08.09.18

Gemini version available ♊︎

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

Posted in America, Courtroom, Deception, Patents at 1:48 pm by Dr. Roy Schestowitz

They want SCOTUS to reassess an IPRs case just months after it assessed two such cases, dealing a major blow to opponents of patent quality

A depressed man

Summary: 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

Patent maximalism is hinged on the misguided belief (or lie) that the more patents are granted and the more companies get punished for simply minding their own business, the better off supposed ‘innovation’ will be (they actually allude to lawyers’/attorneys’ fees, not innovation).

New case of point? Johnstech International Corp. v JF Technology Berhad et al. They’re now pursuing a punishment for selling products which were made before an alleged patent infringement was ‘proven’ and before appeal (this is just a district court, which is the lowest court for such disputes). As Patent Navigator put it some hours ago:

Following a jury verdict of willful infringement, the court granted in part plaintiff’s motion for enhanced damages and increased the damage award by 25% because one-quarter of defendant’s sales at issue took place after the verdict.

Does this jury understand the subject matter? Was the patent already tested ‘back’ at the USPTO? Can it?

At Kluwer Patent Blog (proponent of UPC and EPO patent maximalism) Brian Slater promotes the patent maximalism agenda for the US. It was published earlier today. This is an agenda which involves trying to weaken if not thwart Patent Trial and Appeal Board (“PTAB”) inter partes reviews (“IPRs”) because they elevate the quality of granted (by the USPTO) and enforced (in courts) patents, e.g. using 35 U.S.C. § 101, only to be affirmed by the Federal Circuit if/when an appeal is allowed.

Alluding to Oil States, Slater wrote that the IPR process is “Here to Stay in Modified Form”. To quote:

In a previous post here, we described constitutional and procedural challenges to inter partes review (“IPR”) in the Oil States and SAS Institute cases taken up by the U.S. Supreme Court. We also posted here on Allergan’s attempt to avoid an IPR by assigning its challenged patents to an American Indian tribe that claims tribal sovereign immunity, an apparent insurance policy in case the Supreme Court upheld the constitutionality of IPR. In April, as widely-anticipated, the Supreme Court rejected the constitutional challenge to IPR in the Oil States case. However, Allergan’s insurance policy may never pay out – in late July, the Court of Appeals for the Federal Circuit rejected the applicability of tribal sovereign immunity to IPR. Thus, IPR is here to stay for the foreseeable future and the tribal sovereign immunity play looks to be on its last legs. There is, however, one crumb of comfort for critics of IPR – the Supreme Court’s SAS Institute decision, also in April, requires that the Patent Trial and Appeal Board (“PTAB”) decide the patentability of all patent claims challenged in an IPR once it is instituted. That decision overrules the prior PTAB practice of deciding the patentability of only the claims on which IPR was instituted – so called “partial institution”.

They keep trying to water down the rules and weaken the process, but thus far they haven’t been successful. Citing Oil States, patent maximalists such as Dennis Crouch are now looking for some ways to undermine IPRs and reduce quality of patents. Crouch looks at a new SCOTUS cert petition (request for the Supreme Court to weight in) in Advanced Audio Devices, LLC v HTC Corp.:

In Oil States, the patentee lost its broad challenge to the AIA Post Issuance trial system. However the majority opinion penned by Justice Thomas hinted that other collateral attacks on the system could find more success. Particularly, the court wrote that “our decision [finding that patents are public rights] should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause.”

[...]

The Advanced Audio petition adds the additional twist that its patents were filed pre-AIA.

That does not matter. PTAB has already dealt with many patents which predate AIA, not just PTAB itself. It even uses Section 101 to invalidate patents predating Alice. This happened plenty of times. Cert petitions like these present nothing new; SCOTUS will likely decline.

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

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. 38+ Years of GNU and 19+ Years of FSF Associate Membership

    “On November 25, 2002,” Wikipedia notes, “the FSF launched the FSF Associate Membership program for individuals.” As the above video points out, it all started almost 40 years ago.



  2. Gemini as a Platform for Gamers

    Contrary to what people often assume (or are led to assume), even without client-side scripting Gemini can accomplish a great deal; early adopters, many of whom are technical, test the limits of the very minimalistic (by design and intention) specification



  3. Improved Workflows: Achievement Unlocked

    Today we've completed a bunch of small projects that can make us more efficient (e.g. more Daily Links per day, more articles); the above video was recorded many hours ago to accompany the outline below



  4. Links 26/11/2021: New Complaint About Microsoft Competition Crimes in Europe, EuroLinux 8.5, GhostBSD 21.11.24, and Kiwi TCMS 10.5 Released

    Links for the day



  5. Links 26/11/2021: F35 Elections, Whonix 16.0.3.7, OSMC's November Refresh With Kodi 19.3

    Links for the day



  6. IRC Proceedings: Thursday, November 25, 2021

    IRC logs for Thursday, November 25, 2021



  7. IRC Proceedings: Wednesday, November 24, 2021

    IRC logs for Wednesday, November 24, 2021



  8. Links 25/11/2021: PHP 8.1.0 Released and Linux 5.15.5

    Links for the day



  9. IBM as Master of Hypocrisy

    Free software projects and Free software developers have long been humiliated by corporations of Western misogynists, falsely claiming that the Free software community isn’t inclusive enough (these are shameless projection tactics; as a matter of public record, the exact opposite is true) and even the eradication of supposedly offensive language isn’t something IBM takes seriously



