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

08.06.18

Attributing Negligible Differences to Whatever Suits the Loudest Opponents of the Patent Trial and Appeal Board (PTAB)

Posted in America, Deception, Patents at 12:23 am by Dr. Roy Schestowitz

Meter time expired

Summary: The U.S. Patent and Trademark Office (USPTO) has limited/restricted patent grants based on 35 U.S.C. § 101, adding to a number of factors which contribute to statistics in litigation and appeals; but the anti-PTAB lobby wants us to believe that there’s a resurgence for patent maximalism (the very opposite of what’s really happening)

THE ANTI-PTAB lobby we've just mentioned is hoping that the USPTO rather than patent courts will somehow end PTAB. They think that the USPTO should just castrate itself. As if patent quality should not matter anymore…

But that’s not going to work. They rely on Iancu becoming so obviously a ‘mole’ of the patent microcosm — a move that would likely be career suicide for him. Signed by Joff Wild, Richard Lloyd, Jacob Schindler, Bing Zhao and Adam Houldsworth (i.e. almost everyone at IAM) was this article which speaks of “electrifying opening keynote address by USPTO Director Andrei Iancu,” whom it lobbies to help IAM's clients, the patent trolls and thugs. It’s too revealing. Here is Watchtroll with the headline “Iancu: More 101 Guidance and PTAB Reforms Coming Soon”, preceding or coinciding with Dennis Crouch’s post that said: “Under Dir. Iancu, the USPTO appears to be moving away from eligibility rejections. The chart below shows that the past year about 8% of all examiner rejections were eligibility rejections. Over the past three months, that statistic has dropped to about 6.6%. During that time, the PTO has officially changed its approach via the Berkheimer memo, and Dir. Iancu’s leadership lends authority to the Office’s approach to broader eligibility.”

“Half a year after Berkheimer we have still not seen any profound impact.”Like we said some days ago, that’s a very minor difference that can be attributed to all sorts of things. Charles Bieneman, on the face of it, is still 'pulling a Berkheimer' (also coined “Berkheimer Effect” by his site). There has been so solid evidence of it. Here is what he wrote: “Turning first to the first prong of the Alice patent-eligibility test, the court considered the defendant’s argument that the claim “boils down to . . . functional results” of receiving and testing a packet, that was forwarded for further tests if it passed, and dropped if it failed. According to the defendant, the claim was analogous “to a human resources manager receiving a job application, checking if there are open positions, and dropping the application if not, but checking further for requisite training or experience if so.” The court agreed with the defendant that the claim was directed to an abstract idea, noting that the plaintiff’s own description of the claim described an abstract concept, “organizing security tests into an information sharing hierarchy.””

Half a year after Berkheimer we have still not seen any profound impact. The law firms made false predictions, hoping to (mis)use such predictions to attract business. Here’s the other post he made last month (he slowed down considerably by the way). Bieneman should not promote the idea that granted US patents deserve the “Presumption of Patent Validity”, especially those granted before Alice and Mayo, but here is what he wrote:

A plaintiff seeking to enforce patents claiming automated methods for uploading multimedia content was ordered to pay defendants’ attorney fees based on a finding of an “exceptional case” under U.S.C. § 285. Cellspin Soft, Inc. v. Fitbit, Inc., No. 4:17-CV-5928-YGR (N.D. Cal. July 6, 2018). The court had previously granted motions to dismiss because claims of U.S. Patent Nos. 8,738,794; 8,892,752; 9,749,847; and 9,258,698 were not patent eligible under 35 U.S.C. § 101 and the Alice/Mayo test. Relying on Inventor Holdings, LLC v. Bed Bath & Beyond Inc. (Fed. Cir. 2017), the court found the case exceptional because the claims were not only “manifestly directed to an abstract idea,” but, unlike the Inventors Holdings litigation, were sought to be enforced after a lot of post-Alice precedent should have made clear that the claims were patent-ineligible.

PTAB has served to demonstrate that many US patents now deserve the presumption of invalidity. Patent quality seems to be improving, but a lot of patents which haven’t yet expired are still around and only few of these (a tiny proportion of the whole) were tested in court.

“Patent quality seems to be improving, but a lot of patents which haven’t yet expired are still around and only few of these (a tiny proportion of the whole) were tested in court.”Now watch the spin about PTAB, citing a very minor difference, albeit in a direction that suits Michael Loney’s agenda (so he won’t treat is as an anomaly or something almost negligible). To quote:

The Patent Trial and Appeal Board’s institution rate was 58.4% in the first two calendar months after the Supreme Court ended the practice of partial institution – down from the 2018 fiscal year rate of 62% up to the end of April

The initial effect of the Supreme Court’s SAS Institute v Iancu decision has been to push down the institution rate of petitions at the Patent Trial and Appeal Board (PTAB).

But Iancu has only been there for a few months. He has barely even changed any rules (proposals at best). All the above seems like leap of faith from Dennis Crouch et al. The difference is also minor and overlooks the fact many no longer bother applying for patents with abstract stuff in them. The same goes for litigation. Only the ‘stronger’ cases end up before a court. That’s just expected. It’s their risk analysis.

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