Bonum Certa Men Certa

PTAB Squashes Patent Trolls So the Patent Trolls' Lobby is Attacking PTAB on a Daily Basis

Watchtroll even calls people who petition PTAB a "cartel", having already called PTAB staff impotent

PTAB impotence



Summary: Ferocious attacks on the Patent Trial and Appeal Board (PTAB) are intensifying because the Board is reaching all-time highs, which causes panic in circles that profit from low-quality (and typically invalid) patents

THE previous post noted that there are attacks on the appeal board (PTAB) of the USPTO. Those who are against patent quality always loathed PTAB. It's not a surprise; it's what we should expect.



A couple of days ago the patent of a troll (Leigh M. Rothschild) was said to be in trouble after a petition had been filed at PTAB. To quote Unified Patents:

On January 4, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 8,799,088, owned and asserted by Rothschild Biometric Systems, LLC and SRR Patent Holdings, LLC, a Leigh M. Rothschild entity and well-known NPE. The '088 Patent, directed to a system and method for verifying user identity information in financial transactions, was previously asserted in district court litigation against USAA Savings Bank.


There's also this one from last month (against another troll, Uniloc):

On December 11, 2017, Unified filed a petition for inter partes review (IPR) against U.S. Patent 7,092,671 owned and asserted by Uniloc Luxembourg, S.A. and Uniloc USA (collectively "Uniloc"), a well-known NPE responsible for filing 95 new patent litigations since January 2017. The '671 patent, directed to a "system where a user’s handheld computer could automatically dial a telephone number stored in its memory by interacting with a telephone" has been asserted in district court against Apple and Samsung.


It should be noted that PTAB often intercepts legal actions (or threats) from patent trolls, so it's not surprising that foes of PTAB are typically trolls and their lawyers (sometimes the lawyers themselves are the trolls).

Apologists of trolls, such as this one, noted that "PTAB Denied IPR of a Patent that Had Been Challenged in 3 Prior IPRs with the Same Art!!: https://dlbjbjzgnk95t.cloudfront.net/0998000/998478/ipr2017-01780_institution_decision_8.pdf …"

So what? Maybe it's just a very bad patent. No scandal here.

Another one wrote: "There should be a rule 11 equivalent remedy to respondents in instances where IPR is not instituted. Fees and costs should automatically shift."

"More lawyers should be disbarred for pursuing bogus patents, e.g. software patents using loopholes, in the first place," I told him. These people are doing anything they can to stop PTAB not because they support science and technology; they're in the patent 'industry'. PTAB is very disruptive to the patent 'industry'.

How about patents on life? Ending this lunacy may take some time and PTAB seems like a step in the right direction:

Monsanto 1/5/2017. inter partes reexamination. U.S. Pat. No. 7,790,953 on "two step process for crossing (mating) two parent soybean lines to produce soybean seeds with a modified fatty acid profile." HELD: claims anticipated or obvious.


There's also this:

Monsanto v DuPont FedCir 1/5/18: 1st precedential patent dec'n of 2018! Circuit affirms PTAB's inter partes reexam decision. M's claims inherently anticipated based on prior art reference plus a non-prior declaration interpreting it. Claim 2 also obvious over same reference.


They're fighting over patents on life.

Let's remember that even large targets of PTAB petitions, such as Cisco, openly and broadly support PTAB. We recently wrote about this in relation to the Arista dispute, which involves PTAB and the ITC (the ITC basically refuses to respect/obey PTAB judgments). The latest on this case [1, 2] is now pertaining to copyrights, not just patents:

Software Freedom Conservancy is pleased to announce that it has joined GitHub, Mozilla Corporation, and Engine Advocacy, in an amicus brief for the Cisco v. Arista case. In the brief, we argue against extending copyright law unduly to ideas and functionality embodied in software — namely, that imitating command-line interfaces should not alone constitute copyright infringement.

The case, which Cisco appealed to the U.S. Court of Appeals for the Federal Circuit, considers whether a defense called “scènes à faire” should allow Arista Networks, Inc. to create a command-line interface that operates similarly to an interface developed by Cisco Systems, Inc. The lower court found, in a jury trial, that the defense was appropriate. Now, Cisco challenges that finding as a legal matter in their appeal.


What's noteworthy about Cisco v Arista is that here we have Cisco's patents being challenged -- and likely invalidated -- by PTAB (after Arista filed a petition). And nevertheless Cisco supports PTAB. We can think of not a single large technology company that opposes PTAB. In fact, small technology companies also support PTAB.

So why the fuss over PTAB? Because of the patent 'industry', notably trolls and lawyers (overlapping occupations at times).

