How low can the bar go?

Summary: The aspiration to lower patent quality in order to saturate the space with patents and lawsuits is what controls exist for; but those who profit from lots of patents and lawsuits want these controls obliterated

THE USPTO's appeal boards are essential. The Board is known as PTAB, but it's actually like a bunch of small tribunals. Like BoA at the EPO. They help ensure high patent quality and scare those whose patents are of low quality.

A few hours ago a law firm published this timely article ("The EPO Raises The Bar On Plausibility When Assessing Inventive Step: T488/16 - Dasatinib").

This is why Battistelli attacks the Boards of Appeal. They raise the patent bar. The Office perpetually lowers it. The Boards also serve to highlight systematic decline/intentional reduction of quality at the Office (if work can be done at a high volume; the Boards have been grossly understaffed and under-equipped by the EPO; even their office space shrank a lot). From the new article:

On 1 February 2017 the Board of Appeal of the EPO upheld the revocation of Bristol-Myers Squibb's (BMS) patent for anti-cancer drug dasatinib due to a lack of inventive step. It is common for post-published data to be taken into account by the EPO when such data supports a technical effect rendered plausible by the application. In this case the Board decided that the original application did not make it plausible that the dasatinib had any useful properties, i.e. any technical effect. As a consequence, the post-filing data could not be taken into account when assessing inventive step and the patent was revoked for merely claiming an obvious further organic compound.

This finding raises the bar on whether a patent specification makes it plausible that a technical problem has been solved and could have far-reaching effects for the patentability of pharmaceutical and other inventions.

It's no secret that patent quality at the EPO nosedived. Not a single insider publicly claims otherwise.

In the US, by contrast. patent quality seems to have improved. Even when the USPTO grants a patent, that patent may soon be invalidated by PTAB or by a court. That's just happening so much these days that litigation frequency has gone down considerably. This is bad news for nobody but trolls, patent law firms, and opportunists whose patents are bunk.

Watch Sunday's intellectually dishonest spin from Watchtroll. They just can't stop PTAB-bashing. They do it all the time. Here's Watchtroll trying to shift outcomes such as Alice in favour of patent trolls while slamming AIA (which birthed PTAB): "The America Invents Act (AIA) has laid waste many of the advantages of being an innovator, but the Supreme Court is currently considering the constitutionality and propriety of some of the more troublesome aspects of the AIA."

Nonsense. This is like weapons manufacturers bemoaning peace and stability. They just need feuds for income. In absence of conflict, they'll try to create some.

PTAB was also mentioned by Marie McKiernan the other day. This is being cited by the patent microcosm, including high-profile PTAB bashers. To quote:

As we discussed in May, PTAB decisions are a primary source for guidance regarding what constitutes a “printed publication” under €§ 102, because the PTAB faces the issue so frequently. Since that post, the PTAB has continued to define the scope of what is or is not a printed publication. In most instances, where the issue was contested, the PTAB found the petitioner failed to prove a document was a printed publication.

[...]

These PTAB decisions serve as an invaluable source of guidance for an issue often commonly contested before the PTAB, and their lesson continues to be that more evidence should be provided. In many instances, although the petitioner provides some evidence pointing toward the public accessibility of the alleged prior art, the evidence falls short of demonstrating that the document is a “printed publication.” When it comes to proving that a reference is a printed publication before the PTAB, less is not more.

Parties should take heed of the PTAB’s approach. Before filing their petitions, petitioners must think of all potential avenues of dissemination to connect all the dots between the prior art, its publication, and how that translates into public accessibility. Patent owners should not shy away from attacking petitioners’ evidence.

Owners? Attacking? Seriously biased spin.

PTAB bashing is in some sense akin to Battistelli's attacks on the Boards. It's intended to help reduce the patentability bar and facilitate more feuds (something a system like UPC would depend on).

PTAB bashers have also promoted these lies from the American Enterprise Institute (even the headline a lie, suggestive of outcome that won't happen). The American Enterprise Institute is basically a pressure group for the maximalists; it's just cleverly named. It cites Watchtroll as its source. That's like Daily Caller citing Fox News. Here is what it says about Oil States: "So how will the case shake out? It’s difficult to tell at this stage, but Gene Quinn of IP Watchdog asserted after the argument that “a 9-0 decision that ratifies the constitutionality of IPR proceedings seems quite unlikely.” And a panel he interrogated also sounded divided. We’ll likely have to wait until June for the ruling, but Patent Office trials now seem more endangered than before."

Not by a long shot. Even patent professionals are already accepting that SCOTUS, based on the hearings so far, leans towards PTAB.

Sadly, PTAB bashing continues to thrive in blogs of such extremists, whereas companies which create products are mostly apathetic and silent. The media is therefore dominated by PTAB-hostile voices, sometimes even a bunch of cowboys. ⬆