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

12.06.17

The Electronic Frontier Foundation (EFF) is Calling for Greater Transparency at USPTO and US Patent Courts

Posted in America, Courtroom, EFF, Patents at 6:18 am by Dr. Roy Schestowitz

As independence is not enough when there’s no visibility

Judicial independence
Reference: Judicial accountability and independence (UK)

Summary: Digital rights groups such as the Electronic Frontier Foundation still insist that it is difficult to tackle patents, challenges (e.g. at PTAB) and legal actions given the current tools and publicly available data

THE prevalence of information (Open Access and open data) in conjunction with transparency is essential for justice. It needs to be seen to be assured or verified by independent outsiders. The USPTO wouldn’t rank too badly for open data, but there’s plenty of room for improvement still.

“A lot of people now rely on Google for access to such information (problematic as it demonstrates an element akin to privatisation).”Apple fan sites which keep abreast of Apple’s latest granted patents certainly manage to find out what was approved (this one is from yesterday), but when one only sees the finished ‘product’ it leaves limited room for challenge/opposition. The USPTO has an extensive database and easy-to-search data about granted patents, but little else. A lot of people now rely on Google for access to such information (problematic as it demonstrates an element akin to privatisation).

“As we’ve said since last year, the Board enjoys a 80% approval/reaffirmation rate from the Federal Circuit, so there’s no rift.”What about data other than granted patents? Well, some sites have come into existence to help track dockets and thus patent cases, soon to be used by the EFF, CCIA and so on. The Federal Circuit (CAFC) is hard to observe except when decisions are published (worse than the Supreme Court, SCOTUS, in that regard) and with PTAB dodged using tribal immunity (Saint Regis Mohawk Tribe/Allergan) things get extremely dodgy. There are satellite/proxy entities all around the world, designed purely to complicate and therefore whitewash what many have dubbed a “scam” (hard to trace reassignments back to the source, much like money laundering).

Yesterday, this long article by Vera Ranieri (EFF) spoke about how secrecy (or lack of access to information) impacts cases in the Eastern District of Texas and beyond. To quote:

In a promising step toward transparency, the Eastern District of Texas (the court that sees many of the nation’s patent cases) recently announced an amendment to its Local Rules that would require parties to file redacted versions of documents that contain confidential information. Previously, parties would file whole briefs under seal, without any public version being provided, even if only one word or line in the brief was claimed to be confidential. One of the few ways the public could protest against this improper sealing was to attempt to intervene in cases so as to require the parties and the courts to justify the sealing. But members of the public can’t possibly intervene to unseal in every case. This rule change is a step toward greater transparency.

EFF has, in recent years, worked to push back against oversealing, especially in patent cases where improper sealing is practically routine. We successfully intervened in several cases in order to provide greater transparency to the public.

[...]

EFF has also been pushing for greater transparency in the high profile patent litigation between Allergan (a branded pharmaceutical company) and generic companies who wish to make a lower cost version of the drug Restasis. The litigation took on new interest when Allergan announced it had “sold” its patents to the Saint Regis Mohawk Tribe in an attempt to shield the patents from scrutiny at the Patent Office.

[...]

In both the district court case and at the Patent Office, it is clear that parties are often sealing much more information than the law allows. It is only when challenged do they agree to reveal what should have been public in the first place. While we’re glad there has been greater transparency in the cases mentioned above, it should not take EFF (or anyone else’s) intervention before the courts and parties make public what should have been public all along.

Contrariwise, looking at the patent maximalists at Patently-O, they are taking advantage of access to PTAB/Federal Circuit proceedings to cherry-pick cases and often present the PTAB as rife with disputes, controversy, even scandals. Yesterday the blog wrote about three “PTAB decisions [which] seem inconsistent, but the differences can be explained by the fact that each IPR focused on different prior art references (or combinations thereof). Note here that the patentee loses (claims are cancelled) if a claim is found invalid in any one of multiple IPR proceedings. On appeal, the Federal Circuit consolidated the cases and has ruled against the patentee — affirming the Iron Dome and Dish cancellations, but reversing the Board’s nonobviousness decision from Hulu.”

