09.16.18

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Months After Oil States the Patent Maximalists Are Still Desperate to Crush PTAB in the Courts, Not Just in Congress and the Office

Posted in America, Law, Patents at 11:03 pm by Dr. Roy Schestowitz

Patent Lawyers' Tears

Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) improve patent quality and are therefore a threat to those who profit from spurious feuding and litigation; they try anything they can to turn things around

THE new U.S. Patent and Trademark Office’s (USPTO) Director is no friend of PTAB, unlike his predecessor. The Congress, as we noted some hours ago, is being approached by those looking to undermine PTAB. 35 U.S.C. § 101 has a lot to do with it, sometimes because of drug companies.

“There’s an attempt there to make life harder for filers, reducing the overall number of IPRs.”If the patent ‘industry’ cannot get PTAB and the Federal Circuit on its side, then it typically resorts to attacking both. Not a clever strategy

Days ago we saw RPX‘s press release titled “RPX Corporation Completes Transaction with Realtime Data” [1, 2]. The patent maximalist Matthew Bultman (Law360) then recalled a case which patent maximalists hoped would help friction, eroding access to PTAB and degrading productivity. To quote:

Defensive patent group RPX Corp. is asking the full Federal Circuit to reconsider a ruling that instructed the Patent Trial and Appeal Board to use a broader test when looking for unnamed beneficiaries in patent reviews, warning the ruling has “massive implications.”

RPX filed a petition for en banc rehearing on Friday, nearly two months after a three-judge panel ordered the PTAB to reconsider whether Salesforce.com Inc. should have been named an interested party in inter partes reviews that RPX requested in 2015 challenging two regulatory…

This would have implications for Unified Patents as well. There’s an attempt there to make life harder for filers, reducing the overall number of IPRs. That’s what SAS proponents sought to accomplish while ‘hiding’ the decision on Oil States a few months ago. SCOTUS still stubbornly defends PTAB. SAS was no exception to this; it was just something for the USPTO to exploit (Iancu in particular) if the goal is to slow down PTAB, if not by fee hikes and 'decapitation' then additional workload per IPR.

“Such a mindset is a dangerous mindset and surrogate of institutional corruption.”Recently we saw the Smartflash petition being promoted by sites like Patently-O. A petition to SCOTUS isn’t so extraordinary a thing; not many are successful, but the patent maximalists view this one as a threat to PTAB, so obviously Watchtroll has just promoted it as well, preceded by the usual propaganda:

In early August, patent owner Smartflash filed a petition for a writ of certiorari with the U.S. Supreme Court to appeal a case stemming from covered business method (CBM) review proceedings carried out at the Patent Trial and Appeal Board (PTAB). Smartflash is asking the Supreme Court to decide whether PTAB administrative patent judges (APJs) are principal officers of the United States who are subject to the terms of the Appointment Clause, whether CBM review of patents disclosed prior to passage of the America Invents Act (AIA) violates the Fifth Amendment’s Due Process Clause, and whether undisputed evidence that an invention is not unduly preemptive is relevant to answer questions of patent eligibility under 35 U.S.C. § 101.

At issue in this petition are a total of 30 CBM reviews petitioned by Apple, Samsung and Google against Smartflash, which were instituted by APJ panels at the PTAB. Although the APJ panels in these cases found that petitioners did not establish a likelihood that Smartflash’s patent claims were invalid under on 35 U.S.C. § 102 grounds for novelty or 35 U.S.C. § 103 grounds for obviousness, they did find a likelihood that the patent claims were invalid on Section 101 grounds for being directed to patent-ineligible subject matter. In the CBM reviews, the PTAB panels applied the two-part Alice test to determine first that the claims were directed to the abstract idea of conditioning and controlling access to content based upon payment, and then second that the additional elements of the claims did not contain an inventive step, thus rendering the claims invalid under Section 101. Smartflash appealed the PTAB’s final written decisions and the Federal Circuit issued a Rule 36 affirmance upholding the PTAB’s decisions without an opinion.

These “decisions without an opinion” aren’t so unusual and less than a day ago we wrote about Patently-O‘s long-going lobby on the matter.

At the moment we generally see the patent maximalists working hard to shut down or at least weaken PTAB at the legislative, judicial, and executive levels. They also hope that Iancu, a Trump appointee from the patent microcosm (Trump had paid his firm), will simply disregard courts' decisions. Such a mindset is a dangerous mindset and surrogate of institutional corruption.

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