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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.

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