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10.16.18

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

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

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

Trump and Iancu

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dennis Crouch wrote about the Phillips standard:

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

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

Here is what another patent maximalist said:

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

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

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

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

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

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

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

More of that judge-bashing, as usual…

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

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

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

[...]

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

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

10.08.18

The Federal Circuit Continues to ‘Lecture’ the Patent Office on Patent Scope and Limits, But Iancu Isn’t Listening

Posted in Law, Patents at 9:08 am by Dr. Roy Schestowitz

Like a lighthouse in the Sodom and Gomorrah which is the patent litigation ‘industry’

Tall lighthouse

Summary: Director Iancu isn’t quite listening to what high courts are saying, instead choosing to cherry-pick cases based on whatever decisions suit him and his cronies, including patent maximalists with prominent blogs

THE USPTO had been recaptured by patent maximalists, but this merely resulted in greater divergence from SCOTUS, which had set or had been responsible for much of 35 U.S.C. § 101, i.e. U.S. Patent and Trademark Office (USPTO) laws/rules/guidelines.

“Sadly, the district courts have not fully caught up (at least not yet) with SCOTUS; they’re more USPTO-friendly.”Regarding a case that we wrote about yesterday (a Federal Circuit (CAFC) case with Chief Judge Prost personally involved) Watchtroll said this yesterday:

The Federal Circuit recently issued a ruling reversing the district court’s denial of Apple Inc.’s (“Apple”) motion for judgment as a matter of law (“JMOL”) after finding no reasonable juror could have found infringement based on the evidence presented during the liability phase of trial. The decision erased an awarded over $234 million in damages to Wisconsin Alumni Research Foundation (WARF). The Court, however, affirmed the district court’s grant of summary judgment with respect to invalidity in favor of the patent owner. See Wisconsin Alumni Research Foundation v. Apple Inc., Nos. 2017-2265, 2017-2380 (Fed. Cir. Sept. 28, 2018) (Before Prost, Chief Judge, Bryson and O’Malley, Circuit Judges) (Opinion for the court, Prost, Chief Judge).

One can expect a different judgment, likely the outcome being overturned (otherwise they would not pick the case). Sadly, the district courts have not fully caught up (at least not yet) with SCOTUS; they’re more USPTO-friendly. The same goes for Gene Quinn, who smeared the good Director (an actual scientist) at the USPTO in an effort to put someone like Iancu (litigation ‘industry’) in charge, no matter what courts keep saying. Days ago the “Patent Bar Exam” and After Final Consideration Pilot Program 2.0 (AFCP 2.0) were promoted by Quinn, who acts as little more than a megaphone of the USPTO:

Earlier today the United States Patent and Trademark Office (USPTO) announced that the After Final Consideration Pilot Program 2.0 (AFCP 2.0) would be extended until September 20, 2019. The decision to extend this popular and sensible program comes as no shock.

The USPTO is trying to broaden patent scope and increase the number of patents. They don’t seem to care about patent quality and some of them don’t even understand the department they preside over; leadership issues and non-technical management (appointed owing to nepotism rather than qualifications and experience) is an issue that even USPTO insiders (notably examiners) speak of. Not too long ago there was a very long downtime (over a week) and Iancu hardly even apologised for it, let alone explained the cause. Donald Zuhn spoke of the following technical change a few days ago:

The Office also announced the release of a migration tool, which allows existing PKI digital certificate holders to link their USPTO.gov accounts to their current PKI digital certificates. To migrate an existing PKI digital certificate, users must have a USPTO.gov account. Users who need to create a USPTO.gov account can do so by following the steps under the “Create a USPTO.gov Account” tab at the Office’s authentication change webpage. Once a USPTO.gov account has been created, users can follow the steps under the “Migrate your PKI Certificate” tab at the Office’s authentication change webpage (or refer to the Guide for Migration) to link that account to their PKI certificate. The Office notes that users should allow 1–2 business days after the migration steps are finished for the migration process to be completed. Once the process is completed, users will be able to sign into the EFS-Web or Private PAIR using their USPTO.gov account.

Way to distract from the fact that they had a very major meltdown only weeks ago and they never explained the cause and remedy.

Anyway, we continue to admire the Chief Judge of CAFC for her (and her colleagues’) insistence on the rule of law, based on caselaw and the Constitution rather than the financial interests of self-serving law firms. It might not be long before patent maximalists attempt to do to her what they had done to Michelle Lee until she was replaced by Iancu. These people probably want another ‘Rader’ back in CAFC; they used to try to make him USPTO Director (even after he had been entangled in scandals, serving law firms rather than justice).

U.S. Patent and Trademark Office Under Andrei Iancu Subjected to an Assault on Patent Quality

Posted in America, Law, Patents at 2:33 am by Dr. Roy Schestowitz

Even scholarly journals are being ‘infiltrated’ by the litigation giants

Andrei Iancu

Summary: Donald Trump has let the litigation industry 'govern' itself at the USPTO; all it has accomplished so far is even greater divergence between USPTO determinations and those of actual courts (which means that the USPTO does not follow the law, there’s a state of lawlessness)

THE USPTO isn’t coping with demand for patent quality. Instead it’s trying to cope with demand for patents; the more, the merrier?

Emulation patents by Sony have been mentioned a lot on Sunday [1, 2, 3] and Apple patent propaganda sites which treat every patent from Apple like it’s the digital “second coming” celebrated a patent application on user interface navigation just a few hours ago. It sounds like another bunch of software patents ascribed to a “device”. What gives? When will we see a patent office that prioritises public interest rather than massive corporations like Sony and Apple? Who does this office really serve? It obviously doesn’t help that its new Director comes from the litigation ‘industry’.

“It obviously doesn’t help that its new Director comes from the litigation ‘industry’.”We don’t suppose patent lawyers like Techrights and we’re fine with that. We don’t try to collectively or personally insult them, we just make our observations based on the premise that patents were created (came into existence centuries ago) for the purpose of science, not just the purpose of litigation. Some patent lawyers are honest people — sometimes honest enough to the point of abandoning the occupation. Some people go the other way. Our general advice to patent lawyers, especially in the current climate, is get a real job, people, create something rather than “facilitate litigation” with threatening letters and legal attacks that are costly to both sides (those who actually create things). World Intellectual Property Review published the following some days ago:

Baltzer’s practice focuses on patent litigation in the fields of biotechnology, electronics, and data processing systems.

