EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

05.15.18

The Patent Microcosm is Still Looking for Ways to Bypass CAFC/PTAB Invalidation of Many US Patents

Posted in America, Law, Patents at 7:28 am by Dr. Roy Schestowitz

If they cannot crush PTAB IPRs (Oil States), then they attack the court, and failing that they attack AIA (the law)

Trolly-O Patently-O
As the old saying goes: “Throwing shit against the wall and seeing what sticks

Summary: In pursuit of patent maximalism (i.e. a status quo wherein US patents — no matter their age — are presumed valid and beyond scrutiny) pundits resort to new angles or attack vectors, ranging from the bottom (IPRs) to the top (Supreme Court)

THE week has just begun, but there’s already plenty of news about the Court of Appeals for the Federal Circuit (CAFC), which rules/deems many patents granted by the USPTO to be invalid.

Under the title “CAFC Affirms Rejection of Application for Incorrect Inventorship” Watchtroll has just covered what was covered by Patently-O before. That was yesterday. Patently-O has meanwhile gone on to covering what was covered by Techrights over the weekends. It’s about an HTC case demonstrating the impact of TC Heartland on patent aggression in the US. Here are some key bits:

In re ZTE (Fed. Cir. May 14, 2018) is an important case establishing that the plaintiff has the burden of proving proper venue in patent cases.

In May 2018, the Federal Circuit denied HTC’s writ-of-mandamus request on improper-venue grounds — holding that – like most issues – appeal of improper venue decision should ordinarily wait until final judgment. See, Dennis Crouch, The US Venue Laws Do Not Protect Alien Defendants, Patently-O (May 9, 2018); In re HTC Corp., 2018 U.S. App. LEXIS 12182 (Fed. Cir. 2018). Less than one-week-later, the Federal Circuit has swung the other way — this time granting ZTE’s motion for writ of mandamus on the issue of improper venue. The ZTE panel (Judges Reyna, Linn, Hughes) did not cite HTC, nor are there any overlapping judges with the HTC panel (Chief Judge Prost, and Judges Wallach and Taranto). Of course, TC Heartland was an improper venue case that went to the Supreme Court on mandamus.

[...]

In TC Heartland, the Supreme Court ruled that patent-venue is a unique patent law question. Here, the Federal Circuit has extended that general principle to hold that sub-determinations such as burdens-of-proof related to improper venue challenges are also issues of patent law for the Federal Circuit to decide.

[...]

Here, the district court had placed the burden on the defendant ZTE of proving improper venue – on remand that burden needs to shift. The appellate panel went on to caution the lower court about finding a “regular and established place of business” in E.D. Texas based upon an “arms-length contract for service” with a call center provider.

The bottom line is, aside from the fact that foreign companies have less control over the venue of litigation (we covered this a few days ago), there’s more of a burden on the accused rather than the accuser.

Patently-O then wrote about the America Invents Act (AIA) of 2011. Dennis Crouch noted that a precedent being vacated “means that the “financial services” limitation of the covered-business-method [CBM] provisions are again up for interpretation.” The ‘beef’ of his argument (speaking of IPRs, PGRs and CBMs):

In the America Invents Act (AIA) of 2011, Congress created a trio of AIA-Trials: Inter Partes Reviews; Post Grant Reviews; and Covered Business Method (CBM) Reviews.

The CBM program is particularly targeted at claims for data processing or other operations used in the “practice, administration, or management of a financial product or service” and not covering “technological” inventions. In PNC Bank v. Secure Axcess, the Federal Circuit narrowly interpreted the eligibility for CBM review – holding that the claims themselves must be directed to a financial service. A patent does not qualify for CBM simply because it can be used in the financial service industry.

Patently-O is generally very AIA-hostile, at least in the sense that it attacks PTAB and IPRs routinely (in a thinly-disguised fashion). Anything that casts a shadow on AIA would likely be seen as desirable by Patently-O, which went further yesterday when it wrote about CAFC’s assessment of PGRs. Crouch said that “USPTO is empowered to decide AIA-style patent challenges regardless of whether any actual controversy exists between the patent-challenger and the patent owner.”

