Bonum Certa Men Certa

The Battle Over PTAB Determines the Fate of Patent Quality in the United States



Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) are under attack by Iancu, a longtime proponent of software patents who would not mind letting patent quality slip even further to help the litigation 'industry'

THE NEED to limit the scope of patents is well understood among examiners at the EPO (albeit not the management). The appeal boards exist there for a reason, but they cannot quite function anymore because they lost their independence. António Campinos can exercise authority and power over them. Battistelli abused them aplenty. This is what happens when the leadership of the Office threatens and limits the actions of actual judges.

In the US, the Patent Trial and Appeal Board (PTAB) serves a similar function. It can undo mistakes made by examiners by handling inter partes reviews (IPRs), in effect voiding US patents (that already got granted). PTAB is sometimes saving lives (almost literally) by battling unjust patent monopolies which do not advance science but actively prevent or impede scientific progress while killing those in need of it. As IP Watch put it a few days ago (in relation to PTAB although much of the same can be said about Europe):

A newly released study shows that generic drug companies win nearly half the time when challenging patents on United States government-approved pharmaceutical products through the Patent Trial and Appeal Board (PTAB) process.

[...]

PORTAL’s new study demonstrates that generic drug manufacturers have embraced the new process, challenging 198 patents covering 134 different drug products over the last 5 years. In 43% of the inter partes review cases since 2011, the challengers succeeded in overturning all challenged patent claims. In addition, inter partes review for drug patents has consistently been completed within 12 months, as required by statute—much faster than litigation. According to Dr. Darrow, “In the pharmaceutical market, the inter partes review process can meaningfully contribute to competition and lower drug prices by ensuring that invalid patents do not block timely availability of generic drugs and by resolving many patent disputes in a more efficient manner than was previously possible.”


Not too long ago we wrote about how a firm called Asha Nutrition dealt with the EPO's appeal boards. It has just been 'intercepted' by PTAB (tackling the same firm in Bhagat v Iancu) using Section 101 and more. As Dennis Crouch put it just before the weekend:

Bhagat v. Iancu is a newly filed petition for writ of certiorari now pending before the United States Supreme Court. (Case No. 18-277). Bhagat is the founder and CEO of Asha Nutrition and is seeking to patent a lipid-formulation – that contains a mixture of omega-6 and omega-3 faty acids at a ratio of 4:1 or greater.

The USPTO refused to issue the patent finding the claims barred both by on eligibility (101) and anticipation (102) grounds. On appeal, the Federal Circuit affirmed. The 101 denial is most interesting. The PTAB found that that claimed fatty-acid mixtures already occur naturally in walnut oil and olive oil. And, although the claims require (via disclaimer) that the mixture of oils come from different sources, the Board found them to be directed to a natural phenomenon. On appeal, the Federal Circuit agreed — finding that the original ingredients of walnut oil and olive oil are natural products and the mixtures were not shown to be a “transformation of the natural products, or that the claimed mixtures have properties not possessed by these products in nature.”


So now even the Federal Circuit is affirming, as usual. Patents in the biotechnology/chemical/pharmaceutical (BCP) domain have just been promoted by a site that advocates patents on life/nature; there are many reasons to reject such patents, especially in light of some particular SCOTUS rulings, which the USPTO begrudgingly follows.

Crouch has also written about IPRs, in particular a case about patents from which a question arose: who can petition? Who can file IPRs?

The appeal here stems from three Inter Partes Review (IPR) proceedings — each cancelling the claims of aseparate Worlds’ patent. U.S. Patent Nos. 7,945,856; 8,082,501; and 8,145,998. The Worlds’ patents involve methods and systems for displaying avatars within a virtual environment and claim priority back to a 1995 provisional patent application.

The appeal here does not focus on the merits of the case but rather whether the IPR proceedings were time barred. I.e., whether the patentee’s still-pending lawsuit against Bungie’s contracting partner Activision will block Bungie from pursuing its IPR.

[...]

In the IPR, the patentee Worlds requested discovery on the connection between Bungie and Activision in order to determine whether Activision could be considered a “real party in interest” or “privy.” However, that request was summarily denied and the PTAB concluded that the patentee “has not demonstrated that Activision is an unnamed real party in interest in this proceeding.”

On appeal, the Federal Circuit has vacated and remanded — holding that the PTAB should have investigated the relationship between the IPR petitioner (Bungie) and the prior litigant (Activision) and that the PTAB should have explained its reasoning.

[...]

On remand, the Board will reconsider its the real-party-in-interest decision — placing the ultimate burden of persuasion on the IPR petitioner.


The Federal Circuit did not overrule this judgment; instead it just adds another dimension to it, having recently done that to RPX (and by extension parties like Unified Patents as well).

There's a coordinated effort to undermine PTAB, but it has not really worked, at least not yet. PTAB is only getting more prolific over time.

