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

11.28.17

Benoît Battistelli and Željko Topić (EPO President and Vice-President) Try to Keep ‘Independent’ Judge in a Limbo

Posted in Courtroom, Europe, Patents at 2:21 am by Dr. Roy Schestowitz

Related: Munich State Attorney is Pursuing Criminal Charges Against the European Patent Office

The Hague International Criminal Court
The International Criminal Court (ICC). Author/photographer: Vincent van Zeijst

Summary: Additional information about the EPO defamation case in Munich (alluded to occasionally by the Administrative Council but never spoken about by the media)

THE situation at the EPO is really bad because judges who are supposed to be independent are being terrorised by Battistelli’s regime. We’ll revisit this point later this morning.

“Perhaps the Administrative Council members should have made the former ICC judge the next EPO President, but knowing their complicity in all this, they were probably afraid that they too would be held accountable.”“Separately,” an insider said, “a source called patentlyobvious reported over the weekend that Battistelli and his vice-president are rumoured to have lost a private prosecution case for alleged insult and defamation filed against an EPO staff member, [] and that the Munich Public Prosecutor may now be considering an investigation of the EPO officials. This could not be confirmed by press time. [] [] An insider informed me about the following: Battistelli and VP4 have lost a couple of times, but kept re-filing so there was always some pending case, so the [Administrative] Council could not close the disciplinary case (against the suspended Judge). [] Here is my reply: That makes sense! Vexatious litigation considered an abuse of the judicial process and may result in sanctions against the offender. A well known tactic to harass and subdue an adversary.”

This is why the EPO continues not only to be defunct but also maintain the “perception of” being defunct (to use its spin regarding the perceived ‘independence’ of the judges). Perhaps the Administrative Council members should have made the former ICC judge the next EPO President, but knowing their complicity in all this, they were probably afraid that they too would be held accountable. As we shall explain later, the Chairman of the Administrative Council (Dr. Ernst) is himself partly culpable.

11.26.17

Even PTAB Bashers Expect the US Supreme Court to Defend PTAB in Important Case Which Starts Later Today

Posted in America, Courtroom, Law, Patents at 10:28 pm by Dr. Roy Schestowitz

The voice of Clarence Thomas is expected to play a key role

Clarence Thomas

Summary: The Patent Trial and Appeal Board (PTAB), whose process of IPR as per AIA helps thwart software patents, is expected to be defended by the Justices of the US Supreme Court

SO, starting Monday the US Supreme Court will hear an important case known as Oil States (shorthand). This case helps determine to what degree if any PTAB can correct decisions made to grant (at the USPTO). PTAB has already invalidated thousands of granted patents, many of which were software patents, so this case is important to us.

Three Supreme Court petitions have just been mentioned by Patently-O, which (as we pointed out early on Sunday) spent a lot of time pressuring the Supreme Court to scuttle PTAB. Prior to that the blog had another strategy. The pricipal PTAB basher, Dennis Crouch, now openly admits that he expects PTAB to endure (see third paragraph):

My expectation is that the AIA and [US]PTO’s approach will be upheld in both cases. At oral arguments look for any signals that conservatives will break away from Justice Thomas notion that patent rights are not “core private property” but instead are properly considered lesser franchise rights. In addition, look for consideration of whether the justices are thinking outside-of-patent-law at a bigger picture review of public rights doctrine.

Justice Thomas is currently mentioned in some headlines for sexual abuse allegations (Wikipedia has a whole section about that), but he is correct in this case about patents not being “private property”, as we noted earlier this year when we refuted Crouch.

Oral Arguments in Oil States Energy Services v Greene’s Energy Group (PTAB Case) Are About to Start

Posted in America, Courtroom, Law, Patents at 2:53 am by Dr. Roy Schestowitz

Tomorrow is a big day for the US Supreme Court (SCOTUS)

United States Supreme Court

Summary: The hearings about Oil States will commence tomorrow, probably to secure the Patent Trial and Appeal Board (PTAB) at the end, based on the track record of the Supreme Court’s Justices in recent years

THE USPTO has been compelled to improve its work (notably the quality of patents). PTAB would otherwise invalidate patents granted by the examiners. SCOTUS, moreover, delivered several decisions in recent years which overturned the Court of Appeals for the Federal Circuit (CAFC). It wasn’t just Alice but almost half a dozen different decisions. Not much has changed in SCOTUS except the death of Scalia and arrival of a much younger replacement. So if everything goes as expected, SCOTUS will soon defend PTAB, whose function has been invaluable in the crackdown on patent trolls (and SCOTUS does, in fact, use the term “trolls”). The case about PTAB is known as Oil States Energy Services v Greene’s Energy Group or just Oil States for short. We have published a few dozens of posts about it and the timetable of this case is getting clearer, having already reached the deadline for submission of briefs (advice to the court/Justices).

