Reference: The art of the reverse attack

Summary: PTAB (almost the equivalent of BoA at the EPO) is under attack not because it's doing a bad job but because it has become a threat to the lucrative litigation pipeline or 'industry'; we take stock of recent news

TECHRIGHTS is very happy to see the US patent system improving; we're exceptionally pleased about Michelle Lee's progress and happy about the way that the America Invents Act (AIA) evolved under her tenure. Beyond things like business method review (CBM), which we shall cover separately, there are also inter partes reviews (IPRs). They're like appeals filed even after a patent was granted. The Patent Trial and Appeal Board (PTAB) needs public and popular support. It processes IPRs and thus helps guard the USPTO from bad patents and patent extremists. PTAB is under attack and it is the subject of smear campaigns, too. All the time! It isn't really fair to those who actually produce things and are wholeheartedly supportive of PTAB (for good reasons). Do we want a patent system which serves lawyers or one that serves scientists? Usually it can't be both because in due course lawyers exploit scientists, urging them to file more patents and lawsuits (which they -- the lawyers -- can only ever profit from). The struggle is very visible in Europe right now -- in the form of UP/UPC/UPCA. This post, adopting an eclectic form, is a roundup of the past week's PTAB news and views. We are closely watching these things, as we have done for a number of years.

"Do we want a patent system which serves lawyers or one that serves scientists? Usually it can't be both because in due course lawyers exploit scientists, urging them to file more patents and lawsuits (which they -- the lawyers -- can only ever profit from)."We start this post with an assessment of Tinnus Enterprises, LLC v Telebrands Corp. -- a case that reached the Federal Circuit (CAFC) after an appeal (prior decision by PTAB). Andrew Williams from Patent Docs (an anti-PTAB site) chose the heading "When the PTAB Attacks!"

We're very familiar with that spin. In practice, PTAB does not attack but would gladly defend. It is the patents that "attack", e.g. blackmail and extortion with bogus/low-quality patents. PTAB steps in to potentially hinder attacks which are frivolous. It's like a disarmament mechanism, defusing lawsuits. Beyond this dramatic headline ("When the PTAB Attacks!") there's a rant about NPR's "When Patents Attack!" and "When Patents Attack . . . Part Two!" (which help explain this headline).

To quote Williams:

In the past few years, the public's perception of the patent system in the United States has been at a low point. One of the causes of this lack of confidence in the system has been the increase in abusive patent litigation from entities that have been labelled as "patent trolls." This problem has been magnified (and likely blown out of proportion) by the mainstream media that has been reporting on (and exaggerating) the evils of the current patent system. The patent system's alleged failings appeared to reach the public consciousness with the two episodes of the NPR show "This American Life" entitled "When Patents Attack!" and "When Patents Attack . . . Part Two!" As we reported at the time, these episodes concluded by focusing on a single case and extrapolated all of its "perceived problems to be indicative of the entire patent system, leaving the uninitiated to probably question why we even have a patent system in the first place." This was followed by even more one-sided "reporting" from the NPR "Planet Money" podcast (see "When NPR Podcasters Hit the Patent System") and John Oliver's HBO commentary/comedy show "Last Week Tonight." A response from defenders of the patent system (outside of the blogosphere) has been slow in coming. But a couple of new videos released by, of all places, the Federalist Society does just that by highlighting the plight of Josh Malone and his struggles defending his invention "Bunch O Balloons" (see here and here). Mr. Malone's company Tinnus Enterprises has been embroiled in multiple district court litigations and post-grant review proceedings before the PTAB. The latest chapter of that saga occurred on May 30, 2018, when the Federal Circuit reversed and remanded the Board's final written decision in PGR2015-00018.

[...]

There were other interesting legal and procedural issues considered by the Court that were ultimately deferred to the future. And did we mention that this was one of the first (if not the first) PGR appeals considered by the Federal Circuit. Nevertheless, this case stands as a prime example of why patent owners are frustrated with the current system, and why the attack on the patent system has perhaps gone too far.

