Quick Action to Fix Appointments Problem?

My newest email from US Inventor begins with the headline: “Our Enemies are Trying to Pull a Fast One.”  No, we’re not talking about Russia or North Korea, we’re talking about the USPTO, PTAB Judges, Bob Armitage, etc. . They write:

The IP Subcommittee of the House Judiciary Committee is meeting [Tuesday] afternoon to look at this. One of the witnesses they will listen to was actually a key person behind the passage of the America Invents Act, the bill that Congress was so mislead on and that created the patent killing PTAB!

[T]he same players who created the massive problem will be trying to tell Congress that everything is fine. Well, it isn’t, and we have to tell them. . . .

The Federal Circuit Arthrex … said that the PTAB judges are not legitimate. These “judges” have invalidated over 2,000 patents and destroyed the lives of many inventors. Please meet with Josh Malone and Randy Landreneau (Lan-druh-no) of US Inventor to get informed on this critical issue for America and American innovation.”

Randy Landreneau, Randy@USInventor.org

Josh Malone, Josh@USInventor.org

The basic idea here is that Congress is considering a quick statutory fix for the PTAB Judge issue — but US Inventor argues that such an solution should be tied more generally to reform of the AIA Trial process.

Officers of the United States Shall be Appointed by the President

 

73 thoughts on “Quick Action to Fix Appointments Problem?

  1. 13

    The PTO has said [in a stay request in subsequent case] that it will seek en banc review of the Arthrex, Inc. v. Smith and Nephew, Inc. decision’s handling of PTAB APJ appointments constitutionality.

  2. 12

    The PTAB is a cancer on the US patent system. The sickness has progressed so far that a cure can only be effected by Constitutional Amendment and major statutory fixes.

    A Constitutional Amendment won’t happen any time soon although I will try to interest some of my wealthier relatives in one.

    Below is my proposed 28th Amendment. It is quite simple but goes a long way to fixing the mess.

    Twenty-Eighth Amendment

    (1) Rights conferred under Article I Section 8 Clause 8
    (a) constitute private property and
    (b) can only be terminated or limited by due process of law in a suit at common law;
    (2) the right of trial by jury shall be preserved;
    (3) no fact tried by a jury shall be otherwise re-examined in any court of the United States except according to the rules of the common law; and
    (4) the rights conferred shall not without just compensation be taken for public use, be terminated, or be limited.

    Even without such an amendment I don’t understand why USPTO review of issued patents was ever needed or enacted. Congress could have enacted an equivalent proceeding in an Article III court. The results would have been much less disastrous than the nonsense associated with the PTAB.

    It never made legal sense for claim validity to be tried in the context of controversies over infringement (unfortunately a longstanding practice). Claim validity is an issue between the patentee and the public while infringement is a pairwise issue between a patentee and an alleged infringing entity. Congress should amend 35 U.S. Code § 282 (Presumption of validity; defenses) to remove all invalidity defenses, which should be handled in a separate proceeding under the proposed 35 U.S. Code § 147 action below.

    Along with amending § 282 Congress should repeal all statutes enabling USPTO review of issued patents. These procedures have been a mess, contribute to breaking the US patent system, and are an open invitation to agency corruption while the proposed 35 U.S. Code § 147 action would probably be simpler, would not be more expensive, would probably be less costly for the patentee, provides a US claim cancellation procedure comparable to the EPO opposition procedure, and creates a mechanism for permanently quieting claim validity.

    35 U.S. Code § 147 – Try Claim Validity

    (a) Subject to the following subsections a person who is not the patentee may petition the district court for a writ of scire facias to notify the patentee of a challenge on behalf of public to the validity of at least one claim in the patentee’s patent in an action to try claim validity. The petitioner as intervenor has standing to represent the public in district court and subsequent court proceedings. The patentee will respond to the petition, and the action to try claim validity commences. The court will judge whether each challenged claim of the issued patent is valid according to the requirements of Part II of Title 35.

    (b) A defendant in an action under 35 U.S. Code § 281 may petition the district court for a writ of scire facias under subsection (a) above. The 35 U.S. Code § 281 action would be stayed until the issue of claim validity is fully litigated.

    (c) A party having standing to seek declaratory judgment under 28 U.S. Code § 2201 on a question of infringement under 35 U.S. Code § 281 may first petition the district court for a writ of scire facias under subsection (a) above. The patentee may not commence an action in district court for infringement under 35 U.S. Code § 281 until the issue of claim validity is fully litigated.

