08.22.17

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The Patent Microcosm is Pushing Hard to Weaken Alice and Revoke PTAB’s Authority Using an Upcoming Supreme Court Case

Posted in America, Courtroom, Patents at 7:08 am by Dr. Roy Schestowitz

Dennis Crouch preaching to the choir again…

Dennis Crouch at the University of Houston Law Center
Photo credit: University of Houston Law Center

Summary: Patent profiteers (not inventors) continue their shameful campaign against Alice and PTAB now that software patents are in shambles and many get invalidated without them being used litigiously

THE USPTO has been subjected to PTAB’s scrutiny for just over half a decade. This has helped a lot. Many bogus patents got invalidated. Frivolous lawsuits were prevented.

As we have been showing here several times earlier this summer, publicity stunts, personal attacks etc. have been used by the patent microcosm in an effort to shut down PTAB. They’ll never stop trying. These people also try to water down § 101/Alice. As mentioned here during the weekend, CAFC issued a ruling about a case regarding hardware, yet several law firms tried to paint it as pertaining to Alice and CCIA’s Josh Landau has just responded as follows:

Last week, the Federal Circuit handed down a decision in Visual Memory v. NVIDIA, deciding that the Visual Memory cache patents are patent-eligible under § 101.

Unfortunately, in doing so the Federal Circuit makes the same mistake they’ve made a few times now—they’ve looked at the specification, not the claims, in order to justify finding eligibility. The problem with that?

[...]

This isn’t the first case that has read into the specification in order to find claims patent-eligible. Last year, in the Amdocs v. Openet case, a similar decision was made—claims were found to be patent-eligible based on aspects of the patent only described in the specification, aspects that were completely absent from the claim language. The majority admitted that the claims were directed to an abstract idea, but said they contained an “inventive concept” sufficient to make the claim patent-eligible.

In Amdocs, the key to eligibility (according to the court, at any rate) was the “distributed” nature of the patent. The problem with that, as identified in Judge Reyna’s dissent, is that the majority “relies on the specification to import innovative limitations into the claims at issue” because the claims at issue are entirely lacking in that limitation.

Again, we see the same pattern: claims entirely lacking any inventive concept, saved by the importation of ideas from the specification.

Moreover (not mentioned above), the patent wasn’t quite on software. We wrote about this some days ago. To pretend that this decision somehow legitimises software patents would require incredible levels of dishonesty. Here is what Managing IP wrote about it yesterday. Notice the headline. When they say “hope” they reveal their bias. Software patents propagandists is what they boil down to and considering their source of income it’s easy to understand why. They’re merely a front of patent law firms. From the article:

The Federal Circuit in its August 15 opinion in Visual Memory, LLC v NVIDIA Corp upheld patent claims directed to a computer memory system as patent eligible under the Supreme Court test set out in Alice v CLS Bank – a departure from its tendency to strike down such patents in recent years

But this is not a software patent and not everything that’s judged by Alice is patent-ineligible. Obviously! Expect patent maximalists to continue to twist this decision in order to pretend CAFC has just ‘blessed’ such patents.

When the US Supreme Court (SCOTUS) took on Alice it did not seek to overturn every outcome or invalidate all patents but merely to limit their scope (as it did).

PTAB will soon be the subject of consideration at SCOTUS (Oil States) and the patent microcosm is already attempting to influence the outcome. As usual, PTAB foe Dennis Crouch tries to paint the opposition to PTAB as scholarly/academic.

Yes, Mr. Crouch at Patently-O is already lobbying SCOTUS pretty hard against PTAB. He writes about this almost every day, citing other academics like Lemley’s “Why Do Juries Decide If Patents Are Valid?” (from 2013!)

These people (like Crouch, not Lemley) try to salvage bogus patents and software patents. They view themselves as self-appointed heroes of an ‘industry’ of trolls and litigators. Crouch focuses on revocation by juries, but the general public (jury) barely understands patents; it’s just brainwashed by lawyers/liars and is therefore unfit to decide on such cases.

Days ago Dennis Crouch wrote about the history of patent revocation, going back more than two centurie and stating: “The last revocation in this manner was 1779 on an issue of national security. There are, however, no records of any petitions filed after 1780 and contemporary writing suggest that the revocation process moved entirely to scire facias. The brief suggests that, if it were available, parties would have continued to push through the Privy Counsel because scire facias was so expensive and complicated.”

This plays into the narrative that revocation has no legitimacy because it was last really done (routinely) a very long time ago. Crouch was soon digging even deeper with this narrative. He’s still trying to find out how to stop patents being invalidated (because they’re of low quality). This is what he wrote:

In my view, a potential critical historical question in Oil States is whether the English Privy Council was empowered to revoke patents back in 1791.

For many years leading up to its last cancellation action in 1779, the Privy Council operated as a kind of administrative body empowered to revoke or void issued patent rights on signature of a sufficient number of Privy Council members. If the Privy Council was empowered in the 1790s to cancel issued patents without judge or jury, that suggests that – in today’s world of expanded administrative power – Congress can also empower a the PTO to cancel issued patents. Some folks may reflect that – although Old English Law matters for the Seventh Amendment jury trial issue, it is much less critical for the administrative law question. Others will also argue that the Privy Council approach was entirely rejected by Americans when we rejected the notion of American Royalty. I’ll slide by these points for this point and instead look at uncovering some Privy Council history.

[...]

The historical record is thus starting to suggest that, although the Privy Council took no action to cancel patents after 1779, it may have been empowered to do so throughout the 18th and 19th Centuries. At this point, I don’t have any further take-away conclusions and would be receptive to comments and guidance.

We expect Crouch to carry on with this nonsense for months to come; not only do they try to water down § 101 but also abolish the facility for enforcing § 101. It’s all about patent maximalism.

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