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10.17.18

Improving US Patent Quality Through Reassessments of Patents and Courts’ Transparency

Posted in America, Courtroom, Patents at 3:56 am by Dr. Roy Schestowitz

Transparency in CD

Summary: Transparency in US courts and more public participation in the patent process (examination, litigation etc.) would help demonstrate that many patents are being granted — and sometimes asserted — that are totally bunk, bogus, fake

THE new leadership is oftentimes frustrating if now downright depressing; they put the so-called ‘swamp’ in charge. A new event about patents issued the following nonsensical tweet: “A new twist has recently entered the debate about how #patents and #opensource interact and whether the two principles are compatible with each other or not.”

“So stop granting software patents; the principal problem would be solved.”They’re obviously not compatible, but the sponsors would pay for us to believe otherwise. The event took place yesterday and attending as well as speaking was Director Iancu, who said, according to third-party accounts: “lack of predictability on Section 101 limits investment in innovation. [] gets specific: “Step 1 of Alice-Mayo test must be a ‘category’ analysis not a claim analysis. If the matter is sometimes patentable then it is not a subject matter Section 101 problem.”

So stop granting software patents; the principal problem would be solved. We’ll probably say more in the weekend (once all the patent maximalists are done boosting him).

Totally meaningless is the message above (lots of mythology embedded in it, pure fiction from the patent microcosm). He just wants to find ways to defy the courts, ignore caselaw, and grant software patents anyway.

Last night Josh Landau (CCIA) spoke about history and noted that “[w]hile the PTO no longer operates under a registration system, that situation still exists today. The PTO—unlike many other patent offices around the world—is unable to permanently refuse a patent application.”

Here are some key bits:

Setting aside the apparent fact that the vast majority of patents back then were on old ideas—a problem that continues to exist, given the significant number of invalid patents issued by the PTO—there’s another lesson to be had from this diary entry.

Dr. Thornton was operating under the registration system, during which patents were not examined but were simply granted. As Adams emphasized, the problem of an inability to refuse a patent leads to the existence of patents on old technology, imposing significant harms on the public who become unable to utilize the prior technology that they should have had the right to employ.2

While the PTO no longer operates under a registration system, that situation still exists today. The PTO—unlike many other patent offices around the world—is unable to permanently refuse a patent application. All they can do is temporarily reject it and wait for the applicant to decide if they want to keep going with prosecution. Unsurprisingly, in a system where it’s impossible to permanently get rid of an application, a large number of them eventually become patents. When correcting for procedures like continuations, the percentage of patent applications that are issued has risen, approaching nearly 100% last year—a proportion not reached since the turn of the millennium.

[...]

It’s unfortunate that the PTO and policymakers continue to fail to learn from these mistakes—particularly when the first Commissioner for Patents identified the issue over 200 years ago.

This means that we increasingly need to rely on courts and tribunals, not examiners.

In spite of fee hikes and other attempts — more recently by Iancu — to sabotage the Patent Trial and Appeal Board (PTAB) this tribunal is still attracting many inter partes reviews (IPRs), abolishing software patents by the hundreds each month, owing to to 35 U.S.C. § 101, inspired by SCOTUS and embraced by the U.S. Patent and Trademark Office (USPTO).

Michael Loney graphed/charted the numbers yesterday and said:

2018 is on course to have the lowest petition filing rate since 2013. The third quarter included the impact of SAS on institution decisions, an update to the AIA Trial Practice Guide, the departure of the PTAB chief judge and the creation of a Precedential Opinion Panel

Sometimes there are appeals and these typically swiftly affirm the Board’s decisions.

As we noted here before, the EFF’s Daniel Nazer and his colleageus had been asking the Federal Circuit for greater transparency in patent lawsuits, affairs, lobbying etc. (without time delays as before).

The final outcome is positive, as Nazer noted some hours ago. To quote:

In a victory for transparency, the Federal Circuit has changed its policies to give the public immediate access to briefs. Previously, the court had marked submitted briefs as “tendered” and withheld them from the public pending review by the Clerk’s Office. That process sometimes took a number of days. EFF wrote a letter [PDF] asking the court to make briefs available as soon as they are filed. The court has published new procedures [PDF] that will allow immediate access to submitted briefs.

Regular readers might note that this is the second time we have announced this modest victory. Unfortunately, our earlier blog post was wrong and arose out of a miscommunication with the court (the Clerk’s Office informed us of our mistake and we corrected that post). This time, the new policy clearly provides for briefs to be immediately available to the public.

We certainly hope that CAFC, by affirming decisions of PTAB, can undermine Iancu’s agenda of weakening PTAB and broadening patent scope in defiance of the Supreme Court. Iancu appears to have adopted lawlessness, just like his boss who appointed him after he had worked for him. The EFF is rightly upset about it.

10.16.18

Judge-Bashing Tactics, Undermining PTAB, and Iancu’s Warpath for the Litigation and Insurance ‘Industries’

Posted in America, Courtroom, Law, Patents at 6:43 am by Dr. Roy Schestowitz

The existing USPTO’s management feels like it doesn’t care about justice (facts), technology and science, only about legal bills

Trump and Iancu

Summary: Many inter partes reviews (IPRs) at the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) leverage 35 U.S.C. § 101 against software patents; instead of putting an end to such patents Director Iancu decides to just serve the ‘industry’ he came from (a meta-industry where his firm had worked for Donald Trump)

THE USPTO under the new leadership (Director) deviates further and further away from Federal Circuit (CAFC) rulings and SCOTUS caselaw. The Office does so at its own peril, however, as the certainty associated with US patents will be further reduced. More and more granted patents will be presumed invalid. Is the leadership/Director OK with that?

This post binds together last week’s stories about court cases and Office policies. What we hope to show is a divergence from the law; the Office just cares about granting patents, not defending their value by limiting their scope.

We begin with this affirmation by CAFC — one in which a U.S. District Court was supported by CAFC. The divergence between the courts is being lowered over time. CAFC learned to obey SCOTUS and U.S. District Courts have, in turn, become more like CAFC. This is a good thing as it’s indicative of correct or at least consistent judgment. The same cannot be said about the Office because far too many patents these days are later discovered/unmasked as fake patents.

Yesterday Kluwer Patent Blog wrote about a British court “finding that the claims in question were invalid for obviousness.” It’s not just a US issue.

A couple of days ago Steve Brachmann and Gene Quinn (Watchtroll) wrote about Swildens and his successful challenge to a patent. They recalled a month-old report:

On September 12th, the U.S. Patent and Trademark Office issued a final office action in an ex parte reexamination of a patent owned by Google self-driving car development subsidiary Waymo. As a result of the reexamination, Waymo stands to lose 53 of 56 claims, including all 20 of the patent claims originally issued. The patent in question had been asserted as part of the company’s well-known infringement suit filed against Uber.

