Revision of PTAB Policies

USPTO Director Michelle Lee is in the process of making a series of changes to the Patent Trial & Appeal Board (PTAB).  In her comments, Director Lee begins with her wry humor: “In recent appearances … I highlighted the popularity (at least based upon number of filings) of our Patent Trial and Appeal Board (PTAB) America Invents Act (AIA) trials.”  PTAB trials have been popular for patent challengers – not so much for patentees.

Although the PTAB is a quasi-judicial body, it also operates at the direction of the USPTO director (who is also a member of the PTAB).  Thus, unlike many courts, the PTAB is not self-directed.

Director Lee has explained a set of changes to PTAB AIA Trial proceedings coming in two packages:

This spring we plan to issue a first rule package containing what we call “quick fixes”—changes of simple scope that will immediately improve the trial proceedings.  Later this summer, we will issue a second proposed-rule package containing more involved changes to our PTAB Trial Rules that govern the conduct of the AIA trial proceedings.

Regarding the quick-fix package, the PTAB is immediately implementing the following changes:

  1. Expanding the short 15-page limit on motions to amend claims (that must also explain why the proposed amendment is patentable).
  2. Expanding the 15-page limit for petitioner’s reply-brief.

In the follow-up rule-package proposal, the PTO is considering:

[F]urther modifications to the motion to amend process; adjustments to the evidence that can be provided in the patent owner preliminary response; and clarification of the claim construction standard as applied to expired patents in AIA proceedings; . . . adjustments to the scope of additional discovery[; . . . joining of] multiple proceedings before the Office involving the same patent; use of live testimony at oral hearings; and [requiring parties to] make a certification with their filings similar to a Rule 11 certification in district court litigation.

Additionally, regarding motions to amend, we are contemplating proposed changes to emphasize that a motion for a substitutionary amendment will always be allowed to come before the Board for consideration (i.e., be “entered”), and for the amendment to result in the issuance (“patenting”) of amended claims, a patent owner will not be required to make a prior art representation as to the patentability of the narrowed amended claims beyond the art of record before the Office.

One issue that has been raised by some (and is part of the proposed “STRONG patent act”) is the perception that PTAB judges who grant the petition-for-review have already come to a conclusion in the case — giving the patentee an undue uphill battle to win on the trial merits (since it is the same judges who hear the merits).  The PTO is going to propose a modified model for a pilot program where a single judge decides the petition and then two additional judges are added for the trial.

 

82 thoughts on “Revision of PTAB Policies

  1. 9

    Just for grins I sometimes wonder where we would be if the paid bloggers and lobbyist had not taken hold of the patent narrative. Maybe the AIA would never had been passed in its current destructive form. Maybe Benson would have been overturn and TSM would have been written into the law. Maybe we would have focused on quality at the PTO.

    Maybe, if only …

    1. 9.1

      Maybe we would have focused on quality at the PTO

      Truth

      Do the Fn job right the first time – band-aids and this errant notion of “quality” after the fact is sheer lunacy. A sign that no one minding the “policy” here has been in the real world, where no matter how great you make your warranty programs, said programs won’t deal with the true underlying quality issues in the first instance of your processing.

      1. 9.1.1

        The other thing that is astonishing is that Google Director Lee does not say, “We are either unfairly invalidating a lot of claims, or the USPTO has put out a lot of poor quality patents.” One or the other must be true for the invalidity rate to be over 75% at the PTAB.

        And, this giant search for how to measure quality at the USPTO is also ridiculous when the best measure is the over 75%.

  2. 8

    Just for grins, I occassionally find myself pondering where we’d be right now if the true believers in the awesomeness of patents on the lowest forms of innovation had gotten their way, against all odds, and won the Prometheus and Alice cases.

    Can you imagine the spike up in the amount of junk that the PTO would be looking at right now? If information itself, such as a correlation, could be protected by a patent merely by salting into the claim some old transformative step or an old machine?

    Yikes. There’s plenty of equally bad case law out there waiting to get smashed under the steamroller of progress. Until that happens, however, and the patents protected by that judicial activism are expunged from the system, we need all the post-grant review we can possibly get.

    The US patent system is a joke and the people who turned it into a joke are fighting hard to keep it that way. Why? Because it’s easy to make money off it when a five year old can “innovate” and obtain a patent by dreaming up “new functionalities” for information processing systems. Any attempt to make it more difficult will be fought tooth and nail because some of these people are so profoundly uncreative they won’t be able to figure out another grift quickly enough to pay the mortgage on their vacation home.

    1. 8.1

      MM, there is an assumption in your note that it is quite easier to invalidate a patent in the PTO than in the courts.

    2. 8.2

      and the patents protected by that judicial activism

      Dissembling once more on the exceptions to the judicial doctrine of printed matter, eh Malcolm?