This case will have historic significance and the patent trolls’ lobby/patent microcosm tried very hard to influence the Justices. Their attempts to incite against PTAB have been documented here in nearly 100 posts. We have a pretty good idea of who did/said what. It’s on record.

Royal W Craig from Baker Donelson Bearman Caldwell & Berkowitz PC is one among many who try to keep abreast new cases, presumably PTAB cases too, and last week he wrote a sponsored essay at IAM [1, 2], in which he claimed: “Google Alerts is a powerful web monitor, provided that users choose appropriate keywords. For example, in order to monitor all precedential Patent Trial and Appeal Board (PTAB) decisions, a Google alert for ‘PTAB’ and ‘Standard Operating Procedure 2′ must be set because the latter is the regulation under which the PTAB designates decisions as precedential.”

We already use such “traps” in order to gather news of interest about patents. We are pretty comprehensive in our coverage and we try to catalog almost everything (coverage is otherwise monopolised by the patent microcosm). Sure, it’s infeasible to cover everything, but setting the bar somewhere (based on relevance/importance) means that nothing of great importance will slip out of sight.

Several days ago when Kluwer Patent Blog was down for the second time in a month (for a considerable length of time) we saw Brian Slater publishing this article about Oil States. He wrote about two more cases:

Three pending cases have the potential to reshape – or even eliminate – inter partes review, a procedure for challenging patent validity introduced by the 2011 America Invents Act (“AIA”). On November 27, the Supreme Court will hear oral argument in two of those cases. In Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, the Court will hear whether IPRs before administrative law judges of the USPTO’s Patent Trial and Appeal Board (PTAB) are unconstitutional. In the second case, SAS Institute v. Matal, the Court will hear whether the PTAB must issue a final written decision on all claims challenged in an IPR petition or whether it may rule on only those claims as to which review was instituted. In the third case – yet to reach the Supreme Court – the Court of Appeals for the Federal Circuit recently decided en banc in Aqua Products that the burden in IPRs is on the petitioner to oppose claim amendments, not on the patent owner to justify them. We address these cases in turn.

Of all the above, Oil States is the only one that can really undermine PTAB and probably won’t. We mentioned the other cases and they did not get anywhere near the same level.

We often assume — perhaps quite safely — that the patent microcosm exaggerates the risks to PTAB in order to assure clients (read: money) that pursuing lots of patents and litigation is still desirable. But it’s nonsense. As we’ve said more than a dozen times before, PTAB is here to stay and given the composition of Justices in SCOTUS, not to mention their past judgments on patents, there's almost no way they’ll torpedo anything associated with the America Invents Act.

One of the new guys at the patent trolls’ lobby (IAM) wants us to think that SCOTUS Justices will scuttle PTAB, but there’s almost no way they’ll do that. Even people from within the patent microcosm occasionally admit that. Maybe if SCOTUS got scrapped and new Justice were selected, only then there might be a chance for Oil States surprises. We instead (as things stand) expect an almost unanimous decision in favour of PTAB’s inter partes reviews.

Anyway, here is what Adam Houldsworth wrote: (remember that these people speak for patent trolls; a de facto front group for them)

The US Supreme Court will next week hear oral arguments in Oil States Energy Services v Greene’s Energy Group, which concerns the constitutionality of inter partes reviews (IPRs) – the controversial USPTO invalidity proceedings introduced by the America Invents Act.

Should the nine justices strike down IPRs it would send shockwaves through the American patent landscape, removing a process that has been condemned by many rights holders and celebrated by others. But, even if they don’t – and the majority opinion seems to be they won’t – the future of the inter partes review will not be guaranteed; it also faces several other political and administrative threats.

Created in 2012 and intended to provide a more effective, streamlined means of expunging dubious patent grants, particularly those owned by so-called “trolls”, IPR hearings have had a huge impact since their inception. At least 6,382 IPR petitions have been filed in the last five years, nearly 70% of which have been instituted. And in 82% of final decisions, at least one patent claim has been found invalid.

Notice the continued pessimism. We have seen that for nearly 6 years. They keep pretending that PTAB is about to go away, but here we are in 2017 and PTAB keeps breaking records (depending on what one measures).

Moving away for a bit from patent extremists, here we have Roger Parloff’s report. The headline isn’t too helpful as it uses the insult of the patent trolls’ lobby, “patent death squads” (the disgraced CAFC judge came up with it), as if PTAB is a murderous thing. Not helpful a framing in the headline, but here are some bits from the article, which isn’t too bad. The hearings commence tomorrow:

The fate of a major patent reform law, enacted in 2011 to improve patent quality, will hang in the balance on Monday, when the U.S. Supreme Court hears a constitutional challenge to one of its key provisions.

