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09.05.18

CCIA Speaks Out and EFF Lashes Out at Andrei Iancu’s USPTO for Trying to Work Around the Law and Ignore Courts Because of Patent Maximalists’ Agenda

Posted in America, EFF, Law, Patents at 4:38 am by Dr. Roy Schestowitz

Make Patents Great Again

Summary: A sort of regulatory capture at the USPTO worries front groups of technology companies, seeing that the USPTO simply cherry-picks court rulings in an effort to shape patent law (or at least examination guidelines) in favour of the litigation ‘industry’

THE USPTO had improved for a number of years, but then came Iancu, whose firm had worked for Donald Trump. Trump put him in charge of the USPTO, perpetuating the very Trump-like culture/pattern/hallmark of “vendor capture” (more commonly known as “regulatory capture”). The “vendor” in this context is the patent microcosm.

“Trump put him in charge of the USPTO, perpetuating the very Trump-like culture/pattern/hallmark of “vendor capture”.”Yesterday the CCIA‘s Patent Progress wrote something which echoes what we’ve been saying for a long time: “Further Evidence That Examiners Can Be Incentivized To Improve Patent Quality” (as they should).

Patent Progress under Mr. Landau really gets it (unlike Matt Levy, whose wife worked for the USPTO at the time). To quote Landau’s opening paragraph:

Patent Progress has previously covered the research of Profs. Wasserman and Frakes regarding structural incentives at the USPTO that affect examiner behavior. A new paper in the AIPLA Quarterly Journal, written by Eric Blatt and Lian Huang (both former examiners), examines another area in which examiner incentives affect behavior—the Signatory Authority Review Program.

Levy’s all-time low was probably the time he wrote for Watchtroll, a site of patent extremists. Here’s an example from yesterday, “The Death of Invention” (patents and invention are not the same thing and patents are not dying, they’re merely improving).

“Levy’s all-time low was probably the time he wrote for Watchtroll, a site of patent extremists.”“This is modern § 101 in a nutshell,” Burman York (Bud) Mathis III writes this week, comparing abstract patents being voided to a “death” and adding a ridiculous image (“painting” or computer rendering) of a graveyard. Quinn and his drama queens. Quinn, the site’s founder, has meanwhile traveled to see Iancu and he wrote about it yesterday. Iancu buddying up with Watchtroll (once again) says a lot about today’s USPTO leadership. Iancu is quoted as saying: “The proposal is that once we go through the various steps and we make all the modifications that are necessary, new fees would be implemented in early 2021. We’re a ways away from all that.”

Will he even last that long? It certainly does not look like technology companies (prolific applicants) like him, but based on this new tweet, the patent trolls’ lobby is happy to see such a patent ‘industry’ actor in charge of the Office. “Iancu has made a very encouraging start at the USPTO, says 3M’s IP chief,” IAM wrote. He's a patent maximalist, just like IAM which routinely gives him a platform.

“Perhaps Mr. Iancu, appointed by Trump, decided that he like his boss can just ignore laws and court rulings when that suits him and his financial agenda (he’s still connected to the company he came from).”By contrast, the EFF’s Alex Moss wrote (yesterday evening or last night) about a problem we had been mentioning for several months. He warns that the Office should not be allowed to make mockery of justice, or Iancu ignoring the law and becoming like Battistelli (what did at the EPO). SCOTUS decisions need to be respected, the ITC needs to respect Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) rather than ignore them, and the Federal Circuit‘s decisions oughtn’t be cherry-picked. “The Berkheimer case is a mistake that needs correcting,” Moss correctly wrote. Here’s more:

Since the Supreme Court’s 2014 Alice v. CLS Bank decision, courts have invalidated hundreds of patents that should never have been issued. Unfortunately, the Patent Office may restrict the impact of that ruling on patent applications under examination.

The Patent Office has issued a request for comment on a proposal to give guidance to examiners that would put a thumb on the scale in favor of patent applicants. If adopted, the guidance would make it too hard for examiners to reject applications on abstract ideas. We’ve argued before against Patent Office proposals that water down the Supreme Court’s Alice decision. We have submitted new comments urging the office to apply Alice comprehensively and correctly, rather than biasing the process in favor of applicants hoping to patent generic computer functions.

The Alice ruling was a big win for software developers and users. The decision empowered district courts across the country to invalidate hundreds patents that should not have issued, and to do so at the earliest stages of a lawsuit, before litigation costs become prohibitive. But lawsuits over patents on basic ideas, like the idea of using categories to store and retrieve information, keep coming. These patents may use technical jargon, but actually require no technology beyond an off-the-shelf general-purpose computer.

Examiners need to understand the change in the law that Alice made. Our comments emphasize the key part of Alice’s landmark holding—describing generic computers performing generic computer functions can’t save a patent.

So why is this guidance coming now? The Patent Office’s new request comes on the heels of the Federal Circuit’s decision in Berkheimer v. HP, Inc., the first case to find evidence outside a patent necessary to decide whether the patent is abstract under Alice. If courts take the direction of Berkheimer, it could mean that those accused of infringement will have to present evidence to a jury at trial before they get a decision on eligibility under Alice.

[...]

Until then, EFF hopes the Patent Office takes our comments into account. The Berkheimer case is a mistake that needs correcting. The Patent Office should not view it as an opportunity to skew the outcome of decisions on pending patent applications in ways that undermine the rules so recently set forth in Alice.

Perhaps Mr. Iancu, appointed by Trump, decided that he like his boss can just ignore laws and court rulings when that suits him and his financial agenda (he’s still connected to the company he came from). If that’s the case, the reputation of the Office will suffer for a long time to come.

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