      Go back and read the simple explanation I provided in my Set B and Set C discussion. You know the one, the one that I asked you and Ned to discuss, but neither of you seem able or willing to do so.

    3. 8.3

      Because it’s easy to make money off it when a five year old can “innovate”

      Yes Malcolm your dichotomy of wanting patent law returned to the state of Game of Kings, “but for” only huge cash outlays, Flash of Genius, and a removal Per Se of the ability to invent most accessible to the non-1%ers, and yet still claim that it those 1%er “grifters” that are ruining it for everyone is b0ringly repeated ad nauseum.

    4. 8.5

      “patent system is a joke and the people who turned it into a joke are fighting hard to keep it that way. Why? Because…”

      …nobody doesn’t like a good joke.

      Speaking of jokes, did you hear the one about the extroverted patent attorney?

      Yeah, I heard when he talks to you, he actually looks at YOUR shoes.

        1. 8.5.1.1

          No credit. I either stole it or adapted it; can’t remember which.

          Despite the plethora of really good lawyer jokes, there are few specific to patent attorneys.

          I may have to write some of my own.

  3. 7

    “is the perception that PTAB judges who grant the petition-for-review have already come to a conclusion in the case”

    I know one of these guys now, if anyone wants me to ask him about this I can.

    I asked him about a lot of things tonight re his judging. And I’ll prob try to make it to a oral arg in a case in the next few months.

    For Ned, I asked about whether or not he thought most of the invalidations were due to new evidence (expert testimony wut wut). And he said yes, by far. He also said that the percent of invalidations was artificially high right now because they’re “working through all the garbage” that was built up, so it’ll tend to level off in his opinion.

    1. 7.1

      “is the perception that PTAB judges who grant the petition-for-review have already come to a conclusion in the case”

      In a lot of these cases the conclusion pretty much leaps off the page and punches you in the face. That’s just a fact of life.

      1. 7.2.1

        Yeah that’s what he seemed to think. A lot of the claims he was seeing were sooooooo bad in terms of validity (and double bad considering the new evidence now before them). Some of them he says he could see why they were issued. Say an examiner was trying to get his numbers before end of year or what have you.

  4. 6

    Ned,

    I would like you to read this below, I know you cannot comment. But I would like you to read some of the points I have tried to raise.

    I read USPTO response again here are some more ideas,

    I think you need to attack this in 3 fronts.

    USPTO argument structure is :

    Steps 1. Patent rights are public rights
    Steps 2. Patlex and Joy Technologies ruling about “re-examination” applies to PTAB
    Step 3: just like for re-examination proceedings , Jury trial is NOT required for patent invalidity

    ======================
    You can attack patent is NOT a public right. BUT I think there is enough evidence that that will NOT be successful, but in his brief he has to and should force and expand that issue

    The “ 1st MAIN” focus should be

    Ned would have to lay out the very clear distinction between “re-examination” VS PTAB proceedings

    And the reasons why Patlex and Joy Technologies does not apply to IRP / PTAB.

    Highlight the Differences between IPR vs Re-examination with some examples:

    1. Re-exam proceedings were between USPTO and Patent Owner : As illustrated and solidified by the “Right to Appeal Final Decision” for re-exam Only patent owner may appeal; Petitioner could not appeal as they were not part of the controversy. The issue was between USPTO and PO.

    In IPR the “Petitioner CAN appeal” and the controversy is not JUST between USPTO and PO.

    Patlex and Joy Technologies applies toward correcting a USPTO Mistake , but NOT towards adjudicating a controversy between two private parties.

    2. USPTO Standard for Granting Request

    In Re-exam : since the issue was between USPTO and the PO ONLY , the standard was “Substantial new question of patentability”

    BUT in IPR the standard is different because the Issue is NOT between USPTO and PO but between PO and Petitioner and hence the difference in language of the standard of granting the request for IPR ie “Reasonable likelihood that petitioner would prevail with respect to at least one claim.” The granting request does not say the USPTO will prevail but the petitioner will prevail.

    Patlex and Joy, re-exam applies towards the controversy between USPTO and PO. Not between two independent parties.

    3. De novo review of the patent in re-exam VS NO de-novo review of the patent in IPR. Again Patlex and Joy does not apply to IPR because UPPTO is not correcting its previous mistake by examining the patent with fresh eyes. In fact there is NO examiner present in the IPR Proceedings, hence no examination.

    4. Third Party Requester Right to Participate:

    re-exam : Limited to initial request and a reply to the patent owner’s statement; No right to participate in substantive reexamination.

    IRP : May brief issues and submit declarations of supporting evidence and opinions; Right to oral hearing.

    5. Relying on 3rd party expert declaration, testimony, depositions are used in IPRs. BUT they are NOT allowed and NOT used in re-exam . In re-exam 3 CRE’s paid by USPTO “examine” the patent without biased opinions.

