04.30.18

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Like a Pack of Spoiled Brats, Patent Maximalists and Media That They Control Bash the Oil States Decision and Distract From It

Posted in America, Courtroom, Law, Patents at 12:26 am by Dr. Roy Schestowitz

The headline from Bloomberg calls judges a ‘Death Squad’

Scales sketchSummary: Justice, rooted in the US Constitution and US law, does not appeal to people who claim to be working in the domain of law; instead they just try to twist things in order to maximise their revenue opportunities, as could be witnessed over the past week

THE patent system is changing. It’s changing for the better in some countries and for the worse in others. One might say that patent law is evolving, another might say devolving. Whatever one believes, we have always (since our inception) believed in a patent system which is based on common sense. So it should, for example, exclude software patents. Software developers simply neither want nor need these. Just ask them. Surveys or polls always show the same thing.

“The general theme is, the anti-PTAB charade carries on. They moan and groan. They throw toys out of the pram!”A week ago the US Supreme Court made some more changes to underlying law/guidance, based on the US Constitution. We wrote 2 articles about it shortly after the decisions came out and then again thrice (yesterday). In our latest post on the subject we showed how SAS Institute v Iancu (originally SAS Institute v Lee, but Lee was bullied out by patent maximalists) was used for distraction from Oil States, which was by far the more/most important decision. We are still seeing these distraction attempts; yesterday at noon, for example, Watchtroll contributors Robert Schaffer and Joseph Robinson (i.e. law firms) pushed the SAS Institute v Iancu envelope once more. There will be a USPTO webcast about it later today. Robert Schaffer and Joseph Robinson went even further; they also wrote about another PTAB case that reached the Court of Appeals for the Federal Circuit (CAFC) and was concluded nearly two weeks ago (Wi-Fi One, LLC v Broadcom Corp.; “The Court rejected each of these arguments and upheld the Board’s anticipation decision”).

The general theme is, the anti-PTAB charade carries on. They moan and groan. They throw toys out of the pram! A few hours ago Patently-O wrote about 01 Communique Lab. v Citrix Systems (covered here several times before) — a case wherein PTAB rendered invalid a patent on “software implemented private communication portal” (i.e. software patent) and CAFC affirmed, as usual. To quote Patently-O:

01Com’s U.S. Patent No. 6,928,479 is directed toward a software implemented private communication portal. The patentee sued Citrix for infringement back in 2006. Consider that — the lawsuit was filed before eBay limited injunctive relief, before KSR made it easier to invalidate a patent as obvious, before Nautilus raised the standard for indefiniteness, before Alice and Mayo opened the door to eligibility invalidation, and before Congress created the regime of AIA trials. The long delay in this case should also be a thing-of-the-past. Here, the district court stayed proceedings for seven years awaiting the outcome of an inter partes reexamination. The reexam was finally concluded in 2014 with a judgment confirming patentability of the challenged claims. Although unsuccessful before the PTAB, a 2016 jury sided with Citrix finding on infringement — finding none. (Note here that Citrix also unsuccessfully argued invalidity to the court and the jury).

On appeal, the Federal Circuit has affirmed — holding that a new trial is not warranted.

Of course not. There are more important things to deal with. It is no secret that we’re no fans of Patently-O; the site’s main author keeps trying to derail or slow PTAB down. It’s pretty obvious and any attempts to seem/sound objective are ludicrous. Not too long ago Patently-O pushed the myth about patents being “property” and all sorts of other things (they are just temporarily-granted monopolies) and yesterday Patently-O carried on with this nonsense. Yes, Dennis Crouch is back to silly caricatures that bash the Supreme Court’s decisions because the law and the US Constitution do not support patent extremists like Crouch and his ilk. Watch what they’ve done to a template of a patent with Michelle Lee’s name in it. At least this time the caricature had no racist element to it (like “Mexican” or “Chinese”).

