Bonum Certa Men Certa

The Patent Trial and Appeal Board (PTAB) and Patent Reform (AIA) Generally Too Popular to Stop, But Patent Law Firms Helped by Andrei Iancu Keep Trying

Patent maximalists' Office takeover isn't a court/s takeover

Andrei IancuSummary: The patent microcosm together with Andrei Iancu (who himself came from the patent microcosm) is frustrated to have come to grips with quality control; low-quality patents continue to be rejected by courts

WHETHER it likes it or not, the leadership of the USPTO will need to adapt to court rulings, not selectively but properly. Otherwise people will lose confidence in US patents and will no longer pursue these.



There's this thing we recently dubbed "Cult of Patents"; they're patent maximalists who insist that innovation cannot happen without patents, that patents are a "property", and that patents are justified for thoughts, nature etc. In short, they're pretty badly deluded.

"There's this thing we recently dubbed "Cult of Patents"; they're patent maximalists who insist that innovation cannot happen without patents, that patents are a "property", and that patents are justified for thoughts, nature etc."Mohamed Salem Abou El Farag from Qatar University's College of Law said in his paper dated May 5th (2018): "Intellectual property (IP) is the branch of law that protects innovations and creations..."

But no, it is a propaganda term rather than a law and sometimes -- if misused/overused -- it actually damages innovation and creation. This has been demonstrated empirically in the past. Why are some people still saying things like these? They can just stop saying "IP" altogether. It's a misleading propaganda term. If they mean patents, then they should say "patents", not "IP". How about this one (titled "Intellectual Property")? "There are four general areas of IP," it said some days ago, "patents, trade secrets, copyrights and trademarks. It’s important to understand the four types and how they differ."

"They can just stop saying "IP" altogether. It's a misleading propaganda term. If they mean patents, then they should say "patents", not "IP"."Why say IP or “Intellectual Property” at all? By the article's own admission, there are "patents, trade secrets, copyrights and trademarks."

They're completely different laws; they work differently.

Another new article of note speaks of patents "in connection with 3D printing technology" -- the sorts of patents which famously held back 3D printing for a number of decades (the same goes for drones). To quote:

An increase in attempts to obtain patent protection in connection with 3D printing technology means the patent space in this area has become very crowded, likely an indication that additive manufacturing is overtaking traditional manufacturing processes.

Not only 3D printers themselves but also certain mechanical parts for computing and manufacturing might be subject to patent protection. Of course, software used for 3D printing (like all software) enjoys copyright protection in most jurisdictions. But software can also be eligible for patent protection in some countries (such as the US).

Thus, new entrants must be careful not to infringe others’ patent rights. When trying to safeguard their own additive manufacturing's critical IP, businesses should analyse their options under patent law and consider securing IP through trade secret protection, copyright and design laws.


In the case of 3D printing we have a classic example of patents actually slowing down and preventing innovation. This does not quite apply to trademarks or even to copyrights, as similar ideas can be expressed under different brands and using different words.

Speaking of "different words", many people nowadays try to patent old things by using buzzwords and new/different words, e.g. "cloud" for server or "AI" for some clever algorithm. Here is an example of 'cloudwashing' in a press release from a few days ago:

The patent for invention 9,973,499 is issued for technology that extends greater endpoint trust, through identity verification and policy enforcement, for secure network-to-network and network-to-cloud connections.


This is, by the sound of it, a software patent. But the wording doesn't say anything remotely like that. Over at Watchtroll, Samuel Hayim and Kate Gaudry admit what many patent lawyers prefer to deny in order to attract/lure gullible businesses into software patent pursuits (in vain). "Eligibility Rejections are Appearing in Greater Frequency Across all Computer Related Technology Centers," says their headline and here are some bits:

Four years after the Alice decision...

[...]

The frequency of any particular rejection type may be influenced by seminal Federal Circuit and Supreme Court cases. Judicial decisions are interpreted into policy decisions by the United States Patent Office (USPTO) and distributed to patent examiners in the form of examination guidance memoranda and other training materials. At least initially, major changes in jurisprudence are more likely to burden applications in the technological art analyzed by the court than applications in other arts as the USPTO will extend the courts analysis to those applications pending in that technological art. Yet, as the dust settles, the full impact of these decisions may be seen across all technology centers (TCs) of the USPTO.

[...]

Examiners have not been the only obstacle to securing patents for business-method technologies. For example, we recently analyzed Patent Trial and Appeal Board (PTAB) ex parte appeal decisions having had Appeal Briefs filed after the Alice decision. We reviewed PTAB decisions from computer related technology centers, including TCs 2100, 2400, 2600 and the business method portion of TC 3600. Nearly all eligibility rejections at issue stemmed from the business-method art units[5], and a mere 7% of those appeals were successful (i.e. reversed).[6] Thus, the Alice decision had a significant impact on the applications from business method art units.


Patent maximalists have meanwhile gone so insane or incredibly selfish that they nowadays bash their own country, notably the US, using sheer lies while glamouring China not because it's good but because patents are out of control there, software patents included. We wrote about that twice over the weekend.

Adding insult to injury (to the system), some patent lawyers have gone as far as plotting patent "scams" wherein patents are being passed to tribes to avoid justice. That just wouldn't fly however (at many levels, including Congress/Senate, courts, PTAB and public forums). Here's the latest of that:

Earlier this week, the Supreme Court released their decision in Upper Skagit Indian Tribe v. Lundgren. The opinion effectively held that the simple fact of in rem jurisdiction does not always bar claims of tribal sovereign immunity.

In rem jurisdiction is one argument that might bar the new practice of renting tribal sovereign immunity to a patent owner in order to shield the patent from inter partes review (IPR). That argument, among others, is now being reviewed by the Federal Circuit in the St. Regis Mohawk Tribe v. Allergan case. (CCIA joined an amicus brief in front of the Federal Circuit.)

[...]

At first glance, it’s not obvious why the immovable property exception is relevant to patents. Patents are public franchises, not land. And patents are intangible property, not land tightly bound to a particular physical location.

But patents are a form of property, as Oil States made sure to emphasize. And patents have territorial limits, the scope of which are being decided in the WesternGeco case right now.

That second statement is important. Patents share an important characteristic with land—they are both geographically limited forms of property, and those geographical limits are fixed and immovable. Land has boundaries; United States patents apply only within the United States. While you can transfer ownership of a patent to a foreign entity, just like you can sell land, the patent itself will still only apply within the United States and the rights associated with the land will only apply within the deeded boundaries.

That means that, like land, patents are (at least in a sense) immovable property permanently situated within the United States. And any decision which allows the application of sovereign immunity to patents thus creates an offense to the sovereignty of the United States in the same way that applying sovereign immunity to prevent a state from determining the status of its own land offends the sovereignty of that state.


Unified Patents has declared (6 days ago) that a patent "asserted in more than 50 district court cases" will no longer bother the world, owing to a PTAB IPR:

On May 18, 2018, Anuwave LLC (an IP Edge entity) and Unified Patents Inc. filed a joint request to terminate IPR2018-00223 prior to institution pursuant to settlement. U.S. Patent 8,295,862, the subject of the IPR petition, relates to banking through SMS and has been asserted in more than 50 district court cases.


Therein lies the power of PTAB. But an ideal situation would have been invalidation.

The bottom line is, the USPTO granted far too many dubious patents whose potential is to harm rather than to foster innovation. That ought to change. Patents are supposed to advance the public interest.

Recent Techrights' Posts

Techrights' Statement on Code of Censorship (CoC) and Kent Overstreet: This Was the Real Purpose of Censorship Agreements All Along
Bombing people is OK (if you sponsor the key organisations), opposing bombings is not (a CoC in a nutshell)
 
[Meme] Social Control Media Bliss
"My tree is bigger than yours"
Links 24/11/2024: More IMF Bailouts and Net Client Freedom
Links for the day
Gemini Links 24/11/2024: Being a Student and Digital Downsizing
Links for the day
[Meme] The Most Liberal Company
"Insurrection? What insurrection?"
apple.com Traffic Down Over 7%, Says One Spyware Firm; Apple's Liabilities Increased Over 6% to $308,030,000,000
Apple is also about 120 billion dollars in debt
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, November 23, 2024
IRC logs for Saturday, November 23, 2024
[Meme] GAFAMfox
Mozilla Firefox in a state of extreme distress
Google Can Kill Mozilla Any Time It Wants
That gives Google far too much power over its rival... There are already many sites that refuse to work with Firefox or explicitly say Firefox isn't supported
Free (as in Freedom) Software Helps Tackle the Software Liability Issue, It Lets Users Exercise Greater Control Over Programs
Microsofters have been trying to ban or exclude Free software
In the US, Patent Laws Are Up for Sale
This problem is a lot bigger than just patents
ESET Finds Rootkits, Does Not Explain How They Get Installed, Media Says It Means "Previously Unknown Linux Backdoors" (Useful Distraction From CALEA and CALEA2)
FUD watch
Techdirt Loses Its Objectivity in Pursuit of Money
The more concerning aspects are coverage of GAFAM and Microsoft in particular
Links 23/11/2024: Press Sold to Vultures, New LLM Blunders
Links for the day
Links 23/11/2024: "Relationship with Oneself" and Yretek.com is Back
Links for the day
Links 23/11/2024: "Real World" Cracked and UK Online Safety Act is Law
Links for the day
Links 23/11/2024: Celebrating Proprietary Bluesky (False Choice, Same Issues) and Software Patents Squashed
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, November 22, 2024
IRC logs for Friday, November 22, 2024
Gemini Links 23/11/2024: 150 Day Streak in Duolingo and ICBMs
Links for the day
Links 22/11/2024: Dynamic Pricing Practice and Monopoly Abuses
Links for the day
Topics We Lacked Time to Cover
Due to a Microsoft event (an annual malware fest for lobbying and marketing purposes) there was also a lot of Microsoft propaganda
Microsofters Try to Defund the Free Software Foundation (by Attacking Its Founder This Week) and They Tell People to Instead Give Money to Microsoft Front Groups
Microsoft people try to outspend their critics and harass them
[Meme] EPO for the Kids' Future (or Lack of It)
Patents can last two decades and grow with (or catch up with) the kids
EPO Education: Workers Resort to Legal Actions (Many Cases) Against the Administration
At the moment the casualties of EPO corruption include the EPO's own staff
Gemini Links 22/11/2024: ChromeOS, Search Engines, Regular Expressions
Links for the day
This Month is the 11th Month of This Year With Mass Layoffs at Microsoft (So Far It's Happening Every Month This Year, More Announced Hours Ago)
Now they even admit it
Links 22/11/2024: Software Patents Squashed, Russia Starts Using ICBMs
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, November 21, 2024
IRC logs for Thursday, November 21, 2024