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05.11.19

Making the Patent System About Productive Actors (Again), Not a Bunch of Law Firms and Trolls

Posted in America, Europe, Patents at 6:31 am by Dr. Roy Schestowitz

Law firms like the one Iancu (on the left) came from, after it had worked for Donald Trump (on the right)

Trump and Iancu

Summary: The US patent system is going out of shape and out of tune, just like the EPO when Battistelli came to it, dismantling the rule of law and even judges whom he did not like

TECHRIGHTS has often focused on EPO scandals, USPTO reforms, and in recent years the new Director, whose agenda is similar to that of António Campinos. President Campinos, appointed by Battistelli (through pressure on the Council), pushes hard for software patents in Europe (under misleading buzzwords), whereas the latter, Iancu, keeps acting like Battistelli by ignoring 35 U.S.C. § 101 caselaw (similar to EPC being shunned) while pushing buzzwords. There’s a growing similarity if not overlap across the Atlantic. It got a lot worse when Trump gave Iancu this job under controversial circumstances (nepotism). He wrongly assumes that he can assert control over judges and ignore input from USPTO stakeholders, who strongly oppose his position and policies. When we say stakeholders we don’t mean law firms but actual companies and creators, engineers, designers etc. (those were, after all, the intended stakeholders of the USPTO when it was set up).

“When we say stakeholders we don’t mean law firms but actual companies and creators, engineers, designers etc. (those were, after all, the intended stakeholders of the USPTO when it was set up).”Where do we go from here? Well, we must observe and respond to the situation. The eventuality isn’t predetermined and may very well depend on what the public does. Iancu, for instance, is already coming under fire from stakeholders and even courts. As our readers certainly know, the EPO comes under weekly/daily fire even from its very own staff (salaried by the EPO).

At the moment, in 2019, the US patent office and the main European patent office, the EPO, are both controlled by clueless and dishonest people. One need only consider what events they attend and who they speak to. They don’t care about science and technology. They wrongly assume that their offices exist just to grant as many patents as possible, giving rise to as many lawsuits as possible. Just before the weekend, for instance, we saw Christian Camarce and Karen Wong-Chan (Sterne, Kessler, Goldstein & Fox P.L.L.C.) celebrating PPH, the Patent Prosecution Highway. In practice, putting patent trolls on the “highway” (PPH) so that they can blackmail more people more quickly and more efficiently isn’t what science and technology need; quite the contrary. The risk associated with rushed patent examination (and prosecution) discourages investment and causes greater uncertainty. As this law firm itself has explained:

The Patent Prosecution Highway (PPH) program accelerates examination among participating patent offices. The PPH program first began as a trial program between the U.S. Patent and Trademark Office (USPTO) and the Japan Patent Office (JPO) in 2006, to avoid duplicate work efforts and expedite patentability decisions between patent offices. [1] Since then, the program has grown to include over 40 patent offices, including the European Patent Office (EPO), Korean Intellectual Property Office (KIPO), China National Intellectual Property Administration (CNIPA), and Canadian Intellectual Property Office (CIPO). This article discusses a brief overview of the PPH program and surveys PPH activity in participating patent offices.

[...]

The above discussion indicates that the patent offices with the most PPH activity are the JPO and USPTO, with the JPO being the office of earlier examination receiving the most PPH requests and the USPTO being the office of later examination receiving the most PPH requests. The EPO, KIPO, CNIPA, and CIPA also receive a significant number of PPH requests. Thus, for applicants seeking patent protection in these jurisdictions, the PPH program may be a viable vehicle to obtain patents faster than by standard examination.

But at what expense? Accuracy of course. There’s less time for appeals and objections, for instance. In the age of 35 U.S.C. § 101, moreover, American examiners are eager to also allow patents that ought not exist in the first place. Iancu is egging them on, making leeway for ignoring caselaw.

“At the moment, in 2019, the US patent office and the main European patent office, the EPO, are both controlled by clueless and dishonest people.”Just before the weekend, Josh Landau (CCIA) spoke of “working to ensure that unclear patent claims—claims which fail to serve their intended purpose of providing public notice—are considered invalid.”

Landau, like his implicit EFF allies, is growingly upset at Iancu’s lies and distortions. Here’s the context of this latest rant of his and some conclusions:

Amgen’s patent required a process with three separate steps. Sandoz’s process was a single step process that performed the same general function. But Amgen claimed that Sandoz infringed under the doctrine of equivalents, a patent law doctrine that allows a patent owner to assert infringement that goes outside of the literal scope of the claims.

[...]

Even if a patent claims one way of doing something, not just the result, if the language of the claims is unclear or impossible to understand—or even to understand easily—then members of the public are faced with the choice of either avoiding an area of technology they might well be entitled to use, or else engaging in that area and running the risk that they do infringe a valid claim.

USPTO Director Iancu often refers to “certainty” and “predictability” when discussing § 101. But those same concerns—the ability of the public to have certainty and predictability as to what a patent means—are far too often not part of the discussion. This week, the Federal Circuit again highlighted this problem. Their future case law should do the same, working to ensure that unclear patent claims—claims which fail to serve their intended purpose of providing public notice—are considered invalid.

None of the above is yet unheard of; we’re seeing more and more arguments like these and ours predate the actual appointment of Iancu (when he was only nominated and way before his attacks on 35 U.S.C. § 101 back in January). Yesterday, perhaps belatedly, Patently-O wrote about the case that we had included in daily links for quite some time, asking (in the headline) the famous old question, “What happens when Patents Are Later Invalidated?”

“Iancu is egging them on, making leeway for ignoring caselaw.”It’s about 35 U.S.C. § 101.

The huge industrial and societal cost of fake patents being granted (and there’s never justice at the end; only the lawyers benefit at everyone’s expense) is described in the context of this case, even in the words of patent maximalists:

The basic question here is whether the late-stage invalidity in T-Mobile can be used to cancel Sprint’s adjudged liability. So far, the courts have sided with Sprint, although it was important for Sprint’s case that it took pains to slow-walk its post-appeal activity (request for rehearing and petition for certiorari) so that the case still had some life by the time the T-Mobile decision was released.

June 23, 2017 – the Federal Circuit invalidated the patents in the T-Mobile decision. June 27, 2017 (two business days later) – Sprint filed a R.60(b) motion for Relief from Judgment based upon the Federal Circuit’s binding authority “that the patent claims underlying that judgment are invalid as unpatentable under 35 U.S.C. § 101.” The district court complied and set-aside its prior verdict and the Federal Circuit affirmed — finding no abuse of discretion.

As part of the Sprint timeline, it is notable that the Federal Circuit issued its mandate in May 2017 (before the T-Mobile invalidity decision). After the T-Mobile decision, Sprint unsuccessfully requested that the Federal Circuit recall the mandate. However, the court did issue a statement that recall was “unnecessary” because the “mandate does not alter how the district court should decide the preclusive effect of the T-Mobile ruling, which did not exist in May 2017.”

Another important element here a big question about whether the T-Mobile invalidity applied to all of the claims at issue in Sprint (the Federal Circuit retrospectively said yes).

Will the cost of this injustice be taken into account or only USPTO revenue? SUEPO very well grasps the idea/impact of externality and has spoken about it publicly for a number of years. We very much appreciate SUEPO (i.e. European patent examiners) for that. Why don’t USPTO examiners/patent clerks do the same?

“SUEPO very well grasps the idea/impact of externality and has spoken about it publicly for a number of years.”As pointed out by Benjamin Henrion last night, far too many patents are being granted. “China just allows patents on pretty much everything,” I responded to him. “My longstanding theory is that they flood the system of WIPO with junk so as to discredit it, making it obsolete (almost 1.5 million filings per year! More than the world COMBINED!)”

Henrion had also responded to another dumb piece from Watchtroll, titled “Independent Inventors to USPTO: We Are All Underrepresented in This Patent System”

“They labeled all software patent owners as patent trolls,” he quoted from it, adding: “Rightly so. Software developers deserve freedom of programming, not interference from the state in between them and their keyboard [] Small software patent trolls says they don’t have a voice at the USPTO: “Like many software patents post-2014, my first attempt to enforce my rights was defeated this past October.””

“Blogs sympathetic to the agenda of Iancu are running out of steam and it’s no wonder that the supposed ‘bill’ or ‘fix’ from Coons et al (against PTAB and Section 101 etc.) hasn’t been mentioned in a long time. It’s silently dying, just like in past years.”When Watchtroll’s Eileen McDermott talks of “Independent Inventors,” I’ve told him, she means not inventors but people who have a patent and want to sue someone who actually does, not says, something. The term “inventor” became wildly misused like “patriot” and other nonsense. Giving them something like PPH is only exacerbating matters.

We don’t want to link to Watchtroll. We stopped doing that about 5 months ago. We’re still adding new cases and case outcomes to daily links, without necessarily commenting (for lack of time mostly). Like we said last week, many blogs have become inactive. Remember Docket Report? It suddenly stopped completely (last summer). There are other such examples. Blogs sympathetic to the agenda of Iancu are running out of steam and it’s no wonder that the supposed ‘bill’ or ‘fix’ from Coons et al (against PTAB and Section 101 etc.) hasn’t been mentioned in a long time. It’s silently dying, just like in past years.

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