The law, the Leahy-Smith America Invents Act (AIA), created a fast, inexpensive, administrative mechanism whereby anyone can ask the U.S. Patent and Trademark Office to reassess the validity of a patent on certain grounds. Since the law came into effect, patent challengers have filed more than 7,700 petitions to trigger the procedure, known as inter partes review (IPR), according to Unified Patents, resulting in the cancellation of more than 20,500 patent claims—components of a patent that can serve as the basis for a lawsuit. Most of these claims were, in fact, being asserted in litigation at the time the IPR petitions were brought—often against multiple defendants. (Unified Patents is a company that tries to protect corporate clients from patent suits by, among things, bringing IPR proceedings.)

Five days ago the New York Times wrote about this too and the headline focused on “trolls” rather than so-called “patent death squads” (shifting the burden to the aggressors, not the defenders). [via]

The accusers in the case, Oil States Energy Services v. Greene’s Energy Group, argue that taking private property is something only a court — not a government agency like the patent office — can do.

It’s hard to tell how the Supreme Court will rule. Patents are not standard-issue private property, like a plot of land. They are granted by the government to encourage innovation, a public good, because inventors might not invent without a period of exclusivity over the fruits of their idea.

[...]

In a brief to the court, the Initiative for Medicines, Access and Knowledge — a nonprofit group arguing for broader access to affordable medicines — argued that the patent office’s panel “is an important and necessary tool in the fight to lower drug prices because it allows the timely removal of unmerited patents, which promotes competition.”

Tahir Amin, a co-executive director of the initiative, added that “there are a lot of patent trolls trying to extort rents from low-quality patents.”

The Supreme Court has in recent years shown itself sympathetic to the argument that patent protections have become too restrictive. On half a dozen occasions since 2013, it has overturned decisions by Federal District Courts granting patent rights over what were ultimately fairly intuitive processes.

Expect a lot of coverage about this case in days to come. Trials by media aren’t a ‘thing’ at SCOTUS, but certainly the patent trolls’ lobby (sites like IAM and Watchtroll) will try to intervene and influence the outcome. They have already been doing this for months. Even Patently-O joined in, revealing itself as more interested in patent trolls than in patent quality. These sites/blogs would even defend the most outrageous among patents.

As a side note, “IPR” should only mean inter partes review, not this nonsense which is a propaganda term, “Intellectual Property Right”. The other day we saw this article titled “The Importance of IPR protection”. Based on the headline alone one can tell that it’s shallow. Sadly, such is most coverage regarding patents. It’s basically marketing and lobbying (for profit) rather than journalism.

11.22.17

Patent Lawyers’ Media Comes to Grips With the End of Software Patents

Posted in Courtroom, Deception, Patents at 1:27 pm by Dr. Roy Schestowitz

The Federal Circuit always says “no” to software patents (this year at least) and the Supreme Court (SCOTUS) rejects any petitions for it to deal with such matters

Will Any Software Patents Survive?

Summary: The reality of the matter is grim for software patents and the patent microcosm, ‘borrowing’ the media as usual, tries to give false hopes by insinuating that the Supreme Court (SCOTUS) may overturn Alice quite soon

THE battle in the courtroom is over. Software patents are pretty much over. So the battle has been taken to the press, where the patent ‘industry’ places its lies and marketing on an almost daily basis. We keep track of all this.

“So the battle has been taken to the press, where the patent ‘industry’ places its lies and marketing on an almost daily basis.”Yesterday/today, using the word “survive” in the headline (inverting narratives, wherein the aggressor merely “survives” or is “attacked” by the defendant), the high-factor media of lawyers speaks of Alice and asks, “Will Any Software Patents Survive?”

Here is the outline:

In his Patent and Trademark Law column, Robert L. Maier writes: In recent weeks, the Federal Circuit has continued to affirm district court decisions finding software-related patents invalid for failure to meet the patentable subject matter requirement of 35 U.S.C. §101. At the same time, a petition for certiorari to the Supreme Court was filed seeking to challenge the availability of this very defense—a petition that, if heard by the Supreme Court, could have dramatic implications for U.S. patent litigation.

They have been saying things like these for a number of months, but it never materialises. SCOTUS won’t be revisiting the subject of software patents any time soon (if ever). We wrote about this dozens of times before. The above is one of those “real soon now” prophecies/narratives (akin to Team UPC’s); they just try to give a glimmer of hope to clients and convince them to carry on pursuing software patents.

What does all this say about the patent law firms? Or about the media? Watch this new example of marketing disguised as a report. There are lots of these. Is the media engaging in any real journalism of just PR/advertising?

“What does all this say about the patent law firms? Or about the media? “Going back to the subject of patents, TiVo has just won an ITC battle against rivals [1, 2, 3] and Uber got a patent on something which sounds like marketing and/or placebo effect (lots of these around, this time motion-induced sickness prevention for Uber’s “own self-driving software”). This whole article is like an advert based on a patent and there are also press releases bragging about software patents this week. This particular one says:

StorONE is the first company in the last decade to invest a six-year period of massive research and development, covered by more than 50 awarded and pending patents, prior to its first software release.

What’s worth noting here is that at least some of the above pertain purely to software, even if used in conjunction with something like a car, a set top box, or storage device.

