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

11.11.18

The Federal Circuit and PTAB Are Not Slowing Down; Patent Maximalists Claim It’s ‘Harassment’ to Question a Patent’s Validity

Posted in Courtroom, Law, Patents at 5:18 pm by Dr. Roy Schestowitz

The duo that strikes out a lot of questionable patents is still besieged or at least berated by the litigation ‘industry’

Watchtroll

Summary: There’s no sign of stopping when it comes to harassment of judges and courts; those who make a living from patent threats and litigation do anything conceivable to stop the ‘bloodbath’ of US patents which were never supposed to have been granted in the first place

AS we noted in the previous post, there’s a coordinated effort to squash reviews of patents wrongly granted by the USPTO. Battistelli did something similar at the European Patent Office (EPO) when he relentlessly attacked judges and their collective independence.

The USPTO, unlike the EPO, cannot quite influence the courts (it’s definitely trying to, as we warned earlier this month), so if patents are granted in error they will be invalidated/rejected by the courts; Iancu and his new sidekick (patent trolls' apologists) can just stare and glare. They can’t quite touch the judges. They make a bit of a turmoil at the Patent Trial and Appeal Board (PTAB) though, mirroring Battistelli’s assault on the appeal boards.

Recent Law360 coverage spoke about fake patents (that are, as usual, software patents) being thrown out by the excellent Federal Circuit, which has changed a lot under its current chief judge. There is virtually nothing Iancu can do to the Federal Circuit and ignoring its outcomes/caselaw he can only ever do at his own peril. Suzanne Monyak’s report says that “[t]he Federal Circuit on Wednesday refused to revive technology company PurePredictive Inc.’s claims that an open-source software company ripped off its predictive analytics patent, leaving in place a lower court’s ruling…”

Notice how they attempted to use patents against Free/Open Source software.

Having failed to slow down the Federal Circuit and PTAB, Dennis Crouch changes strategies again (published on 29/10/18, based on someone else’s publication); these patent maximalists are looking/assessing a basis for rejecting/suppressing IPRs. Authored by Dennis Crouch last month: “The article provides its expectation that the PTO will likely become even more aggressive at limiting this approach of repeat filings. “Therefore it may be prudent to concentrate the best arguments into a single petition, that is, to only count on a single bite at the apple.””

The use of the apple parable is interesting because Apple, the company, is relevant to this.

They just to to make patents above challenge and pass the burden of proof to others. Watchtroll soon joined Crouch, as usual (the sites are connected in some ways and occasionally flatter one another). To quote: “Recently another Petition for Writ of Certiorari was filed with the United States Supreme Court asking the Court to do something about the problem of multiple post issuance challenges against the same patent – even the same patent claims. If the Court takes the case it will clarify the proper role of AIA proceedings within the wider scheme of the patent system and determine whether title to a patent ever quiets, or whether it can be endlessly challenged in a never-ending series of duplicative challenges until the patent owner finally loses all rights. See Supreme Court asked to apply Multiple Proceedings rule to end harassing validity challenges.”

Really? They use the word harassing? As if questioning patent bullies is “harassment”? Who does the harassing here? And here goes Watchtroll again: “The USIJ report states that a basic premise behind Congressional enactment of the PTAB through passage of the AIA was to give those parties being sued or threatened with a suit for patent infringement “one bite at the apple” to challenge patents through inter partes review (IPR) or other AIA trial proceedings.”

It doesn’t matter if we like Apple or not (we don’t), the underlying principles of law are important; sites like Watchtroll prefer to pretend that they do their lobbying for ‘altruistic’ reasons like squashing “Big Tech”. All they want is more litigation, even at innovation’s expense.

Apple, we might add, has just been bitten again by fake patents that are obviously software patents. From last week’s blog post/article:

Apple has been hit by a new patent lawsuit from Dynamic Data Technologies, with the suit alleging Apple’s products and services have infringed on 11 patents relating to video streaming, processing and optimization.

These can only be software patents, at least in part.

We could go on and on giving examples of these attempts to deplete/eliminate patent challenges. Last week Watchtroll was bashing courts again, implying that courts or judges don’t do their work properly. And this is the person Trump's pick (Iancu) associates with? The President who attacks judges and puts rightwing activists in SCOTUS?

Going back to Crouch, on IPRs he noted a “consolidated appeal [which] involves 12 different inter partes review proceedings collectively challenging three Acceleration Bay patents.”