    (d) A person, who is not the owner of a patent and who does not have standing under subsections (b) or (c) above, may seek leave from the USPTO to petition the district court for a writ of scire facias under subsection (a) above. The Director will grant leave to petition if and only if the request for leave demonstrates substantial likelihood of prevailing in district court. The USPTO Director shall establish, by regulation, fees to be paid by the person requesting leave, in such amounts as the Director determines to be reasonable, considering the aggregate costs of the reviewing the request.

    (e) For four years after an issue of claim validity has been fully litigated, a person, who is not the owner of the patent and who has new evidence of said claim invalidity, may make a motion to a single judge of the Court of Appeals for the Federal Circuit to reopen the question of said claim validity and to remand the case to district court. If the judge reopens the case, he will order the movant to write a new petition for writ of scire facias, and he will order the district court to issue the new writ of scire facias once it receives the new petition for writ of scire facias. In district court the movant will become intervenor on behalf of the public. After the four year period has expired since said claim was first fully litigated, said claim validity will be fully quieted for the remaining duration of the issued patent since the completion of the last legal proceeding addressing the issue of the validity of said claim, and motions to reopen and to remand a question of claim validity will no longer be granted by a judge of the CAFC.

  3. 11

    News flash for Paul and Greg: Rich Whitey will never accept your statistics or reality. All Rich Whitey cares about is more money, right now, and f—k you. That’s it.

    Until the clock is rolled back to pre-KSR State Street, Rich Whitey is going to complain about his suffering and persecution at the hands of communists like you two.

    So maybe stop trying to reason with Rich Whitey and just start pointing out to the world what a pack of l-y-ing entitled f—-kfaces these guys are, and mock their ridiculously tiny and shrinking demographic. Because that’s how they behave towards you and that will never, ever change.

    1. 11.1

      “the hands of communists like you two.”

      Why do the commies persecute me so MM? Is it on account of my skin color? I heard the cuban commies recently acknowledged that they were ra cist (literally yesterday) and needed to stop being ra cist and were going to try to do better. Spoiler, I hear they’re too poor to stop being ra cist (or at least do big gubmit programs to stop themselves from being ra cist). Due to their commieisms.

    2. 11.2

      Why does Malcolm insist on making patents a Race thing?

      Does he not realize — given his own assertion that he obtains patents for his clients — that he only feeds the notion of his suffering from cognitive dissonance the more he bashes patents along the lines of his various ISMs?

      He destroys his own credibility with every such emotional rant.

  4. 10

    IPWatchdog notes this frank advice to Congress: “It’s up to you to do the right thing and fix this,” said Professor Arti Rai of The Center for Innovation Policy at Duke University School of Law near the end of a hearing on what Congress should do in the wake of the Arthrex decision yesterday.”

    1. 10.1

      I entirely agree that a (proper) resolution here cannot come from the judicial branch.

    2. 10.2

      Professor Arti Rai

      You mean “large corporate advocate with a university appointment.”

      Rai is about as credible as Lemley.

      1. 10.2.1

        But still a zillion times more credible than you, Josh Malone or your beloved Pwezident R-@-pey McF—kwit.

        1. 10.2.1.1

          You do know that Night Writer is not Josh Malone, right Malcolm?

          Or is this (yet again) your lack of control over your feelings putting out yet another non-patent law rant?

  5. 9

    What I find interesting is the notion (one may call it ‘spin’) that there IS an enemy (there are actual multiple enemies) of innovation protection through patents.

    As I have noted, there are multiple philosophical ‘camps’ that have their own (separate) drivers as to wanting weak (or non-existent) personal property rights.

    1. 9.1

      ROTFLMAO

      Look! There’s a commie under your bed, Bildo!

      LOL

      1. 9.1.1

        Did you have a point here Malcolm?

  6. 8

    Whealan is right that probably the way to fix IPRs change more likely than not to clear and convincing evidence to invalidate the claims.

    That would fix it.

    1. 8.1

      “Professor Arti Rai of The Center for Innovation Policy at Duke University School of Law.”

      This is just ridiculous to allow a person like this to testify without full financial disclosures. It is pretty clear that Rai is bought and paid for by SV.

      Her title should be, “large corporate attorney working for the propaganda department.”

      Financial disclosure please Rai. We know who you work for.

