Bonum Certa Men Certa

The Evil, Truly 'Evil' Patent Trial and Appeal Board (PTAB) and the Courts Have the Audacity to Verify/Disprove Patent Validity

J Nicholas GrossSummary: The concept of patent justice seems rather elusive to those who make a living out of pretending not to grasp it (like Mr. Gross on the right); US patent caselaw, however, continues to improve over time

TECHRIGHTS spent well over a decade complaining about USPTO patents that had been wrongly granted, leading to invalidation attempts. Prior to PTAB this was a lot harder. This meant that patent justice was hard to find unless one had deep pockets (court battles are extremely expensive, especially with appeals taken into account).

"They just don't care about patent justice, only patent maximalism (maximising litigation and extortion opportunities)."Patent trolls typically rely on software patents. They also depend on dodging actual court battles where validity of patent can be questioned/challenged (before PTAB only courts could do this). This is why trolls' proponents like Watchtroll, IAM and so on protest against PTAB so much. They just don't care about patent justice, only patent maximalism (maximising litigation and extortion opportunities).

The Droplets case was recalled by Watchtroll on Friday. James Yang wrote:

Droplets, Inc. v. ETrade Bank

In Droplets, Inc. v. ETrade Bank (Fed. Cir. 2018), ETrade filed a petition for inter partes review against U.S. Patent 8,402,115 (‘115 Patent) which was owned by Droplets, Inc. ETrade was attempting to invalidate the 115 patent because Droplets (patent owner) alleged that ETrade was liable for patent infringement.

The ‘115 Patent was the last patent in a family lineage of four patent applications. See diagram below. The Franco PCT is based on the 917 provisional.

[...]

When reviewing a patent for a noninfringement opinion, do not assume that the prosecution was done properly. As discussed in this case, even though the 115 did not claim priority back to the Franco PCT, the examiner did not use the Franco PCT which would be the best prior art reference against the 115 because presumably at least certain portions were identical to each other.


We already wrote about such noninfringement opinions. Expect sites like Watchtroll, IAM and so on to resort to judge-bashing, lobbying of Iancu etc. We'll give some examples later today. Another CAFC case has already just been covered by Watchtroll, taking note of a patent which became unenforceable:

The invention disclosed in the ’993 patent, at issue in this appeal, involves heating water on demand during the fracking process instead of using preheated water. Mr. Hefley, the sole named inventor and founder of Heat On-The-Fly, LLC (“HOTF”), filed the earliest provisional application on September 18, 2009. Prior to the critical date of September 18, 2008, Mr. Hefley and his companies performed on-the-fly heating of water on at least 61 fracking jobs using the system described in the ’993 patent application and collected over $1.8 million for those services. Although Mr. Hefley discussed the requirements of the on-sale bar against patent eligibility with his business partner, he did not disclose any of the 61 fracking jobs to the Patent and Trademark Office (“PTO”). The patent issued on May 8, 2012.

Energy Heating LLC (“Energy”), one of HOTF’s competitors, began using its accused process of heating water in 2012. After HOTF raised the possibility of a patent infringement lawsuit and Energy lost a business contract, Energy sought a declaratory judgment that the ’993 patent was unenforceable for inequitable conduct, invalid as obvious, and not infringed.

The district court granted declaratory judgment, finding the patent unenforceable for inequitable conduct, and denied Energy’s motion for attorneys’ fees under 35 U.S.C. €§ 285. The Federal Circuit affirmed the court’s finding of inequitable conduct but vacated the denial of attorneys’ fees and remanded on that issue alone.


Proponents of patent maximalism, typically a bunch of law firms, aren't happy about this status quo. Mr. Gross, an attorney who writes for patent trolls, recently unleashed a bunch of rants against PTAB, such as this (regarding Section 101):

Bad 101 decisions continue to multiply like viruses at PTAB bc, as they say: "the decisional mechanism courts now apply is to examine earlier cases... and which way they were decided" https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005922-04-26-2018-1 … Since 90% decisions are adverse, system is rapidly being poisoned


No, the system is actually being repaired for those who want to mind their own business, creating things rather than suing. Is that so difficult to understand? Here he goes again (regarding Section 101, as usual):

See, this is the additional collateral crap PTAB is now pulling when CAFC affirms using Rule 36... citing Morsa as approving rejection of claims on targeted advertising, bc CAFC too lazy to do review on merits and explain fine distinctions in 101: e-foia.uspto.gov/Foia/RetrieveP…


He says that "PTAB continues bastardizing [Section] 101 caselaw", but he actually means applying, not "bastardizing":

PTAB continues bastardizing 101 caselaw, including Diehr, to reject claims on "controlling a torque output of an electric machine of an electrified vehicle during a vehicle creep condition" e-foia.uspto.gov/Foia/RetrieveP… Mess continues unabated


And again Section 101:

Like hundreds of other small innovators, Invidi gets their patent application on targeted asset delivery system nixed by PTAB as "abstract idea" e-foia.uspto.gov/Foia/RetrieveP…


Mr. Gross also took note of Microsoft having its software patents thrown away (Section 101):

LinkedIn bought these patent applications years ago; this is one of 1st of many on "fact checking" technology to be reviewed and rejected by PTAB under 101: they have a long road ahead: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017001329-04-30-2018-1 …


Then the obligatory IBM example (Section 101 invalidation):

IBM Can't Win at the PTAB; The PTAB Reversed the Examiner's 101 Rejection But Instituted a New 101 Rejection of the Same Claims: https://anticipat.com/pdf/2018-04-30_13396177_178276.pdf …


Notice the profound impact of Section 101. Without even going to court, various parties actively work to eliminate software patents of patent aggressors.

"It puts engineers/programmers back in control, at the expense of parasitic lawyers who got accustomed to exploiting/taxing them."What's not to like?

Well, when one does litigation for a living (and let's face it, that's what the above people do) this whole "PTAB thing" is a living nightmare. It puts engineers/programmers back in control, at the expense of parasitic lawyers who got accustomed to exploiting/taxing them.

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