“It is no secret that we’re no fans of Patently-O; the site’s main author keeps trying to derail or slow PTAB down. It’s pretty obvious and any attempts to seem/sound objective are ludicrous.”Patently-O and its readers (see the tone of comments) are very upset by the Oil States decision, which nevertheless they expected (in a negative/pessimistic way). As we showed yesterday, Watchtroll wrote no less than 3 rants in just 5 hours after that decision, bashing the courts and the jurists, too. Oil States is something they lose sleep over. They’d rather speak about SAS Institute v Iancu — as they’ve just done — and then let Eric Guttag (law firms again) write headlines like “Are There Silver Linings Amidst the Doom and Gloom?” (also less than a day ago)

We don’t want to entertain these with point-by-point rebuttals, but let’s just say that it’s all pretty revealing. Oil States is agonising to these people, so they’d rather leave it behind and talk only about SAS Institute v Iancu. Several days ago Patently-O dubbed it a “Mixed and Messy Bag of Results” — in a guest article by Brad D. Pedersen (Patent Practice Chair at Patterson Thuente). It’s about SAS Institute v Iancu and it amplifies dissent from Justice Gorsuch, citing the Koch-funded think tanks:

In the parallel SAS Institute decision, Justice Gorsuch authored the 5-4 majority decision strictly construing what the Patent Trial and Appeal Board must rule upon in a Final Written Decision at the end of an IPR trial. In overturning USPTO rulemaking, Justice Gorsuch held that the Board is not authorized to render so-called “partial institution” decisions. Instead, the statute is clear that the Board must address all of the claims that are being challenged by a petition in a Final Written Decision at the end of an IPR trial. Regardless of which camp you are in, this decision is a mixed and messy bag of results.

To call this decision “a mixed and messy bag of results” isn’t entirely honest, but bear in mind this comes from the patent microcosm. They hate PTAB and they do not like seeing that the Justices overwhelmingly back it (7 Justices to 2).

“Watchtroll wrote no less than 3 rants in just 5 hours after that decision, bashing the courts and the jurists, too.”IAM’s patent maximalist Richard Lloyd (the worst of the bunch) said that the “Supreme Court may have taken one part of PTAB reform off the table for now” (or forever).

To quote:

The nine justices of the US Supreme Court certainly kept us waiting for their opinion in Oil States Energy Services v Greene’s Energy Group. As this blog reported last month, of the major patent cases decided by the court since Chief Justice Roberts took over, only Bilski has taken longer to be handed down. That suggested that Oil States, which brought into question the constitutionality of inter partes review, might be closer than is customary for a case concerning patents.

As a reminder, not too long ago Lloyd went to lobby Iancu against PTAB. His constant PTAB-bashing agenda basically reaffirms IAM’s status as “patent trolls’ lobby” and Lloyd has a long history pushing software patents among every other nefarious thing, patent trolls included. He’s a symptom of the problem if not an integral part of it.

Managing IP, which is like a ‘moderate’ version of IAM, wrote about this too. Ellie Mertens, who is based in New York (like many of their active writers), said this:

The US Supreme Court has ruled the IPR process at the Patent Trial and Appeal Board is constitutional, although two justices dissented and the court left IPRs open to due process arguments

The US Supreme Court has found the inter partes review (IPR) process at the Patent Trial and Appeal Board (PTAB) to be constitutional in its April 24 Oil States v Greene’s Energy decision.

Fair enough. Contrast this with IAM, which acts like a protestant against the US Supreme Court because the decision does not match the interests of IAM sponsors. Let’s face it; this decision at the highest of all levels makes patent maximalists totally lose their minds. They see no light at the end of the tunnel.

“They hate PTAB and they do not like seeing that the Justices overwhelmingly back it (7 Justices to 2).”The patent maximalists at Patent Docs wrote about the two decisions, separating the pair into two posts, SAS Institute Inc. v Iancu and Oil States Energy Services, LLC. v Greene’s Energy Group, LLC. The coverage from Patent Docs, for a change, seems pretty fair (considering who wrote it).

