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

07.21.18

Federal Circuit Judges Moore, Dyk and Reyna Tell Allergan That It is Not Above the Law

Posted in America, Courtroom, Patents at 8:36 am by Dr. Roy Schestowitz

The Court of Appeals for the Federal Circuit (CAFC) in the United States finally says what ought to have been pretty obvious all along

Australian House of Parliament
Australian House of Parliament, where similarly important decisions have been made lately (including de facto ban on software patents as per IP Australia’s policy)

Summary: Allergan and a Native American tribe have lost their ridiculous case; after swapping tens of millions of dollars in pursuit of immunity for patents they’ve lost again (in what’s likely their last resort/appeal); expect the patent microcosm to attempt to distract from it (like they did Oil States)

THE Patent Trial and Appeal Board’s (PTAB) inter partes reviews (IPRs) aren’t just secured by Oil States; the new Director of the USPTO will need to coexist with PTAB, seeing that nothing but a case with his name on it (SAS and Iancu) favours PTAB cutbacks.

The latest boost for PTAB comes from a high patent (and beyond) court. It’s quite likely the final stop. The ‘scammers’ who threatened me with legal action (for speaking out against their bogus patents and dirty tricks) have just lost their case. IP Watch‘s Steven Seidenberg said this: “The strategy was breathtaking in its boldness. Just days before the USPTO was to hear a challenge to Allergan Inc.’s patents on a dry-eye drug, Restasis, the company transferred those patents to a Native American tribe; the tribe then sought to dismiss the USPTO proceedings by asserting sovereign immunity. Following this action, a number of other patentees made similar transfers to Native tribes, in order to protect their patents. More patentees were poised to do so, should this ploy prove effective. It, however, did not. On 20 July, the Federal Circuit Court of Appeals ruled the tribe’s sovereign immunity did not protect its patents from USPTO review. The ruling thus kept intact a key component of America’s patent system.”

“It’s quite likely the final stop.”The remainder is behind a paywall.

“Allergan is not protected from PTAB review by the Saint Regis Mohawk Tribe’s sovereign immunity, says the appeals court in a ruling that relies on the Supreme Court’s FMC opinion,” Michael Loney wrote.

Over at Patent Progress, Josh Landau (CCIA) wrote:

Today, in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals, the Federal Circuit held that tribal sovereign immunity does not provide a right of immunity in inter partes reviews (IPR).

In an opinion by Judge Moore, writing for herself and Judges Dyk and Reyna, the Federal Circuit focused on the PTO Director’s ability to decide whether or not to proceed with an IPR, a decision which ensures that “if IPR proceeds on patents owned by a tribe, it is because a politically accountable, federal official has authorized the institution of that proceeding.” This aspect of IPR is sufficient to treat IPR as a proceeding “in which an agency chooses whether to institute a proceeding on information supplied by a private party,” exactly the type of proceeding which the Supreme Court has previously held would not be subject to state sovereign immunity, and by extension to tribal sovereign immunity. (CCIA joined an amicus brief suggesting the Federal Circuit deny tribal immunity on this ground, among others.)

Watchtroll mentioned “an opinion authored by Judge Moore,” choosing not to simply attack the judge, for a change. It’s Mayer whom the site (in)famously attacked, not Moore; “It is time for Judge Mayer to Step Down,” said the headline (there has been more of that since).

“Watchtroll is of course cherry-picking outcomes or cases that serve to distract from the majority of cases…”Moore was recently mentioned in relation to a decision about Alice, with words taken out of context to insinuate that Congress should look into it. We debunked these lies from the patent microcosm at the time. Vis-à-vis Judge Moore, yesterday Watchtroll mentioned her and and her superior Chief Judge Sharon Prost:

On Monday, July 16th, the Court of Appeals for the Federal Circuit issued a precedential decision in Blackbird Tech v. ELB Electronics, which vacated an earlier judgment of non-infringement of a patent asserted by Blackbird in the District of Delaware. The Federal Circuit panel of Chief Judge Sharon Prost and Circuit Judge Kimberly Moore determined that the district court had erred at construing the claim term “attachment surface” in finding non-infringement of the asserted claims. Circuit Judge Jimmie Reyna dissented in this case.