The patent at the center of this reexamination is U.S. Patent No. 9368936, titled Laser Diode Firing System. Issued to Google in June 2016, it claims an apparatus including a voltage source, an inductor coupled to the voltage source and configured to store energy in a magnetic field, a diode coupled to the voltage source via the conductor, a transistor that can be turned on or off by a control signal, a light emitting element coupled to the transistor and a capacitor coupled to charging and discharge paths where the charging path includes the inductor and the diode and the discharge path includes the transistor and the light emitting element. The invention provides a laser diode firing circuit for a light detection and ranging (LIDAR) device where the emission and charging operations of the firing circuit can be controlled by operation of a single transistor.

The reexamination of the ‘936 patent was requested in August 2017 by an engineer named Eric Swildens who, according to news reports, has no connection to either Uber or Waymo but became interested in the potential invalidity of the patent after it was asserted in Waymo’s case against Uber. The reexam requested by Swildens has to date been able to knock out all 20 claims of the claims originally issued in the patent, with only three amended claims that were added to the patent during the reexam proceeding being found to be patentable by the reexamination examiner.

Long story short, this patent should never have been granted. Watchtroll can (and will) whine all it wants, but a lot of US patents get granted in a rush/haste, only to be thrown out as soon as they reach courts (or PTAB).

Jeffrey Killian recently complained about “Patent Uncertainty”. He wrote about it on October 9th at Watchtroll. The problem is that the USPTO granted far too many bogus patents. The problem isn’t the courts and it’s certainly not PTAB, which actually restores some much-needed sanity. Of course these patent maximalists blame courts rather than greed, but one must bear in mind how they make a living.

On the “blocking patent” doctrine, Watchtroll is smearing the courts again. Complaining about CAFC twice in two days [1, 2]. This is unwise a thing to do as it threatens their interests. It undermines the courts’ support or trust in law firms. Hans Sauer and Melissa Brand, then just Melissa Brand, basically insinuate that courts lack logic and even use a “Gremlin” caricature. Stay classy, folks…

It should be noted that a patent troll CEO, William Merritt (President and CEO of InterDigital), was writing for Watchtroll last week. This is why it deserves to be called Watchtroll. It’s like a megaphone of the trolling ‘industry’…

Moving on a bit, PTAB is doing so well that patent maximalists are screaming on the phone with lawyers willing to waste their money. “Today’s new patent complaints,” wrote one PTAB proponent, are “usual glut of NPE [troll] suits, sprinkle of operating companies… and a corp suing Iancu/the PTO for a DJ that IPR is unconstitutional (incl under 7A.) Interesting tactic, given that they already lost on appeal to CAFC and SCOTUS disagreed on the 7A q.”

PTAB generally helps techies or geeks. It doesn’t help parasitic lawyers. Whose side should we be on? Decisions, decisions…

HTIA, which represents technology firms, wrote some days ago: “Let’s debunk myths: #Patent reform has not harmed #innovation. The 300 U.S. companies who have invested the most in R&D have increased R&D spending by 44% since 2012.”

This links to an older article, but it’s still very much relevant. PTAB guides the hands of examiners, moving the hands away from software patents. PTAB often overturns examiners’ decision to the detriment of software patent applicants, but patent maximalists latch onto the rare exception rather than the norm. Here is one such exception:

The examiner originally rejected the claims as improperly directed toward an abstract idea. On appeal, however, the PTAB has reversed finding that “dwell time” is a uniquely “internet-centric challenge” and the claimed solution is “is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.” quoting DDR Holdings. The PTAB particularly noted that “dwell time” is not merely “some business practice known from the pre-Internet world” that was claimed by simply saying “perform it on the Internet.”

The classic “on the Internet” trick; don’t they just say “on the cloud” these days?

Linda Panszczyk wrote about CAFC asking PTAB to have another go assessing a patent (reversals are rare, they don’t overturn invalidations much). This is from last week’s short post:

The U.S. Court of Appeals for the Federal Circuit has vacated and remanded a Patent Trial and Appeal Board decision that a reference guide qualified as a printed publication, in a case involving reexamination of medical device patents relating to access ports, asking for the Board to clarify its findings on this matter.

They’re doing the work examiners should have done in the first place.

“The classic “on the Internet” trick; don’t they just say “on the cloud” these days?”Director Iancu cannot gut PTAB, especially not after Oil States; but the head of PTAB (a judge) was recently removed (or departed) and the latest act of sabotage from Iancu seems like a gross case of bypassing courts. As Josh Rich put it:

Under a new PTO administrative rule published today, the PTAB will apply the same claim construction standards in IPRs, PGRs, and CBMs filed on November 13, 2018 or later as would apply in litigation. 83 Fed. Reg. 51340 (Oct. 11, 2018). The PTAB will also consider claim construction decisions from litigation (whether from courts or the U.S. International Trade Commission) in construing claims in AIA proceedings. The new rule abandons the PTO’s former approach of using the broadest reasonable interpretation (“BRI”) in claim construction, and thereby reflects a continuing move from considering AIA proceedings analogous to prosecution to considering them analogous — or part of — the litigation process.

Currently, the PTAB uses the BRI to construe claims in the vast majority of AIA proceedings, the only exceptions being in cases where the patent has expired or is expiring imminently.[1] In doing so, it has treated the AIA proceedings as analogous to a continuation of prosecution (in which claims are given their broadest reasonable interpretation throughout the process). That approach makes sense in the historical context of AIA proceedings, given that it allows the PTO to use the same approach across almost all cases before it, AIA proceedings are to supplement — not reargue — issues that were presented during pre-issuance prosecution, and AIA proceedings share many similarities with prosecution (including limited ability to address the counterparty’s claim construction arguments). Furthermore, the ability to amend claims during such proceedings provides a “safety valve” for an inopportune, overbroad claim construction.

Dennis Crouch wrote about the Phillips standard:

The USPTO’s Final Rule Package on Inter Partes Review Claim Construction is set to publish in the Federal Register on October 11, 2018. Up to now, the PTAB has been using the USPTO “broadest reasonable interpretation” standard to interpret challenged patent claims. Under the new rule, the PTAB will now rely upon the PHOSITA standard more traditionally used for issued patents as articulated by in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc) and further developed in later cases. This new rule will apply in IPR, PGR, and CBM proceedings. The new rule also indicates that prior claim constructions by a court or USITC “will be considered.” This final rule is essentially unchanged from the proposed rule found in the May 2018 NPRM. Timing: The new claim construction applies to cases involving “petitions filed on or after the effective date of the final rule, which is November 13, 2018.”

Watchtroll’s founder said about this Phillips standard that Iancu’s office “has published a final rule in the Federal Register changing the claim construction standard applied during inter partes review (IPR), post-grant review (PGR), and covered business method (CBM) review proceedings before the Patent Trial and Appeal Board (PTAB).”

