11.05.18
Gemini version available ♊︎The USPTO Under Director Andrei Iancu Actively Disses the Courts and Attacks Fundamental Patent Law
They just don’t care what courts are saying
Summary: Eliminating any perception of a separation of powers — much like Battistelli did at the EPO — the Iancu-led USPTO decides to just ignore what courts are saying, in effect opening the floodgates to fake patents (patents that don’t have any chance/legal bearing in courts)
THE European Patent Office (EPO) and U.S. Patent and Trademark Office (USPTO) aren’t quite allowed to grant software patents. software patents in Europe are in defiance of the EPC and software patents in the US are in defiance of 35 U.S.C. § 101. So the offices came up with loopholes to make software patents seem like something else, e.g. “blockchains” and “AI” (their favourite terms as of late).
Last week IAM ran an event that shamelessly promoted software patents. “We’re starting off the morning discussing the patentability of software globally,” IAM wrote, “with @uspto’s John Cabeca, @AmadeusITGroup’s Jean François Cases, @AlibabaGroup’s Roger Shang and @facebook’s Gilbert Wong #SoftwareIP pic.twitter.com/D2M945Q2CK”
So much for ‘balanced’ panel…
IAM is just lobbying as “news” and lobbying as “panels” or “events”. That’s a fraud of a site. It’s like an unregistered think tank and it’s not hard to see who’s funding it.
IAM’s patent zealot Richard Lloyd ended up writing such obvious falsehoods [1, 2], based on what the patent trolls (income source of IAM) need…
Without entertaining or amplifying what’s there, let’s just say that they speak to nobody who actually writes software. The event is called “Software IP” even though nobody there actually develops software/codes. To make matters worse, IAM (the patent trolls’ lobby) is intentionally lying. These people know they lie. Just take the headline above for example: “Soon-to-be-released USPTO examination guidance looks like being good news for applicants”
Lloyd means “good news for trolls and litigation firms” (applicants would just lose money, wasted on worthless, bunk patents that courts would reject).
Let’s look at what Lloyd is alluding to. For the perception of public input, as we noted last week, the “USPTO seeks comment on AIA guidelines,” to quote one headline. From the article: “The US Patent and Trademark Office (USPTO) is seeking comments on its updated America Invents Act (AIA) guidelines for standard practices before the Patent Trial and Appeal Board (PTAB) in post-grant trial procedures. [...] The USPTO also wants comments on the proposed timelines designed to ensure completion within 12 months from institution, as well as a number of specific questions.”
Here is what Patent Docs wrote:
In AIA post-grant proceedings — specifically, Post-Grant Review (“PGR”), Inter Partes Review (“IPR”), and Covered Business Method (“CBM”) review — the patentee has the right to seek to amend the claims rather than fight over the issued claims. However, in 90% of the cases in which a motion to amend has been decided by the Patent Trial and Appeal Board (“PTAB”), the motion has been denied. Based significantly on the dismal success rate of those motions to amend, the U.S. Patent and Trademark Office has now proposed an altered protocol for considering motions to amend in AIA post-grant proceedings. Specifically, it proposes having the PTAB provide a preliminary review of whether amended claims would satisfy statutory and regulatory requirements, then allowing the parties to react and a Patent Owner to potentially revise the motion to amend. Separately, the Office asked whether it should reallocate the burden of persuasion in motion to amend proceedings. Comments on these proposals are due by December 14, 2018.
That’s Josh Rich on what lobbying if not entryism by the litigation ‘industry’ has done to the US patent office that’s nowadays PTAB-hostile (because it’s trying to reduce patent quality). Nothing else has worked so far, so they are trying to change the rules. When it comes to Berkheimer, a court case that was massively hyped by the patent zealots (in vain), Dennis Crouch found just 4 examples in CAFC (that’s once a week!) in which it was cited last month. So the lawsuits ‘industry’ lied to its clients again. “In Berkheimer,” Crouch recalls, “the Federal Circuit explained that underlying factual disputes might prevent a motion on the pleadings or summary judgment decision. In this post, I looked at four recent district court cases that cite Berkheimer.” All he found was 1) In iSentium, LLC v Bloomberg Fin. L.P. 2) In ECOSERVICES, LLC, Pl., v CERTIFIED AVIATION SERVICES, LLC 3) In CardioNet, LLC v InfoBionic, Inc. and 4) KROY IP HOLDINGS, LLC, Pl., v GROUPON, INC.
