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04.23.18

The Good Work of the Patent Trial and Appeal Board (PTAB) and the Latest Attempts to Undermine It

Posted in America, Courtroom, Patents at 2:04 am by Dr. Roy Schestowitz

Justice does not really serve those who profit from injustice and extrajudicial actions such as patent extortion

Old Red Courthouse

Summary: A week’s roundup of news about PTAB, which is eliminating many bad (wrongly-granted) patents and is therefore becoming “enemy number one” to those who got accustomed to blackmailing real (productive) firms with their questionable patents

The Patent Trial and Appeal Board is great. We love it. Not only does it help the USPTO‘s patent examiners improve their examination; it also deals with erroneous grants (post-grant, i.e. after mistakes were made). It’s not hard to imagine who would hate such judges with a great passion. Who possibly benefits from wrongly-granted patents? Patent law firms, patent trolls and their messengers. Any mistaken grant may mean more legal action — spurious/frivolous litigation basically.

“Who possibly benefits from wrongly-granted patents? Patent law firms, patent trolls and their messengers.”Daniel Nazer (EFF) wrote about a patent of GEMSA, which had engaged in SLAPP against the EFF in addition to its bullying of companies. It had attempted to silence critics of its patent (or of itself) and now we see the Patent Trial and Appeal Board (PTAB) smashing that “stupid” patent to pieces. In Nazer’s own words:

The Patent Trial and Appeal Board has issued a ruling [PDF] invalidating claims from US Patent No. 6,690,400, which had been the subject of the June 2016 entry in our Stupid Patent of the Month blog series. The patent owner, Global Equity Management (SA) Pty Ltd. (GEMSA), responded to that post by suing EFF in Australia. Eventually, a U.S. court ruled that EFF’s speech was protected by the First Amendment. Now the Patent Office has found key claims from the ’400 patent invalid.

The ’400 patent described its “invention” as “a Graphic User Interface (GUI) that enables a user to virtualize the system and to define secondary storage physical devices through the graphical depiction of cabinets.” In other words, virtual storage cabinets on a computer. E-Bay, Alibaba, and Booking.com, filed a petition for inter partes review arguing that claims from the ’400 patent were obvious in light of the Partition Magic 3.0 User Guide (1997) from PowerQuest Corporation. Three administrative patent judges from the Patent Trial and Appeal Board (PTAB) agreed.

The PTAB opinion notes that Partition Magic’s user guide teaches each part of the patent’s Claim 1, including the portrayal of a “cabinet selection button bar,” a “secondary storage partitions window,” and a “cabinet visible partition window.” This may be better understood through diagrams from the opinion. The first diagram below reproduces a figure from the patent labeled with claim elements. The second is a figure from Partition Magic, labeled with the same claim elements.

Good riddance to stupid patents. It’s worth noting that this is clearly a software patent, too.

There are other new “success stories” from PTAB. To name some of the new ones, MONKEYmedia’s patent has been determined to be likely invalid. It’s a patent troll which is based in the Eastern District of Texas and Unified Patents wrote this:

On April 16, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all independent claims in an IPR filed by Unified against U.S. Patent 9,247,226 owned and asserted by MONKEYMedia, Inc., a known NPE. The ’226 patent, generally directed towards computer readable media and methods for playing stored content, has been asserted against Samsung in the Eastern District of Texas (Case No. 2:17-cv-00460).

Unified Patents is also disarming the patent troll Sound View Innovations [sic]. To quote Unified Patents’ writeup from 4 days ago:

On April 18, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 6,125,371 owned and asserted by Sound View Innovations, LLC, a well known NPE. The ’371 patent, which generally describes systems and
methods for managing versions of data records in a database to increase data capacity, has been asserted in multiple litigations against such companies as Fidelity Investments, Facebook, and Hulu.

Another new example from Unified Patents deals with a very notorious patent troll called Uniloc:

On April 17, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial in an IPR filed by Unified against U.S. Patent 6,564,229 owned by NPE Fortress Credit Co. LLC and asserted by Uniloc Luxembourg, S.A., another notorious NPE and exclusive licensee of the ’229 patent. The ’229 patent, generally directed to pausing move or copy operations within a data processing system, has been asserted in 10 separate district court proceedings in 2017 against such companies as Square Enix, Nexon America, Big Fish Games, Ubisoft, Kaspersky Lab, and Akamai Technologies.

Last but not least (for now), the patent troll Vilox is likely being disarmed:

On April 19, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims and grounds in an IPR filed by Unified against U.S. Patent 7,302,423 owned and asserted by Vilox Technologies, LLC, a well known NPE. The ’423 patent, which generally relates to a method for formatting search results returned by a database query, has been asserted in multiple litigations against a number of retail companies such as Orbitz, Expedia, Priceline, Neiman Marcus, Buy.com, Costco and Walmart, among others.

This is the kind of thing we appreciate PTAB for; it’s all about justice (even for relatively cash-strapped entities) and trolls are impacted the most. It makes predation a lot harder. Access to justice achieves that.

“This is the kind of thing we appreciate PTAB for; it’s all about justice (even for relatively cash-strapped entities) and trolls are impacted the most.”Going back to the aforementioned/above-mentioned riddle, why would anyone who actually respects justice attack PTAB? Who would compare judges to ‘death squads’? Well, follow the money trails…

Alluding to Chris Walker and Melissa Wasserman with their academic research into PTAB (quite a few recent papers/work, e.g. [1, 2]), a few hours ago Lisa Ouellette (Assistant Professor at Stanford Law School) wrote:

Christopher Walker is a leading administrative law scholar, and Melissa Wasserman’s excellent work on the PTO has often been featured on this blog, so when the two of them teamed up to study how the PTAB fits within broader principles of administrative law, the result—The New World of Agency Adjudication (forthcoming Calif. L. Rev.)—is self-recommending. With a few notable exceptions (such as a 2007 article by Stuart Benjamin and Arti Rai), patent law scholars have paid relatively little attention to administrative law. But the creation of the PTAB has sparked a surge of interest, including multiple Supreme Court cases and a superb symposium at Berkeley earlier this month (including Wasserman, Rai, and many others). Walker and Wasserman’s new article is essential reading for anyone following these recent debates, whether you are interested in specific policy issues like PTAB panel stacking or more general trends in administrative review.

