09.25.18

Technology Groups and Innovators Bemoan Attempts to Override the Courts to Promote Patent Maximalists’ Agenda by USPTO Director Andrei Iancu

Posted in America, Patents at 6:43 am by Dr. Roy Schestowitz

Summary: The U.S. Patent and Trademark Office (USPTO) is not listening to the views of actual innovators; it seems to be serving just the patent and litigation ‘industry’ (i.e. those who profit from illegitimate patents and baseless lawsuits)

THE EPO was run by a corrupt tyrant for 8 years; he left his loyal compatriot in charge. At the USPTO, by contrast, a technical person (Michelle Lee) ran the Office for a number of years, undoing decades of injustice. Unlike lawyers or politicians or bankers (Iancu, Battistelli and Campinos, respectively), she persistently backed the appeal boards, which at the US are known as the Patent Trial and Appeal Board (PTAB), a relatively new construct that deals with inter partes reviews (IPRs), typically invalidating bogus patents using 35 U.S.C. § 101, inspired by the highest court in the United States.

“Unlike lawyers or politicians or bankers (Iancu, Battistelli and Campinos, respectively), she persistently backed the appeal boards, which at the US are known as the Patent Trial and Appeal Board (PTAB), a relatively new construct that deals with inter partes reviews (IPRs), typically invalidating bogus patents using 35 U.S.C. § 101, inspired by the highest court in the United States.”Michelle Lee got pushed out, partly by a mob of patent maximalists. When a replacement was found for her IAM pressured him to crush PTAB and now it’s jubilant to say “PTAB reforms latest move by PTO to tackle Board’s “perception problem”” (whose perception?).

“After proposed change in claim construction standard, new procedures may lessen need for Congressional action,” it says. No, there was no need for Congressional action; those who asked for Congressional action are crazed patent maximalists who know no boundaries to patent law.

“Michelle Lee got pushed out, partly by a mob of patent maximalists.”The person who visited Iancu and pressured him on behalf of the patent trolls’ lobby (IAM) wrote: “Both look good for patent owners but will be a lot of focus now on how they work in practice” (because this person, Richard Lloyd, will continue to attack PTAB irrespective of what happens next).‏

A person who advocates access to medicines wrote: “USPTO head wants to limit exceptions to patent subject matter.”

He linked to this tweet from a patent maximalist, who said: “This proposal is for new guidance for @uspto Examniers. It wouldn’t involve any new legislation and would be based on previous court decisions.”

“…this would further widen the gap between USPTO determinations and courts’ decisions. How is that beneficial?”Cherry-picking thereof. That’s what lawyers do. They ignore and disregard what doesn’t suit them. That’s what Iancu is. He’s a lawyer. The same person also said: “Outstanding speech at #IPOAM18 by Director Iancu that outlines a proposal for finally resolving the 101 mess – at least at the @USPTO. The proposal clearly defines the limited, excluded categories.”

Well, that will mean nothing to courts; in fact, this would further widen the gap between USPTO determinations and courts’ decisions. How is that beneficial? Maybe that’s fine for law firms because they profit from litigation no matter if it’s entirely frivolous. Bogus patents, bogus lawsuits… what do they care? They just do the billing. Their finance department is happy.

Lisa Ouellette, a patents (and other things) scholar, was citing Dennis Crouch yesterday. Crouch had posted a full transcript, which included this from Iancu:

So first, what exactly should be captured by the judicial exceptions to §101? In essence, and because we no longer want to mush subject matter with the conditions of patentability, the exceptions should capture only those claims that the Supreme Court has said remain outside the categories of patent protection, despite being novel, nonobvious, and well-disclosed. And what are the categories of inventions that the court told us that we should not patent even where the applicant demonstrates full compliance with Sections 102, 103 and 112? The Supreme Court gave us the answer: the “basic tools of scientific and technological work.”

Ouellette seems a tad concerned by Iancu’s plan, which is trying to bypass the law and the Supreme Court. Iancu is Trump’s “swamp” material (his firm had worked for Trump before he got this job), so this does not exactly shock us.

