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08.11.18

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

Posted in America, Law, Patents at 3:28 am by Dr. Roy Schestowitz

Patent maximalism would gradually corrode if not doom the patent system, making US patents obsolete and lawsuits frivolous

3 big cats

Summary: 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

THE Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), typically affirmed by the Federal Circuit and largely defended by management of the USPTO, which is more than just Iancu, is a little bit like the appeal boards at the EPO. The job of PTAB is assuring quality of patents. PTAB is used to stop or prevent frivolous patent litigation with abstract patents — something which increasingly happens in Europe, as we've just noted.

Earlier this month PTAB accomplished the following thing, which was celebrated yesterday by Unified Patents. Mr. Jain wrote:

On August 3, 2018, the Patent Trial and Appeal Board (PTAB) terminated IPR2017-01672 pursuant to a joint request filed by Quantum Stream Inc. (a subsidiary of XpresSpa, AKA Form Holdings) and Unified Patents. U.S. Patent 9,047,626, the subject of the IPR petition, relates to systems for delivering content, such as a digital video program, to a user device.

This is seemingly a software patent. It should not have been granted. But patent maximalists beg to differ; they mislead the media and mislead politicians about this. Only days ago Odessa American celebrated with the “Cult of Patents” as if “innovation” and “patent” (monopoly) are the same thing (see “Marketing Evolution Awarded Patent Recognition for Latest Innovation”), not to mention spin with “Smart…Smart…Smarter” in headlines such as this new article’s headline. Sadly, these patent maximalists still have a grip on the media. Rep. Thomas Massie wants to make a mess of the US patent system [1, 2, 3] and the media helps him promote his new bill, “Restoring America’s Leadership in Innovation Act of 2018” (RALIA). It’s a misnomer (should say “Litigation”, not “Innovation”), as Josh Landau (CCIA) has just explained, arguing that “RALIA Would Take Us Back To The Patent Law Stone Age” because:

At the end of June, Rep. Thomas Massie (R-KY) introduced the “Restoring America’s Leadership in Innovation Act of 2018,” H.R. 6264 (RALIA). RALIA, rather than restoring American innovation, aims to overturn the advances in American patent law that help protect innovation. Last week, I addressed Rep. Rohrabacher’s ‘Inventor Protection Act’ (IPA) [1][2], and I’ve previously covered the STRONGER Patents Act[1][2]. Now we can turn to the third member of this group of anti-innovation bills, RALIA.

Here’s the gist of it. The AIA? Gone. Decades of court decisions fine-tuning the balance between the patent reward and the impacts of the government-granted monopoly that a patent represents? Gone. RALIA even gets rid of the 18 month publication rule, which makes no sense if you want to promote progress—it only matters when it comes to promoting patents, a fact the bill actually admits.

[...]

RALIA includes an amendment to § 101 as well. This amendment appears to be based on the IPO and AIPLA proposals, which Patent Progress has covered in the past.[1][2]. The basic idea? Let’s make everything patentable, no matter if it would prevent anyone from accessing a basic scientific building block or represents nothing more than an abstract idea stripped of any structure.

These proposals come from interest groups that claim that § 101 “is not meant to provide the standard for deciding whether a particular technical advance should receive patent protection.” But that statement is wrong—that’s exactly what § 101 is for. And I’m not alone in this view. Back in June, USPTO Director Andrei Iancu agreed, describing § 101 as a determination of “what specifically, as a country, do we want to exclude from patenting.” There’s active discussion on what falls into that category, but it simply isn’t serious for AIPLA to suggest that § 101 isn’t intended to prevent certain types of patents.

As Patent Progress stated when these proposals first came out, they don’t promote progress, just patents that will block basic research and overbroad patents that claim an abstract idea. The only beneficiaries will be those who assert low-quality patents; it certainly won’t benefit progress of the useful arts.

RALIA is still being promoted in some media circles, we’re assuming at the behest of law firms. Those who value innovation in the US know that PTAB and § 101 aren’t the problems; they’re part of the solution.

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