From search engine with a ‘cute’ face to patent aggressor with a mean face, in less than two decades
Summary: Google has just turned a little more evil, by essentially using patents as a weapon against the competition (by no means a defensive move)
ABOUT 7 years ago I wrote to Google managers whom I knew that they should refrain from hiring patent lawyers, collecting lots of patents, and basically turning the company into a big patent bubble. But this had little effect on the company’s decision; it has since then been taken over by ‘foreign’ (newly-hired) influence.
“We can no longer say what we used to say — that Google was officially using patents only for defensive purposes or in response to a preemptive attack from other companies.”Google, over time, went from being a patent sceptic to gradually becoming a patent collector. Now, as we feared, Google becomes patent aggressor. Google is gradually becoming a patent bully now, even if it calls itself “Alphabet”, and it’s bad even if the defendant is a company that’s pure evil (as in this case). Even IAM took note of it already; it recalled the BT case which we covered here many times before as follows: “The first and really only high-profile patent infringement lawsuit Google has pursued was against BT – and even that was after BT had transferred patents to a third party which had then used them to sue the search giant. Google quickly filed a counter suit against the British telco and the conflict ultimately fizzled out. So, for a Google business to be asserting now is a very big deal indeed.”
There is already a huge trove of news articles about it, e.g. [1, 2, 3, 4]. It’s everywhere. The effect on the competitor was described yesterday as follows:
When Anthony Levandowski loped onto the stage to accept the Hot New Startup award at an industry awards show this month, the trucker hat perched on his head served as a cringeworthy nod to the millions of drivers his self-driving truck company is poised to leave jobless.
Three weeks later, it is the pioneering engineer of self-driving car technology whose job could be in jeopardy, and the lawsuit he is named in could pose an existential threat to an increasingly vulnerable Uber.
We can no longer say what we used to say — that Google was officially using patents only for defensive purposes or in response to a preemptive attack from other companies. Google is turning ever more evil, even when it comes to patents. It’s a very big deal because Google is probably the world’s largest distributor of GNU/Linux (e.g. Android and Chromebooks).
There will, from now on, be less of a track record to guard and thus less of a deterrent against further such actions from Google. Suffice to say, Google has many sofwtare patents now. █
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It’s driving the patent maximalists nuts!
Summary: The Court of Appeals for the Federal Circuit (CAFC) continues to accept about 4 out of 5 decisions of the Patent Trial and Appeal Board (PTAB) and the US Supreme Court (SCOTUS) refuses to intervene
WE are very gratified to see the USPTO improving patent quality by means of appeals, or by revisiting and reassessing already-granted patents. There has been a lot of news about that this past week and below is an outline.
We previously wrote a number of articles about CSIRO and CRISPR, which served to demonstrate unjust patents that went against public interests, sometimes at the expense of the public. Well, PTAB, based on this new blog post, finally — one might say belatedly — takes on CRISPR and the patent parasite, CSIRO (Commonwealth Scientific and Industrial Research Organisation), which earned a lot of disdain/notoriety for its patent strategy. “The gene-editing tool CRISPR,” IAM wrote, “is in the process of transforming the life sciences industry.”
“We certainly hope that PTAB will somehow take public interests into account, but that’s not how PTAB works.”IAM means privatising and monopolising, even by means of lawsuits. The promotional and defensive language carried on as follows: “Perhaps not surprisingly with such a revolutionary technology still in its relative infancy, a dispute over patents between universities and research institutes that have been at the forefront of its development, erupted over just who owns some of the foundational IP.”
Maybe nobody? Especially given that money for this work came from the public?
We certainly hope that PTAB will somehow take public interests into account, but that’s not how PTAB works. It assesses patents not on ethical grounds but based on the guidelines/laws/rules.
