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05.03.19

In the Courts, Where Patents Are Assessed Independently, Geeks Are Winning the Battle Against Parasitic Litigation Firms

Posted in America, Patents at 2:09 am by Dr. Roy Schestowitz

All we see from the “big litigation” lobby these days is court- or judge-bashing

Trump and Iancu

Summary: Mockery of courts and disdain for the law come not from productive industries but from unproductive ‘industries’ that are doing nothing but patents and litigation; they have completely and undeniably lost the argument

LAST month we published the Internet Association's comments on the "Revised Patent Subject Matter Eligibility Guidance", which sought to work around or overcome 35 U.S.C. § 101 (similarly, bypassing the courts, EPO President António Campinos works around the EPC to grant software patents in Europe).

“The patent zealots have nothing left but court- or judge-bashing.”There are troubling signs that the litigation lobby will try anything it takes to work around the law. Weeks ago we mentioned Coons et al coming back with their ludicrous (and old) pile of papers. TechDirt’s founder has just commented on it, but we don’t believe these comments are even necessary anymore. They have been trying it for years and it always fails. They keep renaming and rebranding the same pile of papers. This time too it’s already off the headlines; completely. Like UPC.

In Mike Masnick’s own words:

For most of the history of Techdirt, we’ve talked about what an incredible mess the US patent system has been. There are many, many reasons for this, but a big one was that for decades, the appeals court that handles all patent cases, the Court of Appeals for the Federal Circuit (or CAFC), kept expanding what it considered to be patentable subject matter, and the Supreme Court completely ignored the issue. This culminated, ridiculously, in the State Street decision, which massively expanded what was considered patentable software (before that there was software covered by patents, but it was very, very limited). What made this situation truly hellish for innovators, is that (1) the software world was exploding with all different kinds of apps, and (2) almost no software was documented in the very few areas where patent examiners look for prior art: mainly, other patent applications and scientific journals. There was no need to document software in those places, because (1) when most people recognized software shouldn’t be patented, very few even tried, and (2) why would you?

That resulted in a perfect storm in which patent trolls rushed in to fill the void. Tons upon tons of ridiculously broad patents were filed (or older ones were dug up and “repurposed” for use in trolling). Then it just became a shakedown game of numbers. Find companies doing something vaguely like what’s broadly and oddly described in your patent, tell them they’re infringing — and offer to “settle” for less than the cost to win in court.

The tide started to change over the last decade and a half or so, in part because of a few changes to the law, but more importantly, the Supreme Court started to wake up to the fact that the CAFC had gone rogue and had massively rewritten patent law. And then over a period of about a decade, case by case by case, the Supreme Court smacked down CAFC. Two of the biggest such smackdowns came in the Mayo Labs ruling in 2012 which rejected medical diagnostic patents, and the Alice ruling in 2014, which rejected patents on software that performs “generic functions” (which is basically all software).

The patent zealots have nothing left but court- or judge-bashing. We’ve just noticed that Paul Morinville is once again attacking US courts (in Watchtroll, as usual) just shortly after losing in the Federal Circuit (an appeal of a decision from the Patent Trial and Appeal Board (PTAB)). Watchtroll is a toxic site which attacks science and justice. We refuse to even link to it any longer. James Nurton (formerly of think tank Managing IP, now writing in Watchtroll) has a new headline there: “Iancu Calls on Federal Circuit to Fix Section 101 Problem” (Iancu the Trump flunky is just another Battistelli, wrongly thinking he ‘bosses’ the courts). Curiously enough, corporate media, especially in the US, loves talking about corrupt Trump appointments… except that of Iancu, whose firm had worked for Trump before he got the job at the U.S. Patent and Trademark Office (USPTO). Nurton, as it turns out, cites a think tank of litigators, funded by corporations like Microsoft. “Speaking at the 27th Intellectual Property Law & Policy Conference at Fordham Law School on April 25, Mr. Iancu said the interpretation of Section 101 is “the most important issue of substantive patent law currently”…”

Bristows (Annsley Merelle Ward) is still writing about it in IP Kat (twice more yesterday [1, 2]), pushing the agenda of patent trolls and law firms, as usual. And Managing IP is, as usual, only asking lawyers (of trolls in this case, an Ericsson proxy) for their views on Unwired Planet v Huawei. “By taking a FRAND showdown between Unwired Planet and Huawei,” said the summary, “the UK Supreme Court can show that it’s not afraid to make bold decisions on global disputes if others won’t, lawyers tell Managing IP…”

They never bother asking technical people. When James Nurton worked there they were doing lots of puff pieces for him, including UPC propaganda and ‘interviews’ with softball questions.

In more positive news, Josh Landau (CCIA) says there’s a bill in the making to discourage patent trolls. Massachusetts State Sen. Eric “Lesser and Ehrlich hope to protect innovation against fraudulent and bad faith assertions,” he wrote yesterday. This one would actually protect technical people:

Across the United States, two-thirds of all states have introduced legislation that targets bad faith patent assertion by entities like MPHJ and Shipping and Transit. Massachusetts State Sen. Eric Lesser and State Rep. Lori Ehrlich are trying to make Massachusetts the most recent state to join this club.

Lesser and Ehrlich recently re-introduced their bad faith assertion bill that would allow victims of bad faith patent assertions to recover reasonable attorney’s fees and other costs incurred in defending themselves from a bad faith assertion. By allowing recovery of defense fees against these sorts of plaintiffs, Lesser and Ehrlich hope to protect innovation against fraudulent and bad faith assertions.

As usual, there’s a silent war between technical people and lawyers in “Home of the Brave” (where you have to be brave to create something as extortion may be around the corner). At the moment geeks have the upper hand.

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