Bonum Certa Men Certa

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

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. ⬆

Recent Techrights' Posts

IRC is for Communities, Social Control Networks Are for Broligarchs (by Broligarchs)
Unlike Reddit, it's not a company
Intercontinental Brigading - Part XXXXVI - Attempts to Kill Critics
"Epstein contacted Cambridge academics about research funding"
 
Links 11/11/2026: End of Novaya Gazeta (Assassinated by Putin) and North Koreans Too Poor to Buy Rice
Links for the day
Gemini Links 11/11/2026: The Tyrant’s Moat and Rants About Slop Causing Problems
Links for the day
Links 11/11/2026: Skydance Games and Boeing Hit By Layoffs, "Time Out for Timeouts"
Links for the day
JavaScript is the Problem, Not the Answer
Making the Web better is about making things better, not slapping more JavaScript 'walls' at it
Intercontinental Brigading - Part XXXXVII - "Making a False Complaint to Police is a Crime." (British Cops Aren't American Mercenaries)
"In the United Kingdom, the Foreign Enlistment Act 1819 and the Foreign Enlistment Act 1870 make it unlawful for British subjects to join the armed forces of any state warring with another state at peace with Britain."
The Label 'Anti-AI'
They make it sound like opposing plagiarism or cheating is an act of intolerance or hatred
Intolerance and Violence
Intolerance in the software world is not a new problem
António Campinos Hiding From Staff Amid Strikes, Won't Participate in Dialogue
They voted to continue striking until Christmas
Silent Layoffs at IBM (Rolling Layoffs), Now Curbs on H1B (Mostly Indian Applicants)
Little will change at IBM except the gravity (global distribution) of its workforce will go east
Links 11/11/2026: Moving from Proton to Posteo and "Floating in Space"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, November 10, 2026
IRC logs for Tuesday, November 10, 2026
Gemini Links 10/11/2026: Running, Tektronix, and "Smallnet Information Services Zig Port"
Links for the day
Corporations Don't Lose 2 Trillion Dollars in 'Value' Over a 'Dick Story', This is an Overvaluation and Belated Correction
Nvidia is down, down, down again
Links 10/11/2026: "50 Years of Project Censored" and NVIDIA's Collapse Continues
Links for the day
NVIDIA Down About 30% in 5 Weeks, When Does the Media Call It "Bubble" Rather Than Frame It as Sex Scandal?
they'll find a way to blame "China"
Surreal Times
NVIDIA's shares fell 27% in 5 weeks
Links 10/11/2026: "Jensen Huang Could Face $81 Billion Divorce Bill" and "Nvidia Shareholders sue Jensen Huang"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, November 09, 2026
IRC logs for Monday, November 09, 2026
Gemini Links 10/11/2026: Open Problem in Computer Science Due to Bloat and "Queueing Nine Hours for an iPhone"
Links for the day
“Losing Huang Would Introduce a Lot of Uncertainty"
Huang won't last much longer
GNU/Linux Rose to 6% as Laptop/Desktop Operating System in Azerbaijan
In the past two weeks the average measure as seen by Clownflare is 5.7%
Intercontinental Brigading - Part XXXXV - The Brand (and Reputation)
"Russell Brand sentenced to 10 years and six months for rape and sexual assault"
Microsoft Will Pay $11,742 USD for Workers to Leave
11 lakh Indian Rupees
Since Records Began 18 Months Ago, statCounter Saw Chatbot Usage Falling Sharply
Chatbots are not becoming more popular and the commercial world is having second thoughts
Losing Their 'Faith' in Slop
Are leather jackets becoming a "signal" of "cheating on the wife"?
Protestants at the EPO Fight On, Rising in Opposition to and Against Corruption, Also Against GAFAM
Don't say we didn't warn you...
Boosters of Non-reciprocal Licensing Are Just Trying to Cancel Richard Stallman (RMS) and His Baby, GNU
If only they liked freedom as much as they love Microsoft (or Microsoft's GitHub, which is proprietary and unsafe)
Gemini Links 09/11/2026: Zephyr, Wireless Planet, and Old E-mail
Links for the day
IBM: From Illegal NDAs to Illegal Secret Settlements (Money in Exchange for Promise Not to Sue)
Insiders also explain why RAs may come weeks from now [...] IBM has marked 40,000 workers it wishes to get rid of
When Some Footage Causes Your 'Company' to Lose Almost Half a Trillion Dollars in 'Value' in a Few Minutes Your Company is Fictionally Valued
stock slips 8% because the CEO cheats on the wife
Links 09/11/2026: 'Humanitarian' Putin Knocks 600,000 Civilians Off the Grid, Eminem’s Publisher Sues Suno
Links for the day
Like Crooked Politicians, The Register MS is Selling "Dinners" (Access, Sponsors)
Talk about "hey hi".
The Register MS is Not Objective Regarding "AI", It's Paid by Pushers of the Pyramid Scheme (including Nvidia)
Some time soon we'll name some companies that pay millions to The Register MS in order to cement their role in the house of cards (while it lasts)
GAFAM Moribund
A lot of what we say about Microsoft in respect to debt is equally applicable to the rest of GAFAM
NVIDIA as a Scam Company Run by Scammers Who Fake Demand for Their Waste of Energy (Subsidising GPU Sales for Use Cases That Don't Exist)
First they targeted gamers, then fake 'currencies' (which turned out to be a bust), now it's slop (obfuscation of plagiarism using brute force and fusion) [...] We're quite glad that Huang publicly broadcasts how untrustworthy he is
Links 09/11/2026: Nvidia CEO Jensen Huang Cheats on Wife With A Suspected Chinese Spy, "400,000 Russians Killed in Battle Since 2022 Invasion"
Links for the day
Zero Tolerance for Slop
very few sites that dabbled in slop ended up well off (for it)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, November 08, 2026
IRC logs for Sunday, November 08, 2026
Gemini Links 09/11/2026: "The Blue Wave Won't Save Us" and "Discoverability Is Only Solved If You Can Be Discovered"
Links for the day