The 'natural enemies' of a high-quality patent system keep weeping

Summary: The latest rants/scorn against PTAB -- leaning on cases such as Wi-Fi One v Broadcom or entities like Saint Regis Mohawk Tribe, Apple etc. -- are all coming from firms and people who profit from low-quality patents

THE excellent work of the patent appeal board in the US (at the USPTO it's referred to as PTAB, similar but not analogous to BoA at the EPO) has attracted the wrath of patent maximalists. They cannot tolerate the concept of quality control or reassessment of patents they (or more typically their clients) were granted in the past. This is expected. The harder they resist, the more they've been hurt. And the goal ought to be decimating their role in this system because they tend to contribute nothing but feuds and FUD.

How about this from Adam Mossoff? His attacks on PTAB are a good sign because he is notorious for promoting everything that's wrong in the patent system. He's just working for a Conservative think tank serving patent trolls and the litigation 'industry'. As this tweet put it, Mossoff says that the "@uspto’s #patent review board is denying basic rights to American innovators."

What basic rights? Patents? They're not rights. Drop this myth. They typically try to call patents "property" (which they're not) and then allude to "property rights" or whatever. Intellectually-dishonest garbage that Koch-funded 'academics' would say...

Let's see who else it's moaning about PTAB because that's just pretty revealing. One site of the patent microcosm complained about PTAB's inter partes reviews (IPRs) a few days ago. "Like many inter partes reviews," it said, a "dispute started in district court. Multiple IPRs from the defendants followed: this petition against claim 1 of U.S. Patent No. 8,155,298, from Bright House Networks, WideOpen West Finance, Knology of Florida, and Birch Communications; another by the same parties against claim 20; a third by YMax against claims 1 and 20; and two more against related patents."

And guess what happened. It's gone! Good riddance. At low cost. This is what makes PTAB so important.

By contrast, IP Watch's Steven Seidenberg wrote about Oil States (a case about IPRs, indirectly affecting the Kochs). "The upcoming decision in Oil States Energy Services v. Greene’s Energy Group could have major ramifications for patents, copyrights, trademarks, and the USPTO," he said. This is the main reason for lobbying from the likes of IAM and Watchtroll. They hope to change the outcome to stop or slow down PTAB. They want not only to weaken PTAB but to obliterate it. Earlier today Watchtroll wrote: "The Supreme Court had a lot to chew on last year, in part because so many issues were percolating at the Federal Circuit. In addition, the Supreme Court tends to reach consensus (or something closer to consensus) in patent cases, making them great issues for the court to consider when it sat with a vacancy last year. But based on our look at what’s sitting before the Federal Circuit now, there simply aren’t as many “big picture” issues warranting high court attention. And so, despite the high reversal rate, we doubt that the Supreme Court will show too strong an interest in taking patent cases for the following term."

And then starts the PTAB bashing, which has become a daily routine at Watchtroll. One does not even need to look far back. Here's Watchtroll's attack on PTAB from 4 days ago, 3 days ago, and another one earlier today (second in a day and it's a Sunday!) -- already cited by some of the most extreme people (those who support trolls). Obviously, Watchtroll will attack PTAB again almost every day this month; Patently-O too used to do that for a while. Why? Because to these people, who make money from patent disputes, patent quality is the enemy.

One of the latest strategies for discrediting PTAB is latching onto the Native American tribes or even Apple. Some extremists keep linking to Law.com, which published two pieces about it before the weekend [1, 2]. It looks like Apple bashes a PTAB panel when the outcome does not suit Apple, so cherry-pickers now use that as 'proof' that PTAB must be corrupt. Law.com said: "Apple claims that its opponent contacted senior administration officials and the judges presiding over the case, swaying the outcome of an inter partes review proceeding."

Would a site of the patent microcosm add an attack on PTAB? Of course it would. They all do. "IPRs Are the Best—Except When They're Biased, Prejudiced and Violate Due Process," says a sensationalist headline. The EFF's Vera Ranieri responded by saying: "What's clear from this PTAB story and the one with the Tribe is that the PTAB needs clearer rules and more transparency as to how it operates. Conspiracies will breed where facts are kept hidden."

