02.18.18

Gemini version available ♊︎

Academic Patent Immunity is Laughable and Academics Are Influenced by Corporate Money (for Steering Patent Agenda)

Posted in Patents at 5:37 am by Dr. Roy Schestowitz

Even some US colleges are funded by patent lobbies

Antonin Scalia Law School

Summary: Universities appear to have become battlegrounds in the war between practicing entities and a bunch of parasites who make a living out of litigation and patent bubbles

THE US has a problem of corporate influence in universities. Not only the US has this problem. As a former academic myself (I worked a few years as a postdoc), I’ve seen it from the inside and I still hear about it from friends or former colleagues. Corporations funnel money in exchange for things; even the EPO now pays scholars in the UK and in the US (in exchange for papers that help promote the UPC). Certainly the policy of the USPTO is impacted by this; a lot of academic papers should state openly which corporations fund the authors’ (or investigators’) department/s. There’s danger, however, that by insinuating such corruption of academia one leaves room for patent extremists to attack academics they dislike. So let’s just say that scholars are, in general, more credible than think tanks and front groups (like IPO); but they’re not impenetrable to outside influence or even soft bribes.

Why are we saying all this? Well, Scott McKeown, writing at Ropes & Gray’s site, has just written about an old subject which we covered here before, noting that a federal court will soon wrestle with the questions about “sovereign immunity” for academic institutions, specifically in relation to PTAB.

Why should universities that hold questionable patents be immune from the law and from scrutiny? That seems to make no sense at all, but never underestimate the power of lobbying. And what makes them a separate sovereignty to begin with? (sovereignty as in “sovereign immunity”)

State-affiliated entities enjoy immunity from suit in federal courts under the 11th amendment. To date, a handful of such entities have successfully leveraged the same immunity theory to avoid review of their patents before the Patent Trial & Appeal Board (PTAB). While still other Patent Owners have aligned themselves with Native American Tribes in an effort to benefit from their sovereign status in the hopes of avoiding PTAB review.

More recently, in Ericsson v. Regents of the University of Minnesota the PTAB has determined that sovereign immunity is waived where the sovereign entity files an infringement suit.

Another law firm wrote about this the other day, noting that the State, as per an infamous old law, enabled universities to abuse taxpayers’ money to collect patents and then give these to trolls (who soon attack these very same taxpayers). Why should they — the universities that nowadays incubate startups and privatise publicly-funded research — at the same time they pursue these patents also be immune from scrutiny?

Here’s more on the University of Minnesota:

The PTAB’s decision also did not state whether UMinn had any input in Toyota’s strategy to request adverse judgment. Thus, from the record, it is not clear whether Toyota adequately represented the interests of UMinn in this case.

Right now, owing to the above cases, Big Pharma is attempting to shelter its controversial patents using tribes (for tribal immunity). The situation has become quite unreal.

Meanwhile, judging by this new paper from Saurabh Vishnubhakat, he continues to feed the anti-PTAB (often pro-trolls) lobby. From his abstract: “The rise of administrative patent validity review since the America Invents Act has rested on an enormous expansion of Patent Office authority. A relatively little-known aspect of that authority is the agency’s statutory ability to intervene in Federal Circuit appeals from adversarial proceedings in its own Patent Trial and Appeal Board. The Patent Office has exercised this intervenor authority frequently and with specific apparent policy objectives, including where one of the adverse parties did not participate in the appeal. Moreover, until recently, there has been no constitutional inquiry into the Article III standing that the Patent Office must establish in order to intervene in this way.”

Patently-O (i.e. Crouch) continues to feed that same lobby too by publishing this guest post by Matthew J. Dowd and Jonathan Stroud, citing Vishnubhakat’s work. From their long post:

Professor Saurabh Vishnubhakat’s recent well-reasoned post and longer article add much to the discussion about standing to appeal from the PTAB. Standing has recently garnered significant interest from the Federal Circuit. Building on existing scholarship, we have written a concise synopsis of standing law as applied to PTAB appeals, forthcoming in Catholic University of America Law Review.

[...]

