04.19.18
The Patent Microcosm, Patent Trolls and Their Pressure Groups Incite a USPTO Director Against the Patent Trial and Appeal Board (PTAB) and Section 101/Alice
Trying to make it sound like patent maximalism is a patriotic duty
Summary: As one might expect, the patent extremists continue their witch-hunt and constant manipulation of USPTO officials, whom they hope to compel to become patent extremists themselves (otherwise those officials are defamed, typically until they’re fired or decide to resign)
THE US Supreme Court, SCOTUS, won’t stop PTAB (based on Oil States predictions) and it stands firmly behind Alice. So the patent extremists now lean hard on the USPTO, in particular its new Director, who himself came from the patent microcosm.
We wish to remind readers that patent lawyers make a living out of intimidation; they are bullying, threatening and suing people. They’re quite often sociopaths, so their attitude towards USPTO officials (or publishers like me whom they SLAPP) is consistent with their occupation. It’s just what they’re trained to do; colleagues and classmates of theirs are largely the same.
“We wish to remind readers that patent lawyers make a living out of intimidation; they are bullying, threatening and suing people.”“No Oil States Decision Today from the Supreme Court,” one patent maximalist bemoaned a couple of days ago as if there’s a chance they’ll get their way (abolishing PTAB or its IPRs). Watch this anti-PTAB site doing its marketing. These people are attempting to make a business by dancing on a grave.
A couple of days ago CCIA wrote about yesterday’s hearing, in which Director Iancu faced some grilling over the sanity of the patent system. To quote the CCIA (which generally represents technology companies):
Tomorrow, members of the Judiciary Committee will have the opportunity to point out to Director Iancu that predictability, stability, and positivity are in fact already here, in large part due to the implementation of IPR and § 101. Instead, the Director’s focus should be on improving examination and on continuing to implement successful Congressionally-created programs such as IPR.
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Director Iancu made a reasonable point in his speech—all too often, the discussion gets lost in the flaws of the patent system and fails to identify its successes. As a patent attorney, hearing inventors discuss some of the truly creative and novel ideas they came up with is a joy, and their creations contribute to a better society. A full discussion of the patent system must include recognition of the successes represented by these new innovations. As Director Iancu is fond of saying, the cure for cancer will almost certainly pass through the doors of the USPTO someday.
But at the same time, in order to make sure that innovation continues, in order to make sure that that cure for cancer can be created to pass through those doors, we need to identify the areas where the Office must improve. We can’t focus on the positive aspects of the system to the exclusion of the negatives. Only this week, it became apparent that one out of every twelve inventions created by a woman won’t receive a patent when it would have if a man had created it. There are a series of longstanding issues, highlighted by the GAO’s 2016 report, identifying ways in which poor quality patents can harm innovation and suggesting steps the PTO could take to address quality, steps which—to a large degree—have not been implemented. In order to make sure the patent system continues to be successful, we must always seek to improve it, and that is achieved by identifying and fixing its flaws.
More specifically, one positive aspect of the patent system that deserves recognition is the inter partes review process itself. Far from the “death squad” critics describe, IPR is a fair process with results that have been overwhelmingly upheld on appeal. Most patents—even litigated patents—will never face an IPR petition. And of those that do, the majority—58%—will remain completely unchanged, with an additional 5% upheld in part.3
Ensuring the success of the patent system requires acknowledging its flaws and seeking to fix them. A focus on positivity, without that balance, would ignore flaws that harm innovation.
Engine, which represents interests similar to those of CCIA, cited “STRONGER Patents Act Makes Startups Weaker” and wrote: “At @senjudiciary hearing, @USPTO Director says he is meeting with stakeholders to discuss @ChrisCoons’s #STRONGERAct. This bill is terrible for #startups. Join us in STRONGLY opposing this bill.”
This bill is probably going nowhere (same as a year ago) and we barely heard anything about it for nearly a month. But it’s better to be prudent and respond to Coons. He is in effect fronting for the patent extremists.
“Notice how software patents are being named/referred to (by buzzwords like “AI” that nontechnical politicians neither understand nor care for).”The patent trolls’ lobby, IAM, wrote: “Sen Coons at Iancu hearing – “The legislative branch has an obligation to act on 101″ […] Sen Harris asks Director Iancu to commit to issuing updated 101 guidance within 90 days (specifically how it applies to AI)… Iancu agrees to compromise to provide Committee with update on PTO’s 101 progress […] That request from Sen Harris came after v interesting back and forth on software patentability and specifically the algorithms that underpin AI…”
Notice how software patents are being named/referred to (by buzzwords like “AI” that nontechnical politicians neither understand nor care for).
Later came the obligatory cherry-picking of quotes from Watchtroll (the patent extremists link to it [1, 2]), titled to quote Director Iancu as saying that Section 101 is an issue “we must all address” (the word “address” does not mean very much, it is vague).
Section 101 is absolutely fine, but Iancu was surrounded (or hounded like a hostage) by propaganda from the U.S. Chamber of Commerce. This is how Watchtroll started his screed:
Senator Chris Coons (D-DE) lead off for the Democrats after Chairman Chuck Grassley (R-IA) made a brief opening statement. Coons rather quickly moved his remarks toward the recent report from the U.S. Chamber of Commerce, which now ranks the U.S. patent system 12th in the world. “One cause is the impact of the new post grant proceedings before the Patent Trial and Appeal Board,” Coons said. “The current review system is systematically biased against patent owners based on statistics from its first five years.”
Dennis Crouch, another patent maximalist, gave a long transcript. Senator Coons is basically staging a coup for patent trolls. He is trying to get rid of PTAB and incite Iancu against it, as well as against Section 101. From Crouch’s introduction:
New USPTO Director Andrei Iancu testified in Congress on April 18 for the first time in his new official capacity — this time before the Senate Judiciary Committee. The Director must certainly be a visionary — as the chief guide of U.S. intellectual property policy. At the same time, the Director is head of a multi-billion-dollar agency with 12,000+ employees.
Although not speaking for the Senate as a whole, Senator Coons kicked-off the hearing with a statement that AIA Trials: “The current review system is systematically biased against patent owners.” From Senator Coon’s perspective, the AIA was designed to give the USPTO Director authority to “fine-tune” the AIA trial proceedings without further congressional actions — and that Director Iancu should take this opportunity to correct the imbalance.
One key statement from Director Iancu is that he is ready to work with Congress on legislative solutions to the “uncertainty” created by Supreme Court 101 jurisprudence.
A lot of pressure is on Iancu; the patent maximalists won’t leave him alone. There’s also a case from about a fortnight ago, Knowles Elecs. LLC v Iancu. Joseph Robinson and Robert Schaffer from Watchtroll brought it up one day before the hearing and said:
Knowles Elecs. LLC v. Iancu, No. 2016-1954, 2018 (Fed. Cir. Apr. 6, 2018) (Before Newman, Clevenger, and Wallach, J.) (Opinion for the court, Wallach, J.) (Dissenting opinion, Newman, J.).
Knowles appealed the inter partes reexamination decision of the Board, which affirmed an examiner’s finding that certain claims were anticipated while other claims would have been obvious over various prior art references. The third-party requester declined to defend the judgment in its favor. The Director of the USPTO intervened to defend the Board’s decision, pursuant to 35 U.S.C. § 143. On appeal, the Court permitted the Director to intervene and affirmed the Board’s decision.
Watchtroll’s obsession with brainwashing Iancu is a problem because that site already bullied Michelle Lee, having unsuccessfully attempted to lobby her (beforehand). Watchtroll still claims to be reading Iancu’s mind and tries to influence him (IAM tries to make him IAMcu). In another couple of new posts Watchtroll brought up Drew Hirshfeld. It’s like they follow him around (Hirshfeld is mentioned there too, alongside Iancu, and there’s this followup post about him).
“They’re malicious lobbyists who even tried to install a corrupt judge at the top of the USPTO.”Expect sites like Watchtroll and IAM to neverendingly harass the Director of the USPTO (no matter who that happens to be) until they get their way. They’re malicious lobbyists who even tried to install a corrupt judge at the top of the USPTO.
Iancu is the prime target of bullies. He’s hopefully able to see that. █
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