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

06.10.18

Instead of Smearing the Judges of the Patent Trial and Appeal Board (PTAB) Check Why Abstract Patents Are Being Granted in the First Place

Posted in America, Patents at 11:14 pm by Dr. Roy Schestowitz

Hours ago: Do Know Evil? Then Stop Patenting Software, Google

Judges as moral reasoners - Oxford Journals - Oxford University Press
Full paper: Judges as moral reasoners – Oxford Journals – Oxford University Press [PDF]

Summary: PTAB is taking a lot of heat (albeit always from patent maximalists) for simply applying the law, which ought to have been applied by the Office at the time of examination; confidence in US patents depends on the Office’s ability to discern/distinguish patentable subject matter from clearly unpatentable subject matter

The Patent Trial and Appeal Board (PTAB) has made a few headlines this past week. Michael Loney, who is based in New York, took note of some precedential decisions:

The PTAB has de-designated Idle Free and Master Image in response to Aqua Products. Fiscal year 2018′s first half set a motion to amend record for two consecutive quarters

The Patent Trial and Appeal Board (PTAB) has de-designated as precedential MasterImage 3D v RealD, Case IPR2015-00040 (PTAB July 15, 2015) (Paper 42) and has de-designated as informative Idle Free Sys v Bergstrom, Case IPR2012-00027 (June 11, 2013) (Paper 26).

Much of the coverage about PTAB, however, has been hostile. As expected, it came from longtime PTAB bashers and anti-PTAB sites. Those sites have a proven disdain for patent quality. Rather than ignore those sites we’d like to quickly respond to these.

Referring to a case from the first of June, Watchtroll now cherry-picks one of those rare cases where the Federal Circuit either overrules or vacates/remands after PTAB declares some patent/s to be invalid. Deception by omission in the patent trolls’ lobby? Well, this was done again yesterday. Watchtroll himself (Quinn) said: “The Office taking a proactive approach to reviewing cases on appeal to the Federal Circuit is good news for applicants facing Alice based 101 rejections. Obviously, now is not the time to allow those cases to go abandoned if they remain commercially relevant.”

“Watchtroll’s goal has always been to ‘scandalise’ the PTAB, trying to make it seems like it is making errors (in judgment) all the time when in fact it is getting things right — as measured by affirmations higher up — almost all the time.”Writing about patents in an entirely different domain, Watchtroll found an example of a patent’s validity being upheld, but readers must bear in mind that all the above are the exceptions rather than the norm. Watchtroll’s goal has always been to ‘scandalise’ the PTAB, trying to make it seems like it is making errors (in judgment) all the time when in fact it is getting things right — as measured by affirmations higher up — almost all the time. It’s not just Watchtroll by the way but also sites that have sunk to similarly low levels (a climate of jurist bashing and vicious personal attacks), even Patently-O. Some hours ago Watchtroll celebrated the lobbyist in chief, Makan Delrahim.

Writing about Andrew Hirshfeld, who nearly became a Director of the USPTO (based on rumours at one time), Stephen C. Glazier (Partner at Akerman LLP) relayed this “webinar” nonsense, organised by patent maximalists to better suit their agenda. Glazier uses Patently-O as his platform and speaks of “Increasing Certainty in US Patent Law,” which should not be a problem at all. If one cares about certainty, then one should instruct examiners to stop granting abstract patents altogether. Here’s what Hirshfeld is said to have said:

On April 26, 2018 the U.S. Patent Commissioner, Andrew Hirshfeld, spoke at our webinar regarding current developments at the U.S. Patent Office. [Link Below]

A major theme of Commissioner Hirshfeld’s remarks was the PTO’s revived focus on increasing reliability, certainty, and enforceability of issued patents and the application process. The underlying goal here is to further increase the value of patents and their beneficial impact on innovative products and businesses.

The Commissioner stated that a first step toward this policy goal will be pursued by new PTO guidance to Examiners and the applicants regarding the application of the Alice-Mayo test for patent subject matter eligibility under Section 101. Other possible PTO guidance is also being considered on various current issues.

Anticipat, which is trying to make money out of PTAB bashing, has stepped in to also mention “predictability”. “The recent memos offer some hope that USPTO will continue to improve the predictability of applying Section 101 rejections,” it said. How about just actually applying Section 101 consistently at examination time?

“…to improve the certainty/confidence (or “predictability”) of patents simply stop granting patents in defiance of Alice/Section 101.”The reason PTAB so often invalidates patents is simple; examiners grant patents that they should not be granting. It’s easier for these people to simply attack PTAB itself, not examiners who grant in a rush. Watchtroll himself (Quinn) is back to PTAB bashing (“Structural Bias at the PTAB: No Dissent Desired”). Been a while since the last time? These patent extremists have been reduced to tribunal bashing, judge bashing, and conspiracy theories (especially about Google).

