05.08.16

Gemini version available ♊︎

Patent Maximalists Are Afraid of — and Increasingly Obsessed With — PTAB’s Patent Invalidations (Inter Partes Reviews)

Posted in America, Patents at 3:25 am by Dr. Roy Schestowitz

[Background for the uninitiated]

Inter partes reviewSummary: A growing level of coverage for what has become, especially over the past year or two, something which patent maximalists (such as lawyers) call “patent death squads”

THE rise of PTAB as destroyer of software patents, especially after Alice, was mentioned here a while back. IAM ‘magazine’ is daring Chinese firms to waste more time and money on lawyers (for PTAB paperwork), as this is what the target audience (mostly patent lawyers) probably wants. To quote IAM regarding Korean giants: “In many cases there is a close correlation between the number of reviews that a company files and the number of infringement suits that have been filed against it in district court. Not surprisingly, therefore, the likes of Samsung and LG, who are among the most targeted companies in US cases, also feature among the most active at the PTAB as they look to knock out the patents they have been accused of infringing. Samsung for instance filed 64 reviews last year and was a defendant in the same number of new US lawsuits (the most for any company) according to Lex Machina’s data.”

IAM makes it sound like some kind of popularity contest, having gone with the headline “Chinese companies still have some way to go to catch up with Asia’s leaders at the PTAB” (“catch up” with “leaders” implies competition on paperwork, not production and innovation).

What we’re attempting to highlight here is not just IAM’s bias but also a bizarre mentality, in particular as far as it relates to invalidation of patents. The so-called ‘IP community’ has lost sight of what this system was supposed to be all about (or for).

In the US, and also right here in the UK, almost every patents-centric site now speaks about Cthe uozzo case, which we covered last month [1, 2]. As one writer put it, “the U.S. Supreme Court will determine which standard the PTAB should apply.” Within broader context: “Importantly, the PTAB standard used to review patents in IPRs is different from the standard used by District Courts and may result in more patents invalidated. The PTAB standard is the “broadest reasonable interpretation” of the claims, whereas the District Courts use a plain ordinary meaning standard. In Couzzo Speed Technologies v. Lee, the U.S. Supreme Court will determine which standard the PTAB should apply. Either the Supreme Court will decide that the PTAB should apply the same standard as the District Courts, the “plain ordinary meaning standard,” or the Supreme Court will require application of the “broadest reasonable interpretation” standard.”

Associate Justice Stephen Breyer is quoted as saying the following: “You could look at this new law as trying to build a little court proceeding. If I thought it was just doing that, I would say you were right [that the PTAB standard should be the same as the district court's standard]. But there is another way to look at it. And the other way to look at it … is that there are these … patent trolls, and that the Patent Office has been issuing billions of patents that shouldn’t have been issued; I overstate, but only some. And what happens is some person in business gets this piece of paper and looks at it and says, ‘Oh my God, I can’t go ahead with my invention.”

Not too shockingly, patent lawyers are upset by Breyer’s words (which we mentioned here a week ago). One commenter says: “The quote from Associate Justice Breyer is simply stunning.” Another commenter says in response: “You are stunned that invalid patents have been issued by a patent office?”

There are even ruder comments about Breyer in other sites, including Patently-O. Every judge or official who stands in the way of patent maximalists is typically discredited, demonised, declared incompetent. We covered several examples of that in recent weeks. They’re being bullied or marginalised for saying the truth while holding a position of power/influence (such as the Supreme Court).

MIP’s coverage of the Couzzo case said: “Patent Trial and Appeal Board (PTAB) observers are split on whether the Supreme Court will allow the broadest reasonable interpretation (BRI) claim construction standard used by the Board in inter partes review (IPR) to survive, following oral arguments in Cuozzo v Lee on April 25.

“The Supreme Court was considering two questions: whether the PTAB can construe claims according to their BRI rather than their plain and ordinary meaning and whether the Board’s decision to institute an IPR proceeding is judicially unreviewable by the Federal Circuit.”

Another article about PTAB (also from MIP) said:

Managing IP reveals the biggest petitioners and most-targeted entities in April and year-to-date at the Patent Trial and Appeal Board. HP and Apple had a busy month, while Finjan and Nike were on the receiving end of the most petitions

Patent Trial and Appeal Board (PTAB) filing was up to 148 petitions in April, according to data from the Docket Navigator database.

