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09.26.17

Rodney Gilstrap Dubbed “America’s Worst Patent Judge” Having Long Facilitated Trolls for Gains

Posted in America, Courtroom, Patents at 9:04 am by Dr. Roy Schestowitz

When the courtroom is treated like the reception desk of a business rather than carrier of justice

Gas pump

Summary: In an effort to feed the litigation ‘industry’ (and hospitality around it) Rodney Gilstrap has subverted the rule of law and is being called out on it

WE DO NOT believe in judge bashing (it’s not an honourable thing to do unless there is demonstrable misconduct as in the case of Randall Rader). However, prominent US politicians themselves are calling Gilstrap “reprehensible” (and explained why earlier this year). We last wrote about it some days ago because even courts above Gilstrap’s are losing their patience.

A few days ago an article by Mike Masnick called Gilstrap the “Patent Trolls’ Favorite Judge” and noted that the court above his own “Can’t Just Ignore The Supreme Court To Keep Patent Cases In Texas” (same thing we wrote at the time). To quote some bits:

A few weeks ago, we noted that Judge Rodney Gilstrap, a judge in East Texas who is infamous for handling approximately 25% of all patent cases in the entire country, appeared to be ignoring the Supreme Court in an effort to keep all those patent cases in his own docket. You see, earlier this year, in an important case, the Supreme Court said that the proper venue for a patent lawsuit to be brought should be where the defendant “resides” rather than just wherever they “do business.” Previously, patent trolls had said that the lawsuits could be brought wherever a company did business — which, with internet firms, meant anywhere — allowing them to file in their favorite court in East Texas. The Supreme Court said “that’s not what the law says.”

But Gilstrap tried, somewhat creatively, to twist himself around those rules, by arguing that all sorts of other factors could be used to determine “residence” — basically including (again) if you had any connection to that jurisdiction at all — and thus continue to allow East Texas to be an acceptable venue. We listed out those factors in the earlier post, but don’t need to do so again, because the Court of Appeals for the Federal Circuit has already weighed in and said “nope, that’s not how it works.”

Today, BoingBoing wrote about this too and this was sent to us by readers, who are eager to see us mentioning it again because Gilstrap is, in effect, the trolls’ ‘mole’ in Texas. Here is what BoingBoing wrote:

America’s worst patent judge gets a scorching language lesson from the appeals court

Judge Rodney Gilstrap serves the Eastern District of Texas court, the venue from which patent trolls have extorted billions in useless menaces money from US industry; Gilstrap hears 25% of the patent cases brought in the USA, and has a track record for making epically terrible rulings.

But Gilstrap and the Eastern District are under threat, thanks to a series of rulings (including a Supreme Court ruling) that holds that patent holders have to sue alleged infringers in the place where they “reside” and not just in some place where their products are available (which, in the internet age, is everywhere).

Gilstrap tried to get around this, allowing a troll to bring another case to the Eastern District of Texas by making up a nonsensical “residency test” that would keep the racket alive.

We too are tempted to bash this judge, but in order to avoid hypocrisy (it’s usually Watchtroll who is judge-bashing) we prefer to show how other sites are bashing him. He probably deserves this. He did this to his own reputation.

09.24.17

PTAB Supreme Court Case (Oil States) is a Case of Patent Parasites Versus the Producing Industry

Posted in America, Courtroom, Patents at 8:51 am by Dr. Roy Schestowitz

Patent sharks want (and profit from) legal chaos

Lighthouse fishSummary: Ahead of the decision regarding Oil States (probably months away, some time next year), various influential sites confront the misleading and self-serving propaganda from the patent microcosm, e.g. law firms (to whom patent quality is a threat)

The Patent Trial & Appeal Board (PTAB) is one of the best things about the USPTO. It’s truly a shame that the EPO is nowadays driving away (to Haar) its own equivalent of PTAB. In this post we’d like to focus our attention on PTAB, having written about it 24 hours ago in relation to the Mohawk tribe.

“Who is it that spreads all the PTAB hate? The patent ‘industry’ (trolls, lawyers and so on).”Let it be understood, upfront, that PTAB is widely supported by scientists, technologists and their employers (including the very largest technology firms). Who is it that spreads all the PTAB hate? The patent ‘industry’ (trolls, lawyers and so on). Covering additional CAFC cases, PTAB basher Dennis Crouch wrote about NFC Tech v Matal a few days ago to state:

Following an IPR administrative trial, the Patent Trial & Appeal Board (PTAB) concluded that the challenged claims of NFC’s U.S. Patent 6,700,551 are unpatentably obvious. The focus of the dispute is on a pre-AIA inventorship claim — The PTAB rejected NFC’s attempt to claim priority to its date of invention.

[...]

On remand, it looks like the IPR case will continue — in its original analysis, the PTAB did not actually determine whether the prototype embodied the claimed invention since it dismissed on other grounds. Thus, NFC is simply one step closer to success.

As we noted here back in August, Crouch and his blog (Patently-O) had become the loudest PTAB bashers out there, probably worse than Watchtroll (if that’s even possible). Crouch just does it with more ‘class’, being a university professor. His bias is showing though. Crouch tries to solicit attacks on PTAB in the form of briefs for the Supreme Court to read.

“Crouch tries to solicit attacks on PTAB in the form of briefs for the Supreme Court to read.”Crouch is of course not alone (albeit he’s almost alone among the professors/academics).

Joining the same sort of attacks (attempts to discredit PTAB) we have this guy who’s writing crap about the EFF in a patent troll’s blog (Dominion Harbor) — the same blog which defames me.