Here is what another patent maximalist said:

The final rule changes the claim construction standard used by the PTAB to the Phillips standard used in district courts. Practitioners predict a surge in filing before it becomes effective in November

The USPTO has published a final rule changing the claim construction standard applied during inter partes review (IPR), post-grant review (PGR), and covered business method patents (CBM) proceedings before the PTAB.

So the filings are expected to temporarily go up again, just like they did before fee hikes. Office Director seem to be missing the point that keeping PTAB affordable and accessible is actually a priority; all they care about is masking the decline in quality — same thing which the EPO has been doing.

Over at Lexology, Porter Wright Morris & Arthur LLP’s Bill T. Storey took note of the Office becoming more of a patent maximalists’ office under Iancu when he said:

On July 1, 2018, the United States Patent and Trademark Office (USPTO) began a 3-year pilot program known as The PCT Collaborative Search and Examination Pilot (CS&E) Program, to streamline examination and search procedures for patent examiners in multiple countries. The program is a coordinated effort with patent offices from around the world, together known as the IP5 offices. Specifically, participating International Search Authority (ISA) members include the USPTO, European Patent Office (EPO), Japan Patent Office (JPO), Korean Intellectual Property Office (KIPO), and State Intellectual Property Office of the People’s Republic of China (SIPO). This program is a continuation of two previous programs launched in 2010 and 2011, respectively, involving the USPTO, EPO and KIPO that laid the groundwork for this expanded program aimed at testing user interest, operational and quality standards, and the electronic platform.

Currently, upon filing a PCT application, applicants designate one of the IP5 offices to provide an international search report (ISR) and written opinion. However, upon reaching the national stage as applicants pursue applications in individual countries, applicants can be presented with country-specific search reports involving entirely new art depending on varying search criteria. This can place a burden on applicants and hinder cohesive world-wide prosecution strategies. The CS&E program addresses this issue by coordinating searches from each office, thereby providing a higher quality work product which is more likely to comprehensively identify and consider world-wide art. The CS&E program provides the advantages of having the searching performed by multiple examiners with different language capabilities and an increased predictability of outcome. Importantly, at this time the CS&E program requires no extra cost.

It’s worth noting that nobody but a vocal group of trolls' attorneys actually complained about PTAB. One of them wrote: “Amazingly Ebay wins rare 101 #patent appeal because “dwell time, which is an Internet-centric challenge” is not just directed to an abstract idea https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017003747-09-26-2018-1 … Once again, proves how handy it is to have the right panel of judges!”

More of that judge-bashing, as usual…

They spent years pushing the fiction that PTAB is “stacked” or corrupt or whatever. Iancu now uses these smears of theirs to frame PTAB as “controversial” with perception issues. Whose? Iancu seems to believe that the USPTO exists for patent law firms rather than for science and technology. Having come from the law firm that worked for Trump, this is hardly surprising.

Not only do firms sell “lawsuits as a service”; nowadays they also sell insurance policies. Watch what Pillsbury (Policyholder Pulse blog) wrote last week; the insurance ‘industry’ now exploits the demise of low-quality patents that are being invalidated:

To help fill this patent coverage gap, some insurers have recently begun offering more comprehensive and cost-effective intellectual property policies specifically tailored to address the risk of patent (and other intellectual property) claims.

[...]

The patent landscape continues to evolve in the wake of the Leahy-Smith America Invents Act and the Supreme Court’s decision in Alice Corp. v. CLS Bank, which established a more exacting patentability standard for software patents and has opened the door to more motions to dismiss for lawsuits asserting those patents. Nonetheless, patent lawsuits remain prevalent and costly. A well-negotiated patent policy can help close a critical coverage gap, and may even prove critical to your company’s continued viability in the face of such suits.

So when there are lots of patent lawsuits they sell insurance to defendants and when many patent lawsuits fall through they sell insurance to the plaintiffs. Some ‘industry’, eh?

10.14.18

Court of Appeals for the Federal Circuit Decides That USPTO Wrongly Granted Patents to Roche

Posted in America, Courtroom, Patents at 10:22 am by Dr. Roy Schestowitz

Not just 35 U.S.C. § 101; nature is not an invention either

A stormy paradise

Summary: Patent quality issues at the U.S. Patent and Trademark Office (USPTO) — motivated by money rather than common sense — continue to be highlighted by courts; the USPTO needs to raise the bar to improve the legal certainty associated with US patents

THE USPTO isn’t exactly renowned for patent quality; it’s known as the ‘go-to office’ for quick and easy patents and it’s also known for its ridiculous number of patents (recently exceeded 10 million).

Suffice to say, the USPTO has granted grant many bogus patents or fake patents (ones that should never have been granted and have no legal standing in actual courts of law). Natural Alternatives International has decided to sue the USPTO for having invalidated its patent in a Patent Trial and Appeal Board (PTAB) inter partes review (IPR). Donald Zuhn wrote about it a few days ago. They’re suing the USPTO because it’s granting patents falsely and even its own staff admits that. It recently explained that such patents should not have been granted, leading to this suit:

Last week, in Natural Alternatives International, Inc. v. Iancu, the Federal Circuit affirmed a determination by the U.S. Patent and Trademark Office Patent Trial and Appeal Board in an inter partes reexamination affirming the Examiner’s rejection of the challenged claims of U.S. Patent No. 8,067,381 as being anticipated or obvious over the cited prior art, as well as the Board’s denial of the patentee’s request for rehearing. The ’381 patent is owned by Appellant Natural Alternatives International, Inc. (“NAI”).

The inter partes reexamination was requested by Woodbolt Distributors, LLC, which had been involved in district court litigation with NAI concerning the ’381 patent. In its request, Woodbolt asserted that the priority claim of the ’381 patent was defective because NAI “deliberately and expressly terminated” its claim to the benefit of the first four priority applications by breaking the chain of priority between the fourth and fifth priority applications.

Iancu ought to know that the only solution is for USPTO management (and in turn examiners) to raise examination standards.

More media attention has been dedicated to Swiss giant Roche. The Federal Circuit continues to ‘finish off’ bad patents that should never have been granted. It adds its weight to PTAB’s and Roche isn’t happy.

“The Federal Circuit on Tuesday upheld a ruling that a tuberculosis test patent Roche Molecular Systems Inc. asserted against Cepheid is invalid for claiming only natural phenomena,” Matthew Bultman wrote. Bultman is a patent maximalist.

Reuters’ Jan Wolfe, who is more impartial, wrote this:

A federal appeals court on Tuesday said a patent owned by Roche Molecular Systems Inc on a method of detecting tuberculosis should not have been granted, handing a win to rival diagnostics company Cepheid Inc.

