Bonum Certa Men Certa

PTAB Will Survive the Supreme Court, Admit Even Foes of PTAB Based on This Week's Hearings

The "swamp" is sinking again

Paul Morinville sickened



Summary: Having found themselves in quicksand, the few people who care enough to try to undermine the Patent Trial and Appeal Board (PTAB), refuse to let go and are going under

THE Supreme Court case which we have dealt with the most recently is Oil States. We write about it, on average, about once a day. It's an important case.



As one PTAB foe put it today (with direct link to the original PDF), the annual report says PTAB should “remain vigilant in ensuring fair and transparent processes and proceedings in order to render wellgrounded decisions.”

So they expect it to remain.

Here is the part that touches on software patents (or abstract patents more generally):

Regarding Section 101: the USPTO should (a) continue to update the stakeholder community and examiner corps on recent jurisprudence and where appropriate, continue to issue memoranda that describes the relevant court decision; (b) finalize the MPEP updates in Section 2106 directed to “Patent Eligible Subject Matter,” so the stakeholder community has one central repository on the USPTO’s website to receive the latest updates; and (c) should continue stakeholder outreach programs and workshops on Section 101 developments due to the critical nature of this area.


The subject of software patents and the USPTO will be covered separately later this week. As things stand, patent quality in the USPTO is rising and lawsuits over software patents aren't being filed every single day like they used to. "Thanks to PTAB," says this new tweet, "companies no longer have to pay ransom to make lawsuits based on questionable patent claims go away." This links to an article from the New York Times. It's a week old.

At the start of the week we observed the views of the new Justice, Mr. Gorsuch (Trump nominee and appointee). As Red Hat's Jan Wildeboer‏ put it a short time ago: "Are we surprised that the new judge takes a Pro-patent position?"

Not surprising to us. At all. But it could be worse. We thought he could be a lot more blatant about it; he had been more or less a blank slate in the domain/area of patents.

Tim B. Lee, who has covered software patents for many years, reports from a position closer to the action. He wrote that the "Supreme Court seems reluctant to blow up a key weapon against patent trolls" and here are his opening words:

In Supreme Court oral arguments on Monday, justices seemed skeptical of arguments that a patent office process for challenging patents runs afoul of the Constitution.

The issue matters because the challenged process—which was created by the 2011 America Invents Act—has emerged as a key weapon against patent trolls wielding low-quality patents. Overall, defending a patent lawsuit can easily cost millions of dollars. By contrast, the new process, known as inter partes review, allows a patent to be invalidated for a sum in the low six figures.


Lee later added: "I will be very surprised if the Supreme Court pulls the trigger here, because ruling for Oil States would have sweeping consequences. [...] If they say "court-like" administrative procedures are unconstitutional, they're going to face an avalanche of litigation arguing that procedures in other areas of law are too court-like. [...] If they straight up say that patents are private property, it could substantially strengthen patent rights across the board, the opposite of the recent trend by the Supreme Court."

Patents are certainly not property; it's an old lie that's being pasted into the media by the patent microcosm.

Based on the above, PTAB will be fine. Moreover, based on PTAB bashers, the Supreme Court has just rejected cases with a potential to broaden patent scope. To quote:

The Supreme Court has denied Openet’s petition for writ of certiorari in Openet v. Amdocs. The petition asked “whether the Federal Circuit erred by looking beyond the claims to the patent specification to assess patent eligibility?” The court also denied certiorari in the pro se case of Poniatowski v. Matal.


Better this way.

Want to see something funny? Watch IAM's one-sided coverage of the case.

Some father and his kids, who barely know what patents are, are not really staging a 'protest' but engaging in a publicity stunt. There are a few tweets about it (with photos). Basically, daddy has a bunk patent which PTAB is probably going to invalidate, so the kids will hold a sign daddy made with a MAGA-inspired slogan. Marvelous! Parents who exploit their kids for patent propaganda might seem about as 'professional' as "US Inventor" -- basically a cowboy hat-wearing, MAGA-inspired lunatic from Watchtroll, whom the media mistakes for a group. His infamous, long-planned 'protest' attracted less than a dozen people.

The above was barely a protest, except in IAM's mind. Here is how IAM put it:

Even though patent cases have become a regular feature of the Supreme Court’s docket in recent years, for the IP community there was an extra buzz about the place yesterday as the justices heard two disputes concerning inter partes review (IPR).

For starters, around 20 protesters from the small inventor community, who remain bitterly opposed to IPRs, were gathered on the courthouse steps brandishing signs such as “the PTAB killed my start-up”. The protest may have been relatively small and well behaved, but its impact could be heard inside the court’s press room where seasoned Supreme Court reporters got perhaps their first glimpse at just how deep feelings run on this issue. “Protesters? For a patent case!” one of them muttered.

Then inside the courtroom there was a smattering of the great and the good from the IP stakeholder community, including USPTO acting head Joe Matal, Chief Judge of the Patent Trial and Appeal Board (PTAB) David Ruschke and his number two Scott Boalick, several aides who helped author the America Invents Act (AIA), leaders from the various IP law associations and numerous members of the patent bar from private practice.


"Around 20 protesters," says IAM. That's generous. Based on the photos, it's not even that. At the end, however, IAM cares enough to admit that this case is dead in the water. PTAB will endure and IPRs shall overcome!

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