09.10.17

Gemini version available ♊︎

The Patent Trial and Appeal Board (PTAB) is Still Being Smeared by Circles That Benefit From Low-Quality Patents

Posted in America, Deception, Patents at 1:57 pm by Dr. Roy Schestowitz

Big Oil-funded institutions in favour of Oil States? No way!

Antonin Scalia Law School

Summary: Ahead of Oil States v Greene’s Energy Group, et al (upcoming Supreme Court decision) the ‘greasy’ academics and publishers greased up by patent law firms are trying to tarnish the image of PTAB, even though the technology sector very much supports PTAB

THE PREVIOUS post took note of attacks on Alice Corp. v CLS Bank International (Supreme Court’s decision), but there are other, overlapping attacks whose purpose is similar — to protect software patents that should never have been granted by the USPTO. In effect, PTAB enables just about anyone to challenge bad patents, in a similar way to oppositions and appeals at the EPO. Patent maximalists like neither, as both mechanisms help guard patent quality, which is a threat to patent maximalists’ bottom line.

“In effect, PTAB enables just about anyone to challenge bad patents, in a similar way to oppositions and appeals at the EPO.”The ideas behind this argument aren’t novel. They are not controversial, either. Some people just want more and more patents to exist, as that comes at the expense of various industries and becomes a form of tax that is neither beneficial nor necessary.

A few days ago Managing IP (patent maximalists) wrote about Nidec Motor v Zhongshan. Patent maximalists are waging a war on PTAB, for obvious reasons, and they want every court (Supreme, Federal, District) to stop patent quality assurance. To them, the very concept of quality — or the notion of quality control — is obscene. To them, the more patents society gets granted, the more innovation will occur (or so they try to tell us). So anyway, in this particular case there was a “concurring opinion in the Nidec Motor v Zhongshan Broad Ocean Motor appeal of a Patent Trial and Appeal Board (PTAB) decision at the Federal Circuit [which] has attracted a lot of attention.”

“Patent maximalists are waging a war on PTAB, for obvious reasons, and they want every court (Supreme, Federal, District) to stop patent quality assurance.”The decision, Nidec Motor v Zhongshan, was covered days later by the same site. It’s worth emphasising that PTAB gets the thumbs up from the Federal Circuit about 80% of the time. There’s not much of a feud there at all, but patent maximalists try to fuel or inflame one. They keep nitpicking/cherry-picking exceptions to the norm (which reveals their own bias) to give the impression that PTAB is naughty or “impotent” (their word). As Managing IP put it just before the weekend: “126 PTAB petitions were filed in August, while the Federal Circuit expressed concern with the Board’s practice of joinder and expanded panels in Nidec Motor v Zhongshan Broad Ocean Motor, said it abused its discretion for failing to consider material evidence in Ultratec v CaptionCall, and ruled that an IPR petitioner doesn’t need to satisfy Article III standing requirements to participate in a patent owner’s appeal in Personal Audio v EFF…”

They make it sound like the Federal Circuit is very upset at PTAB, but that’s not hard to do by picking apart just a handful (or less) of cases. That’s precisely what Patently-O was doing almost every day in August — a pattern we vocally complained about at the time. Patently-O is in fact still cherry-picking exceptions to the norm (the norm being PTAB doing a good job, the Federal Circuit then reaffirming it). Now it’s this:

In a new decision, the Federal Circuit has ruled that the PTAB erred in its inherency analysis, but ultimately affirmed the claim cancellation after finding the error harmless.

[...]

In its decision, the PTAB (board) used inherency in a particular way – finding first that it would have been obvious to combine the prior art to use the method described; and then finding that the 30% reduction would have inherently resulted from the combination. On appeal, the Federal Circuit rejected that analysis – holding that “the Board cited no evidence that a reduction of 30% in the pulling force would necessarily result from the claimed process, which contains no steps that ensure such reduction.” Rather, as the patentee argued, the 30% reduction serves as a guide for selecting the particular lubricants and arrangements.

[...]

In re Best, 562 F.2d 1252 (C.C.P.A. 1977). In Best, the court noted that inherency would be properly used in this situation for an anticipation decision, but that for obviousness, the PTO can simply find a prima facie obviousness case.

Cancellation affirmed.

