Older: Trump's USPTO Nominee is a Supporter of Software Patents

Summary: Improvements are being made to US patents because of the Patent Trial and Appeal Board (PTAB), which amends/culls/pro-actively rejects (at application phases) bad patents; but the likes of Andrei Iancu cannot stand that because they're patent maximalists, who personally gain from an over-saturation of patents

Photo credit: The American Lawyer

THE U.S. Patent and Trademark Office (USPTO) is grappling if not struggling with the fact that many of the patents it grants are worthless, useless, toothless in courts. It's like they're just a pile of papers, claiming some idea to be 'owned' by someone when in reality it's as good as a pupil's note from mommy, saying something along the lines of "the dog ate my homework!"

"The coordinated (albeit at times sporadic and disorganised) attack on PTAB almost always comes from litigation ‘industry’ insiders."Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) are upsetting Iancu, a patent litigation insider -- if not 'mole' -- whom Donald Trump made Director of the Office (they had worked together before Trump became President). We warned about him from the very start (early nomination stages [1, 2, 3, 4]).

The coordinated (albeit at times sporadic and disorganised) attack on PTAB almost always comes from litigation 'industry' insiders. IAM, Watchtroll etc. come to mind. PTAB stands in their way and they cannot stand it.

Michael Loney, who writes for a site that derives its income from the litigation 'industry' (the business model of Managing IP is pretty revealing), takes note of the PTAB-crushing 'reform' and its effect on IPRs:

November is already 2018’s record month for Patent Trial and Appeal Board filing, with 178 petitions in the month ahead of November 13’s shift to the Phillips claim construction standard

Petitioners rushed to the Patent Trial and Appeal Board (PTAB) ahead of November 13’s change to using the Phillips claim construction standard and ditching the broadest reasonable interpretation standard.

That was two days ago. What will be the impact on filing numbers? Will 35 U.S.C. ۤ 101 still squash hundreds of software patents per month owing to PTAB?

Unified Patents has meanwhile brought up Unified Patents v Collision Avoidance Techs (a patent troll), taking note of a development from the same date as above:

On November 13, 2018, the Patent Trial and Appeal Board (PTAB) issued a final written decision in Unified Patents Inc. v. Collision Avoidance Techs., LLC, IPR2017-01355 invalidating claims 21, 22, 24, 25 and 28 of U.S. Patent 6,268,803 owned and asserted by Collision Avoidance Technologies, a subsidiary of well-known NPE Quarterhill Inc. (f/k/a Wi-LAN Inc.). The '803 Patent, directed to a system and method to help drivers of vehicles avoid collisions, was previously asserted in district court litigation against Ford and Toyota.

Quarterhill, the 'puppetmaster' of this troll, was mentioned here before, e.g. [1, 2, 3].

Unified Patents is a strong proponent of PTAB because of its business model, but at least Unified Patents actually serves science and technology (or companies that produce something). Contrariwise, PTAB foes are proponents of trolls, parasites, bullies, charlatans and lawyers. Scholars almost always side with the former (industry), not the 'industry' which is litigation. But law professors less so. Case of point? Dennis Crouch.

"No Costs to Government when it Intervenes in IPR Proceedings," Crouch wrote earlier this week, taking note of a case against AMD. Crouch has long attempted to crush PTAB in all sorts of ways (we wrote a lot about it). Here's the latest situation:

In a R.36 Affirmance, the Federal Circuit upheld the PTAB obviousness judgment. The USPTO promptly filed a request for a bill of costs for $387.60. The Federal Circuit has now rejected that request since the PTO was an intervenor, not a party.

LG Electronics (LG) sued Advanced Micro Devices, Inc. (AMD) for infringement back in 2014 and AMD responded with the filing of this inter partes review (IPR) petition. U.S. Patent 7,664,971. The PTAB found all the challenged claims obvious and LGE appealed, but AMD did not defend the case on appeal since the parties settled the underlying infringement dispute. At that point, the PTO “exercised its right to intervene” under 35 U.S.C. 143.

Crouch then mentioned "inventor-professor-billionaire David Cheriton [who] was formerly employed as Cisco’s chief product architect" and now wants his own patent invalidated (PTAB is the only option). To quote:

The traditional rule of assignor estoppel prevents prior owners of a patent from later challenging the validity of the patent. The doctrine stems from old property law cases and is based upon the idea is that the assignor “should not be permitted to sell something and later to assert that what was sold is worthless, all to the detriment of the assignee.” Diamond Scientific Co. v. Ambico, Inc., 848 F.2d 1220 (Fed. Cir. 1988); see Westinghouse Elec. & Mfg. Co. v. Formica Ins. Co., 266 U.S. 342 (1924). Of course, most ‘assignors’ are inventor-employees who assign away rights well before even conceiving of their inventions.

[...]

In this case, the inventor-professor-billionaire David Cheriton was formerly employed as Cisco’s chief product architect. After inventing an improved “logging module,” Cheriton assigned rights to Cisco who patented the invention. The assignment included several promises , including a promise to “do everything possible to aid said assignee, their successors, assigns and nominees, at their request and expense, in obtaining and enforcing patents for said invention in all countries.” Cheriton later left Cisco and founded Arista. At that point, Cisco turned around and sued Arista for infringement. Arista responded with the IPR challenge.

This whole situation is noteworthy because here we have people actually regretting their own patents. We wrote a great deal about the appalling case against Arista, which yielded partial embargoes through the ITC. Had PTAB had more clout and capacity, ITC would have thrown out the complaint filed by Cisco, a company which itself (oddly enough) supports PTAB, albeit only when it suits Cisco. ⬆