Notice in the above how Patent Docs ends with "attack on the patent system has perhaps gone too far."

Well, it's actually the patent 'industry' that has been attacking. The real industry wants to defend itself. The pattern is a familiar one and we responded to it about a dozen times in the past. There's another new (June 1^st) example of it, courtesy of CAFC. An article by Mandy H. Kim (McDermott Will & Emery) misuses the word "Survives" (in the headline, along with the euphemism "Inventorship"); The patent microcosm keeps misusing the term "survive" for a reversal of narratives, wherein the offensive is the "defense" and victims basically become the "attackers". From what Kim wrote:

Addressing the issue of federal jurisdiction based on a lack of Art. III standing by plaintiff, the US Court of Appeals for the Federal Circuit reversed a district court's dismissal of a claim for correction of inventorship for lack of standing, finding that there was at least a factual dispute about any implied assignment or promise to assign patent rights by the inventor. James v. J2 Cloud Services, LLC, Case No. 17-1506 (Fed. Cir., Apr. 20, 2018) (Taranto, J).

[...]

The Federal Circuit noted that the district court did not conclude otherwise but found this reasoning inapplicable, focusing instead on the important qualification that "[w]hen the owner of a patent assigns away all rights to the patent, neither he nor his later assignee has a 'concrete financial interest in the patent' that would support standing in a correction of inventorship action.'" The Federal Circuit noted that the district court relied on two sources for its conclusion—the SDA and the "hired-to-invent doctrine"—but explained that neither supported the conclusion that James had assigned, or obligated himself to assign, his patent rights to JFAX, at least not at this stage of the action. The Court noted that the SDA was amenable to the construction that James did not assign or promise to assign patent rights that would have accrued to him as an inventor. The Court also noted that the hired-to-invent principle does not apply where the underlying agreement for engagement of services was between two legal entities where the inventor was not personally a party.

We don't want to heckle Kim, at least not too much (she probably doesn't deserve this), but let's get the narrative right. When someone merely asserts something (or accuses someone) and then faces questions/challenge that someone isn't "under attack" and trying to "survive"; this whole attack started with the accuser (or plaintiff). Stop twisting it like that. We're seeing that almost every week and it's always law firms that do this. PTAB, moreover, never attacks anyone; the CAFC doesn't attack either, it's just checking what the law says and passes judgment.

"PTAB, moreover, never attacks anyone; the CAFC doesn't attack either, it's just checking what the law says and passes judgment."Want to see attacks? Then check out what patent trolls are doing behind the scenes several times per day, in effect blackmailing companies and causing people to lose sleep.

Want to see what PTAB does to patent trolls and their attacks? Well, it stops many such attacks. It's breaking up fights.

The patent troll Mobility Workx, for example, has just been mentioned by Unified Patents because the Patent Trial and Appeal Board (PTAB) quite likely crushed bad patents that the troll had relied on. To quote Jain (this is from this month by the way):

On June 1, 2018, Unified filed a petition for inter partes review (IPR) against U.S. Patent 8,213,417 owned and asserted by Mobility Workx, LLC, an NPE. The '417 patent is directed to providing a “preemptive and predictive solution” for allocating network resources in support of wireless devices traveling from network to network. This patent has been asserted in district court litigation against Verizon and T-Mobile.

Another patent troll (whose patents are likely invalid) was mentioned on the same day: Barkan Wireless.

Here's the outline:

On June 1, 2018, Unified filed a petition for inter partes review (IPR) against U.S. Patent 8,014,284 owned and asserted by Barkan Wireless IP Holdings, LP, an NPE. The '248 patent, directed to an “add-on base station” in a cellular network, has been asserted in district court litigation against Verizon and Samsung.

So what we have here, yet again, is PTAB actually preventing fights (or "attacks"). No need to reverse narratives here; it's clear what's going on.

