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 16/6/2019: Tmax OS and New Features for KDE.org

    Links for the day



  2. Stuffed/Stacked Panels Sent Back Packing After One-Sided Patent Hearings That Will Convince Nobody, Just Preach to the Choir

    Almost a week ago the 'world tour' of patent lobbyists in US Senate finally ended; it was an utterly ridiculous case study in panel stacking and bribery (attempts to buy laws)



  3. 2019 H1: American Software Patents Are as Worthless as They Were Last Year and Still Susceptible to Invalidation

    With a fortnight left before the second half of the year it seems evident that software patents aren't coming back; the courts have not changed their position at all



  4. As European Patent Office Management Covers up Collapse in Patent Quality Don't Expect UPC to Ever Kick Off

    It would be madness to allow EPO-granted patents to become 'unitary' (bypassing sovereignty of nations that actually still value patent quality); it seems clear that rogue EPO management has, in effect, not only doomed UPC ambitions but also European Patents (or their perceived legitimacy, presumption of validity)



  5. António Campinos -- Unlike His Father -- Engages in Imperialism (Using Invalid Patents)

    Despite some similarities to his father (not positive similarities), António Campinos is actively engaged in imperialistic agenda that defies even European law; the EPO not only illegally grants patents but also urges other patent offices to do the same



  6. António Campinos Takes EPO Waste and Corruption to Unprecedented Levels and Scale

    The “B” word (billions) is thrown around at Europe’s second-largest institution because a mischievous former EUIPO chief (not Archambeau) is ‘partying’ with about half of the EPO’s all-time savings, which are supposed to be reserved for pensions and other vital programmes, not presidential palaces and gambling



  7. Links 15/6/2019: Astra Linux in Russia, FreeBSD 11.3 RC

    Links for the day



  8. Code of Conduct Explained: Partial Transcript - August 10th, 2018 - Episode 80, The Truth About Southeast Linuxfest

    "Ask Noah" and the debate on how a 'Code of Conduct' is forcibly imposed on events



  9. Links 14/6/2019: Xfce-Related Releases, PHP 7.4.0 Alpha

    Links for the day



  10. The EPO is a Patent Troll's Wet Dream

    The makers of software and games in Europe will have to spend a lot of money just keeping patent trolls off their backs — a fact that seems to never bother EPO management because it profits from it



  11. EPO Spreading Patent Extremists' Ideology to the Whole World, Now to South Korea

    The EPO’s footprint around the world's patent systems is an exceptionally dangerous one; The EPO amplifies the most zealous voices of the patents and litigation ‘industry’ while totally ignoring the views and interests of the European public, rendering the EPO an ‘agent of corporate occupation’



  12. Guest Post: Notes on Free Speech, and a Line in the Sand

    We received this anonymous letter and have published it as a follow-up to "Reader's Claim That Rules Similar to the Code of Conduct (CoC) Were 'Imposed' on LibrePlanet and the FSF"



  13. Links 13/6/2019: CERN Dumps Microsoft, GIMP 2.10.12 Released

    Links for the day



  14. Links 12/6/2019: Mesa 19.1.0, KDE neon 5.16, Endless OS 3.6.0 and BackBox Linux 6

    Links for the day



  15. Leaked Financial 'Study' Document Shows EPO Management and Mercer Engaging in an Elaborate “Hoax”

    How the European Patent Office (EPO) lies to its own staff to harm that staff; thankfully, the staff isn't easily fooled and this whole affair will merely obliterate any remnants of "benefit of the doubt" the President thus far enjoyed



  16. Measuring Patent Quality and Employer Quality in Europe

    Comparing the once-famous and respected EPO to today's joke of an office, which grants loads of bogus patents on just about anything including fruit and mathematics



  17. Granting More Fundamentally Wrong Patents Will Mean Reduced Certainty, Not Increased Certainty

    Law firms that are accustomed to making money from low-quality and abstract patents try to overcome barriers by bribing politicians; this will backfire because they show sheer disregard for the patent system's integrity and merely lower the legal certainty associated with granted (by greedy offices) patents



  18. Links 11/6/2019: Wine 4.10, Plasma 5.16

    Links for the day



  19. Chapter 10: Moving Forward -- Getting the Best Results From Open Source With Your Monopoly

    “the gradual shift in public consciousness from their branding towards our own, is the next best thing to owning them outright.”



  20. Chapter 9: Ownership Through Branding -- Change the Names, and Change the World

    The goal for those fighting against Open source, against the true openness (let's call it the yet unexploited opportunities) of Open source, has to be first to figuratively own the Linux brand, then literally own or destroy the brand, then to move the public awareness of the Linux brand to something like Azure, or whatever IBM is going to do with Red Hat.



  21. Links 10/6/2019: VLC 3.0.7, KDE Future Plans

    Links for the day



  22. Patent Quality Continues to Slip in Europe and We Know Who Will Profit From That (and Distract From It)

    The corporate media and large companies don't speak about it (like Red Hat did before entering a relationship with IBM), but Europe is being littered and saturated with a lot of bogus software patents -- abstract patents that European courts would almost certainly throw out; this utter failure of the media to do journalism gets exploited by the "big litigation" lobby and EPO management that's granting loads of invalid European Patents (whose invalidation goes underreported or unreported in the media)



  23. Corporate Front Groups Like OIN and the Linux Foundation Need to Combat Software Patents If They Really Care About Linux

    The absurdity of having groups that claim to defend Linux but in practice defend software patents, if not actively then passively (by refusing to comment on this matter)



  24. Links 9/6/2019: Arrest of Microsoft Peter, Linux 5.2 RC4, Ubuntu Touch Update

    Links for the day



  25. Chapter 8: A Foot in the Door -- How to Train Sympathetic Developers and Infiltrate Other Projects

    How to train sympathetic developers and infiltrate other projects



  26. Chapter 7: Patent War -- Use Low-Quality Patents to Prove That All Software Rips Off Your Company

    Patents in the United States last for 20 years from the time of filing. Prior to 1994, the patent term was 17 years from when the patent was issued.



  27. The Linux Foundation in 2019: Over 100 Million Dollars in Income, But Cannot Maintain Linux.com?

    Today’s Linux Foundation gets about 0.1 billion dollars per year (as explained in our previous post), so why can’t it spend about 0.1% of that money on people who write for and maintain a site that actually promotes GNU/Linux?



  28. Microsoft and Proprietary Software Vendors a Financial Boon for the Linux Foundation, But at What Cost?

    The Linux Foundation is thriving financially, but the sources of income are diversified to the point where the Linux Foundation is actually funded by foes of Linux, defeating the very purpose or direction of such a nonprofit foundation (led by self-serving millionaires who don't use GNU/Linux)



  29. The Linux Foundation as a Facilitator of Microsoft's Abduction of Developers (for GitHub, Azure, Visual Studio and Windows)

    There’s a profoundly disturbing pattern; in a rush for influence and money the Linux Foundation inadvertently (or worse — consciously and deliberately) paved the way to Microsoft’s more modern version of Embrace, Extend, Extinguish (EEE)



  30. Links 8/6/2019: FreeBSD 11.3 Beta 3, Git 2.22.0 and IPFire 2.23

    Links for the day


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

Recent Posts