Watchtroll Still at It… Denying Facts
Watchtroll’s PTAB bashing is nothing new (see screenshot at the top). The site continued with this bashing today (factually-flawed and structurally-incoherent drivel that’s akin to fake news). According to this new article, which is based on statistics from the first day of the month, “Federal Circuit PTAB Appeal Statistics” suggest that in addition to the all-time high for PTAB in January, CAFC agrees with PTAB ~80% of the time. It means that PTAB is doing its job capably and correctly. To quote from Lexology: “Through February 1, 2017, the Federal Circuit decided 161 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 125 (77.64%) of the cases, and reversed or vacated the PTAB on every issue in 13 (8.07%) of the cases. A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 14 (8.70%) of the cases.”
“Put in simple terms, PTAB maintains its ability to crush bad patents and CAFC generally agrees with PTAB in 77.64% of the cases it looks at. “The statistics for 2016 were very similar, as we noted here before (the exact number was 77.4% rather than 77.64%, so the increase is marginal). Put in simple terms, PTAB maintains its ability to crush bad patents and CAFC generally agrees with PTAB in 77.64% of the cases it looks at.
Based on more news, PTAB continues to smash patents to pieces, and CAFC agrees, as usual. To quote:
After the Patent Trial and Appeal Board found claims of ImmunoGen Inc.’s U.S. Patent No. 8,337,856 nonobvious, non-practicing entity Phigenix, Inc. appealed to the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit dismissed the appeal, finding that Phigenix lacked standing to appeal because it had not established it had suffered an injury in fact.
Prior to filing its inter partes review petition, Phigenix was engaged in litigation with a third company, Genentech, Inc., over a Phigenix patent, U.S. Patent No. 8,080,534. Phigenix asserted that the ’534 patent covered Genentech’s manufacture and sale of a drug, Kadycla. Genentech produces the drug under a “worldwide exclusive license” from ImmunoGen for the ’856 patent. As part of its efforts to commercialize its own patent portfolio, Phigenix filed the petition for inter partes review of the ’856 patent, alleging claims 1–8 were invalid as obvious over various prior art references.
CAFC is again (as usual) agreeing with PTAB that Depomed’s patent should be invalidated, based on this new report:
The Federal Circuit on Tuesday affirmed the U.S. Patent and Trial Appeal Board’s decision in an America Invents Act inter partes review that Depomed’s patent on extended-release drug technology is invalid as obvious, saying the board’s conclusion is backed by substantial evidence.
There is another high-profile ‘case’ (petition rather) in the pipeline. Here are the details from the news:
Days after rejecting a challenge from Roxane Laboratories to a patent related to Novartis’ blockbuster cancer drug Afinitor, the Patent Trial and Appeal Board agreed recently to review the patent based on a challenge from another generic drugmaker, Par Pharmaceutical.
In a Feb. 15 decision, the PTAB found that Par Pharmaceutical Inc. had shown the patent was likely invalid as obvious. Par, which was previously sued for infringement, filed a petition seeking inter partes review last summer.
Justice does not seem plausible and is not perceived as legitimate when the outcome is always the same (like FISA rubber-stamping), so there are also exceptions. Here, for a change, “PTAB Follows Fed. Circ. Lead, Upholds Trading Patent” and to quote:
A split Patent Trial and Appeal Board on Friday followed the lead of the Federal Circuit and upheld a Trading Technologies International Inc. electronic trading patent, finding it was not invalid under the U.S. Supreme Court’s Alice ruling.
In a 2-1 decision, the PTAB said TradeStation Group Inc. and IBG LLC had not shown why it should break from the appellate court’s Jan. 18 decision, when the court ruled that a judge correctly found this and another Trading Technologies patent covered technological improvements, not abstract ideas…
PTAB Scares the Patent Microcosm
It’s no secret that patent maximalists, unlike actual companies that make things, hate PTAB. In general, PTAB can help save/defend practicing companies, to whom patents are still a two-edged sword. Here we have a law firm asking (seeking attention from potential clients), “Can Your Patent Be Invalidated Without a Trial?”
