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

08.06.18

Agenda and Lies From Watchtroll Make It Into the Bill of Rohrabacher, the “Inventor Protection Act”

Posted in America, Deception, Patents at 12:59 am by Dr. Roy Schestowitz

Watchtroll Great Again

Summary: The Patent Trial and Appeal Board (PTAB) is being demonised using falsehoods or patently false numbers, which are pushed into various news feeds by the anti-PTAB lobby (representing the interests of patent trolls and aggressors as well as their lawyers)

THE LOBBYING fronts of patent maximalists, those who attack judges and USPTO officials, seem to have accomplished something.

According to Josh Landau (CCIA), lies from Watchtroll are making it into legislation efforts, in the same ways that lies from IAM make it into the EPO‘s Web site. So a villainous site that acts as a front group of patent extremists ended up being used by dishonest politicians whom patent extremists use to perturb the law. To quote Landau:

The Rohrabacher bill appears to be relying upon IP Watchdog’s numbers here. (This isn’t the first time incorrect numbers from IP Watchdog have made it to Congress.) The PTAB is not invalidating 85% of patents challenged in post-grant reviews. In calculating the rate at which patents are invalidated in post-grant reviews, IP Watchdog excludes the significant number of patents where the PTAB said that not only is this patent valid, but it is so clearly valid that the petitioner hasn’t even been able to show a reasonable likelihood of invalidity—the roughly 35% of patents where the PTAB doesn’t institute a review at all.

Once those patents are included, what’s the real answer?

The Patent Trial and Appeal Board declares around 45% of challenged patents to be invalid. Given that challengers pick and choose which patents they want to challenge based on the likelihood of success, that number isn’t surprising at all—the patents where validity isn’t really in question never get challenged in the first place.

Claiming that the PTAB invalidates 85% of granted patents it reviews is simply false.

[...]

Another error in the proposed findings is that “most inventors cannot afford the costs of defending a patent challenged in a single post-grant review, as these costs can reach hundreds of thousands of dollars.”

First off, this ignores that roughly 80% of patents are invented at large companies. Those inventors and their companies can afford the costs of defending a patent challenge. The findings claim to be about inventors, but exclude the vast majority of American inventors.

It is correct that the cost of a post-grant review can reach hundreds of thousands of dollars. AIPLA’s survey estimates a median price of around $250,000 to defend a patent in a post-grant review.

But you can’t look at that in a vacuum. Post-grant reviews are almost always filed against patents that are being litigated—85% of post-grant challenges have related district court litigation (and many of the other 15% are related to litigations more indirectly). And litigation costs far, far more—even an inexpensive litigation can easily run into seven figures. In reality, the availability of IPR and other post-grant reviews has actually saved patent owners more than $1 billion in legal fees since it was made available by reducing the cost of litigating patents overall.

[...]

The bill also states that “Inventors are denied the fundamental right to ‘exclude others’.” This finding is made despite recent decisions like Tinnus v. Telebrands in which an inventor was not only granted an injunction but a preliminary injunction. In reality, inventors can exclude others in the same circumstances that they can do so in every area of law—when they meet the traditional common law test for an injunction.

Far from restoring a fundamental right, Rohrabacher’s bill criticizes the long-standing principle that injunctions issue when appropriate, not whenever they’re asked for.

Landau continued in the second part the following day. Some relevant portion:

The next provision is by far the most concerning in the entire bill. Normally there’s a bit of hyperbole involved when someone says “this bill would destroy the incentive to innovate.” In the case of Rohrabacher’s bill, that’s not hyperbole—it’s simple math.

That’s because, if the Inventor Protection Act passes, inventors would be entitled to the greater of total profits or 25 percent of gross sales revenue attributable to the patent.

As a little history lesson, utility patents used to allow a total profits remedy. Congress abolished that in 1946, after realizing that a total profits rule was unworkable with the complex technology of the time. Technology has gotten more complicated since 1946, which makes it unclear why reviving the total profits rule is a good idea now.

But total profits isn’t the worst part of this provision. The worst part is entitling inventors to “25 percent of sales.” That means that, if a product infringed 4 patents, the manufacturer could be liable for every dollar they had ever received in sales.1

To put that in perspective, Apple lost a patent lawsuit a few months ago. They were ordered to pay $500 million dollars to VirnetX for their use of 4 patents, covering FaceTime, iMessage, and VPN on Demand. That’s a big verdict.

But if the inventors had owned those patents at the time of suit, Apple might instead have had to pay over $200 billion dollars. I don’t think anyone would call that the right outcome.

While the inventors had transferred their patents by that point, VirnetX could easily have sought out the inventors and sold them their patents back with the promise of a delayed payment back to VirnetX if the inventors won the lawsuit. Similar tactics have been used before in what’s known as “privateering,” and VirnetX may itself be the result of a privateering arrangement. In addition, VirnetX could have transferred the patents but funded the litigation, with the inventors agreeing to pay VirnetX back with interest or with a percentage of their winnings—another common arrangement called litigation finance.