Kevin Noonan, a proponent of patents on life, noted that “[t]he District Court granted summary judgment of invalidity for both types of claims for patent-ineligibility, and the Federal Circuit affirmed, in an opinion by Judge Reyna” (the one who patent maximalists like to mock). To quote:

This recognition significantly reduces the precedential effect of the BRCA1 decision and provides, perhaps, a way for a future panel to distinguish claims to primers from this precedent. Judge O’Malley reminds her colleagues and us that the BRCA1 decision did not rule on the patent eligibility of PCR primer claims and does not compel the result the Court announced here.

Judge O’Malley’s concurrence also notes that this case, unlike the BRCA1 case, contains unresolved questions of material fact that, while disregarded by the Court may provide another basis for distinguishing the BRCA1 decision. Citing the distinctions drawn by the Supreme Court in Myriad between genomic DNA and cDNA, Judge O’Malley opines that while the BRCA1 opinion sets forth the basis for finding the PCR primer claims to be patent ineligible, “it is not clear from the BRCA1 opinion or record why we reached this conclusion. The lack of record evidence underlying BRCA1′s conclusion on this point is important in light of the record in this case.” She then goes on to recite the factual distinctions argued by Roche regarding the differences between the claimed primers and the sequences as they occur in nature (including the differences in strandedness, complementarity (“a primer comprising a nucleotide sequence of ATCG is complementary to, but unquestionably different from, a natural DNA strand comprising a sequence of TAGC”), the presence of a 3′ hydroxyl group, the linearity of the primers versus the circular nature of bacterial DNA, and that natural “primers” comprise RNA and not DNA). All these facts were adduced from expert testimony and thus for Judge O’Malley raise “genuine issue of material fact” that are not appropriate for summary judgment. Judge O’Malley also notes that the claimed primers here have a markedly different function, unlike the genomic DNA in Myriad, due to the presence of the 3′ hydroxyl group which permits PCR amplification to occur. Judge O’Malley apprehends that the patentee in this case raised factual issues not addressed in the Court’s BRCA1 decision, and thus, “unlike the appellants in Myriad and in BRCA1, here, Roche submitted evidence of record that, at the very least, raises genuine issues of material fact as to whether there exists anything in nature that both has the structure and performs the function of the claimed primers.” Accordingly, she believes not only that the BRCA1 decision does not compel the Court’s conclusion here, but that the question should be taken up en banc to clarify the law regarding the patent eligibility of oligonucleotide primers and perhaps methods of using such primers to amplify targeted portions of DNA.

While this concurring opinion is a welcome ray of sunshine on a cloudy day, the practical effects of this, like so many Federal Circuit decisions on eligibility, is to incentive non-disclosure of inventions such as these, with the concomitant injury to progress that trade secret protection of diagnostic methods is almost certain to create. It should be self-evident that this outcome is contrary to the Constitutional mandate underlying the patent system, but it appears the current constitution of the Court is unconcerned with this outcome. Perhaps Chief Judge Woods of the Seventh Circuit was right after all.

What we have here isn’t an example of software patents and what’s noteworthy about it is that it demonstrates patent quality issues beyond the domain of software. The USPTO needs to think carefully how to better align with courts’ decisions rather than expect courts to bend in favour of Iancu’s “business model” — incidentally the subject of our next post.

Let’s Hope Apple Defeats All the Abstract Patents That Are Leveraged Against It

Posted in America, Apple, Courtroom, Patents at 7:56 am by Dr. Roy Schestowitz

Software patents disguised as “network provisioning” now?

Apple

Summary: Apple can be viewed as a strategic ‘ally’ against patents that threaten Android/Linux if one ignores all the patent battles the company started (and has since then settled) against Android OEMs

THE USPTO still grants patents far too easily, only for courts to repeatedly correct it by invalidating granted patents. Sometimes there’s a lot of money at stake, like Apple’s $234 million patent dispute with a university.

Last weekend we wrote about Apple‘s success in appealing the case [1, 2] for the Federal Circuit to deal with rather than the district court, which tends to be more lenient in terms of patent quality, much like the USPTO even in the post-Alice era. As one writer put it a fortnight ago:

A federal appeals court has ruled in Apple’s favor in a patent dispute with the University of Wisconsin-Madison. The court ruling, initially spotted by Reuters, said that that Apple didn’t infringe on one of the university’s patents, overturning a prior ruling in the university’s favor that had fined Apple $234 million. Another $272 million was later added to that fine to account for Apple’s continued use of the patent, but that will presumably be thrown out now that the underlying judgment has been reversed.

We expect this case to be “DOA”, but at what cost (legal bills)? Meanwhile, the patent troll Uniloc strikes again, still focused on the same target, Apple, after Microsoft paid Uniloc. As a pro-Apple site put it last week, this is a new case:

Apple is again in the crosshairs of Uniloc, with the patent aggregator alleging the process by which iPhone and cellular-connected iPad and Apple Watch models infringes on owned intellectual property.

[...]

The ’616 patent changed hands to Uniloc’s main Luxembourg arm in 2017 and was duly assigned to Uniloc 2017 LLC in May of this year.

Uniloc alleges all iPhone models from iPhone 5 through iPhone XS Max and cellular connected iPads including fourth- and fifth-generation iPad models, all iPad mini versions, iPad Pro, first- and second-generation iPad Air models and Apple Watch Series 1 through 3 infringe on multiple patent claims.

Uniloc seeks unspecified damages, reimbursement of legal fees and other relief deemed fit by the court.

It would be a stretch to call Uniloc a Microsoft proxy because the two entities had lengthy and expensive court battles. The real danger here is that this troll, ‘fattened’ by Microsoft cash, may soon go after Android/Linux players. Unless Apple manages to squash the underlying patents and drive Uniloc to bankruptcy (out of funds). Uniloc isn’t a real company and there’s a reason why it operates through Luxembourg.

10.09.18

The USPTO’s Principal Issue is Abstract Patents (or Patent Scope), Not Prior Art Searches

Posted in America, Courtroom, Google, Patents at 6:21 am by Dr. Roy Schestowitz

Obviousness (§ 103), prior art (§ 102) and scope (§ 101) not the same issue

Some coloured papers

Summary: In spite of the fact that US courts prolifically reject patents for being abstract (citing 35 U.S.C. § 101) Cisco, Google, MIT, and the USPTO go chasing better search facilities, addressing the lesser if not the wrong problem

THE conundrum associated with prior art is an old one. How can one search and identify similar past work? By what terms? By which means? Literature? Internet? What if the terms used aren’t the same? This is why examiners tend to be domain experts. Many are doctors and professors. The U.S. Patent and Trademark Office (USPTO) can attract quite a few of them, including the wife of the previous patent ‘chief’ at Patent Progress.