Among his latest tweets:

  • Visa wins rare 1 at PTAB: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017004510-09-18-2017-1 … generating verification values passes 2nd part of Alice test [link]
  • More patent abuse at PTAB: mass spectrometric imaging of tissue sections rejected as “abstract idea” under 101 https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017000075-09-18-2017-1 … [link]

No, enforcing the law is not “patent abuse” but rather combating abuse of the patent system. Classic example of narrative reversal.

“No, enforcing the law is not “patent abuse” but rather combating abuse of the patent system.”Make no mistake about it; all those who attack PTAB seem to be people who produce nothing at all. They just try to tax those who do.

Josh Landau of the Communications and Computer Industry Association (which represents technology companies) has just come out with another long post about how PTAB IPRs (“inter partes reviews”) keep technology safe from patent trolls. To quote:

September marks the five-year anniversary of inter partes review (IPR), and Patent Progress is highlighting how successful the system has been at achieving its stated goals of increasing patent quality by providing a second look at invalid patents and decreasing costs by providing an efficient alternative to litigation. Last week, I showed that, in those 5 years, IPR has saved at least $2 billion in attorneys’ fees and other deadweight losses alone.

One of the most famous IPR successes is EFF’s IPR filed against Personal Audio’s “podcast patent.” Patent Progress has written about that case before, from early on when Personal Audio first asserted their patent to my post on how the STRONGER Patents Act would have prevented EFF from filing their IPR, as well as making it less likely to succeed, through to my story on the recent decision on appeal affirming its invalidity.

But that’s far from the only case where inter partes review has been used by non-profits, cities, small companies, and the U.S. government to defend themselves from patent trolls. In fact, there’s quite a few.

Jeff Roberts, a good journalist who had written in favour of patent reform for a number of years, wrote the other day: “helpful look at the IPR process, a key plank of patent reform that’s now in jeopardy…”

“We don’t really worry about Oil States because we are pretty certain that the Supreme Court will defend PTAB, taking into account creators rather than destroyers (litigators and trolls).”It’s about an article from another good journalist, Joe Mullin, who habitually exposes patent extremists who prey on people that actually create things (products, code and so forth). He wrote about the analysis from the Communications and Computer Industry Association (CCIA):

Five years ago this month, the first “inter partes review” began, a process laid out in the America Invents Act, which was passed in 2011. In a piece of legislation that was timid in its scope, the IPR process gave some hope to those in the tech sector who hoped to reduce the scourge of so-called “patent trolls.”

Now that IPRs are seeing their five-year anniversary, it’s a good time to take stock of the process. That’s especially true since the Supreme Court will take a close look at IPRs when it hears Oil States Energy Services v. Greene’s Energy Group, a case that challenges the constitutional basis of IPRs.

[...]

Josh Landau, a lawyer and pro-reform patent lobbyist at the Communications and Computer Industry Association, has written a blog post about the IPR anniversary with some back-of-napkin math estimating how much money IPRs have saved the US economy.

His conclusion: IPRs have prevented $2.31 billion of “deadweight losses” to the economy, mainly in the form of legal fees. How did he get there? Landau used data from defensive patent aggregator RPX that puts the average amount spent by a defendant facing a “non-practicing entity” (the polite term for patent troll) at $950,000. He then limited the universe he was looking at to only IPRs that were on patents that had associated litigations and in which the related litigation was stayed. In other words, he focused only on the subset of IPRs that objectively ended some type of litigation costs.

Using the average costs, Landau added up the cost of the litigation that would have gone on but for IPRs. The total was $3.95 billion. That money was saved by spending $1.637 billion on the IPR process, leading to a net savings of $2.31 billion.

“That’s approximately $460 million a year that companies can spend on creating new jobs and researching new technologies, instead of paying lawyers to write motions and argue in court,” Landau writes. “To me, those numbers say IPR has been a tremendous success.”

To be fair, there are some costs not accounted for in Landau’s rough estimate. For instance, he assumes that IPRs always end lawsuits. But in at least some cases, where the patent survives, the IPR process doesn’t lead to a quick settlement, meaning court litigation will continue.

We were pleased to see that even Spectator, a fairly influential publication over here, wrote about the subject under the headline “The Patent Troll Lobby Never Learns From SCOTUS” (the “troll lobby” being — among other things — sites like Watchtroll and Patently-O, which consistently help trolls).

To quote:

In 2007, the court ruled that obvious ideas like connecting a car’s control panel to electricity were not patentable, invalidating a troll’s joke patent, in KSR International v. Teleflex Inc. Then, in 2011, the court found that a law of nature (like, say, the law of gravity) could not simply be patented because someone had filed a patent with the words “apply it” involved in Mayo Collaborative Services v. Prometheus Laboratories. Then, in 2014, the court ruled that vague software patents were invalid in the case Alice Corp. v. CLS Bank International, invalidating one of the favorite weapons of patent trolls to hamstring innovators. And finally, this year, in TC Heartland v. Kraft, the court put serious limits on the venues in which patent lawsuits could be brought, effectively emasculating the patent trolls’ favorite tactic of bringing suits in the notoriously plaintiff-friendly East Texas District Court.

Again, all of these decisions were unanimous. However, as already stated, patent trolls once more think they have a winner. This time, their target is the Inter Partes Review process, a common-sense process by which the Patent Trial and Appeal Board (PTAB), an offshoot of the U.S. Patent and Trademark Office (USPTO) can invalidate patents that, for whatever reason, were granted erroneously. The trolls claim this process is unconstitutional, the USPTO obviously disagrees, and while it has previously declined to weigh in, this time the Supreme Court has decided to (literally) lay down the law, in the upcoming case Oil States Energy Services LLC v. Greene Energy Group.

