01.21.18

Gemini version available ♊︎

The Attacks on PTAB Are Slowing Down and Attempts to Shield Oneself From Inter Partes Reviews (IPRs) Are Failing

Posted in America, Patents at 3:30 pm by Dr. Roy Schestowitz

The USPTO has more safeguards against inappropriate patents; resistance to this comes from patent maximalists

A comparison
PTAB hasn’t the incentive of examiners (to grant a lot of patents) and is willing to reject many upon reassessment

Summary: The Patent Trial and Appeal Board (PTAB) reapplies patent eligibility tests/guidelines in order to squash likely invalid patents; The litigation ‘industry’ is not happy about it, but its opposition to PTAB is also losing steam

THE oftentimes-ferocious attacks on the US appeal board (PTAB) that deals with low-quality US patents have slowed down*. There weren’t many of them over the past week. We watch these things closely enough and recently with greater concern because the intention of these attacks is to change the stance/policy of the USPTO and the US Supreme Court (due to rule on Oil States in a matter of just months).

At the appeal board, the burden of proof should be put on the aggressor; the aggressor isn’t the petitioner but the party which typically uses patents either to litigate or threaten to litigate. PTAB petitioners are often on the receiving end of threats and thus they’re the victims. “The PTAB granted the IPRs for six of the seven patents,” this article by Bryan Hart said some days ago. It is about the Philips case which we wrote about last week. Here are some details about it:

Philips had asserted infringement of seven patents: Patent Nos. 6,147,458; 6,250,774; 6,561,690; 6,586,890; 6,788,011; 7,038,399; and 7,352,138. In due course, Wangs filed invalidity contentions against the patents-in-suit, and at the one-year deadline, Wangs petitioned for IPRs. The PTAB granted the IPRs for six of the seven patents. While the court stayed the case, the PTAB handled the IPRs, ruling for Wangs on some claims but not others. In the immediate motion, Philips moved to prevent Wangs from relying on prior art left out of its contentions under local rules, and to estop Wangs from relying on prior art included in its contentions but not in its IPR petitions.

We have been writing about the patent bullying of Philips for over a decade; Philips typically does the bullying (or “enforcement”) indirectly, e.g. via Sisvel. Can PTAB slow that down?

“The Patent Trial & Appeal Board (PTAB) has designated the following decisions, which involve 35 U.S.C. § 315(b), as informative,” said this site the other day.

We are particularly interested in PTAB decisions that deal with Section 101 (a subject of a later article, due to be published tonight), but sometimes, as in this new case (direct link to PDF) PTAB reverses examiners’ decisions based on Section 102 and Section 103. At CAFC, according to this, “[w]ithout open dissent, the Federal Circuit has denied Helsinn’s petition for en banc rehearing on the definition of “on sale” under the AIA-amended prior art statute 35 U.S.C. 102.”

Here we have patent trolls moaning about PTAB using Section 101. That interferes with these trolls’ business [sic] model, so power to PTAB.

There have been numerous different attempts to squash PTAB lately (legistative included), but we are not hearing about these anymore. There were also attempts to bypass PTAB by misusing sovereign immunity, but those too are failing. PTAB has in fact determined that at CAFC any such immunity gets voided, according to this new post by Peter Law and Kerry S. Taylor. To quote:

On December 19, 2017, a seven-judge expanded PTAB panel ruled that the University of Minnesota (UM) waived its Eleventh Amendment immunity defense when it filed a patent infringement action in federal district court. Eleventh Amendment immunity had been the focus of several previous PTAB decisions, but these previous decisions did not involve a sovereign who had filed an infringement action in federal court before an IPR petition was filed.

In early 2017, the PTAB held that a state university was immune from IPR challenge under Eleventh Amendment state sovereign immunity. Covidien LP v. Univ. of Florida Research Found. Inc., IPR2016-01274, Paper 21 at 27. Mindful of the Covidien decision, Ericsson Inc. filed several IPR petitions against the Regents of UM and noted that the Covidien case was distinguishable because the University of Florida had not waived its sovereign immunity by asserting its patent in federal district court, whereas UM had asserted its patent in the US District Court of Minnesota. UM moved to dismiss Ericsson’s IPR petitions, arguing that filing of the lawsuit in federal district court did not constitute a waiver of immunity at the PTAB.