Many data processing systems are purely software-defined now, hence the underlying patents would be software patents. How about this from World Intellectual Property Review (same day more or less)? It’s about a man who used to write software but nowadays attacks (or contrariwise defends) coders with/from patent litigation through his new employer. Who needs this nonsense? “He has more than two decades of experience in patent law,” it says, “having spent 16 years at Seed IP and five years at Perkins Coie. Before practising law, he worked as a software engineer for six years.”

So he moved from actually creating software to litigating over software. What a failure.

“So he moved from actually creating software to litigating over software. What a failure.”Unfortunately, many people out there think that this is acceptable. They’re being brainwashed. Here we have “Recent U.S. Court Decisions and Developments Affecting Licensing” by John Paul and D. Brian Kacedon. Patent maximalists from Finnegan, Henderson, Farabow, Garrett & Dunner LLP are writing ‘scholarly’ papers by which to push their agenda, which is financial (lawsuits). So even journals, not just the media, get taken over by the litigation ‘industry’. Over at Washington Law Review, which one might expect to target lawyers, another evidence of such a thing emerges. “Legislators and industry leaders claim that patent strength in the United States has declined,” they claim, but this is nonsense! Those ‘industry’ ‘leaders’ are law firms that want more lawsuits!

Guess who wrote this paper; it’s law firms pushing ‘scholarly’ papers loaded with lies. It’s Steven Udick (Skiermont Derby LLP) helped by Gregory Day (University of Georgia – C. Herman and Mary Virginia Terry College of Business). They suggest “Offshoring Patent Law” in their title! As in sending it to Iancu or law firms’ interests? Letting the executive become legislator too? From the abstract:

Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. However, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent, considering that patent law is bound by strict territorial limitations (as a result, one cannot strengthen their patent protection by innovating abroad). In essence, then, industry leaders are deeply divided from scholarship about whether innovative firms seek out jurisdictions offering stronger patent rights, affecting the rate of innovation.

This is just think tank-type propaganda disguised as academic paper. Check the authors’ affiliation. Things have gotten so bad that these law firms not only dominate public/private forums but also the media (Web, TV etc.) and literature. Patent Docs has just advertised another ‘think tank’ of the Intellectual Property Owners Association (IPO), a front group that lobbies the above people for software patents. Patent Docs also mentioned this from the USPTO:

The U.S. Patent and Trademark Office will be offering the next webinar in its Patent Quality Chat webinar series from 12:00 to 1:00 pm (ET) on October 9, 2018.

A “Patent Quality Chat” (all capitalised) does not ensure quality; it’s like Battistelli's "Working Party on Quality," which is a "Ministry of Truth"-type of façade.

Patent quality is something that the USPTO under its new Director does not care about; he actively tries to lower quality, seeing that the number of granted patents declined this year (not just the number of patent lawsuits). Guess by which yardstick lawyers measure their “performance”, unlike judges?

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

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

A reject bin

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

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

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

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

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

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

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

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

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

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

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

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

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

[...]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

10.01.18

The USPTO is Hopeless, Unlike Patent Courts That Have Become the Target of Ridicule by the Patent ‘Industry’

Posted in America, Law, Patents at 4:47 am by Dr. Roy Schestowitz

SCOTUS (US Supreme Court) narrowed patent scope and judges are coming under attack for merely following SCOTUS

Andrei Iancu

Summary: Donald Trump’s man at the USPTO (Andrei Iancu, whose firm used to work for Trump) is disgracing the notion that a patent office follows courts’ pattern of rulings; to make matters worse, SCOTUS appointments are nowadays made based on personal relationships/connections to billionaires (e.g. Gorsuch) rather than accurate/consistent rulings

AS A NEW month begins we look back at another good month — a month in which courts generally continued to ‘reform’ or shall we say ‘tame’ the USPTO. There have been several rulings which due to lack of time we need to mention belatedly.

Let’s begin by discussing yesterday’s advertisements from Patent Docs, a site of patent maximalists. They still focus on questionable patents, 35 U.S.C. § 102 (prior art), and the Intellectual Property Law Association of Chicago (IPLAC), basically a cabal of lawyers, speaking of laughable concepts like “Reputation Risk Management”. Last weekend we noted that Patent Docs had reached to point where it’s publishing more advertisements than actual articles. In fact, actual articles have become almost rare there (maybe once in two or three days). Sometimes the articles are completely off-topic guest posts. We’ve surveyed and compared to months back. The only ‘healthy’ blog about patents (still as active as before) is Patently-O; Watchtroll, IAM and others have ebbed away or gone completely inactive. The demise of Watchtroll started some time after May (a 30% decline in output) and IAM vanished off the radar at the end of August. Remember Bilski Blog? Once upon a time it published quite regularly. Nowadays it’s lucky if it publishes something in a whole month. Here is what it wrote some days ago in relation to Maxell v Fandango (Maxell was recently mentioned in another context). To quote Bilski Blog:

Earlier this month a federal court in California held as patent-ineligible all 28 asserted claims in three separate patents in Maxell v. Fandango Media, based on its analysis of only one “representative” claim. This was via a Rule 12(c) motion for judgment on the pleadings. The court had already found, via a Rule 12(b)(6) motion to dismiss before any claim construction, another claim from another patent to be drawn to patent-ineligible subject matter. It is disconcerting to see courts take such a glib approach to invalidating claims in this way, and it strikes me that this case is a great vehicle to use to discuss the notion of a “representative” claim.

Bilski Blog, being a blog of anti-Alice patent maximalists, speaks of the above as though it’s bad news, arguing that it is “disconcerting to see courts take such a glib approach to invalidating claims in this way…”

Actually, it’s well overdue; the courts need to do something about patent maximalism and we’re very gratified to see the past few years’ developments. We hope for more of the same. It’s no secret that the USPTO granted far too many patents for a number of years if not decades. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), part of AIA, have helped improve that somewhat, albeit not sufficiently. Now that we’re past the ten millionth patent Patently-O reveals another incredibly stupid patents — a reminder that software patents are still being granted by the Office. “It is basically a computers system that gamifies your life — comparing your life score to those of your neighbors, co-workers, or others,” Patently-O wrote some days ago, adding the corresponding figures to demonstrate just how dumb this patent is. As we shall show further down, it does not seem as though the new leadership (new Director rather) is interested in tackling the issue; instead, it would rather exacerbate matters.

