Bonum Certa Men Certa

IAM, Patently-O and Watchtroll (the Patent Trolls' Lobby) Try to Stop Patent Oppositions/Petitions (PTAB)

Chasing PTAB in vain as neither courts nor the patent office will disagree with PTAB

Chase



Summary: In spite of fee hikes, introduced by Iancu's interim predecessor, petitions (IPRs) at the PTAB continue to grow in number and the patent maximalists are losing their minds over it

THE previous post focused on the USPTO's evacuation from software patenting, or at least courts' determination to do so. Software patents are rapidly deteriorating and they gradually go away. Some languish until their expiry and some get invalidated before expiry. So their value is very low. At least in the US...

"Software patents are rapidly deteriorating and they gradually go away."PTAB often receives much of the credit, but without 35 U.S.C. ۤ 101 (and Alice which led to its current form) not much would have changed. We are still seeing ۤ 101 invoked inside and outside courtrooms. It happens pretty much every day. In Sound View Innovations, LLC v Hulu, LLC a US district court says "data organization patent encompassed patentable subject matter," but we think it's a software patent and Hulu should appeal to CAFC. CAFC is a lot stricter than district courts and would likely invalidate these crappy patents. This Docket Report says:

The court denied without prejudice defendant's motion to dismiss because plaintiff sufficiently pleaded that the asserted claims of its data organization patent encompassed patentable subject matter and that the claims did not lack an inventive concept.


This isn't the end of that. There's further recourse.

"Lloyd is like a lobbyist of software patents and patent trolls in the United States."Meanwhile at IAM, Richard Lloyd does not one but two pieces about Iancu [1, 2]. Lloyd is like a lobbyist of software patents and patent trolls in the United States. First he echoes Watchtroll's talking points about Delrahim, who is a lobbyist that Trump turned into an official. To quote:

As President Trump has slowly filled the key positions in his administration it has become clear that US IP policy over the next few years is going to look very different to the positions taken by the Obama White House (particularly in its second term). That’s perhaps not surprising given that one of the motivating forces that seems to guide the current commander-in-chief is to do the opposite of whatever his predecessor did. This week in Washington DC, in two separate speeches, USPTO Director Andrei Iancu and Department of Justice antitrust chief Makan Delrahim, underlined just how things are likely to change


Then, citing LeadershIP (legitimacy of the USPTO harmed by it), Lloyd goes even further, citing the US Chamber of Commerce and other radical elements. This IAM lobbyist (the patent trolls' lobby) is again pressuring Iancu, whom he recently visited and incited against PTAB, to crush patent quality. Twice in a day! The latter post says:

The speech given earlier this week by USPTO Director Andrei Iancu at the US Chamber of Commerce on the current state of the US patent system has quite rightly attracted a fair amount of press (you can see our take here). He returned to some familiar themes around increasing predictability in the system, but also stressed more explicitly than ever before that the system was at an “inflection point” and that the US could not continue down the same path if it was to maintain global economic leadership.

[...]

Also featuring on the LeadershIP panel was Jamie Simpson a staffer for Senator Chris Coons, who is the author of the STRONGER Patents Act which has proposed numerous changes to PTAB procedures (former CAFC Chief Judge Paul Michel was the fourth panellist). According to Simpson, of the 10 PTAB changes in the Act, seven could be implemented by Director Iancu. The question is: will he decide to do so?


These lobbyists just won't rest and won't leave Iancu alone until he crushes PTAB. They try to turn Iancu into IAMcu.

Revisiting the same tricks as last year, Patently-O is back to some PTAB bashing in an effort to slow down PTAB and CAFC. It's just the same old talking points reused:

The Federal Circuit continues to aggressively issues R.36 No-Opinion Judgments as a mechanism for more efficiently deciding appeals.

I was looking forward to the outcome in an interesting Gov’t vs Gov’t takings case — Mississippi County, Missouri vs. USA. However, rather than issuing an opinion, the court simply affirmed-without-opinion as permitted under Federal Circuit Local Rule 36.


It's infeasible to issue written opinions for so many cases. We wrote many articles last year (responding to this old canard from Mr. Crouch).