      1. 8.1.1

        Plus, based on my personal knowledge of John Duffy and some of the work he has done recently, I’d bet that he is taking money from SV too.

        He should also be classified as “large corporate counsel.”

        It shows the power the money of SV has over our Democracy that these people can get in front of Congress and testify as professors when clearly they are being paid by SV.

    2. 8.2

      Yes, “clear and convincing evidence” was one of that Professors suggestions for statutory changes to IPRs [irrelevant to the Committee hearing issue of appointments of all APJs]. There is a logical flaw in thinking that this would make a big difference. IPRs are limited to patents and publications. The existence and dates of that content is almost always indisputably “clear and convincing evidence.” Only those IPR decisions turning on disputed Declaration evidence and cross-examinations thereof arguing disputed term meanings, etc., would be potentially affected. If you look at controlling case law findings based on lack of “clear and convincing evidence” it is normally about Oral testimony on alleged prior”on sale” or “public use,” or other alleged prior art not documented in patents or publications.
      But my main objection to that Professors testimony was that it appeared to me to create a false impression that the large number of IPRs is due to organizations with no “standing” filing IPRs. It is indisputable that almost all IPRs are filed in reaction to being sued for infringement or threatened with infringement.

      1. 8.2.1

        Actually, Paul, it would be nice if this blog had more evidence about the IPRs. But I saw a presentation recently that said that something like 40% of IPRs are large corporations filing against start-ups (small companies) in their space.

        Probably because they copied the small companies.

        From what I’ve seen there is starting to be a lot of evidence that IPRs are pretty harmful.

      2. 8.2.2

        It is indisputable that almost all IPRs are filed in reaction to being sued for infringement or threatened with infringement.

        Oh really?

        Truth be told, I have no seen no evidence that either confirms or denies this “indisputable” assertion.

        What little I have seen clearly indicates that there is a non-de minimus amount of IPRs in which challengers lack Article III standing, which of course would not be the case if your assertion were true.

        1. 8.2.2.1

          The official statistics on the % of IPRs in which the subject patent was already being sued on* are available from the PTO and from prior blogs on this post, for anyone interested in facts, as in 8.2.3 here. [For obvious reasons, the PTO is required to keep track of that and the parties are obligated to disclose it.]
          *Note that does not include the Additional IPRs initiated due to the petitioner or its customers be being threatened with suit or a license demand.
          Of thousands of IPRs, lack of “standing” for a Fed. Cir. appeal has been successfully argued in only 3 that I can recall.

          1. 8.2.2.1.1

            Of thousands of IPRs, lack of “standing” for a Fed. Cir. appeal has been successfully argued in only 3 that I can recall.

            First, “successfully argued” is not really at point, now is it?
            Second, aren’t you mixing apples and oranges a bit?

            And as for the “official statistic” that Greg provides, I have already noted that such statistics do not support your (cheer leading) position.

      3. 8.2.3

        There is a logical flaw in thinking that this would make a big difference.

        Indeed. I take no exception to setting the standard for invalidity in IPRs at “clear & convincing,” but you will be able to count on one hand the number of actual IPRs in which this will make a difference.

        IPRs are limited to patents and publications. The existence and dates of that content is almost always indisputably “clear and convincing evidence.”

        Exactly.

        Only those IPR decisions turning on disputed Declaration evidence and cross-examinations thereof arguing disputed term meanings, etc., would be potentially affected.

        Not even there, really. It is a rare thing indeed to find an expert declaration of which the trier of fact will say “well, that declaration is enough evidence for ‘more likely than not,’ but not enough for ‘clear and convincing.'”

        [M]y main objection to that Professors testimony was that it appeared to me to create a false impression that the large number of IPRs is due to organizations with no “standing” filing IPRs. It is indisputable that almost all IPRs are filed in reaction to being sued for infringement or threatened with infringement.

        Too true. ~85% of IPRs are associated with a corresponding district court suit. Clearly, all of those cases have standing to support the validity challenge. Imposing a standing requirement, therefore, could not possibly affect more than 15% of IPRs. In reality, I doubt that the actual number of IPRs that would be culled by a standing requirement would be more than ~5% of the total.

        Neither a clear-&-convincing standard nor a standing requirement would be all that objectionable. Quite the contrary, I think that they are both good ideas. Still and all, the differences between the observed function of the IPR system before and after the advent of such reforms would be indiscernible.