Watchtroll (Gene Quinn) now promotes Kavanaugh as part of his 'crusade' against patent quality, e.g. PTAB and more. This blowhard lawyer/attorney makes the patent 'industry' (profession) look like a bunch of Republicans; here he goes saying:

As was the case with Justice Neil Gorsuch, Kavanaugh has a history of being skeptical toward the growth of the Administrative State, which means the growth of agency power is not something he has shown a predisposition to being in favor of in his decisions. Given the outsized importance of the Patent Trial and Appeal Board (PTAB) within the patent industry, and the fact that the Supreme Court has already twice mentioned "shenanigans" in PTAB procedures...


What "shenanigans"? The ones Watchtroll makes up? The ones that Koch-funded anti-PTAB groups try to bring up, only to be echoed by Gorsuch? That actually happened.

HTIA responds to the observation that the current leadership at the USPTO is PTAB-hostile and under attack by Iancu. “Today’s patent system is the product of nearly a decade of reform," HTIA said a few days ago, "thanks to which the quality of U.S.-issued patents has gone up and American innovation is flowering.” They link to an older article from John Thorne.

On the other hand we have patent maximalists, not technology companies. "USPTO begins process for finding new leadership at the PTAB," Watchtroll wrote, after they had smeared the chief judge (he has been moved or voluntarily moved elsewhere last month). Iancu has been condemned for this kind of attitude since (CCIA and EFF spoke out) and here he is in his own words:

Andrei Iancu: Chief Judge Ruschke, he hasn’t left the PTO, obviously. He will be in a new role at the PTO addressing an important issue for the office, which is the coordination between the PTAB and the overall patents organization. Sometimes there is a gap between the two organizations that we would like to bridge, or at least minimize. He will take on that role and study that issue and try to make suggestions on how to improve it. I do think it’s an important function to address. And at the PTAB, we will have new leadership. For now, come September 2nd, the acting chief will be Scott Boalick, and the acting deputy chief will be Jackie Bonilla.


IPO and the EPO are getting together to promote software patents quite soon. Patent maximalists who have just advertised this event say that "[i]n addition, Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office will present a keynote address on September 24, and Hon. Kathleen O'Malley, Circuit Judge, U.S. Court of Appeals for the Federal Circuit will present a keynote address on September 25."

That's a fortnight from now.

IPO has also just advertised this PTAB event whose panel/debate is stuffed with patent maximalists:

The Intellectual Property Owners Association (IPO) will offer a one-hour webinar entitled "The Revised PTAB Trial Practice Guide and Its Impact on Your Practice" on September 13, 2018 from 2:00 to 3:00 pm (ET). Hon. Michael Tierney, Lead Administrative Patent Judge, Patent Trial and Appeal Board, U.S. Patent and Trademark Office; Tarek Fahmi of Ascenda Law Group; and Eliot Williams of Baker Botts LLP will discuss the reasoning behind recent changes to the PTAB Trial Practice Guide and explain how these revisions will impact PTAB practice.


The management of the USPTO keeps trying to weaken PTAB, but courts aren't letting that happen. It's going to be interesting to see if Iancu can maintain the fiction that he's impartial. Seeing the like of Watchtroll in person has been quite a giveaway. He did the same with IAM. Whose Director is he? His private firm's?

Comments

Recent Techrights' Posts

This is Why Codeberg Issues an Apology Today
This response was clear and relatively swift
Destruction and Distortion of Information, Including Facts About Linux (Bonus: This is Destroying the Planet)
All that LLMs have going for them is hype, and moreover media that intentionally misrepresents them and their supposed capabilities
Google Seems to Have Just Killed All Instances of Invidious
YouTube is rapidly becoming just "another Neflix"
 