This consisted of 136 inter partes review (IPR) petitions, 10 covered business method (CBM) petitions and two post-grant review (PGR) petitions.

The number of petitions in April was up from 118 in March and compares with other figures so far this year of 150 in February and 99 in January. The number of petitions filed in April this year were roughly comparable with the 146 petitions filed in April 2015.

Finally, this article from Patently-O said: “Gregory Dolin and Irina Manta argue in a forthcoming article that the Leahy-Smith America Invents Act (AIA) effectuated a Fifth Amendment “taking” by enhancing the mechanisms for challenging issued patents in administrative proceedings. Initial data do indicate that patents are more likely to be found invalid in the new inter partes review (IPR) and covered business method review (CBMR) proceedings than in district court actions or through the IPR and CBMR’s administrative predecessors. Patentees’ have even complained that the filing of individual IPR petitions has affected their stock prices.”

Further down the author adds: “In any case, we think that, given this regulatory backdrop and the existence of administrative review proceedings for over thirty years, patentees could foresee—or reasonably should have foreseen—that the government would continue to actively regulate patent rights without “just compensation.”

“Together, these arguments persuade us that the AIA is not a taking. Nevertheless, the authors’ article is a thought-provoking and educational analysis of the constitutional implications of Congress’s recent efforts to reform the patent system. We thank them for reopening the door on this area of scholarship.”

And going back to MIP we have this: “While granting Tire Hanger’s motion to amend, the Patent Trial and Appeal Board approved “grouping prior art references together according to their particular teachings” and “discussing only a representative few in its motion to amend”. This may provide guidance to other patent owners seeking to amend claims” (so as to maintain borderline invalid patents).

What’s worth noting, based on all the above sites (patent maximalists), is that there is growing concern about systematic elimination of patents that the USPTO should never have granted in the first place. This erodes confidence in (and perceived value of) patents that are of poor quality, notably software patents in the post-Alice era.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. 38+ Years of GNU and 19+ Years of FSF Associate Membership

    “On November 25, 2002,” Wikipedia notes, “the FSF launched the FSF Associate Membership program for individuals.” As the above video points out, it all started almost 40 years ago.



  2. Gemini as a Platform for Gamers

    Contrary to what people often assume (or are led to assume), even without client-side scripting Gemini can accomplish a great deal; early adopters, many of whom are technical, test the limits of the very minimalistic (by design and intention) specification



  3. Improved Workflows: Achievement Unlocked

    Today we've completed a bunch of small projects that can make us more efficient (e.g. more Daily Links per day, more articles); the above video was recorded many hours ago to accompany the outline below



  4. Links 26/11/2021: New Complaint About Microsoft Competition Crimes in Europe, EuroLinux 8.5, GhostBSD 21.11.24, and Kiwi TCMS 10.5 Released

    Links for the day



  5. Links 26/11/2021: F35 Elections, Whonix 16.0.3.7, OSMC's November Refresh With Kodi 19.3

    Links for the day



  6. IRC Proceedings: Thursday, November 25, 2021

    IRC logs for Thursday, November 25, 2021



  7. IRC Proceedings: Wednesday, November 24, 2021

    IRC logs for Wednesday, November 24, 2021



  8. Links 25/11/2021: PHP 8.1.0 Released and Linux 5.15.5

    Links for the day



  9. IBM as Master of Hypocrisy

    Free software projects and Free software developers have long been humiliated by corporations of Western misogynists, falsely claiming that the Free software community isn’t inclusive enough (these are shameless projection tactics; as a matter of public record, the exact opposite is true) and even the eradication of supposedly offensive language isn’t something IBM takes seriously



  10. Links 25/11/2021: LibreOffice 7.2.3 and Mesa 21.2.6 Released

    Links for the day



  11. [Meme] So Desperate That Edge Cannot Even Exceed 4% That They Block Rival Web Browsers

    Linux/Android/Free Software/GNU (they go by very many names/brands) may continue to grow to the point where Windows is as irrelevant as Blackberry; this means that Microsoft’s grip on the Web too has slipped — to the point where Microsoft frantically uses 'bailout' money to hijack LinkedIn, GitHub, etc. (it also rebrands almost everything as "Azure" or clown to fake a perception of growth)



