Bonum Certa Men Certa

The Importance of the Patent Trial and Appeal Board (PTAB) and High-Quality Patents (Not Software Patents)

The following paper conflates patent strength/quality with patent maximalism (i.e. ease of patenting and suing)

CPIP paper



Summary: Strong patents rather than strong patent enforcement (i.e. ease of legal abuse) help discern the difference between successful economies and self-destructive economies

THE Open Invention Network (OIN), which we covered in the last post, is closely connected to (even overlapping at places) IBM. An entity called RPX, which we wrote about many times before (see Wikipedia article), was set up or propped up with help from IBM to counter Microsoft's patent troll, Intellectual Ventures. "In an interview," said a Microsoft-friendly site 8 years ago, "RPX founders John Amster and Geoffrey Barker said they left Intellectual Ventures on good terms but had philosophical differences with the firm's approach. Neither of the co-CEOs would elaborate on those differences, instead highlighting how RPX plans to make inroads in the murky area of patent acquisition." So one might say that they're poison from the same pool.

According to Managing IP (MIP), "PTAB grants attorneys fees for first time, to RPX". To quote:

The Patent Trial and Appeal Board has awarded attorneys fees for the first time, ruling that Applications in Internet Time violated a protective order in its handling of RPX’s confidential information

Sanctions in Patent Trial and Appeal Board (PTAB) proceedings have been rare. But on July 1 the Board awarded attorneys fees for the first time.


This is a reason for concern because there are many people and companies out there that wish to demolish PTAB by any means possible. PTAB invalidates a lot of software patents these days. "The Patent Trial and Appeal Board has granted a rare motion to amend, in a covered business method review that focused on the construction of the term “meta-rights”," MIP wrote in a later article.

"Battistelli lowered patent quality at the Office (to make bogus claims about so-called 'production'), so the last thing he needs is independent oversight/scrutiny over patent quality."One might choose to think of PTAB as the US equivalent of the appeal boards of the EPO, which Battistelli fights so viciously against. Battistelli lowered patent quality at the Office (to make bogus claims about so-called 'production'), so the last thing he needs is independent oversight/scrutiny over patent quality.

Patent quality control, or "strong patents" as some might call it, helps determine economic strength in some cases. Regarding this very recent article titled "How Strong Patents Make Wealthy Nations" (actually more like patent maximalism, not quality control) Benjamin Henrion just joked. The article is actually academic (unlike the paper, which is self-serving as one might expect from CPIP) and it comes from George Mason University, more specifically the Antonin Scalia Law School. Scalia, as we noted here before, was not too crazy when it comes to patents (unlike in many other areas) and the article quotes Professor Stephen Haber of Stanford University as saying "there is a causal relationship between strong patents and innovation.” The article itself says in the conclusion: "Given the copious evidence showing that strong patents make wealthy nations, the IP critics have their work cut out for them" (see corresponding PDF).

"That is more or less what happens in China and it has created a patent bubble (false evaluation of patents based on their number, not quality)."It would be easy to just grant a patent for every application and never properly assess or reassess triviality, prior art etc. That is more or less what happens in China and it has created a patent bubble (false evaluation of patents based on their number, not quality). In order for the USPTO to redeem its reputation it will need more of PTAB (hiring of more staff to cope with the growing load/demand) and the same goes for the EPO, which must hire more technical judges rather than drive them to exile and leave a lot of vacant positions while raising costs so as to lower demand).

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