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

08.07.18

PTAB Needs to Expand and Become More Accessible to More Challengers of Wrongly-Granted Patents

Posted in America, Patents at 5:17 am by Dr. Roy Schestowitz

Unified Patents is a very prolific challenger, but there need to be more

Unified Patents

Summary: Challenges to US patents at the Patent Trial and Appeal Board (PTAB) are helping to raise the bar for litigators; those who value the quality of patents should welcome rather than condemn PTAB and PTAB ought to be expanded to facilitate more scrutiny of granted patents

OUR earlier post about the Federal Circuit took note of the low quality of patents it deals with; the USPTO spent several decades granting low-quality patents which are nowadays less likely to be used in litigation; those that do end up in court often get invalidated at the end.

“Not everybody loves PTAB. In fact, PTAB is loathed by patent bullies, their law firms and pretty much all patent trolls.”What about the Patent Trial and Appeal Board (PTAB), whose inter partes reviews (IPRs) often end up being assessed by the Federal Circuit (affirming rejections of reviewed patents)? Well, Ex parte Dong-Shin Jung et al was mentioned here last month and was covered by Christopher Francis. It’s “Designated as Informative by PTAB,” according to Francis, which means it will set the tone for future decisions.

PTAB is widely supported by technology firms. John Thorne, who represents many such firms (like the CCIA does), published this article last week on behalf of HTIA. “Today’s patent system is the product of nearly a decade of reform,” he explained, “thanks to which the quality of U.S.-issued patents has gone up and American innovation is flowering. Now a bill is before Congress — H.R. 6264, the Restoring America’s Leadership in Innovation Act of 2018 — to undo the reforms. It must not happen.

“The reforms were a response to a crisis in the U.S. patent system, but a crisis that did not hit all inventors equally.”

The rest is behind paywall and it’s promoted by United For Patent Reform, another pro-PTAB and anti-trolls front.

Not everybody loves PTAB. In fact, PTAB is loathed by patent bullies, their law firms and pretty much all patent trolls. Sanjana Kapila, a London-based writer for a patent maximalism site, has just said that Uniloc, a very notorious patent troll, “has slipped down the plaintiff rankings” (they’re ranking them like it’s a competition). To quote:

Managing IP reveals the top plaintiffs, defendants and law firms in US patent cases in the first half of 2018, as well as the district breakdown. Uniloc has slipped down the plaintiff rankings, Apple is the top defendant and Stamoulis & Weinblatt has risen to the top of the plaintiff firm rankings

“Apple tops,” according to Kapila, when it comes to IPRs. To quote:

Apple tops – while Google, LG Electronics and Intel climb – the petitioner rankings in the first half. Fundamental Innovation Systems is most targeted patent owner, Fish & Richardson is the top petitioner law firm and Irell & Manella is the top patent owner law firm

There’s also money in IPRs (both sides). So why can’t they learn to coexist with it and accept things have changed? Sure, there’s a lot less money (for lawyers) in IPRs; they prefer lawsuits, but if they care about innovation and patent quality, then they will openly embrace PTAB and stop whining about it. The USPTO seems to be defending PTAB again, based on this upcoming webinar series, which has just been described as follows: “The U.S. Patent and Trademark Office will be offering the next webinar in its Patent Quality Chat webinar series from 12:00 to 1:00 pm (ET) on August 14, 2018. In the latest webinar, entitled “AIA Trial Statistics from PTAB and Using AIA Trials to Enhance Patent Examination,” Janet Gongola, Vice Chief Judge for Engagement, Patent Trial and Appeal Board; and Jack Harvey, Assistant Deputy Commissioner for Patent Operations, will discuss performance benchmarks of the Patent Trial and Appeal Board (PTAB) for America Invents Act (AIA) trials highlighting inter partes reviews (IPRs), and present how programs such as the Post Grant Outcomes program work together to improve patent quality.”

The Intellectual Property Owners Association (IPO), which opposes patent quality (PTAB, Section 101 and so on), is also planning a webinar; it’s a malicious lobbying group of patent maximalists.

People now have the last chance to tell Iancu to halt his agenda of bringing back software patents (or watering down Section 101), which he had supported and promoted before Trump gave him the job. His words are often spun and he is being manipulated, as we last demonstrated yesterday. Here’s Donald Zuhn providing some background to the Berkheimer memo: “In April, the U.S. Patent and Trademark Office issued a memorandum to its Patent Examining Corps discussing changes in examination procedure pertaining to subject matter eligibility in view of the Federal Circuit’s decision in Berkheimer v. HP, Inc. (see “USPTO Updates Patent Eligibility Guidance in View of Berkheimer”). Following the issuance of the memorandum, the Office also published a notice of the Federal Register seeking public comment on the Office’s subject matter eligibility guidance, and particularly on its guidance in the Berkheimer memorandum.