It seems safe to say, based on people who studied a large number of patents, that hundreds of thousands of granted US patents are software patents and are thus ‘dormantly’ invalid. They just haven’t been challenged yet; if they had, they would evaporate. Such is the profound impact of Alice and precedential decisions it led to.

11.19.17

PTAB is Safe, the Patent Extremists Just Try to Scandalise It Out of Sheer Desperation

Posted in America, Courtroom, Patents at 5:53 pm by Dr. Roy Schestowitz

Tyranny of the patent microcosm continues to slip away

Kim to patent zealots
Nice try, patent zealots, but patent quality matters more than your ‘protection’ money

Summary: The Leahy-Smith America Invents Act (AIA), which gave powers to the Patent Trial and Appeal Board (PTAB) through inter partes reviews (IPRs), has no imminent threats, not potent ones anyway

THE Patent Trial and Appeal Board (PTAB) is a subject we get to revisit every weekend. A lot is happening there. Technology companies like PTAB, whereas law firms are trying to destroy PTAB, which really says a lot about whose interests are served by improved patent quality.

A few days ago the patent trolls’ lobby expressed its interest in an old proposal for slicing USPTO. By “independent” USPTO they just mean a private USPTO, i.e. a for-profit monopoly whose goal would be to maximise profit, potentially by lowering patent quality (a la EPO).

Quoting IAM:

The USPTO is one of the few federal agencies that actually makes a profit from its operations, versus the majority of other US federal agencies which require taxpayer dollars to carry out their delegated functions. At present, the USPTO collects filing fees from applicants for patents and trademarks, as well as additional fees for many other services. These fees cover the USPTO’s operations, including the Trademark Trial and Appeal Board (TTAB) and the Patent Trial and Appeal Board (PTAB). Historically, however, the federal government has diverted excess fees collected by the USPTO away from that office and into unrelated government programmes – some estimates put the figure at more than $1 billion diverted from the USPTO since the early 1990s alone. With the enactment of the America Invents Act in 2011, the Patent and Trademark Fee Reserve Fund was created to hold all patent and trademark fees collected by the USPTO, with all allocations from the reserve fund to be determined by Congress under the USPTO’s annual appropriation amount.

Things as they stand at the moment aren’t pleasing to those who became accustomed to a venue-shifting, litigant-friendly system (favouring plaintiffs with patents that lack merit). Loopholes are being closed, patent scope is being tightened, trolls are turned away, and thousands of patents are being formally invalidated by PTAB.

Recently, some patent extremists went to the USPTO to literally burn patents there. They also attacked — viciously and repeatedly — the Director of the USPTO until she resigned. How low will they sink? How poor-quality a bunch of patents are they striving to protect? A couple of days ago Ian McCarthy wrote about “consumer generated intellectual property” — a bizarre term which is 4 offensive words (and lies) in a row. Incredible what these people can come up with! Some of them actually want computer-generated patents to be examined and accepted by computer algorithms alone. Maybe they want billions if not trillions of patents, rendering the entire purpose (and manageability) of the Office moot. A patent system without restrictions on quality would be ignored; quantity should barely even be a parameter to strive for. At all!

PTAB’s job is, quite generally, to ensure patent quality is preserved if not improved. So who would oppose it? The answer is obvious: those whose patents are of no value (and know their patents lack any value). They don’t want any legal scrutiny. By avoiding actual litigation (initiated by themselves) they can dodge such scrutiny, but PTAB is different. Their patents are constantly under threat even if they initiate no legal action but only threaten vulnerable companies.

A Web site of patent extremists has just spoken to a firm favoured among patent trolls. It’s about bashing PTAB. That’s their goal. On another day that site showed that PTAB rules/procedures got altered, albeit only after repeated pressure. To quote:

The Patent Trial and Appeal Board has revised the “Standard Operating Procedure 9 (SOP9)” for cases remanded from the Federal Circuit, including requiring panels to meet with the PTAB chief, deputy chief or a delegate to discuss remanded cases

The Patent Trial and Appeal Board (PTAB) has revised the “Standard Operating Procedure 9 (SOP9)” directed to procedures for cases remanded from the Federal Circuit.

That does not seem to have changed anything so substantial; patent extremists are trying hard to sabotage PTAB and help trolls with shoddy patents. Will they succeed? We doubt it. Have they made any progress? Not so far. PTAB is still going strong, but that should not be taken for granted.

United for Patent Reform wrote the other day some words from the pro-PTAB group, High Tech Inventors Alliance. Its head, John Thorne, told the panel: “For those who are not aware of what #IPR is, it’s an opportunity for @uspto to correct its own mistakes.”

Yes, exactly.

Nothing wrong with that, right?

If the USPTO does its job (examination) properly, PTAB will not be necessary.