"It's infeasible to issue written opinions for so many cases."Sanjeev Mahanta, helping Watchtroll with some PTAB bashing a few days ago, went back no less than 40 days! Watchtroll is really so desperate that it revisits Knowles Electronics v Cirrus Logic -- a decision from the first of March!

Here's what Mahanta wrote:

Knowles Electronics LLC v. Cirrus Logic, Inc. (Knowles), decided on March 1, 2018, presented the Federal Circuit with an opportunity to address whether the Patent Trial and Appeals Board (PTAB) was precluded from construing a claim term that had already been construed by the court in a prior decision. The court let the opportunity go. In the preceding inter partes reexamination, the PTAB had taken the position that based on precedent, the PTO was not bound in reexamination proceedings by claim constructions produced by a court. The majority did not contradict the PTAB, a reflection perhaps of the fact that, given the difference in the method of claim construction between the PTO and the courts, the PTAB’s position was not wholly incorrect. In effect, the decision maintains the status quo that collateral estoppel does not arise in patent cases against the PTO.


This inter partes reexamination/review is no scandal at all. But whatever the case, one can count on Watchtroll (Gene Quinn et al) to cherry-pick and nitpick. Two days earlier Quinn picked a decision from 3 weeks ago (DSS Technology Management v Apple). Just because he's running out of material with which to make PTAB look bad. The high(er) court, CAFC, agrees with PTAB almost all the time. They only write about exceptions to that. Lies by omission? Lobbying tactics? Whatever it is, the motivations are clear and it's not journalism. The patent maximalist Amanda G. Ciccatelli, who has been writing in patent maximalists' media for a number of years and is nowadays writing in Watchtroll, seems concerned that quality of patents is improving and fewer applications get filed (for her faux business, based on pseudo-innovation).

"The high(er) court, CAFC, agrees with PTAB almost all the time."Nowadays even Patent Docs gets involved. It has not taken a break from PTAB bashing. It spent a lot of time/effort promoting a patent "scam". Several days ago Andrew Williams focused on just 2 among thousands of petitions (a drop in the ocean) to extrapolate and claim "Aberration". The problem is, 2 among thousands is not statistically meaningful at all; the anti-PTAB brigade will cling onto anything at this stage. Here is what Williams wrote

The U.S. Patent and Trademark Office appears to have taken the position that neither party has the burden of persuasion with regard to Motions to Amend after the Aqua Products v. Matal en banc decision (see "Motions to Amend at the PTAB -- Does Anyone Have the Burden (And Will That Change)?"). It was unclear, however, whether this position would have any practical impact for parties appearing before the Patent Trial and Appeal Board. Correspondingly, the Board's grant of two Motions to Amend last month is revealing. These are the first two motions that were granted outright since Aqua Products, both of which occurred in IPRs entitled Apple Inc. v. Realtime Data LLC, with both being directed to U.S. Patent No. 8,880,862. Before this, the Board had only granted-in-part two additional motions: (1) Taiwan Semiconductor Manufacturing Co. v. Godo Kaisha IP Bridge (IPR2016-01249) at the end of last year (see "More Aqua Products Fallout -- Taiwan Semiconductor Manufacturing Co. v. Godo Kaisha IP Bridge"); and (2) Polygroup Ltd. v. Willis Electric Co. (IPR2016-01613) in February (although to be fair, the contingent part of this motion was denied because the challenged claims were found to not be unpatentable). Clearly, the flood gates have not been opened with respect to claim amendments in IPR proceedings because there have still been many more motions denied than granted (even in part). But these two Apple v. Realtime Data cases could be instructive for Patent Owners seeking to amend claims in a post-Aqua Products world, especially with respect to whether the petitioner bears the burden with regard establishing the unpatentability of the substitute claims.

[...]

Therefore, even though the Board did conclude its grant of the Motion to Amend by noting "that when considering the entirety of the record before us, we determine that the preponderance of the evidence fails to establish that the proposed substitute dependent claims are unpatentable," it did appear to put the burden on petitioner to reach that conclusion. It is unclear whether this case is an aberration, or whether there will be more emphasis on the burdens assigned to petitioners in Motions to Amend going forward. It is also unclear whether this case will make it easier for patent owners to get similar motions granted in the future. Nevertheless, some of the language found in these two cases should be considered persuasive for patent owners to use going forward.