    6. Adjudicate vs re-exam : Patlex and Joy was decided for re-exam for USPTO errors by Examiners. Not for adjudicating a controversy between two parties with two different experts testimony.

    7. Discovery and interest of “Justice” : in re-exam there was NO Discovery.

    In IPR Discovery is made

    a. Depositions of declarants
    b. Initial disclosures
    c. Production of cited exhibits
    d. Production of inconsistent info
    e. May move for additional discovery ‘in the interests of justice’

    More importantly in Patlex and Joy case there was “NO JUSTICE” it was about a MISTAKE of the USPTO and Patlex does not apply for IPR. Because the proceedings are very different and not about correcting the mistake the USPTO made but the deliver “JUSTICE” to a party in the controversy

    8. Hearing : In re-exam NO Interviews were Permitted, because it was an Independent determination by 3 Examiners. But in case of IPR there are Oral Hearings and with new proposed rules it might have Live testimony also. Patlex does not apply because IPR is not an Independent RE-Exam of the patent application but a adjudication of a controversy between two opposing parties.

    9. Federal rules of evidence (FRE) : for re-exam FRE DO NOT Apply because it is correcting a Mistake USPTO made. In IRP FRE is applies because it IPR is a controversy between two parties and FRE is there to Protect constitutional right (adversary system). Hence Patlex and Joy does not apply to IPR.

    10. Requester Anonymity : In Re-exam the requested can remain anonymous. Because the Patent validity is an issue between USPTO and PO. BUT for IPR one has to “Identify the real party in interest” because IRP is about the controversy between two parties and about the Mistake USPTO made. Patlex does not apply.

    The “ 2nd MAIN” focus should be Due Process and Fairness for Patent Owners. And High light the fact that Both congress bills GoodLatte and Strong Act recognize that USPTO has Gone off the rails with BRI. And Both competing bills recommend that USPTO application of BRI should be changed for IPRs.

    1. 6.1

      Due Process and Fairness for Patent Owners

      Because “patent owners” are treated soooooo unfairly! Boo hoo hoo! Rich people aren’t getting everything they want as easy as they want it. So suddenly they discover …. due process! Plus lots of spurious capitalization. Super serious stuff indeed.

      Meanwhile, the PTO continues to hand out ridiculous junk like this, week after week, limiting everybody’s rights, and all the “Brian Smith’s” out there just stick their heads in the sand:

      8997135:

      1. A method for presenting a media asset at user equipment of a user, comprising:

      receiving a user request to access a media asset;

      generating, for display, a first option to purchase the media asset with a storage restriction and a second option to purchase the media asset without the storage restriction;

      providing the media asset with the storage restriction when the user selects the first option;

      and providing the media asset without the storage restriction when the user selects the second option.

      “Due process”. Give us all a break already.

      1. 6.1.1

        MM, Patent 8997135 is directed to air bag technology. The claim you posted appears to come from US Patent No. 6141488, which was filed in 1997 and issued in 2000.

        1. 6.1.1.1

          More specifically, it appears as claim 13 in the published application:

          13. A method for presenting a media asset at user equipment of a user, comprising:
          receiving a user request to access a media asset;
          generating, for display, a first option to purchase the media asset with an access restriction and a second option to purchase the media asset without the access restriction;
          providing the media asset with the access restriction when the user selects the first option; and
          providing the media asset without the access restriction when the user selects the second option.

          Again, from 1997.

        2. 6.1.1.2

          Um, what? Was it already April 1st in the time zone you were in when you posted this, Dr. Spengler?

    2. 6.3

      Great posts Brian! Don’t let the paid blogger MM get you down. He is just pushing Google’s agenda.

  5. 5

    OT: drink a few cups of coffee and wade through today’s labyrinthine CAFC opinion in APOTEX INC. v. DAIICHI SANKYO, INC v. MYLAN. The complication is not the CAFC’s fault but rather the Rube Goldberg-esque statutes designed (supposedly) to promote the speedier entry of generic drugs into the marketplace.

    In a nutshell, Apotex sought a declaratory judgment that it wasn’t infringing Daiichi’s indisputably disclaimed Orange Book-listed patent (the “703 patent”). Apotex sought that judgment because it’s required to do so by statute (and the FDA) prior to entering the market (for whatever reason, the FDA did not de-list the ‘703 patent).

    Mylan had earlier earned market exclusivity for the drug (olmesartan medoxomil) by being the first to file an ANDA with a paragraph IV certification challenging both the now-disclaimed ‘703 patent and an earlier patent (the ‘599 patent) covering the drug that expires next year (it failed to win its challenge with respect to the second patent).

    The district court kicked the case out because of a lack of case or controversy. The Federal Circuit reversed and granted Mylan a right to intervene.

