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

06.13.18

The United States is Far Better Off With the Patent Trial and Appeal Board (PTAB), So Why Do Lawyers Attack It?

Posted in America, Patents at 12:01 am by Dr. Roy Schestowitz

Simple answer: because their loyalty to their bank account by far exceeds their loyalties to science, innovation, and their nation

Military parade
Patent lawsuits are to patent lawyers what wars are to military/arms manufacturing

Summary: The anti-PTAB lobby (which is basically the pro-troll or pro-litigation lobby) continues to belittle and insult PTAB, having repeatedly failed to dismantle it; in the meantime PTAB is disarming several more patent trolls and removing from the system patents which were granted in error (as well as the associated lawsuits)

THE appeal boards (BoA) of the EPO and PTAB at the USPTO are like independent audit mechanisms, tasked or set out to ensure patent quality. It is widely known — as it is recently reaffirmed by scholars — that patent offices often strive to just maximise the number of patents granted in order to attract further applications (more of the same), in effect granting monopolies irrespective of their merit/impact on the economy/industry/public interest.

“So what we have here is a bunch of lawyers basically demanding that US Congress revisits AIA, cherry-picks Oil States, and makes PTAB’s life (or work or profession) a lot harder.”Techrights does not oppose patents; it opposes patent maximalism. It’s against that scourge of bad patents granted purely for the sake of granting more patents. EPO examiners 'get' it, but the EPO’s management keeps threatening them if they don’t embrace patent maximalism and that is a profound threat.

Today’s first post concerns PTAB because Watchtroll, an anti-PTAB site, has just written about ECCO v Skechers (a case mentioned here earlier this month in passing, with only some sketchy details about Skechers). Watchtroll took note of PTAB’s relevance to Skechers:

Skechers has also been an avid user of the Patent Trial and Appeal Board (PTAB) to challenge the validity of patents held by either Nike or Adidas. To date, Skechers has filed a total of 20 petitions for inter partes review (IPR) at the PTAB. Not once has it been in front of the PTAB as a patent owner defending the validity of its own patents.

So what? Maybe that just means that Skechers has little interest in patenting or only has very (albeit solid) patents. Watchtroll is agitated by IPRs simply because the site serves the interests of the litigation ‘industry’ (which PTAB is a threat to). It should be noted that on the very same day (yesterday) Watchtroll was still protesting against PTAB itself (its very existence, even after Oil States). To quote the gist of it all:

In the AIA, Congress gave any person other than the patent owner the substantive right to petition the government to take a second look at a previously issued patent franchise in an IPR proceeding. 35 U.S.C. § 311(a); see also Oil States, slip op. at 2. Congress further expressly provided that a party dissatisfied with the Board’s decision in such a proceeding can seek judicial review by the Federal Circuit and be a party in such an appeal. 35 U.S.C. § 319; see also Oil States, slip op. at 4.

Thus, Congress created a statutory right (the right to file a petition and if instituted obtain a proper final written decision), which if deprived confers standing on the petitioner, even if the petitioner “would have suffered no judicially cognizable injury in absence of the statute.” Warth, 422 U.S. at 514; see also Linda R.S., 410 U.S. at 617 n.3. The Federal Circuit’s holdings in Consumer Watchdog, Phegnix and RPX to the contrary are wrong and should be reversed.

So what we have here is a bunch of lawyers basically demanding that US Congress revisits AIA, cherry-picks Oil States, and makes PTAB’s life (or work or profession) a lot harder. This fits the pattern of lobbying we’ve seen for well over a year at Patently-O, another site which fronts for the litigation ‘industry’.

Speaking of Patently-O, earlier this week it wrote about printed publications qualifying as evidence of prior art. US patents and invalidation thereof (based on them being not novel or simply utter rubbish) may now be subjected to a new form of supporting evidence:

In Medtronic Inc. v. Mark Barry, the PTAB confirmed the patentability of some of Barry’s patented back-straightening claims found in U.S. Patent Nos. 7,670,358 and 7,776,072. The saving-grace for Barry was a PTAB ruling that a set of Videos and Slides distributed by Medtronic did not count as prior art “printed publications” because they were not sufficiently publicly accessible prior to Barry’s application filing. On appeal, however, the Federal Circuit has vacated the lower tribunal opinion — holding that the Board did not consider all the relevant factors in its determination.

Section 102 of the patent act establishes “printed publications” as a form of prior art.

And why not? Section 102 speaks of prior art and so does Robert Jain, whose employer (Unified Patents) uses prior art to invalidate patent trolls’ patents when Section 101 isn’t enough. Red River Innovations is basically a patent troll which we wrote about a couple of months back, one month after Unified Patents had announced $2,000 bounties for prior art. Soon enough it won’t even even a patent based on yesterday’s update from Jain:

Unified is pleased to announce the PATROLL crowdsourcing contest winner, Rajesh Singh, who received a cash prize of $2000 for his prior art submission for U.S. Patent 7,526,477, owned by Red River Innovations, LLC, a, NPE. The ’477 patent, directed to an electronic text recommendation system, has been asserted in multiple district court cases. To help the industry fight bad patents, we have published the winning prior art below.

Good riddance. That’s justice in action.

Another very notorious patent troll, Uniloc, is about to lose a key patent because (as Jain put it):

On June 11, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 7,092,671 owned and asserted by Uniloc Luxembourg, SA, a well-known NPE. The ’671 patent, directed to an automated telephone dialing system, has been asserted in multiple district court cases against such companies as Apple and Samsung.

They pretend to be in Luxembourg. We already wrote a great deal about Luxembourg as a facilitator of patent trolls and tax evasion through patents.

Going back to Patently-O, it turns out that another bogus patent was caught up by PTAB and then invalidated/lawsuit dropped. Only lawyers won this case (legal bills) and now they bicker/argue about who’s going to pay:

Typical initial setup of a patent infringement lawsuit: the patentee (Stone’) sued Cook for infringement; Cook then requested an inter partes of the asserted patent. What happened next was odd — after Cook refused a $150k settlement, Stone conceded the IPR (all claims then cancelled) as well as the lawsuit (dismissed with prejudice).

Note here that the invention looks pretty cool – an endoscope with a basket-type device for extracting stones from a human body — such as ureteral, kidney, or gall stones. U.S. Patent No. 6,551,327. The problem apparently is the invention’s lack of novelty.

As a side note, Patently-O has also just published interesting new data (or presentation thereof). Over time, as we noted a few days ago, more 'faked' names get listed/named in patents/applications for patents. Based on some more graphs from Dennis Crouch, which he has just published, the growth is linear and consistent. He put up the graphs while noting:

The chart below is a follow-up my prior post involving teams of inventors. The chart shows the average number of inventors per utility patent. For patents issued in first five-months of 2018, about 5% have 7 or more inventors.

Suffice to say, few of these are actually involved in the so-called ‘invention’. They’re just collectively gaming the system to have their names mentioned in as many patents as possible.

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. Reader's Article: Affaire Benalla Strongly Connected to EPO/OEB/EPA and Former President Benoît Battistelli

    A Macron scandal has led French media to finally (and years too late) exploring some of the much more explosive scandals at the EPO, revealing some interesting new details in the process



  2. Language Patent Lawyers Are Using to Warp the Debate and Decrease Public Understanding of Patents

    The patent microcosm, trying to get the public all baffled/confused about the patent system, continues (mis)using words to convey things in misleading ways



  3. USPTO FEES ACT Makes the US Patent Office a Money-Making Machine That Systematically Disregards Patent Quality

    The lingering issues with patent assessment at the US patent office, which unlike US courts isn't quite so impartial an actor (it benefits more from granting than from rejecting)



  4. Guest Post on Ronan Le Gleut and Benalla at the French Senate (in Light of Battistelli's Epic Abuses)

    Thoughts on the possibility that Battistelli will belatedly be held accountable for his abuses, knowing that a senator representing French Citizens residing Abroad comes from the EPO



  5. A Lot of US Patents Are Entirely Bogus, But Apple Was Willing to Pay for Them

    Apple's resistance to Qualcomm's patent aggression was preceded by very heavy ("thermonuclear" by Steve Jobs' description/words) patent wars against Android and even legitimisation of clearly bogus software patents from Amazon



  6. 'Owning' Nature, Thanks to Patent Insanity and People Who Profit From That

    Questionable patents on things that always existed and are merely being explained or reassembled; those sorts of patents typically serve to merely discredit the patent system and courts too increasingly reject such patents (e.g. SCOTUS on Mayo Collaborative Services and Myriad Genetics, Inc.)



  7. Patents Stranger Than Fiction and 'Protection' From Fictional Things

    Fictional things are being treated like "inventions" and insurance companies now look to exploit fear of fictional things (man-made concepts), such as ownership of mere ideas or words



  8. Benoît Battistelli Refuses to Talk to the Media About Bringing Firearms to the EPO

    Benoît Battistelli's highly aggressive approach has attracted the attention of French media; Battistelli has reportedly refused to comment on that matter, knowing that he lacks a defense (same thing happened after he had hauled millions of EPO euros to his other employer)



  9. Patent Law Firms Have Become More Like Marketing Departments With an Aptitude for Buzzwords

    What we're observing, without much reluctance anymore, is that a lot of patent lawyers still push abstract software patents, desperately looking for new trendy terms or adjectives by which to make these seem non-abstract



  10. Interlude: The Need to Counter Misinformation From the Patent and Litigation 'Industry'

    24,500 posts reached; so we pause and reflect, seeing that many sites/blogs of patent maximalists gradually ebb away



  11. Advocacy of the Unitary Patent System Has Become Almost Identical to the 'Leave' (Brexit) Campaign

    The charades of Team UPC carry on in Kluwer Patent Blog — a blog which for a very long time served no purpose other than Unified Patent Court (UPC) advocacy



  12. Open Invention Network is Rendered Obsolete in the Wake of Alice and It's Not Even Useful in Combating Microsoft's Patent Trolls

