many patents would be invalided? Perhaps many hundreds of thousands? Many software patents are just sitting ther waiting to expire or be invalidated.

“Out of 6,580 IPR cases,” Patexia wrote, “1338 or approximately 20 percent had been filed to challenge a patent that had not been named in any district court cases…”

These are valuable statistics. About 20% of patents ruled on by PTAB also face appeals/reversal by a higher court. About 80% of the time PTAB’s judgments are reaffirmed.

It’s not hard to see why patent maximalists hate PTAB with a great and ever-growing passion.

Over at Watchtroll, a site which represents the patent trolls’ lobby, Steve Brachmann attacked PTAB as recently as 4 days ago on behalf of this notorious patent troll. He was whining about courts supporting PTAB against the likes of Uniloc, whose core ‘business’ is leveraging software patents against large companies.

Allergan’s “Scam”

Last week the US Congress spoke about misuse of immunity against PTAB. CCIA soon rebutted lies told to US Congress about PTAB — lies perpetuated in an effort to enable a scam/sham perpetrated by Allergan. To quote:

Yesterday afternoon, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on “Sovereign Immunity and the Intellectual Property System.” A fascinating topic, and one I’ve written on right here in the past. [1] [2]

But I was struck by some testimony given by Philip Johnson, testimony he stood by at the hearing. Johnson claimed that 200 patents had been upheld as valid by federal courts, and then struck down as invalid by the PTAB, with only 63 patents invalidated in both district court and the PTAB.

That’d be a truly astonishing error rate, if it was accurate. But it isn’t.

Phil Johnson testified to a conclusion that was fundamentally wrong, based on erroneous data.

The Conservatives-leaning Washington Times called it a “ploy [...] developed by Allergan” (“scam” is a more common term than “ploy”, and a judge called it a “sham”). “Both the PTAB and IPRs were established by the 2011 America Invents Act,” it said. “Congress adopted the law after years of concern about the declining quality of U.S. patents. Particularly in the area of high technology (software and electronics)…”

Here are some details from last Tuesday’s hearing:

The House Judiciary Committee met Tuesday to hear testimony on a patent deal between the drugmaker Allergan Plc and a Native American tribe. The deal has become a major scandal in the nation’s communities of innovators. The same tribe has struck an equally controversial copycat bargain with a notorious patent troll and is now suing Amazon and Microsoft. If these arrangements stand, they will deliver a harsh blow to the nearly decade-long national effort to improve the quality of the nation’s patent system, hurting the innovation and job creation on which our economic vitality depends.

The ploy was developed by Allergan, which is itself the product of a complicated 2015 transaction that allowed the maker of the mega-drug Botox to move its headquarters to Ireland, escaping U.S. corporate taxes. Trying to escape official scrutiny of the validity of some of its patents, the company sold some of its portfolio to upstate New York’s St. Regis Mohawk tribe.

Jerry Nadler, according to this report, said that Allergan’s deal with a Native American tribe “makes a mockery of Congressional authority and of the rule of law.”

Here is the source, which is mostly behind a paywall:

The Patent Trial and Appeal Board has asked for amicus briefing on whether tribal ownership immunises a patent from IPR challenges, while a House of Representatives subcommittee held a hearing on sovereign immunity and the intellectual property system in which ranking member Jerry Nadler said Allergan’s deal with a Native American tribe “makes a mockery of Congressional authority and of the rule of law”

Scrutiny is increasing of whether patents can be assigned to Native American tribes to shield them from review at the Patent Trial and Appeal Board (PTAB).

Thousands of Petitions Handled Each Year

Michael Loney wrote another article about PTAB, this time focusing on PTAB statistics:

October at the Patent Trial and Appeal Board saw a levelling out of petition filing, the first ever extension of the final written decision deadline for good cause, and one precedential and three informative PTAB decisions

Petition filing at the Patent Trial and Appeal Board (PTAB) has levelled out in recent months.

PTAB has been breaking records for a number of years, so reaching a plateau is fine. PTAB bashers hope to create enough fake scandals in order to stop PTAB, but thus far they have not been successful.

PTAB Bashers

“Nobody knows what an automaton really is,” a PTAB-bashing blog said about PTAB the other day. This is not true. The patent microcosm pretends similarly regarding abstract. It claims that there’s lack of “clarity” or something along those lines, but the simple matter of fact is, they refuse to accept reality. To quote:

In a non-precedential decision, the Federal Circuit has affirmed the USPTO handling of the inter partes reexamination of Maryland’s U.S. patent No. 6,673,532. The examiner rejected claims 1, 3– 6, 9–11, 13–16, 19, and 20 as obvious under 35 U.S.C. § 103. That determination was affirmed by the PTAB and now by the Federal Circuit.

