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12.22.18

Patent Attorneys Still Insult Judges Because Their Clients, Notably Patent Trolls, Hate 35 U.S.C. § 101 (and Courts Are Correctly Applying It)

Posted in America, Courtroom, Microsoft, Patents at 5:07 pm by Dr. Roy Schestowitz

Judges have become ‘dangerous’ for the same reason peacemakers are ‘dangerous’

The profit motive

Summary: The Court of Appeals for the Federal Circuit (CAFC) and the Patent Trial and Appeal Board’s (PTAB) judges still receive scorn, mockery and disdain from people who make a living out of lawsuits; it has become a stain on the reputation of law firms — a simple fact they’re incapable of comprehending or unwilling to grasp

THE new Director of the U.S. Patent and Trademark Office (USPTO) likes to ignore the Federal Circuit or cherry-pick only decisions which suit his personal agenda. He also routinely mocks/belittles 35 U.S.C. § 101, hence the highest US court. He’s mostly supported by a ranting bunch of lawyers/attorneys like himself. Michael Borella, for instance, has just unleashed this latest complaint about 35 U.S.C. § 101, offering tips/pointers for bypassing it. “Opening scene,” he declared, “our intrepid patent attorney arrives early at her office for a productive day at work. With morning coffee sitting next to her monitor, she opens her email. She finds a few messages from clients and colleagues, as well as a new office action from the USPTO. Curious, she opens the Office action and scans through it, only to find that it contains yet another 35 U.S.C. § 101 rejection applying the dreaded Electric Power Group LLC v. Alstom S.A. decision.”

“These people dread PTAB because PTAB reduces the number of patents and limits the scope of acceptable patents.”Good. Get a real job. David Boundy (Cambridge Technology Law) has also just written for this site. After a bunch of PTAB-hostile blog posts and articles he claims: “My article shows that lapses of administrative law are not confined to Gil Hyatt (a petition for rehearing of Hyatt v. PTO is currently pending, as discussed on Patently-O (see “Agency Bad Guidance Practices at the Patent and Trademark Office: a Billion Dollar Problem”), nor are lapses confined to individual examiners.”

In our previous articles which mentioned Boundy (e.g. [1, 2]) we rebutted his claims, taking note of his financial motivations. These people dread PTAB because PTAB reduces the number of patents and limits the scope of acceptable patents. Anne Cullen, for instance, has just noted that “PTAB Cuts Some Huawei Patent Claims In Samsung Fight” and to quote what’s not behind paywall:

The Patent Trial and Appeal Board has handed a partial win to Samsung in a dispute over three Huawei cellular network patents, chucking all of the challenged claims…

This is very typical. They re-evaluate the examination.

Thanks to the Patent Trial and Appeal Board’s (PTAB) inter partes reviews (IPRs) the patent troll SMTM Technology may soon lose its sole ‘business’: patent lawsuits. With a “patent challenged as likely invalid,” Jain stated 4-5 days ago:

On December 17, 2018, Unified filed a petition for inter partes review (IPR) against U.S. Patent 8,958,853, owned and asserted by SMTM Technology, LLC, an NPE. The ‘853 patent, directed to automatically causing a mobile device to enter into an inactive mode when the mobile device is being used in a moving vehicle, has been asserted in district court litigation against Apple and Microsoft.

Here’s another chance to win a thousand bucks by helping to squash a questionable US patent:

On December 20, 2018, Unified added a $1,000 contest to PATROLL seeking prior art for US Patent No. 8553831 owned by Feng Ma. The ’831 patent, generally relates to a computed tomography imaging system used for medical diagnoses.

Last but not least, a patent troll called General Patent Corp. faces another (more recent) challenge:

On December 20, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 9,253,239 owned by Bradium Technologies, LLC, a General Patent Corp. subsidiary and NPE. As in its recent institutions against Realtime Adaptive Streaming and Mobility Workx, the Board once again rejected arguments that Unified’s members are real parties-in-interest in view of the Federal Circuit’s ruling in Applications in Internet Time, LLC v. RPX. The ’239 patent, directed to a “Optimized image delivery over limited bandwidth communication channels,” is not actively involved in district court litigation.

All the above are IPRs and these typically target patent trolls. Unfortunately, Steven Seidenberg has just come out again with loaded headlines, akin to those from climate change deniers. To quote:

Two recent academic papers examine whether Non-Practicing Entities (NPEs) deserve their reputation as patent trolls – but the papers reach conflicting conclusions. As discussed in the first part of this article, a paper published by Stanford’s Hoover Institution found that 26 publicly-listed NPEs invest in R&D and do little harm to America’s high tech sector. These findings, however, are less significant than they appear. Another paper, published by Harvard Business School (HBS), found that NPEs do on average behave as patent trolls. How important – and trustworthy – are the HBS findings?

“NPEs” and “patent trolls” are the same thing; they’re synonymous. They exist for nothing but lawsuits/extortion.

“”NPEs” and “patent trolls” are the same thing; they’re synonymous. They exist for nothing but lawsuits/extortion.”The other day Janal Kalis took note of a software patent’s invalidation (“US Pat 9516045, Resisting the spread of unwanted code and data; Alice/101 Kill by Dist. Ct. Affirmed by Fed.Cir.”) only for a patent trolls' attorney (Mr. Gross) to lose his mind and attack the judges (“Another terrible, bogus, illogical interpretation of 101 by the CAFC; I wonder if the fact that there was no 101 rejection at the PTO during prosecution affected their thinking? [] Taranto says that “filtering in content” is not a distinction over “filtering out content” and therefore is just abstract even as it is a clear computer function http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1407.Opinion.12-20-2018.pdf … Amazing how he goes out of way to trivialize technical distinctions when it suits his agenda [] Only in CAFC bizarro-land could physical operation – breaking an electronic file into pieces, and sorting conforming/non-conforming content- be considered as NOT directed to improving computer functionality. We’re being ruled by techno-illiterati http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1407.Opinion.12-20-2018.pdf … [] I’m convinced Judge Taranto is responsible for more than 90% of the mess concerning 101 at CAFC: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1407.Opinion.12-20-2018.pdf … his opinions are arbitrary, illogical and results oriented; his attempted distinction of Finjan is completely technically incorrect…”).

“The bottom line is, trolls are often litigation proxies working at the behest of other entities.”Mr. Gross is supporting trolls, for whom he writes articles. His defense of Microsoft trolls like Finjan is hardly surprising either (Finjan is mentioned 4 times in page 4 of this decision).

Speaking of Microsoft trolls, Keith Bergelt from the Open Invention Network has just recalled Microsoft’s funding for SCO (Microsoft also funded Finjan). To quote:

Symbolically and functionally it’s extremely significant. The Open Invention Network (OIN) was formed in the wake of the SCO litigation against IBM, Red Hat and SUSE/Novell. SCO sued claiming to have Unix related functionality that was relevant to Linux.

This litigation was quietly funded by Microsoft, lasted several years and went nowhere. In the end, there was no liability and no culpability for the alleged infringements

The bottom line is, trolls are often litigation proxies working at the behest of other entities. It is a shell game. To argue that they don’t exist or that their patents do no harm is very dodgy an attitude/approach.

Maybe one day these trolls-friendly attorneys will regret what they said; this is why we need to keep this stuff well documented, properly preserved.

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