Bonum Certa Men Certa

The Litigation 'Industry' Pays the Media for 'Sponsored' (Paid-for) Articles That Sway Public Opinion on Patent Policy

When these people's blogs aren't enough they literally pay lobbyists like Kappos (former USPTO Director) and the media to spread their lies and spin

Kappos in Center for American Progress
Photo credit: Center for American Progress



Summary: The latest twists and spin in media owned by the patent microcosm and media that is simply being 'bought' by the patent microcosm to discredit the courts and prop up litigious 'ideals'

THE USPTO's management seems intent and determined to bypass high courts such as the Federal Circuit and SCOTUS (or merely cherry-pick such courts' decisions). The ITC adopted a similar attitude, whereby it simply disregards decisions from the Patent Trial and Appeal Board (PTAB) after inter partes reviews (IPRs). This is highly problematic because if one branch disregards and disobeys another there's a state of lawlessness (e.g. granting a patent monopoly/injunction order in spite of it being invalid as per the law/courts).



Yesterday CCIA noted that the Founding Fathers of the United States "were themselves frequently quite skeptical of that patent system," alluding to a particular vision of it. To quote:

Two hundred and ten years later, in KSR v. Teleflex the Supreme Court reiterated this point, holding that there’s no patentable invention when two known things are combined in the normal way.

So when you hear someone talk about the patent system our Founders created, remember that the Founders were themselves frequently quite skeptical of that patent system. The patent system has the potential to incentivize invention—but when the PTO issues patents on old inventions or when patents are used to threaten ideas that aren’t actually covered by the patent, that potential is left untapped.


Michael Loney at a patent maximalists' publication meanwhile speaks to a software patents booster about KSR (the above case). He speaks to a patenting professional (for profit, he has a whole blog dedicated to teaching people how to overcome Section 101) Charles Bieneman as if that would shed light on what's really happening rather than offer illusionary spin. To quote the introduction:

Despite the landmark KSR ruling on obviousness a decade ago, it is still possible to argue inability to combine two references in patent prosecution

Charles Bieneman of Bejin Bieneman describes obviousness as "the oldest topic in patents, but also always the most current topic in patent law".


Most if not all software patents are pretty obvious if "obviousness" is defined in particular terms. There's a good reason why algorithms had long been excluded from patentability; that was until the Federal Circuit changed that. Nowadays the Federal Circuit, led by a relatively new chief judge, is undoing this mistake (made decades earlier) and Joseph Herndon has just taken note of another bogus patent biting the dust at PTAB and then at the Federal Circuit because of prior art (neither obviousness or scope). This means that American patent clerks/examiners must improve the examination process; they need more time to study prior art and avoid such mistakes (which can cost millions of dollars in legal bills to correct, with expenses rarely being remediable). In this particular case (Nobel Biocare Services AG v Instradent USA, Inc.) the defendant leveraged prior art/35 U.S.C. ۤ 102(b) rather than 35 U.S.C. ۤ 101 that's often used to throw away bogus software patents or applications in the US. It's all about prior art contrary to lies lawyers like to tell. To quote:

Nobel Biocare Services AG appealed from the decision of the U.S. Patent and Trademark Office's Patent Trial and Appeal Board in an inter partes review (IPR) holding claims 1–5 and 19 of U.S. Patent No. 8,714,977 invalid based on an ABT Catalog. Many issues were presented, and here, we review the opinion with respect to whether the ABT Catalog qualifies as a prior art printed publication under pre-AIA 35 U.S.C. €§ 102(b).

[...]

The Federal Circuit addressed the sufficiency of the corroboration of the testimony and found the testimony of Messrs. Hantman and Chakir not only to be corroborated by each other, but also by a) the actual copy of the ABT Catalog, dated March 2003, submitted as evidence and b) Dr. Fromovich's testimony that ABT operated a booth at the March 2003 IDS conference.

The fact that Hantman had a copy of the ABT Catalog in his files further corroborates his testimony that he obtained a copy of the same document asserted to be prior art in the IPR.

Thus, although much of the evidence relied upon was based on testimony of biased witnesses regarding events that took place over 10-15 years ago, the Federal Circuit found no reason that the testimony was problematic. As a result, the ABT Catalog was found to be prior art.


The moral of the story is, had examiners done their work properly/better (or had been given more time to do the work thoroughly), years of legal disputes would be spared, leaving 'poor' lawyers jobless and actual inventors better off financially.

But of course those lawyers will just carry on whining and whining (we'll say more about it in the weekend) because no amount of patents and lawsuits is ever enough for them.

"But of course those lawyers will just carry on whining and whining (we'll say more about it in the weekend) because no amount of patents and lawsuits is ever enough for them.""The Alice 101 Test Has Turned Patent Claims Into the Legal Equivalent of Schrodinger’s Cat— Derivative Trading Is Both Patentable Subject Matter and Non-Patentable Subject Matter," Janal Kalis wrote. He's a patent maximalist. He's an anti Alice/Section 101 'activist'. It's all about money to these people.

Speaking of propaganda for money, days ago we saw Greater Wilmington Business Journal publishing an article titled "The Battle Over Biotech Inventions". It didn't take long to spot the text (in all caps) "SPONSORED CONTENT PROVIDED BY RUSSELL NUGENT - ATTORNEY, THE HUMPHRIES LAW FIRM" (so once again the news reports about patents are literally marketing from law firms that lobby for particular outcomes).

"It's all about money (legal bills), not about innovation or science or technology or whatever."Watch this rant about the Federal Circuit: "In essence, patent owners [sic] have been caught in ideological battle between the United States Patent and Trademark Office (USPTO) – the government body that issues patents – and the Federal Circuit Court of Appeals – the court that has jurisdiction over most patent appeals, on one side and the U.S. Supreme Court on the other."

It is not an "ideological battle" (as the "sponsored content" above puts it) but the rule of law versus dodgy (self-serving) officials like Iancu, who were elevated by Donald Trump after they had worked for him. The whole thing is quite sickening and seeing that the press is nowadays composed (for a fee) by patent law firms discredits the media in general. It's all about money (legal bills), not about innovation or science or technology or whatever.

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