06.17.18

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The Affairs of the USPTO Have Turned Into Somewhat of a Battle Against the Courts, Which Are Simply Applying the Law to Invalidate US Patents

Posted in America, Patents at 10:24 am by Dr. Roy Schestowitz

Poor assessment of patent applications can now be stopped or compensated for by the Patent Trial and Appeal Board (PTAB) and, failing that, the Court of Appeals for the Federal Circuit (CAFC)

A death squad
A “death squad” is what patent maximalists nowadays call a court (where the only casualty is a piece of paper, or a low-quality patent which US law renders invalid)

Summary: The struggle between law, public interest, and the Cult of Patents (which only ever celebrates more patents and lawsuits) as observed in the midst of recent events in the United States

THE ideology of patent maximalism is a toxic one and it is infectious only within circles that sell, trade, and exploit patents for litigation, not innovation. It’s all about financial motivations and those motivated to spread patent maximalism typically profit from mass litigation. It’s their most expensive “product” or “service” as it can last several years (appeals, discovery, so-called ‘damages’ with a ‘cut’ for respective law firms).

“They don’t seem to care about facts, only mythology and beliefs.”Earlier this year we started habitually referring to “patent maximalism” (of the “patent microcosm”) as “Cult of Patents” because it has become almost like a religion to these people. They don’t seem to care about facts, only mythology and beliefs.

“A reader suggested this chart as we approach U.S. Patent No. 10,000,000,” Patently-O wrote on Friday. As we said before, it’s a pretty meaningless milestone from this Cult of Patents (the patent maximalists). Half a decade or so after Alice and nearly a decade after the Bilski case the Office just granted far too many patents far too fast. Look at the rate of expansion of grants; do people invent twice as many things today as they did about a decade ago? Or a hundred times more than a century ago? Or maybe it’s just patent maximalism taking over, dubbing just about anything an “invention” and justifying/ permitting a monopoly on it?

“Earlier this year we started habitually referring to “patent maximalism” (of the “patent microcosm”) as “Cult of Patents” because it has become almost like a religion to these people. They don’t seem to care about facts, only mythology and beliefs.”Juvan Bonni at Patently-O is now promoting Koch-funded patent lobbying from Adam Mossoff. These are patents-maximising boosters/nuts who promote billionaires’ agenda and defend patent trolls. Bonni is also promoting ISDS for patents. Look what Patently-O is being reduced to; it’s like another Watchtroll or IAM. The more their agenda gets curtailed, the more extreme they seem to become. They already call judges “death squads”, so what next? “Nazis”? They then ‘interview’ USPTO officials like Michelle Lee, later to sort of attack them (after they had met them); the following old meme comes to mind, only in reverse (reality first, then Internet):

Internet fight

To repair the reputation of USPTO-granted patents Mr. Iancu will need to ignore lobbyists like David Kappos and work towards granting less, based on solid eligibility criteria (such as § 101 and beyond, taking note of Federal Circuit cases/caselaw). As the CCIA’s patents person put it the other day:

Here’s another fun one from the Kappos/Sachs database: 14/118458. Rejected in the US under § 101. Except it’s rejected under § 101 because its an “e-cat” fusion claim, the modern equivalent of a perpetual motion machine. I think we can all agree that the PTO can reject those.

Timothy Au, who recently helped the EPO‘s tyrant Battistelli lie about patent "quality", now speaks about Delaware and East Texas. It’s just the latest TC Heartland spin basically. “Delaware is now the US’s number one patent litigation venue,” IAM said, “but there are several reasons why it is unlikely to become the Eastern District of Texas, mark 2.” That is what a “study claims,” according to IAM’s headline. The name of the firm/person behind this ‘study’ is blocked by a paywall unfortunately (likely intentional). To quote:

Research into the increase in patent suits in the District of Delaware following TC Heartland has found that the venue shift is likely to result in less litigation from patent assertion entities (PAEs), while also revealing that firms incorporated in Delaware have been impacted by the changes resulting from the Supreme Court’s landmark decision most positively. The TC Heartland ruling reinterpreted venue selection rules in the US and drastically reduced the choices a patent owner faces when deciding where to file an infringement lawsuit.

Not too long ago they boosted the likes of “4iP Council”, basically attempting to deny growth of patent trolls' activity in Europe. We’ve sadly entered this ugly phase where amid efforts to improve patent quality in the US, notably owing to PTAB, USPTO officials like Michelle Lee get defamed and ousted (we won’t attribute that to chauvinism, but with people like Watchtroll anything is possible). In Europe, those who speak out in favour of patent quality (or proper examination) are being painted “Nazis” by Battistelli and in the US it’s “death squads” (with Nazi Germany connotations).

“In Europe, those who speak out in favour of patent quality (or proper examination) are being painted “Nazis” by Battistelli and in the US it’s “death squads” (with Nazi Germany connotations).”Frankly, speaking for myself, I have lost count of the number of threatening letters I’ve received in recent years (either death wishes or threats to sue me), but this is the kind of climate we now have in the patent world (more like a patent Hell).

In light of SAS Inst., Inc. v Iancu, another SCOTUS case among many, Huawei Technologies Co., Ltd. et al v Samsung Electronics Co., Ltd. is being revisited right now. “Institution of Claims Based on SAS Mandate May Not Simplify Issues for Trial Such That a Stay of Litigation is Warranted,” Docket Navigator wrote before the weekend. To quote:

Following the PTAB’s supplemental institution decision in light of SAS Inst., Inc. v. Iancu, ___ U.S. ___, 138 S. Ct. 1348, 1352–54 (2018) instituting inter partes review of all challenged claims of the patents-in-suit, the court granted defendants’ motion to stay because the potential for simplification of issues, the stage of the litigation, and lack of prejudice to plaintiff weighed in favor of a stay.

This is PTAB’s efficiency being challenged, in addition to PTAB members/staff being smeared if not defamed almost every single day. As we noted a couple of days ago, one US politician is currently trying to deny PTAB's involvement in the pharmaceutical sector (we suspect because large pharmaceutical companies ‘contributed’ to him). Earlier today the Illinois Biotechnology Innovation Organization (iBIO), basically a front group for such corporations (like BIO, an anti-PTAB group), advertised this upcming “discussion of how the Supreme Court’s recent to grant cert in Oil States and SAS decisions could impact PTAB invalidity proceedings in the bio/pharma space.”

“They attempt to undermine — not merely shape — the law.”Oil States actually reiforced PTAB’s role, quite strongly in fact. What they hope to do is undermine PTAB’s reach (bar “scams” such as Allergan’s), especially for their sector. They attempt to undermine — not merely shape — the law.

Here we are in the middle of 2018 and it almost looks like a ‘civil war’ in the US; the courts are applying the law, hinged on the US Constitution, but then come a bunch of patent profiteers bashing their own country in an effort to create a state of panic, rationalising profound changes to the law.

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