EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

09.16.18

Slamming Courts and Judges Won’t Help the Patent Maximalists; It Can Only Make Things Worse

Posted in America, Deception, Patents at 5:47 am by Dr. Roy Schestowitz

Recent: Patent Maximalists — Not Reformers — Are the Biggest Threat to the Viability of the Patent System and Innovation

Green puzzle

Summary: Acorda Therapeutics sees its stock price dropping 25% after finding out that its patent portfolio isn’t solid, as affirmed by the Federal Circuit (CAFC); the only way out of this mess is a pursuit of a vastly improved patent quality, thorough patent examination which then offers legal certainty

THE EPO grants monopolies that kill people, just like the USPTO. It’s like corporate interests rather than science or innovation are the sole priority. What about public interest? Or public welfare/wellbeing?

The other day patent maximalists wrote about Acorda. Dennis Crouch (Patently-O) keeps sobbing for the patent aggressors, even if the patents at hand (underlying USPTO-granted monopolies) turn out to have been errors, hence injustices. To quote Crouch:

In a 50+ page majority opinion, the Federal Circuit has affirmed a district court obviousness judgment. Judge Taranto penned the majority opinion and was joined by Judge Dyk. Judge Newman wrote in dissent — arguing in 20+ additional pages that the majority improperly discounted the objective indicia of non-obviousness. On news of the invalidity decision, Acorda’s stock price dropped 25%.

[...]

Remember that broad Elan patent exclusively licensed by Acorda. The majority explains that Acorda’s commercial success and the long-felt need for advances were due to the roadblock set-up by that patent. “The risk of infringement liability for marketing in the US would have provided and independent incentive [for third parties] not to develop the invention of the Acorda patents, even if those inventions were obvious.” (internal quotations eliminated; this holding, the appellate court finds was supported by the trial record). Although the Elan patent was a US patent — and thus did not block research (FDA Research Exemption) nor did it block international sales, the majority explained that those caveats are “not shown to be weighty.” Several Amici filed briefs in support of the patentee — however, the Federal Circuit found that the friendly arguments failed for lack of proffered evidence.

If a company is this dependent on a patent monopoly, then perhaps it should not exist in the first place and the patents are of rubbish quality anyway. Something similar happened in Europe recently.

It’s not too surprising that similar ‘sob stories’ came from proponents of patents on life/nature such as “Patent Docs authors Kevin Noonan and Donald Zuhn,” as Patent Docs themselves put it shortly after Kevin Noonan wrote about Acorda:

Determining obviousness is always a reconstruction, imperfectly done, of a past that never was. The prior art is consulted and the question asked, would the worker of ordinary skill in the art have been able to achieve the claimed invention with a reasonable expectation of success? Of course, this question is posed against a backdrop of the ordinarily skilled worker not having achieved the invention; that accomplishment was attained by the named inventor. Nevertheless, the Supreme Court since Hotchkiss and the Patent Act since 1952 has recognized that sometimes the answer to the question must be no, if only to ensure that the constitutional mandate that Congress only grant patents that will “promote the progress of . . . the useful arts” be satisfied.

[...]

The lawsuit arose when Roxane and co-Defendants Mylan Pharmaceuticals, Inc., and Teva Pharmaceuticals USA, Inc. each filed an Abbreviated New Drug Application (ANDA) for Acorda’s multiple sclerosis drug (Ampyra®) and sent Paragraph IV letters to Acorda (and co-Plaintiff Alkermes Pharma Ireland Ltd.) asserting that four Orange Book-listed patents (U.S. Patent Nos. 8,007,826; 8,663,685; 8,354,437; and 8,440,703) were invalid. As the Federal Circuit panel stated, there was one additional patent, U.S. Patent No. 5,540,938, owned by Elan Corp. plc and exclusively licensed to Acorda. That patent broadly claimed therapeutic formulations of 4-aminopyridine (4-AP); Acorda’s patents were for more narrow formulations having specific characteristics and properties that distinguished (undisputedly, for novelty purposes) these claims from the claims of the ’938 patent.

