Bonum Certa Men Certa

Patent Trial and Appeal Board (PTAB) Under Attack by IBM and Other Patent Parasites Who Undermine Patent Quality

Ginni Rometty



Summary: The PTAB, which has thus far invalidated thousands of abstract/software patents, is under a coordinated attack not by those who produce things but those who produce a lot of lawsuit

HAVING just covered the PTAB-dodging "scam" which the Mohawk tribe participates in, we now turn our attention to PTAB bashing or to shameless lobbying by the patent 'industry'. The EPO has already marginalised its equivalent of PTAB, known as the appeal boards, in order to reduce patent quality, so why not the USPTO too?



"Manny Schecter, IBM's patent chief who is friends with Watchtroll, is already lobbying the likely new Director of the USPTO."Watchtroll is attacking PTAB again. It does this almost every other day. It has done this many dozens of times if not over a hundred times. Who or what is Watchtroll? This is basically a bunch of lawyers trying to destroy technology companies. Just look at who writes for them and who the founder is. His sidekick Paul Morinville is one of the radicals who burned stuff in unauthorised protests on USPTO premises and two days ago he too joined his 'master' in attacking PTAB. His headline speaks of a "failed PTAB experiment," but actually, it has been exceptionally successful when it comes to squashing bad patents which should never have been granted in the first place. Technology companies certainly support and appreciate PTAB! We wrote a lot about that. There are very few exceptions to this, notably IBM. "IBM continues to push for legislation to abolish Alice and restore swpats [software patents] in the US," Benjamin Henrion (FFII) wrote a few days ago. This does not surprise us because IBM is nowadays a lobbyist for software patents and it habitually attacks small(er) companies with large-scale patent lawsuits. Manny Schecter, IBM's patent chief who is friends with Watchtroll, is already lobbying the likely new Director of the USPTO. In what platform? None other than Watchtroll (soon to be promoted by Patently-O, increasingly conjoined with Watchtroll).

Here are some portions from what Schecter wrote, citing the villainous Chamber of Commerce (it would not be surprising if it's a front group to IBM too):

At long last, the next Director of the U.S. Patent and Trademark Office (USPTO) has been revealed. My congratulations to Andrei Iancu of Irell & Manella on his nomination to lead the USPTO. I recently wrote about the direction the next leader of the USPTO will need to provide[1] and the U.S. patent system remains at an important crossroads. Assuming Director-designee Iancu’s nomination is eventually confirmed, he will have the opportunity, through a variety of channels, to meaningfully influence the path of the U.S. patent system going forward.

In the 2017 U.S. Chamber report on Global IP[2] the U.S. patent system fell from the best in the world to tenth, equal with the patent system in Hungary. The Chamber report explains that the post-patent grant challenge proceedings created under the America Invents Act adds substantial costs and uncertainty, and the Court’s narrow interpretation of patentability of biotech and computer-related inventions puts the U.S. in a disadvantageous position as compared to international standards. Clearly there is work to be done to restore the competitiveness of the U.S. patent system. Unfortunately, there is currently a lack of consensus in the U.S. on how to proceed. Patent subject matter eligibility is prime among the substantive issues for which legislation has been proposed, but to date no legislation has been formally introduced. Many of the major IP associations have published resolutions urging legislation to amend 35 U.S.C. 101, but work to build consensus continues .[3]


So he is bashing AIA, which brought PTAB into existence. This isn't new or unexpected from him. The truth of the matter is, as IBM sues all sorts of companies the Patent Trial and Appeal Board (PTAB) often comes to the victims' rescue. We habitually name new examples, which this guy continues to keep abreast of [1, 2]. The latest:



IBM is a big patent bully, so PTAB invalidating its software patents and stopping its aggression is a good thing. But not in the eyes of the above patent maximalist, who is right now attacking the EFF in a patent trolls' site (Dominion Harbor), only to be promoted by other patent maximalists, including patent trolls.

Spotted the pattern yet? Notice who's attacking PTAB.

Again come out the PTAB bashers, who simply want software patents and a patent trolls resurgence, piggybacking SCOTUS by lobbying to abolish PTAB. There was a long article about this in Blooberg a few days ago. This long article by Tony Dutra did a reasonably OK job explaining that it's the patent microcosm against those who actually make stuff. To quote some portions from the article:

Stakeholders have filed 31 friend-of-the-court briefs reviewing petitioner Oil States Energy Services LLC’s (OSES) argument that a patent is a private property right that can only be revoked by a federal court, not by the PTO ( Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC , U.S., No. 16-712, briefs filed 8/31/17 ). Companies and individual inventors with patents contend that patent rights include the Seventh Amendment right to a jury trial, which is not provided for in a PTAB proceeding before administrative patent judges.

