Bonum Certa Men Certa

PTAB Bashing in the US and the Attack on the Boards of Appeal in Europe All About Lowering Patent Quality

How low can the bar go?

Manhattan



Summary: The aspiration to lower patent quality in order to saturate the space with patents and lawsuits is what controls exist for; but those who profit from lots of patents and lawsuits want these controls obliterated

THE USPTO's appeal boards are essential. The Board is known as PTAB, but it's actually like a bunch of small tribunals. Like BoA at the EPO. They help ensure high patent quality and scare those whose patents are of low quality.



A few hours ago a law firm published this timely article ("The EPO Raises The Bar On Plausibility When Assessing Inventive Step: T488/16 - Dasatinib").

This is why Battistelli attacks the Boards of Appeal. They raise the patent bar. The Office perpetually lowers it. The Boards also serve to highlight systematic decline/intentional reduction of quality at the Office (if work can be done at a high volume; the Boards have been grossly understaffed and under-equipped by the EPO; even their office space shrank a lot). From the new article:

On 1 February 2017 the Board of Appeal of the EPO upheld the revocation of Bristol-Myers Squibb's (BMS) patent for anti-cancer drug dasatinib due to a lack of inventive step. It is common for post-published data to be taken into account by the EPO when such data supports a technical effect rendered plausible by the application. In this case the Board decided that the original application did not make it plausible that the dasatinib had any useful properties, i.e. any technical effect. As a consequence, the post-filing data could not be taken into account when assessing inventive step and the patent was revoked for merely claiming an obvious further organic compound.

This finding raises the bar on whether a patent specification makes it plausible that a technical problem has been solved and could have far-reaching effects for the patentability of pharmaceutical and other inventions.


It's no secret that patent quality at the EPO nosedived. Not a single insider publicly claims otherwise.

In the US, by contrast. patent quality seems to have improved. Even when the USPTO grants a patent, that patent may soon be invalidated by PTAB or by a court. That's just happening so much these days that litigation frequency has gone down considerably. This is bad news for nobody but trolls, patent law firms, and opportunists whose patents are bunk.

Watch Sunday's intellectually dishonest spin from Watchtroll. They just can't stop PTAB-bashing. They do it all the time. Here's Watchtroll trying to shift outcomes such as Alice in favour of patent trolls while slamming AIA (which birthed PTAB): "The America Invents Act (AIA) has laid waste many of the advantages of being an innovator, but the Supreme Court is currently considering the constitutionality and propriety of some of the more troublesome aspects of the AIA."

Nonsense. This is like weapons manufacturers bemoaning peace and stability. They just need feuds for income. In absence of conflict, they'll try to create some.

PTAB was also mentioned by Marie McKiernan the other day. This is being cited by the patent microcosm, including high-profile PTAB bashers. To quote:

As we discussed in May, PTAB decisions are a primary source for guidance regarding what constitutes a “printed publication” under €§ 102, because the PTAB faces the issue so frequently. Since that post, the PTAB has continued to define the scope of what is or is not a printed publication. In most instances, where the issue was contested, the PTAB found the petitioner failed to prove a document was a printed publication.

[...]

These PTAB decisions serve as an invaluable source of guidance for an issue often commonly contested before the PTAB, and their lesson continues to be that more evidence should be provided. In many instances, although the petitioner provides some evidence pointing toward the public accessibility of the alleged prior art, the evidence falls short of demonstrating that the document is a “printed publication.” When it comes to proving that a reference is a printed publication before the PTAB, less is not more.

Parties should take heed of the PTAB’s approach. Before filing their petitions, petitioners must think of all potential avenues of dissemination to connect all the dots between the prior art, its publication, and how that translates into public accessibility. Patent owners should not shy away from attacking petitioners’ evidence.


Owners? Attacking? Seriously biased spin.

PTAB bashing is in some sense akin to Battistelli's attacks on the Boards. It's intended to help reduce the patentability bar and facilitate more feuds (something a system like UPC would depend on).

