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05.15.18

The Anti-PTAB (Patent Quality), Anti-§ 101 Lobby is Losing Its Mind and It Has Become Amusing to Observe

Posted in America, Law, Patents at 5:50 pm by Dr. Roy Schestowitz

It is actually Watchtroll who should consider stepping down and maybe a career change

Watchtroll

Summary: The rants about the Patent Trial and Appeal Board (PTAB), the courts and even the law itself have reached laughable levels; this reveals that the real agenda of patent maximalists is endless litigation and their methods boil down to those of an angry mob, not legal professionals

THE REFORMS implemented at the USPTO 7 years ago (AIA), combined with a long series of Supreme Court decisions, have changed the ‘attack surface’ of patent lawyers. Patents are no longer presumed valid because many are not.

“Patents are no longer presumed valid because many are not.”We sometimes amuse ourself trying to see what patent extremists are saying. Watching their reactions can be literally funny. Just a few hours ago Watchtroll threw another tantrum, in which the blowhard in chief quote-mined the Director of the USPTO to come up with the headline Section 101 ‘weakens the robustness of our IP system’ (attributing this to Iancu, a friendly hand).

“…we generally view him as somewhat of a caricature of the patent microcosm — a little bit like the “Fox News” of the patent world.”Attacks like these (on Section 101, courts, PTAB and so on) aren’t uncommon. They’re a case of quote-mining. This is Watchtroll’s style. Whether he accepts it or not (we refer to the site and the person as “Watchtroll”), we generally view him as somewhat of a caricature of the patent microcosm — a little bit like the “Fox News” of the patent world.

Watchtroll constantly attacks PTAB, hoping that it would magically go away like Michelle Lee did (after Watchtroll had sort of endlessly bullied her). Watchtroll last attacked PTAB again about 8 hours ago. When the US Supreme Court said that it was absolutely fine with PTAB (just under a month ago in Oil States) Watchtroll characteristically attacked the judges, the courts, and just about everyone! This too isn’t uncommon. Watchtroll does it all the time. It last smeared the high courts only a couple of weeks ago. It smeared the US Supreme Court only about a week ago.

Truly pathetic is the fact that Watchtroll has just, once again, boosted the ‘United States’ (not really) Chamber of Commerce 2018 “Global IP Index,” which is misleading propaganda of the highest order, delivered/put forth to officials on behalf of patent extremists (insulting their own country in an attempt to change policy). David Wanetick actually keeps promoting this nonsense, which many patent rationalists are openly rejecting (they mock this index).

Meanwhile (also earlier today), Professor Michael Risch mentions a Koch-funded AstroTurfer (or patent trolls’ mouthpiece), Adam Mossoff. It’s a pseudo-scholar whose goal seems to be feeding anti-PTAB talking points to Justice Gorsuch and others (on Koch’s payroll). It worked in Oil States and he publicly bragged about Gorsuch citing/quoting him in the decision. This reaffirms the view that the Koch brothers control Gorsuch by proxy, but anyway, these are the concluding words from Risch:

But much of this work is historical. Of late, as the abstract notes, it’s all about the what: What inventions? What classes? What litigation? How many claims? I think people clamor for stories about innovators; I believe my most downloaded (by far) SSRN paper, Patent Troll Myths, resonated because it looked hard at the innovators – individuals to small entities to large companies. Dan Burk looks at innovators (but without data) in Do Patents Have Gender?

I’m sure there are examples I’m not thinking of, but more data and analysis in this area would be welcome. Patents exist in service to their inventors, and so it makes sense to understand who those are to better understand whether patents are achieving their goals…or even what the goals are.

Patent scholars who work for universities and not for think tanks of billionaires do understand that patent balance is needed. Patent maximalism has no place in academia. Because it’s simply irrational and detached from reality…

Looking at some other sites of the patent microcosm throughout the day, we’ve found Michael Loney speaking about PTAB changes that are relatively minor (they already leave Oil States well behind, perhaps hoping not to draw much attention to it). Loney wrote:

Patent owners may not benefit from the proposed shift to the Phillips claim construction standard at the PTAB if it reduces the chance of a stay and leads to a less nuanced Markman construction

Patent owners [sic] have long called for the change proposed by the USPTO last week for the Patent Trial and Appeal Board (PTAB) to use the Phillips standard for claim construction. But it is questionable they would benefit much from it.

We wrote about this over the weekend. It’s very much overblown. Michael Borella also wrote about the Patent Trial and Appeal Board (PTAB), namely a kind of rant about § 101. His opening paragraph in the PTAB-hostile Patent Docs:

The Patent Trial and Appeal Broad (PTAB) of the U.S. Patent and Trademark Office has often been criticized [by patent maximalists] for being particularly harsh when reviewing appeals of claims rejected by an examiner of grounds of patent-ineligibly under 35 U.S.C. § 101. According to some sources, examiners are affirmed about 80-86% of the time in these matters.[1] Therefore, when the PTAB reverses an examiner’s § 101 rejection, it is worthwhile to note how and why.

These rates say nothing about whether that’s just or unjust; if some doctor deems/detects 90% of babies as having no birth defects, does that make the doctor “harsh” or “biased”? No. That’s just very irrational an argument.

The truth of the matter is, the patent microcosm refuses to accept reality and protests against it by bashing the laws, bashing the court, bashing jurists/judges and so on.

Many patents are absolutely fine. They’re not abstract. Here’s a new example — in the form of today’s press release — of patents on more physical things and here’s another:

Sigma Labs, Inc. (NASDAQ:SGLB) (“Sigma” or the “Company”), a provider of quality assurance software under the PrintRite3D® brand, today announced that the Company was allowed a seminal patent entitled “Method and System for Monitoring Additive Manufacturing Processes.” The patent provides protection for methods of assuring part quality using real time data from multiple sensor types.

Manufacturing and sensors aren’t the same as some silly algorithms reducible to mathematics, which is the sort of patents that PTAB regularly deals with. If the patent maximalists refuse to accept that the law was corrected and that it actually helps technology companies, then they simply aren’t interested in science and technology, only litigation. Let them sob…

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