On the other side are the Silicon Valley heavyweights and generic drug manufacturers that have used IPR proceedings as a way to avoid the higher hurdle for showing patent invalidity in court. A federal judge and jury must presume the patent is valid and require clear and convincing evidence to the contrary. The AIA set up the IPR proceeding without the presumption of validity, with the challenger’s burden of proving invalidity by an easier standard, the preponderance of the evidence.

Counterarguments by Greene’s Energy Group LLC, the successful challenger to OSES’s U.S. Patent No. 6,179,053, which relates to protecting wellheads during fracking, and the U.S. Office of the Solicitor General, are due by the end of October. Several more amicus briefs supporting the AIA’s constitutionality are expected then as well.

The court has not yet set a date for oral arguments, but it should be before the end of this year, with a decision before June 2018.


Dutra then mentions the disgraced/corrupt judge, Randall Rader:

Critics often call the PTAB a “death squad” because of the high rate of patent claims that it kills, but the phrase was originally used to describe the constitutional questions about the board’s role.

Former Federal Circuit Chief Judge Randall R. Rader coined the term in 2013, before any IPR was decided. He meant it in a way that underlies the constitutional argument, that it is wrong to have the PTO with “7,000 people giving birth to property rights"—referring to the patent examiner corps—while PTAB judges are “acting as death squads, killing property rights.”


And finally:

IPLAC lays out the question in terms of the PTO’s rights as to follow-on action after a patent issues. Prior to the AIA, the Patent Act gave the PTO no such rights, according to the association’s brief. But the AIA changed the nature of the PTO’s ongoing involvement. From the implementation date, the PTO’s grant is better characterized as only an “issue-from-examination … while-subject-to-further-processes-of securement,” IPLAC said.


Not a bad article overall. Compare that to the usual PTAB/IPR bashing from Dennis Crouch. Days ago he wrote: "As a placeholder – I’ll note here that the pending en banc case of In re Aqua Products regarding amendments during IPR Proceedings is still pending before the Federal Circuit."

"Companies that make stuff like PTAB."Crouch spent a great deal of effort earlier this year trying to compel the Federal Circuit to step on PTAB's toes. Follow the money and the interests and it's abundantly clear what the motivations are...

Companies that make stuff like PTAB. This isn't a subjective observation.

Companies (or firms) that just make lawsuits hate PTAB. The evidence is out there for all to see (e.g. in the form of amicus curiae briefs, pretending to be the highest court's "amici").

Some law firms have grown so afraid/wary of PTAB that they apparently have such a thing as "PTAB chair". See this new article from a patent maximalists' news site:

Scott McKeown (right) has joined Ropes & Gray as partner in Washington, DC, and as chair of the firm’s Patent Trial and Appeal Board (PTAB) practice.


Maybe they should focus more efforts on applying for better patents (quality rather than quantity); then, PTAB would not be a concern to them and their clients.

To close this on a more positive note, have a look at the CCIA's Josh Landau with his analysis of Oil States, claiming that the PTAB's IPRs have saved over $2,000,000,000 in just 5 years. Here's a portion from Landau's good article:

This Saturday, September 15, 2017, marks the five-year anniversary of the first filing of an inter partes review. We’ve seen nearly 7,000 post-grant reviews filed since then, a Supreme Court case dealing with IPRs, and there are a pair of IPR Supreme Court cases up this term. [Oil States] [SAS]

Over the next few weeks, I’ll tell you about particular stories where inter partes and covered business method patent reviews have curtailed abusive litigation and allowed smaller companies to defend themselves even if they might not have been able to fight a full-fledged patent lawsuit.

But today I just want to step back and look at the effects of the inter partes review system as a whole. One of the reasons IPR was created was to “provid[e] a more efficient system for challenging patents that should not have issued; and reduc[e] unwarranted litigation costs and inconsistent damage awards.” (Page 39-40 of the House Report on the AIA.)

All in all, the IPR system has been incredibly effective at achieving these goals—I estimate that the implementation of inter partes review has helped plaintiffs and defendants avoid at least $2.31 billion in deadweight losses by providing an efficient system for challenging patents.