“Google is a private firm and it is itself a prolific patent applicant. That’s a potential conflict.”The principal issue at the USPTO isn’t prior art, however, but patent scope, judging by the number of US patents being ejected by the courts based on that criterion, e.g. 35 U.S.C. § 101. It’s a bit disappointing to see Google getting involved at patent offices in various capacities like searches, translations etc. Google is a private firm and it is itself a prolific patent applicant. That’s a potential conflict.

This morning we spotted Susan Miller’s article from yesterday (titled “Patent Office gets search help from tech industry heavyweights“). CCIA represents “tech” but a lot of “big tech” so the interests of small firms isn’t always in the mix. This is why the CCIA’s (or Patent Progress‘) Josh Landau was reasonably OK with this wrong 'solution' in yesterday’s post (titled “Cisco, Google, MIT, and USPTO Team Up To Create Prior Art Archive“) which said:

One of the biggest problems in patent examination is actually finding prior art. When it comes to patents and patent applications, that’s relatively easy—examiners have access to databases of all patents and applications, and they’re well-trained in searching those databases. But when it comes to non-patent prior art—product manuals, journal articles, standards proposals, and other such technical documents—that prior art is harder to find. Examiners are correspondingly less likely to cite to non-patent prior art.

Cisco and MIT, with some help from Google and the USPTO, are trying to help solve that problem. Their solution? The Prior Art Archive, a publicly accessible archive created with contributions from technical experts and industry stakeholders, designed to preserve and make searchable exactly the kind of non-patent prior art that’s currently hard to locate.

This is, as we’ve already explained over the weekend, the wrong ‘solution’ tacking the wrong ‘problem’. What we really need to explore is how to compel the USPTO to stop granting software patents that courts and sometimes inter partes reviews (IPRs) would invalidate anyway. How can examiners be made to realise that abstract patents are a thing of the past? The choice of the new Director isn’t helpful. He gives the examiners guidelines that limit their ability to reject abstract patents.

“The choice of the new Director isn’t helpful. He gives the examiners guidelines that limit their ability to reject abstract patents.”“Abstractness is not the malleable concept the Supreme Court thinks,” Peter Kramer wrote yesterday in Watchtroll. Still that sort of court- or SCOTUS-bashing in Watchtroll? These patent maximalists would also literally patent mathematical equations and paintings if they could…

There’s no point bashing judges and Justices; it would only further alienate them. SCOTUS is fine with a decision against patent maximalism, based on yesterday’s post from Patent Docs. It refuses to assess and decide on Regeneron Pharmaceuticals v Merus:

Last week, the Supreme Court denied certiorari to Regeneron Pharmaceuticals in its appeal of the Federal Circuit’s decision in Regeneron Pharmaceuticals v. Merus that affirmed the District Court’s decision that the claims of Regeneron’s patent-in-suit were unenforceable due to inequitable conduct in the patent’s procurement. In so doing the Court passed up the opportunity to consider whether the split panel’s decision was consistent with the Federal Circuit’s own inequitable conduct jurisprudence, most recently handed down en banc in Therasense, Inc. v. Becton, Dickinson and Co., 649 F.3d 1276 (Fed. Cir. 2011) (en banc). The Court also deigned not to consider for the first time in over 70 years a doctrine stemming directly from a trio of its own decisions (specifically, Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 250-51 (1944); Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945); and Keystone Driller Co. v. General Excavator Co., 290 U.S. 240 (1933)). Under the circumstances it is prudent for patent practitioners (prosecutors as well as litigators) to consider the lessons of the Federal Circuit’s Regeneron decision.

We have meanwhile learned that the Patent Trial and Appeal Board’s (PTAB) inter partes reviews (IPRs) filed by Comcast have helped Comcast “Get Two More TiVo Patents Invalidated,” to quote this headline from a new article that says:

The U.S. Patent Trial and Appeal Board has once again sided with Comcast in its intellectual property battle with TiVo, invalidating two more of the latter’s patents.

The patents include No. 9,172,987, “Methods and Systems for Updating Functionality of a Set-top Box Using Markup Language”; and No. 8,713,595, “Interactive Program Guide Systems and Processes.” (No. 9,172,987 was ruled invalid on Sept. 7, while No. 8,713,595 was invalidated in an earlier Aug. 27 ruling.)

35 U.S.C. § 101 makes patents like these “fake” (enshrined as patents but not deserving this status). Fake patents or abstract patents surface in press releases all the time (examples from yesterday [1, 2] courtesy of OneTrust) and crushing them one by one would be expensive, not just time-consuming. It would be better if such patents never got granted in the first place.

“It would be better if such patents never got granted in the first place.”In the following new example, the Federal Circuit “found that the claims are directed to the abstract idea of “locating and sending product information in response to a request”,” based on yesterday’s article from Patently-O (reaching the Court of Appeals for the Federal Circuit (CAFC) with a patent case is extremely expensive). To quote:

The Federal Circuit has issued its R.36 Affirmance Without Opinion in the eligibility dispute: Product Association Tech. v. Clique Media Group (Fed. Cir. 2018). In the case, C.D. Cal Judge Wu dismissed the case on the pleadings under R.12(b)(6) — finding that the claims of U.S. Patent 6,154,738 invalid as a matter of law on subject matter eligibility grounds. In particular, the court found that the claims are directed to the abstract idea of “locating and sending product information in response to a request” and fail to include anything beyond the excluded idea sufficient to transform the claims into a patent-eligible invention. I’ll note here that I believe the invention is the brain child of retired patent attorney Charles Call, and is part of a family of five patents.

Another new example from CAFC involved the typical Newman dissent and the following final decision, citing obviousness rather than prior art:

In a split decision, the Federal Circuit affirmed the district court’s holding that the ZUP Board patent claims were invalid as obvious under § 103(a) because a person of ordinary skill in the art would have had a motivation to combine the prior art references in the method it claimed and further held that the district court properly evaluated ZUP’s evidence of secondary considerations. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) and Graham v. John Deere Co., 383 U.S. 1 (1966).

The Federal Circuit agreed with the district court’s conclusion that the ZUP Board patent merely identified known elements from prior patents (food bindings, handles etc.) and combined them. Further, the Federal Circuit agreed with the district court that ZUP’s purpose in so combining (helping riders maneuver between positions by focusing on rider stability) had been a longstanding goal of the prior patents – a goal predictably shared by many inventors in the industry. The Federal Circuit further concluded that because ZUP presented only minimal evidence of secondary considerations, ZUP did not “overcome” the strong showing of obviousness established by application of the other three Graham factors to the facts of the case. Chief Judge Prost authored the majority opinion that was joined by Judge Lourie.