In our view, as a matter of standing alone, the PTO can participate as an intervenor in virtually all AIA appeals from the PTAB—and many reasons are consonant with the principles on which Professor Vishnubhakat bases his reasoning. We make no judgment here on the merits of the positions the PTO solicitor has or will adopt, or the frequency of intervention. While there is a valid debate about the policy choices and the frequency with which the PTO has intervened, that debate is distinct from the legal question of whether the PTO has, or must have, standing as an intervenor beyond their express statutory grant. Professor Vishnubhakat reasons correctly; he just goes a bridge too far.

We already know what they’re trying to accomplish because it’s well documented (for years). They hope to weaken if not abolish PTAB by comparing patents to “property” (a lie) or “rights”, then alluding to terms like “property rights” (which meant an entirely different thing when the term was conceived).

Last but not least, there’s this new paper from Jason Reinecke. It makes one wonder if Stanford University is now lobbying against software patents and — if so — who’s paying their School of Law for it (patent extremists will no doubt blame Google, for it’s closely connected to Stanford). Even though the title of the paper is a loaded question (“Is the Supreme Court’s Patentable Subject Matter Test Overly Ambiguous?), the conclusion seems to be an effort to debunk a myth promoted by patent extremists.

From the abstract (about abstract patents):

In four cases handed down between 2010 and 2014, the Supreme Court articulated a new two-step patent eligibility test that drastically reduced the scope of patent protection for software inventions. Scholars have described the test as “impossible to administer in a coherent, consistent way,” “a foggy standard,” “too philosophical and policy based to be administrable,” a “crisis of confusion,” “rife with indeterminacy,” and one that “forces lower courts to engage in mental gymnastics.”

This Article provides the first empirical test of these assertions. In particular, 231 patent attorneys predicted how courts would rule on the subject matter eligibility of litigated software patent claims, and the results were compared with the actual district court rulings. Among other findings, the results suggest that while the test is certainly not a beacon of absolute clarity, it is also not as amorphous as many commentators have suggested.

When lobbyists such as David Kappos say there’s lack of “clarity” regarding Alice they contribute to these myths. As we’ll show in our next post, the latest myth is that PTAB relies not on facts.

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. Links 30/01/2023: Plasma Mobile 23.01 and GNU Taler 0.9.1

    Links for the day



  2. EPO Management Isn't Listening to Staff, It's Just Trying to Divide and Demoralise the Staff Instead

    “On 18 January 2023,” the staff representatives tell European Patent Office (EPO) colleagues, “the staff representation met with the administration in a Working Group on the project “Bringing Teams Together”. It was the first meeting since the departure of PD General Administration and the radical changes made to the project. We voiced the major concerns of staff, the organization chaos and unrest caused by the project among teams and made concrete proposals.”



  3. Links 30/01/2023: Coreboot 4.19 and Budgie 10.7

    Links for the day



  4. IRC Proceedings: Sunday, January 29, 2023

    IRC logs for Sunday, January 29, 2023



  5. [Meme] With Superheroes Like These...

    Ever since the new managers arrived the talent has fled the company that falsely credits itself with "Open Source"



  6. Not Tolerating Proprietary 'Bossware' in the Workplace (or at Home in Case of Work-From-Home)

    The company known as Sirius ‘Open Source’ generally rejected… Open Source. Today’s focus was the migration to Slack.



  7. The ISO Delusion: A Stack of Proprietary Junk (Slack) Failing Miserably

    When the company where I worked for nearly 12 years spoke of pragmatism it was merely making excuses to adopt proprietary software at the expense of already-working and functional Free software



  8. Debian 11 on My Main Rig: So Far Mostly OK, But Missing Some Software From Debian 10

    Distributions of GNU/Linux keep urging us to move to the latest, but is the latest always the greatest? On Friday my Debian 10 drive died, so I started moving to Debian 11 on a new drive and here's what that did to my life.



