Bonum Certa Men Certa

The Patent Trial and Appeal Board (PTAB) Under Persistent Attack From the Patent Microcosm

But the Court of Appeals for the Federal Circuit (CAFC) is not standing in the way


Summary: The bureaucratic layers/levels added for dealing with the loosening of patent quality are still subjected to endless scrutiny from those who profit from more and more patents (including frivolous litigation which they bring about)

The patent microcosm, as usual, is trying to undermine Alice, Section 101, PTAB and AIA. "Thus far," Patently-O just wrote, "the Federal Circuit has successfully ducked any direct holding on whether eligibility under 35 U.S.C. 101 is a “condition of patentability” or a proper invalidity defenes. [...] Versata decision which held that the PTAB has authority to decide Section 101 challenges in a CBM review." Another new post from Patently-O says that "Ethicon has filed its expected petition for writ of certiorari challenging the USPTO’s delegation of IPR Institution Decisions to the Patent Trial and Appeal Board."

"Why does this matter? Because there's a coordinated effort to make PTAB less effective, less efficient, and less accessible so as to slow down its invalidation of bad patents."They are doing anything they can to stop what they call "death squad" because this board puts an end to a lot of software patents (bad for patent lawsuits, but good for everybody else). "The Federal Circuit has outlined a two-part framework for deciding whether it can review an institution decision, in its in Husky Injection Molding Sys v Athena Automation decision," MIP wrote.

Why does this matter? Because there's a coordinated effort to make PTAB less effective, less efficient, and less accessible so as to slow down its invalidation of bad patents. IAM 'magazine' wrote two days ago [1, 2] that "PTAB [is] already too expensive for SMEs. @uspto now proposes increasing fees! Will just entrench IPRs as a BigCo tool. [...] To be fair, also unspecified proposals to broaden scope of fees cap for micro and small entities. But this has been ineffective up to now."

"PTAB should follow the polluter payer principle," Benjamin Henrion replied, suggesting a proportional fee, e.g. to size of appellant, holder etc.

"AIA gave us PTAB, which now kills software patents in very large numbers, but not everyone is happy."The "Court of Appeals for the Federal Circuit upheld the Patent Trial and Appeal Board’s (PTAB’s or Board’s) decision," the National Law Review wrote a few days ago. To quote in full: "In an opinion addressing the standard for claim construction of a patent that expires during reexamination, the US Court of Appeals for the Federal Circuit upheld the Patent Trial and Appeal Board’s (PTAB’s or Board’s) decision finding all challenged claims invalid, but found that the PTAB had used the incorrect standard for its claim construction. In re: CSB-System Int’l, Inc., Case No. 15-1832 (Fed. Cir., Aug. 9, 2016) (Stoll, J)."

AIA gave us PTAB, which now kills software patents in very large numbers, but not everyone is happy. Here is another one those rants from patent maximalists, serving to prove that PTAB did the right thing by limiting patent scope:

The AIA ushered in significant changes in the patent system. At the time, there was much consternation about the change to a first-inventor-to-file system. The prospect of enhanced post-grant challenges was an afterthought, dismissed as a variation in inter partes reexamination. Inter partes reexamination filings even spiked in 2012, as practitioners were reluctant to let go of the familiar process in favor of the new post-grant trial system.

Five years on, the emphasis has flipped; first inventor to file is accepted as not much different than the patent systems in the rest of the world. Post-grant trials now get much more attention. Some see them as the only way to save American business; others call the system disastrous for innovation. However you classify the impact, AIA trials have been significant.

Only for clerical reasons -- not technical -- can the Patent Trial and Appeal Board (PTAB) let bogus patents be, based on new stories/cases such as this:

In a recent decision, the Patent Trial and Appeal Board (PTAB) denied the institution of a covered business method (CBM) patent review on an Internet Portal System patent because the claims lacked any recitation of a financial product or financial activity. The decision serves well to inform petitioners that the focus for CBM decisions is becoming more on the claim language itself, in contrast to some earlier decisions by the Board where a liberal reading and interpretation of the patent in general was allowed to institute a CBM trial.


Thus, the PTAB was clear that because the challenged claims of the '077 patent are of general utility with no explicit or inherent finance-related terminology or limitations, this patent was not considered a CBM patent eligible for review. The CBM review was thus not instituted.

We maintain our position that PTAB is a very important tool if tightening patent scope and improving patent quality is the goal. It is clear that all the above sites (patent maximalists) don't share the view that patent quality ought to be a priority and they do whatever they can to weaken (if not put an end to) Alice, Section 101, PTAB and AIA.

Recent Techrights' Posts

[Video] To Combat Efforts to Cancel or Kill the Career (and Reputation) of the People Who Made GNU/Linux We Must Rally the Community
nobody speaks better for projects and for licences than their own founders
Electronic Frontier Foundation Incorporated is Run by/for Corporations Now (Members' Money is Less Than a Quarter of the Money EFF Receives)
Facebook bribes
IRC Proceedings: Saturday, December 09, 2023
IRC logs for Saturday, December 09, 2023
Links 09/12/2023: Dictator's Nomination in Russia
Links for the day
The EFF Should Know Better, But It Is Promoting Mass Surveillance by Facebook (an Endorsement of Lies)
What is going on at the EFF?
Feedback Desired
Feedback can be sent by E-mail
A Message in Support of Richard Stallman, Condemning Those Who Misportray Him
message about Richard Stallman (RMS)
Links 09/12/2023: Many 'Open'AI Employees Strongly Dislike Microsoft, Many Impending Strikes
Links for the day
IRC Proceedings: Friday, December 08, 2023
IRC logs for Friday, December 08, 2023
Over at Tux Machines...
GNU/Linux news
Open Source Initiative (OSI) is Microsoft, It Presents Microsoft-Controlled Projects Like They're Everything That Exists in the World
They're not assessing the real data, they keep track only of projects foolish enough to choose slavery under Microsoft
Links 08/12/2023: Cyber Resilience Act in EU and Denmark Embracing 'Blasphemy Law'
Links for the day
Linus Torvalds Cannot Easily 'Offend' Companies Anymore, But Weeks Ago He Explained Why (Linux Support and Hardware Documentation Has Significantly Improved)
new clip
Links 08/12/2023: Tidal and Simplilearn Layoffs
Links for the day
IRC Proceedings: Thursday, December 07, 2023
IRC logs for Thursday, December 07, 2023
[Video] The Media Facilitates Microsoft's Abuse, Bribes, and Growing Threats to National Security
The failure of the media to properly and independently explain what's happening will continue to doom the media
[Video] The Next Ten Years of Techrights in a World With Changing Threats and Technological Landscapes (or Trends That Are Buzzwords/Cargo Cults)
The video of today talks about the site's (and capsule's plan) for the future
Wikipedia is Vandalism, Brought to You by Microsoft and Bill Gates
Reprinted with permission from Ryan Farmer