03.31.18

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The ITC Administrative Law Judges Continue to Do Bizarre Things About Expiring Patents, Including Cisco-Imposed Embargo on Competition Using Invalid (Rejected by PTAB) Patents

Posted in America, Courtroom, Patents at 10:27 am by Dr. Roy Schestowitz

Administrative Law Judge Photos
Reference: Administrative Law Judge Photos

Summary: Once again we are seeing the International Trade Commission giving ‘teeth’ to patents that aren’t really legitimate (or nearly invalid/expired) and serve no purpose other than embargoes, which merely harm customers by limiting choice

Yesterday we found this new little rant from the CCIA. Josh Landau alluded to something from Thursday:

Yesterday, the ITC published the Federal Register notice of the initial determination of an ITC administrative law judge (ALJ). The ALJ determined that the investigation, instituted in January based on a complaint filed last year, shouldn’t go further forward and terminated the case for good cause.

I’m going to totally set aside the merits of the (questionable) patent involved in this case, U.S. 7,930,340. (I will note that the plaintiff has previously been sanctioned by the Federal Circuit for trying to evade word count limits by deleting spaces between words.) I’m going to focus on one thing—expiration.

The patent was filed claiming priority to an application filed August 5, 1996. It was given 577 days of extra patent term due to time in prosecution. That means that it expires 20 years and 577 days after August 5, 1996—on March 6, 2018.

The ITC just forced the defendants to spend several months paying to defend themselves against a patent that everyone involved knew would expire before the ITC acted.

This is truly incredible (and well caught by CCIA). What is the ITC thinking?

“The odd thing is, Cisco is one of the vocal proponents of PTAB.”Unfortunately we’ve found ourselves having to criticise ITC quite a lot over the past year. Even earlier this month. The latest in Arista Networks v Cisco Systems, or Arista challenging patents that Cisco uses in an effort to embargo the competition (through ITC), is now the subject of a new post at Patently-O. As a reminder, ITC (in)famously discarded the judgment of PTAB and persisted with an embargo. To quote Patently-O:

In what is mecoming [sic] a more regular outcome, the Federal Circuit has again vacated a PTAB IPR holding — holding that the USPTO’s panel of Administrative Patent Judges failed to “adequately explain its reasoning on a point that was central to its analysis.”

This time the case involves a PTAB finding for the patentee — that the IPR challenger Arista had not proven obviousness (for several challenged claims of Cisco’s Patent No. 8,051,211). The identified failure was in addressing a particular argument for how the prior art taught the claimed invention.

Does it mean that the embargo carries on (or products modified, i.e. made worse, just to bypass it)? That while guilt has not been established Arista is still being punished (quite severely in fact, sinking the stock)?

“The bottom line is, Cisco seems to enjoy PTAB and support PTAB as long as ITC weirdly enough snubs PTAB and simply maintains an embargo on Cisco’s competitors.”The odd thing is, Cisco is one of the vocal proponents of PTAB. It even funds PTAB advocacy front groups.

Meanwhile, a Microsoft-connected law firm mentions (as recently as yesterday) some company we never heard of. It’s suing Cisco using patents, which might explain why Cisco does support PTAB (it also employed Patent Troll Tracker, who got himself and Cisco sued after the late Ray Niro had unmasked him). To quote:

In a new twist in competitor-based lawsuits involving cloud computing, Centripetal Networks, a relative newcomer, filed a patent lawsuit against industry incumbent and Fortune 100 Company Cisco in the U.S. District Court for the Eastern District of Virginia in February 2018. Centripetal has focused its technology on network intelligence and security solutions since its founding in 2009. In its 136 page complaint against the networking solutions giant, Centripetal has alleged infringement of ten patents (out of its total portfolio of fourteen patents).

The bottom line is, Cisco seems to enjoy PTAB and support PTAB as long as ITC weirdly enough snubs PTAB and simply maintains an embargo on Cisco’s competitors.

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