Just over a week ago Kansas City Business Journal published “Lawsuit alleges company paid ag tech company $7M for ‘worthless’ patents” — a symptom of an office that would rather grant than properly examine applications. Applicants should live and learn. A lot of US patents are totally bogus (some bogus to the extreme) and in retrospect some companies are entitled for compensation. This can’t possibly inspire much confidence in the system.

Another site recently spoke of SolarWinds’s IPO plans, asserting that “[t]he [software] company has 29 issued U.S. patents and 148 issued foreign patents, with expiration dates ranging from October 2026 to May 2036. The company also has 40 pending patent applications.”

Likely all of these are bunk software patents. Do they care? Do they just aim to increase the total number rather than quality and validity?

Less than a fortnight ago Watchtroll moaned that “Alice has become a train wreck for innovation. To be successful, patent practitioners must explain why the type of technology should not dictate whether there is enforceability.”

This linked to the latest (at the time) patent maximalist nonsense from Meredith Addy and it is titled “Alice at Age Four: Time to Grow Up” (implying or at least insinuating that patent justice is some kind of immaturity). We don’t want to rebut every single claim as that would take a lot of time and give more exposure to Watchtroll (those patent zealots would otherwise get little or no attention). “Grow up and face the fact software patents are unsuitable for purpose” was my response to them. It’s just another one of their anti-Alice rants and no new information (or news) is being offered to support the headline. Burman York (Bud) Mathis III, another anti-Alice person who contributes to Watchtroll occasionally, resumes the CAFC bashing (Federal Circuit smears). The EPO became notorious for attacking judges, the ITC ignores PTAB judges, and whenever the above people attack 35 U.S.C. § 101 rather than the U.S. Patent and Trademark Office (e.g. for granting software patents in spite of 35 U.S.C. § 101) they reinforce the view or perception that all they care about is money, not justice. We at Techrights care about innovation and justice; we recognise that many patents are unjustly being granted and this harms innovation, sometimes quite profoundly.

“Patent rights are under attack,” Watchtroll wrote the following day, basically pointing out that Justices telling off and putting aside bogus patents is somehow an “attack”. Actually, the patent trolls and aggressors are the attackers. Who is being attacked here? And by who? How very classic a reversal of narratives.

Are the people at Watchtroll even trying to be honest with themselves? It certainly doesn’t look like it.

We should probably point out that nothing is about to change. Nothing at SCOTUS can revive software patents any time soon (or ever). The USPTO changing its guidelines won’t impact what courts are saying, as we explained a week ago. Dennis Crouch’s latest outline of SCOTUS cases is encouraging in the sense that he too is willing to reveal nothing in the face of Alice, which soon turns 4.5 years old.

Last night the patent maximalist Dennis Crouch said he was “fairly disappointed with this decision by Chief Judge Prost” (CAFC) because she’s not a patent maximlist like him. It’s a serious problem when a bunch of flaming lawyers and trolls-friendly scholars think they ‘own’ the patent system (not actual innovators), just like taxi drivers assume they ‘own’ the roads. To quote his views in full: “I am fairly disappointed with this decision by Chief Judge Prost. The Federal Circuit flipped the jury’s infringement verdict based upon its revised claim construction. Nothing strange there, except that the court did so without actually construing the term in question. Seems improper to me.”

Really? Improper? That’s like saying, “I don’t accept the judgment because you did it wrong!”

Such is the nature of patent maximalists however; we’ve been showing for years how they attacked PTAB and its judges, culminating in attacks on SCOTUS and CAFC earlier this year. If it keeps getting worse, sooner or later judges will get rather angry at these patent maximalists and rule against them just for spite.

A lot can be said about Techrights and its attitude, but we never attack judges unless they engage in clear misconduct like Rader and Gilstrap do. Judges have a job to do and in a society saturated with judge-bashing blowhards civility goes down the drain.

Looking at some recent decisions and outcomes (from courts, i.e. judges), we are very much encouraged. More US patents have been deemed “abstract” and even in district courts, which are less strict than CAFC in that regard. Here’s one from Delaware, the busiest district for patent lawsuits:

Plaintiff Guada Technologies, LLC (“Guada”) sued Defendant Vice Media, LLC (“Vice Media”), alleging infringement at least claim 1 of U.S. Patent No. 7,231,379 (“the ’379 patent”). Vice Media then filed a motion to dismiss. Last week, Judge Richard G. Andrews of the U.S. District Court for the District of Delaware ruled that the claims are directed to an abstract idea under 35 U.S.C. § 101, but that a factual issue remains as to whether the claims provide an inventive concept.

The ’379 patent, entitled “Navigation in a hierarchical structured transaction processing system,” relates at a high level to navigating through a hierarchical network of “choices” (e.g., transactions, or operations where information is accessed) to accomplish a goal. In such a network, choices are arranged as nodes in a graph structure. As an illustrative example, Figure 3 of the ’379 patent is shown below, which is in the context of airline reservations.

In the ParkerVision case, as revealed by the same site, the court asserted/called “unpatentable” (35 U.S.C. §§ 102 & 103 cited) a patent not tolerated by CAFC either:

On September 13, 2018, the Federal Circuit affirmed three final written decisions of the U.S. Patent Trial and Appeal Board that held unpatentable various claims of U.S. Patent No. 6,091,940, owned by ParkerVision. The ’940 patent, entitled “Method and System for Frequency Up-Conversion,” relates to the frequency conversion of low-frequency baseband signals to higher-frequency (e.g., radio frequency or RF) signals.

Qualcomm filed three petitions for inter partes review challenging the ’940 patent. The PTAB’s (and later the Federal Circuit’s) analysis split along whether the claims were apparatus or method claims.

[...]

The panel, which included Judges O’Malley, Reyna, and Taranto, was unmoved by ParkerVision’s position…

[...]

The panel treated the method claims of the ’940 patent in a wholly different manner, stating that Qualcomm failed to “present evidence and argument that a person of ordinary skill would have been motivated to operate Nozawa in a manner that satisfied the ‘plurality of harmonics’ limitation.” Furthermore, Qualcomm did not advance any position whether Nozawa’s device would actually output a periodic signal with a plurality of integer-multiple harmonics. Namely, the panel reiterated InTouch Techs. Inc. v. VGO Commc’ns, Inc., 751 F.3d 1327, 1346-1347 (Fed. Cir. 2014), that parties seeking to invalidate method patents must show that a skilled artisan would have been motivated to combine the teachings of the prior art references to achieve the claimed invention, and that the skilled artisan would have had a reasonable expectation of success in doing so. Instead, the panel wrote, “Qualcomm’s petitions and accompanying expert testimony solely concerned whether the fundamental frequency itself is included in the meaning of ‘harmonics.’”

