12.05.17
PTAB, Which Invalidates Software Patents, is Still Under Attack Using Lies From Sites Like Patently-O
Summary: In an effort to put an end to inter partes reviews (IPRs), which basically reassess the potency/legitimacy of granted US patents, the patent microcosm promotes the canard of patents as “rights” and “property”
THE PTAB has helped put an end to most software patents in the US. In fact, the USPTO now makes it a lot harder to pursue software patents and already-granted US patents get invalidated every day. This is a good thing. Except for the patent microcosm…
Found via this tweet was yesterday’s article about a fashionable new trick for dodging Section 101 and somehow patenting software, essentially by tying computer code to “a car” or something along those lines. “To answer that,” the article said, “and other questions about Autonomous Drive Systems (ADS), we looked at both acquisitions and patents to get a better grasp on where the industry is headed.”
Well, it is certainly trying to make a patent pool out of the mere act of driving, which has over a century of prior ‘art’ (people who actually drive). I already developed some software intended to automate driving and there’s nothing in it which wasn’t already attempted a long time ago. Computer vision is just a branch of computer science and/or mathematics. There’s no room for patents there. Any patents in that area would just stifle/slow down programmers.
The patent microcosm is trying hard to kill PTAB, for the very fact is that PTAB helps end software patents. It even invalidates patents which were granted before Alice.
Several different strategies have been used in an effort to weaken if not altogether eliminate PTAB. One such strategy was misuse of tribal immunity in the US. Josh Landau from CCIA has just revisited the subject. Last night he wrote:
At the House Judiciary Committee’s IP Subcommittee hearing on sovereign immunity, Chairman Issa had a simple request for Phil Johnson, one of the witnesses—to, for the record, “look at the various off-ramp possibilities” for PTAB proceedings. An off-ramp is a way for a patent owner to take their patent and amend it in front of a patent examiner, instead of defending the validity of their claims in an inter partes review (IPR).
Given the factual errors I found in Mr. Johnson’s testimony, I decided to take Chairman Issa up on his request and look at off-ramps in PTAB proceedings. Not a new off-ramp—the ones that already exist and are already being used.
Legislation appears to be on its way to void such tribal immunity and a Federal judge has already ruled against it. But don’t expect the anti-PTAB lobby to rest. Sites like Watchtroll and IAM continue to perpetually attack PTAB and so does Patently-O, which as recently as yesterday (and days beforehand) promoted anti-PTAB papers to influence SCOTUS. It’s not surprising; this anti-PTAB blogger used to attack PTAB almost every day and this latest paper that he links to comes from some dodgy company whose Web site does not even list any services and was generated in a rush using GoDaddy tools. Ron Katznelson’s abstract says:
This paper shows that the Framers empowering Congress to act by “securing for limited Times to … Inventors the exclusive Right to their … Discoveries” understood that the exclusive patent right is not “granted” but is a preexistent right emanating from the inventor – not from Congress. This exclusive right is only secured by statute, as part of the patent bargain in exchange for the inventor’s public disclosure of the invention. Therefore the right adjudicated in administrative validity review of issued patents is a “private right.” It is shown that the notion of post-issuance administrative “error correction” is fiction, as it overlooks the irreversible and uncorrectable exchange of rights upon patent issuance. It is concluded that only Article III courts can extinguish such private rights and that arguments advanced by proponents of post-issuance administrative patent revocation are therefore deficient in supporting the constitutionality of such proceedings.
The abstract alone mentions the word “rights” 5 times, but patents are not rights. That’s just that old and tired canard from Patently-O.
In other news, yesterday came this update regarding Axon/TASER. It’s about the “‘950 Patent [which] is asserted against WatchGuard in a patent infringement lawsuit pending in the U.S. District Court in Kansas.”
This press release [1, 2] says that the USPTO rejected a request to review the patent. Quoting the press release:
Digital Ally, Inc. (NASDAQ: DGLY) today announced that the United States Patent Office has rejected the request of Enforcement Video, LLC (d/b/a WatchGuard Video) to institute an inter partes review (“IPR”) on U.S. Patent No. 9,325,950 (“the ‘950 Patent”). The ‘950 Patent is asserted against WatchGuard in a patent infringement lawsuit pending in the U.S. District Court in Kansas. The lawsuit also involves U.S. Patent Nos. 8,781,292 (“the ‘292 Patent”) and 9,253,452 (“the ‘452 Patent”), the same two patents asserted against Axon Enterprise, Inc. (“Axon,” formerly known as TASER International, Inc.). Digital’s lawsuit against WatchGuard claims infringement of these three patents by WatchGuard’s VISTA WiFi® body camera and its 4RE® Digital HD Panoramic In-Car System. Digital is seeking both damages and an injunction preventing the sale of these products.
This comes to (once again) demonstrate that PTAB does not blindly invalidate everything. It helps assure patent quality, not take away the “rights” [sic] of so-called ‘inventors’. █
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