Yesterday (yes, a Saturday!) Watchtroll went on another PTAB rant, stating the obvious in an attempt to demonise those who dispute validity of patents, e.g./notably PTAB. Alluding a lot to i4i vs Microsoft, Watchtroll said this:

Microsoft argued that the standard for proving a patent invalid should be by a preponderance of the evidence because the PTO did not consider the software in question when it issued the patent. According to Microsoft, the patent on which i4i relies is invalid because of prior art using the technology before the application was filed with the Patent and Trademark Office (PTO). Microsoft questioned why the “clear and convincing evidence” standard should apply even for issues that the Patent and Trademark Office (PTO) did consider. Furthermore, Microsoft argued that the “clear and convincing evidence” standard is an unjust creation of the Federal Circuit.

i4i Limited Partnership maintained that Microsoft had infringed on a patent i4i received in 1998, US Patent No. 5,787,449. This patent makes clear that i4i claimed a particular “method and system for querying a structured document stored in its native format in a database, where the structured document includes a plurality of nodes that form a hierarchical node tree…” While the language may appear inscrutable to a layman, essentially i4i maintained that the XML-editing features in Microsoft Word infringed on i4i’s patent. In response to Microsoft’s argument, i4i argued that it did not sell a product which served as prior art and that only the product’s source code could meet the “clear and convincing evidence” standard. Since the source code was no longer available, this was a convenient interpretation for i4i. In addition, i4i strongly argued that the Court should use the “clear and convincing evidence” standard instead of the “by a preponderance of the evidence” standard supported by Microsoft.

We wrote several dozens of posts about this case. For Watchtroll it’s just another cheap excuse to claim that when it comes to patents the “Burden is on the Challenger” (to quote the headline). This wasn’t the only Watchtroll attack on PTAB lately. Watchtroll also spoke to patent maximalists in an effort to tilt a sense of expectation in Oil States, basically bashing PTAB ahead of a Supreme Court decision that can determine its fate. Such is the nature of that lobbying site.

For those who rely on the Supreme Court to stop PTAB, forget about it… it won’t happen. We have already explained the whys many times before. Some have attempted other tricks/shams/scams for bypassing PTAB, but loopholes like these will be no more (pretty soon). As one legal blog put it the other day, “Legislation to Curtail Sovereign Immunity in IPR May Be On the Way” (as reported elsewhere as well). To quote the background and the latest outcome:

A Native American tribe’s recent deal to obtain several pharmaceutical patents and seek dismissal of pending IPRs on the basis of sovereign immunity has piqued the public’s interest in sovereign immunity to IPR. The same tribe also recently asserted several other patents against Microsoft and Amazon, and may assert sovereign immunity from IPR there too. Prompted by the tribe’s actions, a subcommittee of the House Judiciary Committee held a hearing on what Congress can and should do about it. Although much of the hearing focused on what many perceive as the problem of tribal sovereign immunity in IPR—not the use of sovereign immunity to IPR by state universities—many of the proposed reforms would also target state universities. Whether any of these reforms will be enacted remains to be seen, but there are reasons to doubt their constitutionality.

[...]

The hearing also explored whether statutory changes could be made to permit IPR to go forward without participation of sovereign patent owners that refuse to waive their immunity. The hearing offered few details about how such changes would be implemented, or whether, for example, such a proceeding would resemble ex parte reexamination—a proceeding already available to challengers. Further, the hearing did not address how such a proceeding would address the Supreme Court’s ruling that sovereign immunity bars an agency from adjudicating a private party’s complaint against a sovereign, even where participation by the sovereign is optional.[3]

This hearing suggested that some in Congress are interested in curtailing the use of sovereign immunity in IPR, but whether state universities will be targeted in ways that raise constitutional concerns remains unclear. While state immunity from IPR provides a privilege that private citizens do not enjoy, that is not new, as states enjoy immunity from numerous types of actions.[4] As the Supreme Court has explained, states’ unique constitutional role “sets them apart” for special treatment.[5] Thus, a one-size-fits-all reform to IPR that addresses the concerns of some about tribal sovereign immunity, but also seeks to limit states’ rights, may not be constitutionally possible.

The above spoke about ex parte reexamination — a subject also explored earlier this month in another legal blog.

Overall, what we are seeing here is a clear trend in favour of PTAB, which is growing each year and becoming more effective at tackling a broader range of patents, setting precedents in the process. Don’t expect PTAB to vanish any time soon. The “USPTO Finalizes Rule for Privileged Communications in Trials Before the PTAB,” said another blog earlier this month, showing that the USPTO too recognises the long-term operation of the board. To quote:

The Leahy-Smith America Invents Act (“AIA”) provided for trials before the Patent Trial and Appeal Board (“PTAB”) of the United States Patent and Trademark Office (“USPTO”) in inter partes reviews, post-grant reviews, the transitional program for covered business method patents, and derivation proceedings. While patent agents are registered to practice before the USPTO, they are not attorneys. Therefore, it has been unclear whether attorney-client privilege prevents discovery in PTAB proceedings of communications between these non-attorney agents and their clients. Addressing this ambiguity, the USPTO just issued a final rule for trial practice before the PTAB that explicitly protects communications between patent agents or foreign patent practitioners and their clients. The amended rule becomes effective December 7, 2017.