Gemini Links 12/02/2025: "Bream Gives Me Hiccups", Making Chinese Tea, and More
Links for the day
The Register Studies (to Affirm) Reports of IBM Layoffs "at the Finance and Operations business unit"
something about that specific unit
Links 12/02/2025: SSL FUD, DEI Phase-out, Felonies Committed by MElon (Data Breaches)
Links for the day
Italian Media Covers Richard Stallman's English Talk Ahead of Tonight's Public Appearance
article in La Stampa
Microsoft Skype in a Freefall: About 20% Decrease in Site Traffic in 3 Months (Amid Microsoft Phasing Out Credits)
Microsoft axing more services/features may mean that now they scrape the bottom of the barrel and Skype will simply die, discontinuing service (like ICQ) in a matter of years
Gemini Links 12/02/2025: Depression, Gabbro, WikiTok, and More
Links for the day
Links 12/02/2025: Health, Security, and Monopolies
Links for the day
Gemini Protocol is Increasingly Important to the Net
Gemini Protocol will turn 6 this summer
Former EPO Manager Warns That the Illegal 'Court' for "Unitary Patents" Enables “Law Shopping”
Daniel X. Thomas opposed the very existence of the UPC, which any honest person could recognise was both illegal and unconstitutional
Like GAFAM, the EPO is Passing the Financial Pains to Staff
the EPO is operating illegally at this point
Morale at Microsoft Ruined by the Company Labelling Thousands of Workers 'Low Performers', Sacking Them on the Spot and Denying Them Basic Benefits
people laid off as "low performers" go to social control media to bemoan the label
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 11, 2025
IRC logs for Tuesday, February 11, 2025
Links 11/02/2025: Current state of the Internet and Smallnet Information Services (SIS)
Links for the day
Conservative Estimate: Over 10,000 IBM Workers to Be Laid Off in the Next Two Waves
The morale is low and layoffs are expected soon, with mass layoffs likely happening next month and then again later
Links 11/02/2025: Trade Wars and "Crisis for American Universities"
Links for the day
Parasitic LLM Slop Sites Destroy the Ability to Find "Linux" News in Google News
Remember that Google News laid off lots of its workers
Richard Stallman's English Talk in Italy Less Than 24 Hours Away (Torino) and Then Another Talk in Italy Scheduled (University of Bozen-Bolzano)
He's active and he travels a lot in spite of his medical condition
IBM Layoff Rumours, Large-Scale Implementations Weeks Ahead (in March 2025)
There are some people corroborating
Links 11/02/2025: Nutritional Poverty, Closure of USAID, More Fictional 'Valuations' Around Buzzwords
Links for the day
Perl Programming Leftovers
recently in perl.org
Microsoft in Africa: From 98% to Less Than 10% in Just 16 Years
Microsoft being on less than 1 in 10 Web-connected devices in Africa is a very big deal
Almost as If MElon Reads Techrights
The joke we started appears to be spreading
Microsoft Blasted for Adding Insult to Injury: Workers Laid Off Without Prior Notice, Without Severance Payment and Basic Coverage (Like Health), Then Stigmatised as Bad Performers So They Cannot Find a Job Elsewhere
Such stereotypes end entire careers
Gemini Links 11/02/2025: NeoVim and Deploying Other People's Code
Links for the day
BetaNews is Still Publishing LLM Slop/SPAM About "Linux"
Assuming it is indeed LLM slop, it seems clear BetaNews has no intention of improving or is simply unable/unwilling to improve
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, February 10, 2025
IRC logs for Monday, February 10, 2025
Scheduled Maintenance Tomorrow and on Valentines
If the site (or Gemini capsule) is offline for a bit, the maintenance windows are likely the root cause
If Matthias Kirschner Loves Free Software, He'll Change the Name of the Microsoft-Sponsored Organisation He Governs (in Order to Avoid Confusion)
The FSF-EEE does not really like Software Freedom, it just loves money (including Microsoft's)
Soylent News Lessens the Scope of Discussion Due to Persistent Trolling and Online Abuse
if they make it a lot harder for new people to participate, then they limit the "general appeal" and reach
EPO's Local Occupational Health, Safety and Ergonomics Committee (LOHSEC) in The Hague: Workers Are Getting Sicker, Conditions in Which to Assess Patent Applications Deteriorate
"According to the Office statistics the total number of days of absence has gone up from 12.4 to 13.1 total number of sick days per Full Time Equivalent (FTE) from 2023 to 2024."
The Standard Needs to Improve Its Standards for Fact-Checking, Aaron Swartz Had Nothing to Do With Reddit and He Detested the Company That Created It
The Web is already bad enough as it is
When the Livestream of Richard Stallman is Apparently Bury-Brigaded Offline You Finally Learn to Avoid Google/YouTube for Streaming
Please, people, stop uploading to Google/YouTube
New Paper From the EPO Highlights Large-Scale Discrimination at the Office, Where People Are Rewarded for Granting More and More Illegal Patents
Even the Kremlin is probably more competent than this
Links 10/02/2025: Ban on D.E.I. Language, Listeria Risk/Outbreak
Links for the day
Links 10/02/2025: Announcing "Stringless" and Mental Health Improvement
Links for the day
Links 10/02/2025: Facebook Mass Layoffs, "Meta" Did What Aaron Swartz Had Done But to the Tune of 81.7 Terabytes
Links for the day
Microsoft Tarnishing the Brand of Arch
Of course Arch can do whatever it wants, but being associated with Microsoft is a badge of shame
The Ultimate and Inevitable Fall of OpenAI (Even Brave is 'Bigger' Now)
"When you advertise at the Super Bowl, you’ve reached just about every consumer in America. It’s the last stop. If you’re not profitable yet, you never will be."
Adding Slop to Your Blog Only Makes One Assume All the Text is LLM Slop
Simon Coter from Oracle has turned to slop
Macao is Leaving Microsoft Behind
Windows is falling to new all-time lows
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, February 09, 2025
IRC logs for Sunday, February 09, 2025
Microsoft's WSL (LSW) Shows That It Can Never Love Linux, Only Windows
that's just how Microsoft rolls
Activism in Times of War and a Coup
'Linux' Foundation works for fascism
What the Silencing of Neatnik Tells Us About Linus Torvalds Inside a Microsoft-Dominated 'Linux' Foundation
Is Linus Torvalds free to express his mind as he wishes about every topic, even just any technical topic?
Windows Down to 11.35% in Senegal, as Measured by statCounter
Another all-time low (Windows was at 99% in 2009)
"Latest Technology News" in BetaNews is LLM Slop Promoting OOXML and Proprietary Software at the Expense of LibreOffice and OpenDocument Format (ODF)
Remember that "open-source" and Open Source aren't the same; the former is fake