EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

08.12.18

Keep Boston (and Massachusetts in General) From Becoming an Infestation Zone for Patent Litigation

Posted in America, Courtroom, Patents at 3:23 pm by Dr. Roy Schestowitz

“Although the District of Delaware saw the largest increases by number of cases in 2017, other districts including the District of Massachusetts, the Western and Southern Districts of Texas, and the Western District of Washington all saw significant increases in terms of percentage over 2016.” (Source: Lex Machina)

Boston at night

Summary: Boston, renowned for research and innovation, has become somewhat of a litigation hotbed; this jeopardises the state’s attractiveness (except perhaps to lawyers)

THE EPO seems eager to attract patent trolls, having clearly failed to heed warnings from the United States. China has made similar mistakes and belatedly realised that.

In the United States the District of Delaware is overtaking East Texas as the ‘capital’ of patent litigation and last week we took note of Massachusetts becoming increasingly attractive to it as well. We keep hearing of more and more cases from Massachusetts, Boston in particular.

“A lot of the research in question was funded by taxpayers; this begs the question, why were patents pursued in the first place and why are these being litigated over (through a sort of proxy, the “Trustees of Boston University”)? It’s unjust.”A few days ago Kluwer Patent Blog wrote about the High Court in the UK dealing with Boston Scientific Scimed, which deals with medical devices and is formally based in Marlborough, Massachusetts. Just shortly before that we saw Boston University mentioned in relation to a District Court and the Federal Circuit, especially in the case of Everlight Electronics (recently, as in last week, covered here in passing, taking note of Boston University's past with patents). Patent Docs wrote about it some days ago, speaking about the patent’s (granted by the USPTO) particulars:

The ’738 patent describes a method for producing GaN semiconductors using a form of epitaxy termed molecular beam epitaxy, which is “a two step process comprising a low temperature nucleation step and a high temperature growth step.” This produces a first buffer layer of amorphous GaN when heated in the second step to “crystallize the amorphous layer.” This permits monocrystalline GaN to be grown on the crystallized substrate layer.

The District Court construed the term “grown on” to mean “formed indirectly or directly above,” and construed the term “a non-single crystalline buffer layer” to mean “a layer of material that is not monocrystalline,” i.e., one that is polycrystalline, amorphous, or a mixture of amorphous and polycrystalline, and that is “located between the first substrate and the first growth layer.” The parties’ disagreement, and the Federal Circuit’s opinion, concerned construction of the term “grown on.”

A lot of the research in question was funded by taxpayers; this begs the question, why were patents pursued in the first place and why are these being litigated over (through a sort of proxy, the “Trustees of Boston University”)? It’s unjust.

As we have repeatedly noted here lately, East Texas with its appeal for trolls has become a deterrent against businesses operating there. A lot of true innovation has happened in Massachusetts for centuries; if the state becomes a hotspot for patent litigation, however, this advantage can be put at risk/peril. There’s plenty of research on that, including some from Boston itself (e.g. Professor Bessen).

08.09.18

Months After Oil States the Patent Maximalists Still Try to Undermine Inter Partes Reviews (“IPRs”), Refusing to Accept Patent Quality

Posted in America, Courtroom, Deception, Patents at 1:48 pm by Dr. Roy Schestowitz

They want SCOTUS to reassess an IPRs case just months after it assessed two such cases, dealing a major blow to opponents of patent quality

A depressed man

Summary: The patent maximalists in the United States, seeing that the USPTO is moving away from patent maximalism, is desperate for a turnaround; prominent patent maximalists take it all out on PTAB

Patent maximalism is hinged on the misguided belief (or lie) that the more patents are granted and the more companies get punished for simply minding their own business, the better off supposed ‘innovation’ will be (they actually allude to lawyers’/attorneys’ fees, not innovation).

New case of point? Johnstech International Corp. v JF Technology Berhad et al. They’re now pursuing a punishment for selling products which were made before an alleged patent infringement was ‘proven’ and before appeal (this is just a district court, which is the lowest court for such disputes). As Patent Navigator put it some hours ago:

Following a jury verdict of willful infringement, the court granted in part plaintiff’s motion for enhanced damages and increased the damage award by 25% because one-quarter of defendant’s sales at issue took place after the verdict.

Does this jury understand the subject matter? Was the patent already tested ‘back’ at the USPTO? Can it?

At Kluwer Patent Blog (proponent of UPC and EPO patent maximalism) Brian Slater promotes the patent maximalism agenda for the US. It was published earlier today. This is an agenda which involves trying to weaken if not thwart Patent Trial and Appeal Board (“PTAB”) inter partes reviews (“IPRs”) because they elevate the quality of granted (by the USPTO) and enforced (in courts) patents, e.g. using 35 U.S.C. § 101, only to be affirmed by the Federal Circuit if/when an appeal is allowed.

Alluding to Oil States, Slater wrote that the IPR process is “Here to Stay in Modified Form”. To quote:

In a previous post here, we described constitutional and procedural challenges to inter partes review (“IPR”) in the Oil States and SAS Institute cases taken up by the U.S. Supreme Court. We also posted here on Allergan’s attempt to avoid an IPR by assigning its challenged patents to an American Indian tribe that claims tribal sovereign immunity, an apparent insurance policy in case the Supreme Court upheld the constitutionality of IPR. In April, as widely-anticipated, the Supreme Court rejected the constitutional challenge to IPR in the Oil States case. However, Allergan’s insurance policy may never pay out – in late July, the Court of Appeals for the Federal Circuit rejected the applicability of tribal sovereign immunity to IPR. Thus, IPR is here to stay for the foreseeable future and the tribal sovereign immunity play looks to be on its last legs. There is, however, one crumb of comfort for critics of IPR – the Supreme Court’s SAS Institute decision, also in April, requires that the Patent Trial and Appeal Board (“PTAB”) decide the patentability of all patent claims challenged in an IPR once it is instituted. That decision overrules the prior PTAB practice of deciding the patentability of only the claims on which IPR was instituted – so called “partial institution”.

They keep trying to water down the rules and weaken the process, but thus far they haven’t been successful. Citing Oil States, patent maximalists such as Dennis Crouch are now looking for some ways to undermine IPRs and reduce quality of patents. Crouch looks at a new SCOTUS cert petition (request for the Supreme Court to weight in) in Advanced Audio Devices, LLC v HTC Corp.:

In Oil States, the patentee lost its broad challenge to the AIA Post Issuance trial system. However the majority opinion penned by Justice Thomas hinted that other collateral attacks on the system could find more success. Particularly, the court wrote that “our decision [finding that patents are public rights] should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause.”

[...]

The Advanced Audio petition adds the additional twist that its patents were filed pre-AIA.

That does not matter. PTAB has already dealt with many patents which predate AIA, not just PTAB itself. It even uses Section 101 to invalidate patents predating Alice. This happened plenty of times. Cert petitions like these present nothing new; SCOTUS will likely decline.