In other words, with respect to apparatus claims, the Federal Circuit stated that if a prior art reference discloses an apparatus that is reasonably capable of operating as claimed, that reference could anticipate or render obvious the claims at issue. Additionally, when considering method claims, a reference is properly asserted, under 35 U.S.C. §§ 102 & 103, when there is a clear motivation to combine the references and a demonstrated expectation of success by a skilled artisan.

Judges O’Malley, Reyna, and Taranto have generally been ruling just fine. Crouch once resorted to an ugly personal attack on Judge Reyna, but what else can be expected from patent maximalists who can’t get their way?

Speaking of patent maximalists, Matthew Bultman (Law360) recently wrote about another new Federal Circuit outcome. Abstract patents are rarely tolerated by the judges and here’s another example where Alice gets cited:

The Federal Circuit on Monday upheld a finding that parts of four robotics patents were invalid under the U.S. Supreme Court’s Alice test, preserving a victory for Invensys Systems Inc.

Another new Alice-centric decision from this court was mentioned just before the weekend: “Gust v Alphacap #FederalCircuit 9/28/18 reverses s 1927 atty fee award against NPE AlphaC and its lawfirm Gutride (joint/sev). DCt view of crowdfunding s/w patents Alice-ineligible but no settle. P’s position “colorable.” 1927 std=”exacting.” Firm’s litigation acts not bad faith.”

What’s really noteworthy here is the consistency in which CAFC rejects abstract patents, citing Alice. Back in 2016 CAFC did not always do this. Things changed for the better around 2017 when CAFC accepted just about zero software patents. We wrote about this several times last year. Alice really took a strong(er) foothold at CAFC after Judge Mayer had ruled against software patents in Intellectual Ventures v Symantec. Nothing has been the same since. We hope things will stay the same. So do groups like HTIA, CCIA and the EFF.

Speaking of the EFF, days ago it named “Stupid Patent of the Month” for September (copy in TechDirt). It was unveiled by Daniel Nazer (EFF), who is rightly concerned that the patent office feeds patent trolls with software patents. To quote:

This month’s stupid patent describes an invention that will be familiar to many readers: a virtual reality (VR) system where participants can interact with a virtual world and each other. US Patent No. 6,409,599 is titled “Interactive virtual reality performance theater entertainment system.” Does the ’599 patent belong to the true inventors of VR? No. The patent itself acknowledges that VR already existed when the application was filed in mid-1999. Rather, it claims minor tweaks to existing VR systems such as having participants see pre-recorded videos. In our view, these tweaks were not new when the patent application was filed. Even if they were, minor additions to existing technology should not be enough for a patent.

The ’599 patent is owned by a company called Virtual Immersion Technologies, LLC. This company appears to have no other business except patent assertion. So far, it has filed 21 patent lawsuits, targeting a variety of companies ranging from small VR startups to large defense companies. It has brought infringement claims against VR porn, social VR systems, and VR laboratories.

Virtual reality was not new in mid-1999. The only supposedly new features of the ’599 patent are providing a live or prerecorded video of a live performer and enabling audio communication between the performer and a participant. Similar technology was infamously predicted in the Star Wars Holiday Special of 1978. In this sense, the patent is reminiscent of patents that take the form: “X, but on the Internet.” Here, the patent essentially claims video teleconferencing, but in virtual reality.

If this patent was to be properly (re)assessed, it would almost certainly be invalidated. Such patents are dropping like flies these days. Examiners ought to stop granting these already. The certainty associated with US patents would otherwise suffer.

Josh Landau (CCIA) is meanwhile writing about patent trolls under the euphemistic label “NPEs”:

NPEs Are Opportunistic Litigants

One finding in the paper is that, controlling for other characteristics, NPEs target defendants opportunistically—they look for defendants who either have a relatively high amount of cash or who have recently received positive cash shocks (e.g., a VC investment).

This seems reasonable—after all, why sue someone who can’t pay you anything? Except that it pairs with two other key findings in the paper. First, NPEs target cash-rich companies with smaller legal teams. And second, both large operating companies and smaller inventors who file patent infringement lawsuits don’t exhibit the same behavior with respect to targeting firms with high cash reserves and small legal teams. In fact, this behavior is not observed in any other type of litigation—only in NPE patent litigation.

In other words, NPEs and operating companies behave in fundamentally different ways as plaintiffs, ways that suggest that NPEs litigation strategies are not aimed at policing infringement but rather at targeting for financial return, regardless of the strength of the infringement case.1

When paired with the finding that NPE litigation has a negative impact on innovation at the targeted firm, this means that NPEs are more likely to target small innovators and particularly to target the small innovators who are most likely to succeed absent NPE intervention, behavior not seen as part of operating company litigation.

[...]

The evidence continues to make clear that NPEs are a tax on ingenuity and economic activity. Reforms like IPR and the Alice case have been effective in helping to reduce NPE activity.

So why are there efforts—including from U.S. Patent and Trademark Office Director Iancu—to minimize the effectiveness of these reforms?

He’s not interested in reforms. He views them as a mistake.

Unlike his predecessor Michelle Lee, he’s not even technical. Prior to Michelle Lee there was David Kappos, who Eli Mazour (under the section “Expert Analysis”) speaks to in Law360. IBM ‘mole’ in USPTO? He’s now an IBM-funded lobbyist for software patents. He’s serving the litigation lobby and he himself works for a law firm. Mazour says: “Almost a decade before Secretary of State Mike Pompeo embarked on a mission to bring “swagger” back to the U.S. State Department, David Kappos successfully brought it to the [USPTO]…”

He brought “swagger”? Really? It was a boon for patent trolls, that’s all it was. Litigation soared.

The litigation ‘industry’ currently hope that Iancu will be another Kappos. This new article by McKee, Voorhees & Sease, P.L.C. is titled “Hope From The PTO Director” regarding “Patent Eligibility” as if the sole goal of a Director is to endlessly broaden patent scope.

Forbes, we might add again, is giving a platform (even whole blogs!) to trolls and aggressors, brandishing patent propaganda every single day. Forbes is a rag of billionaires who make a living by attacking society, so trolls’ agenda seem compatible.

