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

08.02.18

The Number of Granted US Patents is Declining and Transparency in Patent Courts is Improving

Posted in America, EFF, Patents at 6:10 am by Dr. Roy Schestowitz

Not good for patent law firms, but good for everyone else

Patent Lawyers' Tears

Summary: The EFF has managed to improve access to judgments (or briefs) and there are various indicators which suggest a generally positive trend in the United States, which had 50% more patent lawsuits just half a decade ago

THE QUALITY of patents granted by the EPO keeps sliding. Contrariwise, based on widely reported estimations, things go in the opposite direction in the United States.

“So this is indeed what we’ve heard — that patent grants will have declined this year.”Will the USPTO only chat about patent quality or actually do more to improve it? Iancu has thus far done nothing to tackle this issue, unlike his predecessor.

Dennis Crouch has just rendered this chart which serves to reaffirm rumours that patent numbers (or number of granted patents per annum in the US) is finally, belatedly, declining. He looked at a subset of these and said: “With two-months left in the fiscal year, the USPTO is on-track another 300,000+ patent year. The chart above shows the number of utility patents issued each fiscal year for the past two decades. The current forecast for FY2018 is a bit below FY2017 – but still the second highest number of patents issued in a single year. Examiners will push to make their quotas prior to the end of the year – however those will not be reflected in issued patents in FY18 because of the lag between allowance and issuance.”

So this is indeed what we’ve heard — that patent grants will have declined this year. Crouch went on to say that the PTO will discuss patent quality. Quoting Crouch, a patent maximalist: “USPTO is planning to exercise its fee setting authority to set or adjust patent fees. As part of the rulemaking proceeding for the issuance of regulations under Section 10, the USPTO will publish a proposed patent fee schedule and related supplementary information for public viewing no later than August 29, 2018.”

Things have changed a lot since Alice (SCOTUS), reducing the scope of patenting/eligibility. This is important because low-quality patent grants sometimes result in frivolous lawsuits, in turn resulting in banruptcies/embargoes, owing to a trigger-happy ITC, whose latest imposition of sanctions is being celebrated by Watchtroll. This is from yesterday:

PopSockets LLC is a Boulder, Colorado-based company that designs and manufactures mobile accessories. Its flagship product, the PopSockets Grip, is a phone grip and stand that is collapsible, customizable, and re-positionable.

PopSockets’ Grip is protected by PopSockets’ U.S. Patent No. 8,560,031, titled Extending Socket for Portable Media Player. On June 14th, the U.S. International Trade Commission (ITC) issued a general exclusion order which prohibits the importation of any collapsible sockets for mobile electronic devices that infringe upon PopSockets’ ’031 patent.

That’s an embargo. Were all legal avenues and appeals exhausted? Probably not, but the ITC doesn’t care about these. It just “shoots first and asks questions later,” as the famous saying goes. That’s a problem. It’s also a problem because embargoes never help the market; they just help a single corporation, typically a monopoliser.

Josh Landau (CCIA) has incidentally just responded to the likes of Watchtroll when he said (two days ago): “There’s been an increasing usage of the term “efficient infringement” in the debate over patent reform. The basic idea is that large companies make an active choice to ignore patents and just pay for them when they lose a lawsuit.”

We’ve seen this smear many times. It’s being popularised by Watchtroll. Landau then puts in perspective what it means to be accused of infringement:

Now you have to pay a patent lawyer to go through that list of 2,000. They have to look at all of the claims of each patent. Some can be dismissed quickly—maybe they require an infrared lamp and our device doesn’t have any infrared, or they require the device to attach to the skin with an elastic band and our device is glued on. Some will require more thought. When working as a patent attorney, I conducted this kind of analysis. I typically estimated an average of 5 minutes per patent to make this initial determination of “clearly not relevant” or “more time required.” That’s 165 hours of attorney time. We’ll assume an inexpensive attorney who charges $200/hour. That’s $33,000 to cull our list down. Of that 2,000, we might wind up with 50-100 patents that still require significant thought, and we’ve already spent nearly $60,000.

Now, for each one of those 50-100 patents, we’re going to go through the patent in detail, read the file history, think about how the claims might apply to the product. The goal is to either be able to tell the manufacturer “this patent is unlikely to be a problem” with a convincing argument inside of a single paragraph, or to say “this patent would benefit from an opinion of counsel.” That’s about an hour per patent, for another 50-100 hours, and another $10,000-$20,000 in attorney’s fees. We’re at $70,000-$90,000. We probably have a list of around 20 patents left at this point that require an opinion.

It’s pretty obvious who can and cannot afford these fees; this is why patent trolls typically target small companies. They don’t even need to go to court.

A couple of days ago Joe Mullin wrote about a patent troll that preys on small companies [1, 2]. His employer, the EFF, hired him for his decade-long experience writing about patent trolls and TechDirt published a copy that says:

When patent trolls threaten and sue small businesses, their actions draw the public’s attention to the worst abuses of the patent system. In 2013, a company called MPHJ Technology got called out in a U.S. Senate hearing as a “bottom feeder” engaged in “garden-variety extortion” after it sent out thousands of demand letters demanding payments from small businesses that dared to use printers with “scan-to-email” functions. Lawmakers, understandably, found it incomprehensible that broad, stupid patents were being used to sue burger stands and grocery stores.