None of that would happen had the USPTO properly assessed the patents in the first place, possibly aided by the Patent Trial and Appeal Board (PTAB), even without an inter partes review (IPR). What we generally have here for all to see is a reminder of the great importance of patent quality.

The US patent courts, CAFC in this case, keep telling off the U.S. Patent and Trademark Office (USPTO) for granting bogus patents and trying to justify that, as is common when it comes to 35 U.S.C. § 101. Here is another new example from Patently-O:

Today the Federal Circuit issued three parallel decisions all stemming from the patent case brought by Asghari-Kamrani. The first two decisions affirm the E.D.Va. judgment-on-the-pleadings. In those cases, the district court held that the patentee (Asghari-Kamrani) failed to state a plausible claim for relief within her complaint. In particular, the court found that all the asserted claims were invalid for lack of eligibility. On appeal, the Federal Circuit AFFIRMED in a R.36 Judgment Without Opinion. [Link].

The third decision is an order of dismissal of a parallel appeal from the PTAB (CBM Review). The PTAB had found all of the claims unpatentable as obvious or anticipated. On appeal, though the Federal Circuit dismissed the appeals as moot — and vacated the USPTO decisions.

Dennis Crouch, in his rather typical fashion, complains about it. This patent maximalist says “the automatic vacatur of the PTAB decisions does not sit well with me.” He has long used this strategy of trying to slow PTAB down, just like the SAS decision from earlier this year.

Crouch later wrote another one of his many rants, this time titled “The Federal Circuit Strides Forward with No-Opinion-Judgments” (never mind if they cannot cope with the number of appeals coming from PTAB). To quote Crouch:

Petition for Writ of Certiorari. I explain in the article, that the issue was rather low-level up until 2013 and the explosion of inter partes review (IPR) proceedings and resulting appeals to the Federal Circuit. Because those cases typically involve complex obviousness analysis (as in the case at hand), the shortcut route has been for the court to issue R.36 Judgments Without Opinion in these IPR appeals. The result has been hundreds of R. 36 Judgments of PATO appeals over the past few years.

Although a number of parties have raised the issue with the Federal Circuit, the court has not yet addressed the issue directly (other than by continuing to issue no-opinion-judgments). I will note that the same question is also presented in the pending petition in Leon Stambler v. Mastercard International, Inc., SCT Docket No. 17-1140.

Rob Sterne’s team at Sterne Kessler is representing the patentee-petitioner. Sarah Guske (Baker Botts) represented Cisco in the appeal.

If Crouch is so bothered to see patents invalidated at a very high pace, maybe he should introspect and consider if his worldview has been warped by the litigation ‘industry’ with its financial agenda. He’s supposed to be a law professor, but instead he speaks like a lobbyist for patent trolls who just ‘happens’ to lecture people in an educational institution.

Observations like the above only further contribute to the perception of a nefarious agenda; and as a side note, many patent sites I’ve long followed (they’re even called “Patent” something) are diverging/moving away from patents to copyright and trademark stuff. Some, including Watchtroll, no longer even cover any of the above. They seem totally lost. When they write something — as we shall show later this weekend — it’s typically an attack on a court, tribunal, panel, or judge. This is not good. It’s not good for the image of their profession as a whole. Unless they give up on their patent maximalism/lobbying, they will only alienate judges even further. Moving to greener pastures may be a better trajectory. IAM, for example, has virtually gone dark; it’s barely even visible anymore.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

Leave a Comment

You must be logged in to post a comment.