“As there is no foreseeable case at the SCOTUS which involves software patents, we are pretty certain that there will be no challenge to Alice any time soon.”Well, yes, and many software patents are already as valuable as nothing at all. They are toothless. Trying to litigate with them would benefit nobody except lawyers at both sides. In that sense, such patents may be even worse than none at all. But to quote the above: “Patent owners should be keeping a close eye on a case that may come before the Federal Circuit Court of Appeals that could potentially block challenges to patent validity outside of the courtroom. Cascades Projection v. Epson and Sony 1 asks the court to decide whether the rights granted by a patent are public or private and, in turn, if those rights are capable of being revoked without access to a jury trial.”
We wrote about it earlier in the month. These are edge cases or rare exceptions; thus, promoting these to prospective clients is rather disingenuous and misleading. Or as one might call it — marketing!
SCOTUS Defends CAFC and by Extension PTAB
One interesting case that we spotted today in the news involves a company called Big Baboon (real company name!) and its unusual attempts to challenge patent scope etc. at the US Supreme Court (SCOTUS). Software patents are still dead/dying after Alice, so Big Baboon attempted another angle and failed. To quote:
The U.S. Supreme Court on Monday declined to hear a petition by a Silicon Valley software company asserting that the Federal Circuit has routinely imputed patent law claims into lawsuits that challenge the U.S. Patent and Trademark Office’s procedures in order to exert jurisdiction over the cases.
The high court declined to hear Big Baboon Inc.’s Oct. 10 petition for writ of certiorari, which argued that it was in the public’s interest that the justices stop the appellate court from the “ongoing and palpable” harm it…
This is good news. As there is no foreseeable case at the SCOTUS which involves software patents, we are pretty certain that there will be no challenge to Alice any time soon. There is also no indication from the Trump administration that AIA (which brought PTAB) will be in any sense revoked/undone. █
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When they say “fix” they mean the very opposite of it
Photo from Reuters
Summary: The club of patent maximalists, or those who profit from excess prosecution and legal chaos, isn’t liking what has happened in the United States and it wants everything reversed
“Twenty patents,” this new report says. “That’s how many patents were invalidated in only three decisions in the last few weeks alone.” The report, titled “The Supreme Court’s Impact on Patentable Subject Matter,” is behind walled gardens (or paywall), but it shows just how desperate the meta-industry of patents is becoming. Confidence in abstract (esque) patents is eroding because of Alice (and Mayo to a lesser degree).
“Confidence in abstract (esque) patents is eroding because of Alice (and Mayo to a lesser degree).”Longtime readers of ours know that we are not against patents, not inherently or even intrinsically. We believe that quality control for patents is essential; otherwise we have just a cash cow controlled by few monopolists, granting millions of patents on anything conceivable and denying free (as in freedom) innovation.
We are amused to see this new piece from Quinn IP Law (not IP Watchdog‘s Quinn, but a similar attitude); it’s titled “The 20 Year War On Patents: When Will It End?” (sounds like a headline from IP Watchdog/Watchtroll) and it is, as usual inverting narratives of the offensive and defensive. In reality, for a number of decades, patents attacked (as in “war”) ordinary people and small companies; the system wasn’t “under attack” but actually attacking, using patents. Unlike Quinn’s portrayal (he puts it misleadingly, painting litigation/prosecution as “defense”), the reality is that the system is belatedly changing, having failed to fulfill its original goals.
“The matter of fact is, trolls use software patents most of the time; some have estimated 70% of the time (depending on how one classifies these patents and adds them up).”Quinn wrote that the “Federal Circuit’s 1998 State Street Bank decision was a sweeping departure from precedent and opened the floodgates to so-called business method patents, leading to a significant outcry against “bad patents.” Also, out-of-control patent troll litigation gave birth to the anti-troll movement, which further fueled the fires of an anti-patent backlash, resulting in judicial and legislative action amounting to arguably the most significant pendulum swing against patent rights in US history. Many of the resulting changes were necessary to address these problems, but how far have we gone, and when will it end?”
The matter of fact is, trolls use software patents most of the time; some have estimated 70% of the time (depending on how one classifies these patents and adds them up). So the two aforementioned issues are closely connected.
