Bonum Certa Men Certa

The Patent Trial and Appeal Board (PTAB) Supported by Congress, a Federal Judge, Soon to be Supported by the Supreme Court Too?

The US Supreme Court (SCOTUS) may 'rubberstamp' PTAB pretty soon

William Bryson
Judge William Bryson, by his own words, wonders "whether the Tribe should be joined as a co-plaintiff in this action, or whether the assignment of the patents to the Tribe should be disregarded as a sham."



Summary: The Patent Trial and Appeal Board is still widely defended, except by the patent microcosm which likes (and profits from) patent trolls and litigation Armageddon

THE latest news about immunity [1, 2, 3] from the Patent Trial and Appeal Board is quite positive. The latest news is, politicians have begun intervening. Now judges too are asking 'funny' questions, alluding to a “sham” or scam. This judge, as per this report, seems to be reading critical analysis of the anti-PTAB 'hack' used by Allergan.



To quote the key passages:

The six patents protect the blockbuster drug Restasis, a treatment for dry eyes which earns $1.5 billion in annual revenue. Generic drug companies have challenged the Restasis patents, through both IPRs and federal court litigation. Allergan agreed to pay the St. Regis Mohawk tribe $15 million annually as long as the patents are alive, because the company believes that the tribe will be immune to IPR under a legal principle known as sovereign immunity.

Allergan's tactic has come under fire from the tech sector, from Congress, and perhaps soon, from a federal judge.

[...]

The legal battle between Allergan, Teva, Mylan, and two other generic drugmakers came to a head in August 2017, when a week-long bench trial was overseen by US Circuit Judge William Bryson. (Bryson, an appeals court judge at the US Court of Appeals for the Federal Circuit, was sitting by designation in the Eastern District; this is a common practice for appeals judges to gain trial experience.) Final briefs were filed in the case on September 20, and Bryson has yet to render a decision about whether or not Allergan's patents are valid and infringed.

[...]

The judge ordered Allergan to provide all documents relating to the patent assignment and ordered both sides to file briefs addressing the question of "whether the Tribe should be joined as a co-plaintiff in this action, or whether the assignment of the patents to the Tribe should be disregarded as a sham."



Even IAM, a supporter of patent aggressors, is asking 'funny' questions like: "How can Allergan grant anyone a license to use Restasis patents when it does not own them?"

Exactly.

The matter of fact is, this entire incident served to discredit not PTAB but those who criticise PTAB and try so hard to dodge it (to the point of exploiting immunity of Native American tribes).

"The matter of fact is, this entire incident served to discredit not PTAB but those who criticise PTAB and try so hard to dodge it (to the point of exploiting immunity of Native American tribes)."Why even mention discreditisation? Because ahead of a SCOTUS case there are many attempts -- always by the patent microcosm -- to scandalise PTAB in an effort to scuttle it. Watchtroll, for example, continues to attack PTAB almost every day now (this is one of the latest examples). The patent trolls' lobby, sometimes pretending to be a "blog", keeps trying to generate negative publicity about PTAB. Here is Watchtroll coming out in defense of patent trolls such as Blackbird Technologies [sic].

Watchtroll is now attacking publications that say the truth about trolls, which are bad, and about PTAB, which is very good because it helps annihilate low-quality patents and trolls.

As expected, Patently-O has common goals with Watchtroll and it continues cherry-picking the unusual cases where the Federal Circuit (however rarely) disagrees with PTAB. Here is the latest:

After being sued for infringing Fast Felt’s U.S. Patent No. 8,137,757, Owens Corning retaliated with a petition for inter partes review. Although the PTO instituted the IPR, the PTAB eventually determined that the claims were not obvious — i.e., that “Owens Corning had failed to show obviousness of any of the challenged claims.” On appeal, the Federal Circuit has reversed — holding that under a proper BRI claim construction, that the claims are obvious.


As a reminder, the Federal Circuit agrees with PTAB about 80% of the time -- not a statistic the likes of Watchtroll or Patently-O would wish to share with their readers.