The patent-at-issue is U.S. Patent No. 7086747, titled Low-Voltage Apparatus for Satisfying After-Hours Lighting Requirements, Emergency Lighting Requirements, and Low Light Requirements. Issued in August 2006, it covers an energy-efficient lighting apparatus having a ballast cover, a plurality of ballast cover holes, a circuit board having a plurality of light-emitting diodes (LEDs) which protrude through the ballast cover holes, wherein the lighting apparatus is connected to a wall switch and the illumination of the LEDs is based upon the position of the wall switch. The resulting invention provides a lighting apparatus which meet after-hours or emergency lighting requirements more efficiently and conveniently for commercial building environments.

For those who don’t know (or forgot), Blackbird is a highly notorious patent troll [1, 2, 3, 4, 5]. It calls itself “Blackbird Technologies”, but it makes no such thing. It’s a parasite and the CAFC’s staff ought to recognise this. Watchtroll is of course cherry-picking outcomes or cases that serve to distract from the majority of cases — ones in which SCOTUS decisions are being followed and patents squashed — not just the cases but the underlying patents (for invalidity rather than non-infringement).

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. OSI Did Not Guard the Open Source Brand; Now Its Own Name, Open Source Initiative, is Being 'Diluted' and “Open Source” is Almost Meaningless

    The term or the brand “Open Source” is becoming worthless because those who use it typically engage in production of proprietary software falsely marketed as “Open Source” (that's what openwashing is inherently about)



  2. Microsoft is Not an Open Source Authority But an Opponent of Open Source

    Various outlets that are closely connected to Microsoft are trying to convince us that Microsoft is now 'king' of Open Source; nothing could be further from the truth however



  3. Links 22/9/2019: KMyMoney 5.0.7, Lennart's Latest Plan

    Links for the day



  4. Summits of Open Bear Traps: The Open Core Summit and Other 'Open' Events That Actually Attack Software Freedom

    Conferences that call themselves "open" something are sometimes nothing but an attack on openness (not to mention freedom) and promotion of FUD about Free/Open Source software (FOSS); there's an ample set of examples to that effect



  5. Openwashing Report: 'Open Source' Without Any or Most of the Benefits

    The cheapening of the term "Open Source" continues; sooner or later everything out there will be called "open" irrespective of what it really is



  6. Patent Extremism is Not Normal and Not an Innocent Mindset

    Reflection upon the sad state of the European patent system and how media turns a blind eye to it; worldwide, in general, the discussion about patents is being warped by the litigation giants, whose sole goal is to maximise the number of lawsuits/shakedowns (personal gain)



  7. Links 22/9/2019: LLVM 9.0.0 and FreeBSD 12.1 Beta

    Links for the day



  8. Links 21/9/2019: Plasma 5.17 Beta in Kubuntu, Cockpit 203

    Links for the day



  9. IBM Cannot Become a True Friend of Free Software Because of Its Current Patent Policy

    IBM needs to quit bullying people/companies with software patents; that would help towards appeasement of IBM critics and sceptics



  10. When Patent 'Professionals' Sound Like Children Who Learned to Parrot Some Intentionally-Misleading Buzzwords, Myths and Lies

    With buzzwords like "AI" and misleading terms like "IP" the litigation zealots are trying to convince themselves (and the public) that software is a physical thing and a "property" which needs "protecting" from "theft"; it doesn't seem to bother these people that copyright law already covers software



  11. The European Parliament Needs to Become More Outspoken About EPO Abuses

    There are few encouraging signs in Europe right now because the EPO's disregard for patent law (striving to just grant as many patents as possible) earned it much-needed backlash from the European Parliament



  12. Links 19/9/2019: German Federal Ministry of the Interior Wants FOSS, Top Snaps Named

    Links for the day



  13. Buying the Voices of 'Linux' People to Repeat Microsoft's Talking Points While Removing Our Icons and Leaders (Calling Them Sexist)