    Presumably the case now goes back to the district court for an instant resolution of the non-infringement question, where Mylan (after participating in the Federal Circuit case) will have no role to play.

    1. 5.1

      “OT: drink a few cups of coffee and wade through today’s labyrinthine CAFC opinion in APOTEX INC. v. DAIICHI SANKYO, INC v. MYLAN.”

      Am I going to be able to do that within my 2 hours/week for posting on this site? Because that’s all the time you spend, right?

      1. 5.1.1

        Why not use a consistent moniker?

        In any case, this is a childish and inflammatory post.

        1. 5.1.1.1

          “Why not use a consistent moniker?”

          WTF is that supposed to mean?

          “In any case, this is a childish and inflammatory post.”

          The irony is truly sublime.

          1. 5.1.1.1.1

            “Why not use a consistent moniker?”

            WTF is that supposed to mean?

            It means “sockpuppets employed by defenders of the worst junk patents ever granted ruined the comments here for many years and if Dennis doesn’t moderate sockpuppetry it will surely happen again because that’s how the defenders of junk patents roll.”

            You’re welcome.

        2. 5.1.1.2

          Go,

          That which you cheerlead is (Red) Queen of the childish and inflammatory.

          It is duplicitous and insulting for you to attempt the high road here and remain curiously quiet just because you agree with a desired end.

          The ends do not justify the means.

      2. 5.1.2

        Am I going to be able to do that within my 2 hours/week for posting on this site?

        No idea. Depends on your reading level.

        that’s all the time you spend

        I do my best to keep up with goings on at the Federal Circuit regardless of how much or how little I comment here. Likewise with other patent-related news and happenings. I’ve been doing that for many, many years now.

        1. 5.1.2.1

          Keeping up is not the issue that has been noted “for many years” (nine years and running, to be precise).

          It is the means used to express your desired ends that is the issue.

    2. 5.2

      Do I have this correct? M challenges the ‘703, thereby receiving statutory exclusivity between X and Y future dates, depending its market entry. PO disclaims the ‘703. “A” asks for a judgment that it does not infringe the disclaimed patent. Court dismisses. On appeal, the CAFC reverses because a finding of non infringement of a disclaimed patent allows “A” to begin marketing regardless of M’s statutory period of exclusivity (provided M has not yet entered the market). This presents a case or controversy because A could enter the market much sooner, etc.

      Of course it does.

      This is not all that complicated.

      Motion for SJ granted on remand. Poof goes M’s exclusivity period.

      Question, MM, why in the world was the patent owner supporting M? Did it pay M to stay off the market for M’s period of exclusivity?

      1. 5.2.1

        Ned: why in the world was the patent owner supporting M? Did it pay M to stay off the market for M’s period of exclusivity?

        It’s unclear why the patent owner hurriedly disclaimed the later-filed patent (the ‘703 patent for which Apotex is seeking a judgment of non-infringement). Possibly it was a deeply flawed patent on its face (anticipated or rendered obvious by the earlier patent) and not worth the money to defend or maintain.

        Motion for SJ granted on remand. Poof goes M’s exclusivity period.

        That depends on the date in which M enters the market and the date on which Apotex receives tentative FDA approval: There are two requirements for forfeiture: a court must have entered a final decision of non-infringement that is no longer appealable (certiorari aside), and the second (or later) filer must have received tentative approval. The first filer forfeits its exclusivity if it has not entered 75 days after those two requirements are satisfied. Apotex can trigger forfeiture [of Mylan’s exclusivity] in this case by obtaining the judgment it seeks here and by obtaining tentative approval, if it does both early enough in relation to Mylan’s market entry. p.23

        That was the complicated part of the decision (addressing Mylan’s arguments against that interpretation of the statute).

  6. 4

    Sounds like the proceedings are becoming more and more like dist. ct. cases, but with a few twists.

  7. 3

    As others have pointed out, not only are IPRs and CBMRs Unconstitutional, but these (and any and all future) trial rules / proceeding changes … as well as the new and changing, post-Alice, examiner interim guidance on subject matter eligibility are as well.

    Such changes are at least an implicit admission that the previous rules and guidance were unfair / unreasonable / a denial of due process … resulting in the unlawful stripping of (in the case of IPRs / CBMRs) and the denial of (in the case of guidance-based 101 rejections) Constitutionally-protected invention / patent rights.

    1. 3.1

      Such changes are at least an implicit admission that the previous rules and guidance were unfair / unreasonable / a denial of due process

      Or the PTO is trying to cover up an embarassing fact about the patents it has been granting by tilting the post-grant playing field in favor of its already coddled “stakeholders.”

      To repeat my question: what evidence is there that the procedures in place were unfair to patentees?

      When you consider what the term “unfair” means, try to remember what “unfair” means to the innocent people that find themselves spending thousands of dollars to hold the PTO’s hand and showing it how to do the work it should have done in the first instance.

