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04.15.18

IAM, Patently-O and Watchtroll (the Patent Trolls’ Lobby) Try to Stop Patent Oppositions/Petitions (PTAB)

Posted in America, Courtroom, Patents at 3:40 pm by Dr. Roy Schestowitz

Chasing PTAB in vain as neither courts nor the patent office will disagree with PTAB

Chase

Summary: In spite of fee hikes, introduced by Iancu’s interim predecessor, petitions (IPRs) at the PTAB continue to grow in number and the patent maximalists are losing their minds over it

THE previous post focused on the USPTO‘s evacuation from software patenting, or at least courts’ determination to do so. Software patents are rapidly deteriorating and they gradually go away. Some languish until their expiry and some get invalidated before expiry. So their value is very low. At least in the US…

“Software patents are rapidly deteriorating and they gradually go away.”PTAB often receives much of the credit, but without 35 U.S.C. § 101 (and Alice which led to its current form) not much would have changed. We are still seeing § 101 invoked inside and outside courtrooms. It happens pretty much every day. In Sound View Innovations, LLC v Hulu, LLC a US district court says “data organization patent encompassed patentable subject matter,” but we think it’s a software patent and Hulu should appeal to CAFC. CAFC is a lot stricter than district courts and would likely invalidate these crappy patents. This Docket Report says:

The court denied without prejudice defendant’s motion to dismiss because plaintiff sufficiently pleaded that the asserted claims of its data organization patent encompassed patentable subject matter and that the claims did not lack an inventive concept.

This isn’t the end of that. There’s further recourse.

“Lloyd is like a lobbyist of software patents and patent trolls in the United States.”Meanwhile at IAM, Richard Lloyd does not one but two pieces about Iancu [1, 2]. Lloyd is like a lobbyist of software patents and patent trolls in the United States. First he echoes Watchtroll's talking points about Delrahim, who is a lobbyist that Trump turned into an official. To quote:

As President Trump has slowly filled the key positions in his administration it has become clear that US IP policy over the next few years is going to look very different to the positions taken by the Obama White House (particularly in its second term). That’s perhaps not surprising given that one of the motivating forces that seems to guide the current commander-in-chief is to do the opposite of whatever his predecessor did. This week in Washington DC, in two separate speeches, USPTO Director Andrei Iancu and Department of Justice antitrust chief Makan Delrahim, underlined just how things are likely to change

Then, citing LeadershIP (legitimacy of the USPTO harmed by it), Lloyd goes even further, citing the US Chamber of Commerce and other radical elements. This IAM lobbyist (the patent trolls’ lobby) is again pressuring Iancu, whom he recently visited and incited against PTAB, to crush patent quality. Twice in a day! The latter post says:

The speech given earlier this week by USPTO Director Andrei Iancu at the US Chamber of Commerce on the current state of the US patent system has quite rightly attracted a fair amount of press (you can see our take here). He returned to some familiar themes around increasing predictability in the system, but also stressed more explicitly than ever before that the system was at an “inflection point” and that the US could not continue down the same path if it was to maintain global economic leadership.

[...]

Also featuring on the LeadershIP panel was Jamie Simpson a staffer for Senator Chris Coons, who is the author of the STRONGER Patents Act which has proposed numerous changes to PTAB procedures (former CAFC Chief Judge Paul Michel was the fourth panellist). According to Simpson, of the 10 PTAB changes in the Act, seven could be implemented by Director Iancu. The question is: will he decide to do so?

These lobbyists just won’t rest and won’t leave Iancu alone until he crushes PTAB. They try to turn Iancu into IAMcu.

Revisiting the same tricks as last year, Patently-O is back to some PTAB bashing in an effort to slow down PTAB and CAFC. It’s just the same old talking points reused:

The Federal Circuit continues to aggressively issues R.36 No-Opinion Judgments as a mechanism for more efficiently deciding appeals.

I was looking forward to the outcome in an interesting Gov’t vs Gov’t takings case — Mississippi County, Missouri vs. USA. However, rather than issuing an opinion, the court simply affirmed-without-opinion as permitted under Federal Circuit Local Rule 36.

It’s infeasible to issue written opinions for so many cases. We wrote many articles last year (responding to this old canard from Mr. Crouch).

“It’s infeasible to issue written opinions for so many cases.”Sanjeev Mahanta, helping Watchtroll with some PTAB bashing a few days ago, went back no less than 40 days! Watchtroll is really so desperate that it revisits Knowles Electronics v Cirrus Logic — a decision from the first of March!