What Else is New


  1. Links 25/9/2018: Mesa 18.1.9, New Fedora Beta, and Oracle Solaris 11.4 SRU1

    Links for the day



  2. Technology Groups and Innovators Bemoan Attempts to Override the Courts to Promote Patent Maximalists' Agenda by USPTO Director Andrei Iancu

    The U.S. Patent and Trademark Office (USPTO) is not listening to the views of actual innovators; it seems to be serving just the patent and litigation 'industry' (i.e. those who profit from illegitimate patents and baseless lawsuits)



  3. Patent Trolls Roundup: Microsoft's Patent Troll Collapses, Samsung Fuels Patent Troll Sisvel, and Patent Troll VirnetX Wants Apple's Cash

    Microsoft's largest patent troll continues to experience a mass exodus (in addition to all the layoffs), Sisvel receives armament from Samsung, and VirnetX carries on pretending -- to shareholders at least -- that it will get a lot of money out of Apple (albeit an appeal will likely prevent that altogether)



  4. António Campinos Goes to UPC-Hostile Country, UPC Continues to Languish and Team UPC Carries on Pushing for Software Patents in Europe (Courts Also)

    The Unified Patent Court (UPC) fantasy has fizzled, but those striving to interject software patents agenda into Europe from the back door (e.g. labeling these "AI" or ignoring the stance of actual courts) aren't giving up just yet



  5. The Man Whose Actions Could Potentially Land Team Battistelli in Jail

    As new evidence and more material surfaces about Benalla, Battistelli tries hard to hide himself from French media, knowing that he might be criminally culpable



  6. Links 24/9/2018: Linux 4.19 RC5 From Greg Kroah-Hartman, OpenShot 2.4.3 Released

    Links for the day



  7. Reader's Article: Affaire Benalla Strongly Connected to EPO/OEB/EPA and Former President Benoît Battistelli

    A Macron scandal has led French media to finally (and years too late) exploring some of the much more explosive scandals at the EPO, revealing some interesting new details in the process



  8. Language Patent Lawyers Are Using to Warp the Debate and Decrease Public Understanding of Patents

    The patent microcosm, trying to get the public all baffled/confused about the patent system, continues (mis)using words to convey things in misleading ways



  9. USPTO FEES ACT Makes the US Patent Office a Money-Making Machine That Systematically Disregards Patent Quality

    The lingering issues with patent assessment at the US patent office, which unlike US courts isn't quite so impartial an actor (it benefits more from granting than from rejecting)



  10. Guest Post on Ronan Le Gleut and Benalla at the French Senate (in Light of Battistelli's Epic Abuses)

    Thoughts on the possibility that Battistelli will belatedly be held accountable for his abuses, knowing that a senator representing French Citizens residing Abroad comes from the EPO



  11. A Lot of US Patents Are Entirely Bogus, But Apple Was Willing to Pay for Them

    Apple's resistance to Qualcomm's patent aggression was preceded by very heavy ("thermonuclear" by Steve Jobs' description/words) patent wars against Android and even legitimisation of clearly bogus software patents from Amazon



  12. 'Owning' Nature, Thanks to Patent Insanity and People Who Profit From That

    Questionable patents on things that always existed and are merely being explained or reassembled; those sorts of patents typically serve to merely discredit the patent system and courts too increasingly reject such patents (e.g. SCOTUS on Mayo Collaborative Services and Myriad Genetics, Inc.)



  13. Patents Stranger Than Fiction and 'Protection' From Fictional Things

    Fictional things are being treated like "inventions" and insurance companies now look to exploit fear of fictional things (man-made concepts), such as ownership of mere ideas or words



  14. Benoît Battistelli Refuses to Talk to the Media About Bringing Firearms to the EPO

    Benoît Battistelli's highly aggressive approach has attracted the attention of French media; Battistelli has reportedly refused to comment on that matter, knowing that he lacks a defense (same thing happened after he had hauled millions of EPO euros to his other employer)



  15. Patent Law Firms Have Become More Like Marketing Departments With an Aptitude for Buzzwords

    What we're observing, without much reluctance anymore, is that a lot of patent lawyers still push abstract software patents, desperately looking for new trendy terms or adjectives by which to make these seem non-abstract