      There are tens of thousands of junk patents out there and they are being asserted on a regular basis by people who know how to tell the difference. How do we know that? Because no reasonable person could believe the ridiculous nonsense that comes out of their mouths as they desperately try to defend the junk they are asserting.

      1. 3.1.1

        “innocent people” = large corporations that have larger bank accounts than most countries, and more sophisticated legal counsel.

        1. 3.1.1.1

          Yes, let’s aim to remove per se the form of innovation most accessible to the non-1%’s and then claim that it is the 1%’s that are rigging the system….

          No one sees through the desire of returning the patent world to the Sport of Kings now…

          /off sardonic bemusement

        2. 3.1.1.2

          “innocent people” = large corporations that have larger bank accounts than most countries, and more sophisticated legal counsel.

          Innocent people = people acccused of “infringing” a junk patent that should never have been granted in the first place.

          Those are the patents that are getting tanked in IPR.

          Or haven’t you noticed?

      2. 3.1.2

        MM,

        “Innocent people” are NOT the reason that both side of the aisle in congress and senate want to pass a bi-partisan Trojan horse “Patent Reform” Bill.

        Your “Innocent person” is not motivating senators and congress. It is the coordinated effort of Google PR.

        The “Innocent person” is the Pawn being used by Google.
        MM I am not sure if you ever had an opportunity to hire a PR firm. If you did, you would know how the game is played. It is all Pay-for-play.

        If “Innocent person” came up with a next genius App and Google wanted
        to copy it, without Patent protection you have no recourse. Google will blatantly copy your idea and tell you go **** off and go sue us .. see you in court ..and Google will user multiple IPR’s to invalidate your IP at PTAB. Then Google will tie up the court system for 9 years for you to get a penny.

        Don’t tell me you seriously think, Google is here lobbying this effort for “Innocent people”. Google is pushing this to steal “Innocent people” next big Idea/Patent and not pay any licensing fee.

        Google Lobbyist have posted caricature of a patent troll posters on the wall in doorway of House Judiciary Committee in Washington so Congressional staff can see them. Google is NOT doing that for “Innocent People”.

        Wake UP, if you believe that you have been Googled!

        If Innovation Act passes ALL Individual Inventors can say good bye to ever enforcing any IP rights in US. Because Big business will steal it, when “Innocent people” patent goes beyond a technology acceptance threshold.

        “Do NO Evil” is the biggest corporate lie I have ever know.

        Once you move beyond the “Innocent people/troll myth perpetuated by
        Google PR” and you come up with something innovative. Then you will have to face the other side of Google, and then you will realize what a Trojan horse this Innovation Act really is, that Google is pushing with $17 million PR effort.

        This coordinated PR effort to have a “Patent Troll” Article being posted every week on 5 major media/new sites is NOT being done by “innocent people”.

        Folks like Todd Moore are the Pawns being peddled weekly by Washington post, NY times, GigaOm, arstechnica, EFF. This whole coordinated effort is orchestrated by Google PR and Lobby group.
        If someone has any modicum of intelligence he/she will see thru this PR Myth machine.

        You already know 140 Universities have come against the Innovation act. Do you think all 140 universities are trolls trying to hurt “Innocent People”?

        Nothing is perfect in this world, not even our Patent system. That does not mean we should kill it with the proposed Trojan horse patent reform act from Google Lobby.

        Don’t be Googled!

        1. 3.1.2.1

          Brian, MM has spent 40+ hours a week blogging for the last 10 years. He is the only frequency blogger on this blog not verified. He is almost certainly an employee of a PR firm.

          1. 3.1.2.1.1

            “He is the only frequency blogger on this blog not verified.”

            NWPA – What does “verified” mean in this context?

            1. 3.1.2.1.1.1

              It just means that Dennis knows who we are in the real world. MM is completely anonymous. No one knows who he is.

              I wonder why. Could it be the board doesn’t allow paid posters by policy and yet MM spends 40+ hours blogging for 10 years espousing the propaganda of the anti-patent movement funded by large corp.

        2. 3.1.2.2

          And Brian if you want more evidence that you just responded to Google bucks at work, just notice how closely MM’s rhetoric mirrors the Google rhetoric. He gets on here and posts each time there is a new Google meme to push.

          Patentlyo will go down as one of the blogs that helped to burn the patent system and supported the anti-patent PR movement with a supportive atmosphere for paid Google bloggers.

        3. 3.1.2.3

          MM is instructive of why it is hard to fight the anti-patent propaganda machine. He is the most frequent poster. Who can possibly have time to compete with a paid blogger that has carte blanch on a website.

        4. 3.1.2.4

          Ah, here comes the tiny parade of “Google blamers”.