Note, the inter partes reexamination was filed in 2011 and at that time Maryland did not challenge the process on Eleventh Amendment Immunity grounds. However, the same patent was challenged in an Inter Partes Review (IPR) in 2016 and the PTAB recently dismissed the petition on sovereign immunity grounds. [IPR2016-00208 28 – Termination – Dismissed After Institution]. In the appeal, Maryland did not raise the issue.

[...]

As an aside, patent law may do well to move-on from the automaton language. Nobody knows what an automaton really is — does someone have one they can show me? How does an automaton compare with contemporary AI?

“AI” is nothing new and is, for the most part, a popular buzzword these days. In the context of patents, “AI” has become a popular trick for painting software patents as innovative/novel.

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. Links 19/12/2018: VirtualBox 6.0, RawTherapee 5.5, Mir 1.1.0, LibreOffice 6.1.4 Released

    Links for the day



  2. Links 16/12/2018: DXVK 0.94, WordPress 5.0.1, Fuchsia SDK

    Links for the day



  3. Immunity of the European Patent Office Has Helped Shield Dangerous Thugs From Justice

    The Topić case is set to resume in Croatia as Topić runs out of diplomatic immunity he long enjoyed (and exploited) at the European Patent Office



  4. Patent Law Firms' War on Facts and Constant Lying About Unitary Patent

    The Unitary Patent or Unified Patent Court (UPC) has failed; this, however, is no excuse for constantly lying and it's a problem more people ought to speak about because it stigmatises lawyers as self-serving liars, not a legitimate source of honest legal advice



  5. EPO Chief Economist Yann Ménière Keynote Speaker at Patent Trolls-Funded Event Set Up by the Patent Trolls' Lobby

    The EPO continues to align itself not only with the interests of patent trolls (even those from another continent) but also with the trolls themselves, causing great embarrassment and confusion over the goals/motivations of the Office



  6. The European Patent Organisation (EPO) Loses Legitimacy If (or When) Christoph Ernst Becomes Subservient to António Campinos

    The structural deficiencies of the EPO, where separation of powers does not quite exist, is further pronounced by the imminent role of Christoph Ernst, who gets 'demoted' from pseudo-boss of Campinos to a mere assistant of his



  7. Links 15/12/2018: Cockpit 184, Vivaldi 2.2, Krita 4.1.7 Released

    Links for the day



  8. Links 13/12/2018: IRS Migration, GNOME 3.31.3 Released

    Links for the day



  9. Patent Trial and Appeal Board (PTAB) Decisions Still Uncontroversial Unless One Asks the Patent Maximalists

    Contrary to what the Director of the U.S. Patent and Trademark Office has claimed, PTAB is liked by companies that actually create things and opposition to PTAB comes from power brokers of the Koch brothers, law firms, and trolls (including those who foolishly repeat them)



  10. Latest Talk From IBM’s Manny Schecter Shows That IBM Hasn't Changed and After the Red Hat Takeover It'll Continue to Promote Software Patents

    IBM's hardheaded attitude and patent aggression unaffected by its strategic acquisition of a company that at least claimed to oppose software patents (whilst at the same time pursuing them)



  11. The European Patent Troll Wants as Much Litigation as Possible

    Patent quality is a concept no longer recognisable at the European Patent Office; all that the management understands is speed and PACE, which it conflates with quality in order to register as much cash as possible before the whole thing comes crashing down (bubbles always implode at the end)



  12. António Campinos Turns His 'Boss' Into His Lapdog, Just Like Battistelli and Kongstad

    The European Patent Organisation expects us to believe that Josef Kratochvíl will keep the Office honest while his predecessor, the German who failed to do anything about Battistelli's abuses, becomes officially subservient to António Campinos



  13. Links 12/12/2018: Mesa 18.3.1 Released, CNCF Takes Control of etcd

    Links for the day



  14. EPO Trust, Leadership and Commitment

    "Trust, leadership and commitment" is the latest publication from EPO insiders, who in the absence of free speech and freedom of association for the union/representation are an essential spotlight on EPO abuses