It’s essentially a patent on having a prepaid account for—well, anything.

There’s a good reason for that concern. It’s hard to see how lawsuits against small businesses using basic technology do anything to “promote the progress of science and the useful arts.” By contrast, it is easy to see how these lawsuits harm companies and consumers by increasing the costs and risks of doing business.

But the intermittent public attention hasn’t stopped this most basic abuse of the patent system. Upaid Ltd., a shell company based in the British Virgin Islands, has been filing patent infringement lawsuits throughout 2018, including 14 against laundromats—yes, laundromats—from California to Massachusetts.

Upaid says that laundromats are infringing U.S. Patent No. 8,976,947. Claim 1 of the patent describes a computer system that performs “pre-authorized communication services and transactions,” after checking an account to see if a user “has a sufficient amount currently available for the … transaction.” It’s essentially a patent on having a prepaid account for—well, anything.

Right now, Upaid lawyers are focused on systems run by Card Concepts, Inc., a service provider that markets a system called Laundry Card to laundromats. Many of the Upaid’s complaints simply point to online photos of the laundromats and the relevant card dispensers as evidence of infringement.

Mullin’s colleague, Daniel Nazer, has meanwhile heralded/spread some good news about the Federal Circuit agreeing to become more transparent about these proceedings:

In a modest victory for public access, the Federal Circuit has changed its policies to allow the public to immediately access briefs. Previously, the court had marked briefs as “tendered” and withheld them from the public pending review by the Clerk’s Office. That process sometimes took a number of days. EFF wrote a letter [PDF] asking the court to make briefs available as soon as they are filed. The court has now changed its policies to allow immediate access.

Earlier this month, the Federal Circuit announced a new compliance review policy. While that new policy [PDF] doesn’t specifically mention the practice of withholding briefs as “tendered,” we have confirmed with the Clerk’s Office that briefs are now available on PACER as soon as they are filed. Our review of recent dockets also suggests that briefs are now available to the public right away.

The EFF has understandably come under attack from patent extremists. It means that it’s doing good work. The funny thing is, these extremists now call everyone they don’t agree with a “shill”; some try to argue that Google is behind everything.

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. From the Eastern District of Texas (US) to Australia Patent Quality Remains a Problem

    Patents on anything from thoughts to nature/life (in the US and in Australia, respectively) demonstrate the wildly wide range (or spectrum) of patents nowadays granted irrespective of their impact on innovation



  2. Alice/35 U.S.C. § 101 and PTAB Are Here to Stay and Even Their Critics (Patent Maximalists) Have Come to Accept That

    Taking stock of the latest PTAB news and rants; the latter has become scarce because efforts to undermine PTAB have all failed



  3. Patent Trolls Roundup: Conversant Wireless Licensing (Formerly Core Wireless) and Blackbird 'Technologies' Still Prey on Real Companies

    A quick recap of recent decisions and motions, which serve to show that patent trolls can be beaten, avoided, and sometimes even 'disarmed'



  4. Links 19/8/2018: Skrooge 2.15.0, Wine 3.14, End of Akademy 2018

    Links for the day



  5. David Ruschke, the PTAB's Chief, is Moving So the Patent Maximalists Push Their Anti-PTAB Agenda

    As the chief judge of the Patent Trial and Appeal Board (PTAB) moves elsewhere at the USPTO there are those who hope that a replacement will undo PTAB inter partes reviews (IPRs), which generally improve the quality of granted patents



  6. If David Chiles Turned the USPTO Into a 'Microsoft Shop' That Might Explain Three Days (or More) of Outages

    The U.S. Patent and Trademark Office (USPTO) is having profound technical issues; some already point their fingers at David Chiles, alleged to have been hired/promoted for the wrong reasons



  7. Links 17/8/2018: GNU/Linux From ASUS, Debian at 25, Lubuntu Plans

    Links for the day



  8. Links 16/8/2018: MAAS 2.4.1, Mesa 18.2 RC3

    Links for the day



  9. USPTO Craziness: Changing Rules to Punish PTAB Petitioners and Reward Microsoft for Corruption at ISO

    The US patent office proposes charging/imposing on applicants that are not customers of Microsoft a penalty; there’s also an overtly and blatantly malicious move whose purpose is to discourage petitions against wrongly-granted (by the USPTO) patents



  10. The Demise of US Software Patents Continues at the Federal Circuit

    Software patents are rotting away in the United States; it remains to be seen when the U.S. Patent and Trademark Office (USPTO) will truly/fully honour 35 U.S.C. § 101 and stop granting such patents



  11. Almost Two Months After the ILO Ruling Staff Representative Brumme is Finally Back on the Job at EPO

    Ion Brumme gets his position at the EPO back, owing to the Administrative Tribunal of the International Labour Organization (ILO-AT) ruling back in July; things, however, aren't rosy for the Office as a whole



