Bonum Certa Men Certa

Anti-Patent Trolls Reform in the US Evolves Nicely and Rogue Judges Get Named, Shamed

Bob Goodlatte Reference: Bob Goodlatte, a US politician who works towards positive reform



Summary: A quick look at today's coverage regarding the battle against patent trolls in the US, as well as the patent microcosm's war on the Patent Trial and Appeal Board (PTAB)

TECHRIGHTS published many articles about the USPTO over the weekend; there is plenty more on the way. The only good news (and reason for happiness amid EPO disasters) seems to come from judgments of the courts there, especially the higher courts. The US is gradually changing for the better, having previously become one of the world's worst (China may soon inherit this title and maybe Europe, even though the UPC isn't getting anywhere).

"Expect patent parasites to butt heads with technology companies, sometimes via front groups."Managing IP, a site for patent maximalists, recently organised a PTAB event for the patent microcosm. It wrote about it today. PTAB, as we noted several times over the weekend, is an essential part of patent reform in the US. The patent maximalists attack it viciously, whereas practicing companies defend it. Expect patent parasites to butt heads with technology companies, sometimes via front groups.

Josh Landau, who works for the Computer and Communications Industry Association (CCIA), basically fronts for various large technology companies. Today (just hours ago) he published this very long article about "bad patents" and here is what's said regarding PTAB:

The existence of an IPR doesn’t eliminate the ability of a patent owner to request one of these proceedings. If a request for one of these existing reexamination avenues comes in while an IPR is pending, then the PTO “may determine the manner in which the inter partes review or other proceeding or matter may proceed, including providing for stay, transfer, consolidation, or termination of any such matter or proceeding”. This authority is exactly what the PTAB uses when they combine multiple IPR petitions into a single proceeding. If a patent owner were to, for example, tell the PTAB that it would prefer to cancel its existing claims as unpatentable and proceed with reexamination on new claims, then the PTAB already has the ability to stay the IPR pending the reexamination, or even to terminate the IPR.


Thankfully, notable figures in US politics (prominent politicians in this domain) are quickly accepting that quality of patents -- not number of patents -- is what matters. They too have begun speaking about "bad patents" (such as software patents) and Managing IP -- being the front that it tends to be -- wrote this several hours ago:

US Representatives Darrell Issa and Bob Goodlatte have accused Judge Gilstrap of re-interpreting the law and the TC Heartland decision to keep as many patent cases as possible in his district. But one Eastern District of Texas lawyer told Managing IP this criticism is unfair and says Gilstrap’s recent four-factor test for determining regular and established place of business represents “outstanding judicial management”


So politicians have finally said the truth about this troll-feeding man. We mentioned him many times not because we're obsessed with him but because he's responsible for a vast number of troll "wins". Yesterday, Dennis Crouch wrote about Genband v Metaswitch, a case of a patent troll against a British company. As we noted here before [1, 2], Rodney Gilstrap presided over this case in the Eastern District of Texas and now the case is at the Federal Circuit. Here is what Crouch wrote:

In what the court is calling Apple II, Federal Circuit wrote that the irreparable harm calculus can be met when “a sufficiently strong casual nexus relates the alleged harm to the alleged infringement.” In Apple III and Apple IV, the court further developed its statement, requiring “some causal nexus between [defendant’s] infringing conduct and [patentee’s] alleged harm” and “a causal nexus linking the harm and the infringing acts” respectively. Here however Federal Circuit suggests that the District Court may have applied to stringent of a nexus requirement when it demanded proof that “the patented features drive demand for the product” before finding irreparable harm. In particular, the appellate court suggested that a patentee need not prove its features are “the driver” of demand but instead may rely upon evidence of being “a driver”. The appellate court also re-oriented the focus of inquiry toward ensuring that the allegedly irreparable injury is being caused by use of the infringing features. This is obviously tricky in a multi-component situation.


As we noted last week, Gilstrap's judgments tend to get overturned quite a lot by the Federal Circuit and this is why trolls want to go to the Eastern District of Texas. An advertisement would likely say "mistrial guaranteed" or "bring us all your trolls! We love trolls!"

"...Gilstrap's judgments tend to get overturned quite a lot by the Federal Circuit and this is why trolls want to go to the Eastern District of Texas."Meanwhile, worth noting is this blog post where IAM admits that Jack Ellis has left IAM (the fewer writers they have, the better). It turns out that a few weeks ago Apple bought some US patents from a troll. To quote, "Apple has acquired a group of 11 patents from Korean NPE Goldpeak, according to USPTO assignment records dated 29th June. The transaction, which was completed on 22nd May, involved assets originally owned by Pantech, which was once Korea’s second largest smartphone manufacturer, but filed for bankruptcy in 2014. The transaction was revealed by IAM’s former roving editor Jack Ellis, who left us a couple of months ago but is still keeping his IP eye in."

It isn't entirely clear if IAM is collapsing or something else is happening, but departures do happen and we mostly find IAM useful in tracking the behaviour of patent trolls (which IAM adores and accepts money from).

Hopefully, one day patent trolls will cease to be a problem simply because they will cease to exist.

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