“The notice, entitled “Request for Comments on Determining Whether a Claim Element Is Well- Understood, Routine, Conventional for Purposes of Subject Matter Eligibility” (83 Fed. Reg. 17536), discusses the Berkheimer decision as well as the Office’s Berkheimer memorandum and sets an August 20, 2018 deadline for the submission of written comments. Those wishing to submit comments can do so by sending them by e-mail to Eligibility2018@uspto.gov. Submitted comments can be viewed here — to date, comments have been submitted by one law firm and five individuals.”

That’s very little. Surprisingly few.

Louis Carbonneau has just published something patently false. He says that “New Guidelines Suggest a Return to Strong Patent Rights” (alluding to something which is still in progress actually). This is false however. Mr. Iancu cannot ignore court rulings. But watch how they exploit his presence (like a brand):

Enter Andrei Iancu, newly appointed director of the United States Patent and Trademark Office, who wasted no time attacking this pivotal issue head-on. In his first (and highly anticipated) public speech at the U.S. Chamber of Commerce on April 11, he left no doubt that he thought the pendulum had swung too far against patent owners and that his priority going forward was to “1. create a new pro-innovation, pro-IP dialogue, and 2. increase the reliability of the patent grant.”

Yesterday Dennis Crouch wrote about an IPR and grounds for rejection thereof:

Standing is an oddball with IPRs. Anyone can file an IPR request and the USPTO will consider that request. The Patent Act directly states that a losing petitioner has a right to appeal if it loses the IPR. (A party “who is dissatisfied with the final written decision of the Patent Trial and Appeal Board . . . may appeal the Board’s decision . . . to the United States Court of Appeals for the Federal Circuit.” 35 U.S.C. § 141(c).) Still, the Supreme Court has repeatedly held that the Constitution requires an actual controversy between the parties — and that the Article III courts cannot offer advisory opinions. A particular element in question for appellate IPR standing is injury-in-fact — “an injury that is both ‘concrete and particularized.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)(non-IPR case).

We hope that anyone — not just competitors or groups like Unified Patents — will be able to file an IPR. There should be no barrier to scrutiny of granted patents. The more challenges, the better. If the patents are valid, then those who were awarded these patents have nothing to fear, right?

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email
  • Slashdot

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. IRC Proceedings: Wednesday, October 21, 2020

    IRC logs for Wednesday, October 21, 2020



  2. Living Humbly (With Older Technology or None) is More Compatible With Privacy- and Freedom-Respecting Technological Lifestyle

    Simplicity sometimes trumps so-called 'novelty', especially when it comes to human rights and users' freedom



  3. Reasons Why You (and Everybody Else) Should Join the Fight for Software Freedom

    Society is being closely watched and controlled (more so during/after the latest pandemic) and people must carefully consider the true importance of resisting proprietary technology (controlled remotely by state actors)



  4. Ways and Means to Reduce One's Dependency on Google's Various Monopolies and Near-Monopolies

    Getting rid of Google means a lot more than embracing DumbDumbGo (DDG) or some other sites that spy just like Google; we're taking stock of some options



  5. The European Commission is Still M.I.A. Regarding EPO Corruption (and the EPO's Management Plays Dirty, as Always)

    There's no change in the EU; the EUIPO and EPO enjoy complete and total immunity/impunity, with the Commission being manned by those who are deeply complicit



  6. 10 Reasons Why All This 'Edge for Linux' Coverage is a Total Farce

    The fake hype surrounding "Edge" is an inauthentic hype/buzz campaign made to coincide with anti-Google sentiments spread by Microsoft front/pressure groups



  7. Microsoft's IIS Has Collapsed Again This Past Month (and IIS Will Not and Cannot Survive This Way)

    Netcraft shows that Microsoft's decline further accelerates in the Web servers space; IIS is becoming financially unviable



  8. Links 21/10/2020: Alpine 3.12.1, Tor Browser 10.0.2

    Links for the day



  9. [Meme] US Department of Justice Should Have Taken on Microsoft Again, Not Google

    When lobbying, connections and political sway determine the actions of the American government it's hardly surprising that Bill Gates gets the Trump administration to fight for him (to make him even richer)



  10. [Meme] Banning Words, Gaslighting Volunteers

    What happens when institutions are themselves in violation of a CoC (institutional violation) and massive corporations that fund such institutional violations are defending demonisation of the individual (squashing ‘uncomfortable’ voices, even volunteers’)