That’s just three weeks from now.

In an effort to perhaps find something negative, patent maximalists are now measuring rates of rather irrelevant things. Instead of measuring the number of IPRs or successful invalidation they look at number of “stays” (in the legal sense). “Overall success rates of motions to stay district court litigation pending review at the Patent Trial and Appeal Board have dropped noticeably in the past fiscal year,” it says.

Well, district court litigation is relatively low profile and the number or proportion of “stays” does not say anything so interesting. It’s almost irrelevant. It’s like the ‘other’ “IPR” (the propaganda term that is meant to mislead, which these same patent maximalists use in relation to India). The interesting figures show that PTAB activity is growing or is at least stable (after year-to-year growth for half a decade).

“The flood of bad patents fueled an explosion of wasteful litigation in the tech industry,” United for Patent Reform quoted the other day, “brought by patent trolls that exist for no reason other than to make money filing lawsuits. #IPR has been a step toward reining in that problem…”

It has been happening more and more over time. Demand for PTAB has grown.

As we noted last week, the USPTO succumbed to bullying/pressure from patent extremists and the patent trolls' lobby, at least judging by the fact that it made PTAB less affordable. The patent maximalists wrote about that a few days later. dubbing it a “72% IPR request fee change”. To quote:

The USPTO has released a final rule detailing fee increases to go into effect in January. The combined cost of an inter partes review request and institution at the Patent Trial and Appeal Board will go up to $30,500

See how they’re trying to make PTAB less accessible, especially for small and vulnerable companies? Not good. If they cannot stop PTAB using Native American tribes and Justices, then maybe they can just price PTAB out of reach. There’s also the STRONGER [sic] Patents Act, which is an abomination that is going nowhere (so far). Rachel Wolbers mentioned it the other day. “This radical piece of legislation would leave startups without any of the tools they currently have to protect themselves from patent trolls,” she said.

Here’s more:

The real reason clever patent trolls are moving their patents to Indian tribes is to avoid the USPTO’s Inter Partes Review process, which provides startups with a quick and effective way to invalidate bad patents. Weakening the IPR process would cause the most damage to America’s startup ecosystem and we should not upend the good work done by the USPTO to improve patent quality.

Another potential threat to the current patent system would be the “STRONGER Patents Act” introduced by Sens. Chris Coons (D-Del.) and Tom Cotton (R-Ark.) in June. The bill would completely gut the IPR system and would overturn decades of Supreme Court precedent on patents. This radical piece of legislation would leave startups without any of the tools they currently have to protect themselves from patent trolls. Furthermore, it would make investing in a technology startup much riskier, deterring investment in a sector of the economy that has been steadily growing for a decade.

IAM does a rather poor job hiding the fact that it’s a think tank for patent radicals and trolls. Watch who it gave a platform to (in its own event): “One of our keynote speakers was Senator Chris Coons, a member of the Senate Judiciary Committee, the author of the STRONGER Patents Act and one of the relatively few US legislators who demonstrates a keen understanding of the importance of strong IP rights to an innovation economy. In an engaging speech he called for Congress to take action to strengthen patent rights in the US. Here’s a part of what he had to say:”

Where were the engineers? Totally absent from these stacked panels and lobbying events, as usual.

Various ‘Conservative’ sites have also been lying about the STRONGER [sic] Patents Act, by which they attempt to destroy patent reform. The National Center’s Jeff Stier came up with this misleading headline under a month ago and here is what Heartland wrote some days ago. Notice who wrote it: “Seton Motley is the president of Less Government, a DC-based non-profit organization dedicated to reducing the power of government and protecting the First Amendment from governmental assault.”

So they basically stand for reckless markets in which patent extortion would be ‘normalised’ and not subjected to government intervention.

Going back to IAM, watch what it wrote when PTAB was invoked and ITC then got involved:

Interestingly, the separator technology on the line in this case, which LG Chem calls Safety Reinforced Separator (SRS), has previously been an IP moneymaker for LG Chem. It was able to license the technology to UBE Maxell, a Japanese joint venture, back in 2014 (not before UBE Maxell tried and failed to IPR one of the patents now being asserted against Amperex).

LG Chem is not the only company seeking to license-out battery-related technology. UBE itself assigned two US patents for a “Cell electrode sheet with displaced electrode depolarizing mixes” to a Japanese licensing firm called Ryujin Patent & Licensing in 2014. One of them is now facing an IPR filed by Dell, HP, Asus and LG Chem, indicating the range of companies it may be approaching as potential licensees.