Related to this, we expect the US Supreme Court to deliver a ruling on Oil States any day (or week) now. The ruling may deal with some of the above questions. It’s about Inter Partes Reviews (IPRs) that PTAB undertakes upon being petitioned.

“Related to this, we expect the US Supreme Court to deliver a ruling on Oil States any day (or week) now.”Judging by what we’ve seen from Christopher Walker and from Melissa Wasserman in recent years, we have no reason to question their motivation. Even Ouellette is quite alright. She’s a friend and colleague of Professor Lemley, so we know whose side she’s on.

But we cannot say the same about Dennis Crouch, whose blog generally panders to patent maximalists (just look at the comments any day). Less than a day ago he returned to his usual modus operandi, showing that he is still trying to slow down PTAB (he has attempted that for at least a year). The latest involves an IPR and appeal to the Court of Appeals for the Federal Circuit (CAFC):

In Security People, the underlying Inter Partes Review involves a challenge to Claim 4 of Petitioner’s U.S. Patent No. 6,655,180 covering a “locker lock with adjustable bolt.” The Board found the claim invalid as obvious based upon the combination of two prior art references.

We already wrote many rebuttals to these assertions from Crouch, who either fails to understand that CAFC cannot deal with thousands of cases/appeals at the same level of granularity/pertinence or simply pretends not to understand that (we guess it’s the latter because he’s not so thick). If a patent can be granted by a single examiner working for at most a few dozens of hours, why should an applicant/assignee be expected to take up time of the high court without even legal action being filed? It seems disproportionate. The court’s priority shouldn’t be so asymmetric, but PTAB bashers see that differently because they just want to disrupt PTAB’s good work.

“The court’s priority shouldn’t be so asymmetric, but PTAB bashers see that differently because they just want to disrupt PTAB’s good work.”Looking at blogs of other patent maximalists and PTAB bashers (typically the same or at least overlapping groups), some hours ago Rob Sterne published another anti-PTAB piece at Watchtroll, which is generally unable to keep up with its old pace of anti-PTAB pieces (they now try to hire another ‘volunteer’ writer, probably for purposes such as these).

Patent Docs, which habitually promotes a “scam” to bypass PTAB, published exactly a day ago promotion of an event that includes “Hon. David Ruschke, Chief Administrative Patent Judge, U.S. Patent and Trademark Office” (Ruschke is OK, he’s coping well with the attacks on him).

Patent Docs also mentioned this upcoming ‘webinar’ on “scams” by which to bypass PTAB. From the outline:

• Recent decisions handed down by the Patent Trial Appeal Board, including decisions that:
— held a university entity waived its sovereign immunity by filing a patent infringement case in district court
— denied trial sovereign immunity for lack of establishment that trial sovereign immunity should be applied in PTAB proceedings

How about using tribes? That infamous new “scam” which nobody seems to talk about anymore…. the “scam” whose firm (the one that came up with it) sends me threatening legal letters.

Going back to Crouch and CAFC, a few days ago he wrote about Droplets, Inc. v E*Trade Bank — a new case in which the PTAB and then CAFC got rid of a bogus patent.

To quote:

Droplets Patent No. 8,402,115 (interactive link delivery) is invalid as obvious unless it properly claimed priority back to its 1999 provisional application. The Board found that priority had not been properly claimed — a judgment affirmed on appeal by the Federal Circuit.

This is what typically happens. CAFC agrees with PTAB’s decisions almost all the time. Patent maximalists like to pretend there’s discord/rift, but there’s none. They try to brew scandals where none exist. Watchtroll does this by far the most.

“They try to brew scandals where none exist. Watchtroll does this by far the most.”Facebook, which publicly supports PTAB (e.g. though HTIA), was mentioned by Watchtroll’s protégé Steve Brachmann last week. The site focuses on creepy Facebook patents; maybe it’s part of that familiar pattern at Watchtroll, which likes to demonise large technology companies, especially Google, not for unethical spying but for their patent policy. Watchtroll habitually calls such companies “efficient infringers”; failing to hide the bias? Last but not least, see what James Yang wrote for Watchtroll on April 15th. The site is a megaphone for patent extremists and people who profit from ‘patentism’ (like it’s a religion).

“The patent extremists are failing to see how aloof/disconnected they are from the “real world” — a world where patents are rare and strong, not pertaining to a mere thought.”How about Mr. Gross, who is writing anti-EFF pieces for literal patent trolls and is attacking academics who merely highlight a study about patent trolls? Mr. Gross is so upset at PTAB that he bemoans another § 101-based invalidation and then mumbles about “lazy/crazy [Section] 101 rejections,” saying that he is “going to file reconsideration for no other reason than to force them to admit shoddy process…”

Maybe he should file reconsideration calling them “death squads” in the filing. Sure, that ought to sway them. Maybe he’ll mock their court, calling it a “kangaroo court” or something even worse. The patent extremists are failing to see how aloof/disconnected they are from the “real world” — a world where patents are rare and strong, not pertaining to a mere thoughts. § 101 in its current form is well overdue.

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