          It’s pretty clear to everybody that Google is fighting a class of blood-s0cking lampreys who see in Google nothing more than an opportunity to shake down a big corporation for money.

          The evidence for the existence of those bottom feeders is all over the Internet, Brian, including in these comments. Let me know if you need me to direct you to a more specific site (IP Watchdog).

          But Google’s “propaganda” has absolutely nothing to do with my views about the patent system and the manipulation of the patent system by bottom feeding attorneys, Brian. You’re making a big mistake if you think that because people like me have been listening to people like you for a long time, Brian. And we’re not impressed. Nor are we impressed by Google.

          I’m sure that’s difficult for you to understand because, like your two little buddies here (NWPA and “anon”) you sound as if you’ve never had an independent creative thought in your life.

          1. 3.1.2.4.1

            Sure MM. Sure. How about being verified so we know what you say is true? (Crickets–again.)

            1. 3.1.2.4.1.1

              How about being verified

              What does that even mean? Even if I gave you my social security number that still doesn’t prove that I’m not somehow taking Google’s money (or receiving some other favors) in exchange for blogging “all over the Internet” as you’ve suggested ten billion times.

              The funniest part, of course, is the idea that Google is paying me to trash their own giant portfolio of incredibly junky patents. And of course I also favor raising their corporate taxes — bigtime.

              Super devious stuff! It must seem like eleven-dimensional chess to people like you.

              1. 3.1.2.4.1.1.1

                It means you can let Dennis know who you are for real. There are lots of way knowing your real identity. If you are partner/associate at a big law firm, then we can be sure that you aren’t a paid blogger.

                >>Super devious stuff! It must seem like eleven-dimensional >>chess to people like you.

                Not really. Everything you say is pretty consistent with the anti-patent propaganda. (And, yes, Google does play both sides like all savvy big corporations. They aren’t going to bet the farm that their plant Lee and massive Google bucks to Congress can burn down the patent system, so, of course, they are continuing to spend money on patents.)

                1. It means you can let Dennis know who you are for real.

                  I’m pretty sure Dennis figured that out a long time ago.

                  Everything you say is pretty consistent with the anti-patent propaganda.

                  Even if that were true, it’s bizarre to leap from such an observation to “paid blogger.” Much of what I say is “pretty consistent” with the views espoused by a wide variety of groups. Are all those groups paying me? If so, I wish I could find the account into which all this money is going …

                2. It means you can let Dennis know who you are for real. There are lots of way knowing your real identity. If you are partner/associate at a big law firm, then we can be sure that you aren’t a paid blogger.

                  Awesome, so I’m “verified” without even knowing it!

                  But wait, we’re just supposed to take your word for it that you’re “verified”? What good does that do?

                3. So crickets again about MM being verified. What a surprise. And cute DanH with your red herring.

                  Dennis has said before that he knows who I am.

          2. 3.1.2.4.2

            >>IP Watchdog

            Let’s see, didn’t the ABA rate IP Watchdog as the patent blog with the highest quality posts? I believe they have for years.

            1. 3.1.2.4.2.1

              didn’t the ABA rate IP Watchdog as the patent blog with the highest quality posts? I believe they have for years.

              If so, that tells you all you need to know about the ABA.

            2. 3.1.2.4.2.2

              That website is terrible. Just people agreeing with each other. No dissent, no debate.

              1. 3.1.2.4.2.2.1

                There is plenty of debate on that website. There is just not the frothing at the mouth anti-patent madness that pervades this blog. The reason this blog has so much “debate” is because there is at least one paid blogger that posts the positions of his/her employer each day on the blog.

                1. Even Mr. Quinn has had to modify his positions due to the weight of objective reality- now he agrees that mid 90’s software patents were by and large low quality, and indeed there exist some litigation abusers.

                  Mr. Night Writer (how verified is that name by the way?) insists that anyone accused of infringement is equal to the jailhouse innocent: i.e. they most certainly are not innocent… because of the rigorous allowance safeguards that result in 40% invalidations or what, 90%+ in IPR’s?

                  I’m not a large corp or a solo inventor; I’m the “job creator” everyone claims to worry about who now must hire fewer people than I want to because of IBM Kenexa’s abusive litigation of an utterly junky patent.

                  I could care a less about Google or their views of patents. Because I became interested in the subject and the absurd daily injustice (just read the litigation reports that come out every day) I have become an activist – to the extent blog posting and speaking about the problem represents a form of activism.

                  Maybe Google is more able to be activist in more ways for similar reasons; they are tired of spending millions to defend themselves against utter garbage spewed out for years on end by the PTO.

                  I think software/method patents that cant pass the MoT test should be banned outright- likely the only way to solve the problem in the long run. This will not destroy patents, it will save them. If they are in danger today, the simplest reason suffices: they lost legitimacy in service of rent-seeking and pedantic, ill-informed understandings of what software is and how it delivers value.