  10. Links 25/11/2021: LibreOffice 7.2.3 and Mesa 21.2.6 Released

    Links for the day



  11. [Meme] So Desperate That Edge Cannot Even Exceed 4% That They Block Rival Web Browsers

    Linux/Android/Free Software/GNU (they go by very many names/brands) may continue to grow to the point where Windows is as irrelevant as Blackberry; this means that Microsoft’s grip on the Web too has slipped — to the point where Microsoft frantically uses 'bailout' money to hijack LinkedIn, GitHub, etc. (it also rebrands almost everything as "Azure" or clown to fake a perception of growth)



  12. Windows Vista Service Pack 11 (Vista 11) Has Failed to Curb the Growth of GNU/Linux

    Windows market share continues to decrease in spite of billions of dollars spent bribing the media for fake hype, especially in light of a new Windows Service Pack (SP), Vista SP 11



  13. Links 25/11/2021: Proton 6.3-8 and Linux Mint Compared to Ubuntu

    Links for the day



  14. 3.5 Years Later the 'Master' of Fedora is Still Microsoft and IBM Cannot Be Bothered to Alter Git Branch Names (Refuting or Ignoring Its Very Own Directive About Supposedly Racially-Insensitive Terms)

    Today we demonstrate the hypocrisy of IBM; years after telling us that we should shun the term "master" and repeatedly insisting it had a racist connotation at least 65 Fedora repositories, still controlled by Microsoft, still use "master"



  15. Changing the Arrangement While News is a Bit Slow(er)

    I've made it easier for myself to keep abreast of things like IRC channels and networks (incidentally, a day ago Freenode reopened to anonymous logins) and I've improved monitoring of the Web sites, Gemini capsule etc. (this video is unplanned and improvised)



  16. Links 24/11/2021: Alpine Linux 3.15 and Endless OS 4.0 Released

    Links for the day



  17. [Meme] Jimmy Zemlin Loves Microsoft

    It’s funny, isn’t it? Lying for a living and sucking up to the liars pays off; you get to plunder actual Linux users while leaving Linux morally and financially bankrupt



  18. Links 24/11/2021: PHP Foundation and Flatpak Criticisms

    Links for the day



  19. IRC Proceedings: Tuesday, November 23, 2021

    IRC logs for Tuesday, November 23, 2021



  20. Links 24/11/2021: Rust Crisis and Team UPC Still Faking 'Progress'

    Links for the day



  21. Links 23/11/2021: New GNU Parallel and Memories of David H. Adler (Perl, Raku)

    Links for the day



  22. In Light of Fast-Accelerating Deterioration -- Sometimes Weaponisation -- Getting Off the World Wide Web (to the Extent Feasible) Makes You Saner and Less Susceptible to Manipulation, Lies

    Almost no sites are speaking about it (probably because they have no presence on the Internet except on the Web), but it's time to motivate more people to get off the Web, for their own good and for society's sake...



  23. Black Friday SPAM on the World Wide Web: A Reminder That the Web is a Dying Platform, Languishing Due to Marketing and Misinformation

    The junk that overruns the Web this 'Black Friday' week (consumerism 'on steroids') is a good reminder that the Web isn't healthy for the mind anymore; it's mostly spying on people, trying to compel them to buy particular things or vote a certain way



  24. Microsoft-Led Misinformation Campaign About Germany and Munich Reminds Us That Microsoft Hates and Actively Undermines GNU/Linux Adoption

    Regarding the latest moves to GNU/Linux in Germany we have 3 points to make



  25. Links 23/11/2021: Libreboot 20211122, Deepin Linux 20.3, Amazon Linux 2022, and Mabox Linux 21.11 Released

    Links for the day



  26. IRC Proceedings: Monday, November 22, 2021

    IRC logs for Monday, November 22, 2021



  27. Links 22/11/2021: EasyOS Dunfell 3.1.11, Microsoft 'Extends' Mesa for Windows

    Links for the day



  28. Microsoft's GitHub is Hugely Toxic and It Censors Critics of Corporations or People Sceptical of Those in Power

    Sociopaths have taken over GitHub and control over GitHub (by Microsoft) is being shamelessly misused, just as we’ve warned all along; GitHub is social control media/network for code, asserting control over projects and developers by means of censorship and other sanctions



  29. EPO Staff Engagement Survey Predates the Pandemic and Provides False Assumptions for EPO Policies or Policy-Setting

    The EPO ticks a box for "surveying the staff", but is it actually listening? Is that done often enough? It was last done almost 3 years ago...



  30. Links 22/11/2021: Claws Mail 4 Enters Debian and Catch-up With Legal Matters

    Links for the day


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