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03.11.18

Patent Maximalists Cause a Crisis of Legitimacy for Patent Law

Posted in Intellectual Monopoly, Law, Patents at 11:13 pm by Dr. Roy Schestowitz

A crisis

Summary: The patent extremists who nowadays equate monopolies on mere ideas to “property” and “rights” gradually cause the public to lose respect for patents, more or less in the same way copyright maximalists (and copyright trolls) cause the population to seek alternatives (both legal and illegal)

THE concept of “intellectual property” is a vague one, especially because it’s a misnomer, sometimes abbreviated as “IP” or “IPR” (a third misnomer, “rights”) to avoid actual debate about suitability of pertinent words. I believe in trademarks. I see their purpose (when not overused, as often happens, granting monopolies on singular dictionary words). Copyrights are important too; they’re essential in management of software code, even if slanted as copyleft (which derives its ‘teeth’ from copyright law). Patents as originally envisioned (when conceived) typically pertained to physical inventions which required labour to produce and reproduce (or mass-produce), not mere thoughts/ideas.

“Patents as originally envisioned (when conceived) typically pertained to physical inventions which required labour to produce and reproduce (or mass-produce), not mere thoughts/ideas.”Terms like “IP” or “IPR” aren’t helpful; they’ve become propaganda terms that dodge a serious, adult debate and open-minded assessment of rationale. These equate a monopoly with a “right” and a “property”. Monopoly is neither of those things.

At the end of last month, on February 26th to be precise, August Debouzy’s François Pochart, Lionel Martin and Mathilde Rauline were lumping together totally and entirely different things. They used the word “IP” in their article titled “One IP standard to rule them all” and only later on they broke that down into what they actually truly meant:

All the useful data for all IP rights (patents, trademarks, designs, software …) as well as contracts are coded. Tags are provided for a very large majority of cases or facts: among them the social form of the applicant or its nationality, further the internal references to the case, the applicable law, the fact that it is a divisional application for patents or the language of the technical field for brands, the procedural deadlines, and many more.

Well, “patents, trademarks, designs” (and copyrights, trade secrets etc.) have different laws associated with them, so no serious debate can be conducted under a banner like “One IP standard to rule them all”.

“Terms like “IP” or “IPR” aren’t helpful; they’ve become propaganda terms that dodge a serious, adult debate and open-minded assessment of rationale.”This is symptomatic and quite so typical among law firms.

Jeffer Mangels Butler & Mitchell LLP’s Stanley M. Gibson wrote about Gemshares LLC v Arthur Joseph Lipton the other day, regarding challenges to validity of patents. Here’s a portion from the article:

GemShares LLC filed a patent infringement action against Arthur Lipton and Secured Worldwide, LLC (SWW) on U.S. Patent No. 8,706,513 B2 (the ‘513 patent). The ‘513 patent is entitled “global investment grade for natural and synthetic gems used in financial investments and commercial trading and method of creating standardized baskets of gems to be used in financial and commercial products.”

According to the district court, Lipton became a one-fifth owner of GemShares in 2013, while the patent application was pending. Lipton executed an operating agreement that included a term requiring him (and other GemShares members) to disclose and present to the company opportunities related to or likely to be competitive with GemShares’ business.

Putting aside the abstract-sounding patent (maybe a business method), what we have here is a couple of LLCs (typically entities that do not produce anything concrete) bickering over patents. The one sure thing is, lawyers will win. Lawyers will pocket a lot of money in the process, which is an attempt to challenge the patent’s validity and an (counter)attempt to outright block such a challenge. Shouldn’t it be a perfectly reasonable thing to question a patent’s validity? The US Supreme Court would indirectly decide on that quite soon in Oil States. Remember that, contrary to the nonsense from Crouch et al (regarding this case), patents are not property. Oil States is about IPRs, which challenge not “ownership” but the validity of some granted monopoly.

“Remember that, contrary to the nonsense from Crouch et al (regarding this case), patents are not property.”We are frankly appalled by some of the spin that comes from the patent microcosm. These people just aren’t honest; this dishonesty is necessary for them to continue to make buckets of money. There are upcoming lobbying events on the subject of IPRs, e.g. “Webinar on Paragraph IV Litigation and IPRs” and “FCBA Program on IPR Estoppel” (suppression of challenge) and guess who’s attending. These are all echo chambers of the patent ‘industry’. They want no patents challenged; they’re patent maximalists and absolutists.

