11.11.18

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Patent Maximalists Will Latch Onto Return Mail v US Postal Service in an Effort to Weaken or Limit Post-Grant Reviews of US Patents

Posted in America, Law, Patents at 4:06 pm by Dr. Roy Schestowitz

Summary: An upcoming case, dealing with what governments can and cannot do with/to patents (specifically the US government and US patents), interests the litigation ‘industry’ because it loathes reviews of low-quality and/or controversial patents (these reviews discourage litigation or stop lawsuits early on in the cycle)

THE DEPARTURE of the U.S. Patent and Trademark Office (USPTO) from science and technology was noted here earlier today; it not only abandons actual innovation but also justice itself. It’s rather troubling. It all happened quite fast under Donald Trump and corrupt Wilbur Ross (new Director and deputy appointed); at the same time two right-wing ‘activists’ were also appointed as Justices.

Looking back at the past fortnight’s news we take note of Watchtroll’s article from two weeks ago about Bayh-Dole, wherein Joseph Allen defends public work (government/universities) being handed over for trolls to attack the public with. Remember that USPTO chiefs are rather sympathetic towards trolls. This cannot be ignored.

One other topic covered here two weekends ago was that chasm separating individuals and non-human entities, i.e. “person” versus “government”/”corporation” (similar to “corporations” as “people” or corporate bribery as “free speech”). Watchtroll explained it as follows on the last day of last month: “Return Mail also cites to the Supreme Court’s 1991 decision in International Primate Protection League v. Administrators, Tulane Educational Fund to note that the Court has previously said that courts should be reluctant to read “person” as meaning the sovereign where such a reading is “decidedly awkward.””

IPPro Patents’ coverage said this:

The US Supreme Court has granted Return Mail v US Postal Service and will consider whether the government is a “person” who may petition to institute review proceedings under the America Invents Act (AIA).

Return Mail had petitioned the Supreme Court for certiorari following a US Court of Appeals for the Federal Circuit decision last year.

Return Mail had originally tried to licence its patent for the processing of mails items that are undeliverable to the US Postal Service but was unsuccessful.

Return Mail then filed a lawsuit in the US Claims Court, alleging patent infringement.

The US Postal Service countered this by filing a petition with the USPTO for a covered business method review.

Dissatisfied with the Federal Circuit‘s decision and what it means for Patent Trial and Appeal Board (PTAB) petitions, namely inter partes reviews (IPRs) — filed by or against the government — they take it up to SCOTUS. As Patent Docs explained:

On Friday, October 26, 2018, the Supreme Court granted certiorari in Return Mail, Inc. v. U.S. Postal Service, in order to answer the question whether the government can bring post-grant review proceedings under the Leahy-Smith America Invents Act, or AIA. Specifically, the Supreme Court agreed to review whether the government is a “person” under the AIA, as is required to file a petition seeking the institution of AIA review proceedings.

The case began with Return Mail seeking to license its patent to the Postal Service as early as 2006. Return Mail is the assignee of U.S. Patent No. 6,826,548, which claims methods, computer programs, and systems for processing undeliverable or returned mail. Claim 1 covers using encoded data (essentially, a bar code) that is added to the item before mailing to identify the intended recipient and notify the sender with new recipient information to allow the sender to update its records. Instead of licensing the ’548 patent, the Postal Service filed a petition for ex parte reexamination with the U.S. Patent and Trademark Office. The USPTO instituted the reexamination proceeding, but eventually confirmed the validity of the patent. Return Mail then filed a complaint against the Postal Service in the Court of Federal Claims.

SCOTUS has generally declined to revisit patent scope case (those that truly matter to us) and repeatedly defended PTAB IPRs. The above case, to us at least, does not matter all that much, but surely it will be looked at quite closely for months to come. Patent maximalists hope to exploit it to limit AIA review proceedings.

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