Joining the likes of Quinn IP Law, we now have Gene Quinn’s Watchtroll (promoter of software patents and trolls), calling the the patent system to be “fixed”. The “Swamp” of Watchtroll, which can’t help attacking the USPTO Director who cleaned up a lot of the mess, says “fix the patent system” but actually it means break the system (again, like in the Reagan days). They’re trying to hijack terms like “fix” (or “reform”) to mean the very opposite of it!
“Facts are not on their side, but money is on their side and if they can afford to repeat their lies many times in a lot of different publications, then they might actually, successfully, fool some politicians.”They also latch onto that China nonsense (it’s granting patents on every silly thing). To quote one example: “While we have damaged our patent system, China has strengthened theirs. Today, China leads the world in new patent filings.”
That’s not strengthening, that’s weakening. They lower their standards and have merely become a platform for opportunists such as patent trolls. The other day, Watchtroll also published this article titled “How to Fight Low Quality Patents Related to Commoditized Technology that Threaten Innovation”. It did speak about trolls as follows:
The most successful patent trolls tend to be those with the sharpest noses for weakness. They sniff out low quality patents and hit legitimate businesses where they’re vulnerable in order to make money without doing the actual work of innovation.
And incidentally, they typically use software patents, which Watchtroll can’t help promoting every other day.
The likes of Watchtroll and that greedy bunch of self-serving maximalists are thankfully enough losing the battle. That is why they have grown so desperate and are now painting a revocation of a fix (regression) as a “fix”. Facts are not on their side, but money is on their side and if they can afford to repeat their lies many times in a lot of different publications, then they might actually, successfully, fool some politicians. Right now they try to get Rader installed as USPTO Director. If the “Swamp” had a human face to it, he is it. █
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“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway” —Marshall Phelps
Summary: Old and familiar tricks — a method for tricking examiners into the idea that algorithms are actual machines — are being peddled by Watchtroll again
I COME from a professional background of computer vision and I am also familiar with (and trained in) processor technology, so when I say that software is inherently mathematics I am not just merely repeating what other people are saying. In fact, having debated this in length with Watchtroll a couple of years ago, it became abundantly clear that he (Mr. Quinn) does not know that the heck he is talking about; he could not even name any computer program he wrote. It’s astounding that people who want to believe that software is patentable take him seriously*.
I therefore worry that Watchtroll is seen by many as some sort of ‘authority’ on the subject; it’s a site by and for law firms, or a propaganda mill for their pockets (software patents). They do a lot of lobbying and also shaming of officials like the Director of the USPTO (they never even mention the EPO).
“The latest Watchtroll piece wants people to think of computer programs as computers; as if putting something that is akin to prose through a processor magically makes it patentable.”The latest Watchtroll piece is titled “Operational Mathematics on a Processor is not an Abstract Idea”. They are mixing two things here; processors are not abstract but mathematics is a whole different thing. They cannot just magically link two things to make them look like the same thing. In our view, which was consistent over the years, the processor itself can have patents associated with it, and we don’t object to that. But algorithms are not processors and they are rarely if ever embedded in gate level. The computers are programmable. That’s what Manchester innovated after the (second) World War and what the Computer Science department here — the department which I studied in — became most renowned for.
The latest Watchtroll piece wants people to think of computer programs as computers; as if putting something that is akin to prose through a processor magically makes it patentable. Clueless or just lying to oneself?
We often wonder how many of the software patents proponents who write for Watchtroll actually come from Computer Science and can comprehend computer programs/code. We cannot recall even one. “Peter also works as a patent engineer in patent prosecution,” says the disclosure in the above article. What the heck is a “patent engineer”? That makes it sound like the act of patenting itself is an engineering task? Can they patent the process of patenting too? I once dated a girl who said she was a “nail engineer” (later it turned out she meant manicurist), so here again we have these artistic semantics.
“Sadly, based on what we heard, the above-mentioned pattern of deception (combining or blurring the gap between machine and code) is often used to trick EPO examiners into granting software patents; they can mislead themselves into thinking that they don’t grant software patents, but they do.”“Operational math on a processor is a switching device and not an abstract idea,” Peter writes. The processor just takes an instruction or a set of instructions (input) and produces some output, yielding something that can be processed for visualisation, sound etc. But the processor is not the program itself. The programs are stored in memory or in registers, which themselves resemble a book and are already covered by copyrights, not patents, just like a book. We could go on and deconstruct the whole piece from Peter, who is an Electronic Engineer, not a software engineer (far from the same thing).