PTAB bashers have also promoted these lies from the American Enterprise Institute (even the headline a lie, suggestive of outcome that won't happen). The American Enterprise Institute is basically a pressure group for the maximalists; it's just cleverly named. It cites Watchtroll as its source. That's like Daily Caller citing Fox News. Here is what it says about Oil States: "So how will the case shake out? It’s difficult to tell at this stage, but Gene Quinn of IP Watchdog asserted after the argument that “a 9-0 decision that ratifies the constitutionality of IPR proceedings seems quite unlikely.” And a panel he interrogated also sounded divided. We’ll likely have to wait until June for the ruling, but Patent Office trials now seem more endangered than before."

Not by a long shot. Even patent professionals are already accepting that SCOTUS, based on the hearings so far, leans towards PTAB.

Sadly, PTAB bashing continues to thrive in blogs of such extremists, whereas companies which create products are mostly apathetic and silent. The media is therefore dominated by PTAB-hostile voices, sometimes even a bunch of cowboys.

Recent Techrights' Posts

Brett Wilson LLP Sent Over 5 Kilograms (or Over 12 Pounds) of Legal Papers! Because Writing About Microsoft Abuses is 'Illegal'.
How do you guys sleep at night? On a big pile of Microsoft money?
Extremism as a Weapon Against GNU/Linux (Microsoft Lunduke)
He ought to know the Halloween Documents. Wasn't he a Microsoft employee when these came out?
 