Quoting Ouellette about the IPO meeting from yesterday (IPO is a front group of patent zealots):

In remarks at the annual IPO meeting today, USPTO Director Andrei Iancu said “the USPTO cannot wait” for “uncertain” legislation on patentable subject matter and is “contemplating revised guidance” to help examiners apply this doctrine. Few are likely to object to his general goal of “increased clarity,” but the USPTO should be sure that any new guidance is consistent with precedent from the Supreme Court and Federal Circuit.

As most readers of this blog are well aware, the Supreme Court’s recent patentable-subject-matter cases—Bilski (2010), Mayo (2012), Myriad (2013), and Alice (2014)—have made it far easier to invalidate patent claims that fall under the “implicit exception” to § 101 for “laws of nature, natural phenomena, and abstract ideas.” Since Alice, the Federal Circuit has held patents challenged on patentable-subject-matter grounds to be invalid in over 90% of appeals, and the court has struggled to provide clear guidance on the contours of the doctrine. Proponents of this shift call it a necessary tool in the fight against “patent trolls”; critics claim it creates needless uncertainty in patent rights and makes it too difficult to patent important innovations in areas such as medical diagnostics. In June, Rep. Thomas Massie (R-KY) introduced the Restoring America’s Leadership in Innovation Act of 2018, which would amend § 101 to largely undo these changes—following a joint proposal of the American Intellectual Property Law Association (AIPLA) and Intellectual Property Owners Association (IPO)—but Govtrack gives it a 2% chance of being enacted and Patently-O says 0%.

In the absence of legislation, can the USPTO step in? In his IPO speech today, Director Iancu decries “recent § 101 case law” for “mush[ing]” patentable subject matter with the other patentability criteria under §§ 102, 103, and 112, and he proposes new guidance for patent examiners because this mushing “must end.” The problem is that the USPTO cannot overrule recent § 101 case law. It does not have rulemaking authority over substantive patent law criteria, so it must follow Federal Circuit and Supreme Court guidance on this doctrine, mushy though it might be.

Under the Supreme Court’s patentable-subject-matter inquiry, as summarized in Alice, once a patent claim is determined to fall within a statutory category of a “process, machine, manufacture, or composition of matter,” step 1 is to “determine whether the claims at issue are directed to a patent-ineligible concept,” and if so, step 2 is to “examine the elements of the claim to determine whether it contains an inventive concept sufficient to transform the [ineligible concept] into a patent-eligible application”—where “simply appending conventional steps, specified at a high level of generality” is “not enough.”

It’s not clear how Iancu thinks or why Iancu believes this will improve things. It will only further exacerbate things as he does not control the courts (nor should he). But it’s all about law firms, not science and technology.

This morning we saw this article titled “Patent 101: Patent Process FAQs For Inventors” (not about Section 101).

“As for the USPTO, it continues to unmask himself as little more than an agent of patent extremists.”“Patent attorneys and patent agents (“patent practitioners”) [EXPLOIT] the best and brightest engineers and scientists on a daily basis,” (for profit) it should say, but it doesn’t use the word “exploit”. That is what the opening paragraph says anyway. Inserting the word “exploit” makes it a lot more sensible. Gene Quinn, another such exploiter, published in Watchtroll an article titled “Are all U.S. Patent Claims Invalid?”

So yesterday too he carried on with strawman arguments as headlines. Of course the answer to this rhetorical question is “no”.

Josh Landau from the CCIA, which represents a lot of technology companies, responded with “Getting The Future Backwards: Iancu’s Comments On § 101 At IPO” and to quote:

This morning, Patent and Trademark Office (PTO) Director Iancu gave remarks at the Intellectual Property Owners Association (IPO) Annual Meeting. Perhaps unsurprisingly, given IPO’s efforts to legislatively overturn the Supreme Court’s recent cases reinforcing the bar on patents on products of nature and abstract ideas, Director Iancu’s remarks focused on patentable subject matter—§ 101.

While the remarks aren’t formal guidance, what Director Iancu has described is concerning. Specifically, he states that the guidance would instruct examiners to “allow[] claims that include otherwise excluded matter as long as that matter is integrated into a practical application.”

