02.18.18

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Academic Patent Immunity is Laughable and Academics Are Influenced by Corporate Money (for Steering Patent Agenda)

Posted in Patents at 5:37 am by Dr. Roy Schestowitz

Even some US colleges are funded by patent lobbies

Antonin Scalia Law School

Summary: Universities appear to have become battlegrounds in the war between practicing entities and a bunch of parasites who make a living out of litigation and patent bubbles

THE US has a problem of corporate influence in universities. Not only the US has this problem. As a former academic myself (I worked a few years as a postdoc), I’ve seen it from the inside and I still hear about it from friends or former colleagues. Corporations funnel money in exchange for things; even the EPO now pays scholars in the UK and in the US (in exchange for papers that help promote the UPC). Certainly the policy of the USPTO is impacted by this; a lot of academic papers should state openly which corporations fund the authors’ (or investigators’) department/s. There’s danger, however, that by insinuating such corruption of academia one leaves room for patent extremists to attack academics they dislike. So let’s just say that scholars are, in general, more credible than think tanks and front groups (like IPO); but they’re not impenetrable to outside influence or even soft bribes.

Why are we saying all this? Well, Scott McKeown, writing at Ropes & Gray’s site, has just written about an old subject which we covered here before, noting that a federal court will soon wrestle with the questions about “sovereign immunity” for academic institutions, specifically in relation to PTAB.

Why should universities that hold questionable patents be immune from the law and from scrutiny? That seems to make no sense at all, but never underestimate the power of lobbying. And what makes them a separate sovereignty to begin with? (sovereignty as in “sovereign immunity”)

State-affiliated entities enjoy immunity from suit in federal courts under the 11th amendment. To date, a handful of such entities have successfully leveraged the same immunity theory to avoid review of their patents before the Patent Trial & Appeal Board (PTAB). While still other Patent Owners have aligned themselves with Native American Tribes in an effort to benefit from their sovereign status in the hopes of avoiding PTAB review.

More recently, in Ericsson v. Regents of the University of Minnesota the PTAB has determined that sovereign immunity is waived where the sovereign entity files an infringement suit.

Another law firm wrote about this the other day, noting that the State, as per an infamous old law, enabled universities to abuse taxpayers’ money to collect patents and then give these to trolls (who soon attack these very same taxpayers). Why should they — the universities that nowadays incubate startups and privatise publicly-funded research — at the same time they pursue these patents also be immune from scrutiny?

Here’s more on the University of Minnesota:

The PTAB’s decision also did not state whether UMinn had any input in Toyota’s strategy to request adverse judgment. Thus, from the record, it is not clear whether Toyota adequately represented the interests of UMinn in this case.

Right now, owing to the above cases, Big Pharma is attempting to shelter its controversial patents using tribes (for tribal immunity). The situation has become quite unreal.

Meanwhile, judging by this new paper from Saurabh Vishnubhakat, he continues to feed the anti-PTAB (often pro-trolls) lobby. From his abstract: “The rise of administrative patent validity review since the America Invents Act has rested on an enormous expansion of Patent Office authority. A relatively little-known aspect of that authority is the agency’s statutory ability to intervene in Federal Circuit appeals from adversarial proceedings in its own Patent Trial and Appeal Board. The Patent Office has exercised this intervenor authority frequently and with specific apparent policy objectives, including where one of the adverse parties did not participate in the appeal. Moreover, until recently, there has been no constitutional inquiry into the Article III standing that the Patent Office must establish in order to intervene in this way.”

Patently-O (i.e. Crouch) continues to feed that same lobby too by publishing this guest post by Matthew J. Dowd and Jonathan Stroud, citing Vishnubhakat’s work. From their long post:

Professor Saurabh Vishnubhakat’s recent well-reasoned post and longer article add much to the discussion about standing to appeal from the PTAB. Standing has recently garnered significant interest from the Federal Circuit. Building on existing scholarship, we have written a concise synopsis of standing law as applied to PTAB appeals, forthcoming in Catholic University of America Law Review.

[...]

In our view, as a matter of standing alone, the PTO can participate as an intervenor in virtually all AIA appeals from the PTAB—and many reasons are consonant with the principles on which Professor Vishnubhakat bases his reasoning. We make no judgment here on the merits of the positions the PTO solicitor has or will adopt, or the frequency of intervention. While there is a valid debate about the policy choices and the frequency with which the PTO has intervened, that debate is distinct from the legal question of whether the PTO has, or must have, standing as an intervenor beyond their express statutory grant. Professor Vishnubhakat reasons correctly; he just goes a bridge too far.

We already know what they’re trying to accomplish because it’s well documented (for years). They hope to weaken if not abolish PTAB by comparing patents to “property” (a lie) or “rights”, then alluding to terms like “property rights” (which meant an entirely different thing when the term was conceived).

Last but not least, there’s this new paper from Jason Reinecke. It makes one wonder if Stanford University is now lobbying against software patents and — if so — who’s paying their School of Law for it (patent extremists will no doubt blame Google, for it’s closely connected to Stanford). Even though the title of the paper is a loaded question (“Is the Supreme Court’s Patentable Subject Matter Test Overly Ambiguous?), the conclusion seems to be an effort to debunk a myth promoted by patent extremists.

From the abstract (about abstract patents):

In four cases handed down between 2010 and 2014, the Supreme Court articulated a new two-step patent eligibility test that drastically reduced the scope of patent protection for software inventions. Scholars have described the test as “impossible to administer in a coherent, consistent way,” “a foggy standard,” “too philosophical and policy based to be administrable,” a “crisis of confusion,” “rife with indeterminacy,” and one that “forces lower courts to engage in mental gymnastics.”

This Article provides the first empirical test of these assertions. In particular, 231 patent attorneys predicted how courts would rule on the subject matter eligibility of litigated software patent claims, and the results were compared with the actual district court rulings. Among other findings, the results suggest that while the test is certainly not a beacon of absolute clarity, it is also not as amorphous as many commentators have suggested.

When lobbyists such as David Kappos say there’s lack of “clarity” regarding Alice they contribute to these myths. As we’ll show in our next post, the latest myth is that PTAB relies not on facts.

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