This benefit is purely based on avoiding deadweight loss from legal fees; it does not account for the benefit of preventing transfers from defendants to plaintiffs based on patents that should have been invalidated. The financial data used in this analysis is based on publicly available data, as well as some data derived from the 2017 AIPLA Economic Survey. Unfortunately, this survey is not publicly available; where possible, I have linked to open summaries of the data contained in the survey.


We certainly hope that Justices can tell apart parasites from producers. At the moment, with very rare exceptions, all those who oppose PTAB basically oppose science and technology. All they want is more and more litigation, blackmail, and threats (which merely drain money out of the productive economy).

Recent Techrights' Posts

IBM Effect at Confluent: Mass Layoffs and IBM's Business Conduct Guidelines (BCGs) Said to be Violated
For Confluent employees who survived the layoffs there will be "culture chock"
 
"AI" 15 Times in Short 'Article' From The Register MS. And The Register MS Got Paid to Publish It.
gets paid to do this
People Who Decided to Boycott Novell Over Its Microsoft Alliance Should Also Boycott Canonical
As an associate put it, "selling out further, due to Microsoft moles inside Canonical"
Links 19/03/2026: "AI Glasses" as Euphemism for Mass Surveillance and ABC (US) Has Begun Publishing Slop as 'News'
Links for the day
The European Patent Office, Europe's Second-Largest Institution, is on Strike Today
Lots more to come
What People Impacted by the Bluewashing Layoffs at IBM Confluent Say (While the Media Says Nothing at All, in Effect Burying the News)
Worse yet, the mainstream media spreads lies about it right now
IBM Has Turned Red Hat and Fedora Into Slop
This is IBM policy
IBM is Being Robbed, Companies and Jobs Are Destroyed
Companies taken over by IBM will be exploited and destroyed to keep a bubble inflated for a little while longer
In Confluent Layoffs, IBM Vapourises a Quarter of Its Workforce (IBM Buys Something That It Destroys Already)
In the past, such things were typically referred to as "media blackout"; now it's just "the norm".
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 18, 2026
IRC logs for Wednesday, March 18, 2026
Links 19/03/2026: LLM Fatigue (It Doesn't Work as Advertised), "Small Web Feeds"
Links for the day
SLAPP Censorship - Part 15 Out of 200: Background and Particulars of Truth Regarding Techrights and Tux Machines
the basic facts (this has aged well, except the times/ages/numbers)
A Slopfarms Survey for Today (linuxteck.com, linuxsecurity.com, linuxjournal.com)
Not only did Google news link to a slopfarm; it linked to three run by the same team!
Links 18/03/2026: "Venture Capitalist Warns That It’s All About to Come Crashing Down" Due to Slop Bubble, "Birdwatching for Fun and no Profit"
Links for the day
IBM Red Hat is Still Promoting Restricted Boot Which Restricts Users' Control Over Their Computers
Red Hat under IBM is a total catastrophe
Arvind Says... Something Something "Hey Hi" (the State of Today's Media)
Look for news about IBM and most likely it'll boil down to some sound bites from an executive and nothing else
New Post Has Just Explained How IBM Gets Robbed by the People Who Fail IBM
Their plan for IBM is a personal plan
Slop-Spewing GAFAM LLM That Knows Nothing and Understands Nothing, It's a Stochastic Parrot That Cannot Even Figure Out Tux Machines is a Community That Started in Tennessee 22 Years Ago
RMS rightly calls those things "bullshit generators"
Cusdeb Makes New Presentation About Where GNU Hurd (Still a Possible Linux Replacement) Stands in 2026
coming from a generally RMS-friendly account
Gemini Links 18/03/2026: Librarians, Phone Anxiety, Growing 'Small' Net, and Slop Versus Software Engineering
Links for the day
Estimates That IBM to Lay Off Close to 10,000 Workers in 2026 (Not Counting People Pushed Out)
There's still chatter about Confluent mass layoffs
Smug Threat by Garrett to Put My Family and I in Prison Doesn't Prove We Did Anything Wrong, It Only Proves He's Truly Desperate to Stop Further Publications That Embarrass Him
his reputation is poor in the United States
systemd Increasingly Microsoft Project, Controlled by Microsoft and Slopware
Cannot allow choice
What IBM Meant to Red Hat: "Proprietary Bundling, Restricted Source Access"
