Bonum Certa Men Certa

The Patent Trial and Appeal Board (PTAB) and Patent Reform (AIA) Generally Too Popular to Stop, But Patent Law Firms Helped by Andrei Iancu Keep Trying

Patent maximalists' Office takeover isn't a court/s takeover

Andrei IancuSummary: The patent microcosm together with Andrei Iancu (who himself came from the patent microcosm) is frustrated to have come to grips with quality control; low-quality patents continue to be rejected by courts

WHETHER it likes it or not, the leadership of the USPTO will need to adapt to court rulings, not selectively but properly. Otherwise people will lose confidence in US patents and will no longer pursue these.



There's this thing we recently dubbed "Cult of Patents"; they're patent maximalists who insist that innovation cannot happen without patents, that patents are a "property", and that patents are justified for thoughts, nature etc. In short, they're pretty badly deluded.

"There's this thing we recently dubbed "Cult of Patents"; they're patent maximalists who insist that innovation cannot happen without patents, that patents are a "property", and that patents are justified for thoughts, nature etc."Mohamed Salem Abou El Farag from Qatar University's College of Law said in his paper dated May 5th (2018): "Intellectual property (IP) is the branch of law that protects innovations and creations..."

But no, it is a propaganda term rather than a law and sometimes -- if misused/overused -- it actually damages innovation and creation. This has been demonstrated empirically in the past. Why are some people still saying things like these? They can just stop saying "IP" altogether. It's a misleading propaganda term. If they mean patents, then they should say "patents", not "IP". How about this one (titled "Intellectual Property")? "There are four general areas of IP," it said some days ago, "patents, trade secrets, copyrights and trademarks. It’s important to understand the four types and how they differ."

"They can just stop saying "IP" altogether. It's a misleading propaganda term. If they mean patents, then they should say "patents", not "IP"."Why say IP or “Intellectual Property” at all? By the article's own admission, there are "patents, trade secrets, copyrights and trademarks."

They're completely different laws; they work differently.

Another new article of note speaks of patents "in connection with 3D printing technology" -- the sorts of patents which famously held back 3D printing for a number of decades (the same goes for drones). To quote:

An increase in attempts to obtain patent protection in connection with 3D printing technology means the patent space in this area has become very crowded, likely an indication that additive manufacturing is overtaking traditional manufacturing processes.

Not only 3D printers themselves but also certain mechanical parts for computing and manufacturing might be subject to patent protection. Of course, software used for 3D printing (like all software) enjoys copyright protection in most jurisdictions. But software can also be eligible for patent protection in some countries (such as the US).

Thus, new entrants must be careful not to infringe others’ patent rights. When trying to safeguard their own additive manufacturing's critical IP, businesses should analyse their options under patent law and consider securing IP through trade secret protection, copyright and design laws.


In the case of 3D printing we have a classic example of patents actually slowing down and preventing innovation. This does not quite apply to trademarks or even to copyrights, as similar ideas can be expressed under different brands and using different words.

Speaking of "different words", many people nowadays try to patent old things by using buzzwords and new/different words, e.g. "cloud" for server or "AI" for some clever algorithm. Here is an example of 'cloudwashing' in a press release from a few days ago:

The patent for invention 9,973,499 is issued for technology that extends greater endpoint trust, through identity verification and policy enforcement, for secure network-to-network and network-to-cloud connections.


This is, by the sound of it, a software patent. But the wording doesn't say anything remotely like that. Over at Watchtroll, Samuel Hayim and Kate Gaudry admit what many patent lawyers prefer to deny in order to attract/lure gullible businesses into software patent pursuits (in vain). "Eligibility Rejections are Appearing in Greater Frequency Across all Computer Related Technology Centers," says their headline and here are some bits:

Four years after the Alice decision...

[...]

The frequency of any particular rejection type may be influenced by seminal Federal Circuit and Supreme Court cases. Judicial decisions are interpreted into policy decisions by the United States Patent Office (USPTO) and distributed to patent examiners in the form of examination guidance memoranda and other training materials. At least initially, major changes in jurisprudence are more likely to burden applications in the technological art analyzed by the court than applications in other arts as the USPTO will extend the courts analysis to those applications pending in that technological art. Yet, as the dust settles, the full impact of these decisions may be seen across all technology centers (TCs) of the USPTO.