As is commonly the case in such disputes, both sides of the case argue from seemingly ironclad constitutional precedent. Ryan Davis of Law 360 has explained their respective interpretations of the law ably, but to summarize briefly, the central point that seems the most likely to decide the case is whether the Inter Partes Review process strips legitimate private property rights from patent owners in an unconstitutional fashion, or whether it merely acts as a continuing use of the USPTO’s well-established power to decide whether the supposed rights in question are enforceable at all. Further, there is some question as to whether the over-a-century-old case of McCormick Harvesting Machine Co v. Aultman & Co., which the trolls rely on to make their case, amounted to a rebuke of the patent office’s authority to reexamine patents on constitutional grounds, or merely on the grounds that such authority did not exist in the Patent Act at the time the case was decided, but has since been added.

[...]

In short, whatever the legal merits of Oil States, and there is plenty of reason to believe they are lacking, at a policy level, a finding for the trolls would be disastrous. One only hopes that the Justices keep up their continuing streak of recognizing such disasters and snuffing them out before they arrive. Then maybe, just maybe, the fifth time will be the charm for the patent bar’s increasingly desperate attempts to defend its own overreach.

We don’t really worry about Oil States because we are pretty certain that the Supreme Court will defend PTAB, taking into account creators rather than destroyers (litigators and trolls).

“The patent ‘industry’ has done everything possible to bypass patent quality control and circumvent true patent justice.”The other day, Ilya Kazi, senior partner of Mathys and Squire in London, mentioned PTAB and said that he “made use of material from US litigation in EPO proceedings” (he worked for British Gas in patent infringement action).

From his long article (which suggests PTAB-dodging, e.g. the Mohawk “scam”):

The surge in popularity of Patent Trial and Appeal Board (PTAB) review procedures in the US in the last few years is testament to the notion that the best way to defend US court patent infringement proceedings is to win a battle somewhere else instead. Although rarely considered (and often not applicable), somewhere else may sometimes be in Europe rather than in the US. I have made use of material from US litigation in EPO proceedings, putting the other side in a difficult position to try and deal with the EPO challenge without undermining their US position. The most satisfying such occasion resulted in a call from a US colleague shortly after spending only a few thousand dollars filing an opposition saying “I don’t know what you did, but we just had a call offering to settle everything, including the US litigation (which wasn’t going very well after years and millions of dollars) on favourable terms.”

Back in US courts, being (overly) aggressive can sometimes achieve results it arguably should not in an ideal world. More importantly, even if trying an aggressive and/or diversionary tactic fails and does not ultimately help a case, unless particularly egregious, it is not often particularly unhelpful and is unlikely to carry serious sanctions particularly in costs, or materially prejudice a case.

Little of this will be news to seasoned US litigators, although they might say that things have mellowed somewhat since the high water mark of early Eastern District of Texas cases. However, for Europeans faced with litigation in the US, cautions which might apply elsewhere do not necessarily apply to US litigation (and this varies somewhat from court to court) so while you should of course question costs and the need to take certain actions, don’t necessarily baulk at what US counsel suggests. Conversely, tactics applied in US litigation may not translate well elsewhere.

Notice the wording. It’s not about justice but about winning a case (at all costs!), so Justices in the US ought to see through these rhetorics. The patent ‘industry’ has done everything possible to bypass patent quality control and circumvent true patent justice. Justice is not the business model of law firms but the ‘business model’ of judges (who rely on reputation, consistency, and lack of decisions being overturned due to error of judgment). This is why we need PTAB not only in the US but also in Europe; sadly, however, Battistelli has diminished and severely assaulted the European appeal boards -- a mistake for which we'll pay for decades to come.

09.23.17

The Court of Appeals for the Federal Circuit (CAFC) Gradually Champions Patent Quality, in a Spectacular Reversal on Its Past Ways

Posted in America, Courtroom, Law, Patents at 9:49 am by Dr. Roy Schestowitz

Under Chief Judge Sharon Prost

Sharon ProstSummary: Some of the latest actions and decisions from the Federal Circuit, which originally brought software patents to the United States and is now taking them away, gradually

LAST night we wrote about the Federal Circuit (CAFC) refuting Gilstrap yet again. We later updated our post with a statement from CCIA and then found this good coverage from a good journalist (a lot of those who cover patent issues are unfortunately with — and usually from — the patent microcosm). He summarised it as follows:

Not long after TC Heartland, though, the East Texas judge who hears more patent cases than any other turned down a motion to transfer by supercomputer maker Cray Inc., which was sued for patent infringement by Raytheon in 2015. Lawyers for Cray argued that, under the provisions of TC Heartland, their client was entitled to have its case in a home venue. But US District Judge Rodney Gilstrap disagreed and said that Cray’s ties to the district—a single salesperson, working out of his home—was enough to keep the case in the Eastern District.

Today, Gilstrap’s decision was reversed by the US Court of Appeals for the Federal Circuit, which hears all patent appeals. In a 20-page decision (PDF), the three-judge panel directed the case against the Seattle-based tech company to be transferred.

Gilstrap’s decision to keep Raytheon v. Cray in his court turned the normally wonky area of patent venue into a scorching political issue. At a Capitol Hill hearing about patent reform, the judge was denounced by both Rep. Bob Goodlatte (R-Va.) and Rep. Darrell Issa (R-Calif.), with Issa calling Gilstrap’s decision “reprehensible.”