"It is unclear whether this case is an aberration," he notes, basically urging patent aggressors (or plaintiffs or holders) to attempt similar tricks. We have repeatedly explained why the concept of amending patents after they got granted is ridiculous and may perhaps justify moving to a Wiki-type knowledgebase rather than the current system.

"We have repeatedly explained why the concept of amending patents after they got granted is ridiculous and may perhaps justify moving to a Wiki-type knowledgebase rather than the current system."PTAB's elimination of bad patents is going along nicely and improving over time. Even PTAB-hostile groups unwittingly admit that PTAB faces fewer appeals or at least shorter queue/backlog. Whatever is associated with appeals (not oppositions) is decreasing:

Perhaps one of the most interesting speakers at the PTAB Bar Association annual conference on March 22, 2018 was Chief Judge Ruschke. Ruschke highlighted several statistics at the Board including the ever-diminishing backlog for ex parte appeals. Noticeably proud of this effort, which we report on below, Ruschke deserves credit for being at the helm of the PTAB during this time of a historic drop in appeals backlog.

Several months back, we reported on the dip in ex parte appeals backlog comparing fiscal year 2016 with fiscal year 2017. Since then, the USPTO recently released a chart, of which Chief Judge Ruschke spoke, that tracks a moving monthly average for February 2018 with February 2017. Here is the new chart available here at the USPTO.

[...]

The appeal backlog is calculated as the amount of time from when the appeal is forwarded to the Board (shortly after an Examiner’s Answer is issued) until a final decision is made. As this backlog increasingly shortens, the decision to pursue an appeal becomes more attractive. This, in combination with recent increases in USPTO fees that disproportionately makes more expensive pursuing continuing prosecution with RCEs. This also, knowing that some grounds of rejection statistically get overturned at higher levels than you might think. You can see for yourself how your specific grounds of rejection are handled at the Board to guide your particular prosecution strategy.


As we pointed out in our last article, citing the same site, rates of success in appeals are appallingly low -- so much so that it's barely worth appealing at all (based on business method patents at least). Our prediction is that this will improve the productivity levels of PTAB. How many thousands of IPRs will there be this year? In spite of the fee hikes introduced some months ago by interim Director Matal?

Recent Techrights' Posts

GNU/Linux Growing Worldwide (the Story So Far!)
Microsoft is unable to stop GNU/Linux
Red Hat Loves Microsoft Monopoly (and Proprietary Surveillance With Back Doors)
full posting history in RedHat.com
Microsoft-Connected Sites Trying to Shift Attention Away From Microsoft's Megabreach Only Days Before Important If Not Unprecedented Grilling by the US Government?
Why does the mainstream media not entertain the possibility a lot of these talking points are directed out of Redmond?
Windows Has Fallen Below 5% in Iraq, GNU/Linux Surged Beyond 7% Based on statCounter's Stats
Must be something going on!
Read "Google Is Not What It Seems" by Julian Assange
In this extract from his new book When Google Met Wikileaks, WikiLeaks' publisher Julian Assange describes the special relationship between Google, Hillary Clinton and the State Department -- and what that means for the future of the internet
Julian Assange: Factual Timeline From an Online Friend
a friend's account
Breaking News: Assange Wins Right to Challenge Extradition to the US
This is great news, but maybe the full legal text will reveal some caveat
 
