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12.12.17

PTAB Haters Fail to Guard Bogus Patents, But They Still Try

Posted in America, Apple, Courtroom, Patents at 7:54 am by Dr. Roy Schestowitz

Related: The Patent Trial and Appeal Board (PTAB) is Utilised in Fixing the US Patent System and the Patent Microcosm Loses Its Mind

Oil States Energy Services, LLC v. Greene’s Energy Group, LLC
The latest in Oil States (Oil States Energy Services, LLC v. Greene’s Energy Group, LLC), which is very unlikely to stop PTAB but rather reinforce PTAB based on the above oral hearings

Summary: Three Affiliated Tribes probably won’t enjoy sovereign immunity from PTAB, Dennis Crouch won’t manage to slow down PTAB, and patent litigation will stagnate as bad patents perish before they even land in a lawsuit

THE USPTO’s Patent Trial and Appeal Board (PTAB) has come under various attacks from the patent microcosm. We’ve lost count of the number of attempts to discredit or extinguish PTAB, but the Three Affiliated Tribes "scam" is one that we wrote about quite recently. Sovereign immunity loopholes are being closed by Federal courts and politicians. Seeing all this, Apple now takes aim at patents which were asserted against Apple. The PTAB bashers from IAM explain this as follows:

The debate over the use of sovereign immunity to protect patents from post-issuance reviews at the USPTO’s Patent Trial and Appeal Board (PTAB) has taken another turn. Late last week Apple filed an IPR against a patent held by MEC Resources, an entity owned by the Native American Three Affiliated Tribes, which had previously filed an infringement suit against the iPhone maker in a California district court.

Sovereign immunity as an IPR defence has become one of the patent stories of the year. It was used first (successfully) by several state universities and more recently has been claimed by a number of tribes including the Saint Regis Mohawk, who have taken on patents owned by pharma company Allergan and tech entity SRC Labs.

Allergan has been embroiled in a number of disputes with generics businesses over patents relating to its blockbuster drug Restasis and has been targeted in numerous IPRs filed by generics manufacturer Mylan. The patents assigned to the Saint Regis tribe from SRC have since been asserted in separate lawsuits against Microsoft and Amazon.

MEC Resources and Mohawk/Allergan will both fail to guard these patents (at least from scrutiny). It’s becoming crystal clear that it’s all just a ploy, as a Federal judge put it (“scam” is a more common term than “ploy” and the judge called it a “ sham”, which sounded similar to “scam”).

“MEC Resources and Mohawk/Allergan will both fail to guard these patents (at least from scrutiny).”Irrespective of one’s feelings about Apple, the patent case above is one where we ought to support Apple’s side as it also shields PTAB.

Incidentally, last night Dennis Crouch revisited PTAB in his PTAB-bashing blog. He now bashes PTAB for not giving the right of appeal. To quote:

While the inter partes review (IPR) was ongoing Ariosa/Roche filed a set of three ex parte reexamination requests and the PTO determined that they collectively raised 18 substantial new questions of patentability. However, after siding with the patentee in the IPR, the PTAB also terminated the three pending reexaminations – finding that Ariosa had delayed unreasonably in filing the reexam requests and that the petitions were duplicative of the IPR. This was apparently the first time that the PTAB had ever collaterally terminated an ex parte reexamination. (Remember here, that reexaminations are handled by examiners not by the Board).

[...]

PTAB has the right decision here (I think), but I continue to struggle with the no-appeal result. The argument for no right to appeal here is two-fold: (1) in an IPR only the final written decision can be appealable, and the decision here was separate from that paper; (2) A third-party has no right to appeal dismissal of an ex parte reexamination. What we don’t know is which of these (if either), the Federal Circuit would adopt.

This seems like Crouch's old pattern of trying to slow PTAB down by making the whole process more expensive and cumbersome. Shaming tactics along with Watchtroll. ‘Scholarly’ lobbying… soliciting briefs, too.

“The bottom line is, many more legal disputes are now being ‘settled’ (resolved) without pricey legal proceedings.”PTAB fees have already been raised, potentially accounting for a relative decrease in IPR filings. Does Crouch want them over-encumbered/preoccupied with appeals too? Probably. He also pressured Federal judges to issue written decisions for possibly thousands of PTAB appeals. Easy for him to say, having never written a legal decision; it takes a great deal of time and scales badly/poorly when it comes to the volume of IPRs. He knows that. He has an agenda…

The bottom line is, many more legal disputes are now being ‘settled’ (resolved) without pricey legal proceedings. PTAB typically invalidates low-quality patents before they even reach the courtroom. This is a good thing, not a bad thing. It’s a feature for actual companies, but it’s a “bug” for the litigation ‘industry’. To them (the latter), litigation is just a “product” to be sold. But it’s not a market, it’s a parasite. It’s not an industry but a nuisance. Watch yesterday’s press release which said “growth of the global litigation services market can be attributed to the rise in investments in R&D and for filing patents by organizations in the automotive, FMCG, pharmaceutical, and healthcare sectors.”

“Wanda publicly brags about getting software patents that are null and void (most likely) after Alice.”They say “litigation services market” as if it’s now a real “market”. Ask Crouch about it. Maybe he has actual investments in this “market”, not just amicable relations with that “market”.

And speaking of low-quality patents, see this press release from yesterday [1, 2]. Wanda publicly brags about getting software patents that are null and void (most likely) after Alice. It reads like a a couple of algorithms, one for “Searching of Stationary Datasets” and another for “Detecting Activities and Anomalies in Time Series Data” (they just sneak in words like “Apparatus” to make it appear less abstract than it really is). Worry not, PTAB is very quick to throw away such patents even if they somehow slipped through to the USPTO‘s database.

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