  12. Windows Vista Service Pack 11 (Vista 11) Has Failed to Curb the Growth of GNU/Linux

    Windows market share continues to decrease in spite of billions of dollars spent bribing the media for fake hype, especially in light of a new Windows Service Pack (SP), Vista SP 11



  13. Links 25/11/2021: Proton 6.3-8 and Linux Mint Compared to Ubuntu

    Links for the day



  14. 3.5 Years Later the 'Master' of Fedora is Still Microsoft and IBM Cannot Be Bothered to Alter Git Branch Names (Refuting or Ignoring Its Very Own Directive About Supposedly Racially-Insensitive Terms)

    Today we demonstrate the hypocrisy of IBM; years after telling us that we should shun the term "master" and repeatedly insisting it had a racist connotation at least 65 Fedora repositories, still controlled by Microsoft, still use "master"



  15. Changing the Arrangement While News is a Bit Slow(er)

    I've made it easier for myself to keep abreast of things like IRC channels and networks (incidentally, a day ago Freenode reopened to anonymous logins) and I've improved monitoring of the Web sites, Gemini capsule etc. (this video is unplanned and improvised)



  16. Links 24/11/2021: Alpine Linux 3.15 and Endless OS 4.0 Released

    Links for the day



  17. [Meme] Jimmy Zemlin Loves Microsoft

    It’s funny, isn’t it? Lying for a living and sucking up to the liars pays off; you get to plunder actual Linux users while leaving Linux morally and financially bankrupt



  18. Links 24/11/2021: PHP Foundation and Flatpak Criticisms

    Links for the day



  19. IRC Proceedings: Tuesday, November 23, 2021

    IRC logs for Tuesday, November 23, 2021



  20. Links 24/11/2021: Rust Crisis and Team UPC Still Faking 'Progress'

    Links for the day



  21. Links 23/11/2021: New GNU Parallel and Memories of David H. Adler (Perl, Raku)

    Links for the day



  22. In Light of Fast-Accelerating Deterioration -- Sometimes Weaponisation -- Getting Off the World Wide Web (to the Extent Feasible) Makes You Saner and Less Susceptible to Manipulation, Lies

    Almost no sites are speaking about it (probably because they have no presence on the Internet except on the Web), but it's time to motivate more people to get off the Web, for their own good and for society's sake...



  23. Black Friday SPAM on the World Wide Web: A Reminder That the Web is a Dying Platform, Languishing Due to Marketing and Misinformation

    The junk that overruns the Web this 'Black Friday' week (consumerism 'on steroids') is a good reminder that the Web isn't healthy for the mind anymore; it's mostly spying on people, trying to compel them to buy particular things or vote a certain way



  24. Microsoft-Led Misinformation Campaign About Germany and Munich Reminds Us That Microsoft Hates and Actively Undermines GNU/Linux Adoption

    Regarding the latest moves to GNU/Linux in Germany we have 3 points to make



  25. Links 23/11/2021: Libreboot 20211122, Deepin Linux 20.3, Amazon Linux 2022, and Mabox Linux 21.11 Released

    Links for the day



  26. IRC Proceedings: Monday, November 22, 2021

    IRC logs for Monday, November 22, 2021



  27. Links 22/11/2021: EasyOS Dunfell 3.1.11, Microsoft 'Extends' Mesa for Windows

    Links for the day



  28. Microsoft's GitHub is Hugely Toxic and It Censors Critics of Corporations or People Sceptical of Those in Power

    Sociopaths have taken over GitHub and control over GitHub (by Microsoft) is being shamelessly misused, just as we’ve warned all along; GitHub is social control media/network for code, asserting control over projects and developers by means of censorship and other sanctions



  29. EPO Staff Engagement Survey Predates the Pandemic and Provides False Assumptions for EPO Policies or Policy-Setting

    The EPO ticks a box for "surveying the staff", but is it actually listening? Is that done often enough? It was last done almost 3 years ago...



  30. Links 22/11/2021: Claws Mail 4 Enters Debian and Catch-up With Legal Matters

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts