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04.04.18

The Patent Trial and Appeal Board (PTAB) Breaks More Records, This Time Number of Post-Grant Review Petitions

Posted in America, Courtroom, Patents at 9:59 am by Dr. Roy Schestowitz

Summary: The latest statistics (March) from PTAB show that things are going well and only on rare occasions does the Federal Circuit (CAFC) stand in the way; the US Supreme Court is expected to defend PTAB very soon

THE improved quality of patents at the USPTO gives reasons for optimism; the same cannot be said about the EPO unless António Campinos changes something fast (Battistelli won’t change a thing). Imagine the EPO adopting a PTAB-like mechanism (it already has the Boards of Appeal) that can eliminate thousands of patents rather quickly, especially patents granted in a hurry throughout the Battistelli era. Oppositions already work to that effect, but not post-grant.

Anyway, this latest PTAB round-up says in the summary: “Patent Trial & Appeal Board developments in March included the most post-grant review petitions filed in a month, a predicted switch to the Philips standard, two informative decisions involving 35 USC § 325(d), and the Board instituting trial to a derivation petition for the first time” (also remember that the USPTO recently raised the price of PTAB IPRs; evidently that wasn’t enough to discourage/slow down the constant growth in petitions which tackle bad patents, i.e. those wrongly granted by the USPTO).

Are PTAB IPRs going away? No way!

Even a patent maximalist like Dennis Crouch does not think so. Hours ago he wrote (again): “We all await the outcome of Oil States. Conventional wisdom is that the case will be a dud and that the Supreme Court confirm the viability of Inter Partes Review proceedings.”

Oil States‘s outcome won’t be much of a surprise. So the anti-PTAB brigade is looking for other strategies by which to slow down PTAB. Here’s Michael Borella with another cherry-picked opinion (already mentioned by Crouch and Kluwer Patent Blog earlier this week).

CAFC judges did, in this particular case, decide against a decision by PTAB, which is rare. Judge Newman, however, found that PTAB did its job properly. Borella put it like this:

Apple argued before the PTAB that “because the mobile unit transmitters in Natarajan operated in low duty cycle RF bursts, it would have been plainly obvious to a person of ordinary skill in the art to have the base station operate in an analogous manner.” Apple further contended that “because the base and mobile stations have the same physical structure, it would have been no more than using a known technique to improve similar devices in the same way.”

[...]

Writing in dissent, Judge Newman took issue with two aspects of the decision. First, she would have found that the PTAB did explain its reasoning regarding the obviousness of the claims in a sufficient fashion. Essentially, Judge Newman believed that the PTAB incorporated parts of Apple’s arguments by reference, and that these arguments were uncontested by DSS. (At the end of the day, the majority seems to object to the PTAB’s conclusion that the duty cycle of the mobile units would also work for the base station, while Judge Newman found such an outcome plausible.) Second, she asserted that the proper remedy for finding the PTAB’s reasoning to be inadequate was to vacate and remand the case for further review by the PTAB.

While the decision/opinion does not bode well for PTAB, it’s actually a rarity, but this is the kind of thing that the anti-PTAB brigade will highlight ad infinitum, as usual.

There’s meanwhile this new report (less than a day old) about “seeking to have seven of Nasdaq’s patents canceled.” Notice the part about Alice:

Nasdaq Inc. is trying to claim that it invented the concept of options trading, rival Miami International Holdings Inc. said in a series of petitions seeking to have seven of Nasdaq’s patents canceled.

[...]

Miami International is trying to use the patent office to dispense with an infringement lawsuit that Nasdaq filed against it in September in federal court in Trenton as it can be faster, easier and cheaper to invalidate a patent through the review board than in court.

In each of the seven petitions filed in with the review board in the past week, Miami International said the patents cover an “abstract idea” and cites a 2014 U.S. Supreme Court ruling that has led to invalidity rulings against hundreds of software patents.

Those are software patents or patents on business methods. The only thing going in their favour is the number of them; it’s much greater a burden when one needs to invalidate all seven of them.