  11. IRC Proceedings: Tuesday, October 20, 2020

    IRC logs for Tuesday, October 20, 2020



  12. Links 21/10/2020: $8000 GNU/Linux Desktop, Tails 4.12, Open Infrastructure Foundation and Firefox Release

    Links for the day



  13. Never Feed the Internet Trolls, No Matter How Tempting It Becomes

    The tactics for removing critics of abuse (by framing them as "abusive") have evolved a lot in recent years; the best course of action is to never entertain provocateurs in any way whatsoever (just ignore them, give them no attention which they crave and feed on)



  14. Bill Gates: “I'm Not a Lawyer” (He Dropped Out of College, Where He Studied Law Before and After Breaking the Law Chronically)

    How Microsoft blackmailed other companies into supporting nothing but Microsoft and Windows; Bill Gates repeatedly lied to the interrogators about it, then said "I'm not a lawyer" (IANAL) even though he went to college to become one, just like his father who died last month



  15. Microsoft Has Not Changed Since Being Investigated (and Prosecuted) for Crimes at a Federal Level

    The media keeps telling us a bunch of worthless junk about Gates "saving the world" and Microsoft becoming a "nice" and "gentle" (or "soft") company, but nothing could be further from the truth



  16. Stick a Fork in the Open Source Initiative (OSI). OSI is Dead. Microsoft Bought OSI.

    OSI leadership proudly showing early signs of 'prognosis negative'; the OSI can never and will never recover from this; Microsoft killed it



  17. Links 20/10/2020: OpenZFS 2.0 RC4 and Trisquel GNU/Linux 9.0

    Links for the day



  18. People With God Complex Must Never be Allowed in Positions of Power

    The attack on Linus Torvalds — an attack which at his own expense/peril he fails to recognise/acknowledge — seeks to put both projects that he founded right in Microsoft’s palm



  19. IRC Proceedings: Monday, October 19, 2020

    IRC logs for Monday, October 19, 2020



  20. Corporate Media: GNU/Linux Can Only Succeed If/When Microsoft Dominates Everything Inside It

    The corporate takeover (or handover) of GNU/Linux would not have been possible without complicity of corruptible (bribed) media



  21. Bill Gates Explains How Microsoft and Apple Leverage Software Patents in Their Cross-Licensing Deals (to Perpetuate Duopoly/Shared Monopoly)

    A look back at Apple's and Microsoft's use or misuse of bogus software patents in bargaining (in effect excluding those who have not amassed tens of thousands of patents)



  22. Standards and Choices

    GNU/Linux is a very standards-based platform; having lots of choices (e.g. distros to choose from) isn’t the principal problem — or nowhere near the extent sabotage and illegal tactics by Microsoft have been



  23. IBM's “Emb(RACE)” Campaign is an Insult to History and Historians

    IBM wishes to be seen as some heroic saviour and warrior for black girls; this requires serious if not torturous revisionism to be believed



  24. There Are Too Many Types of Cars...

    "Choice is malicious," say the antagonists



  25. Reversal of Narratives by Internet Trolls (Spinning Reaction to Their Trolling as 'Abuse')

    Organisations that engage in demonisation of people (typically those who expose the abuses of such organisations) somehow evade the standards of Codes of Conduct, as if Codes of Conduct are covertly designed not to protect individuals but to empower those who already have all the powers (or front for powerful people/corporations)



  26. Ongoing (Albeit Secret) Campaign of Patent Extortion Against GNU/Linux Distributions Using Software Patents, Even Expired Ones in Europe

    GNU/Linux distros attacked by software patents, even in Europe where no such patents are supposed to exist (or have any legal bearing)



  27. Links 19/10/2020: Linux 5.9-ck1/MuQSS, Linux Kodachi 7.3

    Links for the day



  28. Java's James Gosling is Wrong. Free Software Advocates Never Suggested or Insinuated That Money-Making Was Ethically Wrong.

    The honorable James Gosling mischaracterises the stance of Free software advocacy, portraying it like it is an issue of money rather than respect for users



  29. Maybe This is What Codes of Conduct Were Made for? Or to Prevent? (Updated)

    When people bemoan the abuse they receive from a so-called 'anti-harassment' team (covering up corporate corruption in a project by ousting people) this is the kind of thing they receive from colleagues or former colleagues



  30. Media Contradicts Itself, Redefines Proprietary Software as 'Open'... for Microsoft

    Proprietary GitHub is being spun as Microsoft going "open" (nothing could be further from the truth) in another EEE-type move with diffusion and confusion


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