08.07.18

Supreme Court and Federal Circuit Precedents Might Make District Courts (Outside Texas) More Sceptical of Patents

Posted in America, Courtroom, Patents at 4:36 am by Dr. Roy Schestowitz

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

Some poker cards

Summary: As patent lawsuits scatter around the United States (not as concentrated around Texas anymore) there’s a real chance of turnaround in terms of outcomes; we look at some recent cases

IN our previous post about the Federal Circuit (CAFC) we said that it had come under attacks from patent maximalists — similar to attacks on the Patent Trial and Appeal Board (PTAB) and inter partes reviews (IPRs). Basically, everything which leads to higher patent quality is seen as “evil”. The USPTO certainly doesn’t mind granting as many patents as possible (the same is true for EPO management, which judges itself based on the wrong yardsticks as though it’s a factory).

“Litigation should always be the last resort and if the underlying patents are found to be invalid (or the lawsuit lacking merit), then it is frivolous. “What we didn’t notice before was the involvement of Chief Judge Sharon Prost in the aforementioned CAFC case, which was covered a week prior by Steve Brachmann. Boston University becomes precedence. To quote: “On Wednesday, July 25th, the Court of Appeals for the Federal Circuit issued a precedential opinion in Trustees of Boston University v. Everlight Electronics Co., reversing a lower court’s denial of a motion for judgment as a matter of law (JMOL) that challenged the validity of the asserted patent. The Federal Circuit panel of Chief Judge Sharon Prost and Circuit Judges Kimberly Moore and Jimmie Reyna found that the asserted claim targeted in the JMOL motion wasn’t enabled as a matter of law.”

Boston University has a tradition of patent aggression. What about Boston Scientific Corporation, which was brought up last week in relation to Nevro Corp. v Boston Scientific Corporation et al?

As Docket Navigator put it: “The court granted defendant’s motion for summary judgment that it did not infringe plaintiff’s chronic pain treatment patents because the post-trial use of the accused systems fell within the safe harbor provision of 35 U.S.C. § 271(e).”

There have been quite a few patent trolls and complaints about them in Massachusetts lately (Boston is in Massachusetts); a giant law firm focused on the District of Massachusetts some days ago, having chosen to push out its wrap-up into lawyers’ sites [1, 2].

Litigation should always be the last resort and if the underlying patents are found to be invalid (or the lawsuit lacking merit), then it is frivolous. Such is the danger of patent maximalism. Generally speaking, do they need patents on everything? How about this new article about a “US patent on 3D printing mashed potato” (still under examination)? To quote:

A team of Chinese researchers has recently applied for a US patent on 3D printing mashed potato. This application builds on an earlier Chinese patent for 3D printing mashed potatoes. The Jiangnan University team has a wide array of patients between them from the improvement of vegetable paper, to improve the flavor of mushroom paste, to unlocking systems for screen doors, backlight displays, and software testing systems. These three inventors Min Zhang Zhenbin Liu and Chaohui Yang have indeed been very busy one has nine patents for 2018 alone. The 3D printing potato patent goes on to reference a number of other patents that 3D print candy or face masks. Specifically, this patent notes that one adds pectin or xanthan gum to a mashed potato mixture and then you add chocolate.

Notice that China — being China (SIPO) — already granted such a ridiculous patent. A win for patent maximalism, that’s for sure.

Managing IP, a patent maximalism platform, is meanwhile amplifying patent trolls, speaking to the plaintiff in the Apple case (same for IBM) rather than the defendant. Because this is what this site stands for…

From the summary:

WiLAN got “every penny we asked for,” WiLAN counsel Mike McKool tells Managing IP, “because we were reasonable.” By estimating damages too low, Apple may have poisoned its case

A Southern District of California jury awarded Canadian IP licensing company WiLAN $145.1 million in damages for Apple’s infringement of two of its patents relating to voice-over LTE wireless communication technology on August 1.

The real danger here is that WiLAN, a patent troll, will use the money (if received) to pursue companies less wealthy and aggressive than Apple. Apple’s patent on virtual keyboards, as mentioned the other day (it’s still being promoted as recently as yesterday, e.g. in “Apple won’t make a touchscreen MacBook, but a virtual keyboard might be coming”), is likely a software/abstract patent.

Docket Navigator also covered Global Tubing LLC v Tenaris Coiled Tubes LLC et al last week. To quote the summary:

The court denied defendant’s motion to dismiss plaintiff’s declaratory judgment claim for lack of an actual case or controversy.

There are signs of litigation in the District of Kansas, but Texas isn’t dominant anymore. TC Heartland has changed a lot of things.

Suing in improper districts over patents, knowing that most courts would reject patents on software, isn’t unusual. Now in Nevada, for example, there’s this dispute (Voip-Pal.com, Inc. v Twitter, Inc.):

The court granted defendant’s motion to transfer for improper venue and rejected plaintiff’s argument that In re Cray’s three-part definition for “regular and established place of business” should not apply to web-based businesses.

And the ruling said (quoted by Docket Navigator): “These facts demonstrate that Defendant [Twitter] maintains no place of business in Nevada, much less one that is both regular and established.”

Over the weekend we showed how Google’s reliance on a third party with operations in Texas made it incapable of leaving Texas, in spite of TC Heartland.

Last but not least, Docket Navigator wrote about Bayer Healthcare Pharmaceuticals Inc. v Biogen Idec Inc.

The new ‘daddy’ of Monsanto (Bayer) is suing rivals, using patents of questionable validity, not too shockingly in the home state of Monsanto where many chemicals are being made, causing infamous pollution levels. “The court denied plaintiff’s motion for summary judgment,” it said, “that defendant was not entitled to lost profits damages for infringement of its interferon therapy patent on the ground that only defendant’s subsidiary sold treatments in the U.S.”

This case — like many others — isn’t about patent scope, but it’s worth noting that district court cases are all over the place, more so after TC Heartland. Will that make district courts statistically similar to CAFC? Time will tell…

The Court of Appeals for the Federal Circuit (CAFC) is Cleaning Up the United States’ Patent System

Posted in America, Courtroom, Patents at 3:27 am by Dr. Roy Schestowitz

Litigation isn’t the goal; innovation is.

Patent Lawyers' Tears

Summary: The highest patent court (bar the US Supreme Court, SCOTUS) is rejecting a lot of patents, not only software patents; this is long overdue and is bad news to patent lawyers (not to companies that actually create and sell things)

THE loudest patent maximalists out there keep smearing the Federal Circuit (CAFC) because it is no friend of patent maximalists (not anymore), emboldened by a series of SCOTUS decisions that helped form 35 U.S.C. § 101 at the U.S. Patent and Trademark Office (USPTO).

“It’s a sign of cutback on bad patents.”Further improving its work, as we recently said (citing the EFF), CAFC will increase transparency, showing what it uses to assess cases more quickly than before. Last night TechDirt wrote about it as follows:

A small but significant win for transparency has been obtained by the EFF. As we’re all well aware, the federal courts often seem to be at odds with the First Amendment they’re supposed to be upholding by allowing plaintiffs — especially the government — to seal filings, if not entire dockets, with alarming regularity.