Sadly, based on what we heard, the above-mentioned pattern of deception (combining or blurring the gap between machine and code) is often used to trick EPO examiners into granting software patents; they can mislead themselves into thinking that they don’t grant software patents, but they do. █
* Well, here is Mr. Watchtroll being treated as some kind of guru on the subject [1, 2] just a few days ago.
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SIPO, China (Sina), Singapore and the failure to learn the West’s tough lessons
Summary: Disintegration of Intellectual Ventures (further shrinkage after losing software patents at CAFC), China’s massive patent bubble, and Singapore’s implicit invitation/facilitation of patent trolls (bubble economy)
IAM ‘magazine’, the unofficial voice of patent trolls, seems happy with the migration (or outsourcing) of troll activity to east Asia. That’s why IAM writes so much about Asia these days (as does MIP), except when it grooms the world's biggest troll and Microsoft’s vast patent troll, Intellectual Ventures, which now continues its slow death based on IAM’s latest blog (filled with promotional language). After patents were ‘imported’ from Kodak they apparently move back to east Asia:
Intellectual Ventures has sold a portfolio of around 4,000 former Kodak patents to Dominion Harbor in another sign that the IP giant is actively slimming down its vast portfolio.
This is the fourth deal that IV has done with Dominion, including one in November last year which saw around 50 assets change hands. The firm also sold patents to Equitable IP, the monetisation business led by former ICAP Patent Brokerage CEO Dean Becker, as it has upped its rate of disposals. This blog also reported last year on the disposal of assets to a company called China Star Optoelectronics Technology (CSOT) by what appeared to be an IV vehicle. But none of those deals approach the size of the Kodak transaction with Dominion.
This kind of shift or passage of patents to China was frequently seen in previous years when large Chinese companies bought patents by the thousands. These were bought from the West, where post-AIA patent values diminished. We gave numerous examples of that and last year, naming — amongst others — Singapore, which reportedly doubles down on patent trolling (after Creative had made it (in)famous in 2016, by trolling very major companies in Singapore [1, 2]). This is what IAM wrote with highly sanitised language (e.g. trolling described as “IP value creation” by “patent monetisation entities”):
A new Singapore government report recommends “bringing in” or creating patent monetisation entities, as well as other kinds of other intermediary, to boost the country’s IP commercialisation capabilities.
Published earlier this week, the report comes from the Committee on the Future Economy (CFE), which was established in January 2016 to review Singapore’s longer term economic strategy. Among seven broad strategy recommendations made one to “strengthen enterprise capabilities to innovate and scale up”, with IP value creation a central pillar.
East Asian patent systems not only lowered their patent bar (China’s in particular) but also fostered a lot of litigation — a grave mistake which brings rise to trolls. The trend is noteworthy because some of these Chinese lawsuits are nowadays being filed by Chinese companies in the US and the EU. These chickens will come home and abroad to roost. █
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The patent microcosm belongs in the same wastebasket that software patents go into
Summary: The latest examples of misleading articles which, in spite of the avalanche of software patents in the United States, continue to promote these
SEVERAL months ago we wrote that software patents had become pretty toothless everywhere except the Eastern District of Texas, where judges continue to exploit their own governance to welcome patent trolls. Nowadays, just because the USPTO occasionally grants software patents does not necessarily mean that courts (more so the higher ones) will respect them. Recent experiences and even a census (2016 statistics) serve to show that lawsuits with software patents have become a very risky game to play (the plaintiff typically loses not only the case but also a lot of money, which law firms pocket in the process).