As we said at the start, prior art seems like less urgent a matter and Google might give a false sense of prior art not existing. In our humble view, Google would be wiser to help examiners identify abstract patents and cut off the applicants as soon as possible. It would actually be a favour to applicants because nobody wants to brandish a patent (and potentially spend a lot of money on litigation) only to discover this patent is fake and rejected by courts at all levels.

10.08.18

In Spite of Campaigns Against It, the Patent Trial and Appeal Board (PTAB) Squashes Software Patents by the Hundreds Per Month, Patent Maximalists Still Try to Stop It

Posted in America, Courtroom, Law, Patents at 12:36 am by Dr. Roy Schestowitz

A reject bin

Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) achieve exactly what they were set out to do; those who view patent quality as a foe, however, aren’t happy and they still try to undermine PTAB IPRs by any means possible (or at least slow them down considerably)

PTAB IPRs have greatly contributed to much-needed decline/demise of patent litigation in the US. The USPTO can grant all the patents it wants, but without legal certainty (associated with such newly-granted patents) there will be no lawsuits.

PTAB does not invalidate every patent it’s petitioned to look into. Days ago there was a press release [1, 2] about an IPR from famed maker of ‘torture devices’, Axon (better — or worse — known as “TASER”). To quote:

In this latest instance, Axon asked the Patent Office to invalidate Digital’s U.S. Patent No. 9,712,730 (“the ‘730 Patent”), which is not currently involved in any active litigation. Axon targeted the ‘730 Patent for unknown reasons. On October 1, 2018, the Patent Office rejected Axon’s latest challenge finding that “[u]pon consideration of [Axon’s] Petition and [Digital’s] Preliminary Response, we conclude that the information presented in the Petition does not demonstrate that it is more likely than not at least one of the challenged claims is unpatentable. Accordingly, we do not institute a post-grant review.”

To date, Axon has filed an ex parte reexamination challenge, four different inter partes review (IPR) challenges, and one post-grant review challenge against various Digital Ally law enforcement patents. None were successful.

So PTAB isn’t quite the “death squad” patent extremists have called it. As IAM put it some days ago: [via]

Further data has emerged showing that the Patent Trial and Appeal Board (PTAB) is far from the “death squad” that many in the US life sciences industries fear that it may be becoming.

A recent study by Harvard University’s Jonathan J Darrow and Aaron Kesselheim, and the University of Calgary’s Reed F. Beall – The Generic Drug Industry Embraces a Faster, Cheaper Pathway for Challenging Patents – analyses data on inter partes review proceedings since their inception, as well as information from the FDA’s Orange Book about the drugs whose patents have been the subject to administrative challenges.

Taking note of the Hatch-Waxman process (yes, Orrin Hatch), the CCIA’s Josh Landau wrote the following:

The first study was conducted by a pair of Harvard Medical School professors, as well as a professor at the University of Calgary. The Harvard study examined all pharmaceutical IPRs through April 2017.

The second study, by a recent Northwestern J.D., extended its dataset to all pharmaceutical IPRs over a 6 year period from March 2012 to March 2018.

Both drew similar conclusions regarding the success rate of pharmaceutical IPRs. Pharmaceutical IPRs are relatively rare, around 5% of all IPRs, and similarly to non-pharmaceutical patents, pharmaceutical IPRs usually relate to patents that are also being litigated in district court.

Looking beyond their frequency, pharmaceutical IPRs are quite different from the average IPR. While pharmaceutical IPRs are instituted at roughly similar rates to other IPRs, they are significantly less likely to find some or all claims invalid if they are instituted. Of the 134 distinct drugs (covered by 198 distinct patents) challenged in the Harvard study, only 44 drugs received at least one final written decision. And of those 44 drugs, only 18 (13%) had all of their claims invalidated—and even then, all but 2 of those drugs still had other patents protecting the drug.

[...]

Given that pharmaceutical IPRs are rare and generally less successful than other IPRs, the notion that the IPR system represents a serious threat to the Hatch-Waxman balance between new and generic drugs does not appear to be correct.

Instead, the IPR system appears to be mostly used to trim back the scope of follow-on patents that attempt to extend the original drug monopoly in order to make sure generics can enter once that original patent expires. This would appear to be completely consistent with the goals of Hatch-Waxman—ensuring that the original innovation is protected, but allowing for generics to efficiently provide that innovation after the original period of protection ends.

Given these recent studies, as well as others (such as the PTO’s Orange Book study), it does not appear to be necessary to modify the IPR process to accommodate the Hatch-Waxman process.

So, taking Hatch-Waxman (a process) into account, IPRs aren’t a reason for panic. Far from it. Even Watchtroll wrote about it. An article by Tulip Mahaseth was outlined by: “Out of the 230 Orange Book patents challenged in IPR proceedings, 90.4% (208) of these patents were also challenged in Hatch-Waxman litigation…”

We’re supposed to think, based on patent extremists, that PTAB just blindly squashes patents, but that’s far from true. It’s just that weak/weaker/weakest patents are being subjected to IPRs/challenges. That includes a lot of software patents.

“Number of abstract idea rejections decided at PTAB for August 2018 higher than ever,” Anticipat acknowledged some days ago, but this anti-PTAB site then looks for some spin on these facts. Just because software patents are being crushed in the US, partly owing to PTAB, doesn’t mean PTAB fails to do its job. Anticipat is then boosting talking points from Iancu's notorious speech, which was targeted at patent extremists (IPO). The bottom line is this however: “The PTAB decided 209 abstract idea rejections.” (in August alone)

Janal Kalis, a PTAB-hostile patent attorney (apparently retired), took note of the exception when he wrote: “The PTAB Reversed an Examiner’s 101 Rejection of Claims in an Oracle Patent Application: https://anticipat.com/pdf/2018-09-14_13315665_181761.pdf …”

Those are rare. PTAB usually agrees with examiners on rejections or disagrees with them on intent to grant.

“Capella Photonics Challenges Federal Circuit Practice of Judgments Without Opinions,” Watchtroll said last week. Well, PTAB slowdown by this method or in this fashion is an old trick. Rob Sterne, Jason D. Eisenberg, William H. Milliken and Tyler J. Dutton said: “The underlying Federal Circuit appeal arose from multiple Inter Partes Reviews of two Capella patents on fiber-optic communications systems.”

This slowdown was attempted by Dennis Crouch last year and the year before that. We occasionally mention that. He too resumes with this tactic, having published the following a few days ago:

LG v. Iancu, stems from an obviousness determination by the PTAB in its IPR of LG’s U.S. Patent No. 7,664,971. On appeal, LG argued that the PTAB had failed to explain its decision as required by the Administrative Procedures Act. In a silent commentary on the current state of patent law, the Federal Circuit has affirmed the PTAB decision without issuing any opinion or explanation for judgment.

The ’971 patent claims both an apparatus and method for controlling power to the cores of a multi-core processor. In its decision, the board gave an explanation for rejecting claim 1 (the apparatus), but not for the method claim 9.