So basically, this is more of the same, i.e. the Federal Circuit agreeing with PTAB (except when it comes to more minor details). Be sure a lot of briefs will be sent to the Supreme Court with a false narrative of PTAB as “impotent” or whatever. That’s just what the patent microcosm is trying to accomplish these days. Here is another new Patently-O post, also indirectly about PTAB. To quote:

The move is designed to prop the patents up against challenge via a tribal sovereign immunity claim. (Several of the transferred patents are being challenged before the PTAB in AIA Trials). Parallel claims have been quite successful for public universities in fending of both IPR and declaratory judgment lawsuits – even when the patents are exclusively licensed to commercial entities

[...]

Allergan is a frequent player of jurisdictional games. Its corporate “headquarters” is in Dublin for the tax benefits, although it is “actually” sited in New Jersey.

Tax dodger, tax evader, whatever. With Patent Boxes in Europe it’s clear that many patent maximalists simply help companies not pay tax. It’s a grey if not a black market.

“With Patent Boxes in Europe it’s clear that many patent maximalists simply help companies not pay tax.”Last but not least we have Adam Mossoff, who not an engineer, just a “law” person that keeps lobbying for the interests of patent trolls and the more radical elements in Texas. We mentioned him many times before. He seems like a de facto lobbyist (connected to Conservative think tanks) and not too shockingly he attacks PTAB now, having chosen a rightwing politcal site to publish his rant. “Anyone can file as many petitions as they want in challenging the validity of any patent,” he said, “and they can file it for any reason whatsoever, such as by an activist organization dedicated to eliminating all patents on computer software.”

If he is referring to EFF as “activist organization dedicated to eliminating all patents on computer software,” then he merely serves to reaffirm where he stands on the subject. He does not develop any software; he’s more like a pundit from the Antonin Scalia (Republican) Law School. Here is his conclusion: “Malone’s tale is now typical for all innovators. Accused infringers and commercial competitors now exploit the PTAB as a way to harass inventors, small businesses, and other innovators. The PTAB was supposed to address the problem of low-quality patents; it now threatens all patents, undermining the foundation of the American innovation economy.”

“We can expect attacks on PTAB to intensify as the SCOTUS decision is near and patent maximalists want to obliterate PTAB, or in other words destroy patent quality.”Got that? To petition PTAB is to “harass”, as if challenging a ludicrous patent asserted by some opportunistic troll is the “harassment”. As for that last sentence, if “the foundation of the American innovation economy” is a bunch of patents on things like one-click shopping, then the economy boils down to nothing but dirt, maybe shopping (not producing).

We can expect attacks on PTAB to intensify as the SCOTUS decision is near and patent maximalists want to obliterate PTAB, or in other words destroy patent quality.

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. “Facebook Whistleblowers” Aside, It Has Been a Dying Platform for Years, and It's Mentally Perverting the Older Generation

    Guest post by Ryan, reprinted with permission



  2. [Meme] Microsoft Has Always Been About Control Over Others

    Hosting by Microsoft means subjugation or a slavery-like relationship; contrary to the current media narrative, Microsoft has long been censoring LinkedIn for China’s autocratic regime; and over at GitHub, as we shall show for months to come, there’s a war on information, a war on women, and gross violations of the law



  3. EFF Pushes for Users to Install DuckDuckGo Software After Being Paid to Kill HTTPS Everywhere

    Guest post by Ryan, reprinted with permission



  4. The Reign in Spain

    Discussion about the role of Spain in the EPO‘s autocratic regime which violates the rights of EPO staff, including Spanish workers



  5. [Meme] Spanish Inquisition

    Let it be widely known that Spain played a role in crushing the basic rights of all EPO workers, including hundreds of Spaniards



  6. Why You Shouldn’t Use SteamOS, a Really Incompetent GNU/Linux Distribution With Security Pitfalls (Lutris is a Great Alternative)

    Guest post by Ryan, reprinted with permission



  7. IRC Proceedings: Friday, October 15, 2021

    IRC logs for Friday, October 15, 2021



  8. Links 16/10/2021: Xubuntu 21.10 and DearPyGui 1.0.0

    Links for the day



  9. DuckDuckGo’s HQ is Smaller Than My Apartment

    Guest post by Ryan, reprinted with permission



  10. Post About Whether Vivaldi is a GPL violation Was Quietly Knifed by the Mods of /r/uBlockOrigin in Reddit

    Guest post by Ryan, reprinted with permission



  11. The EPO’s Overseer/Overseen Collusion — Part XIII: Battistelli's Iberian Facilitators - Spain

    The EPO‘s António Campinos is an ‘Academy’ of overt nepotism; what Benoît Battistelli did mostly in France Campinos does in Spain and Portugal, severely harming the international image of these countries



  12. From Competitive (Top-Level, High-Calibre, Well-Paid) Jobs to 2,000 Euros a Month -- How the EPO is Becoming a Sweatshop by Patent Examiners' Standards