Last week the patent microcosm wrote about a “declaration that, inter alia, the US patent is invalid, not infringed, and unenforceable.” This too was a CAFC case. To quote:

Allied then filed a declaratory judgment action in the US — asking for a declaration that, inter alia, the US patent is invalid, not infringed, and unenforceable. In the appeal here, the Federal Circuit has affirmed a lower court ruling that the DJ action is not based upon a “case of actual controversy” as required both by the Declaratory Judgment Act as well as the US Constitution.

It is good to see CAFC, which was originally worst of the worst (responsible for software patents in the US), changing its stance/stipulations on such matters. Watchtroll had gotten so angry about it that he called for dismissal of some CAFC judges and nowadays it’s relying on Trump for destruction of all the progress made. Watch Watchtroll’s political obsession, which four days ago culminated in this: “Trump’s selection for deputy director of management at the OMB, is an inventor who has received “14 successful U.S. patents,” an indication that someone knowledgeable about patents and the U.S. patent system will have a role in shaping U.S. policy on the budget for the executive branch, including the U.S. Patent and Trademark Office.”

“Watchtroll had gotten so angry about it that he called for dismissal of some CAFC judges and nowadays it’s relying on Trump for destruction of all the progress made.”Under Trump, however, with Iancu likely in charge of the USPTO, there’s a growing danger that the Office will soon be run by the patent ‘industry’ rather than scientists and technologists. The Trump administration is certainly on a warpath of destruction if it ends up putting Iancu in charge of other patent radicals. See the new articles titled “Trump’s Path to IP Wars” and “Intellectual Property Laws: Wolves in Sheep’s Clothing”. Quoting the summary: “The excesses of IP law are now a serious obstacle to innovation and economic growth.”

The article says that “the CAFC has reshaped the law by lowering the standards for patentability and expanding the scope of patentable inventions to include software, business methods, and even parts of the human genome.”

“The Trump administration is certainly on a warpath of destruction if it ends up putting Iancu in charge of other patent radicals.”And where has that gotten us? That was the past. Things have changed. While the patent microcosm chooses to obsess over every case where CAFC rules in favour of a patent (this new example is not even a ruling but a reversal of dismissal where “the district court should now pick-up the case again and give the patentee a chance”), the reality of the matter is that CAFC finally learned its lesson (after the Supreme Court had overruled almost every single time) and last year admitted that software patents are an impediment to free speech and should thus be invalidated.

As we shall show later, the anti-Alice lobby rears its ugly head again, pushing for changes irrespective of what CAFC and the Supreme Court (the highest courts) are saying. Facts don’t matter to these people, only cash speaks to them.

“…here again we see CAFC rejecting the temptation to side with patent maximalists.”As a side note, the other day Patently-O wrote about a CAFC case and argued that “[t]he approach here then is for the State Court to first figure out ownership. Then, if it decides that Interactive is the owner, an infringement case can return to Federal Court.”

Sorry, Dennis Crouch, but patents have assignees, not "owners". You should be smart enough to know that. WIPR should know that patents are not owned but merely assigned, but it repeated similar wordings around the same time (with the word “ownership” right there in the headline even). To quote:

The US Court of Appeals for the Federal Circuit has affirmed a ruling by the US District Court for the District of New Jersey that dismissed patent infringement claims centring on interactive software, and remanded questions back to the New Jersey Superior Court in a precedential ruling.

Eric Inselberg, the appellant, had invented various systems which audiences can use to interact with live events such as football games and live concerts.

The patents he received for his inventions were formerly held by Inselberg Interactive (also a party in the appeal).

[...]

The alleged patent law issues were “incidental and contingent” because Inselberg and Interactive were not the current patent owners, and neither were suing as the patentee.

McNulty dismissed the federal claims and remanded the state law claims back to state court.

Bisignano and First Data then appealed against the district court’s orders to the Federal Circuit.

The above certainly sounds like a software patents case, but we have not looked closely at the patents. Either way, here again we see CAFC rejecting the temptation to side with patent maximalists.

Not a good time to be in the patent ‘industry’…

09.22.17

Courts Are Losing Patience for Gilstrap’s Unbridled Support of Patent Trolls

Posted in Courtroom, Patents at 4:08 pm by Dr. Roy Schestowitz

He’s no better than Randall Rader, a facilitator of trolls (discharged with dishonor, so to speak)

Randall R. Rader
Photo from Reuters

Summary: The man whose court has become a trolling ‘factory’ is being refuted (but not reprimanded) by the CAFC, which certainly can see that something is amiss and serves to discredit the system as a whole

THE media does not usually name judges (personifying cases). But Gilstrap is a special case; he himself has become the story due to outrageous rulings on patents (and more recently copyrights, too). The judge whom prominent politicians have dubbed “reprehensible” keeps ignoring the Supreme Court [1, 2]. He has single-handedly decided that the litigation ‘industry’ in his town is more important than the law itself.

What will people think of the legal system, having read about the tales of Gilstrap? It’s almost as though he is proudly biased; he boasts about it and openly invites patent trolls to his court (for favourable treatment). If he continues to make complete and utter mockery of the law, how long will it take before higher courts intervene at a more personal level/capacity?

Well, towards the end of this week the patent microcosm’s media took note of one such development; “Federal Circuit rejects Gilstrap’s test for patent venue,” said the headline. Here is the opening paragraph (much of the rest is behind a paywall):

The Federal Circuit has reversed an Eastern District of Texas refusal to transfer the Cray case, and rejected Judge Gilstrap’s test for determining patent venue. This includes the appeals court stating there must be a physical, geographical location in the district from which the business of the defendant is carried out

Almost simultaneously the other site of the patent microcosm reaffirmed the view that Gilstrap is obviously rigging the system:

As a general matter, Judge Gilstrap’s interpretation appears fairly broad, and on writ of mandamus, the Federal Circuit has rejected Gisltrap’s analysis and directed that he transfer the case to a more appropriate venue.