The hopeless USPTO has therefore decided to just ignore the court or cherry-picking outcomes. An article by Julian Asquith and Tobias Eriksson explains that the “USPTO Director Suggests New Test For Software Patents” and to quote:
The United States Patent and Trademark Office (USPTO) director, Andrei Iancu, recently gave a talk at the IPO’s annual meeting, and he had some exciting news regarding subject matter eligibility, which affects the patentability of software. Ever since the Supreme Court Alice decision in 2014, many applicants have found the examination of software patents in the US inconsistent and unpredictable. Iancu readily acknowledged the existing problems with determining patentable subject matter, and in particular with determining whether or not protection is sought for an “abstract idea”, which is not patentable in the US under section 101. In an attempt to solve these problems the USPTO is now contemplating new guidance to simplify the test for an “abstract idea” and to improve the consistency and predictability of examination.
He actually said this to IPO. It’s like IPO got together with Iancu, trying to bring back software patents in defiance of US courts because Iancu’s appointing authority hates judges anyway. From IAM’s event we have [1, 2, 3]: “@uspto SIlicon Valley office head John Cabeca – we’re currently in the clearance process for new 101 guidance [...] We fully expect that there will be fewer 101 rejections after guidance is issued [...] Ultimately what we want to do is bring more certainty for patent owners…”
No, they are doing exactly the opposite. Iancu and Cabeca want to grant yet more fake patents that courts would then invalidate (if they reached the courts). Less legal certainty is thus inevitable. That just means that far fewer USPTO-granted patents will be valid. More bogus software patents granted for courts to invalidate. Is patent law under attack? And if so, by who? Not judges but the Office. Not PTAB but USPTO management.
As Janal Kalis noted last week: “The PTAB Affirmed an Examiner’s 101 Rejection of Claims of a Bayer Patent Application for Measuring Analyte with a Biosensor System: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017001517-10-17-2018-1 …”
Kalis gave another example: “The PTAB Affirmed an Examiner’s 101 Rejection of Claims in a Philips Patent Application for an Apparatus for Determining Parameters for Measuring Sleep Apnea: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017007834-10-16-2018-1 …”
Iancu wants to change that, making applications harder to reject. That’s the same mistake Battistelli made at the EPO. With IPO et al calling the shots, one has to wonder whose agenda is being served. Groups like AIPLA and the IPO are legal zealots whose sole goal is more lawsuits. They attack science, innovation, whatever. They only care about themselves.
Now watch this report from last week:
The Boston Patent Law Association (BPLA) has come out in support of the Intellectual Property Owners Association (IPO) and American IP Law Association (AIPLA)’s joint proposal concerning section 101 of the US Patent Act.
The proposal, which was delivered to US Patent and Trademark Office director Andrei Iancu on 3 May, calls for restored certainty in the predictability of patent subject matter eligibility.
AIPLA and the IPO notified Iancu that the organisations had adopted a unified legislative proposal, which would amend section 101 of the patent act.
Boston Patent Law Association is in the same ‘business’ as AIPLA and the IPO, so why should that even sound like surprise? Watchtroll wrote about the above, calling it a “Fix” (Watchtroll’s headline was “Boston Patent Law Association Announces Support for IPO-AIPLA Section 101 Legislative Fix” [sic]).
Lawyers support their own front groups and an attack on legal certainty. How is that even remotely surprising?
Then there’s the Intellectual Property Association, the European equivalent of IPO.
That the Intellectual Property Association is acting as a front group against Alice/Section 101 (and for software patents) is hardly surprising; what’s less expected, however, is the shamelessness. These people attack Alice by lying about its impact on behalf of the litigation ‘industry’ (vandals). As IP Kat reported last week from another event (“Report from 2018 Annual Meeting of the European Policy for Intellectual Property Association”): “He discussed this issue in relation to the difficulties of bringing to bear financial sources for risky R&D activities. He argued that the ‘abstract idea test’ devised in the Alice case has created uncertainty in the US patent system and has done harm to R&D, given that investors’ main concern is the return of their investment.”
Complete nonsense. This has been repeatedly refuted. They are in essence attacking the law itself. Watchtroll does that too; only days ago it pretended not to understand why SCOTUS rejects software patents and patents on life. It always pretends because its founder does not want to understand and tries to get Congress involved. To quote a portion: “As insulting as it is that the Supreme Court refuses to define the term “abstract idea”, the Supreme Court also uses the terms “natural phenomena” and “laws of nature” interchangeably, saying that they do not need to precisely identify which of the judicial exceptions they are using when analyzing the patent eligibility of a claimed invention in the life sciences sector. Again, this is their own test, and the Supreme Court mandates its application but refuses to define the key terms and phrases. How any jurist trained in the American system can believe an extra-statutory test is consistent with norms of American jurisprudence is a mystery, but hiding the ball and refusing to define key terms and concepts is truly unbelievable.”
It is pretty obvious what it means, but those who made a living pursuing fake patents (no longer worth even a dollar) refuse to understand. As recently as last night Watchtroll published another such attack on the law and the courts. Iancu could possibly claim that he isn’t attacking the courts and attempting to change the law; but the evidence speaks for itself and his connections to Watchtroll do not help. █
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