Lots of these are tied to the government’s law enforcement work. But some of it has to do with disputes over intellectual property the public already has access to. Patent cases see an inordinate amount of document sealing, taking a lot of the “public” out of “public court system.” There’s a presumption of openness that’s supposed to apply across the board. The government gets around this by making claims about national security or law enforcement means/methods. But in patent cases — where the underlying patents are already accessible to the public via the USPTO’s website — the Patent Trial and Appeal Board’s (PTAB) frequently allows filings to be sealed.

This is very good.

We couldn’t help noticing that yesterday Watchtroll wrote about CAFC not once but twice; failing to find cases which suit patent maximalists, they only covered CAFC’s rejection of patents.

Joseph Robinson and Robert Schaffer wrote about this LED patent that we mentioned before:

Trs. of Bos. Univ. v. Everlight Elecs. Co., Nos. 2016-2576-2595, 2018 (Fed. Cir. July 25, 2018) (Before Prost, C.J., Moore, and Reyna, J.) (Opinion for the court, Prost, C.J.)

Trustees of Boston University (“BU”) sued Everlight Electronics Co., Ltd., and others (collectively, “Everlight”) for infringement of U.S. Patent No. 5,686,738 (the “738 Patent”). A jury found Everlight infringed the ‘738 Patent and failed to prove the patent was invalid. Everlight renewed its motion for judgment as a matter of law that the ‘738 Patent is invalid for lack of enablement under 35 U.S.C. § 112. The district court denied the motion.

They then wrote about another invalidation, with only Newman dissenting (as she often does). To quote:

ZUP, LLC v. Nash Mfg., No. 2017-1601, 2018 (Fed. Cir. July 25, 2018) (Before Prost, C.J., Newman, and Lourie, J.) (Opinion for the court, Prost, C.J.) (Dissenting opinion, Newman, J.)

ZUP and Nash are competitors in the water recreation device industry. ZUP sells the “ZUP Board,” which is covered by the patent-at-issue. The product is designed to assist riders who have difficulty transitioning out of the water into a standing position while being towed by a motorboat.

Prior to their dispute, ZUP and Nash discussed a potential joint manufacturing venture for the ZUP Board. Nash signed a confidentiality agreement. After negotiations fell through, Nash began selling the accused product.

Nash’s product is similar to the ZUP Board. However, the ZUP Board includes handles and foot bindings on the board. Nash’s product includes several holes on the top surface that allow a user to attach handles or foot bindings in various configurations. Further, Nash warns users against having handles attached to its board while standing.

All in all, Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) — the subject of many smears from patent maximalists — are very often supported (decisions reaffirmed) by CAFC. It’s a sign of cutback on bad patents. No wonder the number of granted US patents is declining, as do patent lawsuits. It’s about time.

08.02.18

Patent Trial and Appeal Board (PTAB) and Federal Circuit (CAFC) Both Smeared (Judge-Bashing Tactics) for Correctly Applying Patent Law as They See Fit

Posted in America, Courtroom, Europe, Patents at 7:47 am by Dr. Roy Schestowitz

It is getting a lot uglier as the patent microcosm resorts to anti-Establishment rhetoric and unauthorised protests

Michel

Summary: An atmosphere of great hostility towards courts and towards justice is being fostered by an increasingly-angry meta-industry of patent lawyers and patent trolls

THE EPO saga has been fascinating. It included many attacks on judges, attacks on justice itself, and incredibly enough even refusal to follow court orders. We almost never got anything wrong (that we know of). Rumours almost always became substantiated as truthful and we continue to receive new information all the time.

“It included many attacks on judges, attacks on justice itself, and incredibly enough even refusal to follow court orders.”Prior to the EPO focus we were covering a lot of news about patents. I am still waiting for patent lawyers to actually point out a factual inaccuracy in my writings about patents. They never point out any errors, they just don’t like my tone and resort to ad hominem libel, questioning my motivations etc. (e.g. falsely insinuating that I get paid to write what I write). It means they’ve got nothing but smears; they don’t like the message, so they attack the messenger instead.

The same is true outwards, not just inwards. They attack judges too. We’ve given many examples. Here goes again Mr. Gross:

More in a positive trend: another PTAB 101 reversal based on Examiner failure to comply with Berkheimer and show well understood, routine, conventional: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017004343-07-13-2018-1 …

What positive trend? None is demonstrable. Even Watchtroll now implicitly admits that all those who claim software patents are coming back (that includes Watchtroll itself!) are basically lying. Ironic, no? Burman York (Bud) Mathis III wrote this in Watchtroll yesterday: “It’s been over eight years since the Supreme Court issued its Bilski v Kappos decision, over six years since the Supreme Court issued its Mayo v. Prometheus decision and over four years since the Supreme Court issued its Alice Corp. v. CLS Bank decision. In case anyone missed it, each of these three landmark cases was decided based on evidence on the record.”

“Even Watchtroll now implicitly admits that all those who claim software patents are coming back (that includes Watchtroll itself!) are basically lying.”There’s “No Light at the End of the Tunnel,” Mathis said in his headline, “Not Even Close…”

Just ‘pulling a Berkheimer‘ isn’t going to change that. So here comes Watchtroll attacking Judge Reyna again. Not being racist this time, unlike Patently-O (who hurried to delete it)? We don’t want to entertain these words, but what they generally do is isolate and individually attacks judges they disagree with it. Watchtroll has a long tradition doing just that; the site is attacking judges. Stay classy! Then joins Mr. Gross with this:

That’s an outstanding summary of the mess that is patent law jurisprudence on 101 “abstract ideas” – he agrees with me that Taranto is worst inconsistent offender- Alsthom is … terrible https://twitter.com/patentbuddy/status/1024664765774233602 …

They’re referring to judges as “offenders” now. Amazing! They’ve moved on from harassing USPTO staff to harassing US patent courts.

“They’re referring to judges as “offenders” now.”We still see staff of the Patent Trial and Appeal Board (PTAB) coming under attack all the time from Watchtroll, Mr. Gross and other patent agents who became accustomed to profiting from low-quality patents. There are even anti-PTAB sites like Anticipat, which name examiners and sort of ‘score’ them as a form of harassment, by which they hope to compel them to change their examination standards. We never name patent examiners (USPTO or EPO) and instead focus on high-level management. A few days ago Anticipat wrote: “After speaking with the USPTO’s webmaster, we were assured that the decisions will be more quickly uploaded going forward. This did not entirely assuage our concerns. So in the meantime, we are updating our Recap email functionality so that a user can modify the email settings to be sent in whatever way is most helpful to one’s practice. Stay tuned for updates very soon.”

Well, that would only further facilitate Anticipat’s bizarre and likely unethical business model. We certainly hope USPTO management sees that more or less the same way.