Anyone or anything that joins IBM likely shortens its lifespan
IBM Thrashing Confluent Upon Arrival, Based on Rumours
We deem it a bigger issue that investigative journalism perished, not that one must rely on hearsay online or mere "rumours"
Slop Is Plagiarism, Not (Vibe) Coding, and It's Not Automated, It Doesn't Save Money
Reject misnomers, explain what's actually happening
UPC is Still Illegal and Unconstitutional (Kangaroo Court for Patents, Manned by Corporate Staff), Federal Court of Justice of Germany Receives Belated Complaint About It
What is happening to Europe???
EPO Demonstration Happening Right Now, Later This Week Things Will Only Escalate Further
The SUEPO The Hague Committee wrote to staff this morning
Sophie Brun, Raphael Hertzog & Debian sexual conflicts of interest
Reprinted with permission from Daniel Pocock
Links 18/03/2026: Commodore's Hedley Davis Dies, Apple Not Good Enough, Cheeto "Floats Treason Charges for Iran War Coverage"
Links for the day
A Step Close to Shutting Down the European Patent Office (EPO)
Not going to work all month long
EPO Staff Demonstration Today
The demonstration will be live-streamed for those thousands of colleagues who don't live in Munich
Gemini Links 18/03/2026: Brazilian SYN Attacks and BGP
Links for the day
LibreLocal Also Coming to Jordan, Kenya, Mexico, New Zealand, and Spain
It helps raise awareness of Software Freedom
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, March 17, 2026
IRC logs for Tuesday, March 17, 2026
Microsofters' SLAPP Censorship - Part 14 Out of 200: Men Who Strangle Women (and Worse) Trying to Force Us to Write Public Apologies to These Men
For those who never before saw a SLAPP, they basically make many demands
Instant Bluewashing at Confluent: Mass Layoffs Alleged at IBM
So the main question is, did IBM just fire 800 people?
"Vibe-forking" and Why It'll Ultimately Fail (Hype on Top of Hype)
Code made with LLMs sucks; converting solid, human-tested code into slop only complicates matters and increases risk
Updates About Richard Stallman's Free Software Foundation
After all those years (a decade) and in spite of phony scandals many people out there still respect him
LLM Slop With "Linux" in the Domain Names
This is becoming a pain and a problem also in the arts and in software engineering
The EFF Has a Bug, Fixing This Bug is Likely Not Possible Anymore
"the EFF's continued existence impairs the arrival of a replacement organization, one which will actually champion digital rights."
Links 17/03/2026: Microsoft Windows Broken by Samsung, Afghanistan-Pakistan War Escalation
Links for the day
Gemini Links 17/03/2026: Newcomers and False-Positive 'Slop'
Links for the day
Héctor Orón Martínez & Debian shadow candidate pressure on Sruthi Chandran
Reprinted with permission from Daniel Pocock
Links 17/03/2026: American Fentanylware (TikTok) Investors Implicated in Kickbacks, "Big Oil Knew It Was Wrecking Louisiana’s Coast"
Links for the day
For Third Time in a Week The Register MS Runs Google SPAM That Paints Google as an Ally of Women (Which is False, They're Womanisers)
What does that make The Register MS to women?
British Justice Minister Sarah Sackman Blasts Solicitors Regulation Authority (SRA)
The "legal industry" is due for "some reckoning"
GAFAM Deprecating Old Videos ("Content") by Removing the Support for Their Format for No Good Reason
"Security" is not a valid excuse
Credit/Debit Cards Have Long Been Called Plastics, Over Time They're Becoming More Like Pure Plastics
They cost less than a dollar to manufacture
The European Patent Office (EPO) Holds a Public Demonstration Tomorrow and It'll be Live-streamed
The EPO's workforce was meant to be capable of speaking many languages and have extensive experience in the sciences
People Who Attacked Techrights Also Attacked My Mother
Picking on old ladies because you don't like Free software advocates is never OK
Little Community Element Left in CentOS
CentOS, unlike Fedora, was meant to be long supported and solid
Social Control Media is Cancel Culture (Companies Like Facebook Also Punish/Ban Accounts for Mentioning "Linux" and Lobby for Anti-Linux Legislation)
The masters of Social Control Media decide what ideas can and cannot be expressed
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 16, 2026
IRC logs for Monday, March 16, 2026