Why is he tolerated after all he has done? The era of patent trolls in the US may be ending, but Trump’s nomination (USPTO Director) gives reasons for concern and judges like Gilstrap somehow maintain their job, in the face of growing controversy and outrage. Here is another new article to that effect (about patent venue):

Judge Leonard Stark of the District of Delaware has issues two rulings on motions to transfer that provide guidance for Hatch-Waxman and other patent litigation. This included ruling “regular and established place of business” requires a physical place of business in the district

The EFF has already commented on this. Yesterday Vera Ranieri wrote about Gilstrap , noting that this latest appeal/reversal is good news for those of us who work hard to stop software patents and patent trolls (overlapping issues). To quote some of the relevant parts:

In a closely watched case, the Court of Appeals for the Federal Circuit has issued an order that should see many more patent cases leaving the Eastern District of Texas. The order in In re Cray, together with the Supreme Court’s recent decision in TC Heartland v. Kraft Foods, should make it much more difficult for patent owners to pick and choose among various courts in the country. In particular, it should drastically limit the ability of patent trolls to file in their preferred venue: the Eastern District of Texas.

“Venue” is a legal doctrine that relates to where cases can be heard. Prior to 1990, the Supreme Court had long held that in patent cases, the statute found at 28 U.S.C. § 1400 controlled where a patent case could be filed. This statute says that venue in patent cases is proper either (1) where the defendant “resides” or (2) where the defendant has “committed acts of infringement and has a regular and established place of business.” However, in 1990 in a case called VE Holding, the Federal Circuit held that a small technical amendment to another statute—28 U.S.C. § 1391—abrogated this long line of cases. VE Holding, together with another case called Beverly Hills Fan, essentially meant that companies that sold products nationwide could be hailed into any court in the country on charges of patent infringement, regardless of how tenuous the connection to that forum.

[...]

One decision, Raytheon Co. v. Cray, Inc., written by Judge Gilstrap (a judge who at one point had ~25% of all patent cases in the entire country before him) appeared to take a broad view of what it meant to have a “regular and established place of business.” Judge Gilstrap held that “a fixed physical location in the district is not a prerequisite to proper venue.” More concerningly, Judge Gilstrap announced his own four-factor “test” that created greater possibilities that venue would be proper in the Eastern District.

The Federal Circuit has now rejected both that test and Judge Gilstrap’s finding that a physical location in the district is not necessary. The Federal Circuit specifically noted that the venue statute “cannot be read to refer merely to a virtual space or to electronic communications from one person to another.” Importantly, the Federal Circuit also held that it is not enough that an employee may live in the district. What is important is whether the alleged infringer has itself (as opposed to the employee) established a place of business in the district. The Federal Circuit did stress, however, that every case should be judged on its own facts. Based on the facts of Cray’s relationship to the district, the Federal Circuit ordered Judge Gilstrap to transfer the case out of the Eastern District.

What will it take for Gilstrap to accept that he is wrong to put the financial interests of litigators ahead of the law itself? What will compel those in charge to consider his dismissal (for making his mission as a judge akin to that of the disgraced CAFC judge, Randall Rader)? How are people expected to respect the patent system when rules are not being honoured even by these judges?

Update: Just an hour before publishing this article the CCIA’s Josh Landau wrote about this too. He mentioned the judge:

Yesterday afternoon, the Federal Circuit overturned the Eastern District of Texas’s test for venue. Even after TC Heartland, patent trolls were trying to keep defendants in the Eastern District of Texas. And in the first order issued by Judge Gilstrap, in a case called Raytheon v. Cray, it seemed like he was going to cooperate.

In Cray’s request to overturn Judge Gilstrap’s decision, the Federal Circuit ruled that Judge Gilstrap had abused his discretion in refusing to transfer the lawsuit out of the Eastern District. The Federal Circuit then established three key factors in analyzing the “regular and established place of business.” Their factors are based on the text of the patent venue statute, 28 U.S.C. § 1400, and the history of its development, a history that establishes that it was intended to restrict the availability of venue in patent cases.

The upshot? Having a website generally accessible in a district or a telecommuting employee isn’t enough to create venue. And that stems directly from the text of the statute – a district where “the defendant has … a regular and established place of business”.

09.11.17

Latest Assaults on PTAB and More PTAB Bashing, This Time by Anticipat

Posted in America, Courtroom, Deception, Patents at 10:43 pm by Dr. Roy Schestowitz

Anticipat is showing signs of antipathy

Anticipat

Summary: The Patent Trial and Appeal Board (PTAB), which helps eliminate patents granted in error (a lot of software patents), is still besieged by the patent ‘industry’

EXPECT many attacks on PTAB, the body which keeps the USPTO in check and enforces Alice very often (probably more than once a day, on average). Why is PTAB under attack? And why now? There’s an upcoming case at the Supreme Court of the United States and the patent microcosm believes it can use that case to undermine PTAB, maybe altogether eliminate it. PTAB-bashing blogs like Watchtroll and Patently-O write about it all the time. They try hard to scandalise PTAB and encourage anti-PTAB briefs (to be submitted as a sort of lobbying, addressing the Justices).

Do not expect any of this to stop. It will get worse. It keeps intensifying. These are no “friends of the court” (amici) but enemies of science and technology. All they want to do is tax scientists and technologists (who generally support PTAB).