“Recent experiences and even a census (2016 statistics) serve to show that lawsuits with software patents have become a very risky game to play (the plaintiff typically loses not only the case but also a lot of money, which law firms pocket in the process).”Law firms that used to make a lot of money from software patents are concerned. They need their clients to become dumb or poorly informed. Yesterday we saw a new article, which was unsurprisingly (given the authorship) entitled “Software Is Still Patent Eligible”, published by Sandra Badin, Matthew Karambelas, Nick Mouton, Michael Renaud, and Michael D. Van Loy (Mintz Levin). This is poor advice from a self-serving firm which is just trying to sell its services around software patents. These patents may seem eligible at the US patent office, but how about in District Courts? Or even worse: CAFC? SCOTUS was very clear about it.
Not even District Courts like the Eastern District of Texas’ can provide much of a reprieve, at least not for much longer because SCOTUS has Texas in its crosshairs. Writing about TC Heartland — the case that can effectively kill patent trolls later this year (their modus operandi would be shattered) — Professors Megan M. La Belle & Paul R. Gugliuzza wrote yesterday that “[p]atent litigation is, as we all know, [has been] highly concentrated in a small number of districts. Most notably—some might say, notoriously—the rural Eastern District of Texas hears about forty percent of all patent cases nationwide. Many lawyers and scholars consider this case concentration to be a critical flaw in the patent system.”
“The environment for patent bullies is rapidly changing and those who assisted such bullies (law firms that pursue patents by the millions) will need to find another business tactic.”Putting aside Alice and the Bilski case, the few courts that actually disregard precedential rulings may soon be out of business (not literally, but they will have to shrink significantly) and what will proponents of software patents have left to say?
The environment for patent bullies is rapidly changing and those who assisted such bullies (law firms that pursue patents by the millions) will need to find another business tactic. Fitbit is already withdrawing from its own patent case (which it initiated) and laying off a lot of its staff; they deserve it for resorting to patent aggression rather than innovation. Don’t expect law firms to accept this new reality, as long as they can continue to mislead prospective clients.
In spite of Fitbit deciding to abandon its own case — a fact that Bejin Bieneman PLC’s site (a software patents proponents’ site) conveniently omits — here is a new anti-Alice post [via], published only yesterday, to paint just ponies and rainbows. To quote:
Fitbit sued Jawbone, its rival, alleging infringement of three patents directed to preparing wearable activity trackers with client and/or server computers, whereupon Jawbone unsuccessfully brought a Rule 12 motion to dismiss alleging patent-ineligible subject matter. Fitbit, Inc. v. AliphCom, No. 15-cv-04073-EJD (N.D. Cal. Feb 9, 2017.) The asserted patents were U.S. Patent Nos. 9,026,053, 9,106,307, and 9,048,923; “[a]ll of the asserted claims recite a method or system for pairing that involves three discrete entities: a portable monitoring device, a ‘client,’ and a ‘server.’” Skirting the question of whether claims were directed to a patent-ineligible abstract idea, the court found that the claims recite an inventive combination of elements.
As is widely known by now, Fitbit effectively lost the case by dropping it. Not that law firms would want the public to know this…
Objective information about patents has become scarce because the few who have an incentive to write about the subject are those who profit from it. █
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Lobbying disguised as “news” (from Watchtroll & Friends, the “Alt Right” of the patent world)
Summary: Contrary to a malicious whispering campaign against Lee (a coup attempt, courtesy of patent maximalists who make a living from mass litigation), she is still in charge of the USPTO
FOR a number of weeks if not months (depending on when Watchtroll started spreading malicious rumours, personal attacks, and fake news about Michelle Lee [1, 2, 3, 4]) it has not been known what exactly goes on at the USPTO. This is important as it can help determine the future direction of the US patent system, e.g. eligibility of software patents. The maximalists are trying to install Rader as Director of the USPTO, but they have not been successful.
“…a bunch of spoiled brats and bullies are trying to scandalise Lee and cause her to lose her job while they are sending to officials some truly nasty letters (with phrases like “Drain the Swamp”) to persuade the Trump administration to fire her.”Citing this report, earlier this week Patently-O wrote: “What an oddity – for the past 26 days, it has been an open secret that Michelle Lee remains USPTO Director but officials at the office have repeatedly refused to confirm or deny that role or to provide any answer to the question “Who is in charge at the USPTO?”