                  Few complain about machinery patents, or drug patents, or any other traditional area where patents have worked and continue to work in a reasonable fashion.

                  Why can that possibly be?

          3. 3.1.2.4.3

            … In pieces due to a hyper active filter…

            Ah, the b@nality of Malcolm’s continuous empty rhetorical rants…

            The “you are tiny, and I am part of the mighty WE….

            1. 3.1.2.4.3.1

              The baseless ad hominem of “I don’t like software and it per se should not be patentable so that means anyone trying to enforce those things must be shake-down artists and grifters”….

              1. 3.1.2.4.3.1.1

                The (b0ring) but ever present Accuse Others Of What Malcolm DOED with the accusation of lacking any independent creative thought as he himself merely mouths the tired and trite anti-software patent script…

                Nine years and running…

          4. 3.1.2.4.4

            MM :

            I am also NOT for advocating
            “manipulation of the patent system by bottom feeding attorneys”

            AND I am also NOT for one company destroying our Incentive based US patent System.

            I am for Innovation in US for : AI, Search, Robotics, Wireless, IP Protocols, Storage, IoT, sensors, medicine, genetics, and many more new advanced technologies that our country and economy will benefit from.

            Today in technology : both hardware and software are intertwined : one does not exist without the other and to suggest that would be highly disingenuous.

            I Believe in US patent system and IP rights, and I also believe it is NOT perfect and it can be improved. BUT killing it in NOT improving it.

            Your disdain for the intellectual property right and our cherished US patent system is border line fanatical and not warranted.

            Mainly because if you think this through and follow your own logic, then after a very short run of lull in the patent infringement cases the ONLY beneficiaries would be CHINA, INDIA, Russia, where there is wanton dis regard for IP property rights. This is because Anything you can manufacture or put on the web can be reverse engineered in months by engineers in china or by pharma companies in India.

            Be very very careful what you wish for.

            1. 3.1.2.4.4.1

              Brian: I Believe in US patent system and IP rights

              Praise them! Get on your knees and bow down! You are wonderful and blessed because “you believe in the US patent system and IP rights”, whatever that’s supposed to mean.

              I also believe it is NOT perfect and it can be improved.

              Excellent! Let’s hear more about these “imperfections”. Specifically what is imperfect about the system and what do you propose to do to fix it?

              BUT killing it [is] NOT improving it.

              I’ve never advocated for “killing the patent system” or IP rights so I’ve no idea what you’re raving on about. In fact, I’ve expressed views that are the precise opposite on hundreds if not thousands of occasions over the many years. You kinda sound like a fanatic, paranoid patent worshipper when you go off the rails like that.

              Anything you can manufacture or put on the web can be reverse engineered in months by engineers in china or by pharma companies in India

              That’s nice. It’s utterly beside the point that patents that protect information processing logic and information itself have eaten a giant hole in our patent system and turned that system into a joke. That was predictable, as was the shrieking and crying and apocalpytic b.s. spouted by the bottom feeders who became addicted to the status quo.

              [shrugs]

              Reap the whirlwind. There’s a lot more to come and you aren’t going to like it.

          1. 3.1.2.5.1

            On both sides of the issue there’s a very odd but consistent focus on utility as the only requirement of patentability. Just because something is useful doesn’t mean it’s patentable. This much should be obvious by now. Utility is by far the easiest bar to pass.

            And its not like there’s no alternative. Trade secret status is quite useful and not all that hard to obtain. Electronic and physical measures to protect against reverse engineering extend a trade secret owner’s time to market advantage. For processes, trade secret can be many times more powerful than patent since you can keep the IP right in perpetuity.

      3. 3.1.3

        what evidence is there that the procedures in place were unfair to patentees?

        I think that’s a fair question and would point out that the evidence is likely sitting there right next to the evidence for your choice of words of “embarrassing, tilting, coddled, junk, and nonsense

        1. 3.1.3.1

          Anon,

          You asked, you receive cuz’ I know u love these. From today, 8997135:

          Independent Claim 1:

          1. A method for presenting a media asset at user equipment of a user, comprising:

          receiving a user request to access a media asset;

          generating, for display, a first option to purchase the media asset with a storage restriction and a second option to purchase the media asset without the storage restriction;

          providing the media asset with the storage restriction when the user selects the first option;

          and providing the media asset without the storage restriction when the user selects the second option.

          1. 3.1.3.1.1

            You obviously missed the memo that the patent examination system was not designed to be perfect, and thus the “here’s a bad patent so the entire system must be bad” is NOT a proper conclusion and your little example is NOT the evidence that you think it is.

            It is not very polite to be so purposefully obtuse.

            1. 3.1.3.1.1.1

              Ah fine, you’re right.

              That’ll be my last one absent some special circumstance.