According to IAM’s new blog post, there’s a potential to finding a loophole like universities to dodge scrutiny from PTAB, harnessing immunity. We wrote about this example a few days ago (Allergan, a dodgy entity) and here are the details:

Allergan may just have driven a coach and horses through the inter partes review process at the Patent Trial and Appeal Board. The company’s agreement to transfer the six patents underpinning its dry-eye treatment Restasis to the Saint Regis Mohawks has been widely reported since it was announced on Friday. Under the deal, the Native American tribe will receive a one-off payment of $13.75 million from Allergan, then annual royalties of $15 million. Over the lifetime of the assets concerned that could represent hundreds of millions of dollars – a sum which demonstrates just how valuable the pharma company believes those patents to be and how important it is they are kept away from the eyes of PTAB judges.

[...]

Because make no mistake, what is at stake here is not just the fate of six Allergan patents and some others owned by US universities, but the entire future of the PTAB as a viable tool for defendants to challenge patents asserted against them, or ones that they fear may be asserted in the future. Put simply, if Allergan can reach an agreement with a Native American tribe to protect its assets from PTAB scrutiny, so can every other patent owner in the US, operating in any kind of industry.

So basically, they’re exploiting indigenous people to shield a bunch of patents. It’s as dodgy as Hell and probably an insult to indigenous people, whose Traditional Knowledge (TK) is constantly under attack by patents, trademarks, etc.

In other news, also from Monday, this self-promotional blog post with an odd title (super-long headline) is trying to scandalise PTAB with statements like “PTAB Mocks Alice Supreme Court” (the very opposite is true). It’s as if they try to incite the Supreme Court against PTAB ahead of the decision on PTAB…

They promote this nonsense elsewhere and it ends with “Anticipat Practitioner Analytics does just this. Click here for a free trial.”

What’s it all about? No scandal at all. To quote a couple of portions:

In ex parte Lynch, Appeal No. 2016-002985, the Board reversed a Section 101 rejection, holding that the claimed invention provides an improvement in the functioning of the computer. Specifically, the claimed invention allows a user to register for new websites without entering all of their information each time, but with the option of modifying the information if necessary. The Board seemed to acknowledge that the claims were directed to an abstract idea under step 1. But the Board held that the claimed conventional computer components when considered as an ordered combination do include an inventive concept sufficient to render the claims eligible for patenting. Finally, in an apparent mocking of the Supreme Court, the Board concluded that the claims include the talismanic inventive concept.

[...]

This case shows that abstract idea rejections are still tricky. But as shown here, it is not fatal to patent-eligibility for claims to recite conventional computer components as long as the ordered combination provides a specific improvement. This shows that understanding which legal authority relied on by the Board can be important in knowing how to reverse Examiners in other applications.

So basically, in short, just because PTAB sometimes overturns/reverses a Section 101 rejection the above would have us believe that it “Mocks Alice Supreme Court” (to quote the headline). The common criticism of PTAB, courtesy of the patent microcosm, is that it’s overaggressive in applying Alice, so apparently, no matter what it does, the patent microcosm will blindly attack it. “Damned if you do, damned if you don’t,” as the old idiom or phrase goes. It should be noted that Anticipat’s blog is less than a year old. Seems like a fairly new subversive opportunist.

We certainly hope that Justices will pay careful attention to who is opposing PTAB and why. Foes of prior decisions of theirs, e.g. Alice, are those who want to obliterate PTAB (so as to impede enforcement of Justices’ decisions).

“Reprehensible” Judge Rodney Gilstrap Ignores the Supreme Court of the United States

Posted in America, Courtroom, Patents at 10:07 pm by Dr. Roy Schestowitz

“Reprehensible” is what high-profile US politicians call him

Rodney Gilstrap

Summary: In spite of the TC Heartland case, Rodney Gilstrap (pictured above) continues to facilitate and embolden patent trolls, whose experience suggests that Gilstrap is their ally, not quite an objective judge

THIS summer (in May to be more precise) the Supreme Court of the United States ruled against the “forum shopping” (or venue shopping) which drove many trolls (and their victims) into Gilstrap’s biased court. Rodney Gilstrap is basically the ‘Trump’ of the legal system. It doesn’t matter what the law says as long as he and his friends benefit financially. This is what some US politicians have spoken negatively about.

According to reports, including this one from earlier this month, Gilstrap continues to disregard the highest court in the US — a trend which we took note of last month. To quote:

We’ve written a few times about Judge Rodney Gilstrap, an East Texas federal district court judge, whom patent trolls seem to love. For well over a decade, we’ve discussed how patent trolls absolutely love to file cases in East Texas, and in the past few years, Gilstrap has basically been the judge for patent cases in East Texas. Incredibly, in 2016, Gilstrap alone handled 20% of all patent cases in the country (that was true in earlier years as well). Not 20% of the patent cases filed in East Texas — but in the whole country. And if you read that link, you see that Gilstrap seems (a) proud of this and (b) insists that people are upset about all the patent cases going to East Texas because they don’t like small-town America — and not because the court makes it that much easier for trolls to shake down everyone.

Now, as you may recall, the Supreme Court, just a few months ago, appeared to slam the door shut on patent troll venue shopping with its ruling in the TC Heartland case. In that case, the Supreme Court ruled that patent law is pretty clear, that you need to sue where the supposed infringer “resides.” For years, the courts had ignored this — despite it being plainly stated in the law — and said that you could file a lawsuit wherever a company did any business (and with many companies, that means anywhere at all).

What good is a patent system which disregards the Supreme Court or simply works around it? What does that do to its legitimacy? This is in no way beneficial to the image of the USPTO, either. It’s bad enough that it continues granting software patents after Alice.