A few days ago Watchtroll was trying to influence the Supreme Court by commenting on Oil States (regarding patents being challenged in PTAB IPRs). It resorted to lunatic theories of the fringe right and said: "If the court departs from the fundamental issues of private property, separation of powers and due process concerning patents and inventions, it won’t be for lack of clear-eyed, prudential, principled thinking and direction readily at hand."

Patents are not a "property", PTAB is separated from examination, and there is due process (including potential appeal to the Federal Circuit). So this whole argument is nonsensical. Watchtroll is just trying to publish an anti-PTAB article almost every day. On the same day it also said: "I predict that the United States Supreme Court will find post grant procedures under the America Invents Act to be unconstitutional."

No, it will not. Even the patent microcosm does not make such a prediction. It's broadly expected that the very opposite will occur. Watchtroll is at the fringe again, disconnected with reality as long as it suits its agenda. The following day, Joseph Robinson & Robert Schaffer wrote another PTAB-bashing piece in Watchtroll. Watchtroll is just bashing PTAB almost every single day (sometimes more than once a day) and the arguments don't add up. It also bashes HTIA, which supports PTAB on behalf of technology firms. Steve Brachmann is acting like Quinn's paid liar. He wrote this: "Further, the HTIA critiques the notion that the Supreme Court's decision in Alice has harmed the software industry by citing to data published by PwC which shows increased investment into software research & development in recent years."

To claim that "Alice has harmed the software industry" is simply a lie. The very opposite is true, but Steve Brachmann is just a writer, so his knowledge in this domain is nonexistent. He just serves his (pay)masters. Here he is (yesterday) calling people who challenge the validity of some patents the "efficient infringer cartel". What a toxic site. The "efficient infringer cartel’s use of the Patent Trial and Appeal Board (PTAB)," he said.

Earlier today Watchtroll continued the PTAB bashing, this time courtesy of Josh Malone. So even on a Sunday Watchtroll attacks PTAB. Is this all they'll produce in 2018?

Two days ago they wrote about a PTAB case that had been escalated to the higher court (CAFC) and obviously they emphasised Newman's dissent rather than the majority opinion. To quote:

On appeal Microsoft challenged the Board’s standard of review. The Federal Circuit reiterated that anticipation is a question of fact subject to substantial evidence review, that ultimate claim construction and claim construction relying solely on intrinsic evidence is subject to de novo review, and subsidiary factual findings based on extrinsic evidence are reviewed for substantial evidence.

[...]

Judge Newman dissented with the majority’s finding that the Kenoyer reference neither anticipated nor obviated the ‘182 patent. After performing a clause-by-clause review of claim 6, she argued that Figure 1 of Kenoyer discloses all of the elements of claim 6 and, thus, anticipates claim 6.

Further and in opposition to the majority’s view that Kenoyer presents “multiple, distinct teachings that the artisan might somehow combine to achieve the claimed invention,” she argued that the Kenoyer reference explicitly combines the limitations to provide the same conferencing system as in claim 6. Finally, she argued that the majority’s statement that “Microsoft fails to explain how a computer, especially the computer in Kenoyer, would receive broadcast, cable, or satellite television signals” was baseless because Biscotti does not provide an explanation and both Kenoyer and the ‘182 patent treat such signals as known technology.


The above serves to demonstrate that those who want to destroy PTAB have nothing to do with technology and everything to do with litigation. The pattern is very clear.

Here we have an aggressive law firm noting the increase in fees, which in turn makes PTAB less accessible, especially to small companies.

On January 16, 2018, the USPTO will increase its fees for inter partes reviews (IPR), post-grant reviews (PGR), and covered business method reviews (CBM). We updated Finnegan’s AIA Blog to reflect these new fees, which are also shown below. The base cost for an IPR increases from $23,000 to $30,500. Increases for PGR and CBM are more modest, but excess claims fees uniformly increase by 50% regardless of the proceeding type.


It certainly seems like USPTO Director Matal is trying to slow down PTAB. What's needed is the very opposite; they need to expand this 'court', add staff to it, and make it more affordable in order to improve patent quality.

Recent Techrights' Posts

[Video] Time to Acknowledge Debian Has a Real Problem and This Problem Needs to be Solved
it would make sense to try to resolve conflicts and issues, not exacerbate these
Daniel Pocock elected on ANZAC Day and anniversary of Easter Rising (FSFE Fellowship)
Reprinted with permission from Daniel Pocock
Ulrike Uhlig & Debian, the $200,000 woman who quit
Reprinted with permission from disguised.work
Girlfriends, Sex, Prostitution & Debian at DebConf22, Prizren, Kosovo
Reprinted with permission from disguised.work
 