In seaprate news, “Nantkwest v Iancu opinion states patent applicants that bring Section 145 challenges in district court are not compelled to pay USPTO attorneys’ fees,” wrote Managing IP‘s Michael Loney (about the Federal Circuit). Kevin E. Noonan and Josh Rich wrote about it shortly afterwards, as did Dennis Crouch here. It’s worth noting that Iancu has been off and away from the limelight for nearly two months now. When he’s mentioned it’s typically in relation to cases/decisions with his name on them. A few days ago Crouch wrote that “[f]ormer Acting PTO Director Joseph Matal [Michelle's Lee colleague, interim Director after Watchtroll attacked her] has moved into the role of Acting Solicitor of the agency as well as Acting Deputy General Counsel for Intellectual Property Law. Congratulations Joe! Former Solicitor Nathan Kelley has left the office that he joined originally back in 1993 as an examiner.”

“We still see staff of the Patent Trial and Appeal Board (PTAB) coming under attack all the time from Watchtroll, Mr. Gross and other patent agents who became accustomed to profiting from low-quality patents.”Dennis Crouch included some Battistelli marketing video, but we’ll forgive him for that as he never ever covers EPO matters and therefore he probably doesn’t know what a fiasco Battistelli was. He doesn’t seem to know that the building he refers to is still just a construction site disguised as a finished project.

Last but not least, Watchtroll is also attacking Lofgren again, as it did just weeks ago. Lofgren’s ‘crime’ is that she cares about science and technology — a serious offense by Watchtroll’s poor taste and standards. Steve Brachmann is upset now that people who favour technology write to Iancu about PTAB. Iancu is himself part of the patent microcosm; Steve Brachmann is just a writer hired by Watchtroll in a classified ad and here he goes again writing about politics. Watchtroll has become like some kind of think tank.

“He doesn’t seem to know that the building he refers to is still just a construction site disguised as a finished project.”Politicians may be corruptible (Watchtroll likes those who are corrupted the 'correct' way), but they’re no worse than a conspiracy of law firms trying to write the very laws which govern them. Many politicians complained about clear and blatant misuse of tribal immunity by a couple of law firms, whose sole goal was to make themselves and their clients exempt from patent law. Going back to the Federal Circuit, the decision that is likely final sided with these politicians (and with common sense). We haven’t yet seen judges being attacked for it, maybe because there has been no notable dissent among them. There’s no room for “divide and conquer”. “The Federal Circuit’s reasoning in finding that tribal sovereign immunity cannot be asserted in IPRs may be used to argue the same for state universities seeking immunity from the PTAB,” Ellie Mertens wrote about the patent scam of Allergan and Mohawk (very much belatedly). Mike Masnick also wrote about it late (end of July). To quote:

Some ethically sketchy patent lawyers thought they had come up with a brilliant scam to avoid having awful patents scrutinized by the special review board created by Congress within the Patent Office — a process known as “inter partes review” or IPR. This Patent and Trademark Appeals Board (PTAB) has been a useful tool in going back and reversing the mistakes made by patent examiners in letting through bad patents. However, back in September, we wrote about a fairly devious plan by the lawyers from the law firm of Shore Chan DePumpo to help their clients avoid a PTAB review. The situation began with a PTAB ruling back in early 2017 in a review of a patent held by the University of Florida. The University claimed sovereign immunity exempted it from the whole PTAB process under the 11th Amendment (universities claiming sovereign immunity in patent cases goes way back) and the PTAB agreed it had no jurisdiction.

Sensing an opportunity, the lawyers at Shore Chan DePumpo worked out a neat little scheme in which a pharmaceutical company would “sell” its patents to a Native American nation (in this case, the St. Regis Mohawk Tribe). The “sale” was in name only. The pharmaceutical companies retained not just an exclusive license to the patents, but basically all other rights as well. The only thing St. Regis got was a nice little income stream in exchange for having its sovereign status used to shield the pharma companies’ patents from scrutiny before the PTAB.

Oil States was a SCOTUS decision, so making IPRs go away would be pretty much impossible in the foreseeable future and they know it.”As we noted last month and the month before that, after Oil States we’ve been seeing the attacks shifting from PTAB to CAFC, whose judges are now routinely mocked by sites like Watchtroll. The almost daily (sometimes more than once a day) anti-PTAB pieces are long gone; Ryan Kenny writes for Watchtroll as though PTAB inter partes reviews (IPRs) are simply here to stay. Oil States was a SCOTUS decision, so making IPRs go away would be pretty much impossible in the foreseeable future and they know it.

We’ll keep our eyes open for the next attack on judges. That’s pretty serious stuff. It’s worse than the war on journalism/media. It’s an attack on justice, not only on truth.

07.29.18

Rebellion Against Patent Trial and Appeal Board (PTAB) Inter Partes Reviews (IPRs) Comes From Patent Extremists, Demonstrating PTAB’s Success

Posted in America, Courtroom, Patents at 2:17 pm by Dr. Roy Schestowitz

This past week’s PTAB roundup

Police at protest

Summary: Considering where the backlash against PTAB keeps coming from, PTAB should be overwhelmingly pleased and rest assured that scientists and technologists are on its side

THE BIG QUESTIONS regarding abstract/software patents were all answered a very long time ago (over 4 years) by SCOTUS. Well, software patents are in general not suitable for enforcement; those that had been granted could barely be enforced successfully after Alice. Few even bother trying anymore. It’s too risky and far too expensive in case of failure. It’s a dangerous gamble.

“…software patents are in general not suitable for enforcement; those that had been granted could barely be enforced successfully after Alice.”Banner & Witcoff’s Charles W. Shifley, i.e. the patent microcosm, has this interesting new article. USPTO officials, who didn’t care about patent quality, belatedly realise that the image of patents is nowadays being eroded and has become negative, so they try to create a “new narrative” rather than improve patent quality. To quote Shifley:

These days, the U.S. Patent and Trademark Office (PTO) has a new Director, and reflecting only on the recent “bad,” he calls for a “new narrative” about patents, one that emphasizes their benefit to society. 1 Is a new “new narrative” possible, at this time, and for the foreseeable future? One in which patents are good?

[...]

So back to the introduction. With a whipsawing through bad-to-good and good-tobad again, and with a new PTO Director calling for a “new narrative” about patents, is a new “new narrative” possible? Can there be a new “morning in America” for patents?

Of course, only time will tell. But consider what caused the earlier change from bad-to-good. First, bad led to the adoption of new law, the law that created the Federal Circuit, and the law it created of due care for patent rights. Fast-forward, in the period since the rise of patent enforcement entities, there has certainly been new law. The prime example is the America Invents Act (AIA), with its creation of inter partes reviews (IPRs), and similar postgrant proceedings, to reconsider issued patents. The AIA and IPRs passed a major test in recent months, surviving a constitutional challenge in the Oil States case.