She was alluding to another case that is mentioned spuriously and that we already covered last weekend. IAM keeps kicking this dead horse by writing about it:

The company, which bills itself as a “global leader in cost-efficient technology that enables high-volume text, voice and digital multi-media communications”, has accused Apple of infringing its IP in a district court action and has demanded $2.8 billion in damages. It has been on a remarkable run at the PTAB as it has looked to defend its rights, fighting off eight reviews brought not only by Apple, but also the likes of Unified Patents and AT&T. According to Lex Machina, of the eight IPRs that have been filed against Voip-Pal’s patents, six were denied institution while two (including the one in question here) had all of their claims upheld following institution.

That’s a record which suggests that the company has some very good quality grants; but the latest motion from the Cupertino-based tech giant shows the degree to which it, arguably more than any other defendant, is prepared to fight its corner in infringement disputes.

Citing Watchtroll, as usual, other defenders of patent trolls try to scandalise PTAB (using Voip-Pal for instance). Their ultimate goal it to lower patent quality, help trolls, and enrich themselves. Such patent zealots would still (never mind the tribe) come up with conspiracy theories (from which the tribes feed), so there's a cyclic flow here or a loop. Sites like Watchtroll accuse PTAB of corruption, tribe lawyers then repeat that, and in turn sites like Watchtroll repeat what the lawyers say.

Regarding these lawyers, Michael Loney wrote about it in short form a few days ago. The St. Regis Mohawk Tribe has become a laughing stock for participating in a patent scam -- a scam which is still being defended by the patent microcosm. Here's one new example:

As previously reported, the St. Regis Mohawk Tribe filed a request for oral hearing that included a "request for discovery into the identity and impartiality of the merits panel assigned to this case." The paper was replete with justifications for its request and specific discovery it was seeking, all premised on its apprehension that the Patent Trial and Appeal Board (PTAB) might deprive the Tribe of due process by, inter alia, empaneling an expanded panel of Board members (including specifically Chief Administrative Patent Judge David Ruschke) that would not be impartial in deciding whether the Tribe's sovereign immunity precluded the Board from deciding on the validity of the patents (U.S. Patent Nos. 8,629,111; 8,633,162; 8,642,556; 8,648,048; 8,685,930; and 9,248,191) involved in the consolidated IPRs.

They just want to be exempted from the law and let a private company 'borrow' this immunity in exchange for money. How is that not a scam?

The scam is not PTAB but those who try hard to destroy or avoid it.

Saurabh Vishnubhakat recently wrote about Wi-Fi One v Broadcom (a case which concerns PTAB). This too mentioned another form of immunity: "The decision in Wi-Fi One v. Broadcom is the first real test, following Cuozzo, of the broad view that the Patent Office has taken of its immunity from judicial review in PTAB institutions. Going forward, it will likely be the dialogue between the Federal Circuit and the Supreme Court that defines the full contours of the agency’s discretion."

Well, the Supreme Court will rule on IPRs within several months. No doubt the outcome can be swayed by online dialog and sites of private companies like this one will meddle as much as they can. Here they are saying that "Patent Office employees are creatures of incentives."

Well, calling them creatures and all that shows how parent microcosm views them. Here's the portion with its entire context:

Patent Office employees are creatures of incentives. It is well-known that patent examiners earn various counts for use in the USPTO’s internal quota system. PTAB judges are also measured by a count-based system, which is based on the number of decisions they author. It is no secret that Examiners and PTAB judges at times get creative with policies and practices to most easily meet their quotas. Here, we look at a recent decision that shows a practice of PTAB judges deciding only one ground of rejection without looking to the remaining pending ground on appeal.

USPTO examiners are incentivised to grant as much as possible, so what's wrong with PTAB working in an opposite fashion to balance or negate that? For the patent microcosm, for obvious reasons, it's only granting -- not rejections -- that brings a lot of money. If the goal of the US patent system is just to blindly grant as many patents as possible, then PTAB is harmful; but if the US patent system seriously strives for quality and justice, then PTAB isn't just desirable but essential.

It's not hard to see why PTAB faces resistance. The question is, who from? ⬆