              1. 3.1.3.1.1.1.1

                Why? anon’s “point” is what? Not designed to be perfect? How about not designed to fail 40% or more of the time? How many rocks must we look under to make that point? Is posting 1, 000 or 5,000 or 100,000 of these joke patents a fair proportion?

                But they are NOT jokes- they are weapons of very serious destruction of very real amounts of very real money when misused, which is to say, when used at all.

                We should post the laughers every day of the week to remind ourselves what the predominant problem with patents in the USA looks like.

                So don’t quit- rather redouble your efforts.

                1. Martin,

                  I hear you, I feel like the point has been made for now. Notice that no one actually tries to defend these atrocious claims we post.

                  Anon is also right that no system will be perfect. So, I’ll leave it there for now.

                  Also, your situation is different than mine. For good or bad, I work in this profession. You’re being personally “threadedly membered” by this type of claim, so I understand why you’d take more the perspective of an activist and I respect that.

    2. 3.2

      I still can’t get on board with the “Constitutionally-protected invention / patent rights” claim. Patents are important, but they are the result of a statutory right. The clause in the Constitution is permissive (“shall have the power to”), not mandatory. I know pleading to the Constitution is an all-powerful trump card (I concede there might be due process issues), but I just get annoyed when it is so casually brought out.

      1. 3.2.1

        Squirrel, would it surprise you that antitrust laws, wholly a creature of statute, enjoys a right to a trial by jury in a court of law? Just because it a creature of statute does not permit congress to put antitrust litigation into an executive agency.

        Consider that statutory trademark and copyright cases also enjoy a right to a jury trial in a court of law.

        Consider that patents also enjoy that same right — Markman.

        Now if congress has plenary power over a statutory right and can move litigation involving that right anywhere it pleases, just why is it that the Supreme Court does not seem to get it?

        1. 3.2.1.1

          I don’t point out patents are statutory rights to diminish their value. I totally agree that patents, like other statutory rights, should be afforded respect and the legal mechanisms we associate with fair adjudication.

          I am a bit of a pedant and feel that the phrase “Constitutionally-protected invention / patent rights” is used as an appeal to a higher authority, and as such, is meant to shut down any dissent.

          1. 3.2.1.1.1

            Perhaps, Squirrel. But even Patlex recognized that patents are constitutionally protected patents. Still it seems to hold that that which Congress creates, congress can destroy or, rather, empower the executive can destroy — without court authority.

            Have you ever read Marbury v Madision? What did John Marshall have to say about the power of congress, and whether the executive could unilaterally revoke property rights?

  8. 2

    IPRs and other post grant reviews have effectively moved validity out of the courts.

    The stats are here: link to uspto.gov

    Since 2012, 2985 post grant review petitions have been filed. This probably means that most, if not every, patent not barred by prior litigation that has been asserted or is in trial has been IPRed or the equivalent.

    The goal of the AIPLA and the IPO has always been to move patent validity out of the courts — to a more German type of system where patents are subject to revocation proceeding in the patent office.

    Welcome to the Brave New World, patent system. Gone are your rights to a day in court, to a trial by jury. These are Gone With the Wind.

    Are you going to just stand there and take it, like sheep to the you know what?

  9. 1

    I’ve heard plenty of sore loser type whining.

    But was there any evidence of mistakes being made under the old rules? i.e., many atents being invalidated that shouldn’t have been invalidated?

    If so, how many? Must have been a lot … right?

    Or is the usual PTO game of snatching defeat from the jaws of victory because the “stakeholders” have more fun that way?

    1. 1.1

      MM, I did a calculation based on the stats. If my calculations is correct, 74% of the patent claims for which a decision is made are held invalid.

      You might want to double-check.

      link to uspto.gov

      1. 1.1.1

        Funny too that the PTO isn’t saying that this is an indication of poor quality patents issued. The PTO should be realizing that the high invalidity rate indicates they are going a poor job.

        But, we are led by a Google director.

        1. 1.1.1.1

          It does appear that “the medicine” we are being asked to accept is along the lines of:

          “So who cares if the patient is dead, he is no longer sick.”

          1. 1.1.1.1.1

            That is about the size of it. There are a lot of poor quality software patents, BUT the PTO should not be trying to kill everything software related, and AFAIK that is what they are attempting.

            Software is the future, like it or not, and everything that was patented in hardware in the past should be protectable if it is implemented in software in the future. That is the policy basis for how they SHOULD be acting, as opposed to what they ARE doing.

            I don’t think MM works for Google. For one thing, I thought we had all long decided that he is a chemist, and that this is one of the major reasons why he is so antithetical to software.

            I make no secret of who I really am, and anyone who bothers to find out will know that I am an EE, amongst other things (which include being a humble patent agent). This is why I believe we need a sensible approach to software by the PTO, something we haven’t seen yet.

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