  12. Links 15/8/2018: Akademy 2018 Wrapups and More Intel Defects

    Links for the day



  13. Antiquated Patenting Trick: Adding Words Like 'Apparatus' to Make Abstract Ideas Look/Sound Like They Pertain to or Contain a 'Device'

    35 U.S.C. § 101 (Section 101) still maintains that abstract ideas are not patent-eligible; so applicants and law firms go out of their way to make their ideas seem as though they're physical



  14. Open Invention Network (OIN) Member Companies Need to Become Unanimous in Opposition to Software Patents

    Opposition to abstract software patents, which even the SCOTUS and the Federal Circuit nowadays reject, would be strategically smart for OIN; but instead it issues a statement in support of a GPL compliance initiative



  15. President Battistelli 'Killed' the EPO; António Campinos Will 'Finish the Job'

    The EPO is shrinking, but this is being shrewdly disguised using terms like "efficiency" and a low-profile President who keeps himself in the dark



  16. Links 14/8/2018: Virtlyst 1.2.0, Blender 2.8 Planning Update, Zorin OS 12.4, FreeBSD 12.0 Alpha

    Links for the day



  17. Berkheimer Changed Nothing and Invalidation Rates of Abstract Software Patents Remain Very High

    Contrary to repetitive misinformation from firms that 'sell' services around patents, there is no turnaround or comeback for software patents; the latest numbers suggest a marginal difference at best — one that may be negligible considering the correlation between expected outcomes and actions (the nature of risk analysis)



  18. Lockton Insurance Brokers Exploiting Patent Trolls to Sell Insurance to the Gullible

    Demonstrating what some people have dubbed (and popularised) "disaster capitalism", Lockton now looks for opportunities to profit from patent trolls, in the form of "insurance" (the same thing Microsoft does)



  19. Patent Lawyers Writing Patent Law for Their Own Enrichment Rather Than for Innovation

    We have become detached from the original goals and come to the point where patent offices aren't necessarily run by people qualified for the job of advancing science and technology; they, unlike judges, only seem to care about how many patents get granted, irrespective of their quality/merit



  20. Links 13/8/2018: Linux 4.18 and GNU Linux-libre 4.18 Arrive

    Links for the day



  21. PTAB is Loathed by Patent Maximalists Because It Can Potentially Invalidate Thousands of Software Patents (More Than Courts Can Handle)

    The US patent system has become more resistant to software patents; courts, however, are still needed to invalidate such patents (a potentially expensive process) because the USPTO continues to grant these provided some fashionable buzzwords/hype waves are utilised (e.g. "facial recognition", "blockchain", "autonomous vehicles")



  22. Gene Quinn and 'Dallas Innovates' as Couriers of Agenda for Patent Trolls Like iPEL

    Failing to hide their real purpose and malicious agenda, sites whose real purpose is to promote a lot of patent litigation produce puff pieces, even for patently unethical trolls such as iPEL



  23. Software Patents, Secured by 'Smart' and 'Intelligent' Tricks, Help Microsoft and Others Bypass Alice/Section 101

    A look at the use of fashionable trends and buzzwords to acquire and pass around dubious software patents, then attempting to guard these from much-needed post-Alice scrutiny



  24. Keep Boston (and Massachusetts in General) From Becoming an Infestation Zone for Patent Litigation

    Boston, renowned for research and innovation, has become somewhat of a litigation hotbed; this jeopardises the state's attractiveness (except perhaps to lawyers)



  25. Links 12/8/2018: Academy of Motion Picture Arts and Sciences, Mesa 18.1.6 Release Notice, New Linux Imminent

    Links for the day



  26. Thomas Massie's “Restoring America’s Leadership in Innovation Act of 2018” (RALIA) Would Put the US Patent System in the Lions' (or Trolls') Mouth Again

    An anti-§ 101 and anti-PTAB bill from Rep. Thomas Massie (R-KY) strives to remove quality control; but by handing the system back to patent trolls he and his proponents simply strive to create more business of litigation, at the expense of innovation



  27. EPO-Style Problem-Solution: Tackling Backlog by Granting Lots of Low-Quality (Bogus) European Patents, Causing a Surge in Troll/Frivolous Litigation

    The EPO's lack of interest in genuine patent quality (measuring "quality" in terms of speed, not actual quality) may mean nothing but a litigation epidemic; many of these lawsuits would be abusive, baseless; those harmed the most would be small businesses that cannot afford a legal defense and would rather settle with those who exploit questionable patents, notably patent trolls



  28. Links 11/8/2018: PGP Clean Room 1.0, Ring-KDE 3.0.0, Julia 1.0

    Links for the day



  29. Propaganda Sites of Patent Trolls and Litigators Have Quit Trying to Appear Impartial or Having Integrity

    The lobbying groups of patent trolls (which receive money from such trolls) carry on meddling in policy and altering perception that drives policy; we present some new examples



  30. Months After Oil States the Patent Maximalists Still Try to Undermine Inter Partes Reviews (“IPRs”), Refusing to Accept Patent Quality

    The patent maximalists in the United States, seeing that the USPTO is moving away from patent maximalism, is desperate for a turnaround; prominent patent maximalists take it all out on PTAB


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