[...]

Examiners have not been the only obstacle to securing patents for business-method technologies. For example, we recently analyzed Patent Trial and Appeal Board (PTAB) ex parte appeal decisions having had Appeal Briefs filed after the Alice decision. We reviewed PTAB decisions from computer related technology centers, including TCs 2100, 2400, 2600 and the business method portion of TC 3600. Nearly all eligibility rejections at issue stemmed from the business-method art units[5], and a mere 7% of those appeals were successful (i.e. reversed).[6] Thus, the Alice decision had a significant impact on the applications from business method art units.


Patent maximalists have meanwhile gone so insane or incredibly selfish that they nowadays bash their own country, notably the US, using sheer lies while glamouring China not because it's good but because patents are out of control there, software patents included. We wrote about that twice over the weekend.

Adding insult to injury (to the system), some patent lawyers have gone as far as plotting patent "scams" wherein patents are being passed to tribes to avoid justice. That just wouldn't fly however (at many levels, including Congress/Senate, courts, PTAB and public forums). Here's the latest of that:

Earlier this week, the Supreme Court released their decision in Upper Skagit Indian Tribe v. Lundgren. The opinion effectively held that the simple fact of in rem jurisdiction does not always bar claims of tribal sovereign immunity.

In rem jurisdiction is one argument that might bar the new practice of renting tribal sovereign immunity to a patent owner in order to shield the patent from inter partes review (IPR). That argument, among others, is now being reviewed by the Federal Circuit in the St. Regis Mohawk Tribe v. Allergan case. (CCIA joined an amicus brief in front of the Federal Circuit.)

[...]

At first glance, it’s not obvious why the immovable property exception is relevant to patents. Patents are public franchises, not land. And patents are intangible property, not land tightly bound to a particular physical location.

But patents are a form of property, as Oil States made sure to emphasize. And patents have territorial limits, the scope of which are being decided in the WesternGeco case right now.

That second statement is important. Patents share an important characteristic with land—they are both geographically limited forms of property, and those geographical limits are fixed and immovable. Land has boundaries; United States patents apply only within the United States. While you can transfer ownership of a patent to a foreign entity, just like you can sell land, the patent itself will still only apply within the United States and the rights associated with the land will only apply within the deeded boundaries.

That means that, like land, patents are (at least in a sense) immovable property permanently situated within the United States. And any decision which allows the application of sovereign immunity to patents thus creates an offense to the sovereignty of the United States in the same way that applying sovereign immunity to prevent a state from determining the status of its own land offends the sovereignty of that state.


Unified Patents has declared (6 days ago) that a patent "asserted in more than 50 district court cases" will no longer bother the world, owing to a PTAB IPR:

On May 18, 2018, Anuwave LLC (an IP Edge entity) and Unified Patents Inc. filed a joint request to terminate IPR2018-00223 prior to institution pursuant to settlement. U.S. Patent 8,295,862, the subject of the IPR petition, relates to banking through SMS and has been asserted in more than 50 district court cases.


Therein lies the power of PTAB. But an ideal situation would have been invalidation.

The bottom line is, the USPTO granted far too many dubious patents whose potential is to harm rather than to foster innovation. That ought to change. Patents are supposed to advance the public interest.