Mind this new upcoming event from the Illinois Institute of Technology. The headline says "The Power of PTAB: The New Authority in Patent Law" and here are some statistics:

This one-day conference examines the rise of the Patent Trial and Appeal Board, which is on pace in 2017 to set a record of deciding over 2,000 inter partes reviews (IPRs) initiated by parties challenging the validity of existing patents.

The public conference will convene leading patent academics, patent attorneys from law firms and corporations, and PTAB judges to examine many facets of the PTAB's expanded powers under the America Invents Act, including those related to PTAB procedures, claim construction and decisions. This conference is ideal for all patent attorneys.


PTAB is incredibly popular among technology companies. This is why some of them support campaigns in support of PTAB.

The CCIA's Josh Landau has in fact just continued (2 days ago) his good series in support of PTAB -- an important apparatus which helps eliminate software patents.

From the latest part:

Assuming, as I think will be the case, that IPR survives Oil States and that sovereign immunity doesn’t render IPR ineffective, the question becomes: what’s next? While IPR is a generally fair and effective procedure, what changes could be made to continue to promote IPR’s role as a fair and efficient way to provide a second-level review of issued patents?

[...]

Beyond actions the PTO can take, Congress could improve IPR in a number of ways.

First, in the event that the Supreme Court decides in SAS that the PTO’s interpretation of the statute does not receive deference, Congress could amend the statute to make clear that the PTAB can institute on less than all challenged claims in order to promote efficiency of the proceeding.

Second, with the covered business method (CBM) proceeding sunsetting in the near future, Congress should consider whether to incorporate challenges to subject-matter eligibility, written description, enablement, and indefiniteness into IPR. Expanding IPR to include these types of validity concerns would help petitioners place all their challenges to a patent’s validity into a single place, rather than challenging prior art validity at the PTAB and then challenging the patent’s eligibility and clarity in district court, as is currently the case.

IPR has had a good first five years. In five year’s time, I hope to see a similar post showing how improvements have cemented IPR’s place as an efficient, effective way to adjudicate all forms of patent validity.


As we said before (many times in fact), we expect SCOTUS to defend PTAB and therefore further cement its place in the system. But nothing should be taken for granted.

Recent Techrights' Posts

Microsoft Uses LLM Slop to Defraud (or Rob) Shareholders
Microsoft is basically defrauding its shareholders by LLM slop
The "Davos Effect": Tarnishing the Reputation of Places Not by Overtourism But by Oligarch Infestation
The last Venice needs is an affiliation with Venetian oligarchs
 
