11.02.17

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More High-Profile Briefs Explain to the US Supreme Court Why PTAB is Desirable and Must be Defended

Posted in America, Patents at 3:32 am by Dr. Roy Schestowitz

We shall soon find out where Gorsuch (top right) stands on patent issues

US Supreme Court
Latest official photo of the US Supreme Court
In yesterday’s news (regarding Gorsuch): The Supreme Court Has An Ethics Problem

Summary: Various public interest groups including the Internet Association and KEI add to the growing pile of documents in favour of AIA/PTAB/IPRs (the ability to review granted patents and revoke them)

THE USPTO ought to know that PTAB can help its legitimacy. How so? Well, by crossing out wrongly-granted patents it helps give an impression of better (and almost independent) quality control. It’s like the appeal boards at the EPO (what’s left of them anyway). Accordingly, people who invested in US patents should be happy. Unless their patents are bogus ones, their perceived value will increase. The reputation of US patents can improve. Everyone wins here, except patent trolls who possess bogus patents.

“The reputation of US patents can improve.”Yesterday we wrote about the EFF and CCIA speaking out in support of PTAB. They wrote long documents (still called “briefs” for historical reasons) to the US Supreme Court, which we expect to cement PTAB’s position a few months from now. Seeing the sorts of briefs that get filed, we are pretty certain and confident that the Supremes will do the right thing.

Yesterday, another reminder of the importance of PTAB got published:

This stupid patent was going to be used to sue hundreds of small businesses

The Electronic Frontier Foundation’s most recent “Stupid Patent of the Month” highlights the importance of IPRs—patent reviews that can knock out bad patents quickly and relatively cheaply.

US Patent No. 6,738,155 was originally filed in 1999 and assigned to the Banta Corporation, a provider of printing and supply chain management services. Banta was acquired by R.R. Donnelly in 2006, and R.R. Donnelly handed off the ’155 patent to a patent-holding company called CTP Innovations in 2013. More correctly, Donnelly tried to hand off the patent—more on that in a bit.

The patent claims to cover a “printing and publishing system” that uses “a communication network.” Amazing, right? But in 1999, it was very easy to get software patents.

PTAB is especially valuable in such scenarios. PTAB IPRs are generally affordable and they help stop serial abusers or trolls who target small businesses.

Belatedly, even Dennis Crouch writes about briefs in support for PTAB (which he himself attacked a lot, especially a couple of months back). He has taken stock again and posted a summary which includes:

The final group of amicus briefs were filed this past week in Oil States v. Greene’s Energy — This round supporting the Government’s position that Inter Partes Review (IPR) proceedings are consistent with the US Constitution.

As per usual, the briefs are largely divisible into two categories: (1) direct merits arguments focusing on congressional power to enact the IPR regime; and (2) policy briefs arguing that IPRs do important work. I’ll note here that the focus of the policy briefs is on efficient and timely adjudication. I have not seen any of the briefs so far that recognize the third reality – that the PTAB is invaliding patents that would have been upheld by a court. For some reason amicus consider it appropriate to identify court failures in efficiency but not to identify failures in the substantive decisionmaking. The closest on-point is likely Apple’s Brief which promotes the “well-informed and correct” outcomes of the PTAB. 16-712bsacAppleInc.

Overall, the collection of briefs here is quite strong. The most compelling brief in my view is that filed by the well-known team of Duffy and Dabney on behalf of several groups, including the Internet Association.

[...]

Following these policy arguments, the not-for-profit org KEI particularly explains how the top-side briefs incorrectly argue that the IPR system harms national innovation and wealth. KEI’s point is irrefutable – allowing enforcement of no-invention patents doesn’t help anyone.

This is good news. There are even compelling arguments there which apparently convinced Crouch, a PTAB critic/sceptic. Will the Justices too ‘get’ it? We certainly hope so.

“As we said last month, PTAB is now supported by large corporations, the US Congress, high (Federal) courts and is mostly opposed by patent trolls and their lobby (the litigation ‘industry’).”Yesterday we mentioned the article from Sunita Adluri of McDermott Will & Emery. She mentioned yet another example of PTAB protecting a relatively (relative to Cisco) small company and her article keeps spreading. Yesterday IAM also published this article of Warner Joseph Delaune from Baker Donelson. He wrote about a "scam" (or "sham" as a judge called it) against PTAB and took note of likely Congressional action in support of PTAB:

Some members of Congress are concerned that tribal sovereign immunity is being exploited, and a new bill has been introduced which prevents tribes from asserting sovereign immunity in inter partes reviews. In her statement to a pharmaceutical group, Senator Claire McCaskill said that “this is one of the most brazen and absurd loopholes I’ve ever seen, and it should be illegal”. McCaskill’s bill simply states that “notwithstanding any other provision of law, an Indian tribe may not assert sovereign immunity as a defense in a review that is conducted under chapter 31 of title 35, United States Code”.

We certainly hope that McCaskill will pursue this as far as possible. As we said last month, PTAB is now supported by small and large corporations, the US Congress, high (Federal) courts and is mostly opposed by patent trolls and their lobby (the litigation ‘industry’). Whose side will the Supremes take? It seems like an easy choice.

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