Dealing with Solutran, Inc. v US Bancorp et al, CBM estoppel was last week considered by Docket Navigator. When a company sues you with a patent and when you show that the patent is obvious (and thus bogus), can that company then attempt to suppress or prevent judges from seeing the evidence of obviousness? As Docket Navigator put it:

The court denied plaintiff’s motion in limine to exclude evidence of obviousness because CBM estoppel did not apply to an entire statutory basis.

Got that? It’s like some of those ludicrous court cases where the defendant is prevented from presenting evidence in his/her defense. That happens a lot in military courts or in cases pertaining to “national security” (with the classic excuses that a legal defense might be to the detriment of “national security”, or in practice embarrass the state).

“Patents have, in general, gotten a bad name among programmers because they’re sick of software patents, which they neither needed nor wanted.”We often wonder how patent lawyers sleep at night knowing that their occupation often involves subversion of justice rather than defense of the system’s integrity. Maximalists are the opportunistic vandals. We’re not against patents (we never were!); for their legitimacy or perceived legitimacy (acceptance among the public) they need to follow strict rules and be open to scrutiny. A lot of the general public already shows flagrant disdain for copyright law because of copyright maximalists who just exploit copyright law for censorship, complete control of the Internet, mass surveillance (in the name of catching ‘pirates’) and so on.

Treat patent law with respect; or else risk breaking this entire cornerstone of so-called ‘IP’. Patents have, in general, gotten a bad name among programmers because they’re sick of software patents, which they neither needed nor wanted.

We Shall Soon Find Out Where Trump Appointees Such as Neil Gorsuch Stand on Patent Policies

Posted in America, Law, Patents at 11:47 am by Dr. Roy Schestowitz

Trump has already called “theft” something that patently isn’t (while putting the patent maximalists in charge of patents and trademarks)

Inside How the Federalist Society & Koch Brothers Are Pushing for Trump to Reshape Federal Judiciary
Reference: Inside How the Federalist Society & Koch Brothers Are Pushing for Trump to Reshape Federal Judiciary

Summary: Staff shuffles at top-level roles will soon reveal what Donald Trump’s changes mean to patent law and caselaw

THE USPTO is changing a little, especially at the top. While it’s not clear whether it’s leaning to the right or not, the new Director is indebted to Donald Trump, not just because his firm used to work for Trump but because Trump gave him the job. The same goes for Neil Gorsuch, who will soon have a say on patent cases at the US Supreme Court. Gorsuch too got his job from Trump (in spite of being incredibly young if not inexperienced for this role — rarely a problem in the Trump administration).

“The USPTO is changing a little, especially at the top.”The case of WesternGeco was recalled some days ago (a Supreme Court case regarding patent damages). We’re just not sure yet when a decision will come, but this one — like Oil States — is going to shed light on where Justice Gorsuch stands on patents (he — like Iancu — is a Trump appointee). There’s this recent portrait of Judge Evan Wallach. As one blogger put it: “The Court of International Trade commissioned a portrait of Judge Wallach a few years ago. Judge Wallach served on the Court of International Trade for sixteen years before being appointed to the Federal Circuit.”

We mentioned him earlier this year in relation to some key cases [1, 2] (last year also). He sometimes dissents on Alice/Section 101, which Oil States can impact in the enforcement sense (IPRs).

“While it’s not clear whether it’s leaning to the right or not, the new Director is indebted to Donald Trump, not just because his firm used to work for Trump but because Trump gave him the job.”As we last noted yesterday, the trolls’ lobby likes to attack judges whose stance the lobby disagrees with. We cannot help wondering if Dennis Crouch has a thing for Trump. He very recently posted a Trump “tweet” as an ‘article’ (Trump talks nonsense by the way; it’s not “theft”, it’s the wrong term to use). The day beforehand he wrote about the Stormy Daniels lawsuit and just like Trump he seems to have a grudge with ‘Mexican’ judges. Patently-O drifting further to the right (like Watchtroll)? These two sites seem to be pushing many articles in favour of the GOP, sometimes embracing a Conservative ideology these days. Here’s Watchtroll’s latest peeve/rant about the Patent Trial and Appeals Board (PTAB) and promotion of what seems like a software patents case.