Like the SAS (versus Iancu) case in SCOTUS, the goal is to complicate the rejection process and thus slow it down. The truth of the matter is, it takes a lot of time to prepare written rejections (or acceptance of challenges). They just need to be practical. Lawyers get to bill (charge) more when the process is further complicated, so it’s not hard to see their motivation as well. Yesterday they advertised this:

LexisNexis will be offering a CLE event on “How to Analyze Federal Circuit Opinions on Patent Law” on October 24, 2018 from 3:30 to 4:30 pm (ET) at The National Press Club in Washington, DC. Donald Chisum, the author of Chisum on Patents, will discuss how to analyze the opinions of the Court of Appeals for the Federal Circuit to assess their impact on patent law and practice, and will illustrate how to “deconstruct” sometimes opaque opinions using recent cases from 2018 as examples.

Even just to analyse written decisions they’d charge their clients. So decisions without opinion/text is to them (law firms) a threat. They’re trying to defang PTAB by all means possible, even still latching onto the RPX case that by extension impacts Unified Patents. “RPX (CVSG mentioned above) is the only case from the initial September conference that was not denied on the first round,” wrote Crouch the other day. Well, sadly for him, the Supreme Court won’t change patent scope any time soon and it probably won’t look into PTAB matters, either, having already decided on Oil States and SAS this past summer. Based on the list of upcoming patent cases, Section 101 is safe. Also mind the fact that PTAB too is safe, bar Smartflash LLC v Samsung Electronics America (although it doesn’t put IPRs themselves at risk/peril).

Crouch, still desperate to change things, brings up Berkheimer v HP (not much has changed since the case was decided at the Federal Circuit except Iancu’s empty rhetoric that lacks implications/ramifications for actual courts). Crouch’s promotion for briefs and public support (magnifying the impact of the case, irrespective of the outcome) is quite revealing, bearing his motivations in mind. Dennis Crouch is still trying to water down Section 101 so as to promote software patents for his beloved trolls and bullies:

Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018) is in my list of top-ten patent cases for 2018. In the decision, Judge Moore vacated a lower court summary judgment ruling on eligibility — holding that a “genuine issue of material fact” as to whether the claims are directed toward a transformative inventive concept rather than merely a “well-understood, routine, and conventional” application of an abstract idea. Thus, the decision gave some amount of respect to the traditional procedures associated with providing facts. Practically, this means that is should be more difficult to challenge patent eligibility on the pleadings or on summary judgment. Likewise, it means that examiners must do a bit more work to ‘prove’ the lack of eligibility.

Charles R. Macedo, Brian Comack, Christopher Lisiewski and James Howard (Watchtroll) have meanwhile complained about PTAB again; it’s about limiting IPR ‘access’ or ‘scope’ or “Appeal by a Non-defendant Petitioner in an IPR” (related to the RPX case above). To quote:

On Tuesday, September 18, 2018, Askeladden L.L.C. (“Askeladden”) filed an amicus brief supporting Appellant’s Petition for Rehearing and Rehearing En Banc in JTEKT Corp. v. GKN Automotive Ltd., No. 2017-1828 (Fed. Cir. 2018). See Patent Quality Initiative’s website for the full brief. This case raises the important question of whether the Court of Appeals for the Federal Circuit (“Federal Circuit”) can refuse to hear an appeal by a non-defendant petitioner from an adverse final written decision in an inter partes review (“IPR”) proceeding, on the basis of a lack of a patent-inflicted injury-in-fact, when Congress has statutorily created the right for “dissatisfied” parties to appeal to the Federal Circuit.

So to summarise, PTAB squashes software patents without negatively impacting other domains (contrary to mythology). Attempts to slow PTAB down include demonisation to that effect, claims that IPRs cannot be brought forth by the most prolific petitioners, attempts to force every decision to be accompanied with lots of texts and exhaustive check of all claims. And if that’s not enough, the challenges against Section 101 itself have not stopped. Those who profit from patent litigation are scrambling to secure software patents.

09.30.18

The Demise of the Eastern District of Texas as Litigation Venue of Value

Posted in America, Courtroom, Patents at 9:34 am by Dr. Roy Schestowitz

Last year: US Patent Trolls Are Leaving and the Eastern District of Texas Sees Patent Cases Falling by More Than Half

Texan cow
It has been getting a lot harder for patent trolls to ‘milk’ Texas after TC Heartland

Summary: Texas and in particular the Eastern District of Texas are no longer attractive to patent trolls and even if these patent trolls file lawsuits in the Eastern District of Texas the higher courts divert them to other, more suitable and less biased courts (less software patents- and trolls-friendly)

THE previous post alluded to TC Heartland — a SCOTUS decision from last summer. It has since then redirected many patent cases (over USPTO-granted patents) away from trolls-friendly litigation venues.

Over the past week we saw some interesting news from or about Texas. This article from a trolls-infested town in Texas, for example, makes it sound as though the USPTO has just fed another bogus software patent to a highly oppressive company that aids vigilantes. They use some trademarked buzzwords to justify this.

Days prior a blog post by Charles Bieneman spoke of a 35 U.S.C § 101 case in Texas. In the United States nowadays software patents are still, in general, dropping like flies (in courts at least, as software patents are quite worthless there). What’s noteworthy about it is the outcome:

Claims directed to “software fault recovery” are patent-ineligible under 35 U.S.C § 101, said the court in Atticus Research Corp. v. MMSoft Design Ltd., No. 4:17-CV-3387 (S.D. Texas Sept. 6, 2018), granting a Rule 12(b)(6) motion to dismiss allegations that claims of U.S. Patent No. 6,567,937 were infringed. The court agreed with the defendant that the claims were directed to the unpatentable abstract idea, under the Alice/Mayo test, of taking a corrective default action if a remote user does not specify otherwise within a period of time.

So even courts in Texas are recognising Alice (sometimes). Bieneman also wrote about the Eastern District of Texas (more notorious than others in the state because it is infamously biased in favour of software patents). Here’s what happened there 12 days ago:

Patent claims directed to counting steps in an exercise session, including accounting for an incline of a surface on which a user is stepping, have survived a Rule 12(b)(6) motion to dismiss. Uniloc USA Inc. v. Samsung Electronics America, Inc., Civil Action No. 2:17-CV-00651-JRG (E.D. Texas Sept. 18, 2018). Applying the familiar Alice/Mayo abstract idea test, Judge Gilstrap, “drawing all reasonable inferences in favor of” the patent owner, found that claim 1 of US Patent No. 7,690,556is “directed towards the unconventional use of accelerometers in a step counter in order to measure the incline traveled by the user,” and that “such use is not directed to an abstract concept under AliceStep One.”