It remains to be seen how many of these ‘financial’ patents PTAB will render worthless in the coming years. Earlier today there was a self-promotional ‘article’ from Martin M. Zoltick and Mark T. Rawls (Rothwell, Figg, Ernst & Manbeck, PC). These lawyers love talking about blockchains, Bitcoin or cryptocurrency in general. It’s a lot of contemporary hype and all they can drone on about is patents, trademarks etc. Here they are name-dropping “blockchain”, “FinTech” and all kinds of other names/words:

If the past is any indication of what is to come, those who invest in cryptocurrencies, such as Bitcoin, Ethereum and Litecoin, just to name a few, had better buckle-up. It is surely going to be a wild ride as more cryptocurrencies emerge and the growing array of use cases blows hot and cold. The extreme volatility of cryptocurrencies themselves does not appear to be a phenomenon of the patents directed to the technologies underlying these digital currencies and their ecosystems. As the flurry of innovation continues and the cryptocurrency ecosystem becomes increasingly more mainstream, expect to see exponential growth in the cryptocurrency and blockchain-related patent landscape as financial services companies, FinTech startups and a growing number of tech companies from a wide range of industries all vie for a dominant position.

As we’ve been saying for years, all those patents on digital currencies are likely void. GTX Corporation is bullying indie developers/startups using such patents because it knows that they’re poor enough to do anything they can to avoid a court battle (one in which such patents would likely get trashed).

In summary, PTAB remains relevant, its role is expected to soon be cemented by US Justices, and it is actively being used to thwart abusive litigation with abstract patents (typically software patents or patents on business methods).

The European Patent Office (EPO) Will Need to Acknowledge It Has a Patent Quality Issue, Then Tackle It or Perish

Posted in Europe, Patents at 9:12 am by Dr. Roy Schestowitz

EPO examiners know there's a problem, but the management continues to deny it

EPO quality letter

Summary: António Campinos is coming within less than a quarter of a year and unless he’s willing to acknowledge a decline in patent quality and then do something about it, the Office is doomed and Europe will suffer

THE USPTO has already recognised the problem with its patent quality, which is why PTAB now corrects things, invalidating a great number of patents and setting an example which itself acts as a deterrent against trigger-happy lawyers. The EPO, on the other hand, keeps denying the problem (when we say EPO we mean the management; examiners repeatedly do highlight the problem).

“This merely devalues patents, making them impossible to navigate.”What will Campinos do in July? Will he too deny the problem, just like his predecessor (who set him up for the job)? Probably.

Kluwer Patent Blog has just published “China is to Establish Patent Linkage,” a long article by Hui Zhang, Xiang Li, Dani Min and Jiao Yuxin. China is basically granting some truly terrible (low-quality) patents just for the sake of numbers (we’ve always assumed as a bargaining chip in the face of sanctions, fines, trade wars); do we want to link them to Europe really? Do we want the likes of Battistelli to imitate the Chinese system? With well over a million patent filings per year? This merely devalues patents, making them impossible to navigate.

More invalid EPO-granted patents have just been mentioned by Brian Cordery and Rachel Mumby (Bristows) in the patent maximalists’ blog, Kluwer Patent Blog. Notice the fate of EP’766:

Wise readers will know that when it comes to matters of the heart, it is often best not to interfere. Indeed, the Court of Appeal in its recent judgment in Edwards Lifesciences v Boston Scientific [2018] EWCA Civ 673, decided not to interfere with HHJ Hacon’s judgment that of the two patents in suit relating to replacement heart valves, one was valid and infringed (EP’254) and the other invalid (EP’766).

One must ask why EP’766 was granted in the first place. It was then used in a lawsuit. If that lawsuit relied only on this one patent, it would be frivolous and expensive for both sides. Also mind yesterday’s press release regarding a patent on disposable sleep sensors. The company said:

Nox Medical, a leading sleep diagnostic medical device company and innovator has achieved a major success in EPO opposition proceedings initiated by Natus concerning one of Nox Medical’s key patents, EP 2 584 962 B1, covering the biometric connector on its disposable RIP belts. The European Patent Office (EPO) has concluded that Nox Medical’s European patent on the Nox RIP Belts is valid as amended in the opposition proceedings. Nox Medical is confident that its patent will also survive the appeal proceedings.

We typically focus on software patents in Europe. But it’s interesting to see that in some other domains such as replacement heart valves the patents (EPs) are found to be invalid.

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