As for the USPTO, it continues to unmask himself as little more than an agent of patent extremists. This is what the official account tweeted: “Let’s stop commingling the categories of invention on one hand, with the conditions for patentability on the other. Section 101 is about subject matter,” said #USPTO Director Andrei Iancu at @IPO today. Read his full remarks: http://bit.ly/2QVr7fq .”

“At the end of the day, these people may be dooming their own patent system by looking to broaden patent scope at the Office even though courts push back, leaving patent holders in a limbo, uncertain of the validity or value (if any) of their patent/s.”Dennis Crouch has meanwhile gone ahead and put a dollar sign ($) in “USPTO” to better explain what USPTO is about: it’s all about greed. But he actually made/used the image for other reasons (“SUCCESS ACT”).

Neil Wilkof (IP Kat) has also just revealed that Iancu is still attending and opening events of patent extremists rather than science and technology events. Whose “SUCCESS” is this man pursuing? Maybe the occupation he came from — the one which exploits scientists and technologists. The USPTO certainty got priorities all wrong. Very wrong. To quote:

The initial speaker was Mr. Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director United States Patent and Trademark Office. Mr. Iancu took the audience back to the 1893 Chicago World’s Fair and Chicago Columbian Exposition, which in his words ushered in the modern world of technology. His focus was on the race over who would provide the lighting for the event? On the one hand, there was Thomas A. Edison and his invention of direct electrical current, on the other, the development of alternating current, by Nikola Tesla (the inventor, not the car), supported by George Westinghouse. As noted by Mr. Iancu, Westinghouse (and Tesla) won the bid.

For Mr. Iancu, what we learn from this story is that the patent system both encourages invention as well as patent design around, both of which are integral parts. But in today’s world, the outcome of the war over electrical currents and the role of patent protection in that contest, are not enough. Now, the USPTO is equally(?) focused on how to incentivize invention (read: innovation), although specifics offered were few, other than to emphasize the role of education.

Watchtroll is of course also engaging in yet more PTAB bashing (as always), e.g. “USPTO Substantially Revises PTAB Standard Operating Procedures” (Iancu cannot change patent law itself, he merely lowers patents’ certainty by lessening scrutiny in the office, not in patent courts, and does so at his own peril, lessening the perception of “danger” while at the same time reducing the appeal of US patents). Here is what Patently-O said about it:

Revised SOP2 includes, among other things:

Creation of the POP, typically comprising the Director, the Commissioner for Patents, and the Chief Judge of the PTAB;
Identification of the circumstances when POP members may delegate their authority, and to whom;
Provision of notice to the parties when POP review takes place, as well as the identification of the POP members in a particular case;
Explanation of the standards, procedures, and timing for requesting POP review in a pending case on rehearing; and
Revised procedures for designating a decision previously issued by the PTAB as precedential or informative.

Michael Loney from another patent maximalists’ site wrote this:

The Patent Trial and Appeal Board has revised its standard operating procedures on panelling of matters and precedential and informative decisions

The Patent Trial and Appeal Board has revised its standard operating procedures (SOPs) on panelling of matters (SOP1) and precedential and informative decisions (SOP2).

Loney’s colleague, Ellie Mertens, then wrote about “PTAB cases to watch for the rest of 2018″ as follows:

Important pending Patent Trial and Appeal Board cases relate to issues ranging from assignor estoppel to the constitutionality of PTAB judges’ appointments

The top nine cases related to the Patent Trial and Appeal Board (PTAB) to watch for the rest of 2018 relate to issues ranging from assignor estoppel as it relates to inter partes reviews (IPRs) to the constitutionality of PTAB…

As readers may recall, Iancu moved the chief judge of PTAB (although it may have been voluntary) after he had been smeared by patent maximalists (maybe that’s the “perception” he was alluding to). He’s an actual scientist, for a change. The maximalists already try to replace him (as always) with someone who better suits their agenda. At the end of the day, these people may be dooming their own patent system by looking to broaden patent scope at the Office even though courts push back, leaving patent holders in a limbo, uncertain of the validity or value (if any) of their patent/s. █

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