11.18.17
Gemini version available ♊︎EFF and CCIA Use Docket Navigator and Lex Machina to Identify ‘Stupid Patents’ (Usually Software Patents That Are Not Valid)
Summary: 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
“Judge Finds ‘Stupid Patent’ Web Story is Protected Speech”; that’s the headline of a new report (found via Slashdot, which has a summary and comments). For those who forgot, the EFF has been sued or threatened with lawsuits for running series which merely criticise or bash particular patents — clearly an act of free speech. The judge too saw it that way:
An Australian court can’t make a California-based digital rights watchdog take down a web article that mocks a company’s patent as “stupid,” a federal judge ruled Friday.
San Francisco-based Electronic Frontier Foundation sued Global Equity Management (SA) Pty Ltd., or GEMSA, in April, claiming the Australian firm exploited its home country’s weaker free speech protections to secure an unconstitutional injunction against EFF.
Kurt Opsahl, EFF’s deputy executive director and general counsel, hailed the ruling as a victory for free speech.
This wasn’t the first and maybe not the last legal action, either. Imagine a world where one is not allowed to criticise particular patents. Not too long ago (just before the weekend) it was said in “Stupid Patent Data of the Month: the Devil in the Details” that the EFF along with CCIA make use of particular tools that we often mention in relation to patent reform. To quote the EFF:
Bad patents shouldn’t be used to stifle competition. A process to challenge bad patents when they improperly issue is important to keeping consumer costs down and encouraging new innovation. But according to a recent post on a patent blog, post-grant procedures at the Patent Office regularly get it “wrong,” and improperly invalidate patents. We took a deep dive into the data being relied upon by patent lobbyists to show that contrary to their arguments, the data they rely on undermines their arguments and conflicts with the claims they’re making.
The Patent Office has several procedures to determine whether an issued patent was improperly granted to a party that does not meet the legal standard for patentability of an invention. The most significant of these processes is called inter partes review, and is essential to reining in overly broad and bogus patents. The process helps prevent patent trolling by providing a target with a low-cost avenue for defense, so it is harder for trolls to extract a nuisance-value settlement simply because litigating is expensive. The process is, for many reasons, disliked by some patent owners. Congress is taking a new look at this process right now as a result of patent owners’ latest attempts to insulate their patents from review.
An incorrect claim about the inter partes review (IPR) and other procedures like IPR at the Patent Trial and Appeal Board (PTAB) has been circulating, and was recently repeated in written comments at a congressional hearing by Philip Johnson, former head of intellectual property at Johnson & Johnson. Josh Malone and Steve Brachmann, writing for a patent blog called “IPWatchdog,” are the source of this error. In their article, cited in the comments to Congress, they claim that the PTAB is issuing decisions contrary to district courts at a very high rate.
We took a closer look at the data they use, and found that the rate is disagreement is actually quite small: about 7%, not the 76% claimed by Malone and Brachmann. How did they get it so wrong? To explain, we’ll have to get into the nuts and bolts of how such an analysis can be run.
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EFF, along with CCIA, ran the same Docket Navigator search Malone and Brachmann ran for patents found “not invalid” and “unpatentable or not unpatentable,” generating 273 results, and a search for patents found “unpatentable” and “not invalid,” generating 208 results (our analysis includes a few results that weren’t yet available when Malone and Brachmann ran their search). We looked into each of 208 results that Docket Navigator returned for patents found unpatentable and not invalid. Our analysis shows that the “200” number, and consequently the rate at which the Patent Office is supposedly “wrong” based on a comparison to times a court supposedly got it “right” is well off the mark.
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We’ve used both Docket Navigator and Lex Machina in our analyses on numerous occasions, and even briefs we submit to the court. Both services provide extremely valuable information about the state of patent litigation and policy. But its usefulness is diminished where the data they present are not understood. As always, the devil is in the details.
Lex Machina has done a lot and given an invaluable service to those of us who pursue a saner patent policy. The EFF too, especially in recent years, contributed a lot to patent reform. Its briefs in support of the reformist cause are just some among other actions undertaken by the EFF. It’s hardly surprising that blogs of patent maximalists so routinely bash the EFF and various extremists go as far as suing the EFF. █
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