        1. 8.2.3.1

          Last I checked Greg 15% (your admitted number lacking standing) is three times the 5% number you turn around and assert as “will be affected.”

          Also, 15% is most definitely NOT de minimus.**

          The bifurcated no-standing/standing design set up by Congress is a serious structural flaw, and ALL that you have here is an attempted dismissal of this flaw by head IPR cheerleader Paul Morgan.

          ** If you want de minimus, why not instead look as the number of claims (as a percentage of all claims) that use the Jepson format? Oh wait, you are one of those that like to ride the hobby horse of making the optional Jepson format to be non-optional…

        2. 8.2.3.2

          Please note that Greg and I are not opposing here either of these IPR legislative suggestions [as long as they do not delay or add to IPR costs]. We are simply pointing out that opponents of IPRs are being deluded if they think that requiring either standing or clear and convincing evidence would significantly change IPR outcomes. Like they were deluded into thinking that making IPR claim substitutions much easier and changing from BRI claim interpretation to D.C. claim interpretation would make a big difference. They were being miss-represented as such in ineffectual legal and political attacks on all IPRs.

          1. 8.2.3.2.1

            I think that you are BOTH missing the point as to the presence (and level)of infirmities with the IPR regime, as well as the factual disconnect between ANY sense of improving examination quality with a disconnected and NO feedback into the beginning of the examination process AS a “quality” mechanism that the IPR regime was sold as.

            You want to cheer lead so much that YOU are missing the larger picture, Paul.

          2. 8.2.3.2.2

            Greg and I are… simply pointing out that opponents of IPRs are being deluded if they think that requiring either standing or clear and convincing evidence would significantly change IPR outcomes.

            Exactly. I strongly supported relaxing the standards for amendments in IPRs, and I weakly favor (1) Philips instead of BRI for IPRs; (2) clear-&-convincing instead of preponderance-of-evidence in IPRs; and (3) a requirement for standing in IPRs equal to that required for Art. III litigation.

            I actually support all of these changes. I also think, however, that none of them will meaningfully change the way that IPRs function. None of (1), (2), or (3) will materially alter the way that parties involved in IPRs experience the process.

            1. 8.2.3.2.2.1

              Greg is correct in one important, albeit unstated, manner:

              Experiencing the IPR process remains a sham for what it was sold for.

              As long as the “back end” warranty-style mechanism of removing patents previously granted remains UNTETHERED to the “front end” (and where actual improvement is desperately needed) of examination quality, there can be NO real improvement of the work product of the USPTO.

              Quite in fact, what you have here is an unfortunate embedding of errors in the front end in order to generate cash flow at the back end.

              The “answer” simply is NOT a Post Grant revocation system.
              No matter what the question may be (if that question is genuinely related to examination quality).

            2. 8.2.3.2.2.2

              Of course, Greg also believes that his clients should be able to own correlations.

              In short, Greg is pretty much a patent-huffing g0-0fball himself and it’s difficult to take him seriously for too long.

              1. 8.2.3.2.2.2.1

                Stultifying.

                That Malcolm has the audacity to complain about anyone else in regards to taking them seriously.

                He really is the Trump of these boards.

      4. 8.2.4

        Paul @8.2: “If you look at controlling case law findings based on lack of ‘clear and convincing evidence’ it is normally about Oral testimony on alleged prior ‘on sale’ or ‘public use,’ or other alleged prior art not documented in patents or publications.”

        Really? can you back this up with facts or statistics? And the issue here is not merely cases deemed “controlling case law” — the effects are manifested in all adjudications on claim invalidity.

        The notion that because IPR invalidation is limited to patents and publications the inquiry is limited to their dates is pure nonsene. There are substantive questions of fact related to such prior art references for which the adjudicator must consider the weight of the evidence presented by the parties including:

        (i) Declarations such as under CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor, and per the exception in 35 U.S.C. 102(b)(1)(A) is therefore not prior art under 35 U.S.C. 102(a)(1). This requires weighing the plausibility of declarant’s evidence and explanation of the nexus involved;
        (ii) An Affidavit or declaration such as under 37 CFR 1.132 by an expert comparing the claimed subject matter with the alleged prior art reference to address cases of anticipation or obviousness. This too requires weighing the declarant’s evidence and explanation of the level of skill in the art, the degree of similarity, the ability of a skilled artisan in the art to combine the teachings of the references, etc.