  9. Stigmatising GNU/Linux for Not Withstanding Hardware Failures

    Nowadays "the news" is polluted with a lot of GNU/Linux-hostile nonsense; like with patents, the signal-to-noise ratio is appalling and here we deal with a poor 'report' about "Linux servers" failing to work



  10. Microsofters Inside Sirius 'Open Source'

    Sirius ‘Open Source’ has been employing incompetent managers for years — a sentiment shared among colleagues by the way; today we examine some glaring examples with redacted communications to prove it



  11. Links 29/01/2023: GNOME 43.3 Fixes and Lots About Games

    Links for the day



  12. The Hey Hype Machine

    "Hey Hype" or "Hey Hi" (AI) has been dominating the press lately and a lot of that seems to boil down to paid-for marketing; we need to understand what's truly going on and not be distracted by the substance-less hype



  13. IRC Proceedings: Saturday, January 28, 2023

    IRC logs for Saturday, January 28, 2023



  14. Unmasking AI

    A guest article by Andy Farnell



  15. The ISO Delusion/Sirius Corporation: A 'Tech' Company Run by Non-Technical People

    Sirius ‘Open Source’ was hiring people who brought to the company a culture of redundant tasks and unwanted, even hostile technology; today we continue to tell the story of a company run by the CEO whose friends and acquaintances did severe damage



  16. Links 28/01/2023: Lots of Catching Up (Had Hardware Crash)

    Links for the day



  17. IRC Proceedings: Friday, January 27, 2023

    IRC logs for Friday, January 27, 2023



  18. Microsoft DuckDuckGo Falls to Lowest Share in 2 Years After Being Widely Exposed as Microsoft Proxy, Fake 'Privacy'

    DuckDuckGo, according to this latest data from Statcounter, fell from about 0.71% to just 0.58%; all the gains have been lost amid scandals, such as widespread realisation that DuckDuckGo is a Microsoft informant, curated by Microsoft and hosted by Microsoft (Bing is meanwhile laying off many people, but the media isn’t covering that or barely bothers)



  19. This is What the Microsoft-Sponsored Media Has Been Hyping Up for Weeks (Ahead of Microsoft Layoffs)

    Reprinted with permission from Ryan



  20. [Meme] António Campinos Wants to Be F***ing President Until 2028

    António Campinos insists he will be EPO President for 10 years, i.e. even longer than Benoît Battistelli (despite having appalling approval rates from staff)



  21. European Patent Office Staff Losing Hope

    The EPO’s management with its shallow campaign of obfuscation (pretending to protect children or some other nonsense) is not fooling patent examiners, who have grown tired and whose representatives say “the administration shows no intention of involving the staff representation in the drafting of the consultant’s mandate” (like in Sirius ‘Open Source’ where technical staff is ignored completely for misguided proposals to pass in the dark)



  22. IRC Proceedings: Thursday, January 26, 2023

    IRC logs for Thursday, January 26, 2023



  23. Sirius Relegated/Demoted/Destined Itself to Technical Hell by Refusing to Listen to the Technical Staff (Which Wanted to Stay With Asterisk/Free Software)

    In my final year at Sirius ‘Open Source’ communication systems had already become chaotic; there were too many dysfunctional tools, a lack of instructions, a lack of coordination and the proposed ‘solution’ (this past October) was just more complexity and red tape



  24. Geminispace Approaching Another Growth Milestone (2,300 Active Capsules)

    The expansion of Geminispace is worth noting again because another milestone is approached, flirted with, or will be surpassed this coming weekend



  25. [Meme] Cannot Get a Phone to Work... in 2022

    Sirius ‘Open Source’ wasted hours of workers’ time just testing the phone after it had moved to a defective system of Google (proprietary); instead of a rollback (back to Asterisk) the company doubled down on the faulty system and the phones still didn’t work properly, resulting in missing calls and angst (the company just blamed the workers who all along rejected this new system)



  26. [Meme] Modern Phones

    Sirius ‘Open Source’ is mistaking “modern” for better; insecurity and a lack of tech savvy typically leads to that



  27. The ISO Delusion: Sirius Corporation Demonstrates a Lack of Understanding of Security and Privacy

    Sirius ‘Open Source’, emboldened by ISO ‘paperwork’ (certification), lost sight of what it truly takes to run a business securely, mistaking worthless gadgets for “advancement” while compelling staff to sign a new contract in a hurry (prior contract-signing scandals notwithstanding)



  28. Links 26/01/2023: LibreOffice 7.4.5 and Ubuntu Pro Offers

    Links for the day



  29. Links 26/01/2023: GNU poke 3.0 and PipeWire 0.3.65

    Links for the day



  30. IRC Proceedings: Wednesday, January 25, 2023

    IRC logs for Wednesday, January 25, 2023


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