Here’s what Mahanta wrote:

Knowles Electronics LLC v. Cirrus Logic, Inc. (Knowles), decided on March 1, 2018, presented the Federal Circuit with an opportunity to address whether the Patent Trial and Appeals Board (PTAB) was precluded from construing a claim term that had already been construed by the court in a prior decision. The court let the opportunity go. In the preceding inter partes reexamination, the PTAB had taken the position that based on precedent, the PTO was not bound in reexamination proceedings by claim constructions produced by a court. The majority did not contradict the PTAB, a reflection perhaps of the fact that, given the difference in the method of claim construction between the PTO and the courts, the PTAB’s position was not wholly incorrect. In effect, the decision maintains the status quo that collateral estoppel does not arise in patent cases against the PTO.

This inter partes reexamination/review is no scandal at all. But whatever the case, one can count on Watchtroll (Gene Quinn et al) to cherry-pick and nitpick. Two days earlier Quinn picked a decision from 3 weeks ago (DSS Technology Management v Apple). Just because he’s running out of material with which to make PTAB look bad. The high(er) court, CAFC, agrees with PTAB almost all the time. They only write about exceptions to that. Lies by omission? Lobbying tactics? Whatever it is, the motivations are clear and it’s not journalism. The patent maximalist Amanda G. Ciccatelli, who has been writing in patent maximalists' media for a number of years and is nowadays writing in Watchtroll, seems concerned that quality of patents is improving and fewer applications get filed (for her faux business, based on pseudo-innovation).

“The high(er) court, CAFC, agrees with PTAB almost all the time.”Nowadays even Patent Docs gets involved. It has not taken a break from PTAB bashing. It spent a lot of time/effort promoting a patent “scam”. Several days ago Andrew Williams focused on just 2 among thousands of petitions (a drop in the ocean) to extrapolate and claim “Aberration”. The problem is, 2 among thousands is not statistically meaningful at all; the anti-PTAB brigade will cling onto anything at this stage. Here is what Williams wrote

The U.S. Patent and Trademark Office appears to have taken the position that neither party has the burden of persuasion with regard to Motions to Amend after the Aqua Products v. Matal en banc decision (see “Motions to Amend at the PTAB — Does Anyone Have the Burden (And Will That Change)?”). It was unclear, however, whether this position would have any practical impact for parties appearing before the Patent Trial and Appeal Board. Correspondingly, the Board’s grant of two Motions to Amend last month is revealing. These are the first two motions that were granted outright since Aqua Products, both of which occurred in IPRs entitled Apple Inc. v. Realtime Data LLC, with both being directed to U.S. Patent No. 8,880,862. Before this, the Board had only granted-in-part two additional motions: (1) Taiwan Semiconductor Manufacturing Co. v. Godo Kaisha IP Bridge (IPR2016-01249) at the end of last year (see “More Aqua Products Fallout — Taiwan Semiconductor Manufacturing Co. v. Godo Kaisha IP Bridge”); and (2) Polygroup Ltd. v. Willis Electric Co. (IPR2016-01613) in February (although to be fair, the contingent part of this motion was denied because the challenged claims were found to not be unpatentable). Clearly, the flood gates have not been opened with respect to claim amendments in IPR proceedings because there have still been many more motions denied than granted (even in part). But these two Apple v. Realtime Data cases could be instructive for Patent Owners seeking to amend claims in a post-Aqua Products world, especially with respect to whether the petitioner bears the burden with regard establishing the unpatentability of the substitute claims.

[...]

Therefore, even though the Board did conclude its grant of the Motion to Amend by noting “that when considering the entirety of the record before us, we determine that the preponderance of the evidence fails to establish that the proposed substitute dependent claims are unpatentable,” it did appear to put the burden on petitioner to reach that conclusion. It is unclear whether this case is an aberration, or whether there will be more emphasis on the burdens assigned to petitioners in Motions to Amend going forward. It is also unclear whether this case will make it easier for patent owners to get similar motions granted in the future. Nevertheless, some of the language found in these two cases should be considered persuasive for patent owners to use going forward.

“It is unclear whether this case is an aberration,” he notes, basically urging patent aggressors (or plaintiffs or holders) to attempt similar tricks. We have repeatedly explained why the concept of amending patents after they got granted is ridiculous and may perhaps justify moving to a Wiki-type knowledgebase rather than the current system.

“We have repeatedly explained why the concept of amending patents after they got granted is ridiculous and may perhaps justify moving to a Wiki-type knowledgebase rather than the current system.”PTAB’s elimination of bad patents is going along nicely and improving over time. Even PTAB-hostile groups unwittingly admit that PTAB faces fewer appeals or at least shorter queue/backlog. Whatever is associated with appeals (not oppositions) is decreasing:

Perhaps one of the most interesting speakers at the PTAB Bar Association annual conference on March 22, 2018 was Chief Judge Ruschke. Ruschke highlighted several statistics at the Board including the ever-diminishing backlog for ex parte appeals. Noticeably proud of this effort, which we report on below, Ruschke deserves credit for being at the helm of the PTAB during this time of a historic drop in appeals backlog.

Several months back, we reported on the dip in ex parte appeals backlog comparing fiscal year 2016 with fiscal year 2017. Since then, the USPTO recently released a chart, of which Chief Judge Ruschke spoke, that tracks a moving monthly average for February 2018 with February 2017. Here is the new chart available here at the USPTO.

[...]

The appeal backlog is calculated as the amount of time from when the appeal is forwarded to the Board (shortly after an Examiner’s Answer is issued) until a final decision is made. As this backlog increasingly shortens, the decision to pursue an appeal becomes more attractive. This, in combination with recent increases in USPTO fees that disproportionately makes more expensive pursuing continuing prosecution with RCEs. This also, knowing that some grounds of rejection statistically get overturned at higher levels than you might think. You can see for yourself how your specific grounds of rejection are handled at the Board to guide your particular prosecution strategy.

As we pointed out in our last article, citing the same site, rates of success in appeals are appallingly low — so much so that it’s barely worth appealing at all (based on business method patents at least). Our prediction is that this will improve the productivity levels of PTAB. How many thousands of IPRs will there be this year? In spite of the fee hikes introduced some months ago by interim Director Matal?

The Patent Trial and Appeal Board (PTAB) is Ending Software Patents One Patent at a Time

Posted in America, Patents at 1:44 pm by Dr. Roy Schestowitz

Software patents now in a deadlock

A command line

Summary: At an accelerating pace and with growing determination, PTAB (part of AIA) crushes patent trolls and software patents; the statistics and latest stories speak for themselves

THE USPTO, owing to the Leahy-Smith America Invents Act (AIA) and the Patent Trial and Appeal Board (PTAB), improves patent quality, but patent maximalists aren’t happy. To them, patent quality is a threat, not a goal. Patent Docs, a site of patent maximalists which we mentioned in our previous post, has just promoted this event (‘webinar’) which explores “the AIA’s impact on an inventorship determination?”

What we’re expecting to happen there is based on who attends and speaks; it’s an event of patent maximalists.

One patent maximalist, writing in his blog yesterday, showed patent backlog decreasing as well as (apparently) the number of applications and patents too. Some sources say that this year will see a turnaround in the sense that the number of patents granted will have declined. What’s not declining is post-grant reassessments and invalidations.

According to Docket Navigator, “411 petitions were filed in the first quarter, up on 373 petitions in the fourth quarter of 2017,” so PTAB rises still, smashing bogus patents. As Managing IP put it on Thursday:

Managing IP analyses Docket Navigator data on PTAB petitions filed in the first quarter of 2018 to reveal the most active entities and law firms

Patent Trial and Appeal Board (PTAB) filing for the first quarter arrested a downward trend. Some 411 petitions were filed in the first quarter, up on 373 petitions in the fourth quarter of 2017 and 393 in the third quarter….

Very good. PTAB is about cracking down on patents rather than granting more and more of them (irrespective of merit). The more of PTAB, the better patent quality will become.

The patent reform (AIA) made programmers a lot happier and capable of going on with a freedom to operate (as in develop), not to litigate or be sued.

“Let’s debunk myths,” HTIA wrote some days ago. “Patent reform has not harmed innovation. The 300 U.S. companies who have invested the most in R&D have increased R&D spending by 44% since 2012.”

This links to their press release from Dec 14th (2017). They’re also linking to an article from January, adding: “If you think your business is too big or too small or too off the radar to fall prey to a patent troll, think again. Your business can be a target — & the damage spreads far beyond the office of your general counsel.”

HTIA is backed by technology companies both large and small. Not law firms; HTIA is like a lobby against these patent maximalists.

AIA alone did not fix things, but conjoined with Alice and IPRs it became a software patents-smashing machine. We love it! The patent maximalists hate it and they have set up lobbying groups against it. Some even try to create PTAB-bashing entities like Anticipat. In its latest post it admits that about 90% of the time IPR (patent challenge) appeals will fail and thus rubbish abstract patents. These will remain rubbished even upon appeal, so why bother? To quote:

As seen from Anticipat’s daily recap emails, last month the PTAB reversed a slew of abstract idea rejections. As already discussed in our blog post, several of these reversals related to business method applications. Using Anticipat’s Research database to look even beyond last month, we see interesting results relating to trends of business method appeals outcomes.

The term “business method” has been broadly defined as “a method of operating any aspect of an economic enterprise”. Tech center 3600 includes broad categories of business methods. For example, three sets of art unit groups are listed below.

[...]

For the past year, these abstract idea rejections for business method applications have been consistently reversed at about 10%. This is a very low reversal rate compared with all grounds of rejection. But as applicants choose to appeal rejections of their business method applications, even if the reversal rate stays low, it still means that a large number of such rejections will get reversed. That is, a 10% reversal rate of 120 applications still yields 12 reversals even if it took a lot of applications to get there.

Business method applications are taken into account above; but Alice goes further than this and impacts software patents, too. Don’t believe the spin about software patents making a comeback. There’s absolutely no such comeback. Peter Leung, writing in Wall Street media (Bloomberg), becomes a megaphone of the patent microcosm’s spin to that effect; he’s just name-dropping Berkheimer and Aatrix (or 'pulling a Berkheimer'), as if these mean much for CAFC and PTAB (old and forgotten).

Quoting Leung:

A set of recent decisions by the nation’s patent appeals court may make it more difficult for defendants to score quick victories in infringement cases.

The U.S. Court of Appeals for the Federal Circuit has rejected several trial court rulings disposing of cases in their early stages, criticizing lower courts for not doing enough to analyze relevant factual disputes.

Those decisions are warning shots to trial courts that the lower courts shouldn’t gloss over factual disagreements when considering whether a patent covers eligible subject matter. Trial courts may become reluctant to hand defendants early victories that allow them to avoid lengthy, costly litigation.

These defendants are victims a lot of the time; it’s not even about whether they infringe or not but about whether the claimant has a bogus patent which should never have been granted. The patent office has a responsibility to clean up the mess it created.

Patent maximalists like Mr. Gross continue with their anti-Alice/PTAB rants. “Inconsistent PTAB §101 rulings,” he alleges. “SAME applicant (Visa) found eligible by 1 panel bc “claims as a whole is directed to an improved encryption device” e-foia.uspto.gov/Foia/RetrieveP… but NOT by different panel: e-foia.uspto.gov/Foia/RetrieveP… bc “computer is used as a tool in its ordinary capacity”…”

As if no court ever changed its mind? Ever? Based on new evidence or different grounds?

It’s worth noting that PTAB still stops a lot of software patent trolls, such as those that Mr. Gross habitually promotes and writes for. The notorious patent troll Personal Audio, for example, is not quite dead yet. But its patents may be, thanks to PTAB. Unified Patents’ Robert Jain wrote about what happened 4 days ago:

On April 11, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 9,280,886 owned and asserted by Wireless Monitoring Systems, LLC, an NPE controlled by Bradley D. Liddle (an individual connected to Personal Audio and several other patent assertion entities). The ’886 patent, directed to circuit monitoring devices (such as those employed in motion detectors, smoke detectors and the like), has been asserted in multiple litigations against such companies as AT&T, Comcast, ADT, Frontpoint Security, CenturyLink, Charter Communications.

At Patent Docs, Andrew Williams mentioned Personal Audio, LLC v Electronic Frontier Foundation (EFF) — a very famous case where the PTAB disarmed a troll. Williams talks about Luitpold Pharmaceuticals, Inc. v Pharmacosmos A/S and takes note of the decision:

Which parties to an IPR proceeding have standing to either appeal or participate in an appeal from an adverse final written decision by the Board? The Federal Circuit had previously held that a petitioner that did not otherwise have Article III standing could not appeal an adverse decision (Phigenix, Inc. v. Immunogen, Inc.), but that a successful petitioner was “not constitutionally excluded from appearing in court to defend” a decision (Personal Audio, LLC v. Electronic Frontier Foundation). Today, in Luitpold Pharmaceuticals, Inc. v. Pharmacosmos A/S, the Federal Circuit answered in the negative the question whether a petitioner otherwise without standing could cross-appeal a final written decision in which some of the claims were determined to be patentable. In a two-page order, the Court stated that “[b]ecause Pharmacosmos has not established an injury fact sufficient to confer Article III standing,” it was dismissing the case. However, because the order is nonprecedential, and more importantly because there was no discussion or analysis as to why Pharmacosmos lacked standing, it is unclear what the broader implications of this case will be. Nevertheless, by looking at the underlying briefing and oral argument, we might be able to glean some information about the contours of what is required to find petitioner standing for IPR proceedings.

So not much can be learned from it and it’s nonprecedential, too.

Going back to Unified Patents, another patent troll, IP Edge, is hiding behind proxies like Kaldren and blackmails a lot of companies. PTAB to the rescue? It seems so:

On April 11, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 6,820,807 owned and asserted by Kaldren, LLC, an IP Edge subsidiary and well known NPE. The ’807 patent, directed to formatting digital data into an encoded pattern (such as a QR code), has been asserted against 39 different companies since only March 2017 including such companies as JP Morgan, Snap, HSBC, General Mills, J.D. Power and Associates, Allstate, and Blue Cross Blue Shield.

It’s a software patent. It seems like the patent holder, a troll, has targeted too many angry firms and the punishment will be invalidation of the patent. Such is the post-AIA reality. Software patents, especially if asserted against anyone (mere demands/threats, not just lawsuits), will almost always perish.

Academics and Think Tanks for Patent Maximalism

Posted in America, Europe, Law, Patents at 11:21 am by Dr. Roy Schestowitz

Theodore R. Bromund, Ph.D.

Summary: Right-wing think tanks and impressionable academics continue to lobby for patent maximalism, rarely revealing the funding sources and motivations; in reality, however, such maximalism mainly helps large (already-wealthy) corporations, monopolists, and law firms

THE UNITED States may have a serious problem with money in politics/policy. Money buys law. It buys legislation. It also buys influence/lobbying from academia. It’s all about money. This is why the US ended up with terrible patent policy and up until a few years ago (owing largely to a court which is hard to corrupt) there was no hope. A bunch of large and powerful law firms had a grip on the patent system. This grip is nowadays slipping away and in response to it they make a public showing of disdain against the changes. Sometimes they also bash courts and judges.

As is typical for a Sunday, Patent Docs lists some patent-centric events, streams, conferences (symposium/webcast/other), lobbying etc. It’s nothing but patent maximalism up on display.

Some of the topics of upcoming events/webinars promoted by Patent Docs today: Ethics (in patent law), double patenting and “Patent Ownership Rights”. They're not ownership or even a right. Patent Docs also mentioned this ‘summit’ on biosimilars. It disclosed that “Patent Docs author Kevin Noonan is a co-chair of this conference” (shameless self-promotion perhaps).

“As is typical for a Sunday, Patent Docs lists some patent-centric events, streams, conferences (symposium/webcast/other), lobbying etc. It’s nothing but patent maximalism up on display.”The Intellectual Property Owners Association (IPO), a patent extremists’ front group that lobbies for software patents and other bad things, has a session/presentation/topic titled “What Future Does the UPC Hold for Us?”

Well, the UPC has no future. It’s dead. Who’s behind this “2018 European Practice Committee Conference”?

“Who’s behind this “2018 European Practice Committee Conference”?”Introducing the aspect of gender when it comes to patents isn’t anything new. It’s not illegitimate, but sometimes the angle is interjected for someone’s gain (not women’s but the patent microcosm’s). Yale SOM has something to that effect.

Yale has this new article by Jyoti Madhusoodanan, who explores the relative lack of patents from women or rather than low allowance (acceptance/grant) rates. As one patents expert (who is female) put it: “If inventor’s gender is truly impacting allowance rates, that’s very troubling. Hope @uspto will respond to this. Note that study does not seem to consider role of patent attorney. Lay inventor is often largely unaware/misguided re a patent’s prosecution.”

From the article itself:

In the United States, women earn half of the doctoral degrees in science and engineering. But when it comes to patenting their inventions, they trail far behind men: Only 10% of patent-holders are women. Even in the life sciences, where women earn more than half of new PhDs, only 15% of inventors listed on patents are women. According to a new analysis by Kyle Jensen, Balázs Kovács, and Olav Sorenson of Yale SOM, published in Nature Biotechnology, this disparity stems in part from how patents are obtained and maintained over time.

Gender-based disparities have been found in orchestras, academic publication, and many other areas. But understanding the imbalance with patents has been historically difficult because the U.S. Patent and Trademark Office (USPTO) only offered information on one patent at a time. A recent bulk data release enabled Jensen, Kovács, and Sorenson to trace the histories of 2.7 million patents issued between 2001 and 2014. They analyzed maintenance fee payments, prosecution histories, and the full text of patents, which revealed the interactions between inventors and examiners as well as how a patent claim was altered during the process of filing.

Whether the issue is the USPTO itself (maybe its recruitment policies play a role) is not a subject we wish to entertain here because this entire topic is sensitive and divisive. But it’s probably worth reading into it, making or basing one’s judgment on underlying figures/statistics. Is the solution to hire more women? Or to grant more patents to women? These are not questions that are easy to answer without upsetting some groups, but at the end of the day patents should be judged solely based on their merit.

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