This is important because bogus (wrongly-granted) patents need to be squashed even when there’s no court battle, perhaps just threats thereof. In his article “Injured by Estoppel” Crouch says this:

A major limitation on Federal Court policy-setting is the actual-controversy limitation housed in Article III of the U.S. Constitution. “Article III” courts are limited to hearing “actual cases and immediate controversies.” Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). As an executive agency, the USPTO is not so limited. Rather, the USPTO is empowered to decide AIA-style patent challenges regardless of whether any actual controversy exists between the patent-challenger and the patent owner. Thus, when Altair Pharma filed its Post Grant Review petition, the USPTO did not even need to consider whether Altair had any interest in the litigation. However, even in AIA-trials, the case-or-controversy issue arises upon appeal to the Federal Circuit since the Federal Circuit is an Article III court bound by the case-or-controversy jurisdictional limit. Here, the PTAB sided with the patentee Paragon and a major element stumbling block for Altair’s appeal was proving it had standing.

Estoppel can be used to prevent the assessment/trial (or petition/litigation) from proceeding. In this particular case PTAB did not ‘veto’ the examiners, so to speak. The net effect is the same though; as the patent maximalists like to put it, the patent “survived”. If they cannot get rid of PTAB and cannot even slow it down, then “estoppel” and other tricks are likely to be used. Basically anything which can deny patent justice, instead giving leeway to patent maximalists…

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. IAM is Pushing SEPs/FRAND Agenda for Patent Trolls and Monopolists That Fund IAM

    The front group of patent trolls, IAM, sets up an echo chamber-type event, preceded by all the usual pro-FRAND propaganda



  2. “Trade Secrets” Litigation Rising in the Wake of TC Heartland, Alice, Oil States and Other Patent-Minimising Decisions

    Litigation strategies are evolving in the wake of top-level decisions that rule out software patents, restrict venue shifting, and facilitate invalidation of patents even outside the courtroom



  3. The EPO -- Like the Unified Patent Court (UPC) and Unitary Patent System -- is an Untenable Mess

    The António Campinos-led EPO, nearly three weeks under his leadership, still fails to commit to justice (court rulings not obeyed), undo union-busting efforts and assure independence of judges; this, among other factors, is why the Office/Organisation and the UPC it wants to manage appear more or less doomed



  4. Links 18/7/2018: System76's Manufacturing Facility, Microsoft-Led Lobby for Antitrust Against Android

    Links for the day



  5. What Patent Lawyers Aren't Saying: Most Patent Litigation Has Become Too Risky to be Worth It

    The lawyers' key to the castle is lost or misplaced; they can't quite find/obtain leverage in courts, but they don't want their clients to know that



  6. Software Patents Royalty (Tax) Campaign by IBM, a Serial Patent Bully, and the EPO's Participation in All This

    The agenda of US-based patent maximalists, including patent trolls and notorious bullies from the United States, is still being served by the 'European' Patent Office, which has already outsourced some of its work (e.g. translations, PR, surveillance) to the US



  7. The European Council Needs to Check Battistelli's Back Room Deals/Back Door/Backchannel With Respect to Christian Archambeau

    Worries persist that Archambeau is about to become an unworthy beneficiary (nepotism) after a Battistelli setup that put Campinos in power, supported by the Belgian delegation which is connected to Archambeau, a national/citizen of Belgium



  8. PTAB and § 101 (Section 101) Have Locked the Patent Parasites Out of the Patent System

    Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) have contributed a great deal to patent quality and have reduced the number of frivolous patent lawsuits; this means that firms which profit from patent applications and litigation hate it with a passion and still lobby to weaken if not scuttle PTAB



  9. Patents on Computer Software and Plants in the United States Indicative of Systemic Error

    The never-ending expansion of patent scope has meant that patent law firms generally got their way at the patent office; can the courts react fast enough (before confidence in patents and/or public support for patents is altogether shattered)?



  10. Yesterday's Misleading News From Team UPC and Its Aspiring Management of the Unified Patent Court (UPC)

    The Unified Patent Court (UPC) enthusiasts — i.e. those looking to financially gain from it — continue to wrestle with logic, manipulate words and misrepresent the law; yesterday we saw many law firms trying to make it sound as though the UPC is coming to the UK even though this isn’t possible and UPC as a whole is likely already dead



  11. Time for the European Commission to Investigate EPO Corruption Because It May be Partly or Indirectly Connected to EU-IPO, an EU Agency

    The passage of the top role at the EU-IPO from António Campinos to Christian Archambeau would damage confidence in the moral integrity of the European Council; back room deals are alleged to have occurred, implicating corrupt Battistelli



  12. Links 17/7/2018: Catfish 1.4.6 Released, ReactOS 0.4.9, Red Hat's GPL Compliance Group Grows

    Links for the day



  13. Links 16/7/2018: Linux 4.18 RC5, Latte Dock v0.8, Windows Back Doors Resurface

    Links for the day



  14. Alliance for US Startups and Inventors for Jobs (USIJ) Misleads the US Government, Pretending to Speak for Startups While Spreading Lies for the Patent Microcosm

