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08.26.18

PTAB Haters (the Patent Maximalists) Hope That SCOTUS Will Save Their Quality-Reducing Agenda

Posted in America, Deception, Patents at 1:08 am by Dr. Roy Schestowitz

Mere months after Oil States, which dealt with this matter already

Patent Lawyers' Tears

Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) still exploit 35 U.S.C. § 101 to invalidate a lot of abstract patents; in between rants about § 101 itself, proponents of software patents (typically patent lawyers) try to undermine the very mechanism of applying § 101

THE U.S. Patent and Trademark Office (USPTO), taking precedential Federal Circuit (CAFC) rulings into account, already limits patent scope — to the point of patent grants decreasing in number.

“They just want to waste even more of the courts’ time, giving perception of interim legitimacy for their massive, elaborate ‘scam’.”Patent lawyers’ interests, which are purely financial (because they do not create anything), aren’t served by this trend. Some have already attempted dirty tricks by which to avoid patents being rechecked (knowing that a reassessment would likely void patents). Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), for example, are being dodged by misusing (claims of) immunity. A few days ago Kevin E. Noonan revisited the patent ‘scam’ from the St. Regis Mohawk Tribe (its law firm along with Allergan’s). They just want to waste even more of the courts’ time, giving perception of interim legitimacy for their massive, elaborate ‘scam’. Eiren O’Keeffe told me: “This is indeed an elaborate scam, designed to further shield big Pharma from opening up to keep profits high and patients subservient. Ridiculous this is even allowed to progress given the obvious motivation behind these actions.”

Here is what Noonan wrote:

On July 22nd, the Federal Circuit issued its opinion in St. Regis Mohawk Tribe v. Mylan Pharmaceuticals Inc., affirming the decision by the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office that denied the Tribe’s motion to terminate Mylan’s inter partes review (IPR) proceedings as being barred by tribal sovereign immunity. Yesterday, the Tribe filed its brief in support of its petition for rehearing en banc.

We are pretty certain that SCOTUS won't deal with this. It would be a total waste of the court’s time.

“They are trying to make it seem as though software patents still have some worth, but that’s patently untrue.”Be sure, however, that patent extremists would do anything they can to advocate even ‘scams’ (like the above). They hate PTAB with a passion, so they’d cling onto anything!

The anti-PTAB site Anticipat, for instance, uses or takes out of context very tiny difference which can be easily explained to say “abstract idea reversal rate continues upward trend for July” (that’s the headline). They are trying to make it seem as though software patents still have some worth, but that’s patently untrue. To quote:

Similar to June, in July the PTAB decided a lot of abstract idea rejections. Of 195 total, 32 were reversed, yielding a pure reversal rate of 16.5%. One decision was partially affirmed, yielding a partial reverse rate of 17%.

The difference is minuscule and we offered an explanation for it earlier this month. In a nutshell, fewer people even bother with their patents; only ‘stronger’ cases are even being tested.

Moving on to other anti-PTAB sites, Watchtroll again (and intentionally) conflates patents with innovation or “invention” (yesterday’s guest article from Trevor Day and Neil Ferraro). One can invent things without patent applications, as many have done for centuries. But let’s put this spin aside.

Over at Watchtroll, Burman York (Bud) Mathis III is again heckling judges of CAFC because of their stance on software patents. He sure has a habit of doing so. To quote: “Judge Jimmie Reyna’s decision in McRO v Bandai is without question one of the best decisions to emerge from the Federal Circuit as it competently addressed key elements of Alice Corp. v. CLS Bank. Judge Kara Stoll and Judge Richard Taranto, who signed onto this landmark opinion, should also be praised with Judge Reyna. The McRO decision, among other things, stands for the idea that software is a process under 35 U. S. C. § 101, and that a claim that does naught more than receive data, process data and “apply” the processed data is patent eligible under § 101. The representative claim of McRO is reproduced below for convenience.”

“Watchtroll produced anti-PTAB pieces even twice on the same day (Monday).”McRO is a relatively old decision (a couple of years old) from back when Watchtroll attacked CAFC judges pretty viciously. The site does not care about patent quality at all; to make matters worse, it actively bashes technology companies and judges who oppose abstract software patents. Does Watchtroll stand for science and technology? Or for litigation? For justice? Or just for profits? Watchtroll has always been this crude. Watchtroll’s anti-PTAB agenda resumes, as does the 35 U.S.C. § 101 bashing for abstract ideas, which meant the very end of software patents (at least in US patent courts). These people once again hope that the Justices — however unlikely this may be — would offer redemption to them. Days ago Patently-O wrote: “Whether undisputed evidence that a patented invention is not unduly preemptive, presented to technically proficient judges of the Board, is relevant to the question whether the invention is patent-eligible under 35 U.S.C. § 101.”

Dennis Crouch said it in relation to Smartflash v. Samsung, which saw a SCOTUS petition filed (“Smartflash Patents at issue here: U.S. Patent Nos. 7,334,720; 7,942,317; 8,033,458; 8,061,598; 8,118,221; 8,336,772; and 8,794,516.”).

Watchtroll’s Steve Brachmann wrote about a patent troll’s petition (Advanced Audio Devices) under “Supreme Court Petition Challenges PTAB’s Constitutionality Under the Takings Clause” (this issue or a similar issue was already challenged or tackled only months ago).

“These patent extremists believe that can somehow abolish IPRs, but they cannot.”Watchtroll produced anti-PTAB pieces even twice on the same day (Monday). Gene Quinn did another one, insinuating that there are “Shell Games” at PTAB. Then again on Wednesday Watchtroll was attacking PTAB (over “Transparency”). These patent extremists believe that can somehow abolish IPRs, but they cannot. Justices stand in their way. They know it. Days earlier Jeremy Doerre added another one of those patent maximalist pieces and Patently-O talked about stupid design patents (SCOTUS should knock these out and probably would had it gotten the chance). Here’s what Patently-O said:

During prosecution, the USPTO (examiner then PTAB) rejected the patent — finding the claim indefinite and not enabled. The particular problem with the drawing is that it is a flat plan view and does not show the three-dimensional structure — what do these lines actually represent in terms of 3D hills and valleys? The figures below is more ordinary for a shoe sole design — showing more than just a plan-view of the base.

[...]

In the end, this means that Maatita’s patent will be much broader in scope because it is not limited to any particular three-dimensional shape, but rather only a to the appearance from a particular perspective.

The decision here is also in-line with the Federal Circuit’s ongoing undermining of the indefiniteness doctrine — what does “reasonable certainty” mean to the court?

Patents on shoe sole designs? What next? Things like the patent below… (assigned to Zach Snyder)

Zach Snyder patent

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