As we’ve said since last year, the Board enjoys a 80% approval/reaffirmation rate from the Federal Circuit, so there’s no rift. Compare that to the sheer disagreement between the Federal Circuit and the Supreme Court, which as far as patents go is extraordinary. The Supreme Court overturned pretty much every single decision from the Federal Circuit.

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 22/2/2018: Qt Roadmap for 2018, Calculate Linux 17.12.2

    Links for the day



  2. As Expected, Bristows and Others Already Lying About UPC Status in Germany, But Doing This Anonymously (to Dodge Accountability for Lies)

    In their characteristic fashion, firms that created the UPC for their self-enrichment purposes, along with publishers/writers who deem it their role to promote the UPC and set up lobbying events for the UPC, look for ways to downplay if not intentionally distort what happened in Germany yesterday



  3. Further Attacks on EPO Staff and the Appeal Boards; Former EPO Boards of Appeal Member Speaks About EPO Scandals

    In the process of devaluing EPO workers and perhaps preparing them for a large round of layoffs information is also revealed about further repressions against the independence of the Boards of Appeal



  4. End of the UPC Lobby and Withdrawal of UPCA May Seem Imminent

    The Unitary Patent fantasy (of mass litigation firms) is coming to an end; in fact, the German government and courts (Bundesverfassungsgericht to be specific) now deem the complaint to be admissible and thus likely legitimate in spite of many attempts to shoot it down



  5. EPO's Board 28 Spikes Article 53 in CA/3/18, Apparently After Battistelli Withdrew It

    The latest plot twist, as odd as that may seem, is that the attack on the rights of thousands of workers (many of whom are rumoured to be on their way out) is curtailed somewhat, at least for the time being



  6. Links 21/2/2018: Apper 1.0, New Fedora ISOs

    Links for the day



  7. Rumour: European Patent Office to Lay Off a Significant Proportion of Its Workforce

    While the Administrative Council of the EPO praises Battistelli for his financial accomplishments (as laughable as it may seem) a lot of families stuck in a foreign country may soon see their breadwinner unemployed, according to rumours



  8. The Patent Trolls' Lobby, Bristows and IAM Among Others, Downplays Darts-IP/IP2Innovate Report About Rising If Not Soaring Troll Activity in Europe

    Exactly like last year, as soon as IP2Innovate opens its mouth Bristows and IAM go into "attack dog" mode and promote the UPC, deny the existence or seriousness of patent trolls, and promote their nefarious, trolls-funded agenda



  9. Links 20/2/2018: Mesa 17.3.5, Qt 5.11 Alpha, Absolute 15.0 Beta 4, Sailfish OS 2.1.4 E.A., SuiteCRM 7.10

    Links for the day



  10. Replacing Patent Sharks/Trolls and the Patent Mafia With 'Icons' Like Thomas Edison

    The popular perceptions of patents and the sobering reality of what patents (more so nowadays) mean to actual inventors who aren't associated with global behemoths such as IBM or Siemens



  11. The Patent Trolls' Lobby is Distorting the Record of CAFC on PTAB

    The Court of Appeals for the Federal Circuit (CAFC), which deals with appeals from PTAB, has been issuing many decisions in favour of § 101, but those aren't being talked about or emphasised by the patent 'industry'



  12. Japan Demonstrates Sanity on SEP Policy While US Patent Policy is Influenced by Lobbyists

    Japan's commendable response to a classic pattern of patent misuse; US patent policy is still being subjected to never-ending intervention and there is now a lobbyist in charge of antitrust matters and a lawyer in charge of the US patent office (both Trump appointees)



  13. The Patent Microcosm's Embrace of Buzzwords and False Marketing Strives to Make Patent Examiners Redundant and Patent Quality Extremely Low

    Patent maximalists, who are profiting from abundance of low-quality patents (and frivolous lawsuits/legal threats these can entail), are riding the hype wave and participating in the rush to put patent systems at the hands of machines



  14. Today, at 12:30 CET, Bavarian State Parliament Will Speak About EPO Abuses (Updated)

    The politicians of Bavaria are prepared to wrestle with some serious questions about the illegality of the EPO's actions and what that may mean to constitutional aspects of German law



  15. Another Loud Warning From EPO Workers About the Decline of Patent Quality

    Yet more patent quality warnings are being issued by EPO insiders (examiners) who are seeing their senior colleagues vanishing and wonder what will be left of their employer



