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12.24.17

The Patent Trial and Appeal Board (PTAB) Reaffirms USPTO Rejections of Abstract Patents/Applications ~83% of the Time

Posted in America, Patents at 2:12 pm by Dr. Roy Schestowitz

So these patents won’t even reach the dockets/courts

To reject

Summary: As software patents are rejected by US courts (more so the higher courts) the USPTO and PTAB are adapting, in effect working in a coordinated fashion to reject such patents — examiners and technical judges, respectively

THE USPTO is being helped by the Patent Trial and Appeal Board (PTAB), which invalidates patents without exception if these patents are not patent-eligible. PTAB has more resources to do this, just like the appeal boards at the EPO (although they’re grossly understaffed at the EPO, by intention). Clear misuse of tribal immunity, misappropriated to protect very bad patents from PTAB, won’t work. Based on this report from a few days, even universities aren’t safe havens anymore:

An expanded PTAB panel has determined that the filing of a federal court action waives the University of Minnesota’s Eleventh Amendment immunity, in the fourth decision to address state sovereign immunity

The Patent Trial and Appeal Board has denied the patent owner’s motion to dismiss inter partes review (IPR) in Ericsson v Regents of the University of Minnesota.

Judge Ruschke, the head of PTAB (chief judge), spoke to Michael Loney (same author as the above) and made it clear that no major changes are afoot, except some pertaining to amendments (and that too is not for sure). “Speaking at Managing IP’s European Patent Forum USA,” Loney wrote, “David Ruschke discussed a number of ways that amendments could be made easier to obtain at the PTAB [...] David Ruschke, chief judge of the Patent Trial and Appeal Board (PTAB), said the Board is contemplating some changes to its amendment practice.”

“The good news is that software patents continue to be invalidated at a very high rate at PTAB.”The rest is behind paywall. The USPTO will make inter partes reviews (IPRs) more expensive, just like the EPO did in order to render “access” to appeal boards more limited/financially prohibitive. If the number of IPRs declines a wee bit, that might be why.

The good news is that software patents continue to be invalidated at a very high rate at PTAB. “PTAB reverses abstract idea rejections about 17% of the time,” Anticipat wrote. That means that 83% of the time it does not. Anticipat continues trying to undermine SCOTUS and promote software patents. They’re selling their product/service and if they blurt out some statistics, we can take advantage of those and present them differently.

For difficult grounds of rejection, the right advocacy can make all the difference. The right counsel can know when to appeal and how to win on appeal. Here, we explore the demographic of firms that represent appellants that overturn one of the most difficult of all rejections: Section 101 abstract idea. Recent data show that while some big/specialized firms are successful, others without the same name recognition also are doing relatively well.

We have previously reported that in the post-Alice era, the PTAB reverses abstract idea rejections about 17% of the time. Updated for the past few months (blog post forthcoming), this overall rate has dipped. But this low percentage still represents a sizeable 135 decisions over the past year and a half (specifically, July 25, 2017 through December 1, 2017). This span of time represents the applications that are most likely to have been issued a post-Alice rejection and subsequently appealed. It turns out that select firms make up a good share of these successes, followed by a long tail of single reversals per firm.

[...]

For the uncertainties, Section 101 case law has been evolving very regularly since Alice, meaning that there is a large amount of unpredictability and volatility.

Good. Let’s hope that these so-called ‘uncertainties’ (that’s how the patent microcosm frames the reality of software patents being worthless) lead to the perpetual and definite end of all such patents, even without the defendant having to rely on expensive legal proceedings to prove it.

Suffice to say, patent maximalists like to (cherry-)pick the exceptions and say things like “US Pat 8311945, Method for processing checks; Survived Alice/101 in Dist. Ct. and PTAB” (not CAFC). Maybe Alice just really isn’t applicable in this case.

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