  15. Links 11/12/2018: Tails 3.11, New Firefox, FreeBSD 12.0

    Links for the day



  16. Number of Filings at the Patent Trial and Appeal Board (PTAB) Highest in Almost Two Years

    Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), which [cref 113718 typically invalidate software patents by citing 35 U.S.C. § 101], are withstanding negative rhetoric and hostility from Iancu



  17. With 'Brexit' in a Lot of Headlines Team UPC Takes the Unitary Patent Lies up a Notch

    Misinformation continues to run like water; people are expected to believe that the UPC, an inherently EU-centric construct, can magically come to fruition in the UK (or in Europe as a whole)



  18. The EPO Not Only Abandoned the EPC But Also the Biotech Directive

    Last week's decision (T1063/18, EPO Technical Board of Appeal 3.3.04) shows that there's still a long way to go before the Office and the Organisation as a whole fulfil their obligation to those who birthed the Organisation in the first placeLast week's decision (T1063/18, EPO Technical Board of Appeal 3.3.04) shows that there's still a long way to go before the Office and the Organisation as a whole fulfil their obligation to those who birthed the Organisation in the first place



  19. Patents on Abstract Things and on Life (or Patents Which Threaten Lives) Merely Threaten the Very Legitimacy of Patent Offices, Including EPO

    Patent Hubris and maximalism pose a threat or a major risk to the very system that they claim to be championing; by reducing the barrier to entry (i.e. introducing low-quality or socially detrimental patents) they merely embolden ardent critics who demand patent systems as a whole be abolished; the EPO is nowadays a leading example of it



  20. Links 10/12/2018: Linux 4.20 RC6 and Git 2.20

    Links for the day



  21. US Courts Make the United States' Patent System Sane Again

    35 U.S.C. § 101 (Section 101), the Patent Trial and Appeal Board (PTAB) and other factors are making the patent system in the US a lot more sane



  22. Today's USPTO Grants a Lot of Fake Patents, Software Patents That Courts Would Invalidate

    The 35 U.S.C. § 101 effect is very much real; patents on abstract/nonphysical ideas get invalidated en masse (in courts/PTAB) and Director Andrei Iancu refuses to pay attention as if he's above the law and court rulings don't apply to him



  23. A Month After Microsoft Claimed Patent 'Truce' Its Patent Trolls Keep Attacking Microsoft's Rivals

    Microsoft's legal department relies on its vultures (to whom it passes money and patents) to sue its rivals; but other than that, Microsoft is a wonderful company!



  24. Good News: US Supreme Court Rejects Efforts to Revisit Alice, Most Software Patents to Remain Worthless

    35 U.S.C. § 101 will likely remain in tact for a long time to come; courts have come to grips with the status quo, as even the Federal Circuit approves the large majority of invalidations by the Patent Trial and Appeal Board’s (PTAB) panels, initiated by inter partes reviews (IPRs)



  25. Florian Müller's Article About SEPs and the EPO

    Report from the court in Munich, where the EPO is based



  26. EPO Vice-President Željko Topić in New Article About Corruption in Croatia

    The Croatian newspaper 7Dnevno has an outline of what Željko Topić has done in Croatia and in the EPO in Munich; it argues that this seriously erodes Croatia's national brand/identity



  27. The Quality of European Patents Continues to Deteriorate Under António Campinos and Software Patents Are Advocated Every Day

    The EPC in the European Patent Office and 35 U.S.C. § 101 in the USPTO annul most if not all software patents; under António Campinos, however, software patents are being granted in Europe and the USPTO exploits similar tricks



  28. Team UPC is Still Spreading False Rumours in an Effort to Trick Politicians and Pressure Judges

    Abuses at the European Patent Office, political turmoil and an obvious legislative coup by a self-serving occupation that produces nothing have already doomed the Unitary Patent or Unified Patent Court (UPC); so now we deal with complete fabrications from Team UPC as they're struggling to make something out of nothing, anonymously smearing opposition to the UPC and anonymously making stuff up



  29. Patents on Life and Patents That Kill the Poor Would Only Delegitimise the European Patent Office

    After Mayo, Myriad and other SCOTUS cases (the basis of 35 U.S.C. § 101) the U.S. Patent and Trademark Office is reluctant to grant patents on life; the European Patent Office (EPO), however, goes in the opposite direction, even in defiance of the European Patent Convention



  30. EPO 'Untapped Potential'

    "Campinos is diligently looking for ways to further increase the Office’s output without increasing the number of examiners," says the EPO-FLIER team


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