The anti-PTAB (i.e. anti-patent quality) site Anticipat continues to stalk individual USPTO examiners, pretty much with the intention of maligning good ones (strict, thorough examination). To quote:

The USPTO has a vested interest in knowing how well its patent examiners examine applications. It tracks production, efficiency and quality. Even though quality examination has always been tricky to measure, one metric comes pretty close: an examiner’s appeal track record. And while tech center directors have had access to this data, until recently this has been difficult to access. Here we explore the known gaps of how this metric is being used at the USPTO.

According to sources at the USPTO, directors–who oversee each technology center–have access to their Examiners’ appeal track records. The more an Examiner gets affirmed by the PTAB on appeal, the more reasonable the Examiner’s rejections, the theory goes. This means that directors can evaluate examiners based on how often an examiner gets affirmed.

Let’s just say it again: to improve the certainty/confidence (or “predictability”) of patents simply stop granting patents in defiance of Alice/Section 101. That oughtn’t be so hard, right?

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. The EPO Seems to Have Corrupted ILO/ILO-AT Like It Corrupted the Media and Academia (Using 'Toxic' EPO Budget)

    People are starting to notice and point out compositional flaws and potentially very serious conflicts of interest inside ILO, which is supposed to ensure justice for EPO workers and is instead stonewalling the vast majority of them (just like Battistelli's kangaroo courts inside the EPO)



  2. Benoît Battistelli's 'Dowry' From the Administrative Council of the EPO

    The dreadful state of the EPO, where one man controls everything and mismanages money (sending a huge amount of money to his other employer, giving himself a massive bonus or a "golden parachute", allegedly paying for national delegates' votes and gambling with EPO budget), won't be improved until the entire organisation removes "Team Battistelli" (the manifestation of Battistelli's 8-year rogue regime)



  3. Patent Extremism -- Like All Extremes -- Leads to Bad Outcomes

    Religiously believing in the value of all granted patents is a form of extremism which actively puts many lives at risk; the sooner this is realised, the better off society will be



  4. Even After SAS Institute, Inc. v Iancu (Decision on PTAB) There's No Stopping the Crackdown on Bogus US Patents

    Technology firms take advantage of PTAB, eliminating patents that should never have been issued by the US patent office in the first place; that makes it incredibly difficult for patent maximalists (led by Iancu) to phase PTAB out, more so after Oil States Energy Group v Greene’s Energy



  5. Can Alice/35 U.S.C. § 101 Stop Microsoft-Connected Patent Trolls in the US?

    The latest lawsuits and inter partes reviews (IPRs) which deal with Microsoft-connected trolls and other potentially-suspicious activities



  6. TC Heartland is Still Deterring and Suppressing Patent Trolls in the United States

    Eastern Texas is being 'evacuated' in the wake of TC Heartland, which continues to be brought up by legal defense teams



  7. The ILO Tribunal: Is It Still Worthy of Our Trust?

    Trusting ILO-AT has become a lot harder in light of its handling of EPO scandals



  8. The Dangerous Adoption of Patents on Life and Nature

    In the face of pressure from patent maximalists, as well as an appointment of a patent maximalist to the top of the US patent office, lawyers/law firms which strive to extend patent scope to life itself (or nature) seem to be getting their way



  9. Stronger Patents or None at All: How the Greed of Patent Law Firms and the Patent Office Contributes to Bogus Software Patents Being Amassed

    Alice Corp. v CLS Bank continues to be the sole recent reference for handling of software patents; that being the case, it's rather disturbing that patent law firms continue to recommend patenting of software and offer lousy excuses for that (mainly because they profit at the expense of those foolish enough to believe them)



  10. Patent Strengthening Would Necessarily Mean Lowering the Number of Patents Granted After Alice/35 U.S.C. § 101

    The concept of patent strength is being distorted in all sorts of ways and acronyms like IPR still being used not to describe the process by which bad patents get eliminated but to spread propaganda like 'intellectual' 'property' 'rights'



  11. Watchtroll's Reaffirmed Hatred Towards Science and Technology, Shattering the Myth About Patent Law Firms Trying to 'Help' Innovation

    The anti-technology rhetoric (what they call derogatorily "Big Tech") of patent maximalists is ruining their old narrative which goes something along the lines of helping inventors



  12. Nearly Half of Patent Applications at the EPO Are (at Least Partly) Software Patents, According to the EPO, and Not Many Patents Are European (Foreign, Not Domestic)

    With lack of care for examiners, for European businesses and for science in general the EPO carries on unabated; its agenda seems to be steered by Team UPC, which is looking to profit from lots of foreign lawsuits across Europe (relying on low-quality patents that wouldn't pass muster in national courts)



  13. Patent Factory Europe (PFE) is a Patent Troll's Publicity Stunt, Attempting to Frame a Predator as the Small Businesses' Friend and Ally

    Patent troll "France Brevets" with its tarnished name (it's the shame of France, a major source of shame other than Battistelli) has decided to do a charm offensive which characterises it as a friend of small firms (SMEs)



