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03.20.18

BIO, MDMA and PhRMA Are Pushing the PTAB-Hostile STRONGER Patents Act While IAM and Patently-O Continue to Bash PTAB

Posted in America, Deception, Patents at 8:41 am by Dr. Roy Schestowitz

The only “death squad” (their term) is the patent extremists trying to ‘shoot down’ PTAB and its judges

Death squad

Summary: The patent microcosm, which compares the Board to the above (crude analogy from Judge Rader and other patent extremists), is still trying to kill inter partes reviews (IPRs), in effect overlooking its own hypocrisy on the matter (they don’t want patent justice, they just want to metaphorically ‘shoot down’ the judges)

THE USPTO is improving things with inter partes reviews (IPRs), so it’s rather hard to imagine that anyone other than patent maximalists would wish to interfere.

We were a little stunned to see the STRONGER Patents Act mentioned again yesterday. We have hardly heard anything about it for nearly a year. What the CCIA’s Josh Landau is saying here, along with that corny zombie silhouette, is that “Like A Horror Movie Villain, The STRONGER Patents Act Returns,” but as far as we can see/tell, it is still pretty much dead and not mentioned anywhere except Koch-funded think tanks (they mention it on occasions, usually in tweets). Landau wrote:

Since the STRONGER Patents Act was introduced last year, it’s basically been a dead topic. Maybe that’s because the bill would gut the extremely successful inter partes review procedure and overturn more than a decade of Supreme Court precedent, crippling the ability of small and medium enterprises to develop products without fear. It would even make it legally beneficial to develop products anywhere other than the United States – a sort of R&D inversion scheme, enshrined in statute.

So, given that the STRONGER Patents Act will harm innovators and drive R&D overseas, why are Reps. Stivers (R-OH) and Foster (D-IL) planning to bring the STRONGER Patents Act back and introduce it in the House on Tuesday?

[...]

Who Greenlighted This Sequel, Anyway?

So who’s supporting this bill, despite the harm to American innovation?

PhRMA, the pharmaceutical industry lobby. BIO, the biotech version of PhRMA. MDMA, the medical device version of PhRMA. I can’t imagine why they want to make it harder to invalidate the patents they use to keep generic companies off the market.

The Qualcomm-funded Innovation Alliance? InterDigital? Companies that make their money by licensing patents under threat of litigation? I’m sure Qualcomm and InterDigital would be unhappy if they could bar sales of iPhones entirely based on a patent related to a small part of a component that costs $20.

And there’s one other party lurking in the background—litigation finance. Third-party financial companies that underwrite patent litigation on spec, hoping to share in any damages awarded. Stivers and Foster aren’t on the Judiciary Committee, the House committee with jurisdiction over patent issues. They’re on House Financial Services.

And litigation finance companies making money by betting on patent litigation would like to make their business a less risky bet by making it harder to challenge patents and easier to extract royalties that exceed the value of the patent using the threat of injunctions.

A bill that will keep drug prices high by sending research overseas and increase everyone’s prices to reward financial speculators?

That’s a real-life horror story.

At least we know who’s behind it.

Landau is now being cited by Joff Wild (IAM). This new guest post cites CCIA/Patent Progress and starts by saying that “one thing everyone can agree on, surely, is that IPRs have saved companies billions of dollars…”

As Landau points out (above), he “can’t imagine why they want to make it harder to invalidate the patents they use to keep generic companies off the market.”

If justice is what one cares for, PTAB is great. It makes access to justice better.

“Well, maybe not.”

So says IAM’s guest post. It suits IAM’s PTAB-hostile narrative.

“IP Edge managing director Gautham Bodepudi,” Wild continues, “has been doing some calculaitons and, he claims, while some parties do indeed make big savings, overall the results are not particularly impressive. This is Gau’s view, not necessarily ours, so we’d be very keen to hear from anyone who thinks he may have missed something. Anyway, here is what he has to say.”

It’s hardly surprising that a patent trolls’ lobby (IAM) would relay things like that. It also uses the “death squad” canard, in essence equating/comparing a court to a firing line and judges to people who execute. It’s also unsurprising that Patently-O, as of yesterday, cherry-picked a PTAB case because it’s one of those rare cases where CAFC does not fully agree with PTAB. In short, Dell uses an IPR to tackle dubious patents that the USPTO probably oughtn’t have granted. This is what happened next:

In its original decision, the PTAB cancelled claim 3 of Acceleron’s U.S. Patent No. 6,948,021 (inter alia). That holding was based upon an argument first presented by Dell at Oral Arguments (over Acceleron’s procedural objections). The Federal Circuit in 2016 vacated that first PTAB decision — “the Board denied Acceleron its procedural rights by relying in its decision on a factual assertion introduced into the proceeding only at oral argument, after Acceleron could meaningfully respond.”

[...]

On appeal again, the Federal Circuit has now affirmed the validity finding — holding that the Board properly ignored Dell’s argument – even though the result is that we confirm the validity of a patent claim that is thought to be invalid. The problem for Dell is that the procedural rules are clear – “No new evidence or arguments may be presented at the Oral Arguments.” (Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756 (Aug. 14, 2012)).

The primary holding here is that the PTAB was not required to allow for any re-briefing of the arguments and evidence.

This is that same old propaganda pattern from Crouch. He likes to pretend that PTAB is some very unfair, biased court. He only covers cases that support such a narrative while discarding the rest. He has done so over a hundred times in the past year alone, probably in an effort to sway the opinion of Justices who are about to conclude Oil States.

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