Bonum Certa Men Certa

Patent Trial and Appeal Board (PTAB) Under Attack by IBM and Other Patent Parasites Who Undermine Patent Quality

Ginni Rometty



Summary: The PTAB, which has thus far invalidated thousands of abstract/software patents, is under a coordinated attack not by those who produce things but those who produce a lot of lawsuit

HAVING just covered the PTAB-dodging "scam" which the Mohawk tribe participates in, we now turn our attention to PTAB bashing or to shameless lobbying by the patent 'industry'. The EPO has already marginalised its equivalent of PTAB, known as the appeal boards, in order to reduce patent quality, so why not the USPTO too?



"Manny Schecter, IBM's patent chief who is friends with Watchtroll, is already lobbying the likely new Director of the USPTO."Watchtroll is attacking PTAB again. It does this almost every other day. It has done this many dozens of times if not over a hundred times. Who or what is Watchtroll? This is basically a bunch of lawyers trying to destroy technology companies. Just look at who writes for them and who the founder is. His sidekick Paul Morinville is one of the radicals who burned stuff in unauthorised protests on USPTO premises and two days ago he too joined his 'master' in attacking PTAB. His headline speaks of a "failed PTAB experiment," but actually, it has been exceptionally successful when it comes to squashing bad patents which should never have been granted in the first place. Technology companies certainly support and appreciate PTAB! We wrote a lot about that. There are very few exceptions to this, notably IBM. "IBM continues to push for legislation to abolish Alice and restore swpats [software patents] in the US," Benjamin Henrion (FFII) wrote a few days ago. This does not surprise us because IBM is nowadays a lobbyist for software patents and it habitually attacks small(er) companies with large-scale patent lawsuits. Manny Schecter, IBM's patent chief who is friends with Watchtroll, is already lobbying the likely new Director of the USPTO. In what platform? None other than Watchtroll (soon to be promoted by Patently-O, increasingly conjoined with Watchtroll).

Here are some portions from what Schecter wrote, citing the villainous Chamber of Commerce (it would not be surprising if it's a front group to IBM too):

At long last, the next Director of the U.S. Patent and Trademark Office (USPTO) has been revealed. My congratulations to Andrei Iancu of Irell & Manella on his nomination to lead the USPTO. I recently wrote about the direction the next leader of the USPTO will need to provide[1] and the U.S. patent system remains at an important crossroads. Assuming Director-designee Iancu’s nomination is eventually confirmed, he will have the opportunity, through a variety of channels, to meaningfully influence the path of the U.S. patent system going forward.

In the 2017 U.S. Chamber report on Global IP[2] the U.S. patent system fell from the best in the world to tenth, equal with the patent system in Hungary. The Chamber report explains that the post-patent grant challenge proceedings created under the America Invents Act adds substantial costs and uncertainty, and the Court’s narrow interpretation of patentability of biotech and computer-related inventions puts the U.S. in a disadvantageous position as compared to international standards. Clearly there is work to be done to restore the competitiveness of the U.S. patent system. Unfortunately, there is currently a lack of consensus in the U.S. on how to proceed. Patent subject matter eligibility is prime among the substantive issues for which legislation has been proposed, but to date no legislation has been formally introduced. Many of the major IP associations have published resolutions urging legislation to amend 35 U.S.C. 101, but work to build consensus continues .[3]


So he is bashing AIA, which brought PTAB into existence. This isn't new or unexpected from him. The truth of the matter is, as IBM sues all sorts of companies the Patent Trial and Appeal Board (PTAB) often comes to the victims' rescue. We habitually name new examples, which this guy continues to keep abreast of [1, 2]. The latest:



IBM is a big patent bully, so PTAB invalidating its software patents and stopping its aggression is a good thing. But not in the eyes of the above patent maximalist, who is right now attacking the EFF in a patent trolls' site (Dominion Harbor), only to be promoted by other patent maximalists, including patent trolls.

Spotted the pattern yet? Notice who's attacking PTAB.

Again come out the PTAB bashers, who simply want software patents and a patent trolls resurgence, piggybacking SCOTUS by lobbying to abolish PTAB. There was a long article about this in Blooberg a few days ago. This long article by Tony Dutra did a reasonably OK job explaining that it's the patent microcosm against those who actually make stuff. To quote some portions from the article:

Stakeholders have filed 31 friend-of-the-court briefs reviewing petitioner Oil States Energy Services LLC’s (OSES) argument that a patent is a private property right that can only be revoked by a federal court, not by the PTO ( Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC , U.S., No. 16-712, briefs filed 8/31/17 ). Companies and individual inventors with patents contend that patent rights include the Seventh Amendment right to a jury trial, which is not provided for in a PTAB proceeding before administrative patent judges.

On the other side are the Silicon Valley heavyweights and generic drug manufacturers that have used IPR proceedings as a way to avoid the higher hurdle for showing patent invalidity in court. A federal judge and jury must presume the patent is valid and require clear and convincing evidence to the contrary. The AIA set up the IPR proceeding without the presumption of validity, with the challenger’s burden of proving invalidity by an easier standard, the preponderance of the evidence.

