Bonum Certa Men Certa

Large Technology Groups Explain to the Supreme Court Why the Patent Trials and Appeal Board is Important

The Patent Trials and Appeal Board (PTAB) is loathed by patent trolls and the litigation 'industry'

PTAB



Summary: The Patent Trials and Appeal Board (PTAB), which is expected to be defended by the highest US court in a number of months, receives support in the form of briefs from the EFF and CCIA

TECHRIGHTS has published well over a hundred articles about PTAB. Some were quite long. To European (or EPO) folks who don't know what PTAB is, think of it as the US equivalent of the Boards of Appeal (these are not identical but similar). They help assure patent quality and are pretty much independent from the patent gold rush.



The world needs PTAB. Not just the US. A lot of patent litigation still takes place in the US, so it's the US patents that currently pose a great threat to any company which is merely accused.

Early this morning we saw this new article by the EFF's Vera Ranieri. She explains why the US Supreme Court must protect PTAB to protect the innocent and defend real innovation. She has published her article in two places [1, 2] with the same headline: "Stupid Patent of the Month: Bad Patent Goes Down Using Procedures at Patent Office Threatened by Supreme Court Case" (Oil States v Greene’s Energy).

Here's a portion.

At the height of the first dot-com bubble, many patent applications were filed that took common ideas and put them on the Internet. This month’s stupid patent, U.S. Patent No. 6,738,155 (“the ’155 patent”), is a good example of that trend.

The patent is titled “System and method of providing publishing and printing services via a communications network.” Generally, it relates to a “printing and publishing system” that provides “workflow services...using a communication network.” The original application was filed in 1999, and the patent issued in 2004.

The ’155 patent has a significant litigation history. Starting in 2013, its owner CTP Innovations, LLC, filed over 50 lawsuits alleging infringement, and told a court it intended to file as many as 200 additional cases. CTP claimed [PDF] that infringement of its patent was “ubiquitous” by the printing and graphic communications industry.



The EFF's site, almost at the same time (as the above), revealed that it filed an amicus brief explaining why PTAB is important for preserving/improving patent quality. They again mention the above troll:

The Patent Office doesn’t always do the best job. That’s how Personal Audio managed to get a patent on podcasting, even though other people were podcasting years before Personal Audio first applied for a patent. As we’ve detailed on many occasions, patents are often granted on things that are known and obvious, giving rights to patent owners that actually belong to the public. As a result, it’s important for the public to have the ability to challenge bad patents.

Unfortunately, challenging bad patents in court can be hard and very expensive. In court, challenges are often decided by a judge or jury with little technical knowledge. Courts also require a high level of proof (“clear and convincing”) that can be hard to come by, especially after the passage of time.

[...]

In our amicus brief, we detail the long history of patents being used as a public policy tool, and how Congress has long controlled how and when patents can be canceled. We explain how the Constitution sets limits on granting patents, and how IPR is a legitimate exercise of Congress’s power to enforce those limits.



Not only the EFF did this. Joshua Landau from the CCIA, having published many long posts on the subject, also files an amicus brief on behalf of the CCIA. As expected, all his blog posts are becoming something that can make a big impact (Justices may read it). To quote yesterday's post (meaning they filed it on Monday):

Yesterday, we filed an amicus brief (along with the Internet Association, the National Association of Realtors, the Software and Information Industry Association, the Association of Global Automakers, and SAS Institute) in the Oil States v. Greene’s Energy case in the Supreme Court. This case is a challenge to the constitutionality of the inter partes review (IPR) system, claiming that IPR is unconstitutional.

Oil States, a drilling company, patented a technique used in fracking. It then sued another drilling company, Greene’s Energy, claiming Greene’s had infringed the patent. Greene’s, faced with an expensive lawsuit, chose to file an IPR. The Patent Trials and Appeals Board decided that the Oil States patent was invalid, and the Federal Circuit affirmed.

Oil States, rather than accepting that the prior art disclosed their idea, chose to appeal their case to the Supreme Court, claiming that the same executive agency which determines whether to grant a patent cannot legally review whether that grant was erroneous. They claim that doing so violates Article III of the Constitution and the Seventh Amendment.