Given the ease with which an NPE could take advantage of these benefits that were designed to accrue to inventors, there’s every reason to think they would do exactly that.

And when 4 patents can wipe out not just every bit of profit you made but actually eliminate every last bit of revenue? There’s no reason to create anything new in the U.S. anymore. If you’re worried about competition from China, the last thing you want to do is create a rule that ensures that creating complex technology in the U.S. is almost guaranteed to be unprofitable.

There’s also something of relevance to this in Patent Docs, a PTAB-hostile site. James Korenchan and this patent maximalists’ site explore the possibility of disguising software patents as “GUI” to bypass the law and patent software anyway (post-Alice/Section 101). Nitpicking an examiner-level ‘case’ (it’s not even a case), Korenchan wrote:

Navigating the post-Alice patent-eligibility landscape with graphical user interface (GUI) claims can be trying, particularly when fighting to maintain desirable breadth. As with all software-related claims, limitations must raise GUI claims (and other types of UI claims, for that matter) beyond fundamental designs and implementations, root the invention in computer technology, and provide a specific, innovative solution to a technological problem. In the past four years, the Federal Circuit has provided some guidance for GUI claims, perhaps most notable being the recent Core Wireless decision. In Core Wireless, the Court essentially stated that, to overcome the scrutiny of 35 U.S.C. § 101, a GUI claim should describe the specific functionality and/or layout of the GUI, and in addition, the patent’s specification should describe in detail the advantages of the GUI functionality and/or layout over existing methods and designs.

[...]

But the Board concluded that the Examiner’s characterization was proper because “different levels of abstraction” can be applied in an Alice step-one analysis. Unfortunately, the Appellants’ arguments with regard to step two were relatively lacking, and the Board concluded that the Appellants did not identify or provide supporting explanation for additional elements that amount to significantly more than an abstract idea. Instead, the Appellants restated the above-noted improvements to the field of documenting and billing medical procedures, and then proceeded to unsuccessfully argue that the claimed features are not well understood, routine, and conventional because there was no prior art rejection of claim 1. The Board very quickly dismissed these arguments. Had the Appellants cited to the specification in step two and tied described advantages to particular claim limitations, they might have set themselves off on a better foot with the Board (and possibly with the Examiner), though it is difficult to say whether this would have been persuasive.

[...]

In rejecting this claim, the Examiner argued that the claims were directed to an abstract idea of “determining the acceptability of a determined sample score that is based on determined document scores of audited medical documents.” In response, the Appellants contended that the claims recite specific UI elements (e.g., a GUI wizard and an X-bar chart analysis) that define a specific user experience. Analogizing to the claims in Core Wireless, the Board sided with the Appellants, finding the claim to be directed to an improved GUI wizard and specifically identifying steps [2], [5], [6], and [11] of the claim as sufficiently inventive features. Notably, the Board emphasized how these and other claimed steps are described in detail in the specification along with details as to how the steps, as well as the GUI layout, help a user audit coded medical documents. The Board stopped its analysis after step one, concluded that the claims are patent eligible, and reversed the Examiner’s rejection.

The anti-PTAB lobby is quite well funded and it will do whatever it can to work around PTAB, knowing that the SCOTUS supports PTAB and the Federal Circuit almost always agrees with PTAB.

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 21/4/2019: SuperTuxKart's 1.0 Release, Sam Hartman Is Debian’s Newest Project Leader (DPL)

    Links for the day



  2. The EPO's Use of Phrases Like “High-Quality Patent Services” Means They Know High-Quality European Patents Are 'Bygones'

    The EPO does a really poor job hiding the fact that its last remaining objective is to grant as many European Patents as possible (and as fast as possible), conveniently conflating quality with pace



  3. A Reader's Suggestion: Directions for Techrights

    Guest post by figosdev



  4. Links 20/4/2019: Weblate 3.6 and Pop!_OS 19.04

    Links for the day



  5. The Likes of Chartered Institute of Patent Attorneys (CIPA), Team Campinos and Team UPC Don't Represent Europe But Hurt Europe

    The abject disinterest in patent quality and patent validity (as judged by courts) threatens Europe but not to the detriment of those who are in the 'business' of suing and printing lots of worthless patents



  6. The Linux Foundation Needs to Change Course Before GNU/Linux (as a Free Operating System) is Dead

    The issues associated with the Linux Foundation are not entirely new; but Linux now incorporates so many restrictions and contains so many binary blobs that one begins to wonder what "Linux" even means



  7. Largest Patent Offices Try to Leave Courts in a State of Disarray to Enable the Granting of Fake Patents in the US and Europe

    Like a monarchy that effectively runs all branches of government the management of the EPO is trying to work around the judiciary; the same is increasingly happening (or at least attempted) in the United States



  8. Links 19/4/2019: PyPy 7.1.1, LabPlot 2.6, Kipi Plugins 5.9.1 Released

    Links for the day



  9. Links 18/4/2019: Ubuntu and Derivatives Have Releases, digiKam 6.1.0, OpenSSH 8.0 and LibreOffice 6.2.3

    Links for the day



  10. Freedom is Not a Business and Those Who Make 'Business' by Giving it Away Deserve Naming

    Free software is being parceled and sold to private monopolisers; those who facilitate the process enrich themselves and pose a growing threat to freedom in general — a subject we intend to tackle in the near future



