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

11.29.17

PTAB Will Survive the Supreme Court, Admit Even Foes of PTAB Based on This Week’s Hearings

Posted in America, Courtroom, Patents at 7:21 pm by Dr. Roy Schestowitz

The “swamp” is sinking again

Paul Morinville sickened

Summary: Having found themselves in quicksand, the few people who care enough to try to undermine the Patent Trial and Appeal Board (PTAB), refuse to let go and are going under

THE Supreme Court case which we have dealt with the most recently is Oil States. We write about it, on average, about once a day. It’s an important case.

As one PTAB foe put it today (with direct link to the original PDF), the annual report says PTAB should “remain vigilant in ensuring fair and transparent processes and proceedings in order to render wellgrounded decisions.”

So they expect it to remain.

Here is the part that touches on software patents (or abstract patents more generally):

Regarding Section 101: the USPTO should (a) continue to update the stakeholder community and examiner corps on recent jurisprudence and where appropriate, continue to issue memoranda that describes the relevant court decision; (b) finalize the MPEP updates in Section 2106 directed to “Patent Eligible Subject Matter,” so the stakeholder community has one central repository on the USPTO’s website to receive the latest updates; and (c) should continue stakeholder outreach programs and workshops on Section 101 developments due to the critical nature of this area.

The subject of software patents and the USPTO will be covered separately later this week. As things stand, patent quality in the USPTO is rising and lawsuits over software patents aren’t being filed every single day like they used to. “Thanks to PTAB,” says this new tweet, “companies no longer have to pay ransom to make lawsuits based on questionable patent claims go away.” This links to an article from the New York Times. It’s a week old.

At the start of the week we observed the views of the new Justice, Mr. Gorsuch (Trump nominee and appointee). As Red Hat’s Jan Wildeboer‏ put it a short time ago: “Are we surprised that the new judge takes a Pro-patent position?”

Not surprising to us. At all. But it could be worse. We thought he could be a lot more blatant about it; he had been more or less a blank slate in the domain/area of patents.

Tim B. Lee, who has covered software patents for many years, reports from a position closer to the action. He wrote that the “Supreme Court seems reluctant to blow up a key weapon against patent trolls” and here are his opening words:

In Supreme Court oral arguments on Monday, justices seemed skeptical of arguments that a patent office process for challenging patents runs afoul of the Constitution.

The issue matters because the challenged process—which was created by the 2011 America Invents Act—has emerged as a key weapon against patent trolls wielding low-quality patents. Overall, defending a patent lawsuit can easily cost millions of dollars. By contrast, the new process, known as inter partes review, allows a patent to be invalidated for a sum in the low six figures.

Lee later added: “I will be very surprised if the Supreme Court pulls the trigger here, because ruling for Oil States would have sweeping consequences. [] If they say “court-like” administrative procedures are unconstitutional, they’re going to face an avalanche of litigation arguing that procedures in other areas of law are too court-like. [] If they straight up say that patents are private property, it could substantially strengthen patent rights across the board, the opposite of the recent trend by the Supreme Court.”

Patents are certainly not property; it’s an old lie that’s being pasted into the media by the patent microcosm.

Based on the above, PTAB will be fine. Moreover, based on PTAB bashers, the Supreme Court has just rejected cases with a potential to broaden patent scope. To quote:

The Supreme Court has denied Openet’s petition for writ of certiorari in Openet v. Amdocs. The petition asked “whether the Federal Circuit erred by looking beyond the claims to the patent specification to assess patent eligibility?” The court also denied certiorari in the pro se case of Poniatowski v. Matal.

Better this way.

Want to see something funny? Watch IAM’s one-sided coverage of the case.