If they worry so much about perception/image of patents being tarnished, then they need to ask themselves what critics are really saying; they usually don’t oppose patents as a concept but bemoan just how far patents have gone. Patent maximalism is the problem; there’s an analogous issue surrounding copyright law (many aspects of it, e.g. term lengths, Fair Use).

“Patent maximalism is the problem; there’s an analogous issue surrounding copyright law (many aspects of it, e.g. term lengths, Fair Use).”The America Invents Act (AIA) has actually been part of the solution; most critics of the old status quo are generally supportive of AIA and pertinent items like PTAB, IPRs etc. It’s not hard to see who opposes these; it’s almost always the patent maximalists; here’s one of them stating that: “So far in July, the PTAB has issued 20 decisions involving claim rejections based on 101/Alice ineligibility. Only 1 decision reversed the examiner.”

He also said that “[t]he PTAB quietly hit a milestone in June in reversing Alice Section 101 rejections,” linking to the latest from a PTAB bashing site called Anticipat (been quiet for a very long time).

They’re just ‘pulling a Berkheimer‘ again:

As we have pointed out in a previous post, for more than a year, reversal rates for abstract idea (Alice) rejections have been extremely low. We are finally seeing an uptick of reversals likely due to Berkheimer and other Federal Circuit case law and recent guidance by the USPTO. As we’ve previously predicted, this reversal rate should continue (and may even go up). But until leadership at the USPTO clarifies its policies, it remains to be seen by how much.

As we’ve previously reported, from August 2016 to April 2017, the PTAB had months where it reversed abstract ideas in the 20 and 30 percentage range. That is, if a month had 100 abstract idea decisions, the Board would reverse the examiner on 20 or 30 of those cases. But May 2017 saw a dismal change in appellant fortunes: the reversal rate for abstract idea rejections tanked. For this period of over a year ago, many months saw only single digit reversal rates. Indeed, no month during this time exceeded a 15% reversal rate. The period was bad for Alice appellants.

We responded to this last weekend in a couple of posts. Basically, Berkheimer has had no considerable impact, but patent maximalists are trying to entice customers by alleging that it has. It is no magic wand and no effective tricks have been pulled out of a hat. It’s almost pure fiction, but these people believe that if they keep saying Berkheimer people will nod (without even knowing the case). We call it ‘pulling a Berkheimer‘; sometimes the lawyers call it “Berkheimer Effect’ (capitalised even), similar to “Alicestorm” and other catchphrases they make up.

“We call it ‘pulling a Berkheimer‘; sometimes the lawyers call it “Berkheimer Effect’ (capitalised even), similar to “Alicestorm” and other catchphrases they make up.”Anyway, previous tricks for bypassing Section 101 have fallen on deaf ears in the courts. Some have even attempted to avoid the courts altogether, asserting that they’re basically immune from the law. PTAB didn’t fall for that trick and neither did judges above PTAB. Native American status does not imply corporations can piggyback that status and it's unlikely that SCOTUS would see it differently if it even bothers dealing with an appeal (which is also unlikely because the Federal Circuit was pretty firm and unambiguous). Here’s one more article we’ve missed, a report from Cyrus Farivar which a reader forwarded to us a few days ago. Let it sink in:

In a unanimous decision, an appellate court has resoundingly rejected the legal claim that sovereign immunity, as argued by a Native American tribe, can act as a shield for a patent review process.
On July 20, the United States Court of Appeals for the Federal Circuit found in a 3-0 decision that the inter partes review (IPR) process is closer to an “agency enforcement action”—like a complaint brought by the Federal Trade Commission or the Federal Communications Commission—than a regular lawsuit.

IPR is a process that allows anyone to challenge a patent’s validity at the United States Patent and Trademark Office—it was used famously in 2017 to reject the “podcasting patent.”

“This win is a victory in our ongoing efforts to stop patent abuses by brand companies and to help drive access to more affordable medicine,” Mylan CEO Heather Bresch said in a statement on July 20.

A Patent Trial and Appeal Board (PTAB) inter partes review (IPR) would be good for the customers too; lower prices, better access to medicine etc.

“An Patent Trial and Appeal Board (PTAB) inter partes review (IPR) would be good for the customers too; lower prices, better access to medicine etc.”Well done, PTAB.

“The PTAB recently clarified eligibility for a covered business method review (CBM),” wrote Jones Day’s Matthew W. Johnson a few days ago, shedding some light on business methods (although CBM is part of AIA and isn’t quite the same thing), which are intrinsically similar to software patents. To quote:

See Xerox Corp. v. Bytemark, Inc., No. CBM2018-00011 (P.T.A.B. July 12, 2018) (Paper 12). To establish standing for CBM review, a petitioner must show that the patent in question is a CBM patent. 37 C.F.R. § 42.304. CBM patents “claim[] a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service . . . .” Leahy-Smith America Invents Act (AIA), Pub. L. No. 112-29, § 18(d)(1), 125 Stat. 284, 329-31 (2011).

In Xerox Corp., the Petitioners requested CBM review of U.S. Patent No. 8,494,967 (’967 patent), which claims a system that allows human ticket-takers to verify already-purchased electronic tickets without having to use a barcode scanner. See No. CBM2018-00011, Paper 12 at 2, 4. Petitioners argued that the ’967 patent is a CBM patent because (1) the utilization and validation of a purchased ticket constitutes a “financial product or service,” and (2) the claimed activities “associated with” the purchased ticket are financial activities. Id. at 9. The Patent Owner responded that the ’967 patent is not a CBM patent because its claims only cover “post-sale” activity. Id.

These are almost definitely abstract patents; The Leahy-Smith America Invents Act (AIA) enables PTAB to squash these. PTAB is awesome and it typically gets things right. More software patents have just been squashed, as reported just before the weekend by Law 360. Here are the details (it’s about CBM):

The Patent Trial and Appeal Board on Wednesday invalidated two patents covering digital management systems that were challenged by Dish Network, saying the claims in both patents were directed to the abstract idea of delivering certain data to users.

The PTAB ruled in separate America Invents Act covered business method reviews that Customedia Technologies LLC’s patents were invalid under the U.S. Supreme Court’s Alice ruling, concluding that U.S. Patent Numbers 7,840,437 and 9,053,494 B2 were directed to nothing more than the abstract ideas of delivering “rented…

Dish Network (stylised as “DISH Network” or shorthanded “DISH”) is actually making stuff; Alice came to its rescue. Customedia Technologies, the plaintiff, is nothing but a pile of patents and lawsuits, based on our quick research. This means that PTAB helps technology here; that’s more of the usual.

