09.02.18
Gemini version available ♊︎In the Post-Alice Era, in Spite of the Berkheimer Hype, the Patent Microcosm Finally Admits There’s No Turnaround
Who’s still ‘pulling a Berkheimer’ anyway? Except for marketing purposes at patent law firms?
Summary: 35 U.S.C. § 101 or its high invalidation rate persists; much to the chagrin of Iancu at al Berkheimer isn’t going to change that
THE U.S. Patent and Trademark Office (USPTO) is led by patent maximalists now. It made it more apparent a few days ago, as we noted a few hours ago.
Decisions from the Federal Circuit are being cherry-picked and in spite of support from even the highest courts — SCOTUS included — for the Patent Trial and Appeal Board (PTAB) and inter partes reviews (IPRs) Iancu at al attempt to undermine both. This underlines the extent of the trouble the Office now faces. Patent quality is certainly a priority at the courts; the Office is still pursing just numbers and then it wonders why people complain about low legal certainty associated with US patents.
“…the Office is still pursing just numbers and then it wonders why people complain about low legal certainty associated with US patents.”It was recently shown, using an exhaustive analysis (published in Fenwick & West Blogs), that Berkheimer had made no real difference; the messengers were inadvertently showing that at times Berkheimer being brought up was a recipe for failure.
Those who are accustomed to 'pulling a Berkheimer' will no doubt continue to deny the facts, instead citing their “alternative facts”. Days ago, in another rant among many about PTAB (all he does is ranting about PTAB), Mr. Gross wrote: “congrats to founder of this small start-up https://www.thesmartphr.com/ beating ridiculous Alice 101 patent rejection at PTAB: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2018006468-08-08-2018-1 … panel specifically calls out failure to follow Berkheimer memo on WURC standard!”
That’s very rare!
As noted a few days ago, first in Lexology and then in JD Supra (press release), “Months after” (as in, more than half a year later) it is “Business as Usual” for 35 U.S.C. § 101 invalidations. They allude specifically to Berkheimer and Aatrix (days or weeks apart some time back in the winter). White & Case LLP’s Bijal Vakil, Daren M. Orzechowski, Cale Tolbert and Michael Anthony Jaoude basically accept that all that “Berkheimer” hype was a lawyers’ lie. Concluding as follows: “Although only a few months have passed, District Courts seem generally unfazed by the Federal Circuit’s decisions in Berkheimer and Aatrix, continuing to decide cases at the motion to dismiss and summary judgment stages. Further time will tell whether these cases cause the disruption that many experts predicted five months ago or whether challenging eligibility will continue as usual.”
“Those who are accustomed to ‘pulling a Berkheimer’ will no doubt continue to deny the facts, instead citing their “alternative facts”.”No, not much has happened. We’ve been following this closely, as did Janal Kalis who gives another new example [PDF] when he writes: “The N. Dist. of California Killed the 23andMe Patent with Alice” (the usual, even at a district court, without a CAFC appeal).
Very good! Let’s hope for many more invalidations such as these. This one, for a change, we suppose Gross and Kalis can actually celebrate a little because it impacts negatively a company indirectly connected to Google (which they loathe). █
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