    Changes at the US Patent and Trademark Office (USPTO) and in US courts' outcomes may have already meant that patent trolls rather than software patents in general are a growing threat, including those that Microsoft is backing, funding and arming to put legal pressure on GNU/Linux (and compel people/companies to host GNU/Linux instances on Azure for patent 'protection' from these trolls)



  13. Bogus Patents Which Oughtn't Have Been Granted Make Products Deliberately Worse, Reducing Innovation and Worsening Customers' Experience

    How shallow patents — or patent applications that no patent office should be accepting — turn out to be at the core of multi-billion-dollar cases/lawsuits, with potentially a billion people impacted (their products made worse to work around such questionable patents)



  14. EPO is Like a Patent Litigation (Without Actual Trial) Office, Not a Patent Examination Office

    Examination of patent applications isn't taken seriously by an office whose entire existence was supposed to be about examination; bureaucracy at the top of this office has apparently decided that the sole goal is to create more demand (i.e. lawsuits) for the litigation 'industry'



  15. Philippe Cadre From the French National Institute of Industrial Property (INPI) Wants to Join António Campinos

    Yet another example of INPI's creeping influence if not 'entryism' at the EPO and this time too patent quality isn't a priority



  16. Links 22/9/2018: Mesa 18.2.1, CLIP OS, GPL Settlement in Artifex/First National Title Insurance Company

    Links for the day



  17. Links 21/9/2018: Cockpit 178, Purism 'Dongle'

    Links for the day



  18. Criticism of Unitary Patent (UPC) Agreement Doomed the UPC and Patent Trolls' Plan -- Along With the Litigation Lobby -- for Unified 'Extortion Vector'

    The Unitary Patent or Unified Patent Court (UPC) was the trolls' weapon against potentially millions of European businesses; but those businesses have woken up to the fact that it was against their interests and European member states such as Spain and Poland now oppose it while Germany halts ratification



  19. It Wasn't Judges With Weapons in Their Office, It Was Benoît Battistelli Who Brought Firearms to the European Patent Office (EPO)

    The EPO scandals deepen in light of a very major scandal which has occupied the French media for a couple of months



  20. Links 20/9/2018: 2018 Linux Audio Miniconference and Blackboard's Openwashing

    Links for the day



  21. Links 19/9/2018: Chromebooks Get More DEBs, LLVM 7.0.0 Released

    Links for the day



  22. Links 18/9/2018: Qt 5.12 Alpha , MAAS 2.5.0 Beta, PostgreSQL CoC

    Links for the day



  23. Today's European Patent Office (EPO) Works for Large, Foreign Pharmaceutical Companies in Pursuit of Patents on Nature, Life, and Essential/Basic Drugs

    The never-ending insanity which is patents on DNA/genome/genetics and all sorts of basic things that are put together like a recipe in a restaurant; patents are no longer covering actual machinery that accomplishes unique tasks in complicated ways, typically assembled from scratch by humans; some supposed 'inventions' are merely born into existence by the natural splitting of organisms or conception (e.g. pregnancy)



  24. The EPO Has Quit Pretending That It Cares About Patent Quality, All It Cares About is Quantity of Lawsuits

    A new interview with Roberta Romano-Götsch, as well as the EPO's promotion of software patents alongside CIPA (Team UPC), is an indication that the EPO has ceased caring about quality and hardly even pretends to care anymore



  25. Qualcomm's Escalating Patent Wars Have Already Caused Massive Buybacks (Loss of Reserves) and Loss of Massive Clients

    Qualcomm's multi-continental patent battles are an effort to 'shock and awe' everyone into its protection racket; but the unintended effect seems to be a move further and further away from 'Qualcomm territories'



  26. Links 17/9/2018: Torvalds Takes a Break, SQLite 3.25.0 Released

    Links for the day



  27. The Patent Trial and Appeal Board (PTAB) Helps Prevent Frivolous Software Patent Lawsuits

    PTAB with its quality-improving inter partes reviews (IPRs) is enraging patent maximalists; but by looking to work around it or weaken it they will simply reduce the confidence associated with US patents



  28. Abstract Patents (Things One Can Do With Pen and Paper, Sometimes an Abacus) Are a Waste of Money as Courts Disregard Them

    A quick roundup of patents and lawsuits at the heart of which there's little or no substance; 35 U.S.C. § 101 renders these moot



  29. “Blockchain” Hype and “FinTech”-Like Buzzwords Usher in Software Patents Everywhere, Even Where Such Patents Are Obviously Bunk

    Not only the U.S. Patent and Trademark Office (USPTO) embraces the "blockchain" hype; business methods and algorithms are being granted patent 'protection' (exclusivity) which would likely be disputed by the courts (if that ever reaches the courts)



  30. Qualcomm's Patent Aggression Threatens Rationality of Patent Scope in Europe and Elsewhere

    Qualcomm's dependence on patent taxes (so-called 'royalties' associated with physical devices which it doesn't even make) highlights the dangers now known; the patent thicket has grown too "thick"


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