What Happens When Your Law Firm is Preoccupied With Harassing and Trying to Extort a Humble Couple in Manchester, Even on Behalf of Violent Microsoft Staff From Another Continent
It's good to see that law firms which operate in bad faith are perishing
Lawyer X, Law Firm X and Elon Musk's X: scandals linked by Old Xaverian
Reprinted with permission from Daniel Pocock
Gemini Links 01/07/2025: Distraction-Free Writing and Hytale Mismanagement
Links for the day
Links 01/07/2025: "Beauty of Blogging" and "Etiquette of Collapse"
Links for the day
The Web is a Dead End
We need to adopt alternatives
When Words Lose Their Intended Meaning
examples of words that, at least in the technical spheres, don't mean what they sound like
People Who Disagree With You on Technical Matters May or May Not Agree With You on Political Things (But Usually They Do)
What bothers me a great deal is seeing left-leaning people accusing other left-leaning people of being "nazis"
"Too Much Choice" and "Too Many Programming Languages"
What IBM and its apologists aim for was attempted in the 1930s and it failed
Microsoft Lost 400,000,000 Windows Users, According to Microsoft
more people adopt smaller computers and many people replace Windows with GNU/Linux, as they don't really need a new computer
Half a Year Gone, What's to Come Next
In the second half of 2025 we expect to be done with the Microsoft SLAPPs
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 30, 2025
IRC logs for Monday, June 30, 2025
People at the Very Top of Microsoft Know How Bad Things Really Are
There's no product that can replace the former profitability of Windows licensing and stuff that went on top of Windows
Gemini Links 01/07/2025: Mid Year and a Tour of Old Languages
Links for the day
EPO Presentation Bemoans Misuse of Slop in Decision-Making on Patents and in Classification (Which is Likely Illegal Too)
We habitually mention failed use cases of LLMs on the Web
Mass Layoffs at Microsoft Confirmed, "XBox Hardware Is Dead"
It's possible that over 20% of the staff will be laid off
Links 30/06/2025: Kyrgyzstan vs Media Freedom, Dalai Lama Succession
Links for the day
Gemini Links 30/06/2025: Backend Programs in Gemini and Dynamic Content Without The Scripting
Links for the day
Links 30/06/2025: Zuckerberg’s Tax-Evading Scheme Harms Kids, US Copyright Office Lacks Leadership
Links for the day
Microsoft Isn't Laying Off Tens of Thousands to 'Invest' in Slop ('Hey Hi'), It's Laying Off Tens of Thousands Because It's Running Out of Money (and Willing Lenders)
the layoffs are a sign of the business failing, not "hey hi" (whatever that is) replacing staff
Intel Lays Off 20% of Its Workforce, Microsoft is Doing the Same This Year
Like a yoyo, whatever goes up will come back down
Microsoft XBox Layoffs: Almost 2,000 Layoffs Became "Over 2,000"? (Over 20% of the Staff)
over 20% of staff will be let go, not counting staff that leaves voluntarily
GNU/Linux Rises to New Highs in Angola, Africa in General is Abandoning Windows
Western media barely covers Microsoft layoffs in Africa, but in recent years Microsoft culled the workforce and even shut down entire operations
Summer Plans in Techrights and Elsewhere
massive layoffs at Microsoft
Destination Geminispace (in the Age of LLM Slop and Slop Images That Infest the Web and Social Control Media)
Geminispace isn't vast, but at least it is - on average - a lot "cleaner"
GNU/Linux Growing in Sierra Leone This Year
Based on what statCounter is seeing, this year there are more and more people there who adopt GNU/Linux
Serial Sloppers Gonna Slop
More sites out there ought to call out the cheaters
Quartz (qz.com) is Spam and a Slopfarm
It used to be OK. Then they fired the staff.
Links 30/06/2025: US Economic Woes, Extreme Heat
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 29, 2025
IRC logs for Sunday, June 29, 2025
Gemini Links 30/06/2025: "The AI Hype" and New AuraGem Ask
Links for the day
Our Desktops Are Not Your Experiments, X is Not an Experiment
Breaking what already worked
Microsoft's Big Lies Regarding This Week's Mass Layoffs Have Already Begun (and They're Already Being Spread by Slopfarms)
Microsoft is the "market leader" in slop
Explaining the Full Story of SLAPPs From Microsoft Staff
For every action there is a reaction, for every attack there will be proportionate consequences
The Openwashing Shills Initiative (OSI) - Part III: IRS and Status of OSI
"They lied to the US IRS and there’s a paper trail"
IBM Red Hat's Dogmatic Fanaticism Under a Thin Veil of "Modernism"
IBM now has the audacity to paint people who don't agree as "nazis"
Microsoft's Share in Guatemala Fell From 97% to 14%
Eventually Microsoft will get stuck in a loop of layoffs, layoffs, and more layoffs
They Made Technology Scary and Taught Us That It's Innocent, Friendly, Even "Social"
Rejection of all this "apps" and "gadgets" and "Smart" (whatever that means!) status quo isn't a rejection of society
The Media is Under Attacks Partly Because There's Little Other (Remaining) Press to Speak in Its Defence
The biggest danger here is that when there's very little press or no "opposition media" left it becomes even easier to crush critics because there aren't many people left to speak about the matter
If Your Web Site is Run by Bots, Eventually Nobody Will 'Read' It Except Bots (People Don't Want to Read Slop)
Eventually people learn from mistakes
Links 29/06/2025: Microsoft Releases False/Fake Benchmarks, "Google Wants You to Watch Ads or Take Surveys to Read Articles"
Links for the day
Links 29/06/2025: Data Breaches and Online Censorship
Links for the day
Gemini Links 29/06/2025: "The Price Of Eggs" and Gemini 3D Tic Tac Toe
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 28, 2025
IRC logs for Saturday, June 28, 2025