01.11.17

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Patent Quality in the United States Can Only be Assessed at the Patent Trial and Appeal Board (PTAB) and the Courts

Posted in America, Asia, Patents at 9:01 am by Dr. Roy Schestowitz

Because the patent office does not properly analyse patents, unlike PTAB judges

David Ruschke
David Ruschke’s ‘official’ photo

Summary: The travesty of patent offices in the US and China, where the goal or the accomplishment is measured in terms of the number of patents rather than their quality

WHEN it comes to technology, the US, India, and China are among the world’s leaders if not the leaders. India, a software powerhouse, rejects software patents, whereas the US, which loses its dominance in this area, is attempting to use such patents in a desperate last-ditch effort at protectionism while using "China" as an excuse for patent maximalism (we’ll come to China in a bit).

“…one must distinguish between patents getting granted (by people who receive incentives to grant) and patents being found valid, e.g. by PTAB or the courts.”Yesterday we wrote about IBM patent propaganda in US corporate media. IAM, in its belated coverage about IBM, is opportunistically promoting the patent gold rush. “New grant stats show that companies still put a premium on US patents” says the headline, but it’s about IBM.

“IBM receiving the most US patents in a year has become as much a feature of the US patent system as the Supreme Court over-ruling the Court of Appeals for the Federal Circuit,” IAM says. Nice spin attempts. Just because the USPTO granted a lot of patents doesn’t mean that the courts would find them valid once challenged. MIP has also just piggybacked IBM, a software patents lobbyist, saying that “IBM held on to the top slot for the 24th consecutive year. Its 8,088 US patents granted in 2016 was up nearly 10% over 2015 and is the most any company has ever acquired in a calendar year.”

But how many of these would courts actually deem valid? Probably less than ever before. Here is an Indian angle on this ‘news’, trying to claim credit for this weaponisation of a patent aggressor.

“The only patent system which we consider to be worse than the USPTO is SIPO (China).”We remind readers not to be confused enough (or bamboozled) so as to conflate two things; one must distinguish between patents getting granted (by people who receive incentives to grant) and patents being found valid, e.g. by PTAB or the courts. “The presumption of validity also helped the patentee,” Patently-O wrote the other day about the case of Sonix Tech. v Publications Int’l. Well, courts must never ever presume validity at the USPTO (with patent application at 92% acceptance rate by some criteria). It remains somewhat of a mystery just how many of today’s software patents would actually be deemed valid; one can only estimate and judging by statistics from the PTAB and courts (extrapolation) one can envision hundreds of thousands of them being invalidated upon closer examination. That would certainly apply to many of IBM’s patents as well.

The only patent system which we consider to be worse than the USPTO is SIPO (China). If there were more polyglots out there who can write good English and read Mandarin fluently, we’d have more examples of totally rubbish SIPO patents.

IP Kat has just published a “Guest Post” by Yangjin Li. Titled “China’s Patent Boom”, the article embellishes the image of this garbage can of crappy patents. As one part puts it, naming the laughable number of applications:

Logically, one may have doubts about the quality of the massive applications. One can at least rest assured that all of the 1.1 million patent applications filed in 2015 will sooner or later be undergoing substantive examination. However, it raises questions about the SIPO’s examination capacity. As SIPO continues building its examination capacity to meet the rapidly growing demand, the workload and the skills of examiners, particularly those newly recruited examiners, may well influence the reliability of the examination.

Well, China is already becoming somewhat of a trolling hub. IAM is of course happy about it. Earlier this week it published “Licensors must understand that what is FRAND in US and EU may not be in China, says Xiaomi IP strategy chief”. Lenovo, which bought a pile of IBM’s business, is also mentioned:

As part of its programme to meet these, last week it signed a deal with Via Licensing that will give it the right to use the assets that form Via’s Advanced Audio Coding patent pool in its products worldwide. Like a similar deal done with Lenovo just before Christmas, Xiaomi’s agreement with Via was tailored to reflect what both parties understand to be the unique dynamics facing Chinese businesses operating in the mobile space.

We expect China to take the United States’ place as the world’s capital of patent trolling. For such a curse and a liability to go somewhere else would certainly be of help to American businesses. They never benefited in any way from all that litigation; it’s the patent microcosm that benefited from these lawsuit and we all know at whose expense…

Love and Yoon have a new paper about patent trolls. Matt Levy wrote about it and mentioned the Eastern District of Texas “court’s reputation for plaintiff-friendly juries” — a fact disputed (in response to us) only by those inside that Texan system which actually advertises this bias.

Here is what Levy wrote:

Brian Love and James Yoon have a new paper out on the Eastern District of Texas and why patent assertion entities love it so much. The authors note that 90% of the patent cases in the Eastern District are filed by patent assertion entities. They look at several possible explanations, such as the speed of the court and the court’s reputation for plaintiff-friendly juries.

[...]

Love and Yoon also found that few cases have any connection to the Eastern District of Texas. Only about 18% of the cases in the Eastern District of Texas have any local link to the original inventor, original patent owner, or the first named defendant. By comparison, nearly 88% of the cases filed in the Northern District of California (which includes Silicon Valley) have such a local link to the district.

As we noted earlier this week, the Eastern District of Texas might soon die as the capital of patent trolls. If China takes its place, then good luck to China. It would devastate if not destroy the Chinese economy, more so than anything else, after it repeated the United States’ mistakes, including patent scope lenience…

Patents are a man-made concept, just like money (unlike bartering). Granting too many patents can have the same effect of printing too much money (hyper-inflation, making even a loaf of bread priced way out of reach).

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