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12.03.18

The Patent Trial and Appeal Board (PTAB) Not Falling for Attempts to Prevent It From Instituting Challenges

Posted in Courtroom, Law, Patents at 6:21 pm by Dr. Roy Schestowitz

Summary: In the face of patent maximalists’ endless efforts to derail patent quality the tribunal keeps calm and carries on smashing bad patents

SUPPORTED by SCOTUS and the Federal Circuit, inter partes reviews (IPRs) at the Patent Trial and Appeal Board (PTAB) have long (years) applied 35 U.S.C. § 101 to invalidate software patents erroneously granted by the Patent and Trademark Office (USPTO). PTAB combined with Alice has been a very possible emergence and development for software developers (programmers/coders), as opposed to patent trolls.

“Attempts to undermine IPRs so as to save fake patents have not been successful.”As the week begins we already see Janal Kalis mining USPTO documents, hoping to find some positive news. All he found was this exceptional case wherein “The PTAB Reversed an examiner’s 101 Rejection of Claims for inventory management in a patent application owned by Baker Hughes: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017006294-11-13-2018-1 …”

We can assume that in all other new cases PTAB affirmed the examiners’ rejections or ‘overturned’ (reversed) an acceptance.

Understandably, those who are accustomed to making a living from lawsuits aren’t happy. PTAB thwarts frivolous lawsuits.

Consider this new tweet which says: “Do [Section] “101 panels” exist? Director of TC 3600 Business Methods – Tariq Hafiz – provides priceless insights for effectively dealing with the @USPTO…”

So I told him that the term “101 panels” is as meaningless a concept as “don’t spit chewing gum on the pavement” department. Section 101 is the law and patents on “Business Methods” are bunk, no matter what the USPTO says. It’s down to the courts, eventually. They have the final say, provided one can afford the long and arduous process.

Authored by Robert Jain last week was this PTAB headsup regarding Unified Patents and RPX (there’s commonality in how they file IPRs — a subject we covered several times before). Attempts to undermine IPRs so as to save fake patents have not been successful. As Jain explained:

On October 19 the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in Unified Patents Inc. v. Realtime Adaptive Streaming, LLC, IPR2018-00883, rejecting Realtime’s argument that Unified’s members were unnamed real-parties in interest. In its first Unified decision discussing Applications in Internet Time, LLC v. RPX (AIT), the Board rejected arguments that Unified’s Content Zone members were unnamed RPIs, finding that would overextend the AIT analysis and the common law…

Unified Patents is again offering money to help invalidate the patent of the patent troll Telebrands. To quote:

On November 29, 2018, Unified added a $1,000 contest to PATROLL seeking prior art for US Patent No. 9546775 which has been asserted on multiple occasions by Telebrands Corp. (an NPE). The ’775 patent, generally related to a decorative laser light system, has been asserted in 7 district court cases.

Any patent troll that can be squashed by PTAB won’t be missed (disarming them is enough as all they have is patents and without patents they cannot sue). A few weeks ago, based on this other post, Unified Patents turned to the USPTO for “registered [...] service mark Unified Patents® under Registration No. 5,605,486, recognizing that Unified Patents® has earned industry goodwill and developed a reputation distinguishable and protectable in the marketplace.”

We have long been supportive of Unified Patents, having recognised that the majority of what they do has a positive effect on the ‘innovation terrain’; they remove a lot of patent trolls from the ‘zone’.

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