Recent Techrights' Posts

With 9 Mentions of Azure In Its Latest Blog Post, Canonical is Again Promoting Microsoft and Intel Vendor Lock-in, Surveillance, Back Doors, Considerable Power Waste, and Defects That Cannot be Fixed
Microsoft did not even have to buy Canonical (for Canonical to act like it happened)
Links 28/03/2024: GAFAM Replacing Full-Time Workers With Interns Now
Links for the day
Consent & Debian's illegitimate constitution
Reprinted with permission from Daniel Pocock
The Time Our Server Host Died in a Car Accident
If Debian has internal problems, then they need to be illuminated and then tackled, at the very least in order to ensure we do not end up with "Deadian"
China's New 'IT' Rules Are a Massive Headache for Microsoft
On the issue of China we're neutral except when it comes to human rights issues
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 27, 2024
IRC logs for Wednesday, March 27, 2024
WeMakeFedora.org: harassment decision, victory for volunteers and Fedora Foundations
Reprinted with permission from Daniel Pocock
Links 27/03/2024: Terrorism Grows in Africa, Unemployment in Finland Rose Sharply in a Year, Chinese Aggression Escalates
Links for the day
Links 27/03/2024: Ericsson and Tencent Layoffs
Links for the day
Amid Online Reports of XBox Sales Collapsing, Mass Layoffs in More Teams, and Windows Making Things Worse (Admission of Losses, Rumours About XBox Canceled as a Hardware Unit)...
Windows has loads of issues, also as a gaming platform
Links 27/03/2024: BBC Resorts to CG Cruft, Akamai Blocking Blunders in Piracy Shield
Links for the day
Android Approaches 90% of the Operating Systems Market in Chad (Windows Down From 99.5% 15 Years Ago to Just 2.5% Right Now)
Windows is down to about 2% on the Web-connected client side as measured by statCounter
Sainsbury's: Let Them Eat Yoghurts (and Microsoft Downtimes When They Need Proper Food)
a social control media 'scandal' this week
IRC Proceedings: Tuesday, March 26, 2024
IRC logs for Tuesday, March 26, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Windows/Client at Microsoft Falling Sharply (Well Over 10% Decline Every Quarter), So For His Next Trick the Ponzi in Chief Merges Units, Spices Everything Up With "AI"
Hiding the steep decline of Windows/Client at Microsoft?
Free technology in housing and construction
Reprinted with permission from Daniel Pocock
We Need Open Standards With Free Software Implementations, Not "Interoperability" Alone
Sadly we're confronting misguided managers and a bunch of clowns trying to herd us all - sometimes without consent - into "clown computing"
Microsoft's Collapse in the Web Server Space Continued This Month
Microsoft is the "2%", just like Windows in some countries
Links 26/03/2024: Inflation Problems, Strikes in Finland
Links for the day
Gemini Links 26/03/2024: Losing Children, Carbon Tax Discussed
Links for the day
Mark Shuttleworth resigns from Debian: volunteer suicide and Albania questions unanswered, mass resignations continue
Reprinted with permission from Daniel Pocock
Links 26/03/2024: 6,000 Layoffs at Dell, Microsoft “XBox is in Real Trouble as a Hardware Manufacturer”
Links for the day
Gemini Links 26/03/2024: Microsofters Still Trying to 'Extend' Gemini Protocol
Links for the day
Look What IBM's Red Hat is Turning CentOS Into
For 17 years our site ran on CentOS. Thankfully we're done with that...
The Julian Paul Assange Verdict: The High Court Has Granted Assange Leave to Appeal Extradition to the United States, Decision Adjourned to May 20th Pending Assurances
The decision is out
The Microsoft and Apple Antitrust Issues Have Some But Not Many Commonalities
gist of the comparison to Microsoft
ZDNet, Sponsored by Microsoft for Paid-for Propaganda (in 'Article' Clothing), Has Added Pop-Up or Overlay to All Pages, Saying "813 Partners Will Store and Access Information on Your Device"
Avoiding ZDNet may become imperative given what it has turned into
Julian Assange Verdict 3 Hours Away
Their decision is due to be published at 1030 GMT
People Who Cover Suicide Aren't Suicidal
Assange didn't just "deteriorate". This deterioration was involuntary and very much imposed upon him.
Overworking Kills
The body usually (but not always) knows best
Former Red Hat Chief (CEO), Who Decided to Leave the Company Earlier This Month, Talks About "Cloud Company Red Hat" to CNBC
shows a lack of foresight and dependence on buzzwords
IRC Proceedings: Monday, March 25, 2024
IRC logs for Monday, March 25, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Discord Does Not Make Money, It's Spying on People and Selling Data/Control (38% is Allegedly Controlled by the Communist Party of China)
a considerable share exists
In At Least Two Nations Windows is Now Measured at 2% "Market Share" (Microsoft Really Does Not Want People to Notice That)
Ignore the mindless "AI"-washing
Internet Relay Chat (IRC) Still Has Hundreds of Thousands of Simultaneously-Online Unique Users
The scale of IRC