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09.08.18

35 U.S.C. § 101 Squashes Already-Granted US Patents, Europe Needs Post-Grant Appeals to Accomplish the Same Because EPO Grants Software Patents

Posted in America, Europe, Patents at 11:40 am by Dr. Roy Schestowitz

Defendants (or accused parties) shouldn’t need to wait until there’s costly litigation to prove the invalidity of particular European Patents

Robert Jain
Robert Jain. Image source: Unified Patents

Summary: The crowdsourcing or crowdfunding efforts which leverage PTAB to help eliminate bogus patents, wrongly granted by the USPTO, would be appreciated in Europe as well because of the out-of-control EPO

NOTHING matters more than patent quality. Granularity, complexity, novelty etc. all matter, otherwise monopolies are being granted on just about anything. Examples have been named here for almost 12 years and examiners from the EPO openly speak about these things, unlike their management. Examiners take pride in proper scrutiny of patent applications (like peer review of scholarly papers/literature), whereas management types just want to see big numbers, which they conflate with “production” (Iancu's approach as well as the attitude of Battistelli and António Campinos).

“This is where the public has to step in and correct the examination work, if not by opposition from a firm (typically prior to award/grant) then by crowdsourcing/crowdfunding efforts.”Sometimes, as in the EPO, examiners aren’t allowed to do their job properly. They get sacked or risk getting sacked if they do. We covered this before and there are leaks to that effect. This is where the public has to step in and correct the examination work, if not by opposition from a firm (typically prior to award/grant) then by crowdsourcing/crowdfunding efforts. Over the years there were several such efforts (like Peer-to-Patent), but none really endured in the long run because not enough people participated and these efforts predated AIA.

As Robert Jain explains and shows (a few days ago), Unified Patents' bounties work; they encourage people to submit prior art whereby patents wrongly granted by the U.S. Patent and Trademark Office (USPTO) get invalidated at the Patent Trial and Appeal Board (PTAB) through inter partes reviews (IPRs). These typically leverage 35 U.S.C. § 101 (Alice at SCOTUS helps) and the Federal Circuit affirms, sealing the deal and nailing that patent’s (or patents’) coffin for good.

Here’s a new update from Jain:

On September 1, 2018, Unified added four new prior art contests to PATROLL, a prior art crowdsourcing solution. Three of the four patents (US Patent Nos. 9471287, 7594168 and 6546397) are owned by Express Mobile, Inc. (an NPE) and have been asserted against a wide variety of operating companies. Unified is offering a $1,000 cash prize for prior art on the ’287, ’168 or ’397 patents which relate generally to website developer tools.

Unified also added a $2,000 contest seeking prior art for US Patent No. 9119033, owned and asserted by PerDiemCo, LLC (an NPE). The ’033 patent, related to a vehicle tracking system, was previously challenged at the PTAB in IPR2017-01007 which settled after the Board instituted trial.

PTAB, based on a newer update from Jain, helps against a patent troll, Jay Walker, for the following reasons:

On September 6, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 8,549,310 owned and asserted by Certified Measurement, a subsidiary of Walker Innovation and well-known NPE. The ’310 patent, directed to a “method and apparatus for secure measurement certification,” has been asserted in multiple cases against such companies as Yokogawa America, ABB, and Alstom.

Even based on the title alone it’s not hard to see that it’s a bogus and likely abstract patent. The word “apparatus” is typical yet misleading. It would be nice for Europe to adopt an IPR-like process and for groups like Unified Patents to operate here. We’ve recently been highlighting some truly dodgy European Patents.

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