This is an example where PTAB impedes actions not just by patent trolls with software patents but also large companies which try to tax everything. This kind of case is the reason we see growing support for PTAB even from large technology companies. As Washington is generally dominated by those companies and their lobbyists, expect PTAB to remain in tact (albeit, perhaps, more accessible to large and wealthy corporations).

11.18.17

EFF and CCIA Use Docket Navigator and Lex Machina to Identify ‘Stupid Patents’ (Usually Software Patents That Are Not Valid)

Posted in America, Courtroom, EFF, Patents at 2:42 pm by Dr. Roy Schestowitz

Lex MachinaSummary: In spite of threats and lawsuits from bogus ‘inventors’ whom they criticise, EFF staff continues the battle against patents that should never have been granted at all

“Judge Finds ‘Stupid Patent’ Web Story is Protected Speech”; that’s the headline of a new report (found via Slashdot, which has a summary and comments). For those who forgot, the EFF has been sued or threatened with lawsuits for running series which merely criticise or bash particular patents — clearly an act of free speech. The judge too saw it that way:

An Australian court can’t make a California-based digital rights watchdog take down a web article that mocks a company’s patent as “stupid,” a federal judge ruled Friday.

San Francisco-based Electronic Frontier Foundation sued Global Equity Management (SA) Pty Ltd., or GEMSA, in April, claiming the Australian firm exploited its home country’s weaker free speech protections to secure an unconstitutional injunction against EFF.

Kurt Opsahl, EFF’s deputy executive director and general counsel, hailed the ruling as a victory for free speech.

This wasn’t the first and maybe not the last legal action, either. Imagine a world where one is not allowed to criticise particular patents. Not too long ago (just before the weekend) it was said in “Stupid Patent Data of the Month: the Devil in the Details” that the EFF along with CCIA make use of particular tools that we often mention in relation to patent reform. To quote the EFF:

Bad patents shouldn’t be used to stifle competition. A process to challenge bad patents when they improperly issue is important to keeping consumer costs down and encouraging new innovation. But according to a recent post on a patent blog, post-grant procedures at the Patent Office regularly get it “wrong,” and improperly invalidate patents. We took a deep dive into the data being relied upon by patent lobbyists to show that contrary to their arguments, the data they rely on undermines their arguments and conflicts with the claims they’re making.

The Patent Office has several procedures to determine whether an issued patent was improperly granted to a party that does not meet the legal standard for patentability of an invention. The most significant of these processes is called inter partes review, and is essential to reining in overly broad and bogus patents. The process helps prevent patent trolling by providing a target with a low-cost avenue for defense, so it is harder for trolls to extract a nuisance-value settlement simply because litigating is expensive. The process is, for many reasons, disliked by some patent owners. Congress is taking a new look at this process right now as a result of patent owners’ latest attempts to insulate their patents from review.

An incorrect claim about the inter partes review (IPR) and other procedures like IPR at the Patent Trial and Appeal Board (PTAB) has been circulating, and was recently repeated in written comments at a congressional hearing by Philip Johnson, former head of intellectual property at Johnson & Johnson. Josh Malone and Steve Brachmann, writing for a patent blog called “IPWatchdog,” are the source of this error. In their article, cited in the comments to Congress, they claim that the PTAB is issuing decisions contrary to district courts at a very high rate.

We took a closer look at the data they use, and found that the rate is disagreement is actually quite small: about 7%, not the 76% claimed by Malone and Brachmann. How did they get it so wrong? To explain, we’ll have to get into the nuts and bolts of how such an analysis can be run.

[...]

EFF, along with CCIA, ran the same Docket Navigator search Malone and Brachmann ran for patents found “not invalid” and “unpatentable or not unpatentable,” generating 273 results, and a search for patents found “unpatentable” and “not invalid,” generating 208 results (our analysis includes a few results that weren’t yet available when Malone and Brachmann ran their search). We looked into each of 208 results that Docket Navigator returned for patents found unpatentable and not invalid. Our analysis shows that the “200” number, and consequently the rate at which the Patent Office is supposedly “wrong” based on a comparison to times a court supposedly got it “right” is well off the mark.

[...]

We’ve used both Docket Navigator and Lex Machina in our analyses on numerous occasions, and even briefs we submit to the court. Both services provide extremely valuable information about the state of patent litigation and policy. But its usefulness is diminished where the data they present are not understood. As always, the devil is in the details.

Lex Machina has done a lot and given an invaluable service to those of us who pursue a saner patent policy. The EFF too, especially in recent years, contributed a lot to patent reform. Its briefs in support of the reformist cause are just some among other actions undertaken by the EFF. It’s hardly surprising that blogs of patent maximalists so routinely bash the EFF and various extremists go as far as suing the EFF.