        In weighing the evidence, the factfinders must also consider the credibility and experience of declarants, including based on their CV. These factfindings are clearly not binary decisions on priority dates as Paul will have us believe.

        To put a quantitative indicator of the relative frequency with which such evidence is considered in patent applications compared to priority date matters, a pre-AIA study I once did showed that declarations under both Rules 130 and 132 were about 3.4 times more frequent than priority declarations under Rule 131.

        The standard of proof matter a lot even if the scope is limited to patents and publications.

        1. 8.2.4.1

          Of course, Ron, but I never said any such thing as IPR issues being limited to [rare] prior art filing date disputes.
          In any case, prior experience with unchallenged ex parte Rule 130 or 132 declarations [reviewed, if at all, only by an application examiner] is not relevant to inter partes IPRs, where declarations are cross examined, opposed, rebutted, and reviewed by APJs. Trying to “swear behind” cited prior art dates [in the few cases where the art has close enough dates that that is even possible] has failed in the few reported Fed. Cir. IPR appeal decisions because the APJs understand 102(g) and its case law requirements.

          1. 8.2.4.1.1

            Paul,
            With all due respect, in asserting that “prior experience with unchallenged ex parte Rule 130 or 132 declarations is not relevant to inter partes IPRs,” you myopically miss the point. Recall that the gist of your argument @ 8.2 was that the C&C standard vs the preponderance standard was largely irrelevant in considering patent and publications. My bringing up the examples in ex parte examination of applications was intended to show the prevalence of the factual issues that do arise in considering patents and publications as they involve the weight of the evidence rather than a binary decision. That prevalence is inherent to factual inquiries that arise with respect to published prior art regardless of whether they occur in application prosecution or in IPRs. So of course they are relevant.

            The weight of the evidence (in a continuum of perceived probability) is how factfinding takes place and the standard of proof is therefore highly consequential.

            1. 8.2.4.1.1.1

              F—k off, Ron, you self-interested entitled dissembling piece of rich white dog sh—-t. You’ve been whining forever about IPRs and “clear and convincing” won’t change squat.

              1. 8.2.4.1.1.1.1

                …white…?

                F off because you are white…?

                (Aside from other ISMs that apparently drive Malcolm’s emotional rant…)

    3. 8.3

      Wrong. They will just find/replace and copy/paste.

      We are persuaded by clear and convincing evidence that it would have been obvious to a person of ordinary skill to combine X and Y in view of Z.

      The clear and convincing evidence is a declaration written by lawyers and signed by a PhD paid thousands of dollars to tell lies.

  7. 7

    Re the IP Subcommittee of the House Judiciary Committee meeting Tuesday, the IPO NEWS reports that: “The witnesses agreed that making APJ decisions subject to plenary review by the USPTO Director was the fastest and most efficient way to resolve the issue.”
    [Something the Director can already do indirectly.]

    1. 7.1

      [Something the Director can already do indirectly.]

      Oh really?

      [Not.]

    2. 7.2

      Probably the way to fix this mess is to make the patent judges more independent and confirm them by the Senate. Change the rules to make it more like a DC hearing and change the standard to clear and convincing.

  8. 6

    Thank you Dennis. We are not patent trolls, we are genuine inventors. It was a true miracle I was able to fund a $20M litigation, get Michelle Lee fired, get Direct Iancu to reverse Joe Matal’s support for Tekebrands, get the lead APJ removed from my IPR, and build a high enough profile to preempt a Rule 36 affirmance at CAFC. Then I was fortunate that the infringer was not one of the trillion dollar corporations that stall a litigation for a decade while buying off Congress and appointimg their own judges and government officials.

    That is how the U.S. patent system works. It is 5% merit, 95% wealth and influence.

    Congress does not understand, they act like it would be a crisis if Google, Apple, and Samsung had to bring their invalidity challenges in a real court.

    I am volunteering for the hundreds of other inventors that only have little funds and zero political influence, and the hundreds of thousands geniuses that have no incentive or capital to innovate.

    In the letter you received we are not advocating to overhaul the PTAB. We want Congress to check into why the PTAB is so unfair rather than sweep the disaster under the rug.

    1. 6.1

      He’s a volunteer, folks!

      LOL

    2. 6.2

      There is no doubt that the proposed legislation has hooks in it that are made to further weaken patents.

