Bonum Certa Men Certa

St. Regis Mohawk Nation Now Exploited as a Lobby and an Attack Vector Against PTAB

CAFC and SCOTUS should definitely take note of the Koch Brothers' role in that lobby (which harms technology companies)

Koch Network Plans to Spend $400 Million in U.S. Midterm Cycle
Reference (in the news 2 days ago): Koch Network Plans to Spend $400 Million in U.S. Midterm Cycle



Summary: The anti-PTAB lobby, which is basically attempting to influence Oil States v Greene's Energy (imminent Supreme Court decision), still tries hard to find scandals or make up scandals; the Mohawk tribe became a convenient channel for that (paid to participate in a scam)

THE biggest PTAB story of 2017 was probably the Mohawk patent scam. It carries on; it's piggybacked by patent extremists. The USPTO granted some dubious patents and now they're being shielded using a tribe which has absolutely nothing to do with them. An unethical lawyer paid them some money through shell entities for this (makes one wonder where the money really comes from). Here's a long new article by Kevin E. Noonan. It's about the amicus briefs which support the scam (the patent microcosm would rather focus on these):

In what everyone (including the Patent Trial and Appeal Board) considers an unprecedented administrative action, the PTAB late last year set out an order (Patent Trial and Appeal Board's Order, 2017 WL 5067421, P.T.A.B. Nov. 3, 2017) inviting amicus briefing on the question of whether the transfer of patent rights from Allergan to the St. Regis Mohawk Nation should lead the Board to dismiss several consolidated inter partes review actions (Nos. IPR2016-01127, IPR2016-01128, IPR2016-01129, IPR2016-01130, IPR2016-01131, and IPR2016-01132, instituted against U.S. Patent Nos. 8,685,930, 8,629,111, 8,642,556, 8,633,162, 8,648,048, and 9,248,191, respectively) on the grounds of sovereign immunity (see "Mohawk Nation Exercises Sovereign Immunity in Inter Partes Review").

[...]

A brief from the High Tech Inventors Alliance, Computer & Communications Industry Association, and Internet Association repeats the argument that patent laws are law of general applicability from which sovereign immunity provides no protection, basing this characterization in part because "[private petitioners] cannot compel the Patent Office to conduct a review and their ongoing participation is unnecessary to complete one" (another argument also made in the brief from Askeladden LLC). According to this brief, "[i]nter partes review is thus 'less like a judicial proceeding and more like a specialized agency proceeding' in which third parties that petition for review 'need not have a concrete stake in the outcome; indeed, they may lack constitutional standing,'" citing Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2143-44 (2016). According to this brief (in an argument made nowhere else), "tribes that own patents must, like all other patentees, pay the fees to maintain the patent, or else the patent will expire. See 35 U.S.C. ۤ 41(b). The condition that the Patent Office may reexamine or review the patent is no different."


The Mohawk people/tribe hired lawyers who take the tribe for a 'ride', looking for anything by which to shoot the messengers (PTAB judges) while pretending to be poor Natives (they're not; they're rich, corrupt lawyers). The lawyers picked by the Mohawk people have disgraced the tribe to the point where it's accused of "conspiracy theories" and a "scam". Why can't this tribe see the incredible damage already done to its reputation? It's never too late to end this. They sold out though and ending it may result in loss of money (funneled through shells).

Watchtroll, in its usual fashion, has just used the Mohawk patent scam in an effort to make PTAB look bad. The tribe has been reduced to a tool.

Watchtroll, relying on two decisions among many thousands, says the "the entirety of the concurring opinions are word for word identical. Obviously, the concurring opinions were shared internally in some form or fashion prior to being issued by the PTAB. But why? It seems perfectly reasonable for the St. Regis Mohawk Tribe to want to know who actually wrote these two concurring opinions."

They're aiming to discredit PTAB rather than justify their 'case' (scam). Classic "shoot the messenger".

"In light of these two identical concurring opinions," Watchtroll concluded, "the Saint Regis Mohawk Tribe raised the plausible possibility that ex parte oral or written communications may have occurred involving APJs on the merits panels of these cases. If such communications did occur they should be made public. The PTAB should not refuse to answer these legitimate questions, because at some point they will have to answer how and why this happened."

These have absolutely nothing to do with the Mohawk scam; the lawyers they hired simply use them as a tool for anti-PTAB lobbying while attending events hosted by a think tank of the Koch Brothers. This doesn't look good at all. Another attack on the same day (Watchtroll against PTAB) called PTAB a kangaroo court. Got to protect bad patent and patent trolls, eh? And the Mohawk people are used as a moral shield for people who are aligned with billionaires' interests.

To better understand what the Kochs have at stake here, remember Oil States. As Patently-O reminded readers yesterday, the Supreme Court is not assessing any cases which give hope for software patents, but it will rule (probably this summer) for or against PTAB (which asserts/applies Alice). This is important. Also yesterday, as can be seen in this post, Patently-O was back to belittling PTAB judges. Not only does Patently-O cite Watchtroll's attacks on PTAB but it also makes it blatantly obvious that it wants PTAB obliterated. From the post:

In 2007, Prof. John Duffy penned a Patently-O essay explaining that Administrative Patent Judges are at least “inferior officers” under the US Constitution (art. II, €§ 2, cl. 2) — requiring appointment by a Head of Department (i.e., Secretary of Commerce). Duffy’s work on the topic prompted statutory reform and now all PTAB follow that appointment process.

In a new article, Prof. Gary Larsen takes Duffy’s analysis a major step forward – explaining that the PTAB is special because its Inter Partes Review actions are not further reviewed by any executive actor — rendering Administrative Patent Judges principal officer (rather than inferior) and requiring appointment by the President with Advice and Consent of the Senate.


These people have long attempted to convince SCOTUS Justices that patents are "property" (that's a lie), that PTAB lacks certain authority and so on. They try to influence the outcome in Oil States. Duffy is from the University of Virginia School of Law and Crouch is from Kansas, where the Kochs are known to be throwing lots of money at universities. It's worth checking what motivates these scholars, either consciously or subconsciously.

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