Watch how patent troll David Pridham (Dominion Harbor) calls the Director of the patent ‘industry’ “New Sheriff Aims To Stop Patent Thievery” (that’s the headline). So Mr. Iancu found support… from patent trolls. That says quite a lot about him.

This patent troll appears to be hiding behind yet another one of its many shells, having taken patents from Microsoft’s largest troll, Intellectual Ventures.

Peter Keros wrote about Dominion Assets LLC (we assume part of Dominion Harbor):

Expert testimony on patent royalties that is unsupported by evidence is excluded. Dominion Assets LLC v. Masimo Corp., Case No. 14-cv-03002 (N.D. Cal. Aug. 1, 2018). Plaintiff Dominion alleged infringement by Defendant Masimo of U.S. Patent Nos. 5,379,764 and 5,460,177, which are directed to radiation measurement techniques for blood concentration. Dominion presented expert testimony on a reasonable royalty. Masimo filed a motion to exclude the expert’s testimony as (1) failing to rely on a license agreement that is economically comparable to the patented invention, (2) failing to apportion damages to the allegedly infringing features, and (3) failing to tie the royalty rate to the facts of the case. The Court agreed with Masimo, excluding Dominion’s expert testimony on damages.

His blog colleague, Bryan Hart, wrote about Microsoft’s troll Intellectual Ventures and its latest CAFC ordeal:

In the recent case Intellectual Ventures I LLC v. T-Mobile USA, Inc., the Federal Circuit overturned a district court’s claim construction for reading in a limitation and upheld the district court’s invalidation for indefiniteness for including a subjective term.

[...]

To show a disavowal, a defendant is often better served by focusing on the elements of the prior art rather than parsing the language of the patentee’s responses. (It’s not clear whether this strategy was available to T-Mobile here.) Heavy scrutiny of the language of the patentee’s counterarguments can often be outweighed by other intrinsic evidence. The prior art can support a more compelling story: the patentee shrank the scope of its claims because it hadto, in order to escape prior art disclosing the disavowed element.

So the patent office kept ‘producing’ patents for patent trolls — only for these patents to repeatedly get thrown out by courts. If the patent office wants to move in a positive direction, it will restrict the rules and lower the number of grants. Sometimes less is more (like higher quality or more legal certainty).

Here’s a new press release all about John Hallquist, who is (or was) a software developer. They keeping harping about “patents”, but what good are those patents they speak of in this new press release? Probably worthless after Alice, which according to Ryan Davis (Law360) keeps squashing such patents even in district courts. The article “Menu Patent In Case Against Domino’s, Others Axed By Alice” (mostly behind paywall) says that “[t]he week before a series of trials were set to begin, a California federal judge has ruled that an online menu patent asserted against Domino’s Pizza Inc. and dozens of other…”

That’s just more of the same.

Watch the anti-Alice brigade, Mr. Gross in this case, moaning about it: “No surprise, rather than give #patent owner a fair hearing at trial, D Ct judge in CA decides to lighten his caseload with a little “ALICE-AWAY ABSTRACT IDEA INVALIDATION” spray! quick, easy, no muss, no fuss, makes dockets PATENT clean!”

Go ahead and bash the court/s. Carry on. You’ll just alienate judges. For merely applying the law, based on precedence and common sense, they receive abuse and scorn. All this ridicule is counterproductive and makes the atmosphere more toxic. Remember that Mr. Gross contributes to sites of patent trolls. He’s close to patent trolls.

Notorious patent troll PersonalWeb Technologies LLC is apparently trolling news sites nowadays. Having run out of who to sue, now the troll is suing BuzzFeed. David Matthews (Law360) wrote about it as follows:

BuzzFeed Inc. has become the latest high-profile website to face an infringement suit over cloud storage patents from PersonalWeb Technologies LLC, a software developer that has filed dozens of similar suits…

The patents in question are highly notorious and they’re likely to be squashed entirely some time in the future, preventing further extortion.

Going back to patent maximalists, here’s a recent rant about the Federal Circuit. The concept of “trade secrets” causes/introduces a problem akin to secret trials that the public cannot fully see or understand. Here is what Dennis Crouch wrote:

The Federal Circuit has been releasing a substantial number of sealed opinions that stem out of confidential briefs. The Court’s usual operating procedure is to issue the opinion in a sealed form along with an order to show-cause as to what aspects of the opinion (if any) need to remain under seal.

[...]

I’ll note here that the “rights” defined by Section 1835(b) appear purely procedural — the trade secret owner gets a chance to explain its position in an under-seal filing. It does not actually prevent the court from subsequently disclosing the alleged trade secret.

Crouch has long attempted to slow PTAB down by endlessly ranting about decisions without written opinions. Will he betray the trade secret laws in an effort to discredit the court? It would backfire on his reputation if he tried…

Mind the pattern. From complaining about the law or lawmakers they have moved on to smearing courts and sometimes individual judges. Not nice…

The Federal Circuit or CAFC seems to have gotten even tougher on bogus patents (sometimes stricter than the Patent Trial and Appeal Board or PTAB), so the patent zealots will do more judge-bashing, as Watchtroll did 10 days ago when it wrote: “The Federal Circuit recently issued an opinion affirming the Patent Trial and Appeal Board’s (“PTAB”) finding of obviousness of a hot-spot technology patent based on implicit disclosures in a prior art reference.”

Two days later it was looking for PTAB ‘scandals’, chastising judges for daring to change their minds. To quote: “The ’977 patent is directed to a dental implant comprising, inter alia, “a coronal region of the body, the coronal region having a frustoconical shape wherein a diameter of an apical end of the coronal region is larger than a diameter of acoronelend of the coronal region” (frustoconical limitation). The ’977 is governed under pre-AIA laws, and the undisputed critical date for purposed of pre-AIA 35 U.S.C. § 102(b) is May 23, 2003.”

AIA changed the rules and SCOTUS changed all sorts of things, including patent scope. So whatever happened beforehand may no longer be of relevance. That’s not a concept that’s difficult to grasp. Law changes over time. It can evolve or devolve (depending on different people’s perspectives). What worries us about the US is that Trump appointed a patent maximalist as Director. This Director seems not to respect courts and instead puts patent law firms first. He came from a patent law firm that had worked for Trump.

Days ago we saw this press release about two new US patents, one of which on “Methods for Decryption as a Service,” i.e. a bunk software patent (maybe the other patent is also a software patent, but we haven’t checked). What good are these bogus patents from Bluefin? Why did examiners grant such patents?

Here is another press release about bunk, invalid software patents. Nothing to brag about, certainly not in a press release. Why does the USPTO play along with this? Section 101 among other sections would likely come into conflict.

If often seems as though the sole goal is to grant as many patents as possible, making the patent system almost impossible to navigate. Mind this other new press release. “Patent Management Software Market to Witness Comprehensive Growth by 2028,” according to Patent Management Software Market hoping to Witness Comprehensive Growth by 2028. No rebuttal necessary. Just the stupid headline. Pure marketing. They offer to help “manage” a pool of millions of patents, many of which of dubious validity. Over at Watchtroll, days ago Margaux Savee, Suni Sukduang and James Murphy said that the USPTO updated its trial practice guide. Maybe they should update it to warn that many of the patents it grants are of no use in trials.

Speaking of Watchtroll, this one from Thursday was rather funny. “Patented Innovations Create the Future,” says Watchtroll, as if the innovations would not be made without those patents? That’s like saying dead people create innovations because all people die eventually…

The latest nonsense from Watchtroll (yesterday) was titled “Intellectual Property Considerations and Guidance for Start-Ups: Patents” (link).

Well, “Start-Ups” don’t need patents most of the time; they’re most threatened by patents, albeit misled on those by patent law firms (looking to just make more ‘sales’).

The day prior to this Watchtroll wrote about patents on fictional things, taking note of stuff like ‘flying cars’ (there are only prototypes to that effect and they don’t work well). To quote:

With the future of flying vehicles for personal transportation coming into more focus, we wanted to explore filings at the U.S. Patent and Trademark Office to see the current state of flying car technologies, both in the patent grants being issued by the UPSTO as well as in the patent applications being filed at the agency.

Will the patent office try to interject some excitement by granting patents on merely theoretical things? Even things like spacecrafts from science fiction movies?

Taking stock of much of the above, it’s sometimes depressing to see the patent office (especially its management) — unlike courts — falling into the very hands of those whom officials are supposed to govern/control. Iancu was never the right person for the job.

Watchtroll will no doubt strongly reject judges, bashing them routinely (even Crouch has joined this judge-bashing ‘club’). Yesterday it squeezed out an exception to the norm, highlighting a reversal by CAFC (overturning PTAB):

The Federal Circuit recently reversed a Patent Trial and Appeal Board (“Board”) inter partes review decision on nonobviousness, holding that the Board erred when it did not require Synvina, the patent owner, to come forward with evidence of nonobviousness (e.g., teaching away) once DuPont, the petitioner, established the prior art disclosed an overlapping range for a claimed result-effective variable. See E.I. du Pont de Nemours & Co. v. Synvina C.V., No. 2017-1977, 2018 U.S. App. LEXIS 26194 (Fed. Cir. Sept. 17, 2018) (Before Lourie, O’Malley, and Chen, J.) (Opinion for the court, Lourie, J.).

We wrote about this before. Several times in fact. Days prior to this Joseph Arshawsky wrote about the Federal Circuit agreeing with PTAB, which is the norm really. PTAB has squashed yet more bogus patents and CAFC affirmed, as usual:

The Federal Circuit affirmed the PTAB’s final decision following inter partes review that claims 1-5 and 19 of the ’977 patent were unpatentable as anticipated (Nobel Biocare Services AG v. Instradent USA, Inc., September 13, 2018, Lourie, A.).

Federal Circuit coverage by Dennis Crouch — if and when it does not involve mocking judges — looks like this:

In this past summer’s Power Integrations v. Fairchild decision (Power Integrations I), the Federal Circuit held that the entire market value rule cannot be used to calculate infringement damages unless the patentee proves that the unpatented features in the accused product did not influence consumer demand. The patentee had not met that burden and so the $140 million verdict was vacated and remanded. Power Integrations, Inc. v. Fairchild Semiconductor Intl., Inc., 894 F.3d 1258 (Fed. Cir. June 3, 2018) (altered on rehearing)

On petition, the original panel has revised its opinion — but maintained its judgment vacating the damage award.

So nothing really changed. Generally speaking, nothing works in favour of software patents proponents and patent maximalists these days; except perhaps some public speeches by Iancu (albeit he’s not a judge or a lawmaker).

Last but not least, check out this post from Dennis Crouch. Billionaires with patents don’t actually write their own patent applications, they just take credit for work of people whom they manage (e.g. Steve Jobs) or exploit/rob (e.g. Edison). This is what Crouch wrote:

This billionaire gets no respect! Gilbert Hyatt is the named invenetor [sic] on 70+ US patents and has 400+ pending patent applications “all of which were filed prior to June 8, 1995.” That date is critical because those “pre-GATT” applications will remain in force for 17-years from their issue date (if they ever issue). These applications claim priority back to the early 1970s. For the past 10 years, Hyatt has been trying to get his cases heard by the PTAB – but has been repeatedly foiled by PTO delays and unilateral reopening of prosecution. Here, the Federal Circuit sided with the PTO in Hyatt’s generalized challenge to this practice — finding portions of his his petition time-barred and that the substance of his challenge lacked merit.

[...]

The USPTO has been quite frustrated with Mr. Hyatt. It turns out though that the frustration – lets call it that – is mutual. Under Dir. Kappos, the PTO formed a special HYATT Unit that basically did nothing — refusing to examine his applications or hear pending PTAB appeals. In Hyatt v. USPTO, 797 F.3d 1374 (Fed. Cir. 2015), the Federal Circuit sided with the PTO on the special “requirements” the PTO had placed on HYATT applications that forced him to limit each patent family to 600 claims (absent a showing that more claims were necessary) and to identify the earliest priority date for each claim (with evidence). The PTO then re-opened prosecution (rather than hearing the appeals he had filed). And, the E.D.Va. district court sided with the PTO that re-opening prosecution was appropriate. Hyatt v. USPTO, 146 F. Supp. 3d 771 (E.D. Va. 2015).

Imagine what would happen if the USPTO dealt similarly with all applicants, not just very rich people. Sadly, however, the current Director was appointed by two billionaires. One is accused of corruption and sexual crimes; the other one of graft. This basically says all one needs to know about today’s USPTO leadership.