  11. Concluding the Linux Foundation (LF) “Putting the CON in Conference!” (Part 3)

    Conferences constructed or put together based on payments rather than merit pose a risk to the freedom of free software; we conclude our series about events set up by the largest of culprits, which profits from this erosion of freedom



  12. “Mention the War” (of Microsoft Against GNU/Linux)

    The GNU/Linux desktop (or laptops) seems to be languishing or deteriorating, making way for proprietary takeover in the form of Vista 10 and Chrome OS and “web apps” (surveillance); nobody seems too bothered — certainly not the Linux Foundation — by the fact that GNU/Linux itself is being relegated or demoted to a mere “app” on these surveillance platforms (WSL, Croûton and so on)



  13. The European Patent Office Does Not Care About the Law, Today's Management Constantly Attempts to Bypass the Law

    Many EPs (European Patents) are actually "IPs" (invalid patents); the EPO doesn't seem to care and it is again paying for corrupt scholars to toe the party line



  14. The US Supreme Court (SCOTUS) Once Again Pours Cold Water on Patent Maximalists

    Any hopes of a rebound or turnaround have just been shattered because a bizarre attack on the appeal process (misusing tribal immunity) fell on deaf ears and software patents definitely don't interest the highest court, which already deemed them invalid half a decade ago



  15. Links 17/4/2019: Qt 5.12.3 Released, Ola Bini Arrested (Political Stunts)

    Links for the day



  16. Links 16/4/2019: CentOS Turns 15, Qt Creator 4.9.0 Released

    Links for the day



  17. GNU/Linux is Being Eaten Alive by Large Corporations With Their Agenda

    A sort of corporate takeover, or moneyed interests at the expense of our freedom, can be seen as a 'soft coup' whose eventual outcome would involve all or most servers in 'the cloud' (surveillance with patent tax as part of the rental fees) and almost no laptops/desktops which aren't remotely controlled (and limit what's run on them, using something like UEFI 'secure boot')



  18. Reader's Claim That Rules Similar to the Code of Conduct (CoC) Were 'Imposed' on LibrePlanet and the FSF

    Restrictions on speech are said to have been spread and reached some of the most liberal circles, according to a credible veteran who opposes illiberal censorship



  19. Corporate Media Will Never Cover the EPO's Violations of the Law With Respect to Patent Scope

    The greed-driven gold rush for patents has resulted in a large pool of European Patents that have no legitimacy and are nowadays associated with low legal certainty; the media isn't interested in covering such a monumental disaster that poses a threat to the whole of Europe



  20. A Linux Foundation Run by People Who Reject Linux is Like a Children's Charity Whose Management Dislikes Children

    We remain concerned about the lack of commitment that the Linux Foundation has for Linux; much of the Linux Foundation's Board, for example, comes from hostile companies



  21. Links 15/4/2019: Linux 5.1 RC5 and SolydXK Reviewed

    Links for the day



  22. Links 14/4/2019: Blender 2.80 Release Plan and Ducktype 1.0

    Links for the day



  23. 'Poor' (Multi-Millionaire) Novell CEO, Who Colluded With Steve Ballmer Against GNU/Linux, is Trying to Censor Techrights

    Novell’s last CEO, a former IBMer who just like IBM decided to leverage software patents against the competition (threatening loads of companies using "platoons of patent lawyers"), has decided that siccing lawyers at us would be a good idea



  24. Guest Post: The Linux Foundation (LF) is “Putting the CON in Conference!” (Part 2)

    Calls for papers (CfP) and who gets to assess what's presented or what's not presented is a lesser-explored aspect, especially in this age when large corporate sponsors get to indirectly run entire 'community' events



  25. Patent Maximalists Are Enabling Injustices and Frauds

    It's time to come to grips with the simple fact that extreme patent lenience causes society to suffer and is mostly beneficial to bad actors; for the patent profession to maintain a level of credibility and legitimacy it must reject the deplorable, condemnable zealots



  26. Further Decreasing Focus on Software Patents in the United States as They Barely Exist in Valid Form Anymore

    No headway made after almost 4 months of Iancu-led stunts; software patents remain largely dead and buried, so we’re moving on to other topics



  27. Links 13/4/2019: Wine 4.6 and Emacs 26.2 Released

    Links for the day



  28. Links 12/4/2019: Mesa 19.0.2, Rust 1.34.0 and Flatpak 1.3.2 Released

    Links for the day



  29. Caricature: EPO Standing Tall

    A reader's response to the EPO's tall claims and fluff from yesterday



  30. The EPO is Slipping Out of Control Again and It's Another Battistelli-Like Mess With Disregard for the Rule of Law and Patent Scope

    The banker in chief is just 'printing' or 'minting' lots and lots of patents, even clearly bogus ones that lack substance to back their perceived value


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