  14. Alice, Which Turns Four, Has Saved Billions of Dollars Previously Wasted on 'Protection' Money (Notably Patent Trolls)

    Alice has turned 4 (just five days ago) and software patents have never looked weaker (close to impossible to enforce in high courts in the United States), lowering the incentive to pursue such patents in the first place



  15. Links 23/6/2018: Kodi 18 Alpha 2, Peppermint 9, Wine 3.11

    Links for the day



  16. Somewhat Underwhelming Reception for US Patent Number 10,000,000 (Which Actually Isn't)

    While US patent number 10,000,000 did, in fact, get issued (several days ago) there are un-ignorable reminders that a lot more patents exist and the high number says more about neglected quality than actual, objective success



  17. The United States' Supreme Court Takes the Side of Patent Maximalists, for a Change

    WesternGeco LLC v. ION Geophysical Corp. reaches its conclusion; while it has zero effect on patent scope, it does serve to show that the US Supreme Court (SCOTUS) isn’t inherently biased against patents in general



  18. Mainstream Media in Germany Covers Battistelli's Corruption at the EPO Just as He Leaves

    Mainstream German media writes about Battistelli's scandals that nobody seems eager or wishes to discuss, let alone bring up; law-centric German media covers the now-famous open letter from German law firms (Grünecker, Hoffmann Eitle, Maiwald, and Vossius & Partner)



  19. Links 22/6/2018: PulseAudio 12.0, Krita 4.1 Beta, LabPlot 2.5, Git 2.18.0

    Links for the day



  20. “Dr Ernst Should be Forced by National Politicians to Step Down With Immediate Effect” After Battistelli's Latest EPO Scandals

    Further discussions about the horrible legacy of Battistelli and his protectors, who seem to be interested in a patent trolls-friendly patent system which devalues workers and consciously lowers the patent bar (at all costs, even violation of laws and constitutions)



  21. Links 21/6/2018: Microsoft's 'Damage Control' Amid Role in ICE Scandals, 11-Hour Azure Downtime (Again), GNOME 3.29.3, and More GNU/Linux Wins

    Links for the day



  22. Battistelli and Topić Lose Their Bogus 'Case' Against Judge Corcoran After They Defamed Him and Ruined His Career/Life

    The SLAPP action against Judge Patrick Corcoran, who has so far won all cases involving the EPO, is finally dismissed in Germany; what remains is an ugly legacy at the EPO, wherein everyone bold enough to say something about corruption at the top is having his or her life — not just career — destroyed



  23. Even Media of the Patent Microcosm Mentions the Decline in Quality of Patents at the EPO, Based on Its Very Own Stakeholders, While IAM Ignores the News

    The whole world basically accepts, based on patent examiners as well as those whom they interact with (patent agents), that patent quality at the EPO has sunk; but the EPO and IAM continue to vigorously deny that as it threatens some people's nefarious agenda



  24. Links 20/6/2018: Qt 5.11.1, Oracle Solaris 11.3 SRU 33, HHVM 3.27.0, Microsoft Helping ICE

    Links for the day



  25. Patent Extremists Are Unable to Find Federal Circuit Cases That Help Them Mislead on Alice

    Patent extremists prefer talking about Mayo but not Alice when it comes to 35 U.S.C. § 101; Broadcom is meanwhile going on a 'fishing expedition', looking to profit from patents by calling for embargo through the ITC



  26. What Use Are 10 Million Patents That Are of Low Quality in a Patent Office Controlled by the Patent 'Industry'?

    The patent maximalists are celebrating overgranting; the USPTO, failing to heed the warning from patent courts, continues issuing far too many patents and a new paper from Mark Lemley and Robin Feldman offers a dose of sobering reality



  27. The Eastern District of Texas is Where Asian Companies/Patents/Trolls Still Go After TC Heartland

    Proxies of Longhorn IP and KAIST (Katana Silicon Technologies LLC and KAIST IP US LLC, respectively) roam Texas in pursuit of money of out nothing but patents and aggressive litigation; there's also a Microsoft connection



  28. EPO Insiders Correct the Record of Benoît Battistelli’s Tyranny and Abuse of Law: “Legal Harassment and Retaliation”

    Battistelli’s record, as per EPO-FLIER 37, is a lot worse than the Office cares to tell stakeholders, who are already complaining about decline in patent quality



  29. Articles About a Unitary Patent System Are Lies and Marketing From Law Firms With 'Lawsuits Lust'

    Team UPC has grown louder with its lobbying efforts this past week; the same lies are being repeated without much of a challenge and press ownership plays a role in that



  30. The Decline in Patent Quality at the EPO Causes Frivolous Lawsuits That Only Lawyers Profit From

    The European Patent Office (EPO) will continue granting low-quality European Patents under the leadership of the Battistelli-'nominated' Frenchman, António Campinos; this is bad news for science and technology as that quite likely means a lot more lawsuits without merit (which only lawyers profit from)


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