    The dirty games leveraged by several companies including Microsoft target charismatic people who are essential for morale and leadership; these tactics aren't particularly novel



  14. When the EPO Sees Itself as Above European Law, Grants Patents in Defiance of the EPC (Its Founding Document) and Violates Staff's Labour Rights/Protections (International Law)

    The absurd state of affairs at the EPO has reached the point where laws at every level are being violated and even judges are being threatened or vainly ignored; the EU is belatedly trying to tackle these issues, which have actually cost its credibility a great deal and threaten the perception of Rule of Law at multiple levels



  15. Links 19/9/2019: Samba 4.11.0 and Kubernetes 1.16

    Links for the day



  16. Update on Koch v EPO: Internal Appeals Committee (IAC) Composition Still Likely Illegal

    An important EPO case, concerning a dismissed staff representative, shows what ILO-AT and the EPO's Internal Appeals Committee boil down to



  17. Links 18/9/2019: Fedora Linux 31 Beta, PCLinuxOS 2019.09 Update

    Links for the day



  18. Links 17/9/2019: CentOS 7.7 and Funtoo Linux 1.4 Released

    Links for the day



  19. EPO is Not European

    Internationalists and patent trolls are those who stand to benefit from the 'globalisation' of low-quality and law-breaking patents such as patents on algorithms, nature and life itself; the EPO isn't equipped to serve its original goals anymore



  20. The EPO's Central Staff Committee and SUEPO (Staff Union) Respond to “Fascist Bills” Supported by EPO President António Campinos

    Raw material pertaining to the latest Campinos "scandal"; what Campinos said, what the Central Staff Committee (CSC) said, and what SUEPO said



  21. Storm Brewing in the European Patent Office After a Hot Summer

    Things aren't rosy in EPOnia (to say the least); in fact, things have been getting a lot worse lately, but the public wouldn't know judging by what media tells the public (almost nothing)



  22. Why I Once Called for Richard Stallman to Step Down

    Guest post from the developer who recently authored "Getting Stallman Wrong Means Getting The 21st Century Wrong"



  23. As Richard Stallman Resigns Let's Consider Why GNU/Linux Without Stallman and Torvalds Would be a Victory to Microsoft

    Stallman has been ejected after a lot of intentionally misleading press coverage; this is a dark day for Software Freedom



  24. Links 16/9/2019: GNU Linux-libre 5.3, GNU World Order 13×38, Vista 10 Breaks Itself Again

    Links for the day



  25. Links 16/9/2019: Qt Quick on Vulkan, Metal, and Direct3D; BlackWeb 1.2 Reviewed

    Links for the day



  26. Richard Stallman's Controversial Views Are Nothing New and They Distract From Bill Gates' Vastly Worse Role

    It's easier to attack Richard Stallman (RMS) using politics (than using his views on software) and media focus on Stallman's personal views on sexuality bears some resemblance to the push against Linus Torvalds, which leans largely on the false perception that he is sexist, rude and intolerant



  27. Links 16/9/2019: Linux 5.3, EasyOS Releases, Media Backlash Against RMS

    Links for the day



  28. Openwashing Report on Open Networking Foundation (ONF): When Open Source Means Collaboration Among Giant Spying Companies

    Massive telecommunications oligopolies (telecoms) are being described as ethical and responsible by means of openwashing; they even have their own front groups for that obscene mischaracterisation and ONF is one of those



  29. 'Open Source' You Cannot Run Without Renting or 'Licensing' Windows From Microsoft

    When so-called ‘open source’ programs strictly require Vista 10 (or similar) to run, how open are they really and does that not redefine the nature of Open Source while betraying everything Free/libre software stands for?



  30. All About Control: Microsoft is Not Open Source But an Open Source Censor/Spy and GitHub/LinkedIn/Skype Are Its Proprietary Censorship/Surveillance Tools

    All the big companies which Microsoft bought in recent years are proprietary software and all of the company’s big products remain proprietary software; all that “Open Source” is to Microsoft is “something to control and censor“


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