[Video] Debian's Newfound Love of Censorship Has Become a Threat to the Entire Internet
SPI/Debian might end up with rotten tomatoes in the face
Joerg (Ganneff) Jaspert, Dalbergschule Fulda & Debian Death threats
Reprinted with permission from disguised.work
Amber Heard, Junior Female Developers & Debian Embezzlement
Reprinted with permission from disguised.work
[Video] IBM's Poor Results Reinforce the Idea of Mass Layoffs on the Way (Just Like at Microsoft)
it seems likely Red Hat layoffs are in the making
IRC Proceedings: Wednesday, April 24, 2024
IRC logs for Wednesday, April 24, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Links 24/04/2024: Layoffs and Shutdowns at Microsoft, Apple Sales in China Have Collapsed
Links for the day
Sexism processing travel reimbursement
Reprinted with permission from disguised.work
Microsoft is Shutting Down Offices and Studios (Microsoft Layoffs Every Month This Year, Media Barely Mentions These)
Microsoft shutting down more offices (there have been layoffs every month this year)
Balkan women & Debian sexism, WeBoob leaks
Reprinted with permission from disguised.work
Martina Ferrari & Debian, DebConf room list: who sleeps with who?
Reprinted with permission from Daniel Pocock
Links 24/04/2024: Advances in TikTok Ban, Microsoft Lacks Security Incentives (It Profits From Breaches)
Links for the day
Gemini Links 24/04/2024: People Returning to Gemlogs, Stateless Workstations
Links for the day
Meike Reichle & Debian Dating
Reprinted with permission from disguised.work
Europe Won't be Safe From Russia Until the Last Windows PC is Turned Off (or Switched to BSDs and GNU/Linux)
Lives are at stake
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 23, 2024
IRC logs for Tuesday, April 23, 2024
[Meme] EPO: Breaking the Law as a Business Model
Total disregard for the EPO to sell more monopolies in Europe (to companies that are seldom European and in need of monopoly)
The EPO's Central Staff Committee (CSC) on New Ways of Working (NWoW) and “Bringing Teams Together” (BTT)
The latest publication from the Central Staff Committee (CSC)
Volunteers wanted: Unknown Suspects team
Reprinted with permission from Daniel Pocock
Debian trademark: where does the value come from?
Reprinted with permission from Daniel Pocock
Detecting suspicious transactions in the Wikimedia grants process
Reprinted with permission from Daniel Pocock
Links 23/04/2024: US Doubles Down on Patent Obviousness, North Korea Practices Nuclear Conflict
Links for the day
Stardust Nightclub Tragedy, Unlawful killing, Censorship & Debian Scapegoating
Reprinted with permission from Daniel Pocock
Gunnar Wolf & Debian Modern Slavery punishments
Reprinted with permission from Daniel Pocock
On DebConf and Debian 'Bedroom Nepotism' (Connected to Canonical, Red Hat, and Google)
Why the public must know suppressed facts (which women themselves are voicing concerns about; some men muzzle them to save face)
Several Years After Vista 11 Came Out Few People in Africa Use It, Its Relative Share Declines (People Delete It and Move to BSD/GNU/Linux?)
These trends are worth discussing
Canonical, Ubuntu & Debian DebConf19 Diversity Girls email
Reprinted with permission from disguised.work
Links 23/04/2024: Escalations Around Poland, Microsoft Shares Dumped
Links for the day
Gemini Links 23/04/2024: Offline PSP Media Player and OpenBSD on ThinkPad
Links for the day
Amaya Rodrigo Sastre, Holger Levsen & Debian DebConf6 fight
Reprinted with permission from disguised.work
DebConf8: who slept with who? Rooming list leaked
Reprinted with permission from disguised.work
Bruce Perens & Debian: swiping the Open Source trademark
Reprinted with permission from disguised.work
Ean Schuessler & Debian SPI OSI trademark disputes
Reprinted with permission from disguised.work
Windows in Sudan: From 99.15% to 2.12%
With conflict in Sudan, plus the occasional escalation/s, buying a laptop with Vista 11 isn't a high priority
Anatomy of a Cancel Mob Campaign
how they go about
[Meme] The 'Cancel Culture' and Its 'Hit List'
organisers are being contacted by the 'cancel mob'
Richard Stallman's Next Public Talk is on Friday, 17:30 in Córdoba (Spain), FSF Cannot Mention It
Any attempt to marginalise founders isn't unprecedented as a strategy
IRC Proceedings: Monday, April 22, 2024
IRC logs for Monday, April 22, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Don't trust me. Trust the voters.
Reprinted with permission from Daniel Pocock
Chris Lamb & Debian demanded Ubuntu censor my blog
Reprinted with permission from disguised.work
Ean Schuessler, Branden Robinson & Debian SPI accounting crisis
Reprinted with permission from disguised.work
William Lee Irwin III, Michael Schultheiss & Debian, Oracle, Russian kernel scandal
Reprinted with permission from disguised.work