  16. Links 19/2/2018: Linux 4.16 RC2, Nintendo Switch Now Full-fledged GNU/Linux

    Links for the day



  17. PTAB Continues to Invalidate a Lot of Software Patents and to Stop Patent Examiners From Issuing Them

    Erasure of software patents by the Patent Trial and Appeal Board (PTAB) carries on unabated in spite of attempts to cause controversy and disdain towards PTAB



  18. The Patent 'Industry' Likes to Mention Berkheimer and Aatrix to Give the Mere Impression of Section 101/Alice Weakness

    Contrary to what patent maximalists keep saying about Berkheimer and Aatrix (two decisions of the Federal Circuit from earlier this month, both dealing with Alice-type challenges), neither actually changed anything in any substantial way



  19. Makan Delrahim is Wrong; Patents Are a Major Antitrust Problem, Sometimes Disguised Using Trolls Somewhere Like the Eastern District of Texas

    Debates and open disagreements over the stance of the lobbyist who is the current United States Assistant Attorney General for the Antitrust Division



  20. Patent Trolls Watch: Microsoft-Connected Intellectual Ventures, Finjan, and Rumour of Technicolor-InterDigital Buyout

    Connections between various patent trolls and some patent troll statistics which have been circulated lately



  21. Software Patents Trickle in After § 101/Alice, But Courts Would Not Honour Them Anyway

    The dawn of § 101/Alice, which in principle eliminates almost every software patent, means that applicants find themselves having to utilise loopholes to fool examiners, but that's unlikely to impress judges (if they ever come to assessing these patents)



  22. In Aatrix v Green Shades the Court is Not Tolerating Software Patents But Merely Inquires/Wonders Whether the Patents at Hand Are Abstract

    Aatrix alleges patent infringement by Green Shades, but whether the patents at hand are abstract or not remains to be seen; this is not what patent maximalists claim it to be ("A Valentine for Software Patent Owners" or "valentine for patentee")



  23. An Indoctrinated Minority is Maintaining the Illusion That Patent Policy is to Blame for All or Most Problems of the United States

    The zealots who want to patent everything under the Sun and sue everyone under the Sun blame nations in the east (where the Sun rises) for all their misfortunes; this has reached somewhat ludicrous levels



  24. Berkheimer Decision is Still Being Spun by the Anti-Section 101/Alice Lobby

    12 days after Berkheimer v HP Inc. the patent maximalists continue to paint this decision as a game changer with regards to patent scope; the reality, however, is that this decision will soon be forgotten about and will have no substantial effect on either PTAB or Alice (because it's about neither of these)



  25. Academic Patent Immunity is Laughable and Academics Are Influenced by Corporate Money (for Steering Patent Agenda)

    Universities appear to have become battlegrounds in the war between practicing entities and a bunch of parasites who make a living out of litigation and patent bubbles



  26. UPC Optimism Languishes Even Among Paid UPC Propagandists Such as IAM

    Even voices which are attempting to give UPC momentum that it clearly lacks admit that things aren't looking well; the UK is not ratifying and Germany make take years to look into constitutional barriers



  27. Bejin Bieneman Props Up the Disgraced Randall Rader for Litigation Agenda

    Randall Rader keeps hanging out with the litigation 'industry' -- the very same 'industry' which he served in a closeted fashion when he was Chief Judge of the Federal Circuit (and vocal proponent of software patents, patent trolls and so on)



  28. With Stambler v Mastercard, Patent Maximalists Are Hoping to Prop Up Software Patents and Damage PTAB

    The patent 'industry' is hoping to persuade the highest US court to weaken the Patent Trial and Appeal Board (PTAB), for PTAB is making patent lawsuits a lot harder and raises the threshold for patent eligibility



  29. Apple Discovers That Its Patent Disputes Are a Losing Battle Which Only Lawyers Win (Profit From)

    By pouring a lot of money and energy into the 'litigation card' Apple lost focus and it's also losing some key cases, as its patents are simply not strong enough



  30. The Patent Microcosm Takes Berkheimer v HP Out of Context to Pretend PTAB Disregards Fact-Finding Process

    In view or in light of a recent decision (excerpt above), patent maximalists who are afraid of the Patent Trial and Appeal Board (PTAB) try to paint it as inherently unjust and uncaring for facts


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