The Summary of Argument in the brief does a nice job of making our point, so I’ll just show you what we said.


The role of PTAB isn't just quality assurance; it is also saving relatively small companies from unjust sanctions using legal bullying. Dermott Will & Emery's Sunita Adluri, for example, has just recalled Arista Networks, Inc. v International Trade Commission -- a case that we wrote about nearly half a dozen times. Basically, PTAB already invalidated Cisco patents which Cisco had used for embargo on Arista products (through the ITC), but outrageously enough the ITC imposed that embargo anyway. As if it didn't care what PTAB decided...

To be fair to Cisco, even Cisco itself openly supports PTAB and it is one of the main funders of a pro-PTAB front group. The latest in this bizarre twist was explained yesterday by Adluri as follows:

he US Court of Appeals for the Federal Circuit affirmed a limited exclusion order issued by the International Trade Commission (ITC) against infringing “network devices, related software and components thereof,” finding no requirement that the ITC make specific findings regarding components of the accused products. Arista Networks, Inc. v. International Trade Commission, Case No. 16-2539 (Fed Cir., Sept. 27, 2017) (Reyna, J).

The ITC instituted a €§ 337 investigation in response to a complaint by Cisco alleging that Arista’s imports of certain network devices, related software and components thereof infringed six of Cisco’s patents. The administrative law judge (ALJ) issued a final initial determination finding a violation with respect to three of the six asserted patents (one had been withdrawn). Cisco and Arista each asked for ITC review. In its final determination, the ITC determined that Arista infringed the asserted claims of three of the remaining five patents, and entered a limited exclusion order against imports by Arista of “certain network devices, related software and components thereof.” Arista appealed the ITC’s claim construction of a term in one of the patents and the scope of the limited exclusion order.

[...]

The Federal Circuit noted that the ITC has “broad discretion in selecting the form, scope, and extent of [a] remedy, and judicial review of its choice of remedy necessarily is limited,” and that it will not interfere in an ITC remedy determination unless “the remedy selected has no reasonable relation to the unlawful practices found to exist.” The Court determined that blocking imports of articles that induce patent infringement has a reasonable relationship to stopping unlawful trade acts, and therefore found no error in the ITC’s limited exclusion order.


Unlike the troll examples given by the EFF, here we have an embargo which harms public choice. It could be argued, therefore, that PTAB can help ensure fair competition, too.

Recent Techrights' Posts

Daniel Pocock: "I've Gone to Some Lengths to Demonstrate How Corporate Bad Actors Have Used Amateur-hour Codes of Conduct to Push Volunteers Into Modern Slavery"
"As David explains, the Codes of Conduct should work the other way around to regulate the poor behavior of corporations who have been far too close to the Debian Suicide Cluster."
Ex-Red Hat CEO Paul Cormier Did Not Retire, He Just Left IBM/Red Hat a Month Ago (Ahead of Layoff Speculations)
Rather than retire he took a similar position at another company
 