There's also abusive litigation which is being stopped not only by PTAB but sometimes CAFC as well. Take the example of Howmedica Osteonics Corp. v Zimmer, Inc. et al, which was mentioned a few days ago by Docket Navigator. To quote: "Following summary judgment of invalidity and an appeal, the court granted defendant's motion for attorney fees under 35 U.S.C. ۤ 285 and found that plaintiff's conduct during prosecution supported a finding that the case was exceptional."

We've put some similar new examples in our daily links; litigation misconduct seems to have become rather commonplace. So who's attacking and who's defending really?

"...litigation misconduct seems to have become rather commonplace. So who's attacking and who's defending really?"Here's another new observation rather than rant about PTAB: "The PTAB Reversed the Examiner's 103 Rejection of Claims in a Qualcomm Patent Application But Recommended that the Examiner Consider a 101 Rejection: https://anticipat.com/pdf/2018-05-21_13369693_178797.pdf …"

So in this particular case PTAB actually defended a patent; did it "attack" it by merely pointing out that the patent application pertains to abstract ideas? Not really. That's what assessment/examination/determination is all about.

Needless to say, haters gonna hate and sites like Watchtroll will attack PTAB no matter what. They always question the very legitimacy of PTAB and days ago Steve Brachmann highlighted PTAB’s decision -- covered above by Williams -- being reversed by CAFC (which is actually a rare thing). To quote: "On Wednesday, May 30th, the Court of Appeals for the Federal Circuit entered a decision in Tinnus Enterprises v. Telebrands Corporation which reversed and remanded an earlier decision by the Patent Trial and Appeal Board (PTAB) to invalidate a patent covering the award-winning Bunch O Balloons toy developed by inventor Josh Malone. The Federal Circuit panel of Circuit Judges Kathleen O’Malley, Evan Wallach and Todd Hughes found that the PTAB erred in its analysis of the indefiniteness standard used to invalidate the patent-at-issue. Further, the CAFC found that the patent’s validity should have survived a test for indefiniteness even under the standard which the PTAB applied."

"Needless to say, haters gonna hate and sites like Watchtroll will attack PTAB no matter what."We can expect the patent microcosm to keep harping about it (rather than the many cases where CAFC agrees with PTAB) because that's just their modus operandi. PTAB’s image is something they wish to paint as "controversial", no matter how dishonest the means. Here's Anticipat doing the same thing again. The business model of Anticipat is bashing PTAB and pestering/bothering examiners/judges when they invalidate patents or reject cases, so no wonder they've just come out with a rant: "Some things are not right with the USPTO’s ex parte appeal process" (their headline).

To quote:

In the past month, two complementary but distinct criticisms of the ex parte appeal process have emerged. They deal with the way the Board treats appeals where the Examiner embellishes/modifies the rejections in between the last rejection on the record but before forwarding to the Board. These are serious criticisms that deserve serious attention. As people learn more about current Examiner practices, expect change at some level at the PTAB.

They have cherry-picked just two among hundreds. Does that support their assertion/headline? Of course not. Mere conjecture and innuendo, just like saying that PTAB is an "attacker".

"Well, at the end of the day it all boils down to money, not science. Lawyers don't care about the latter, they just habitually mention words like "inventor" or "innovation" (marketing buzzwords of theirs)."Another PTAB rant came from Watchtroll several days ago, regarding new evidence emerging during an inter partes review. To quote: "The Court held that the Board did not violate due process and the procedural requirements of the Administrative Procedure Act (APA) that require adequate notice of, and an opportunity to respond to, the grounds of rejection determined by the Board."

This is just one among many cases (it used to be about 80% of the total being considered) where the court (re)affirmed PTAB. So where's the "controversy"? Where's the "attack"? Why won't they just leave PTAB alone to do its job?

Well, at the end of the day it all boils down to money, not science. Lawyers don't care about the latter, they just habitually mention words like "inventor" or "innovation" (marketing buzzwords of theirs). They strive to convince engineers that they aren't really "inventors" ('on paper') until they become patent holders. ⬆