Counterarguments by Greene’s Energy Group LLC, the successful challenger to OSES’s U.S. Patent No. 6,179,053, which relates to protecting wellheads during fracking, and the U.S. Office of the Solicitor General, are due by the end of October. Several more amicus briefs supporting the AIA’s constitutionality are expected then as well.

The court has not yet set a date for oral arguments, but it should be before the end of this year, with a decision before June 2018.


Dutra then mentions the disgraced/corrupt judge, Randall Rader:

Critics often call the PTAB a “death squad” because of the high rate of patent claims that it kills, but the phrase was originally used to describe the constitutional questions about the board’s role.

Former Federal Circuit Chief Judge Randall R. Rader coined the term in 2013, before any IPR was decided. He meant it in a way that underlies the constitutional argument, that it is wrong to have the PTO with “7,000 people giving birth to property rights"—referring to the patent examiner corps—while PTAB judges are “acting as death squads, killing property rights.”


And finally:

IPLAC lays out the question in terms of the PTO’s rights as to follow-on action after a patent issues. Prior to the AIA, the Patent Act gave the PTO no such rights, according to the association’s brief. But the AIA changed the nature of the PTO’s ongoing involvement. From the implementation date, the PTO’s grant is better characterized as only an “issue-from-examination … while-subject-to-further-processes-of securement,” IPLAC said.


Not a bad article overall. Compare that to the usual PTAB/IPR bashing from Dennis Crouch. Days ago he wrote: "As a placeholder – I’ll note here that the pending en banc case of In re Aqua Products regarding amendments during IPR Proceedings is still pending before the Federal Circuit."

"Companies that make stuff like PTAB."Crouch spent a great deal of effort earlier this year trying to compel the Federal Circuit to step on PTAB's toes. Follow the money and the interests and it's abundantly clear what the motivations are...

Companies that make stuff like PTAB. This isn't a subjective observation.

Companies (or firms) that just make lawsuits hate PTAB. The evidence is out there for all to see (e.g. in the form of amicus curiae briefs, pretending to be the highest court's "amici").

Some law firms have grown so afraid/wary of PTAB that they apparently have such a thing as "PTAB chair". See this new article from a patent maximalists' news site:

Scott McKeown (right) has joined Ropes & Gray as partner in Washington, DC, and as chair of the firm’s Patent Trial and Appeal Board (PTAB) practice.


Maybe they should focus more efforts on applying for better patents (quality rather than quantity); then, PTAB would not be a concern to them and their clients.

To close this on a more positive note, have a look at the CCIA's Josh Landau with his analysis of Oil States, claiming that the PTAB's IPRs have saved over $2,000,000,000 in just 5 years. Here's a portion from Landau's good article:

This Saturday, September 15, 2017, marks the five-year anniversary of the first filing of an inter partes review. We’ve seen nearly 7,000 post-grant reviews filed since then, a Supreme Court case dealing with IPRs, and there are a pair of IPR Supreme Court cases up this term. [Oil States] [SAS]

Over the next few weeks, I’ll tell you about particular stories where inter partes and covered business method patent reviews have curtailed abusive litigation and allowed smaller companies to defend themselves even if they might not have been able to fight a full-fledged patent lawsuit.

But today I just want to step back and look at the effects of the inter partes review system as a whole. One of the reasons IPR was created was to “provid[e] a more efficient system for challenging patents that should not have issued; and reduc[e] unwarranted litigation costs and inconsistent damage awards.” (Page 39-40 of the House Report on the AIA.)

All in all, the IPR system has been incredibly effective at achieving these goals—I estimate that the implementation of inter partes review has helped plaintiffs and defendants avoid at least $2.31 billion in deadweight losses by providing an efficient system for challenging patents.

This benefit is purely based on avoiding deadweight loss from legal fees; it does not account for the benefit of preventing transfers from defendants to plaintiffs based on patents that should have been invalidated. The financial data used in this analysis is based on publicly available data, as well as some data derived from the 2017 AIPLA Economic Survey. Unfortunately, this survey is not publicly available; where possible, I have linked to open summaries of the data contained in the survey.


We certainly hope that Justices can tell apart parasites from producers. At the moment, with very rare exceptions, all those who oppose PTAB basically oppose science and technology. All they want is more and more litigation, blackmail, and threats (which merely drain money out of the productive economy).

Recent Techrights' Posts

Watch the FSF Party Live (via Livestream)
It's in WebM format, which is widely supported by now
Advocacy of Software Freedom Changed, LUGs Became Less Relevant
The way we see it, support groups like LUGs sort of outlived their usefulness when it became easier to install GNU/Linux
For the Second Time in a Few Weeks Microsoft Lunduke Makes False Accusations Against Senior Red Hat Staff to Incite a Despicable 'Troll Army'
Nothing that Microsoft Lunduke claims or says can be trusted
Compromised by NVIDIA Proprietary Library
Meanwhile in Boston there are "[r]oundtable talk with FSF volunteers (both in-person and online)"
How Software Patents Were Viewed or Their General Status Changed Over Time
A rough summary
 
"Bullshit Generators" (What RMS Calls LLMs) and Fake Images Already Target the FSF
Why does Google News promote fake articles about the FSF while omitting all the real ones?
Software Patents as a Bubble
Don't invest resources in hype; if you detect a bubble, run away from it
Links 05/10/2025: Political Leftovers, Climate Change, and Security Incidents
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, October 04, 2025
IRC logs for Saturday, October 04, 2025
When Microsoft "Integrates" Something With "AI" It Means It's Losing Money and Is Generally Hopeless
how did Bing fare after 36 months of LLM slop being hyped up as "replacement" for search?
Most Certificates Don't Improve Security, They Mostly Increase Downtime (for No Good Reason)
The 'Gemini sites' (capsules) are a growing force
The statCounter Site Has Data Integrity Problems
Maybe we'll get back to statCounter when its data becomes more "stable" again
10 Ways to Combat Software Patents
software patents are loathed also by proprietary software developers
"Just a Little Bit of Meat..."
Free software "absolutism" is not a radical stance, more so if the only "radical" belief the user possesses is that he or she must be in control of his or her software, and by extension his or her computer
Red Hat is Ignoring the Free Software Community, It's a "Fortune 1000" Vendor
Red Hat's blog also participates a lot in promoting of Wall Street's latest pump-and-dump "AI" scheme
Free Software Foundation Party Has Begun
We shall be focusing a lot on software patents today
Former Head of the Federal Trade Commission (FTC) Lina Khan Knows Whatever Microsoft Touches Will Die
Just like Skype (as recently as months ago) [...] When Microsoft grabs things, or when it buys things, it almost never ends well
Slopwatch: Fake Articles About LibreOffice in Austria and Wine 10.16
very short
Links 04/10/2025: "attempted Coup" Noted in Facebook, Russia Kills Journalists via Drones
Links for the day
Gemini Links 04/10/2025: Anesthesia and Baudpunk
Links for the day
Links 04/10/2025: "Privacy Harm Is Harm", Criticism Outlawed in US
Links for the day
Garmin Uses Linux for Some of the Garmin Products, Now It's Sued by Strava Using Software Patents
Software patents should never have been granted in the first place
Richard Stallman Will Give a Talk in Sweden in 6 Days
Dr. Stallman, despite his battle with cancer is still alive and mentally sharp
FSF Turns 40
We'll be focusing on patent-related topics this weekend
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 03, 2025
IRC logs for Friday, October 03, 2025
Gemini Links 04/10/2025: Distro Hopping and "Part Time"
Links for the day
We Are Turning 19 in One Month, FSF Turns 40 in 3 Hours (CET)
For our anniversary next month we still have no concrete plans
Patent Docs (or PatentDocs) Learned the Wrong Lessons From the Death of TypePad
Had they gone ahead with an SSG, they'd become a lot more future-proof
USPTO Patent Bubble Already Imploding, After Decades of Artificial Inflation, Entire Offices Close for Good
we can deduce that financial pressures (lack of "demand" for monopolies) play a role
TikTok is Not Harmless (Being CheeTok in the US Will Advance Orange Agenda)
Social control media isn't "fun and games"; it's a digital weapon that lets hostile groups or nations infiltrate others, then turn them against themselves
Andy Farnell and Helen Plews Explain What "Modern" Tech Does to Old People
Imposing terrible tech "religion" on people is not helping them
Tomorrow the Free Software Foundation (FSF) Turns 40 and Its Web Site is Still Slow Due to DDoS by LLM Slop Bots
For an advocacy group, uptime is important (for its message to remain accessible)
Slopwatch: Google News as a Firehose of LLM Slop About "Linux"
Google News is really bad
Datamation, Where I Used to Publish Articles, Appears to Have Been Sold to TechnologyAdvice Only to Become a Slopfarm
I'd prefer to not associate with that site anymore
Links 03/10/2025: "NPR’s Economics Lessons Come With Neoliberal Spin" and Canada Post at Risk
Links for the day
Gemini Links 03/10/2025: Panic Attacks and Food Adulteration
Links for the day
Links 03/10/2025: Lawyers Caught Using LLM Slop Explain Why They Did It, LibreSSL 4.1.1 and 4.0.1 Released
Links for the day
FSF Board Grew 50% Since Last Year, Has New President, Turns 40 in Two Days
It's a good move for the FSF and - by extension - for software freedom
Links 03/10/2025: Conflicts, Death of TypePad, and TikTok/CheeTok Gives a Boost to Far Right Groups in Europe
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 02, 2025
IRC logs for Thursday, October 02, 2025
Slopwatch: Linux Journal, Google News, and LinuxSecurity
They carry on polluting the Web with fake articles
Gemini Links 02/10/2025: Kubernetes With FreeBSD and robots.txt
Links for the day