As a side story, earlier today the trolls’ site, IAM, said that a Ford-connected firm was passing patents to a troll, Michigan Motor Technologies LLC, whereupon it sued a Korean company. To quote:

An entity called Michigan Motor Technologies LLC filed the lawsuit on 1st September in the Eastern District of Michigan, with Hyundai as sole defendant. According to records obtained via Lex Machina, the complaint alleges infringement of 21 US patents, many of which are related to engines and fuel systems.

Lex Machina does some splendid work; what’s worth noting here is that the lawsuit is initiated through a troll, probably in order for Hyundai to not be able to defend itself by counterclaims. This is what the US patent system has been reduced to and if Battistelli gets his way, EPO will become the same thing.

09.06.17

“Software Patents Are Evil,” But the Patent Microcosm Keeps Attacking the US Legal System for Disallowing These

Posted in America, Courtroom, Law, Patents at 6:07 pm by Dr. Roy Schestowitz

What’s more evil than software patents are people who constantly attack those who rule against software patents

The Devil

Summary: The reality that software patents are a passing fad in the US is being challenged by those who profit from software patents (hint: they’re not at all developing any software)

EARLIER this week Benjamin Henrion alerted people to the publication of this new article which says “[t]he real enemy is software patents” in relation to an ongoing Facebook controversy. “I hope that Facebook and other multinational companies pool their resources to lobby for an end to software patents,” Henrion added. Here is what the article said:

Software patents are evil, but BSD+Patents is probably not the solution

[...]

Many open source software (OSS) projects led by industry giants use the Apache License 2.0 (henceforth the ASL2.0), compared with the MIT or BSD licenses which also enjoy popularity amongst many other OSS projects. This is the license used by projects in the Apache Software Foundation, but you can use the license without being part of the ASF. TensorFlow and many other important non-ASF projects use this license.

The ASL2.0 has appeal for enterprises for a few reasons. One obvious reason is being a redistribution-friendly, permissive license (like MIT / BSD), so you can include such code in closed source products that you sell. Another reason is that it makes patent grant rights explicit. In other words, the license grants users unrestricted use of any patented IP in the codebase in perpetuity. This patent grant applies transitively to any projects that use or redistribute the project in question.

Having code that is both permissively licensed and patented might seem a bit strange. Some companies may seek patents for IP created in OSS projects to try to protect themselves in future IP litigation . They have no intent of selling or profiting from the patents, but they want the IP distributed in their OSS projects to stay free and commercial friendly.

This is where the ASL2.0′s patent grant is so important; it protects both the OSS authors’ and users’ redistribution rights. Without this, a patent troll could start a lawsuit and potentially force code in an established OSS project to be removed, which would wreak all kinds of havoc on developers and users alike.

In my opinion, software patents are evil because they stifle innovation achieved through incrementalism, and software engineering consists of a lot of this.

[...]

The real enemy is software patents. I feel Facebook’s stance on this is ideological, and it seems unjust to make OSS developers pay the price for software patents’ continued legality in the United States. BSD+Patents may stop certain kinds of patent trolls, but the only real solution is to bring about an end to software patents altogether.

Bottom line is that I agree with the ASF’s stance on the BSD+Patents issue, and I hope that React will change its license. Further, I hope that Facebook and other highly profitable multinational companies pool their resources to lobby for an end to software patents.

We have already included nearly a dozen links about this controversy (BSD+patents) in our daily links. It has been going on for months if not a year (it’s only this summer when the subject resurfaced again and the arguments intensified).

“People like myself, who write software (since age 14 in my case), generally know that software patents are a sham. Software professionals do not want patents.”For the sake of concision, we wish to focus on the patents aspect and generally obsess over the text in bold above (it’s not us who added the bold faces).

People like myself, who write software (since age 14 in my case), generally know that software patents are a sham. Software professionals do not want patents. They need only copyrights. But the patent ‘industry’ profits not from innovation but from litigation; that’s why it keeps pushing for software patenting.

Earlier today we found this new publication from Nick Shipp (Kilburn & Strode LLP). It’s nonsense; this is based on a lie we debunked here before. This Court of Appeals for the Federal Circuit (CAFC) decision wasn’t about Alice or software patents. In fact, it wasn’t about software at all. As we said at the time, patent maximalists would attempt to spin the decision as a defeat to Alice. And we were right. These patent maximalists continue to twist this even a month later. From Nick Shipp:

The Federal Circuit’s Visual Memory decision continues to accentuate the need for technical advantages in patent specifications to avoid eligibility issues in the US and could emphasise the advantages of US attorneys drafting more detailed patent specifications. As we explore, these two points could have knock-on positive effects around the world, especially in Europe.

[...]

While it often takes years before changes in practices in US drafting take effect amongst US practitioners and those patent applications finally find their way into Europe, as European practitioners we see the slow shift in US practice post-Alice with a generally warm glow because it should help to mitigate some of the fundamental problems European attorneys face relating to patent eligibility before the EPO. Positively, for patentees, applying these changes in drafting practice should not only improve chances of avoiding Alice rejections in the US but also bring down prosecution costs in Europe, which can only be a good thing.

What he fails to note is that this case wasn’t about software; watch how he proceeded to spinning it in regards to the EPO. Despicable!