  16. Interlude: The Need to Counter Misinformation From the Patent and Litigation 'Industry'

    24,500 posts reached; so we pause and reflect, seeing that many sites/blogs of patent maximalists gradually ebb away



  17. Advocacy of the Unitary Patent System Has Become Almost Identical to the 'Leave' (Brexit) Campaign

    The charades of Team UPC carry on in Kluwer Patent Blog — a blog which for a very long time served no purpose other than Unified Patent Court (UPC) advocacy



  18. Open Invention Network is Rendered Obsolete in the Wake of Alice and It's Not Even Useful in Combating Microsoft's Patent Trolls

    Changes at the US Patent and Trademark Office (USPTO) and in US courts' outcomes may have already meant that patent trolls rather than software patents in general are a growing threat, including those that Microsoft is backing, funding and arming to put legal pressure on GNU/Linux (and compel people/companies to host GNU/Linux instances on Azure for patent 'protection' from these trolls)



  19. Bogus Patents Which Oughtn't Have Been Granted Make Products Deliberately Worse, Reducing Innovation and Worsening Customers' Experience

    How shallow patents — or patent applications that no patent office should be accepting — turn out to be at the core of multi-billion-dollar cases/lawsuits, with potentially a billion people impacted (their products made worse to work around such questionable patents)



  20. EPO is Like a Patent Litigation (Without Actual Trial) Office, Not a Patent Examination Office

    Examination of patent applications isn't taken seriously by an office whose entire existence was supposed to be about examination; bureaucracy at the top of this office has apparently decided that the sole goal is to create more demand (i.e. lawsuits) for the litigation 'industry'



  21. Philippe Cadre From the French National Institute of Industrial Property (INPI) Wants to Join António Campinos

    Yet another example of INPI's creeping influence if not 'entryism' at the EPO and this time too patent quality isn't a priority



  22. Links 22/9/2018: Mesa 18.2.1, CLIP OS, GPL Settlement in Artifex/First National Title Insurance Company

    Links for the day



  23. Links 21/9/2018: Cockpit 178, Purism 'Dongle'

    Links for the day



  24. Criticism of Unitary Patent (UPC) Agreement Doomed the UPC and Patent Trolls' Plan -- Along With the Litigation Lobby -- for Unified 'Extortion Vector'

    The Unitary Patent or Unified Patent Court (UPC) was the trolls' weapon against potentially millions of European businesses; but those businesses have woken up to the fact that it was against their interests and European member states such as Spain and Poland now oppose it while Germany halts ratification



  25. It Wasn't Judges With Weapons in Their Office, It Was Benoît Battistelli Who Brought Firearms to the European Patent Office (EPO)

    The EPO scandals deepen in light of a very major scandal which has occupied the French media for a couple of months



  26. Links 20/9/2018: 2018 Linux Audio Miniconference and Blackboard's Openwashing

    Links for the day



  27. Links 19/9/2018: Chromebooks Get More DEBs, LLVM 7.0.0 Released

    Links for the day



  28. Links 18/9/2018: Qt 5.12 Alpha , MAAS 2.5.0 Beta, PostgreSQL CoC

    Links for the day



  29. Today's European Patent Office (EPO) Works for Large, Foreign Pharmaceutical Companies in Pursuit of Patents on Nature, Life, and Essential/Basic Drugs

    The never-ending insanity which is patents on DNA/genome/genetics and all sorts of basic things that are put together like a recipe in a restaurant; patents are no longer covering actual machinery that accomplishes unique tasks in complicated ways, typically assembled from scratch by humans; some supposed 'inventions' are merely born into existence by the natural splitting of organisms or conception (e.g. pregnancy)



  30. The EPO Has Quit Pretending That It Cares About Patent Quality, All It Cares About is Quantity of Lawsuits

    A new interview with Roberta Romano-Götsch, as well as the EPO's promotion of software patents alongside CIPA (Team UPC), is an indication that the EPO has ceased caring about quality and hardly even pretends to care anymore


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts