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08.02.18

Patent Trial and Appeal Board (PTAB) and Federal Circuit (CAFC) Both Smeared (Judge-Bashing Tactics) for Correctly Applying Patent Law as They See Fit

Posted in America, Courtroom, Europe, Patents at 7:47 am by Dr. Roy Schestowitz

It is getting a lot uglier as the patent microcosm resorts to anti-Establishment rhetoric and unauthorised protests

Michel

Summary: An atmosphere of great hostility towards courts and towards justice is being fostered by an increasingly-angry meta-industry of patent lawyers and patent trolls

THE EPO saga has been fascinating. It included many attacks on judges, attacks on justice itself, and incredibly enough even refusal to follow court orders. We almost never got anything wrong (that we know of). Rumours almost always became substantiated as truthful and we continue to receive new information all the time.

“It included many attacks on judges, attacks on justice itself, and incredibly enough even refusal to follow court orders.”Prior to the EPO focus we were covering a lot of news about patents. I am still waiting for patent lawyers to actually point out a factual inaccuracy in my writings about patents. They never point out any errors, they just don’t like my tone and resort to ad hominem libel, questioning my motivations etc. (e.g. falsely insinuating that I get paid to write what I write). It means they’ve got nothing but smears; they don’t like the message, so they attack the messenger instead.

The same is true outwards, not just inwards. They attack judges too. We’ve given many examples. Here goes again Mr. Gross:

More in a positive trend: another PTAB 101 reversal based on Examiner failure to comply with Berkheimer and show well understood, routine, conventional: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017004343-07-13-2018-1 …

What positive trend? None is demonstrable. Even Watchtroll now implicitly admits that all those who claim software patents are coming back (that includes Watchtroll itself!) are basically lying. Ironic, no? Burman York (Bud) Mathis III wrote this in Watchtroll yesterday: “It’s been over eight years since the Supreme Court issued its Bilski v Kappos decision, over six years since the Supreme Court issued its Mayo v. Prometheus decision and over four years since the Supreme Court issued its Alice Corp. v. CLS Bank decision. In case anyone missed it, each of these three landmark cases was decided based on evidence on the record.”

“Even Watchtroll now implicitly admits that all those who claim software patents are coming back (that includes Watchtroll itself!) are basically lying.”There’s “No Light at the End of the Tunnel,” Mathis said in his headline, “Not Even Close…”

Just ‘pulling a Berkheimer‘ isn’t going to change that. So here comes Watchtroll attacking Judge Reyna again. Not being racist this time, unlike Patently-O (who hurried to delete it)? We don’t want to entertain these words, but what they generally do is isolate and individually attacks judges they disagree with it. Watchtroll has a long tradition doing just that; the site is attacking judges. Stay classy! Then joins Mr. Gross with this:

That’s an outstanding summary of the mess that is patent law jurisprudence on 101 “abstract ideas” – he agrees with me that Taranto is worst inconsistent offender- Alsthom is … terrible https://twitter.com/patentbuddy/status/1024664765774233602 …

They’re referring to judges as “offenders” now. Amazing! They’ve moved on from harassing USPTO staff to harassing US patent courts.

“They’re referring to judges as “offenders” now.”We still see staff of the Patent Trial and Appeal Board (PTAB) coming under attack all the time from Watchtroll, Mr. Gross and other patent agents who became accustomed to profiting from low-quality patents. There are even anti-PTAB sites like Anticipat, which name examiners and sort of ‘score’ them as a form of harassment, by which they hope to compel them to change their examination standards. We never name patent examiners (USPTO or EPO) and instead focus on high-level management. A few days ago Anticipat wrote: “After speaking with the USPTO’s webmaster, we were assured that the decisions will be more quickly uploaded going forward. This did not entirely assuage our concerns. So in the meantime, we are updating our Recap email functionality so that a user can modify the email settings to be sent in whatever way is most helpful to one’s practice. Stay tuned for updates very soon.”

Well, that would only further facilitate Anticipat’s bizarre and likely unethical business model. We certainly hope USPTO management sees that more or less the same way.

In seaprate news, “Nantkwest v Iancu opinion states patent applicants that bring Section 145 challenges in district court are not compelled to pay USPTO attorneys’ fees,” wrote Managing IP‘s Michael Loney (about the Federal Circuit). Kevin E. Noonan and Josh Rich wrote about it shortly afterwards, as did Dennis Crouch here. It’s worth noting that Iancu has been off and away from the limelight for nearly two months now. When he’s mentioned it’s typically in relation to cases/decisions with his name on them. A few days ago Crouch wrote that “[f]ormer Acting PTO Director Joseph Matal [Michelle's Lee colleague, interim Director after Watchtroll attacked her] has moved into the role of Acting Solicitor of the agency as well as Acting Deputy General Counsel for Intellectual Property Law. Congratulations Joe! Former Solicitor Nathan Kelley has left the office that he joined originally back in 1993 as an examiner.”

“We still see staff of the Patent Trial and Appeal Board (PTAB) coming under attack all the time from Watchtroll, Mr. Gross and other patent agents who became accustomed to profiting from low-quality patents.”Dennis Crouch included some Battistelli marketing video, but we’ll forgive him for that as he never ever covers EPO matters and therefore he probably doesn’t know what a fiasco Battistelli was. He doesn’t seem to know that the building he refers to is still just a construction site disguised as a finished project.

Last but not least, Watchtroll is also attacking Lofgren again, as it did just weeks ago. Lofgren’s ‘crime’ is that she cares about science and technology — a serious offense by Watchtroll’s poor taste and standards. Steve Brachmann is upset now that people who favour technology write to Iancu about PTAB. Iancu is himself part of the patent microcosm; Steve Brachmann is just a writer hired by Watchtroll in a classified ad and here he goes again writing about politics. Watchtroll has become like some kind of think tank.

“He doesn’t seem to know that the building he refers to is still just a construction site disguised as a finished project.”Politicians may be corruptible (Watchtroll likes those who are corrupted the 'correct' way), but they’re no worse than a conspiracy of law firms trying to write the very laws which govern them. Many politicians complained about clear and blatant misuse of tribal immunity by a couple of law firms, whose sole goal was to make themselves and their clients exempt from patent law. Going back to the Federal Circuit, the decision that is likely final sided with these politicians (and with common sense). We haven’t yet seen judges being attacked for it, maybe because there has been no notable dissent among them. There’s no room for “divide and conquer”. “The Federal Circuit’s reasoning in finding that tribal sovereign immunity cannot be asserted in IPRs may be used to argue the same for state universities seeking immunity from the PTAB,” Ellie Mertens wrote about the patent scam of Allergan and Mohawk (very much belatedly). Mike Masnick also wrote about it late (end of July). To quote:

Some ethically sketchy patent lawyers thought they had come up with a brilliant scam to avoid having awful patents scrutinized by the special review board created by Congress within the Patent Office — a process known as “inter partes review” or IPR. This Patent and Trademark Appeals Board (PTAB) has been a useful tool in going back and reversing the mistakes made by patent examiners in letting through bad patents. However, back in September, we wrote about a fairly devious plan by the lawyers from the law firm of Shore Chan DePumpo to help their clients avoid a PTAB review. The situation began with a PTAB ruling back in early 2017 in a review of a patent held by the University of Florida. The University claimed sovereign immunity exempted it from the whole PTAB process under the 11th Amendment (universities claiming sovereign immunity in patent cases goes way back) and the PTAB agreed it had no jurisdiction.

Sensing an opportunity, the lawyers at Shore Chan DePumpo worked out a neat little scheme in which a pharmaceutical company would “sell” its patents to a Native American nation (in this case, the St. Regis Mohawk Tribe). The “sale” was in name only. The pharmaceutical companies retained not just an exclusive license to the patents, but basically all other rights as well. The only thing St. Regis got was a nice little income stream in exchange for having its sovereign status used to shield the pharma companies’ patents from scrutiny before the PTAB.

Oil States was a SCOTUS decision, so making IPRs go away would be pretty much impossible in the foreseeable future and they know it.”As we noted last month and the month before that, after Oil States we’ve been seeing the attacks shifting from PTAB to CAFC, whose judges are now routinely mocked by sites like Watchtroll. The almost daily (sometimes more than once a day) anti-PTAB pieces are long gone; Ryan Kenny writes for Watchtroll as though PTAB inter partes reviews (IPRs) are simply here to stay. Oil States was a SCOTUS decision, so making IPRs go away would be pretty much impossible in the foreseeable future and they know it.

We’ll keep our eyes open for the next attack on judges. That’s pretty serious stuff. It’s worse than the war on journalism/media. It’s an attack on justice, not only on truth.

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