09.24.18

USPTO FEES ACT Makes the US Patent Office a Money-Making Machine That Systematically Disregards Patent Quality

Posted in America, Law, Patents at 4:04 am by Dr. Roy Schestowitz

Taken for a ride by large corporations and their lawyers

LRT Interior

Summary: The lingering issues with patent assessment at the US patent office, which unlike US courts isn’t quite so impartial an actor (it benefits more from granting than from rejecting)

THE PATENTS being granted by the USPTO are sometimes worrying for ethical reasons, not just economic/business/innovation reasons. Consider this new article. Companies now compete over who can best figure out what’s inside your mind based on photos you take (or are taken in, even without your consent). Suffice to say, from our point of view a big issue with this patent is that it’s a software patent. Why do examiners still grants these? As if 35 U.S.C. § 101 does not exist and as if the Patent Trial and Appeal Board (PTAB) — assuming an inter partes review (IPR) got filed — would not invalidate it with the Federal Circuit‘s approval?

“They reject abstract things for not being patentable, for being mere thoughts, not “revolutionary”.”These patents are not at all “innovative”; the underlying ideas, moreover, are implementations in code, not innovation. Watchtroll’s David Wanetick wrote the other day that US “[p]atent examiners deem inventions to be “abstract” if they are too revolutionary” (Watchtroll actually wrote that nonsensical sentence last week!). What an utter lie. What lunacy. They reject abstract things for not being patentable, for being mere thoughts, not “revolutionary”. Here’s the full paragraph for more context:

Patent examiners deem inventions to be “abstract” if they are too revolutionary or “obvious” if the invention is less than revolutionary. Those patent applications that survive such prosecutorial rejections are likely to be clipped if they become subject to inter partes review challenges. For example, in Ex parte Hiroyuki Itagaki, the Patent Trial and Appeal Board ruled that a magnetic resonance imaging (MRI) machine is an abstract idea and thus patent ineligible.

No, that wasn’t what actually happened. MRI machines are very old (I should know; I worked with these); the writer alludes to the claims by the wrong ‘wholesale’ description. And so something that somehow relates to MRI machines got rejected (as patent ineligible).

“There should never be patents on mathematics.”Yes, so? So what? This is generally the sort of “intellectual dishonesty” we’ve seen Watchtroll accused of online. Watchtroll now celebrates software patents (i.e. bogus, invalid patents) in “A Look at RSA Cryptography and the Seminal Patent that Landed the Inventors in the Hall of Fame,” but we don’t suppose the writer knows (or cares) that these algorithms are not inventions but implementations or applied mathematics. There should never be patents on mathematics. Few would attempt to dispute that.

It has meanwhile been noted by Dennis Crouch (a patent maximalist, albeit more moderate than Watchtroll) that the USPTO maintains the financial incentive to just grant and grant and grant. Giving large corporations monopolies and making a lot of money in the process (creating money out of a mere concept!) or in his own words:

S. 3416 An Act to amend the Leahy-Smith America Invents Act to extend the period during which the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office may set or adjust certain fees.

Mr. Grassley (for himself, Mrs. Feinstein, Mr. Coons, and Mr. Hatch) recently introduced the USPTO FEES Act – Funds for Efficient and Effective Services Act. The primary clause in the provision would extend the USPTO feemaking authority for an additional eight years.

Why should the USPTO get to decide how much money it makes unless it is a private, pro-profit corporation? Going back to Watchtroll, yesterday it carried on pushing for legislation that would worsen patent quality. They said, “let us go on the record to say that we support: The TROL Act, R.6370; The STRONGER Patents Act, R.5340; The Restoring America’s Leadership in Innovation Act, H.R. 6264, sometimes referred to as the Massie-Kaptur Act…”

“…what we have at the moment is a system that puts profit before public interest and therefore grants like mad.”All of these are awful and that last one we wrote about several times in summer [1, 2, 3].

What’s needed in the US is a patent system that prioritises public interest. Instead, what we have at the moment is a system that puts profit before public interest and therefore grants like mad. There’s also a profound issue with corruption.

09.16.18

Months After Oil States the Patent Maximalists Are Still Desperate to Crush PTAB in the Courts, Not Just in Congress and the Office

Posted in America, Law, Patents at 11:03 pm by Dr. Roy Schestowitz

Patent Lawyers' Tears

Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) improve patent quality and are therefore a threat to those who profit from spurious feuding and litigation; they try anything they can to turn things around

THE new U.S. Patent and Trademark Office’s (USPTO) Director is no friend of PTAB, unlike his predecessor. The Congress, as we noted some hours ago, is being approached by those looking to undermine PTAB. 35 U.S.C. § 101 has a lot to do with it, sometimes because of drug companies.

“There’s an attempt there to make life harder for filers, reducing the overall number of IPRs.”If the patent ‘industry’ cannot get PTAB and the Federal Circuit on its side, then it typically resorts to attacking both. Not a clever strategy

Days ago we saw RPX‘s press release titled “RPX Corporation Completes Transaction with Realtime Data” [1, 2]. The patent maximalist Matthew Bultman (Law360) then recalled a case which patent maximalists hoped would help friction, eroding access to PTAB and degrading productivity. To quote:

Defensive patent group RPX Corp. is asking the full Federal Circuit to reconsider a ruling that instructed the Patent Trial and Appeal Board to use a broader test when looking for unnamed beneficiaries in patent reviews, warning the ruling has “massive implications.”

RPX filed a petition for en banc rehearing on Friday, nearly two months after a three-judge panel ordered the PTAB to reconsider whether Salesforce.com Inc. should have been named an interested party in inter partes reviews that RPX requested in 2015 challenging two regulatory…

This would have implications for Unified Patents as well. There’s an attempt there to make life harder for filers, reducing the overall number of IPRs. That’s what SAS proponents sought to accomplish while ‘hiding’ the decision on Oil States a few months ago. SCOTUS still stubbornly defends PTAB. SAS was no exception to this; it was just something for the USPTO to exploit (Iancu in particular) if the goal is to slow down PTAB, if not by fee hikes and 'decapitation' then additional workload per IPR.

“Such a mindset is a dangerous mindset and surrogate of institutional corruption.”Recently we saw the Smartflash petition being promoted by sites like Patently-O. A petition to SCOTUS isn’t so extraordinary a thing; not many are successful, but the patent maximalists view this one as a threat to PTAB, so obviously Watchtroll has just promoted it as well, preceded by the usual propaganda:

In early August, patent owner Smartflash filed a petition for a writ of certiorari with the U.S. Supreme Court to appeal a case stemming from covered business method (CBM) review proceedings carried out at the Patent Trial and Appeal Board (PTAB). Smartflash is asking the Supreme Court to decide whether PTAB administrative patent judges (APJs) are principal officers of the United States who are subject to the terms of the Appointment Clause, whether CBM review of patents disclosed prior to passage of the America Invents Act (AIA) violates the Fifth Amendment’s Due Process Clause, and whether undisputed evidence that an invention is not unduly preemptive is relevant to answer questions of patent eligibility under 35 U.S.C. § 101.