“Customedia Technologies, the plaintiff, is nothing but a pile of patents and lawsuits, based on our quick research.”Patent lawyers and attorneys aren’t happy about any of this. That’s expected. To them, PTAB is “death squads” (their analogies really go that far). This whole “death” narrative is being perpetuated every day, giving people the impression that PTAB is “killing”. Here’s a new example: “US Pat 9053494, System for data management and on-demand rental and purchase of digital data products; Killed w/Alice in CBM…”

Killed? Invalidated, not “killed”. But whatever…

Writing about Ex parte Galloway, Donald Zuhn (Patent Docs) wrote:

In a decision issued in May, the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office reversed the final rejection of claims 35-48 in U.S. Application No. 13/512,585. The claims at issue had been rejected by the Examiner under 35 U.S.C. § 103(a) as being unpatentable over U.S. Patent No. 7,056,690 (“Laskey”) in view of Pajor et al., International Society for Analytical, Cytometry Part A. (2008) (“Pajor”), and Stoeber et al., J. Nat. Cancer Inst. 94(14): 1071-79 (2002) (“Stoeber”), and under 35 U.S.C. § 101 as being directed to a judicial exception without significantly more.

[...]

The Board concluded that the Examiner failed to provide evidence to support a prima facie case of patent ineligible subject matter, citing Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018), for the proposition that “[w]hether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination.” In particular, the Board noted that “the Examiner did not establish with factual evidence, that the cell counting step, as claimed, is conventional or known in the art.” The Board therefore reversed the Examiner’s rejection of the claims at issue under § 101.

Just ‘pulling a Berkheimer‘ again; this concerns § 101, which is often utilised when software patents are asserted outside or inside the court (threats of litigation, a lawsuit at the district courts, or an expensive appeal to the Federal Circuit).

“This whole “death” narrative is being perpetuated every day, giving people the impression that PTAB is “killing”.”The Patent Docs contributor Michael Borella then weighed in on Ex Parte Jung, which is being labeled informative (like precedence more or less) by the USPTO. It’s about a patent describing a “scene to be played back from the media server in response to the request,” i.e. another nonsensical abstract patent. To quote:

In it, the PTAB clarifies how a certain commonly-used claiming technique could be construed as either in the conjunctive or disjunctive depending on the disclosure of the specification. While this interpretation is not new and dates back to a 2004 Federal Circuit opinion, many practitioners still use similar language in claims with the intent for these claims to be interpreted in the disjunctive only. Therefore, it is worth revisiting this case.

[...]

…specification resulted in a conclusion that while both a conjunctive and disjunctive interpretation was supported therein, there was no “clear definition or disavowal which would compel a disjunctive construction.”

Regarding the second instance of “at least one” in the claim, the PTAB found support for a disjunctive interpretation. But, it stated that “neither the claims nor the remainder of the Specification ever suggest that a connection branch and a contents connection list must be mutually exclusive . . . [t]hus, nothing compels interpreting ‘and’ to mean ‘or’ contrary to its ordinary meaning.”

Therefore, both instances of “at least one” were properly construed as conjunctive. As a result, the PTAB reversed the Examiner’s obviousness rejections, as the PTAB’s claim construction was sufficiently narrower than that of the Examiner to avoid reading on the cited references. The irony here, however, is that the narrower construction of “at least one of a connection branch and a contents connection list” was not adequately supported by the specification. Consequently, the claims were rejected under 35 U.S.C. § 112, first paragraph for lack of written description.

The practice tip here is that a claim term in the form of “at least one of A and B” will be interpreted in the conjunctive unless the Applicant clearly requires a disjunctive interpretation. Nonetheless, numerous practitioners are unaware of SuperGuide and still expect such a term to mean “A or B.” A safe bet for those who wish to claim in the conjunctive or disjunctive is to use “A and B” or “A or B”, respectively. With appropriate support in the specification, of course.

This “obviousness” case serves to show that PTAB is pretty strict — something which Patent Docs (and the likes of it) can barely tolerate, nor can patent extremists like Mr. Gross, who is again ranting about Section 101:

#patent stakeholders: PTAB message is clear – if there is any way you can posit your claims as relating to GUI improvement, your chances of beating bogus 101 test are vastly improved: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017003187-06-25-2018-1 …

Managing IP‘s Michael Loney is now acting as his (Mr. Gross) megaphone in their fight against patent quality. They are nitpicking decisions and quotes (even from dissent) to suit their warped agenda.

Mr. Loney seems to really like perpetuating these talking points of patent maximalists; RPX being one of their latest. As Mr. Gross put it the other day:

As expected, Unified Patents is panicking about repercussions of Internet Time v. RPX case by CAFC to their patent blackmail IPR threat model!, their FAQs are modified to try and paper their way into safe harbor; before and after website versions attached to show dramatic changes pic.twitter.com/huOlngXDym

“14 of the 22 patent suits filed Monday were filed by patent trolls,” said this tweet last week, “according to RPX Corp. That’s 64%.”

“They are nitpicking decisions and quotes (even from dissent) to suit their warped agenda.”RPX is dying a slow death; it profits from an abundance of patent trolls and as PTAB halts much of their activity the necessity for RPX membership isn’t quite there anymore.

In a perfect world, patent trolls would simply go extinct. In order for that to happen patent quality would need to be improved and scrutiny of patents made cheaper (more accessible). This is why PTAB is so important. This is why it has passionate enemies among patent maximalists. They rely on low-quality patents/examination — a prerequisite to explosion in grants and litigation those grants can entail.

07.24.18

The Patent Trial and Appeal Board (PTAB) is More Legitimate Than Ever Before, More So After the ‘Sovereign Immunity Scam’ Reaches Its Likely Final Stop

Posted in America, Courtroom, Patents at 5:49 am by Dr. Roy Schestowitz

Only SCOTUS can save these brutal ‘scammers’ now — a prospect which is unlikely to materialise after Oil States (only months old)

Powwow dancer

Summary: It’s the end of the road for the ‘scammers’ and abusers looking to exploit (misuse) sovereign immunity; we think they’re more deserving of being disbarred, not being given another appeal opportunity or any more time in court

THE depressing EPO, where corrupt officials misuse diplomatic immunity, has become the direct opposite of the USPTO, where patent quality seems to be improving and immunity (tribal/sovereign) has been weakened by a series of cases at multiple levels (courts).

Those who want the gist of it can find the latest news coverage in mainstream news sites (“U.S. court rejects Allergan bid to shield patents through tribe deal,” Reuters), legal sites (“Up In Smoke? Sovereign Immunity, IPRs, And Native American Tribes,” Above the Law) and even some non-profits (“Is It Checkmate For Pharma’s Epic Gaming Of Patents?” American Council on Science and Health) or pharama news sites (“Court rejects Allergan’s tribal licensing strategy, striking another blow to its Restasis generics defense,” FiercePharma). We would rather focus on more specialised sites and assess their reaction, having already written a few dozen articles on the subject.

“We would rather focus on more specialised sites and assess their reaction, having already written a few dozen articles on the subject.”Professor Jason Rantanen wrote about it yesterday: “This dispute is clearly not at an end, and I suspect that the Tribe and Allergan will seek en banc review, if not head straight for a cert petition. Given the expedited briefing schedule, I expect this issue to continue to move quickly. At the same time, however, keep in mind that in the parallel infringement proceeding in the Eastern District of Texas, Judge Bryson (sitting by designation) found the Restasis Patents obvious following a bench trial. Allergan (now joined by the Tribe) appealed that determination. Oral argument is currently scheduled for September.”

Bryson’s ruling was covered here before. Several times in fact. Kevin E. Noonan, who has been covering the whole Saint Regis Mohawk ‘scam’ for about a year, is revisiting the subject in light of the latest development. For those who missed it, Saint Regis Mohawk participated in a ‘scam’ with Allergan and even the courts (CAFC Judges Dyk, Moore, and Reyna being the latest) confirm it repeatedly.The passage of tens of millions of dollars accomplished nothing for them (except very negative publicity for both).

Many judges have thus far been involved and all of them decided the same way.

Noonan wrote:

The Federal Circuit issued its opinion on Friday in St. Regis Mohawk Tribe v. Mylan Pharmaceuticals, affirming the decision by the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office that denied the Tribe’s motion to terminate Mylan’s inter partes review (IPR) proceedings as being barred by tribal sovereign immunity.

The issue arose over IPR Nos. IPR2016-01127, IPR2016-01128, IPR2016-01129, IPR2016-01130, IPR2016-01131, and IPR2016-01132 (and parallel IPRs filed by Petitioners Teva Pharmaceuticals USA, Inc. and Akorn, Inc., which had been joined with Mylan’s IPRs) instituted against U.S. Patent Nos. 8,685,930, 8,629,111, 8,642,556, 8,633,162, 8,648,048, and 9,248,191 respectively. After the PTAB instituted IPRs against these six patents owned by Allergan and directed to its Restasis® product, Allergan assigned its rights in the patents to the Tribe in return for a license (see “Allergan Avails Itself of Sovereign Immunity”). The Tribe argued unsuccessfully before the Board that as rightful owner of the patents the Board lost jurisdiction based on tribal sovereign immunity (see “Mohawk Nation Exercises Sovereign Immunity in Inter Partes Review”). The Board held that, as an issue of first impression, the Tribe had not borne its burden of showing it was entitled to the requested relief, and that the nature of the license left all substantive patent rights with Allergan, and thus that the company could amply represent the Tribe’s rights even in its absence (see “PTAB Denies St. Regis Mohawk Tribe’s Motion to Terminate IPRs based on Sovereign Immunity”).

[...]

Meanwhile, it can be expected that the Federal Circuit will lift the stay on the PTAB IPR proceedings that it entered while this appeal was pending (see “Federal Circuit Issues Stay in St. Regis Mohawk Tribe Sovereign Immunity Appeal”). And in due course the PTAB will hold oral hearings and issue its Final Written Decision, no doubt invalidating the claims and patents at issue.

Mind Richard Lloyd’s positive slant (at the patent trolls’ lobby) and loaded statement, as if they have “IPR sovereign immunity” which just needs “saving”…

“It involves a bunch of ‘scammers’ and bullies who sent me legal threats for merely ‘daring’ to cover it. Don’t give these bullies the pleasure (and billing hours) of a Supreme Court challenge. Better yet, disbar them. They’re SLAPPers who misuse not only sovereign immunity but also copyright law.”He said that “Only SCOTUS can save tribal IPR sovereign immunity following CAFC decision last week” in his headline and the bit outside the paywall says this: “The [mis]use of tribal sovereign immunity to shield US patents from review at the Patent Trial and Appeal Board (PTAB) received what might be a mortal blow with the Federal Circuit’s ruling last Friday affirming that patents originally owned by Allergan, but transferred to the Saint Regis Mohawk tribe in September last year, can be subject to inter partes review (IPR). Following the CAFC’s decision attention will now shift to whether the tribe’s lawyers will ask the CAFC to hear the case en banc or petition the Supreme Court to take it. Under Chief Justice John Roberts, tribes have generally not fared well in disputes…”

Will the Supreme Court deal with it? We doubt it. Yesterday’s “Supreme Court Update” by Dennis Crouch lists the latest cases:

Each summer, the Supreme Court takes a recess and patent cases begin to pile-up in the high-court’s docket. Only a handful of intellectual property petitions are granted certiorari each year, but almost all of the petitions raise interesting and important issues of law and policy.

The following is a comprehensive list of Patent cases pending before the Supreme Court. I have excluded a small handful that have (in my estimation) no shot at certiorari and also fail to raise interesting patent law issues.

After Oil States it’s just hard to see the need or relevance or urgency associated with with such a ‘case’ (more like a scam). It’s hardly even a controversial one because pretty much every judge and even every politician thinks the same way. Here is what Alex Moss wrote for the EFF yesterday:

The Federal Circuit has prevented a private company from using a Native American tribe’s rights to bar the Patent Office from reviewing its patents. The case involves a pharmaceutical company, Allergan, that paid the Saint Regis Mohawk Tribe to “own” its patents, and then assert sovereign immunity to avoid inter partes review (IPR). Congress created IPR proceedings to improve patent quality by giving third parties the opportunity to challenge patents at the Patent Office. Emphasizing the public interest in the nature of IPRs as proceedings before an administrative agency—the Patent Office—the appeals court found that tribal immunity could not be asserted to end these proceedings.

This case began when Allergan sued a number of generic pharmaceutical companies, including Mylan, for infringing its patents related to Restasis, a treatment for symptoms of chronic dry eye. Mylan responded by filing IPRs challenging the patents. Allergan responded in turn by “selling” these patents to the Saint Regis Mohawk Tribe (which received millions of dollars from Allergan as part of the transfer). After the patents were transferred, the tribe asserted sovereign immunity and asked the Patent Office to terminate the IPRs.

Generally, sovereign immunity refers to the concept that a sovereign entity (here, the Saint Regis Mohawk Tribe) can’t be subject to the jurisdiction of another sovereign (here, the U.S., in the form of the Patent Office) unless the first entity agrees. The deal with Allergan required the tribe to assert sovereign immunity in an attempt to end the Patent Office proceedings before the Restasis patents were revoked. Stated more bluntly, Allergan paid to use tribal sovereignty in order to block efforts to have its patents invalidated.

After administrative judges at the Patent Office denied the request to terminate the IPRs, the Saint Regis Mohawk Tribe appealed to the Federal Circuit. The appeal generated a lot of public interest and many amicus briefs were filed on both sides, including a brief [PDF] from the R-Street Institute and EFF. We explained that if Allergan’s tactic were allowed, it would undermine the IPR process and lead to many other companies using the same scheme to avoid review of their patents.

Consider it done and dusted. We find it hard to believe that yet another set of judges is needed to deal with such a trivial case. It involves a bunch of ‘scammers’ and bullies who sent me legal threats for merely ‘daring’ to cover it. Don’t give these bullies the pleasure (and billing hours) of a Supreme Court challenge. Better yet, disbar them. They’re SLAPPers who misuse not only sovereign immunity but also copyright law. They attempt to muzzle their critics so as to ‘shape’ the public debate.