Nick Shipp wasn’t alone this week. Another patent maximalist did his usual PTAB bashing. It’s almost the only thing he does these days. Here are some of his latest tweets:

  • “patent atty https://www.linkedin.com/in/domenico-ippolito-10b9498/ … beats PTO on ALICE 101 rejection at PTAB for Ebay client, rare feat nowadays: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016002985-08-24-2017-1″ (source; “Question is,” I responded to him, “was it a software patent in the first place? Sometimes they are not.”)
  • “PTO withdraws all 103 rejections, continues to rely on 101 bc PTAB will rubber stamp any “abstract idea” rejections https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016007918-08-24-2017-1″ (source; also covered today by Dennis Crouch, another PTAB basher)
  • “Goldman Sachs learns $ can’t buy #patent happiness, loses on 101 at PTAB like the rest of us 99%ers https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016007788-08-24-2017-1″ (source)
  • “IBM loses another #patent app decision under 101 at PTAB bc Wikipedia says “crowdsourcing” been around since 1714 https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016007667-08-23-2017-1 …” (source)

“Another patent maximalist did his usual PTAB bashing.”We could go on and on. PTAB bashing is high on the agenda right now, also in Dennis Crouch’s blog, which has become a PTAB bashing/lobbying blog trying to influence the Supreme Court into ‘abolishing’ PTAB (because there’s a window of opportunity soon). Watch what Crouch published earlier today: Alice bashing too. Will he bash the Supreme Court too when the Supreme Court sides with PTAB? Is Alice still something to be ridiculed more than 3 years since the Supreme Court decided on it?

A few days ago Crouch wrote about USPTO patents, unintentionally revealing that such patents have devolved into a template full of cruft that overwhelms examiners for fast-and-loose grants. “To be clear,” he wrote, “I’m not demonizing patentees who submit lots of references. What I’m working toward is whether the large number of references creates any special difficulty or benefits for the examination process and whether examiners receive any special assistance in considering the large number of references submitted.”

“Will he bash the Supreme Court too when the Supreme Court sides with PTAB? Is Alice still something to be ridiculed more than 3 years since the Supreme Court decided on it?”It’s an old strategy; in examination (in schools) too. Write lots and lots of stuff, especially references (which cannot be conceivably checked exhaustively), then make a rejection (based on the evidence) harder. It’s hard for an examiner to justify rejection without reading every single reference. When there are strict time limits and unrealistic expectations, as is (notoriously) the case in the EPO, what’s an examiner to do? Reject because there are “too many references”?

Incidentally, there is this new article today which says that CAFC is going to deal with the USPTO more directly, not just the patents granted by it but the “expenses of the proceedings…”

“We intend to follow the above developments closely because the patent microcosm is working overtime to subvert the system and undermine all the progress made under Michelle Lee (whom they managed to drive out of Office).”As Managing IP put it this afternoon: “Parties have been asked to brief on the issue of whether Section 145’s “[a]ll the expenses of the proceedings” provision authorises an award of the USPTO’s attorneys’ fees, after Federal Circuit ordered a sua sponte rehearing en banc of Nantkwest v Matal” (yes, Matal is still in charge).

We intend to follow the above developments closely because the patent microcosm is working overtime to subvert the system and undermine all the progress made under Michelle Lee (whom they managed to drive out of Office).

09.05.17

EPO Silencers of the Media – Part V: Jadranka Oklobdžija Versus EPO Vice-President Topić

Posted in Courtroom, Europe, Patents at 8:01 am by Dr. Roy Schestowitz

Jadranka Oklobdzija

Summary: Final part concluding the series about the EPO’s attack on media in Zagreb and a court decision due tomorrow

THE EPO is embroiled in a war with the media. Not the media which it is paying, but the one that’s actually doing its job. This subject was introduced in part 1 and part 2. In part 3 we showed the substance (or lack therefore) of the EPO Vice-President’s lawsuit and a summary of the written reply to the SLAPP lawsuit was shown in part 4.

“The EPO is embroiled in a war with the media.”There are other civil lawsuits in Zagreb. We might get around to covering these too. There are apparently SLAPP actions also in Munich. “Just for information,” someone alerted us the other day, “another ongoing civil lawsuit [exists] in which former DZIV employees took an action against the DZIV and the former Director (i.e. Topić).” References for this include some of our past writings. There is a lot more coverage in Croatian and we mentioned the case in [1, 2, 3].

“According to sources in Zagreb,” we got told, “a verdict is due to be announced soon in that case. The most recent news about this case is as follows…”

Topić made an appeal against the medical opinion in the case of Mrs. Jadranka Oklobdžija (former staff union official) and others who alleged harassment.

The last hearing before the Civil Court in Zagreb was held on 14 July.

The hearing was attended by the medical expert who issued the medical opinion, the legal representative of the DZIV, the State Attorney for civil lawsuits, Mrs. Jadranka Oklobdžija and her lawyer.

The verdict is due to be delivered on 6th September 2017.

The lawsuit was originally filed back in 2008!

Wow, a whole decade! And the verdict will come tomorrow?

“We will soon start another series, this time focused on Battistelli.”And on it went: “Observers who have been following the case are guessing that the verdict is likely to be in favour of the plaintiffs (i.e. the harassment victims). Sources in Zagreb are predicting that things are likely to get “hot” for Topić in Zagreb from September onwards.”

We probably won’t revisit the subject until weeks/months from now, so for those who wish to explore/track down further details, the E-mail address for Tjedno.hr is info@tjedno.hr. The name of the Chief Editor is Mr. Drazen Stjepandic. We never spoke to him. Our sources have no direct stake in the outcome. “According to available information,” one source told us, “the publisher of the news portal Tjedno.hr is represented by the Zagreb lawyer Ivo Farčić. Mr. Farčić can be contacted by E-mail via this link. He might be willing to provide more details about the case.”

We will soon start another series, this time focused on Battistelli.

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