Microsoft Windows Used to Have Nearly 100% in China and Now Google Has 50% (With Android)
Will China bring about a faster "fall" for Microsoft?
Pursuing a Case With No Prospects (Because It's "Funny")
the perpetrators are taking a firm that's considered notorious
GNU/Linux in Honduras: From 0.28% to 6%
Honduras remains somewhat of a hotspot
Good News From Manchester and London, Plus High Productivity in Techrights
what has happened and what's coming
[Video] The 'Linux' Foundation Cannot be Repaired Anymore (It Sold Out)
We might need to accept that the Linux Foundation lost its way
Links 21/05/2024: Tesla Layoffs and Further Free Speech Perils Online
Links for the day
Gemini Links 21/05/2024: New Gemini Reader and Gemini Games
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, May 20, 2024
IRC logs for Monday, May 20, 2024
[Video] Just Let Julian Assange Go Back to Australia
Assange needs to be freed
The WWW declares the end of Google
Reprinted with permission from Cyber|Show
Gemini Links 20/05/2024: CMSs and Lua "Post to midnight.pub" Script Alternative
Links for the day
Brodie Robertson - Never Criticise The Linux Foundation Expenses (With Transcript)
Transcript included
Links 20/05/2024: Protests and Aggression by Beijing
Links for the day
Can an election campaign succeed without social media accounts?
Reprinted with permission from Daniel Pocock
Fact check: relation to Julian Assange, founded Wikileaks at University of Melbourne and Arjen Kamphuis
Reprinted with permission from Daniel Pocock
Gambia: Windows Down to 5% Overall, 50% on Desktops/Laptops
Windows was measured at 94% in 2015
Links 20/05/2024: Microsoft Layoffs and Shutdowns, RTO as Silent Layoffs
Links for the day
The Issue With Junk Traffic in Geminispace (Gemini Protocol)
Some people have openly complained that their capsule was getting hammered by bot
Peter Eckersley, Laura Smyth & the rushed closure of dial-up Internet in Australian universities
Reprinted with permission from Daniel Pocock
Brittany Day, Plagiarist in Chief (Chatbot Slinger)
3 articles in the front page of LXer.com right now are chatbot spew
Guardian Digital, Inc (linuxsecurity.com) Has Resorted to Plagiarism by Chatbots, Flooding the World Wide Web With Fake 'Articles' Wrongly Attributed to Brittany Day
busted
[Meme] Bullying the Victims
IBM: crybully of the year 2024
Ian.Community Should be Safer From Trademark Censorship
We wish to discuss this matter very quickly
Microsoft and Its Vicious Attack Dogs (Attacking Women or Wives in Particular)
Sad, pathetic, destructive people
Upcoming Series About the Campaign to 'Disappear' the Father of GNU/Linux
Today we have Julian Assange's fate to focus on
A Month From Now Gemini Protocol Turns 5
June 20
Colombia: From Less Than 0.5% to Nearly 4% for GNU/Linux
it's not limited to this one country
Rumour: Well Overdue Red Hat Layoffs to be Announced in About 3 Days
we know they've planned the layoffs for a while
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, May 19, 2024
IRC logs for Sunday, May 19, 2024
Gemini Links 20/05/2024: Updated Noto Fontpacks and gemfeed2atom
Links for the day
GNU/Linux in Georgia: Looking Good
Windows down from 99% to less than 33%
Tomorrow is a Historic Day for Press Freedom in the UK
Take note of the Julian Assange case
Hiding in a Forest Without a Phone and Hiding Behind the First Amendment in the United States (US)
some serial defamer is trying to invert the narrative
Links 19/05/2024: Iran's President Lost in Helicopter Crash, WikiLeaks’ Julian Assange Awaits Decisions in Less Than a Day
Links for the day
Links 19/05/2024: Microsoft Investigated in Europe
Links for the day
4 Old Articles About Microsoft/IBM SystemD
old but still relevant
Firefox Has Fallen to 2% in New Zealand
At around 2%, at least in the US (2% or below this threshold), there's no longer an obligation to test sites for any Gecko-based browser
Winning Streak
Free software prevalence
Links 19/05/2024: Conflicts, The Press, and Spotify Lawsuit
Links for the day
GNU/Linux+ChromeOS at Over 7% in New Zealand
It's also the home of several prominent GNU/Linux advocates
libera.chat (Libera Chat) Turns 3 Today
Freenode in the meantime continues to disintegrate
[Teaser] Freenode NDA Expires in a Few Weeks (What Really Happened 3 Years Ago)
get ready
GNU/Linux is Already Mainstream, But Microsoft is Still Trying to Sabotage That With Illegal Activities and Malicious Campaigns of Lies
To help GNU/Linux grow we'll need to tackle tough issues and recognise Microsoft is a vicious obstacle
Slovenia's Adoption of GNU/Linux in 2024
Whatever the factor/s may be, if these figures are true, then it's something to keep an eye on in the future
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, May 18, 2024
IRC logs for Saturday, May 18, 2024
Links 19/05/2024: Profectus Beta 1.2
Links for the day