10.08.18

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The Federal Circuit Continues to ‘Lecture’ the Patent Office on Patent Scope and Limits, But Iancu Isn’t Listening

Posted in Law, Patents at 9:08 am by Dr. Roy Schestowitz

Like a lighthouse in the Sodom and Gomorrah which is the patent litigation ‘industry’

Tall lighthouse

Summary: Director Iancu isn’t quite listening to what high courts are saying, instead choosing to cherry-pick cases based on whatever decisions suit him and his cronies, including patent maximalists with prominent blogs

THE USPTO had been recaptured by patent maximalists, but this merely resulted in greater divergence from SCOTUS, which had set or had been responsible for much of 35 U.S.C. § 101, i.e. U.S. Patent and Trademark Office (USPTO) laws/rules/guidelines.

“Sadly, the district courts have not fully caught up (at least not yet) with SCOTUS; they’re more USPTO-friendly.”Regarding a case that we wrote about yesterday (a Federal Circuit (CAFC) case with Chief Judge Prost personally involved) Watchtroll said this yesterday:

The Federal Circuit recently issued a ruling reversing the district court’s denial of Apple Inc.’s (“Apple”) motion for judgment as a matter of law (“JMOL”) after finding no reasonable juror could have found infringement based on the evidence presented during the liability phase of trial. The decision erased an awarded over $234 million in damages to Wisconsin Alumni Research Foundation (WARF). The Court, however, affirmed the district court’s grant of summary judgment with respect to invalidity in favor of the patent owner. See Wisconsin Alumni Research Foundation v. Apple Inc., Nos. 2017-2265, 2017-2380 (Fed. Cir. Sept. 28, 2018) (Before Prost, Chief Judge, Bryson and O’Malley, Circuit Judges) (Opinion for the court, Prost, Chief Judge).

One can expect a different judgment, likely the outcome being overturned (otherwise they would not pick the case). Sadly, the district courts have not fully caught up (at least not yet) with SCOTUS; they’re more USPTO-friendly. The same goes for Gene Quinn, who smeared the good Director (an actual scientist) at the USPTO in an effort to put someone like Iancu (litigation ‘industry’) in charge, no matter what courts keep saying. Days ago the “Patent Bar Exam” and After Final Consideration Pilot Program 2.0 (AFCP 2.0) were promoted by Quinn, who acts as little more than a megaphone of the USPTO:

Earlier today the United States Patent and Trademark Office (USPTO) announced that the After Final Consideration Pilot Program 2.0 (AFCP 2.0) would be extended until September 20, 2019. The decision to extend this popular and sensible program comes as no shock.

The USPTO is trying to broaden patent scope and increase the number of patents. They don’t seem to care about patent quality and some of them don’t even understand the department they preside over; leadership issues and non-technical management (appointed owing to nepotism rather than qualifications and experience) is an issue that even USPTO insiders (notably examiners) speak of. Not too long ago there was a very long downtime (over a week) and Iancu hardly even apologised for it, let alone explained the cause. Donald Zuhn spoke of the following technical change a few days ago:

The Office also announced the release of a migration tool, which allows existing PKI digital certificate holders to link their USPTO.gov accounts to their current PKI digital certificates. To migrate an existing PKI digital certificate, users must have a USPTO.gov account. Users who need to create a USPTO.gov account can do so by following the steps under the “Create a USPTO.gov Account” tab at the Office’s authentication change webpage. Once a USPTO.gov account has been created, users can follow the steps under the “Migrate your PKI Certificate” tab at the Office’s authentication change webpage (or refer to the Guide for Migration) to link that account to their PKI certificate. The Office notes that users should allow 1–2 business days after the migration steps are finished for the migration process to be completed. Once the process is completed, users will be able to sign into the EFS-Web or Private PAIR using their USPTO.gov account.

Way to distract from the fact that they had a very major meltdown only weeks ago and they never explained the cause and remedy.

Anyway, we continue to admire the Chief Judge of CAFC for her (and her colleagues’) insistence on the rule of law, based on caselaw and the Constitution rather than the financial interests of self-serving law firms. It might not be long before patent maximalists attempt to do to her what they had done to Michelle Lee until she was replaced by Iancu. These people probably want another ‘Rader’ back in CAFC; they used to try to make him USPTO Director (even after he had been entangled in scandals, serving law firms rather than justice).

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