Gemini Links 09/07/2025: Extreme Testing and Golang Documentation in Geminispace
Links for the day
Vice President of the European Patent Office (EPO) Complains That Techrights Gives Visibility to Legal and Technical Issues at the EPO
"Follow-up on enquiries relating to Dir. 1218 and 1001"
Slopwatch: linuxsecurity.com and Various Slopfarms That Lie About "Linux" and Are Promoted by Google News
Google does not seem interested in tackling this problem
Links 09/07/2025: War Updates and Microsoft Moving to India to Cut Costs
Links for the day
GNU/Linux Was Always a 'Movement' of Inclusion of Tolerance
Even the licences themselves remove access barriers
Links 09/07/2025: "Subprime AI Crisis" and "OpenAI May Be in Major Trouble Financially"
Links for the day
Huge Piles of Legal Papers ('Paper DDoS') Do Not Impress Judges and Regulators
they just make judges and regulators even more suspicious of the eagerness to resort to 'paper DDoS'
Lunduke Isn't Even Hiding His Anti-Linux Agenda (From "Linux Sucks" to "Linux is Pedophiles")
just trying to make a lot of trouble
Some People Use Computers to Get Actual Work Done
Tolerance and inclusion must extend to acceptance that some people don't agree with you, might never agree with you, and imposing what allegedly works for you on them is unreasonable
Example of "Old" Things That Still Work
The notion that something being "old" implies it must be discarded is typically advanced by those looking to sell more of something
Some Scheduled Maintenance Later Today
Typically the most vulnerable service during short interruptions is IRC
Computers Are Just a Tool
People don't get married because they love weddings, folks don't join the army because they love war, and most drivers don't drive to work because they love cars
Apple Way Past Its Prime
Apple deserves a decline
The FSF's SysOps Team Recovered From Serious Hardware Issue Within Hours
About half a day ago I noticed that all/most GNU/FSF sites were not reachable and thus reached out to a contact for any details
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 08, 2025
IRC logs for Tuesday, July 08, 2025
Slopwatch: Turning Bugs Into FUD About "Linux", Getting Basic Facts Wrong
all the screenshots are of fake articles; we don't want to link to any
Technical Reasons, Not Politics: With Wayland "it feels a lot like Linux from 20-25 years ago, which is horrendously frustrating, because it feels like we wasted one or two decades of progress and stability"
Lately, quite a few benchmarks were published to show Wayland compares poorly compared to what we had
PCLinuxOS Recovering From Fire
It looks like a nightmare scenario, where even backups onsite get destroyed
Links 09/07/2025: More Heatwaves, Officials Culled in Russia
Links for the day
Gemini Links 09/07/2025: XScreensaver and Resurrection
Links for the day
Links 08/07/2025: "Cyberattack Deals Blow to Russian Firmware" and "Cash Remains King"
Links for the day
FSF40 T-shirt message
by Alex Oliva
Gemini Links 08/07/2025: Creativity, Gotify with NUT Server, and Sudo Bugs
Links for the day
More on "Lunduke is Actually Sending His Audience to Attack People"
"pepe the frogs"
Links 08/07/2025: Sabotage of Networking Infrastructure, Microsoft XBox Game Pass Deemed “Unsustainable”
Links for the day
Dalai Lama Succession as Evidence That Determined, Motivated People Can Reach Their Nineties
And we need to quit talking about their death all the time
Many Lawyers (for Microsoft) and 1,316 Pages to Pick on a Litigant in Person Who Exposed Serious Microsoft Abuses
Answers must be given
Gemini Links 08/07/2025: Ancillary Justice and Small Web July
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 07, 2025
IRC logs for Monday, July 07, 2025
Layoffs and Shutdowns at IBM, Not Just Microsoft
Same as Microsoft
The FSF's (Free Software Foundation, Inc.) 2025 Summer Fundraiser Already Past Halfway Line
This is where GNU/Linux actually started
With Workers Back From a Holiday Weekend, Microsoft Layoffs Carry on, More Waves to Come
Now it's Monday and people are bad to work, even some journalists
Mozilla Had No Good Reason to Outsource Firefox Development to Microsoft
What does Mozilla plan to do when GitHub shuts down?
Mozilla Firefox Did Not Die, It Got Killed
To me it'll always look like Mozilla got killed by its sponsors, especially Google, which had a conflict of interest as a sponsor
You Need Not Wave a Rainbow Flag This Month to Basically Oppose Arseholes Looking to Disrupt and Divide the Community
Don't fall for it
Dan Neidle, Whom Brett Wilson LLP SLAPPed (on Behalf of Corrupt Rich Tax Evaders), Still Fighting the Good Fight
Neidle fights for the poor people
What Miguel de Icaza and Microsoft Lunduke Have in Common
Similar aims, different methods
Wayland Should Start by Dumping Its Very Ugly Logo
Wayland wins the "ugliest logo" award every year
Stop Focusing on Hair Colours, Focus on Corporate Agenda
If someone commits a crime, it does not matter if his or her hair was mostly white or there was no hair or a wig or whatever
Links 07/07/2025: Science, Conflicts, and a Fictional K-pop Group
Links for the day
Gemini Links 07/07/2025: Being a Luddite and Announcement of Gotify
Links for the day
Links 07/07/2025: XBox Effectively 'Dead', DMCA Subpoena Versus Registrar
Links for the day
The 'Corporate Neckbeard' is Not the "Good Guy"
Works for IBM
The Nasty Smear (and Stereotype) of "Neckbeard" or "Greybeard" is Ageism
This is the sort of stuff they might try to volley at critics of Wayland
Why Many of Us Use X Server and Will Continue to Use It For Many Years to Come
Don't make this about politics
Microsoft's Nat Friedman Became Unemployed the Same Time the SLAPPs Against Techrights Started Coming From His Friends (Weeks After We Had Exposed Scandals About Him and the Serial Strangler, His Best Friend, Who Got Arrested a Few Days Later)
Nat Friedman is not "Investor, entrepreneur"
Brett Wilson LLP Uses Threats to Demand Changes to Pages or Removal of Pages Without Even Revealing Which Staff Member Does That (Sometimes People From Another Firm!)
This has been in the public for years
Dan Neidle Said "It Really Then Became a Job of Tormenting" Lawyers Like Brett Wilson LLP (Who Threatened Him for Exposing Crimes, Just Like They Threatened My Wife a Few Months Later)
he and his wife decided to take on the evil people and their evil lawyers
Large Language Models (LLMs) Externalise Their Cost to the Free Software Foundation (FSF)
"The forty-sixth Free Software Bulletin is now available online!"
Weeding Out Extremism in Our Community
To me it seems like Microsoft Lunduke is rapidly becoming like a "hate preacher" who operates online, breeding an extremist ideology or trying to soften its image
Censorship Versus Fact-Checking and Quality Control
It's not censorship but a matter of quality control
Reinforcing the Allegations Some More, Bryan Lunduke Digs His Own Grave
In his latest episodes he merely repeats his own lies, which I debunked using evidence right from his own mouth
Global Warming and Free Software as a Force of Mitigation
we'll need to think about Software Freedom, not just brands like "Linux"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 06, 2025
IRC logs for Sunday, July 06, 2025
Gemini Links 07/07/2025: BaseLibre Numerical System and TUI Rant
Links for the day