Enough of this misuse of immunity. Says PTAB. When trolls and lawyers attempt to guard bogus patents by painting them as “tribal” or “public” they not only lie; they also discredit the very system that they rely on. Their colleagues/fellow lawyers ought to discourage that in order to salvage the reputation of their occupation; headlines now associate it with “scams”.
_____
* Watchtroll has, unusually enough, not posted many attacks on PTAB this past week, instead resorting to a lot of puff pieces like Apple hype and other dross. Apple was mentioned in relation to PTAB by David Hricik, who wrote:

Apple has filed a motion with the PTAB, here, asserting that letters from the former CEO of a patent owner to an original panel, a substitute panel, and Commerce Secretary Wilbur Ross constituted improper ex parte communications that warrant reversing the PTAB’s findings in favor of the patentee and, instead, either entering judgment in Apple’s favor or at least granting a new trial.

Boiled down, Apple argues that after the decision to institute was granted, the former CEO (and still “advisor” to the patentee) sent letters to the panel that had granted institution, and those letters were not made of record. That panel was replaced, without explanation to Apple (or anyone from what I can tell), and a substitute panel then took over the matter.

The former CEO then sent more letters — to both the PTAB chief judge and to the substitute panel which, again, were not made of record. (It’s not clear to me that Apple or the patentee knew of the letters at this time.). Other letters to the chief judge, the substitute panel, and even the Secretary of Commerce followed and the letters were not made of record and Apple was not notified (and, again, neither was the patentee, from what I can tell).

Then on September 18, the patentee posted the letters — calling them “independent” — on its web page. Then there were more letters.

The substitute panel in late November in its final written decision and found Apple had not established the claims were unpatentable.

Watchtroll did, however, engage in more PTAB bashing (with headlines like “killing good patents”). Will these people carry on lobbying until the Justicez decide on Oil States? The word “killing” is not appropriate; invalidated patents are the bad ones, not “good patents”. That’s why they get invalidated. Nobody gets killed.

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. IRC Proceedings: Saturday, October 16, 2021

    IRC logs for Saturday, October 16, 2021



  2. [Meme] First Illegally Banning Strikes, Then Illegally Taking Over Courts

    The vision of Team Battistelli/Campinos is a hostile takeover of the entire patent system, not just patent offices like the EPO; they’d stop at nothing to get there



  3. Portuguese Network of Enablers

    Instead of serving Portuguese people or serving thousands of EPO workers (including many who are Portuguese) the delegation from Portugal served the network of Campinos



  4. In Picture: After Billions Spent on Marketing, With Vista 11 Hype and Vapourware, No Real Gains for Windows

    The very latest figures from Web usage show that it’s hardly even a blip on the radar; Windows continues bleeding to death, not only in servers



  5. [Meme] [Teaser] Double-Dipping Friedrich Rödler

    As we shall see tomorrow night, the EPO regime was supported by a fair share of corrupt officials inside the Administrative Council



  6. The EPO’s Overseer/Overseen Collusion — Part XIV: Battistelli's Iberian Facilitators - Portugal

    How illegal “Strike Regulations” and regressive ‘reforms’ at the EPO, empowering Benoît Battistelli to the detriment of the Rule of Law, were ushered in by António Campinos and by Portugal 5 years before Campinos took Battistelli’s seat (and power he had given himself)



  7. Links 16/10/2021: SparkyLinux Turns 10 and Sculpt OS 21.10

    Links for the day



  8. “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



  9. [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



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

    Guest post by Ryan, reprinted with permission



  11. 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



  12. [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



  13. 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



  14. IRC Proceedings: Friday, October 15, 2021

    IRC logs for Friday, October 15, 2021



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

    Links for the day



  16. DuckDuckGo’s HQ is Smaller Than My Apartment

    Guest post by Ryan, reprinted with permission



  17. 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



  18. 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



  19. 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)



  20. [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



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

    Links for the day



  22. [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



  23. 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



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

    Links for the day



  25. IRC Proceedings: Thursday, October 14, 2021

    IRC logs for Thursday, October 14, 2021



  26. 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



  27. [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)



  28. 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



  29. [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



  30. 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


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