“According to a Politico squib report, both Rep. Darryl Issa and USPTO PR Director Paul Fucito have confirmed that Dir. Lee is “in charge” but it is unclear whether she is still USPTO Director.”
As we noted here before, a bunch of spoiled brats and bullies are trying to scandalise Lee and cause her to lose her job while they are sending to officials some truly nasty letters (with phrases like “Drain the Swamp”) to persuade the Trump administration to fire her. █
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But not to self-serving zealots like Mr. Quinn…
Summary: A new survey from Bloomberg BNA and AIPLA reveals that the Patent Trial and Appeal Board (PTAB), which still grows in prominence, is supported by people who have themselves gotten patents (not those who are in the bureaucracy of patents and self-serving politics)
Who hates PTAB? Who hates IPRs? Sites such as Watchtroll and IAM, which are the megaphone of patent trolls, patent maximalists, patent prosecutors and so on. Not actual developers… these sites are the equivalent of pro-UPC sites in Europe (always connected to legal firms looking to exploit the UPC to foster more litigation, injunctions, and damages).
We couldn’t help but notice last night’s blog post from Matt Levy (CCIA). It’s about patent proponents (but not patent maximalists like prosecutors, profiteers etc.) wanting PTAB, a cornerstone of patent reform from 2011. To quote:
Bloomberg BNA and AIPLA just released a nationwide survey of patent attorneys and agents asking about their experiences with inter partes review at the Patent Trial and Appeals Board. Bloomberg BNA and AIPLA did a survey of attitudes towards inter partes review (IPR). Among attorneys representing patent owners, 48% said that they thought that over all, inter partes review has been very beneficial. This includes in-house counsel. 45% of in-house counsel whose patents had been subject to IPR said that IPRs are very beneficial.
Personally, I find that result pleasantly surprising. I would have expected the numbers to be much lower.
I do note that the survey’s finding is actually a little stronger than Bloomberg reports. The attorneys were asked to rank from 1 to 10 to describe how beneficial they feel that IPRs have been, with 10 being the most beneficial, 1 being the least. 48% of respondents who most recently represented patent owners in an IPR gave a rank between 7 and 10. But if you add in the respondents who ranked it as a 6 (which is still more beneficial than harmful), you get 65% of attorneys representing patent owners. If you only look at in-house counsel in that group, it’s 70% who ranked IPRs as 6 or better.
That is, in a survey of patent attorneys with recent experience with IPRs, a solid majority of attorneys representing patent owners said that they think IPRs are more beneficial than harmful.
Is the survey biased? Bloomberg has no agenda, it’s a news organization. And AIPLA is hardly biased against patent owners. I don’t think it’s fair to impute a bias to either organization.
This is something to bear in mind now that as little as 0% (as low as it can get!) of EPO stakeholders support Battistelli, based on a new survey. Battistelli has basically destroyed patent quality at the EPO and is sending to exile the semi-equivalent of PTAB. The only supposed ‘quality’ that is rising under Battistelli’s regime is the burden associated with filing patents — a thing that no stakeholders is likely to appreciate as it adds to cost/labour.
To quote this month’s short piece from Jérôme Braquehais (REGIMBEAU):
As of 1st November 2016, the European Patent Office (EPO) Examination Directive that includes the acceptance conditions for recording an assignment underwent changes significantly altering the recordal procedure of an assignment at the EPO.
These amendments, which are in line with an increased formalization, primarily concern the obligation that the assignment contract is to be signed by all parties, and the introduction of a control of the signatories function.
As quality at the EPO continues to decline (quality of patents, quality of service, quality of the workforce and so on) we can expect applicants to turn elsewhere. Battistelli killed the EPO and is only surviving by devouring the “stock” left on the shelf (backlog). With the existing EPs being vastly devalued by the gradual association with wrongly-granted, low-quality patents, price drops will become imperative, but it would already be too late. Battistelli is making the EPO completely unsustainable. █
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