So let’s see what the Federal Circuit says about these patent claims (if they dare or if there’s an appeal). Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) typically crush these patents, either before or during cases in district courts.

Matthew Bultman has meanwhile reported that “[t]he Federal Circuit on Tuesday ruled a patent lawsuit against HP Inc. over its Chromebook laptops should be moved from the Eastern District of Texas, finding California was the more convenient…”

In re HP (nonprecedential order) was also mentioned here. It has been getting harder for patent trolls to drag the accused to the Eastern District of Texas where judges boast/brag about being trolls-friendly. The source of this coverage is a patent maximalist, just like the district court. To quote:

The Federal Circuit has granted HP’s petition for writ of mandamus – ordering the E.D. Tex. Judge Schroeder transfer Cypress Lake Software, Inc. v. HP Inc. to N.D. California — HP’s home district.

Venue must be “proper.” 28 U.S.C. 1400(b). But, even when proper, a district court may order a case transferred to another venue for convenience. Although the law follows the traditional doctrine of forum non-conveniens, it has been codified at 28 U.S.C. 1404(a).

So all in all what we see here is a migration out of Texas, widely supported not just by SCOTUS but also the Federal Circuit below it.

09.18.18

Qualcomm’s Escalating Patent Wars Have Already Caused Massive Buybacks (Loss of Reserves) and Loss of Massive Clients

Posted in Apple, Courtroom, Patents at 3:57 am by Dr. Roy Schestowitz

Yesterday: Qualcomm’s Patent Aggression Threatens Rationality of Patent Scope in Europe and Elsewhere

Qualcomm loses Apple’s business and drops NXP deal. What’s next?
Reference: Qualcomm loses Apple’s business and drops NXP deal. What’s next?

Summary: Qualcomm’s multi-continental patent battles are an effort to ‘shock and awe’ everyone into its protection racket; but the unintended effect seems to be a move further and further away from ‘Qualcomm territories’

ARMED with patents, including software patents from the EPO and USPTO, Qualcomm embarked on a misguided crusade which was bound to drive away clients and reduce interest in its patent pool. A few hours ago it was noted that “Apple Moves Away From Qualcomm” (even further than before) and according to Florian Müller, who followed the respective cases closely, there’s a new lawsuit in Germany, based on a European Patent:

With a view to a Qualcomm v. Apple patent infringement trial in Munich on Thursday I contacted the Munich I Regional Court to check on the time. As for the biggest issue in that case, may I refer you to my recent post on how thin air can “practice” claim limitations unless the name of the game is the claim.

On the same occasion, I inquired about any Qualcomm v. Apple first hearings that might come up in the near term. Unlike other German courts, the Munich court holds a first hearing, not as formally focused on claim construction as a U.S. Markman hearing, prior to patent trials. A spokeswoman for the court kindly informed me that a first hearing in two parallel cases, targeting different Apple entities, has been scheduled for March 28, 2019.

The patent-in-suit in both cases is EP1988602 on a “mobile terminal with a monopole[-]like antenna.”

Knowing the usual Munich timelines, it appears that the new complaints have only been filed recently. I guess just before the main summer vacation season here, or at least not long before.

“These sorts of multi-continental patent battles aren’t particularly new, but they serve to highlight the sort of thing that the EPO in Germany probably looks to facilitate, even if that would mean a lot more patent trolls, attacks on generics and so on.”In a later post Müller wrote that ITC “staff raises public-interest concerns over ban of Intel-powered iPhones sought by Qualcomm” and “staff says none of the 3 remaining patents-in-suit (from Qualcomm’s 2nd ITC complaint against Apple) is infringed. Apple [is] on [a] winning track.”

“CCIA raised these concerns in our public interest filings,” Josh from the CCIA said, so “I’m glad the ITC staff sees the same issues with exclusion in this case. (Not to mention infringement.)”

Quoting Müller, who was busy writing more than usual yesterday:

This morning, opening statements were delivered at the start of the evidentiary hearing in the investigation of Qualcomm’s second ITC complaint (request for U.S. import ban). The complaint was filed last December. An earlier complaint by Qualcomm against Apple is at a more advanced procedural stage: a final initial determination (a preliminary ruling by an Administrative Law Judge, which is however subject to Commission review) was originally due last Friday, but after the ALJ originally in charge retired, Chief ALJ Bullock took over and extended the deadline by two weeks. In that earlier case, the Office of Unfair Import Investigations (OUII, commonly referred to as “the ITC staff”) recommended an infringement finding with respect to one patent. Staff recommendations are not binding on ALJs, and even ALJs don’t make the final decision: the Commission itself does. But what the staff says is often adopted.

We have been critical of ALJs who ignored rulings from the Patent Trial and Appeal Board (PTAB). The Federal Circuit later dealt with the inter partes review (IPR) in question. The matter of fact is, Qualcomm is trying to increase pressure and improve its chances of “winning” by filing actions in several courts and in several continents — not so unusual a trick. Apple did that the Samsung and Huawei too is trying it against Samsung right now. But as Müller pointed out, the judge in the US is well aware that Chinese patent law is different and in some sense harsher than American law. Müller compares this to the case of Microsoft v Motorola — one which we covered at the time. To quote:

With respect to China, let’s face one thing: every U.S. judge knows that the rule of law, just like democracy, works differently in China. Huawei’s lawyers portray the Chinese proceedings at 100% fair and comprehensive. Samsung’s counsel obviously didn’t suggest that the proceedings were unfair, nor did Judge Orrick say so in his order. The Federal Circuit will be diplomatic, too. But that doesn’t mean that the appellate judges won’t have their private and unspoken opinion anyway.

The strategic issue here is the one I mentioned in the headline: coerced FRAND rate-setting arbitration. In order to distinguish Huawei v. Samsung from Microsoft v. Motorola (with Samsung being the new Microsoft and Huawei being the new Motorola), Huawei points out that Microsoft said it would accept a court-determined FRAND rate without insisting on adjucation of all the defenses that Samsung is pursuing (though Judge Robart actually did hold some Motorola patents invalid anyway). But beyond differences between Huawei and Microsoft regarding the preconditions for rate-settings (which I simply attribute to the fact that the standards at issue in Microsoft v. Motorola were not nearly as critical to Microsoft’s business as the ones in Huawei v. Samsung are to Samsung’s core business, thus Microsoft was prepared to pay for invalid and non-infringed patents and exclusively concerned about injunctive relief), Huawei must deny that it is an unwilling licensor (not in the sense of unwillingness to extend a license, but to do so on FRAND terms) engaging in hold-up and instead argue that Samsung is an unwilling licensee engaging in hold-out.

These sorts of multi-continental (or cross-continental) patent battles aren’t particularly new, but they serve to highlight the sort of thing that the EPO in Germany probably looks to facilitate, even if that would mean a lot more patent trolls, attacks on generics and so on.

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