At issue in this petition are a total of 30 CBM reviews petitioned by Apple, Samsung and Google against Smartflash, which were instituted by APJ panels at the PTAB. Although the APJ panels in these cases found that petitioners did not establish a likelihood that Smartflash’s patent claims were invalid under on 35 U.S.C. § 102 grounds for novelty or 35 U.S.C. § 103 grounds for obviousness, they did find a likelihood that the patent claims were invalid on Section 101 grounds for being directed to patent-ineligible subject matter. In the CBM reviews, the PTAB panels applied the two-part Alice test to determine first that the claims were directed to the abstract idea of conditioning and controlling access to content based upon payment, and then second that the additional elements of the claims did not contain an inventive step, thus rendering the claims invalid under Section 101. Smartflash appealed the PTAB’s final written decisions and the Federal Circuit issued a Rule 36 affirmance upholding the PTAB’s decisions without an opinion.

These “decisions without an opinion” aren’t so unusual and less than a day ago we wrote about Patently-O‘s long-going lobby on the matter.

At the moment we generally see the patent maximalists working hard to shut down or at least weaken PTAB at the legislative, judicial, and executive levels. They also hope that Iancu, a Trump appointee from the patent microcosm (Trump had paid his firm), will simply disregard courts' decisions. Such a mindset is a dangerous mindset and surrogate of institutional corruption.

Watchtroll and Other Proponents of Patent Trolls Are Trying to Change the Law Outside the Courts in Order to Bypass Patent Justice

Posted in America, Law, Microsoft, Open XML, Patents at 11:02 am by Dr. Roy Schestowitz

Court's steps

Summary: 35 U.S.C. § 101 (Section 101) voids almost every software patent — a reality that even the most zealous patent professionals have come to grips with and their way of tackling this ‘problem’ is legislative, albeit nowhere near successful (so far)

TWO years ago we still wrote some articles about the EPO‘s relationship with Microsoft — a subject we had covered in years prior to that and got us some threats from the EPO’s lawyers. A few weeks ago we wrote about the USPTO in relation to "Changing Rules to Punish PTAB Petitioners and Reward Microsoft for Corruption at ISO" — a subject which was later discussed by the U.S. Patent and Trademark Office’s Patent Public Advisory Committee (PPAC), as scheduled earlier this month. Based on Watchtroll’s report on this: “The USPTO is also looking to encourage patent applicants to file their applications in the DOCX format by introducing a new surcharge for utility non-provisional applications that are filed in formats other than DOCX. This would introduce a new $400 fee for such applications. According to Hourigan, the decision to encourage DOCX-format filings is intended to simplify the sharing of application data as DOCX files are XML-based. Other formats, such as PDFs, must be converted to XML using optical character recognition (OCR), a technology which is a source of potential errors.”

“Related to this is a bill that deals with fee-setting authority, as covered by CCIA three days ago.”So they basically decided that proprietary Microsoft formats are the gold standard? This is ridiculous. What about ODF (Open Document Format) or XML-based formats that do not contain blobs and Microsoft-specific directives like OOXML?

Related to this is a bill that deals with fee-setting authority, as covered by CCIA three days ago. Josh Landau (CCIA’s main patent matters person) said:

Today, the House Judiciary Committee is scheduled to markup Rep. Chabot’s newly-introduced SUCCESS Act, which is itself a combination of portions of two other bills Patent Progress has covered: Reps. Comstock and Adams’ SUCCESS Act, and the fee-setting authority contained within Rep. Chabot’s BIG DATA for IP bill.

Each bill is individually worthwhile. The SUCCESS Act attempts to address the relatively low number of patent applications filed by underrepresented groups. And fee-setting authority is important to help prevent marginal patents from being issued.

At the same time, Rep. Chabot’s bill does not currently incorporate any of the suggested improvements to the SUCCESS Act designed to study the impacts of patents that never should have been granted when they’re used to threaten innovative companies founded by underrepresented minorities. Without these improvements, the SUCCESS Act can only study a portion of the barriers to innovation faced by underrepresented minorities.

The problem with many of these bills is that they’re promoted by bribed politicians. They try to shape the law depending on which millionaires and billionaires sponsor them.

Going back to Watchtroll, a site that promotes several anti-PTAB bills (but hasn’t done so recently), on the same day (as the above) it published complete nonsense, pretending that patents are necessary for startups and whatnot (they’re not). In “Can I hold on long enough until the madness stops?” (also published on the same day) Watchtroll gives Jeffrey Killian a platform in which to frame patent quality as “madness”. These people are laughable. Here’s the portion which bemoans Section 101: “This anti-patent bias toward software is illustrated in many ways. The Supreme Court of the United States added the words “abstract” and “significantly more” to 35 U.S. Code § 101 and did not define such terms. Previously 35 U.S. Code § 101 granted patents in the past and now 35 U.S. Code § 101 has become a provision to deny software patents on a wholesale basis. The added judicial exceptions were not approved by Congress, the law still reads the same, the added and undefined terms were legislated from the judicial bench. Something is inherently wrong with this situation from a common person’s viewpoint.”

SCOTUS decided on Alice and patent maximalists like Watchtroll and Patently-O try hard to get US Congress to intervene, counterbalanced by the likes of HTIA, CCIA, EFF etc.

Patently-O meanwhile says that the “House [is] Considering [a] Bill that Would Preclude Enforcement of Injunctions Against Non-Parties,” interjecting the author’s views as follows: “I am trying to envision the problems this creates for patents, and happen to be writing a book on Remedies right now. Problems?”

Injunctions are basically something like an embargo, imposed by the ITC typically. We have already seen how the ITC simply disregards judgments made by the Patent Trial and Appeal Board (PTAB) on inter partes reviews (IPRs), before or after the Federal Circuit gets involved. This means thar they disregard and totally disreprect the principle of due process — something which certainly makes the U.S. Patent and Trademark Office (USPTO) seem rather aloof or detached from the rule of law.

Courts aren’t entirely “pure”, but high courts a lot less impure than politicians with “campaign contributions” and a patent office that measures “success” by number of patents rather than justice. So we’d rather rely on Justices than on a bunch of politicians.

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