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

Leave a Comment

You must be logged in to post a comment.

What Else is New


  1. Chinese Patent Policy Continues to Mimic All the Worst Elements of the American System

    China is becoming what the United States used to be in terms of patents, whereas the American system is adopting saner patent policies that foster real innovation whilst curtailing mass litigation



  2. Links 20/11/2017: Why GNU/Linux is Better Than Windows, Another Linus Torvalds Rant

    Links for the day



  3. “US Inventor” is a “Bucket of Deplorables” Not Worthy of Media Coverage

    Jan Wolfe of Reuters treats a fringe group called “US Inventor” as though it's a conservative voice rather than a bunch of patent extremists pretending to be inventors



  4. Team Battistelli's Attacks on the EPO Boards of Appeal Predate the Illegal Sanctions Against a Judge

    A walk back along memory lane reveals that Battistelli has, all along, suppressed and marginalised DG3 members, in order to cement total control over the entire Organisation, not just the Office



  5. PTAB is Safe, the Patent Extremists Just Try to Scandalise It Out of Sheer Desperation

    The Leahy-Smith America Invents Act (AIA), which gave powers to the Patent Trial and Appeal Board (PTAB) through inter partes reviews (IPRs), has no imminent threats, not potent ones anyway



  6. Update on the EPO's Crackdown on the Boards of Appeal

    Demand of 35% increases from the boards serves to show that Battistelli now does to the 'independent' judges what he already did to examiners at the Office



  7. The Lobbyists Are Trying to Subvert US Law in Favour of Patent Predators

    Mingorance, Kappos, Underweiser and other lobbyists for the software patents agenda (paid by firms like Microsoft and IBM) keep trying to undo progress, notably the bans on software patents



  8. Patent Trolls Based in East Texas Are Affected Very Critically by TC Heartland

    The latest situation in Texas (United States District Court for the Eastern District of Texas in particular), which according to new analyses is the target of legal scrutiny for the 'loopholes' it provided to patent trolls in search of easy legal battles



  9. Alice Remains a Strong Precedential Decision and the Media Has Turned Against Software Patents

    The momentum against the scourge of software patents and the desperation among patent 'professionals' (people who don't create/develop/invent) is growing



  10. Harm Still Caused by Granted Software Patents

    A roundup of recent (past week's) announcements, including legal actions, contingent upon software patents in an age when software patents bear no real legitimacy



  11. Links 18/11/2017: Raspberry Digital Signage 10, New Nano

    Links for the day



  12. 23,000 Posts

    23,000 blog posts milestone reached in 11 years



  13. BlackBerry Cannot Sell Phones and Apple Looks Like the Next BlackBerry (a Pile of Patents)

    The lifecycle of mobile giants seems to typically end in patent shakedown, as Apple loses its business to Android just like Nokia and BlackBerry lost it to Apple



  14. EFF and CCIA Use Docket Navigator and Lex Machina to Identify 'Stupid Patents' (Usually Software Patents That Are Not Valid)

    In spite of threats and lawsuits from bogus 'inventors' whom they criticise, EFF staff continues the battle against patents that should never have been granted at all



  15. The Australian Productivity Commission Shows the Correct Approach to Setting Patent Laws and Scope

    Australia views patents on software as undesirable and acts accordingly, making nobody angry except a bunch of law firms that profited from litigation and patent maximalism



  16. EPO 'Business' From the United States Has Nosedived and UPC is on Its Death Throes

    Benoît Battistelli and Elodie Bergot further accelerate the ultimate demise of the EPO (getting rid of experienced and thus 'expensive' staff), for which there is no replacement because there is a monopoly (which means Europe will suffer severely)



  17. Links 17/11/2017: KDE Applications 17.12, Akademy 2018 Plans

    Links for the day



  18. Today's EPO and Team UPC Do Not Work for Europe But Actively Work Against Europe

    The tough reality that some Europeans actively work to undermine science and technology in Europe because they personally profit from it and how this relates to the Unitary Patent (UPC), which is still aggressively lobbied for, sometimes by bribing/manipulating the media, academia, and public servants



  19. Links 16/11/2017: WordPress 4.9 and GhostBSD 11.1 Released

    Links for the day



  20. The Staff Union of the EPO (SUEPO) is Rightly Upset If Not Shocked at What Battistelli and Bergot Are Doing to the Office

    The EPO's dictatorial management is destroying everything that's left (of value) at the Office while corrupting academia and censoring discussion by threatening those who publish comments (gagging its own staff even when that staff posts anonymously)



  21. EPO Continues to Disobey the Law on Software Patents in Europe

    Using the same old euphemisms, e.g. "computer-implemented inventions" (or "CII"), the EPO continues to grant patents which are clearly and strictly out of scope



  22. Links 16/11/2017: Tails 3.3, Deepin 15.5 Beta

    Links for the day



  23. Benoît Battistelli and Elodie Bergot Have Just Ensured That EPO Will Get Even More Corrupt

    Revolving door-type tactics will become more widespread at the EPO now that the management (Battistelli and his cronies) hires for low cost rather than skills/quality and minimises staff retention; this is yet another reason to dread anything like the UPC, which prioritises litigation over examination



  24. Australia is Banning Software Patents and Shelston IP is Complaining as Usual

    The Australian Productivity Commission, which defies copyright and patent bullies, is finally having policies put in place that better serve the interests of Australians, but the legal 'industry' is unhappy (as expected)



  25. Patent Trial and Appeal Board (PTAB) Defended by Technology Giants, by Small Companies, by US Congress and by Judges, So Why Does USPTO Make It Less Accessible?

    In spite of the popularity of PTAB and the growing need/demand for it, the US patent system is apparently determined to help it discriminate against poor petitioners (who probably need PTAB the most)



  26. Declines in Patent Quality at the EPO and 'Independent' Judges Can No Longer Say a Thing

    The EPO's troubling race to the bottom (of patent quality) concerns the staff examiners and the judges, but they cannot speak about it without facing rather severe consequences



  27. The EPO is Now Corrupting Academia, Wasting Stakeholders' Money Lying to Stakeholders About the Unitary Patent (UPC)

    The Unified Patent Court/Unitary Patent (UPC) is a dying project and the EPO, seeing that it is going nowhere fast, has resorted to new tactics and these tactics cost a lot of money (at the expense of those who are being lied to)



  28. Links 15/11/2017: Fedora 27 Released, Linux Mint Has New Betas

    Links for the day



  29. Patents Roundup: Packet Intelligence, B.E. Technology, Violin, and Square

    The latest stories and warnings about software patents in the United States



  30. Decline of Skills Level of Staff Like Examiners and Impartiality (Independence) of Judges at the EPO Should Cause Concern, Alarm

    Access to justice is severely compromised at the EPO as staff is led to rely on deficient tools for determining novelty while judges are kept out of the way or ill-chosen for an agenda other than justice


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