Some father and his kids, who barely know what patents are, are not really staging a ‘protest’ but engaging in a publicity stunt. There are a few tweets about it (with photos). Basically, daddy has a bunk patent which PTAB is probably going to invalidate, so the kids will hold a sign daddy made with a MAGA-inspired slogan. Marvelous! Parents who exploit their kids for patent propaganda might seem about as ‘professional’ as “US Inventor” — basically a cowboy hat-wearing, MAGA-inspired lunatic from Watchtroll, whom the media mistakes for a group. His infamous, long-planned ‘protest’ attracted less than a dozen people.

The above was barely a protest, except in IAM’s mind. Here is how IAM put it:

Even though patent cases have become a regular feature of the Supreme Court’s docket in recent years, for the IP community there was an extra buzz about the place yesterday as the justices heard two disputes concerning inter partes review (IPR).

For starters, around 20 protesters from the small inventor community, who remain bitterly opposed to IPRs, were gathered on the courthouse steps brandishing signs such as “the PTAB killed my start-up”. The protest may have been relatively small and well behaved, but its impact could be heard inside the court’s press room where seasoned Supreme Court reporters got perhaps their first glimpse at just how deep feelings run on this issue. “Protesters? For a patent case!” one of them muttered.

Then inside the courtroom there was a smattering of the great and the good from the IP stakeholder community, including USPTO acting head Joe Matal, Chief Judge of the Patent Trial and Appeal Board (PTAB) David Ruschke and his number two Scott Boalick, several aides who helped author the America Invents Act (AIA), leaders from the various IP law associations and numerous members of the patent bar from private practice.

“Around 20 protesters,” says IAM. That’s generous. Based on the photos, it’s not even that. At the end, however, IAM cares enough to admit that this case is dead in the water. PTAB will endure and IPRs shall overcome!

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 13/12/2018: IRS Migration, GNOME 3.31.3 Released

    Links for the day



  2. 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)



  3. 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)



  4. 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)



  5. 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



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

    Links for the day



  7. 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



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

    Links for the day



  9. 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



  10. 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)



  11. 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



  12. 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



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

    Links for the day



  14. 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



  15. 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



  16. 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!



  17. 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)



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

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



  19. 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



  20. 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



  21. 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



  22. 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



  23. 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



  24. Links 9/12/2018: New Linux Stable Releases (Notably Linux 4.19.8), RC Coming, and Unifont 11.0.03

    Links for the day



  25. Links 8/12/2018: Mesa 18.3.0, Mageia 7 Beta, WordPress 5.0

    Links for the day



  26. The European Patent Organisation is Like a Private Club and Roland Grossenbacher is Back in It

    In the absence of Benoît Battistelli quality control at the EPO is still not effective; patents are being granted like the sole goal is to increase so-called 'production' (or profit), appeals are being subjected to threats from Office management, and external courts (courts that assess patents outside the jurisdiction of the Office/Organisation) are being targeted with a long-sought replacement like the Unified Patent Court, or UPC (Unitary Patent)



  27. Links 7/12/2018: GNU Guix, GuixSD 0.16.0, GCC 7.4, PHP 7.3.0 Released

    Links for the day



  28. The Federal Circuit's Decision on Ancora Technologies v HTC America is the Rare Exception, Not the Norm

    Even though the PTAB does not automatically reject every patent when 35 U.S.C. § 101 gets invoked we're supposed to think that somehow things are changing in favour of patent maximalists; but all they do is obsess over something old (as old as a month ago) and hardly controversial



  29. The European Patent Office Remains a Lawless Place Where Judges Are Afraid of the Banker in Chief

    With the former banker Campinos replacing the politician Battistelli and seeking to have far more powers it would be insane for the German Constitutional Court to ever allow anything remotely like the UPC; sites that are sponsored by Team UPC, however, try to influence outcomes, pushing patent maximalism and diminishing the role of patent judges



  30. Many of the Same People Are Still in Charge of the European Patent Office Even Though They Broke the Law

    "EPO’s art collection honoured with award," the EPO writes, choosing to distract from what actually goes on at the Office and has never been properly dealt with


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