12.31.17
PTAB Update: Invalidations Carry on, Patents on Life Tackled, Patent Trolls Worry, and Allergan is in Trouble
Summary: The Patent Trial and Appeal Board (PTAB) maintains a high pace and good reputation, even in the face of never-ending attacks from the patent microcosm and controversial dodging attempts from the likes of Allergan
THE PTAB-aided USPTO has effectively cut down the number of software patents and sent out the message/signal that such patents are no longer worth pursuing, especially not in courts. PTAB is very popular among technology firms because it helps protect them from lawsuits of trolls and other types of nuisance litigation.
PTAB has become a hot topic very quickly. As one site put it the other day:
A recent Federal Circuit case illustrates perils of trying to show that patent claims are non-obvious by arguing that references would not have been combined. In Bosch Automotive Service Solutions. LLC v. Matal, No. 2015-1928 (Fed. Cir. Dec. 22, 2017) (non-precedential), the court affirmed a Patent Trial and Appeal Board (PTAB) finding of unpatentability, in an Inter Partes Review proceeding, of certain claims of U.S. Patent No. 6,904,796 (and, while not discussed in this post, also vacating the PTAB’s denial of the patent owner’s motion to amend certain claims). The court agreed with the PTAB that there was a sufficient motivation to combine references to achieve a single tool for activating tire sensors where different references taught each of the various functionalities now claimed in a single tool.
This party line is also promoted by proponents of patents on life (yes, on life! A whole site dedicated to that ’cause’). “In the IPR judgment, the Board found one set of Bosch’s proposed claims to be indefinite and one set to be obvious,” it said.
PTAB is limiting if not cracking down on patents on life, not just software patents. From its report on the subject:
Petitioner Visionsense Corp. is challenging the ’190 patent on four grounds as being anticipated under 35 U.S.C. § 102(b) (ground 1) or as obvious under 35 U.S.C. § 103(a) (grounds 2, 3, and 4). View the petition here. Administrative Patent Judges Hyun J. Jung (author), Michael L. Woods, and Amanda F. Wieker issued a decision instituting inter partes review of whether claims 1–3 are unpatentable under 35 U.S.C. § 103(a) over Little, Flower I, and Flower II; whether claims 1–3 are unpatentable under 35 U.S.C. § 103(a) over Flower I, Flower II, and Little or Goldstein; and whether claims 1–3 are unpatentable under 35 U.S.C. § 103(a) over Jibu, Flower I, and Little or Goldstein.
More of the usual PTAB bashing at Watchtroll (it’s very much routine there) could be seen several days ago. These people are worried. Trolls are worried.
David Pridham, who heads the patent troll Dominion Harbor, joked or dismissed PTAB the other day, claiming that it is “ignoring legal precedent since 2012! What a joke.”
This isn’t actually true. Then again, truth does not matter to Pridham, who libeled me using kindergarten-level insults. The more these people bash PTAB, the more convinced we should become that PTAB cracks down on the right things. “PTAB can no longer place the burden of establishing the patentability of amended claims on the patent owner,” [sic] wrote another site of the patent microcosm a few days ago, alluding to Chief Judge Ruschke with his statements (covered here at the time). They’re looking hard for ways around PTAB’s scrutiny.
On November 21, 2017, PTAB Chief Judge Ruschke issued a memorandum entitled “Guidance on Motions to Amend in view of Aqua Products.” As we reported at the time, the Federal Circuit in Aqua Products determined that the PTAB can no longer place the burden of establishing the patentability of amended claims on the patent owner in IPR proceedings. However, that en banc Court was highly fractured, with five separate opinions joined by differing collections of judges. Therefore, most of the opinion could be described as “cogitations,” as Judge O’Malley had put it.
The end of software patents in the US is getting ever more irreversible and real; it’s hard to overturn PTAB decisions on the matter, but the PTAB-bashing Anticipat tries to sell its products/services around such prospects. Four days ago it said:
PTAB: Increasingly difficult to overturn abstract idea rejections on appeal
[...]
The latest data from Anticipat show that the effects of #AliceStorm are beginning to stabilize at the PTAB. At a webinar over the summer, we presented data on the reversal rates of abstract idea rejections. Month-to-month, we presented on a highly volatile, but overall low reversal rate for abstract ideas of about 17%. Now with several more months of data, the reversal rate appears to have stabilized around a lower overall reversal rate of 16%. See chart below.
We mentioned this earlier in the month. It’s pretty significant when one inverts the numbers as it indicates that the Patent Trial and Appeal Board (PTAB) reaffirms USPTO rejections of abstract patents/applications ~83% of the time.
Anticipat hasn’t got much to contribute; it’s a waste of one’s money. As for other attempts to thwart PTAB? Those too are futile. “Transfer of Allergan’s Patents to the St. Regis Mohawk Tribe,” as Watchtroll recalled the other day (it published annual summaries), turns out to be an utter failure. As we pointed out in recent weeks/months, the tribal immunity ploy/scam is falling apart [1, 2, 3] and Allergan itself is falling apart, too. Published a few days ago was this report:
Allergan announced that it lost its patent appeal in its attempt to protect its Combigan eye drug from generic competition posed by Novartis’ Sandoz division.
According to Allergan, the U.S. Court of Appeals for the Federal Circuit affirmed the U.S. District Court for the Eastern District of Texas’ earlier decision that the Sandoz generic rival did not infringe two of Allergan’s patents and reversed a decision on a third patent in favor of Novartis.
Eastern District of Texas again. And the loss may have a profound effect/ramifications for the company. Maybe it will even go out of business in the not-so-distant future. PTAB can soon proceed to invalidating some of those patents it’s trying to ‘hide’ behind the Mohawks. █
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