The more IPRs, the merrier. Crouch hardly makes it a secret that he dislikes PTAB and recent articles of his [1, 2, 3] deal with claim interpretation and a situation wherein SCOTUS is asked to look at patent aspects associated with outsourcing/production abroad. Taking note of an AIA gap in legislation/law, there’s also this:

In Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390 (1926), the U.S. Supreme Court provided a portion of the answer — holding that an unclaimed invention found in a later issued patent is “made public property” as of its filing date. That statement though came as an interpretation of no-longer-active provision that the patentee must be “the original and first inventor.” Rev. Sts. § 4920. In addition to interpreting a different statute, the court in Milburn also did not consider the priority question.

The relevant statute for this case is pre-AIA 102(e) — which also does not spell out what should happen in this situation — but nothing in the statute suggests to me that we should limit the prior art impact of priority filings to disclosures that are claimed in later patents or patent applications. However, the Federal Circuit ruled in this case that that a published application can count as prior art as of its provisional filing date — but only as to features actually claimed in the application. According to the court, features disclosed in the provisional but not claimed in the published application will only be prior art as of their date of public disclosure.

Waste of courts’ time and human productivity? Here’s another take on the case (same as above):

The Supreme Court’s request for views from the Solicitor General in Ariosa Diagnostics v. Illumina has renewed interest in this nerdy issue of patent prior art. I appear to be in a very small minority that believes that Federal Circuit’s rule on this may be right (or at least is not obviously wrong), so I thought I would discuss the issue.

[...]

Then why do I say this is an uneasy case? Well, did I mention that I like Alexander Milburn? The policy it states, that delay in the patent office shouldn’t affect prior art can easily be applied here. So long as the description is in the provisional patent, and so long as that provisional patent is eventually publicly accessible, then the goal, even if not the strict language, of the statute is met.

Also, my reading leads to a potentially unhappy result. A party could file a provisional that supports invention A, and then a year later file a patent that claims invention A but describes invention B. The patent could then be asserted against B while relying on the earlier filing date of A, even though B was never described in the provisional as of the earlier date. Similarly, a provisional patent could describe B, and B could then be removed from the final patent application, and the patent would not be prior art because B was not described in the patent, even though B had been described in the earlier, now publicly accessible provisional application.

I don’t know where I land on this – as readers of this blog know, I tend to be a textualist. Sometimes the Court has agreed with that, but sometimes (see patentable subject matter and patent venue) it does not.

The author, Michael Risch, says he feels “in a very small minority,” but who did he ask? Lawyers? In the world of technology there’s overwhelming support for PTAB and CAFC’s affirmation of PTAB’s decisions (not quite the same as above). Either way, as always, one can be sure and abundantly certain that patent maximalists will attempt to exploit SCOTUS to swing the patent system in favour of litigation, not innovation. This needs to be talked about openly as it makes them shy away.

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

What Else is New


  1. The Linux Foundation is Not About Linux

    Linux Foundation (LF) objectives/missions do not resemble what the Open Source Development Labs, Inc. (OSDL) was founded to accomplish; this puts at grave threat the very raison d'être of both GNU and Linux



  2. Guest Post: The Linux Foundation Needs to Define “Support”

    Part of an ongoing series of articles we do about the Linux Foundation



  3. Dimitris Xenos on Unconstitutional Supranational Arrangements for Patent Law: Leaving Out the Elected Legislators and the People’s Participatory Rights

    A new paper from a British scholar proves to be timely because of the EPO's violations of the European Patent Convention (EPC) and failed push to force-feed Europe with the unconstitutional Unified Patent Court (UPC)



  4. The Campinos-Battistelli Strategy is Working: Patent Trolls Are Coming to Europe!

    It cannot be any less obvious that today's European Patent Organisation (and Office) works for patent offices and for those who pay these patent offices (law firms) rather than for science, technology and the public (including the European public)



  5. Links 25/3/2019: Linux 5.1 RC2, Nano 4.0, PyPy 7.1

    Links for the day



  6. Links 24/3/2019: Microsoft Does Not Change; Lots of FOSS Leftovers

    Links for the day



  7. Just Published: Irrational Ignorance at the Patent Office

    Iancu and his fellow Trump-appointed "swamp" at the USPTO are urged to consult academics rather than law firms in order to improve patent quality in the United States



  8. Microsoft Paid the Open Source Initiative. Now (a Year Later) Microsoft is in the Board of the Open Source Initiative.

