Patent Lawyers' Tears

Summary: People who made their career out of patent maximalism aren't entirely happy to see the media covering Oil States (like it did Alice and TC Heartland), knowing this decision contributes even further to the legitimacy of the appeal board, PTAB

THE USPTO spoke about the impact of the Supreme Court's (SCOTUS) decisions on PTAB yesterday afeternoon. We have not seen any coverage about that. At least not yet...

As a recap, here is what we have written about Oil States since this decision that was published almost exactly one week ago:

• Quick Mention: As Expected, the US Supreme Court Cements PTAB's Role With Trump-Appointed Gorsuch Dissenting
• Koch Brothers and Big Oil Could Not Buy the Decisions in Oil States, SAS
• The Patent Trial and Appeal Board (PTAB) Lives on and People Whom Patents Were Conceived for (Not Lawyers) Are Happy
• When You Cannot Win the Case Attack the Judge and Say the Decision is Wrong
• Patent Maximalists Are Using SAS Institute v Iancu to Distract From Their Epic Defeat in the Vastly More Important Oil States
• Like a Pack of Spoiled Brats, Patent Maximalists and Media That They Control Bash the Oil States Decision and Distract From It

We said it would probably dominate the headlines for days if not weeks. Seeing Watchtroll's latest attack on Oil States (as well as Section 101 and the rest) is therefore not surprising to us. Watchtroll wrote 3 articles about Oil States in just 5 hours after the decision. Court- or jurist-bashing included, as usual. Watch the comments from the likes of Paul Morinville; these aren't mere maximalists but what we often call/refer to as patent extremists. These are the sorts of people who were bullying Michelle Lee until she quit her job, leaving a vacuum for some law firm that used to work for Donald Trump to take over.

Well, anyway, Watchtroll went even further than this. Writing about John Bean Techs. Corp. v Morris & Assocs. (a CAFC case involving estoppel) they carry on pretending that almost nothing has just happened. Estoppel has also just been noted in relation to Akeso Health Sciences, LLC v Designs for Health, Inc. -- a case that Docket Navigator tracks extra closely:

The court granted defendant's motion for summary judgment that plaintiff's patent infringement claims were barred by equitable estoppel due to its ten-year delay in filing suit and found that defendant was materially prejudiced by plaintiff's silence following its cease-and-desist letter.

We won't let the patent microcosm leave Oil States behind and distract from (or bash); this is what they want. In fact, seeking to undo the 'damage', they try to get another case like Oil States going at the Supreme Court. Watchtroll writes about Droplets (already promoted by Patently-O). They try to get many firms/groups involved, in order to put pressure on SCOTUS and compel Justices to deal with the case. It is not a special case and it doesn't merit SCOTUS time; in short, PTAB found the patent to be bogus and CAFC re/affirmed (agreed). Why appeal to SCOTUS? Here's what Watchtroll said yesterday:

In an IPR brought by E*Trade in response to an infringement suit by Droplets, the Board found that the Droplets ‘115 patent was invalid due to obviousness. The patent properly claimed priority to the ‘838 patent but also attempted to claim priority to an earlier ‘917 provisional patent and an intervening ‘745 patent through incorporation by reference. The Board concluded that these priority claims were not proper, and the Federal Circuit agreed.

So that's it; nothing too unique about this. It happens every week.

Patently-O, a PTAB-bashing blog favoured among the patent microcosm, still loses its mind over patent reform. SCOTUS just constantly refuses to stop PTAB (not even with a Trump-appointed Justice), which basically eliminates bogus patents that should never have been granted. Patently-O wrote this a day ago:

Until today, a host of patent cases have been pending before the Supreme Court — hanging onto the coattails of Oil States. Following full affirmance of the IPR regime, the Supreme Court has now denied certiorari in those cases. The one additional case that was ripe-for-certiorari in the most recent Conference is PNC Bank National Association v. Secure Axcess, LLC, No. 17-350. The court issued no order in that case — suggesting that it may be up for further consideration. In PNC, the substantive question is “whether . . . CBM review requires that the claims of the patent expressly include a ‘financial activity element?'”

Good. SCOTUS already made it pretty clear (7 to 2) that PTAB is OK and can carry on. The patent microcosm just carries on trying to 'shelve' Oil States and override this decision as soon as possible. Patently-O tried hard to solicit briefs (or certiorari) to that effect. ⬆