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 27/10/2021: XOrg Server 21.1 and Makulu Shift Ubuntu Variant Released

    Links for the day



  2. Links 27/10/2021: Murena for /e/ and Red Hat Condemned for Its Nationalism/Racism

    Links for the day



  3. [Meme] EPO Presidential Surveys

    The 'social democracy' of Benoît Battistelli and António Campinos as demonstrated by a controlled survey (controlled by the subject of the survey, EPO governance)



  4. 'Shaping the New Normal' Survey at the EPO Got 5,554 EPO Staff to Participate, But It Was Controlled by Liars With an Agenda

    Last year’s EPO ‘study’ (hogwash about “quality” and other unscientific junk) was likely biased by virtue of autocrats controlling it and exploiting it for nefarious agenda and brainwashing of national delegates. The Staff Union of the EPO (SUEPO) has a new survey in the making.



  5. Many of the National Delegations (or Delegates) in the EPO's Administrative Council Have No Understanding of What They Vote on

    One must consider the possibility that ignorance or gullibility (which lack of qualifications may entail) possibly became a contributing factor — malice and bribery aside — in systemic failure of the EPO’s governance



  6. The EPO’s Overseer/Overseen Collusion — Part XXV: The Balkan League - Fresh Blood or Same Old, Same Old?

    We take stock of "captured states" that voted in favour of unlawful "Strike Regulations"



  7. IRC Proceedings: Tuesday, October 26, 2021

    IRC logs for Tuesday, October 26, 2021



  8. Beatriz Busaniche Speaks Up in Defense of Richard Stallman

    Beatriz Busaniche sent us this comment in July 2021. She wrote it originally in Spanish. Here are both the original text and our translation to English.



  9. Links 26/10/2021: SUSE Linux Enterprise Micro 5.1 and Multi-Distro Benchmarks

    Links for the day



  10. Links 26/10/2021: Vulkan 1.1 Conformance for Raspberry Pi 4 and Tor Browser 10.5.10

    Links for the day



  11. [Meme] Sounds Legit

    When not cheating on the wife, the EPO‘s “doyen” cheats in the exams and makes it into the epi Council, in effect working “[t]owards a common understanding [sic] of quality” with “patent attorneys nominated as “assessors” by the EPO, epi and BusinessEurope” (notorious lobbyists for dictators, litigation, and monopolies, neither business nor science)



  12. [Meme] Mayoral Patent Office Chief

    As it turns out, political 'double-dipping' isn't just a thing in North Macedonia, Austria, and EPOnia



  13. Romania's Patent Office (OSIM): Nine Different Chiefs in Just Eight Years

    The Romanian State Office for Inventions and Trademarks (OSIM), being the equivalent of the U.S. Patent and Trademark Office (USPTO) in the sense that it covers both patents and trademarks, is a very flaky institution with no shortage of scandals; for our English-reading audiences we now have a summary of a decade’s worth of blunders and leadership changes



  14. The EPO’s Overseer/Overseen Collusion — Part XXIV: The Balkan League - Romania

    Romania’s patent office has been in flux this past decade, occasionally led by people with no relevant experience, but rather political connections (like EPO President António Campinos) and sometimes forged documents and fake degrees



  15. IRC Proceedings: Monday, October 25, 2021

    IRC logs for Monday, October 25, 2021



  16. [Meme] “Social Democracy” at the EPO

    Some comments on the current situation at the European Patent Office from Goran Gerasimovski, the new EPO Administrative Council delegate for North Macedonia and Social Democratic candidate for mayor of Centar (a municipality of Skopje)



  17. [Meme] António Campinos Visits the OSIM

    António Campinos visits OSIM Director-General Ionel Muscalu in February 2014



  18. [Meme] [Teaser] Meet the President

    Later today we shall see what Romania did for Battistelli



  19. Links 26/10/2021: Latte Dock 0.10.3 and Linux 5.15 RC7

    Links for the day



  20. Gemini Protocol's Originator: “I Continue to Care About This Project and I Care About the Community That Has Formed Around It.”

    'Solderpunk' is back from a long hiatus; this bodes well for Geminispace, which grew fast in spite of the conspicuous absence



  21. Bulgarian Like Bavarian Serfdom

    Bulgarian politics seem to have played a big role in selecting chiefs and delegates who backed Benoît Battistelli‘s unlawful proposals, which treat workers almost like slaves and ordinary citizens as disposable ‘collaterals’



  22. The EPO’s Overseer/Overseen Collusion — Part XXIII: The Balkan League - Bulgaria

    Today we examine the role of Bulgaria in Benoît Battistelli‘s liberticidal regime at the EPO (as well as under António Campinos, from 2018 to present) with particular focus on political machinations



  23. Links 25/10/2021: New Slackware64-current and a Look at Ubuntu Budgie

    Links for the day



  24. Links 25/10/2021: pg_statement_rollback 1.3 and Lots of Patent Catchup

    Links for the day



  25. Microsoft GitHub Exposé — Part III — A Story of Plagiarism and Likely Securities Fraud

    Today we tread slowly and take another step ahead, revealing the nature of only some among many problems that GitHub and Microsoft are hiding from the general public (to the point of spiking media reports)



  26. [Meme] [Teaser] Oligarchs-Controlled Patent Offices With Media Connections That Cover Up Corruption

    As we shall see later today, the ‘underworld’ in Bulgaria played a role or pulled the strings of politically-appointed administrators who guarded Benoît Battistelli‘s liberticidal regime at the EPO



  27. IRC Proceedings: Sunday, October 24, 2021

    IRC logs for Sunday, October 24, 2021



  28. Links 25/10/2021: EasyOS 3.1 and Bareflank 3.0

    Links for the day



  29. The Demolition of the EPO Was Made Possible With Assistance From Countries That Barely Have European Patents

    The legal basis of today's EPO has been crushed; a lot of this was made possible by countries with barely any stakes in the outcome



  30. The EPO’s Overseer/Overseen Collusion — Part XXII: The Balkan League - North Macedonia and Albania

    We continue to look at Benoît Battistelli‘s enablers at the EPO


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