    In the United States, which nowadays strives to raise the patent bar, the House Small Business Committee heard from technology firms but it also heard from some questionable front groups which claim to support "startups" and "jobs" (but in reality support just patents on the face of it)



  15. 'Blockchain', 'Cloud' and Whatever Else Gets Exploited to Work Around 35 U.S.C. § 101 (or the EPC) and Patent Algorithms/Software

    Looking for a quick buck or some low-quality patents (which courts would almost certainly reject), opportunists carry on with their gold rush, aided by buzzwords and hype over pretty meaningless things



  16. PTAB Defended by the EFF, the R Street Institute and CCIA as the Number of Petitions (IPRs) Continues to Grow

    Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) come to the rescue when patently-bogus patents are used, covering totally abstract concepts (like software patents do); IPRs continue to increase in number and opponents of PTAB, who conveniently cherry-pick Supreme Court (SCOTUS) decisions, can't quite stop that



  17. IAM/Joff Wild May Have Become a de Facto Media Partner of the Patent Troll iPEL

    Invitation to trolls in China, courtesy of the patent trolls' lobby called "IAM"; this shows no signs of stopping and has become rather blatant



  18. Cautionary Tale: ILO Administrative Tribunal Cases (Appeals) 'Intercepted' Under António Campinos

    The ILO Administrative Tribunal (ILO-AT) is advertised by the EPO's management as access to justice, but it's still being undermined quite severely to the detriment of aggrieved staff



  19. Asking the USPTO to Comply With 35 U.S.C. § 101 is Like Asking Pentagon Officials to Pursue Real, Persistent Peace

    Some profit from selling weapons, whereas others profit from patent grants and litigation; what's really needed right now is patent sanity and adherence to the public interest as well as the law itself, e.g. Supreme Court (SCOTUS) decisions



  20. BT and Sonos Are Still Patent Bullies, Seeing Patents as a Backup Plan

    The companies seeking to complement their business (or make up for their demise) using patents are still suing rivals while calling that litigation "research and development" (the same old euphemism)



  21. Jim Skippen, a Longtime Patent Troll, Admits That the Trolling Sector is Collapsing

    Canada's biggest patent troll (WiLAN) bar BlackBerry doesn't seem to be doing too well as its CEO leaves the domain altogether



  22. From East Asia to the Eastern District of Texas: XYZ Printing, Maxell, and X2Y Attenuators

    The patent aggression, which relies on improper litigation venues, harms innocent parties a great deal; only their lawyers benefit from all this mess



  23. Links 14/7/2018: Mesa 18.1.4, Elisa 0.2.1, More on Python's Guido van Rossum

    Links for the day



  24. Number of Oppositions to Grants/Awards of European Patents at the EPO Has Skyrocketed, Based on Internal Data

    The number of challenged patents continues to soar and staff of the EPO (examiners already over-encumbered by far too much work, due to unrealistic targets) would struggle to cope or simply be compelled to not properly deal with oppositions



  25. 'Transaction' Complete: Former EPO Executive From Belgium Takes the Seat of António Campinos at EU-IPO

    Rumours that Belgium made a back room deal with Battistelli may be further substantiated with the just-confirmed appointment of Archambeau



  26. EPO Abuses Against People With Disabilities Followed by Legal Bullying?

    The new President of the EPO is not (at least not yet) obeying court rulings from ILO; The above move seems like an attempt to derail ongoing cases at the ILO’s Administrative Tribunal (ILO-AT), i.e. yet more strong-arming



  27. Weeks Later António Campinos Still in Noncompliance With the Courts (ILO's Tribunal)

    'report card' for the ever-so-intransparent (or nontransparent) new President of the EPO, who does not even bother obeying court rulings



  28. Links 13/7/2018: Kube 0.7.0, Trisquel 8.0 LTS Reviewed

    Links for the day



  29. Constitutionality and CJEU as Barriers, the UPC Agreement (UPCA) is Already Moot in the United Kingdom

    The Unified Patent Court (UPC) isn't going anywhere and the UK merely "explores" what to do about it; for Team UPC, however, this means that the UK "confirms intention to remain in Unitary Patent system after Brexit" (clearly a case of deliberate misinformation)



  30. It's Not About EPO 'Backlog' But About Faking 'Production' by Lowering Standards

    Remarks on the EPO dropping all pretenses of genuine care for patent quality; it's all about speed now, never mind if wrongly-granted patents can cause billions in damages across Europe (a lot of that money flows towards patent law firms)


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts