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

07.17.18

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

Posted in America, Patents at 7:00 am by Dr. Roy Schestowitz

They want to get back in, having put one of them (Iancu) inside the patent office

Locked out

Summary: 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

DO NOT be alarmed by self-serving lawyers who claim that the US has collapsed in terms of “innovation” or that the patent system is in trouble. The USPTO simply improved its processes somewhat. In whose favour? Not law firms’. Then there’s the even greater contribution of patent courts, which have become stricter in lieu with SCOTUS and the Federal Circuit (the primary appeals court for patents).

“U.S. court denies Jazz Pharma bid to revive narcolepsy drug patents,” says this new report from Reuters. “A U.S. appeals court on Friday ruled invalid patents owned by Jazz Pharmaceuticals PLC covering its narcolepsy drug Xyrem, giving Amneal Pharmaceuticals Inc a boost in its effort to launch a generic version of the medicine.”

Well done. More generics!

This case (Jazz Pharms., Inc. v Amneal Pharms., Inc.) was mentioned some days ago here and elsewhere. It happened on a Friday (decision handed down), so a lot of the media overlooked/missed it. Patent maximalists said:

The patented invention at issue in Jazz Pharms is not a drug or drug treatment, but rather to a “drug distribution system for tracking prescriptions” for drugs with a risk of abuse[1] The PTAB found claims from all six patents to be invalid as obvious.

The core issue on appeal was whether a pre-filing disclosure by Jazz counted as a prior art “printed publication.”

So PTAB discards another bunch of bogus patents which should never have been granted in the first place. It’s good for the public (access to medicine), but we’re still going to see some front groups bashing PTAB over it. A few days ago we mentioned an anti-PTAB article from Thomas A. Hemphill, who does “Strategy, Innovation and Public Policy” in the School of Management at the University of Michigan-Flint. This has just been reposted by The Heartland Institute (rightwing think tank connected to the Kochs, who also bankroll other anti-PTAB think tanks); that says quite a lot about whose interests are served by him.

Michael Risch, another US professor, has just published “What do Generic Drug Patent Settlements Say about Patent Quality?”

This links to a study on which Professor Risch remarked as follows:

An interesting study about Orange Book patents challenged both under Hatch-Waxman and Inter Partes Review caught my eye this week, but perhaps not for the ordinary reasons. One of the hot topics in drug patent challenges today is reverse payments: when the patentee pays the generic to stop a challenge. The Supreme Court has ruled that these payments can constitute antitrust violations. Though the drug companies give reasons, I’ll admit that I’ve always been skeptical of these types of payments.

One of the key questions is whether the patent was going to survive. Most seem to assume that if a company pays to settle, then the patent was likely going to be invalidated. That’s where the draft, Maintaining the Balance: An Empirical Study on Inter Partes Review Outcomes of Orange Book-Listed Drug Patents and its Effect on Hatch-Waxman Litigation, by Tulip Mahaseth (a recent Northwestern Law grad) comes in.

[...]

Additionally, a split among outcomes implies that the settlements were not necessarily because the patentee believed the patent was at risk. If anti-competitive settlements were ruling the day, I would have predicted that most of the (recent) non-settlements would have resulted in patent invalidation. Then again, it is possible that a 50% chance was risky enough to merit a reverse payment settlement in the past. Regardless of how one comes out on this issue, this study provides some helpful details for the argument.

The net effect is reduction in litigation; the patents still exist, but the payouts to law firms may be orders of magnitude lower. Any Patent Trial and Appeal Board (PTAB) inter partes review (IPR) has the potential to either prevent a lawsuit or end a lawsuit, so it basically harms the business [sic] model of lawyers.

Here’s a new IPR example. It’s about MONKEYmedia, which we mentioned here before [1, 2]. To quote Unified Patents:

On July 13, 2018 the Board granted MONKEYmedia, Inc.’s request for adverse judgment and cancellation of all instituted claims in IPR2018-00059 filed by Unified Patents. This request comes shortly after the PTAB’s decision to institute trial for US 9,247,226 directed to a method for storing and playing multimedia so a user can interactively choose to expand or contract displayed content.

As one might expect, attacks on PTAB carry on. Almost every single day now. Even after Oil States, which cemented PTAB’s role in the system.

“The Supreme Crusade to Weaken Patent Rights in America” is the title of the latest rant from Gene Quinn (Watchtroll), who is still attacking the courts. These patent maximalists are totally losing their minds. Judge-bashing is now very common among them. Mind the laughable picture too, showing crusaders as if a religion is being spread (talk about hypocrisy here). Other anti-PTAB ‘activists’ nowadays send input to the USPTO, basically complaining about PTAB and AIA. There are now “over 350 submissions,” according to this.

Claim construction continues to hold focus as the centerpiece of contested patent cases — both in court and in administrative AIA trials (primarily, Inter Partes Review proceedings) before the Patent Trial and Appeal Board (PTAB).

[...]

One of PTO Director Iancu’s early initiatives has been to unify the standards. That process began with a notice of proposed rulemaking with finalized rules coming later this fall.

The USPTO has posted comments submitted on the proposed change — with over 350 submissions.

So the patent microcosm is telling someone from the patent microcosm (Iancu) what to do. It won’t change the courts’ position; it just has the potential to further erode the perceived legitimacy of newly-granted US patents. The above writer is a longtime PTAB basher who mostly celebrates the number of granted patents, not their quality. Going back to Watchtroll, yesterday it published not one but two anti-PTAB pieces, the latter being from the patent microcosm (“Jeremy Doerre is an associate at Tillman Wright, PLLC” and “David Boundy is a partner at Cambridge Technology Law”). They moan about Section 101 (trying to 'pull a Berkheimer') and make inane statements like this one:

We are hopeful that the PTO is using this forced stand-down on multiple appeals as a teachable moment. Will the PTO apply the lessons learned in a § 101 context to improve predictability and efficiency of the entire examination process? And maybe—not so coincidentally—will the PTO take this opportunity to enhance compliance with laws and failsafes that are designed to ensure agency predictability, efficiency, precision, and fairness, laws and failsafes that could have prevented this need to ask the Federal Circuit to vacate PTAB decisions?

They allude to “predictability and efficiency,” but for predictability the USPTO needs to reject all software patents (they’re predictably poor if not altogether bunk), in line with § 101. Notice how one sentence later they repeat “predictability, efficiency” (pointless repetition) and insinuate that the Federal Circuit is needed to “vacate PTAB decisions,” neglecting to say that in the vast majority of cases the Federal Circuit actually affirms PTAB decisions.

We don’t expect intellectual honesty from sites like Watchtroll; sadly, however, these people have connections at the patent office (revolving doors), they bully judges and officials whom they don’t like (e.g. Michelle Lee), and they have money for lobbying and/or think tanks with billionaires like the Kochs on their side. There’s a lot at stake for them, including their very occupation, which has become parasitic at best.

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. Links 18/3/2019: Solus 4, Linux 5.1 RC1, Mesa 18.3.5, OSI Individual Member Election Won by Microsoft

    Links for the day



  2. Microsoft and Its Patent Trolls Continue Their Patent War, Including the War on Linux

    Microsoft is still preying on GNU/Linux using patents, notably software patents; it wants billions of dollars served on a silver platter in spite of claims that it reached a “truce” by joining the Open Invention Network and joining the LOT Network



  3. Director Iancu Generally Viewed as a Lapdog of Patent Trolls

    As Director of the Office, Mr. Iancu, a Trump appointee, not only fails to curb patent trolls; he actively defends them and he lowers barriers in order to better equip them with bogus patents that courts would reject (if the targets of extortion could afford a day in court)



  4. Links 17/3/2019: Google Console and IBM-Red Hat Merger Delay?

    Links for the day



  5. To Team UPC the Unified Patent Court (UPC) Has Become a Joke and the European Patent Office (EPO) Never Mentions It Anymore

    The EPO's frantic rally to the very bottom of patent quality may be celebrated by obedient media and patent law firms; to people who actually produce innovative things, however, this should be a worrisome trend and thankfully courts are getting in the way of this nefarious agenda; one of these courts is the FCC in Germany



  6. Links 16/3/2019: Knoppix Release and SUSE Independence

    Links for the day



  7. Stopping António Campinos and His Software Patents Agenda (Not Legal in Europe) Would Require Independent Courts

    Software patents continue to be granted (new tricks, loopholes and buzzwords) and judges who can put an end to that are being actively assaulted by those who aren't supposed to have any authority whatsoever over them (for decisions to be impartially delivered)



  8. The Linux Foundation Needs to Speak Out Against Microsoft's Ongoing (Continued) Patent Shakedown of OEMs That Ship Linux

    Zemlin actively thanks Microsoft while taking Microsoft money; he meanwhile ignores how Microsoft viciously attacks Linux using patents, revealing the degree to which his foundation, the “Linux Foundation” (not about Linux anymore, better described as Zemlin’s PAC), has been compromised



  9. Links 15/3/2019: Linux 5.0.2, Sublime Text 3.2

    Links for the day



  10. The EPO and the USPTO Are Granting Fake Patents on Software, Knowing That Courts Would Reject These

    Office management encourages applicants to send over patent applications that are laughable while depriving examiners the freedom and the time they need to reject these; it means that loads of bogus patents are being granted, enshrined as weapons that trolls can use to extort small companies outside the courtroom



  11. CommunityBridge is a Cynical Microsoft-Funded Effort to Show Zemlin Works for 'Community', Not Microsoft

    After disbanding community participation in the Board (but there are Microsoft staff on the Board now) the "Linux Foundation" (or Zemlin PAC) continues to take Microsoft money and polishes or launders that as "community"



  12. Links 14/3/2019: GNOME 3.32 and Mesa 19.0.0 Released

    Links for the day



  13. EPO 'Results' Are, As Usual, Not Measured Correctly

    The supranational monopoly, a monopoly-granting authority, is being used by António Campinos to grant an insane amount of monopolies whose merit is dubious and whose impact on Europe will be a net negative



  14. Good News Everyone! UPC Ready to Go... in 2015!

    Benoît Battistelli is no longer in Office and his fantasy (patent lawyers' fantasy) is as elusive as ever; Team UPC is trying to associate opposition to UPC with the far right (AfD) once again



  15. Links 13/3/2019: Plasma 5.15.3,Chrome 73 and Many LF Press Releases

    Links for the day



  16. In the Age of Trumpism EFF Needs to Repeatedly Remind Director Iancu That He is Not a Judge and He Cannot Ignore the Courts

    The nonchalance and carelessness seen in Iancu's decision to just cherry-pick decisions/outcomes (basically ignoring caselaw) concerns technologists, who rightly view him as a 'mole' of the litigation 'industry' (which he came from)



  17. Links 12/3/2019: Sway 1.0 Released, Debian Feuds Carry On

    Links for the day



  18. Microsoft is Complaining About Android and Chrome OS (GNU/Linux) Vendor Not Paying for Microsoft Patents (Updated)

    Microsoft, which nowadays does the patent shakedown against GNU/Linux by proxy, is still moaning about companies that don’t pay ‘protection’ money (grounds for antitrust action or racketeering investigation)



  19. Watchtroll Has Redefined "Trolls" to Mean Those Who Oppose Software Patents (and Oppose Trolls), Not Those Who Leverage These for Blackmail Alone

    The controversial change to 35 U.S.C. § 101 guidance is being opposed by the public (US citizens who oppose American software patents), so patent maximalists like Janal Kalis (“PatentBuddy”) and extremists like Gene Quinn (Watchtroll) want us to believe that the public is just “EFF” and cannot think for itself



  20. EPO's Latest 'Results' Show That António Campinos Has Already Given Up on Patent Quality and is Just Another Battistelli

    The patent-granting machine that the EPO has become reports granting growth of unrealistic scale (unless no proper examination is actually carried out)



  21. Links 11/3/2019: Linux 5.0.1, Audacity 2.3.1, GNU Coreutils 8.31

    Links for the day



  22. US Patent Law Currently Not Changing Much and Software Patents Are Still in Limbo

    Surveying the news, as we still meticulously do (even if we don't write about it), it seems clear that American courts hardly tolerate software patents and proponents of such patents are losing their voice (or morale)



  23. EPO Examiner: “I Have Been Against Software Patents and Eventually 3/4 of My Job is Examining Software Patent Applications.”

    Overworked examiners aren't being given the time, the tools and the freedom to reject patents, based on prior art, patent scope and so on; it is beginning to resemble a rubber-stamping operation, not an examining authority



  24. Europe Will Pay a High Price for Software Patents Advocacy by António Campinos in Europe's Patent-Granting Authority

    EPO President António Campinos — like Iancu at the U.S. Patent and Trademark Office (USPTO) — is still promoting software patents in Europe even though such patents are clearly detrimental to Europe’s interests



  25. António Campinos -- Like His Father -- Lacks Support From Colleagues, Endorsed Only From the Top

    History lessons from Wikileaks



  26. Links 10/3/2019: GNU and GNOME Releases

    Links for the day



  27. Koch Brothers' Oil Money is Poisoning Academia and Distorting Scholarly Work/Research on Patents

    Meddling in patent law by the Kochs, the oil tycoons who can be seen everywhere Conservative think tanks are, shows no signs of abatement



  28. From Patents on Chewing Gum to Toothpaste Patents: How the EPO Came to Focus on Speed and Volume, Not Quality

    There’s still no proper quality control in place for European Patents — a severe problem which will only further exacerbate the legal uncertainty associated with all European Patents



  29. European Patent Office Press Releases (Two in Two Days) Are Disguised as 'News' and Tell the Opposite of the Truth

    The Office under the 'new' and 'improved' leadership of António Campinos seems to be repeating the mistakes of Battistelli by discrediting anything it says; its press releases, characteristically dubbed "news" for some reason, bear no resemblance to reality and are detached from facts EPO insiders have long known



  30. Links 9/3/2019: International Women’s Day, QtLottie

    Links for the day


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