07.22.18

Patents Roundup: Patent Litigation is Down and Seems to Have Shifted Away From Software Patents

Posted in America, Courtroom, Patents at 11:42 pm by Dr. Roy Schestowitz

Shift on keyboard

Summary: A roundup of recent patent cases of interest and what can be deduced from them, especially but not exclusively in the United States

AS THE weeks and months go by we see the USPTO moving further and further away from software patents; it’s hardly a surprise that patent litigation has nosedived and many patent trolls have gone out of ‘business’ (they never had a legitimate business, only a litigation/extortion pipeline). Cemented by a long series of Federal Circuit decisions (especially in 2017) and a growing demand for Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), this trend carries on pretty much unabated. It has been pleasing to watch because we started campaigning on the matter a very long time ago, well over a decade.

Watchtroll has, at least to us, become somewhat of a laughing stock. It’s just attacking courts, attacking judges, and blaming everything on Google. 4 days ago it wrote about Jazz Pharmaceuticals and a Federal Circuit which we covered here before. This isn’t about Secrion 101. Neither is this other case covered by Watchtroll in relation to Power Integrations:

Power Integrations, Inc. owns U.S. Patent Nos. 6,212,079 (“the ‘079 patent”) and 6,538,908 (“the ‘908 patent”). Power Integrations sued Fairchild Semiconductor Corporation and Fairchild (Taiwan) Corporation (collectively “Fairchild”) for infringement.

Notice that these have nothing to do with software. It recently wrote about this rejection of a patent leading to accusations that a company had “committed fraud because it did not notify shareholders” (yes, fraud).

Watchtroll said:

Citron does not allege, and could not credibly allege, that the PolarityTE has been lying to the United States Patent and Trademark Office. Nor did Citron allege subterfuge surround the technology or science underlying the patent application in question. Indeed, Citron specifically says in the report that they “will not discuss the science behind PolarityTE”. Instead, the astonishing claim is made that PolarityTE has committed fraud because it did not notify shareholders that the patent examiner issued a non-final rejection in a patent application.

This case, again, isn’t about software. Yesterday night Florian Müller wrote about Qualcomm (now in our latest daily links) after he had covered this latest twist in Huawei v Samsung — a case covered by him in recent months. To quote:

This week in Huawei v. Samsung delivered two more sethacks for the Chinese Android device maker and increasingly aggressive patent enforcer (I don’t want to call them a “patent bully” just yet, though it may be an appropriate label at a later stage).

First, he trial that Judge William H. Orrick will preside over in the Northern District of California in December is going to be far narrower, and potentially less impactful, than Huawei had hoped. As I had noted toward the end of this recent post, Huawei previously informed of the court of its willingness to withdraw its request for a declaratory judgment on worldwide FRAND licensing terms to its standard-essential patents, subject to an agreement with Samsung on the specifics. That agreement has indeed materialized, suggesting that Huawei saw a high risk of Judge Orrick throwing out the claim (whose dismissal Samsung was already formally seeking) at any rate. Instead of having to make a decision, Judge Orrick merely had to grant the parties’ stipulation of a dismissal that is formally without prejudice, allowing Huawei to try again, but only in a different case and not for at least nine months (this post continues below the document):

It certainly looks like Huawei is losing its momentum; its case against Samsung — like Apple’s cases — is becoming a “winner” only for patent lawyers.

Another new report, this one about a case in New York, has one party “seeking, inter alia, declaratory judgments of noninfringement and invalidity of U.S. Patent No. RE39,470, U.S. Patent No. 7,382,334, and U.S. Patent No. 6,430,603 (collectively, the “Patents-in-Suit”).”

Here are the details:

On July 13, 2018, United States District Judge Laura Taylor Swain (S.D.N.Y.) granted a motion by Plaintiff— BroadSign International, LLC (“BroadSign”) —for leave to file a Second Amended Complaint against Defendant T-Rex Property AB (“T-Rex”), seeking, inter alia, declaratory judgments of noninfringement and invalidity of U.S. Patent No. RE39,470, U.S. Patent No. 7,382,334, and U.S. Patent No. 6,430,603 (collectively, the “Patents-in-Suit”).

BroadSign supplies hardware and software solutions to operators of networks of digital signs. T-Rex has sued several of BroadSign’s customers that make, use, or sell digital signage systems, for direct patent infringement on one or more of the Patents-in-Suit.

It’s too early to tell what will happen, but by the sound of it Section 101 might be applicable here.

One more case of interest is Ariosa Diagnostics v Illumina, wherein prior art is brought into question/scrutiny because “the courts all agree that the disclosures found in an issued patent or published application count as prior art as of the patent’s filing date.” To quote:

In the simple case outlined above, the courts all agree that the disclosures found in an issued patent or published application count as prior art as of the patent’s filing date. The difficulty comes when we bring priority-claims into play (such as priority to a provisional application).

In this case, the Federal Circuit ruled that a published application can count as prior art as of its provisional filing date — but only as to features actually claimed in the application. According to the court, features disclosed in the provisional but not claimed in the published application will only be prior art as of their date of public disclosure.

The patent challenger argues that this interpretation is wrong — and particularly that the effect of the priority claim should be governed by 35 U.S.C. §§ 119(e)(1) and 120, which provide for applications properly claiming priority back to an earlier filing “shall have the same effect, as to such invention, as though filed on” the earlier date. On the other side – the statutory hook for the Federal Circuit’s limitation here is the fact that the statute gives priority for “the invention” — i.e., the claimed invention — but not for the disclosure as a whole. In addition Sections 119 and 120 develop the rules for patents claiming priority — not for prior art.

Indecision here too (for now)?

On the difference between knowing about patent infringement and not even being aware (which is the upside of never reading any patents), check out this Docket Report about Olaf Soot Design, LLC v Daktronics, Inc., et al. As the Docket Navigator put it the other day:

The court granted defendants’ motion for summary judgment that they did not willfully infringe plaintiff’s winch system patent because plaintiff presented insufficient evidence of knowledge through the knowledge of defendants’ outside prosecution counsel.

So it’s better not to be aware or to not to do one’s ‘homework’.

Last but not least, there’s this report behind paywall saying that “Philips SEP [is] validated by UK High Court,” which basically means patent tax one cannot work around, even in Europe. To quote:

The High Court has validated a Philips standard essential patent, making it “two-one to Philips as it moves towards the FRAND trial” in its litigation with Asus and HTC

The UK’s position on FRAND was quite covered a lot last year after a judgment had been issued by Colin Birss. Whether or not that spells doom or helps bring software patents to Britain remains to be seen; no doubt the fate of the UPC would play a considerable role.

« Previous entries Next Page » Next Page »

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channels: Come and chat with us in real time

New to This Site? Here Are Some Introductory Resources

No

Mono

ODF

Samba logo






We support

End software patents

GPLv3

GNU project

BLAG

EFF bloggers

Comcast is Blocktastic? SavetheInternet.com



Recent Posts