02.27.18
Gemini version available ♊︎Richard Epstein From a Koch-Funded Think Tank Attacks PTAB Because PTAB Squashes Weak Patents That Only Exist for Protectionism and Offense
Under the guise of ‘small government’ or ‘limited government’ (the slant used by billionaires to thwart regulations)
Richard Epstein’s bio above. Basically a serial lobbyist for keeping the government from intervening in the business affairs of plutocrats like the Koch Brothers (serial polluters).
Summary: A think tank of the Koch Brothers, typically known as “Fed Soc” (a misnomer), is the latest example of corruption/perturbation of the law by billionaires; they are not happy to see patent quality being improved or the threshold/bar raised
EARLIER THIS year we wrote about how and why the Koch Brothers are attacking the Patent Trial and Appeal Board (PTAB). Earlier today we wrote about one of their ‘scholars’, who are basically just drinking off billionaires’ duds in exchange for corrupt (paid-for) ‘research’. Right now, for example, their eyes are set on Congress, the Supreme Court, and the USPTO. This isn’t “normal” and it is definitely not “acceptable”. What we have here is a bunch of billionaires just trying to virtually if not literally ‘buy’ the law. We also know what they want: more for themselves and less for everyone else. They want protectionism, tax cuts, relaxation of regulations and so on.
Watch how villainous staff of theirs (bio above, showing direct affiliation) fires away another very long rant about PTAB. We know who’s paying for this and it’s not Richard Epstein’s pro bono endeavour. “MUST READ by Richard Epstein,” a patent maximalist called it, latching onto a think tank (or AstroTurfing for billionaires) because that suits his personal agenda. To quote the concluding words:
Oil States gives the Supreme Court the chance to stop a process that has already run off the rails. And if it does not, Congress should take steps to restore the proper constitutional balance.
Epstein also writes for SCOTUS Blog, which actually raises all sorts of questions about Koch influence over the Supreme Court. Is everything up for sale? Even the law or court rulings? It’s no secret that SCOTUS Blog has a special relationship with SCOTUS itself, as noted several times in the past (ethical questions brought up).
We already know why these people want PTAB squashed (for example by influencing the outcome of Oil States). Charles Bieneman, for example, has just covered this new district court decision (mentioned here a few days ago) that very obviously involves software patents (clearly a bunk/bogus patent). To quote: “Claims reciting a “method of playing back a recorded signal” are “directed to the [patent-ineligible] abstract idea of choosing to playback media with or without playback preferences,” held the court in D&M Holdings, Inc. v. Sonos, Inc., No. 16-141-RGA (D. Del. Feb 16, 2018). The court thus granted summary judgment of invalidity under 35 U.S.C. § 101 of U.S. Patent No. 7,995,899.”
This is more of what we’ve become accustomed to. Here’s a new PTAB example (not even court):
In constructing a term in the independent claim in the inter parte review of Kranos Corporation v. Riddell, Inc., (Case IPR2016-01649, Final Written Decision on Feb. 7, 2018), the Patent Trial & Appeals Board rejected the application of the doctrine of claim differentiation based on a clear definition of the term that was provided in the specification.
[...]
This is another example of how clear definitions and consistent use of those definitions can be beneficial for claim construction. This case can be compared to another recent post in which a district court did apply the doctrine of claim differentiation to determine the broadest reasonable interpretation of a claim term.
Another site, this one dedicated to PTAB matters, is now cherry-picking to find those very rare cases where appealing a PTAB ruling results in anything but more lawyer fees. Remember that they profit from appeals too, which they oversell as it’s another “transaction” for them.
Here’s this exception:
Obtaining a remand on an appeal from the Patent Trial & Appeal Board (PTAB) is of course a win for the Patent Owner, but may result in an ultimate loss when the case is revisited at the PTAB. The Feb. 12, 2018 Federal Circuit opinion, In Re Hodges, No. 2017-1434, (Fed. Cir. Feb. 12, 2018), highlights the importance of anticipating appellate review when developing the IPR record and choosing response strategies during patent prosecution to put the Patent Owner in the best position possible for a full reversal of the PTAB’s decision rather than a remand.
What’s currently at stake at Oil States is AIA/PTAB/IPRs but more precisely the authority of PTAB to invalidate patents that were granted (potentially years beforehand). If the lobbying of the Koch Brothers (they’re not alone in this) succeeds, there’s danger to PTAB’s very existence. It’s therefore important to point out where the money comes from and why. These people (Kochs) couldn’t care any less about the quality of patents; it’s not even an ideological question to them as it’s mostly about the government’s ability to take back what they deem ‘private’ ‘property’ ‘rights’ (it's none of these things). They disguise themselves as Libertarian, but what they really stand for is limitless greed and absence of regulations. █
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