    The progression of Microsoft entryism in FOSS-centric institutions (while buying key "assets" such as GitHub) isn't indicative of FOSS "winning" but of FOSS being infiltrated (to be undermined)



  9. Jim Zemlin's Linux Foundation Still Does Not Care About Linux Desktops

    We are saddened to see that the largest body associated with Linux (the kernel and more) is not really eager to see GNU/Linux success; it's mostly concerned about its bottom line (about $100,000,000 per annum)



  10. Links 23/3/2019: Falkon 3.1.0 and Tails 3.13.1

    Links for the day



  11. The Unified Patent Court is Dead, But Doubts Remain Over the EPO's Appeal Boards' Ability to Rule Independently Against Patents on Nature and Code

    Patents used to cover physical inventions (such as engines); nowadays this just isn't the case anymore and judges who can clarify these questions lack the freedom to think outside the box (and disobey patent maximalists' dogma)



  12. Patent Law Firms Still Desperate to Find New Ways to Resurrect Dead Software Patents in the United States

    There's no rebound and no profound changes that favour software patents; in fact, judging by caselaw, there's nothing even remotely like that



  13. Links 22/3/2019: Libinput 1.13 RC2 and Facebook's Latest Security Scandal

    Links for the day



  14. Why the UK Intellectual Property Office (UK-IPO) Cannot Ignore Judges, Whereas the EPO Can (and Does)

    The European Patent Convention (EPC) ceased to matter, judges' interpretation of it no longer matters either; the EPO exploits this to grant hundreds of thousands of dodgy software patents, then trumpet "growth"



  15. The European Patent Office Needs to Put Lives Before Profits

    Patents that pertain to health have always posed an ethical dilemma; the EPO apparently tackled this dilemma by altogether ignoring the rights and needs of patients (in favour of large corporations that benefit financially from poor people's mortality)



  16. “Criminal Organisation”

    Brazil's ex-President, Temer, is arrested (like other former presidents of Brazil); will the EPO's ex-President Battistelli ever be arrested (now that he lacks diplomatic immunity and hides at CEIPI)?



  17. Links 21/3/2019: Wayland 1.17.0, Samba 4.10.0, OpenShot 2.4.4 and Zorin Beta

    Links for the day



  18. Team UPC (Unitary Patent) is a Headless Chicken

    Team UPC's propaganda about the Unified Patent Court (UPC) has become so ridiculous that the pertinent firms do not wish to be identified



  19. António Campinos Makes Up Claims About Patent Quality, Only to be Rebutted by Examiners, Union (Anyone But the 'Puff Pieces' Industry)

    Battistelli's propagandistic style and self-serving 'studies' carry on; the notion of patent quality has been totally discarded and is nowadays lied about as facts get 'manufactured', then disseminated internally and externally



  20. Links 20/3/2019: Google Announces ‘Stadia’, Tails 3.13

    Links for the day



  21. CEN and CENELEC Agreement With the EPO Shows That It's Definitely the European Commission's 'Department'

    With headlines such as “EPO to collaborate on raising SEP awareness” it is clear to see that the Office lacks impartiality and the European Commission cannot pretend that the EPO is “dafür bin ich nicht zuständig” or “da kenne ich mich nicht aus”



  22. Decisions Made Inside the European Patent Organisation (EPO) Lack Credibility Because Examiners and Judges Lack Independence

    The lawless, merciless, Mafia-like culture left by Battistelli continues to haunt judges and examiners; how can one ever trust the Office (or the Organisation at large) to deliver true justice in adherence or compliance with the EPC?



  23. Team UPC Buries Its Credibility Deeper in the Grave

    The three Frenchmen at the top do not mention the UPC anymore; but those who promote it for a living (because they gambled on leveraging it for litigation galore) aren't giving up and in the process they perpetuate falsehoods



  24. The EPO Has Sadly Taken a Side and It's the Patent Trolls' Side

    Abandoning the whole rationale behind patents, the Office now led for almost a year by António Campinos prioritises neither science nor technology; it's all about granting as many patents (European monopolies) as possible for legal activity (applications, litigation and so on)



  25. Where the USPTO Stands on the Subject of Abstract Software Patents

    Not much is changing as we approach Easter and software patents are still fool's gold in the United States, no matter if they get granted or not



  26. Links 19/3/2019: Jetson/JetBot, Linux 5.0.3, Kodi Foundation Joins The Linux Foundation, and Firefox 66

    Links for the day



  27. Links 18/3/2019: Solus 4, Linux 5.1 RC1, Mesa 18.3.5, OSI Individual Member Election Won by Microsoft

    Links for the day



  28. Microsoft and Its Patent Trolls Continue Their Patent War, Including the War on Linux

    Microsoft is still preying on GNU/Linux using patents, notably software patents; it wants billions of dollars served on a silver platter in spite of claims that it reached a “truce” by joining the Open Invention Network and joining the LOT Network



  29. Director Iancu Generally Viewed as a Lapdog of Patent Trolls

    As Director of the Office, Mr. Iancu, a Trump appointee, not only fails to curb patent trolls; he actively defends them and he lowers barriers in order to better equip them with bogus patents that courts would reject (if the targets of extortion could afford a day in court)



  30. Links 17/3/2019: Google Console and IBM-Red Hat Merger Delay?

    Links for the day


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