02.26.17

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The Patent Trial and Appeal Board (PTAB) is Utilised in Fixing the US Patent System and the Patent Microcosm Loses Its Mind

Posted in America, Courtroom, Patents at 8:05 am by Dr. Roy Schestowitz

Pseudo-intellectuals who lobby for their bottom line (pockets) want PTAB destroyed

Watchtroll's Gene Quinn

Summary: A roundup of PTAB news, ranging from attacks on the legitimacy of PTAB to progress which is made by PTAB, undoing decades of overpatenting

THE progress made by PTAB, which faces record demand, makes patent maximalists squirm. That in itself is an indication that it is doing the right thing.

Remember the time Watchtroll used words like "impotence" to insult PTAB? That’s a classic! Watchtroll is so angry at PTAB right now that he (the founder) even resorts to bad grammar in the headline, “The PTAB is a thoroughly broken tribunal incapable of being fixing” (don’t laugh, he may be having a tantrum which isn’t good for his already-questionable health).

“And to think that companies like IBM actively support such attack sites says a lot about IBM…”“The PTAB is a thoroughly broken tribunal incapable of being fixing,” says one whose entire worldview is broken. What PTAB does is it fixes a problem, but Watchtroll and his swamp now hijack the word "fix" and ascribe it to the tackling of PTAB itself, as we noted the other day. Amazing! Incredible!

What will Watchtroll do next in his efforts to dismantle patent progress? He already shames and spreads false rumours about the Director of the USPTO, in an effort to get her ousted/fired. It’s appalling and it’s painful to watch. And to think that companies like IBM actively support such attack sites says a lot about IBM…

“This is very interesting. So Unified Patents takes practical steps to help defendants; in this case, a patent gets challenged in an IPR filed by a collective actor/action.”Anyway, in more positive news about PTAB, “MyMail patent [gets] challenged in IPR2017-00967 filed by @unifiedpatents,” according to this new tweet. “For more information, go here…” (original link).

This is very interesting. So Unified Patents takes practical steps to help defendants; in this case, a patent gets challenged in an IPR filed by a collective actor/action. It’s a good approach, and it is aided by PTAB. This same approach, which was already embraced by the EFF at times, promises to deter if not eliminate some notorious patent trolls. To quote from the site of Unified Patents:

On February 24, 2017, Unified Patents Inc. filed a petition for inter partes review on a patent owned and asserted by MyMail, Ltd. In the IPR2017-00967 petition, Unified challenged the patentability U.S. patent 8,275,863 which teaches methods of modifying a toolbar to facilitate internet traffic.

If your patent is rubbish, don’t expect to change it ‘on the go’ in order to dodge invalidation. As this other new report notes: “Among the changes brought about by the America Invents Act (AIA) was the creation of new post-issuance review proceedings – inter partes review (IPR), post-grant review (PGR) and covered business method review (CBM)” and “Amending claims at the PTAB [is] a fool’s errand?”

Well, yes. It barely ever happens. PTAB should invalidate patents rather than allow them to be modified. Patents are not something dynamic that can just be edited as one goes along. We wrote about this before.

To be fair, inter partes reviews don’t always result in success, i.e. invalidation (that would destroy the perception of justice anyway), but the success rate is very high. Here is an inter partes review which involves not software patents. As Law 360 put it the other day:

The Patent Trial and Appeal Board on Tuesday declined to review claims in a Chamberlain Group Inc. patent on garage door openers, just a few weeks after the Federal Circuit said that a rival manufacturer had raised a “substantial question of invalidity” with respect to the patent.

PTAB denied two separate petitions from a unit of Techtronic Industries Co. Ltd. seeking inter partes review of various claims in the patent. The petitioner, One World Technologies, argued that the challenged claims were invalid

So for those who think that PTAB is just blindly eliminating patents, it clearly does not do this. Many of the patents it invalidates these days are software patents and other abstract nonsense. That’s what courts at the highest levels have requested, e.g. in Alice (but not limited to it). Understandably, that’s what most petitions (IPRs) are filed to enforce.

PTAB has made a great first step against patent parasites that want to ‘own’ lives, too. The other day we wrote about the CRISPR case (covered here for a number of years) and it’s still making some headlines. “The eagerly-anticipated ruling from the PTAB of “no interference-in-fact” is a win for the Broad Institute in its CRISPR patent battle with University of California Berkeley. But much wrangling lies ahead over the rights to the gene-editing technology, including a potential appeal and likely licensing disputes,” wrote Natalie Rahhal for MIP.

Thankfully, PTAB expands beyond software patents and now tackles all sorts of patents that are working against public interests and ethics. PTAB, unless patent maximalists somehow manage to stop (or sabotage) it, will bring back patent sanity to the US. See what Patently-O wrote the other day about the promise of “[a] written decision on “every claim challenged””. Patently-O explains that “[t]he basic issue – under the statute, can the PTO (the PTAB acting as the Director’s delegate) institute inter partes review to a subset of the challenged claims? Or, does the requirement for a “final written decision as to every claim challenged” require that the Board grant or deny the petitions as a whole.”

This seems to be a method for slowing PTAB down and proponents of this approach are not too shockingly patent maximalists.

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