    A longish video about the dreadful situation at the EPO, where staff is being ‘robbed’ and EPO funds get funnelled into some dodgy stock market investments (a clear violation of the institution’s charter)



  13. [Meme] Protecting European Patent Courts From EPO 'Mafia'

    With flagrant disregard for court rulings (or workarounds to dodge actual compliance) it seems clear that today's EPO management is allergic to justice and to judges; European Patents perish at unprecedented levels in national European courts and it should be kept that way



  14. Links 15/10/2021: Pine64's New PinePhone Pro and Ubuntu 22.04 LTS Codename

    Links for the day



  15. [Meme] GitHub Isn't Free Hosting, It's All About Control by Microsoft

    Deleting GitHub isn’t a political statement but a pragmatic decision, seeing how Microsoft routinely misuses its control over GitHub to manipulate the market



  16. With EPO 'Strike Regulations' Belatedly Ruled Unlawful, EPO Management May be Lowering the Salary Even Further by Introducing Outside 'Temps' or Casual Workers

    Institutional capture by an 'IP' (litigation) Mafia is nearly complete; with illegal so-called (anti) 'Strike Regulations' out the door, they're quickly moving on to another plan, or so it seems on the surface



  17. Links 15/10/2021: 95% of Ransomware Targets Windows

    Links for the day



  18. IRC Proceedings: Thursday, October 14, 2021

    IRC logs for Thursday, October 14, 2021



  19. The EPO’s Overseer/Overseen Collusion — Part XII: The French Connection

    The EPO‘s presidency (led by Frenchmen for nearly 15 years out of the past 18 years; Benoît Battistelli and António Campinos are both French despite their somewhat misleading surnames) is extremely unlikely to even be mildly scrutinised by the French delegates because of a web of nepotism and protectionism



  20. [Meme] Another Maladministration Meeting Comes to an End

    Did the EPO‘s overseeing body properly tackle Benoît Battistelli‘s illegal acts, authorised by that very same overseeing body? Don’t hold your breath as António Campinos continues to crack down on staff (maybe ILOAT will rule on it in 2030)



  21. Links 14/10/2021: LibreOffice 7.2.2, Happy Birthday to Jolla, Ubuntu 21.10, Devuan GNU+Linux 4.0, OpenBSD 7.0

    Links for the day



  22. [Teaser] What Miguel de Icaza Really Thinks of the CEO of Microsoft GitHub

    Following the opening of a new series about Microsoft GitHub we drop a little teaser today; we expect dozens of parts to be released in the coming weeks/months as facts are being validated and organised



  23. Splitting the Time to Cover More Leaks and Exposés

    We take stock of Part 11 of the ongoing EPO series (“EPO’s Overseer/Overseen Collusion”) and explain what caused various delays yesterday; we may have to up our pace a little in order to keep up with an influx of leaks and whistleblowers



  24. [Meme] Destroying the Workplace

    The working conditions at the EPO continue to worsen under the António Campinos regime, perpetuating the decade-long 'demolition project' of Benoît Battistelli and his cohorts in the complicit Administrative CouncilThe working conditions at the EPO continue to worsen under the António Campinos regime, perpetuating the decade-long 'demolition project' of Benoît Battistelli and his cohorts in the complicit Administrative Council



  25. Microsoft GitHub Exposé — Part I — Inside a Den of Corruption and Misogynists

    Today we commence a new series that implicates Microsoft, GitHub, Copilot, and Team Mono



  26. EPO Management Tricks EPO Staff Into Taking More Paycuts

    “Education and childcare reform” [sic] is an António Campinos "reform" in the same sense regressive salary reductions are just “adjustments” (euphemism); Electronic opt-in gaffes, according to staff representatives, show that the tradition of Benoît Battistelli carries on at the Office, taking away from staff for a few corrupt officials to milk the institution to death



  27. Links 14/10/2021: Whisker Menu 2.6.1 and KDE's Birthday

    Links for the day



  28. Links 14/10/2021: DragonFly 6.0.1 Released and Red Hat Loses Another Top Executive

    Links for the day



  29. IRC Proceedings: Wednesday, October 13, 2021

    IRC logs for Wednesday, October 13, 2021



  30. Süddeutsche Zeitung Became a Propaganda Arm of EPO Management (and by Extension Software Patents/Patent Lobbyists)

    EPO ‘genius’ António Campinos enjoys shallow press coverage, which echoes or resembles Benoît Battistelli‘s corruption of the media (paid-for fluff)


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