Links 18/05/2024: KOReader, Benben v0.5.0 Progress Update, and More
Links for the day
Microsoft-Connected Sites Trying to Shift Attention Away From Microsoft's Megebreach Only Days Before Important If Not Unprecedented Grilling by the US Government?
Why does the mainstream media not entertain the possibility a lot of these talking points are directed out of Redmond?
[Meme] UEFI 'Secure' Boot Boiling Frog
UEFI 'Secure' Boot: You can just ignore it. You can just turn it off. You can hack on it as a workaround. Just use Windows dammit!
The Market Wants to Delete Windows and Install GNU/Linux, UEFI 'Secure' Boot Must Go!
To be very clear, this has nothing to do with security and those who insist that it is have absolutely no credentials
In the United States Of America the Estimated Share of Google Search Grew After Microsoft's Chatbot Hype (Which Coincided With Mass Layoffs at Bing)
Microsoft's chatbot hype started in late 2022
Techrights Will Categorically Object to Any Attempts to Deny Its Right to Publish Informative, Factual Material
we'll continue to publish about 20 pages per day while challenging censorship attempts
Links 17/05/2024: Microsoft Masks Layoffs With Return-to-office (RTO) Mandates, More YouTube Censorship
Links for the day
YouTube Progresses to the Next Level
YouTube is a ticking time bomb
Journalists and Human Rights Groups Back Julian Assange Ahead of Monday's Likely Very Final Decision
From the past 24 hours...
[Meme] George Washington and the Bill of Rights
Centuries have passed since the days of George Washington, but the principles are still the same
Video of Richard Stallman's Talk From Four Weeks Ago
2-hour video of Richard Stallman speaking less than a month ago
statCounter Says Twitter/X Share in Russia Fell From 23% to 2.3% in 3 Years
it seems like YouTube gained a lot
Journalist Who Won Awards for His Coverage of the Julian Assange Ordeals Excluded and Denied Access to Final Hearing
One can speculate about the true reason/s
Richard Stallman's Talk, Scheduled for Two Days Ago, Was Not Canceled But Really Delayed
American in Paris
3 More Weeks for Daniel Pocock's Campaign to Win a Seat in European Parliament Elections
Friday 3 weeks from now is polling day
Microsoft Should Have Been Fined and Sanctioned Over UEFI 'Lockout' (Locking GNU/Linux Out of New PCs)
Why did that not happen?
Gemini Links 16/05/2024: Microsoft Masks Layoffs With Return-to-office (RTO) Mandates, Cash Issues
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 16, 2024
IRC logs for Thursday, May 16, 2024
Linux.com Made Its First 'Article' in Over and Month, It Was 10 Words in Total, and It's Not About Linux
play some 'webapp' and maybe get some digital 'certificate' for a meme like 'clown computing'
[Meme] Never Appease the Occupiers
Freedom requires truth. Free speech emancipates.
Thorny Issues, Violent Response
They say protests (or strikes) that do not disrupt anything are simply not effective. The same can be said about reporting.
GNU/Linux in Malaysia: From 0.2 Percent to 6+ Percent
That's like 30-fold increase in relative share
Liberty in Liberia? Windows Falls Below 10% and Below iOS
This is clearly a problem for Microsoft
Techrights Congratulates Raspberry Pi (With Caution and Reservations)
Raspberry Pi will "make or break" based on the decisions made in its boardroom
OSI Makes a Killing for Bill Gates and Microsoft (Plagiarism and GPL Violations Whitewashed and Openwashed)
meme and more
The FSF Ought to Protest Against UEFI 'Secure Boot' (Like It Used To)
libreplanet-discuss stuff
People Who Defend Richard Stallman's Right to Deliver Talks About His Work Are Subjected to Online Abuse and Censorship
Stallman video removed
GNU/Linux Grows in Denmark, But Much of That is ChromeOS, Which Means No Freedom
Google never designs operating systems with freedom in mind
Links 16/05/2024: Vehicles Lasting Fewer Years, Habitat Fragmentation Concerns
Links for the day
GNU/Linux Reaches 6.5% in Canada (Including ChromeOS), Based on statCounter
Not many news sites are left to cover this, let alone advocate for GNU/Linux
Links 16/05/2024: Orangutans as Political Props, VMware Calls Proprietary 'Free'
Links for the day
The Only Thing the So-called 'Hey Hi Revolution' Gave Microsoft is More Debt
Microsoft bailouts
TechTarget (and Computer Weekly et al): We Target 'Audiences' to Sell Your Products (Using Fake Articles and Surveillance)
It is a deeply rogue industry that's killing legitimate journalism by drowning out the signal (real journalism) with sponsored fodder
FUD Alert: 2024 is Not 2011 and Ebury is Not "Linux"
We've seen Microsofers (actual Microsoft employees) putting in a lot of effort to shift the heat to Linux
Links 15/05/2024: XBox Trouble, Slovakia PM Shot 5 Times
Links for the day
Windows in Times of Conflict
In pictures
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 15, 2024
IRC logs for Wednesday, May 15, 2024