11.12.17

Time for the Court of Appeals for the Federal Circuit (CAFC) to Disregard Rulings From the Eastern District of Texas

Posted in America, Courtroom, Microsoft, Patents at 11:24 am by Dr. Roy Schestowitz

Judge Gilstrap alone has become a cautionary tale and there are other culprits

Eastern District of Texas Summary: A look at the latest developments at the Federal Circuit and some bits about Microsoft’s extortion using software patents (even after Alice)

Writing about Georgetown Rail Equipment Co. v Holland L.P. the other day, this article sheds light on a case we have not covered here before. It is not about software patents, but it ought to give a clue to the Federal Circuit (CAFC). It’s a reminder that Texas has serious issues. Maybe they should lower the seriousness (or impact) assigned to just about every decision from the Eastern District of Texas, which is a disgraced court district, sometimes even corrupt.

“Maybe they should lower the seriousness (or impact) assigned to just about every decision from the Eastern District of Texas, which is a disgraced court district, sometimes even corrupt.”Over the past decade or so we have seen far too many cases in which judges ruled for the financial interests of their towns rather than justice itself. Up until TC Heartland it has gone largely unaddressed.

For CAFC to gain or regain credibility perhaps it should take all this into account. CAFC is currently dealing with MasterMine v Microsoft [1, 2, 3] — a case which threatens to revive fears of software patents. “Every so often a decision comes out of the Federal Circuit that has immediate value for patent prosecutors,” the patent microcosm wrote, and the “decision in Mastermine Software, Inc. v. Microsoft Corp., is one such case.”

To quote a key part:

Prosecutors in the software/electronic arts will find this case helpful. It should be particularly useful in dealing with rejections from patent examiners struggling with the distinction between true hybrid claims and system functionality driven by user interaction.

Remember that Microsoft continues to leverage software patents against the competition, notably GNU/Linux. A few days ago we saw an article about it. “Earlier this year,” it said, “the company agreed to license a series of connected car software patents to Toyota.”

We wrote several articles about this.

So patents with near-zero value under Alice were actually used for financial gain? It’s worth reminding ourselves that very many of the rulings in favour of software patents came from low-level courts in the Eastern District of Texas. Erasing their toxic legacy may be worthwhile. That would also help wipe out software patents.

Alice (De Facto Ban on Software Patents) Remains Untouched in 2017 and Likely in 2018 As Well

Posted in America, Courtroom, Patents at 4:42 am by Dr. Roy Schestowitz

No cases that involve software patents are being revisited by the US Supreme Court

Upset

Summary: The patent microcosm (people like Dennis Crouch) is trying to find cases that can contradict Alice (at the higher levels, especially the US Supreme Court) but is unable to find them; as things stand, suing anyone with a software patent seems like a losing/high-risk strategy

WE have been observing with keen interest the patent cases that may somehow reach the US Supreme Court. We don’t want to see any case there which can somehow override Alice. So far, since 2014, no such case has been tabled at the Supreme Court and Bilski is so far/distant in the past that barely anyone mentions it anymore. It is still being cited, but nowhere as frequently as Alice

“So far, since 2014, no such case has been tabled at the Supreme Court and Bilski is so far/distant in the past that barely anyone mentions it anymore.”Patently-O‘s Dennis Crouch is still hoping for a miracle. He tried hard to undermine Alice for a number of years (the mask fell off and he no longer masquerades his agenda as well as he used to) and days ago he wrote about Recognicorp v Nintendo — a case that we covered here in recent months. “The patent at issue here is U.S. Patent No. 8,005,303 that is generally directed toward a mechanism for creating a composite image,” Crouch explained.

“After reading through this claim,” he continued, “I’ll give this petition approximately 0% of winning.”

Patently-O‘s Dennis Crouch is still hoping for a miracle.”For the time being, software patents remain dead in the US. Attempts to find opportunities to override Alice (and re-open the gate to software patents) have not been successful and “so many patents are being invalidated under Section 101,” in the words of Patently-O.

That’s a good thing actually. The full paragraph states this:

The petition here is timely – not only because so many patents are being invalidated under Section 101 – but also because the Supreme Court in SCA Hygiene (2017) reaffirmed the power of Section 282(b) — holding that laches was not a congnizable defense under the provision.

Dennis Crouch has mentioned another case, noting that “[t]he district court sided with the patentee – Prism Tech’s – finding the user-authentication claims eligible under section 101. Important for the petition here, the district court relied upon substantial expert testimony as well as other documentary evidence in concluding that the claims were enforceable.”

“The outcome of this battle will depend on actions taken by the public, not just public officials. More software developers ought to get involved.”But these are district courts. The higher up such cases go, the less likely the judges are to deem abstract patents to be valid. We generally note a trend here; as time goes on there’s less “Alice denial” (like climate change denial) and more attempts to just sabotage Alice.

Will Alice ever be challenged and precedence overturned? Well, judging by the retreat from software patents everywhere but SIPO (China) and the EPO, it is not software patents — not their critics — that face an uphill battle. The outcome of this battle will depend on actions taken by the public, not just public officials. More software developers ought to get involved.

« Previous Page« Previous entries « Previous Page · Next Page » Next entries »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