Then there’s Patent Docs, a site which is also composed by patent maximalists and now writes about TPP, including a very short portion on “Patentable Subject Matter”.

“Iancu recently agreed to speak at an event organised by IAM (the patent trolls’ lobby), which isn’t a particularly encouraging sign.”Patent Docs has not been very active lately; it mostly does event listings, e.g. this conference, self-promotional stunts called “Webinars” [1, 2], an Intellectual Property Owners Association (IPO) Webinar/Calendar [1, 2], and another Webcast.

While we expect the US Supreme Court to rule in favour of patent reform (e.g. narrowing patent scope), even unanimously, we still wonder if Gorsuch is connected to the Koch lobby and Iancu is blindly loyal to his former employer, which profits from patent maximalism. It’s probably too early to tell, albeit predictions can be made based on their professional background and political orientation. Iancu recently agreed to speak at an event organised by IAM (the patent trolls’ lobby), which isn’t a particularly encouraging sign.

Trump’s USPTO Changes Patent Designs, Changes Director/Deputy Director, and Anticipat ‘Ranks’ Patent Examiners Based on How They Deal With Section 101

Posted in America, Patents at 11:13 am by Dr. Roy Schestowitz

Patent aggression encouraged by a nepotistic government that lacks empathy

Trump's USPTO

Summary: Today’s USPTO isn’t the same USPTO which was managed by Michelle Lee and anti-PTAB groups (proponents of software patents) have begun profiling examiners based on their stance on abstract/software patents — a form of neo-McCarthyism

THE USPTO, according to this, will be changing the ‘packaging’ of a monopoly. It does not address or tackle the real issues associated with some of them, e.g. monopolies on algorithms (software patents).

As a reminder that a patent maximalist is running the USPTO right now (they don’t care about patent quality because they love and profit from lawsuits), here’s what IAM wrote some days ago regarding Iancu and his new deputy:

While it is one of the highest profile jobs in the US patent system, PTO deputy director can also serve as a springboard to the top role. Michelle Lee did a short stint as deputy before being confirmed as director in early 2015, while George W Bush appointee Jon Dudas was in the role for two years before taking over as director in 2004.

Time will tell where Iancu will steer the USPTO. We hope we were wrong and we hope that Iancu will shield if not advance patent reform (though we strongly doubt it). What the USPTO needs is a person who can assess the needs of the people and the needs of the industry, not a bunch of law firms. Michelle Lee did things which really upset law firms, hence she was bullied and constantly shamed by them.

There are USPTO or USPTO-centric meetings/webcasts on the way, e.g. [1, 2, 3, 4]. Some of these are “free, open to the public, and will be webcast to include viewing sessions at USPTO regional offices in Dallas, Denver, Detroit, and San Jose.”

We are guessing that these will be attended mostly if not only by patent maximalists looking for lobbying opportunities.

Anticipat, in its fight for software patents and against Section 101, PTAB etc. (patent maximalism basically), now helps ‘spy’ on USPTO examiners. Two days ago it wrote this:

Before we get too deep, a brief foundation is in order. A “reversal rate” for a particular ground of rejection is how often the Board overturns an Examiner’s rejection on appeal. A reversal rate can be used for a given Examiner, art unit, tech center or global USPTO levels.

[...]

Take Examiner Borissov above as it relates to Section 101 patent-ineligible subject matter. Having a wholly reversed rate of 50%, this Examiner has a much higher reversal rate than his art unit, which has a wholly reversed rate of 12%. If the Board is overturning the Examiner on this ground that much higher than his art unit, the Examiners Section 101 rejections may not be as sound.

[...]

While only Section 101 – patent-ineligible subject matter is shown, this breakdown is available for every ground of rejection.

We have already seen some ugly witch-hunts by patent maximalists against particular PTAB staff and USPTO examiners. Anticipat can only worsen such things. It’s almost ad hominem and it targets ‘low-level’ staff.

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