We have since then seen analyses from law firms like Wilson Sonsini Goodrich & Rosati, from Weintraub Tobin and several others. Here’s how sites of patent maximalists are covering SAS Institute v Iancu [1, 2]. Here’s an analysis from Jenner & Block LLP (they have put more names in there than could possibly be involved in writing the article: Michael G. Babbitt, Aaron A. Barlow , Timothy J. Barron, Benjamin J. Bradford, Reginald J. Hill, Sara Tonnies Horton, Adam G. Unikowsky and Natacha Y. Lam). Cooley LLP published its take in several sites [1, 2, 3] and so did Brad Y. Chin, Kevin R. Tamm and Yeon Jae Ko (Bracewell LLP) [1, 2]. They try to make a name for themselves, piggybacking these historic decisions, and there’s probably a lot more on the way (for weeks to come).

“Let’s face it; this decision at the highest of all levels makes patent maximalists totally lose their minds. They see no light at the end of the tunnel.”Looking at general press coverage, we are seeing some nice and catchy headlines such as “Supremes Preserve PTO Ammo Against Patent Trolls” and “Supreme Court upholds review procedure tech companies use to thwart ‘patent trolls’” [1, 2]. These headlines are technically correct because the Justices have just dealt a blow to patent trolls specifically (they rely on justice being expensive, thus accused small firms give up without even a trial).

We were rather disgusted by the coverage from Bloomberg, primarily for continuing to repeat the utterly insulting ‘Death Squad’ narrative (they just keep doing it all the time in this ‘professional’ ‘news’ site), in effect comparing judges to Stalin/Hitler even in the headline, echoing propagandistic rhetoric of the patent extremists. Greg Stohr and Susan Decker should work for tabloids, not for Bloomberg. They should be smart enough to know the implication of comparing patent judges/panels to a ‘Death Squad’.

“They should be smart enough to know the implication of comparing patent judges/panels to a ‘Death Squad’.”For better coverage see technical sites. Timothy B. Lee is a veteran in this domain, having covered patent trolls and software patents for ages (almost as long as we have). Web sites of patent reformers are covering the issues from the point of view of technologists rather than lawyers.

Seeing the above article and remarking on it, Jan Wildeboer‏ (Red Hat employee, a technical person who used to campaign against software patents) wrote: “TL;DR [too long, didn't read] with a 7-2 decision #SCOTUS has declared that #Patents are a franchise and NOT property. I am going to party hard! [] That’s a huge blow for the Maximalists in the patent field that insist that the P in IPR (Intellectual Property Rights) means patents are property just like physical property (a house, a piece of land). This decision clearly says no to that.”

“Web sites of patent reformers are covering the issues from the point of view of technologists rather than lawyers.”“Intellectual Privileges then,” Benjamin Henrion (FFII) responded to him, only to be told: “Although I follow quite some “IP” maximalist, I haven’t seen much reactions to this decision. Seems they are not really sure what to make of it?”

No, they just try to distract from it, as we demonstrated yesterday, and technical people are noticing (Florian Müller for example, having written a long blog post to point out this distraction). I told Wildeboer‏ that “no comment” typically means “would rather not say what I think”.

In about 12 hours from now the top judge from PTAB will respond to questions regarding the latest decisions and their impact on PTAB. It’s no secret that the patent maximalists are pressuring Iancu/USPTO pretty hard right now; they don’t yet bully Iancu like they bullied Lee, but maybe they’ll get to that too — eventually (he is too ‘moderate’ for them; they wanted an extremist who calls PTAB judges "death squads" in charge of the USPTO; they’re still grooming him).

“For those who missed it, the USPTO has a problem with appointments by nepotism (e.g. spouses and relatives).”The USPTO sure has its share of issues, but we hope it can understand that its original goal was to serve scientists and technologists, not lawyers and attorneys. The USPTO CIO Watchdog said some days ago: “If the USPTO is serious about hiring a new CIO then the new Director should be wary of the advice of his Senior staff if they are involved in the selection process. Some them have hidden agendas and would select a puppet instead of a leader. Right CFO?”

For those who missed it, the USPTO has a problem with appointments by nepotism (e.g. spouses and relatives). That’s similar to what we observe at the EPO.

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