10.26.18
On PTAB, Andrei Iancu is to the Patent Litigation Giants What Ajit Pai is to Big Telecom (Former Employers)
The USPTO suffers the same syndrome as the FCC
Summary: Iancu moves to the next phase of the entryism-esque ‘operation’; he further denies access to PTAB for the purpose of scrutinising wrongly-granted US patents (after fee hikes and other barriers failed to slow PTAB down) whilst also complaining about 35 U.S.C. § 101, which is not a problem at all and is widely supported by technology firms large and small
THE picture is becoming clearer (conflict of interest) and harder to ignore; the USPTO is getting its own Battistelli, the corrupt President of the EPO. Patent quality is seen as a nuisance, not an aspiration, for the ultimate measure of “success” is number of patents or patent lawsuits.
Battistelli attacked judges in the appeal boards, whereas Iancu belittles or bemoans the Patent Trial and Appeal Board (PTAB), trying to water down/weaken inter partes reviews (IPRs) in direct defiance of the US Supreme Court. He’s supported by other Trump appointments like Justice Gorsuch. Today’s U.S. Patent and Trademark Office (USPTO) is also hostile towards 35 U.S.C. § 101, no matter if courts express no complaints/issues associated with it. Further limitations on IPRs are nowadays being attempted against entities like RPX and by extension Unified Patents. It’s about disenfranchising challengers (oppositions/appeals to bogus patents).
We advise new readers to read older posts of ours for background. PTAB is under attack by dirty tactics and a self-serving industry that strives to ‘create’ nothing but more lawsuits. One site of this industry notes this week:
The court’s ruling creates real challenges to the business model of defensive patent groups such as RPX. I expect that RPX will now petition for Supreme Court review and could become a companion case of the company’s already pending petition on the issue of when such a group has standing to appeal an adverse PTAB decision. RPX Corporation v. ChanBond LLC.
In its unsuccessful rehearing petition, RPX argued that the panel improperly expanded the meaning of real-party-in-interest because of its desire to protect patent holders against defensive patent groups.
They try to send it all the way up to the Supreme Court — to merely reaffirm the legitimacy of what entities like Unified Patents have been doing for years (squashing bogus patents using PTAB). The above from Dennis Crouch is complemented by another post about what happens when tribe lawyers resort to evil and greed, trying to deny access to justice by pretending patents of some large corporations are actually ‘tribal assets’. No matter the amount of negative publicity, the Saint Regis Mohawk Tribe still participates in a scam by which to shield bogus patents and help the pharmaceutical cartel overcharge people; we wrote about it approximately a dozen times before, even recently [1, 2]. Here’s the latest on this:
The Federal Circuit has denied the Mohawk Tribe’s petition for en banc rehearing on the issue of whether sovereign immunity may be asserted in inter partes review (IPR) proceedings. Although the case focused on immunity of federally recognized Indian tribes, the Federal Circuit decision is broadly written to also include patents owned by individual states. [Fed.Cir.St.Regis.Decision] A parallel case involving Minnesota is pending before the Federal Circuit. Regents of the Univ. of Minn. v. LSI Corp. Appeal No. 18-1559. Of course, the states and tribes do not receive a lot of sympathy from private patent holders whose patents are subject to IPRs.
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The Scheme: Any post about this case is not complete without a discussion of how the tribe came to own these Allergan patents at issue here. Basically, Allergan is paying the tribe to own these Restasis patents for the sole purpose of taking advantage of the Sovereign Immunity benefits. This involved a reverse-payment: Allergan paid St. Regis to take ownership of patents and is paying an annual royalty for their continued participation in the scheme.
So basically what we deal with here are a bunch of scammers and frauds. They even send me threats to my door, citing copyright law as an excuse by which to intimidate me (classic SLAPP).
Who does Iancu sidle with? Scammers and frauds, obviously. He didn’t get picked up by Trump for nothing. He fits a pattern and it makes the Office hopeless. Corrupt people tend to surround themselves by similarly-minded people because it makes them easier to control (the Mafia mentality of kinship and business partners).
Today’s Office Director — like Watchtroll — is pushing a false, misleading narrative, e.g. finding exceptions by which to discredit or distort PTAB’s record on accuracy. It last happened just two days ago. Iancu, who is close to Watchtroll, likes that because he too is in the litigation lobby. It sometimes seems like he’s more like a ‘mole’ propped up by Trump on behalf of business interests. He had long been a proponent of patents on software (before he got the job) and nowadays Iancu keep pushing Section 101 mythology (overstating the supposed ‘problem’). As Dennis Crouch points out, Chad Gilles has just written about the limited impact of what the patent microcosm characterises as “sky is falling” scenario (because they dislike the law).
Regarding PTAB, the chief judge moved (or was moved) some months ago, whereupon the patent microcosm leaped to replace him with another 'mole' like Iancu. David Ruschke (the chief judge) is a scientist, i.e. something that the Trump administration does not quite tolerate.
Iancu now moves to the next stage. ““I believe that the current amendment process in AIA proceedings is not working as intended,” said Andrei Iancu, announcing a new procedure at the AIPLA Annual Meeting,” according to this report from Michael Loney in Toronto. “USPTO director Andrei Iancu made news at the AIPLA Annual Meeting yesterday, announcing a new claim amendment procedure at the Patent Trial and Appeal Board,” he wrote.
Then came Dennis Crouch with a transcript:
In remarks today, USPTO Director Iancu has proposed the PTAB’s next step in reforming AIA Trials — giving the patent owner a six-week window following an institution decision to file a motion to amend. See below.
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This is a new day for the USPTO and our Patent Trial and Appeals Board (PTAB). For we are now increasing balance, consistency and transparency, especially in post grant proceedings. And in doing so, we are increasing confidence in these important proceedings.
Since Congress passed the America Invents Act (AIA) in 2011, we have received more than 9,000 petitions and issued over 2,000 final written decisions. So, we now have broad experience in understanding the true benefits and true challenges of these proceedings.
Opinions on how post-grant proceedings have been conducted to date diverge widely. Some vigorously dislike them, arguing that they are unfair and tilt too much in favor of the petitioner. Indeed, some would like to see the system abolished entirely. Others love the system, believing it’s the best tool we have to correct errors, eliminate “bad patents,” and improve patent quality. In fact, some would like to see IPRs expanded to consider even more issues.
So Iancu is trying to weaken PTAB and allow ways around it to defend bogus patents. He has already done several things to that effect and he won’t stop until appeals decline in number — the same thing Battistelli did to the appeal boards at the EPO.
Trump appointments have put corruption on steroids and this is one example that mainstream media rarely and perhaps never speaks about. When Trump puts a lawyer who promotes the litigation ‘industry’ in charge of examination and a tribunal (PTAB) it’s bound to end badly and Watchtroll seems happy, having just published “USPTO Director Iancu tells AIPLA annual meeting: ‘It is a new day at the PTAB’” (this is coming from the most radical patent blog out there).
Well, it’s hard not to feel like it’s somewhat of a coup by the likes of Watchtroll, who bullied Michelle Lee out of her job after Trump had been elected and wanted radical — sometimes corrupt people — in charge of the Office, bypassing the courts. █
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