04.15.18
IAM, Patently-O and Watchtroll (the Patent Trolls’ Lobby) Try to Stop Patent Oppositions/Petitions (PTAB)
Chasing PTAB in vain as neither courts nor the patent office will disagree with PTAB
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.
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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.
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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.
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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? █
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