    3. 6.3

      I think you are doing a great service to the country Josh.

      You know the National VC Association has done some work with lawyers and economists illustrating how the weakening of the patent system has changed investment funding.

      There are a lot of people out there that understand the innovation marketplace and understand how vital patents are to keeping it healthy.

      (Not sure why this patent blog is so anti-patent, but I suspect it is all about academia getting lots of money from SV.)

      1. 6.3.1

        [T]he National VC Association has done some work with lawyers and economists illustrating how the weakening of the patent system has changed investment funding.

        Regrettably, Mayo and IPRs arrived on the scene at about the same time. It is difficult, therefore, to tease out how much negative effect can be attributed to one and how much to the other. I am skeptical, however, that IPRs really deserve much vituperation.

        I cannot (yet) prove, this, but I expect that the VC’s legitimate concerns will all be resolved once Congress fixes §101. The invective presently aimed at IPRs will turn out to have been misguided.

        1. 6.3.1.1

          Mayo won’t be overturned without a blowback that’s will make thIs kerfuffle over IPRs look like a tiny anthill.

          Remember: IPRs currently don’t address the issue that Mayo addresses. They are restricted from doing so. That will change eventually, of course.

          1. 6.3.1.1.1

            “Blowback”…?

            Ooohhhh – I sense the approach of “internet tough guy” Malcolm.

    4. 6.4

      There are statistics that show that venture capital has shifted away from more risky long-term investments where patent protection cannot be obtained.

      1. 6.4.1

        More than just “statistics” – look at the past announcement of Cleveland Clinic.

    5. 6.5

      Thank you Josh, Randy, Paul, and US Inventor; for all you have and are doing.

      Thank. You.

      1. 6.5.1

        Ohhh, s-e-x-y bro love! Form a circle, boys! Yum.

  9. 5

    Re: “US Inventor argues that such an solution should be tied more generally to reform of the AIA Trial process.”
    What do they mean by “reform?” Where is there any such proposed or pending legislation? What genuine rational AIA trial process “reform” suggestions [versus kill all IPRs] have not already been PTO adopted [such as easier claim amendments, even less cases of more than one IPR against the same patent, more RPI discovery].
    Uncontrolled lengthy million dollar fishing expeditions discovery as in many D.C.s would destroy the Congressional intent of IPRs. Nor is that needed when the only issues in IPRs relate to only the Petitioner-identified prior publications or patents vs the claims. [I suspect the “reform” really desired by some would be to require all IPR APJs to be both technically and patent-law illiterate, like a carefully selected juror, instead of being patent attorneys?]

  10. 4

    “Destroyed the lives of many inventors”?

    LOLOLOLOL

    Rich Whitey is a real piece of work.

    1. 4.1

      “Whitey”….?

  11. 3

    Balloon Boy is off the chain!

    What a pack of cl 0wns.

    Also by pure coincidence, they are glibertarian Repu-k-k-ke types as well (Rich Whitey is an entitled bro, folks, and these guys are the p@-thetic epitome).

    1. 3.1

      Whitey….?

      Malcolm being Malcolm.

  12. 2

    No surprise there. The anti-IPR faction has been throwing every random brain-noodle against the wall for the last seven years, hoping to find one that sticks. Now that they have a single opinion with the words “IPR” and “unconstitutional” in the same paragraph, they are going to try to fling this noodle even more forcefully.

    For all that, however, they are wasting their time. For one thing, the constitutional argument here does not work. Getting rid of IPRs/PGRs does not actually resolve the constitutional problem. For another thing, IPRs are popular with the Congress as a whole, and popular with the regulated parties. There is, in other words, neither legal nor political reason to abolish them, notwithstanding the fever dreams of Mssrs. Landreneau & Malone.

    1. 2.1

      Right you are about throwing everything against the wall. And you are right that nothing will work. The money says IPRs are here to stay.

    2. 2.2

      Greg, that is not fair. We are citizens and inventors that followed the rules. Our inventions were reverse engineered by competitors. The PTAB called our patents obvious on the same or cumulative prior art considered by the examiner. Many survived reexamination and district court challenges.

      Don’t lump us in with the anti-IPR crowd. We just want due process with a neutral and competent judge.

      Most of our patents are not “defective” We hired many qualified attorneys and spent hundreds of hours writing claims to accurately define our inventions. The examiner considered all the prior art that was material. Any new art brought in the IPR was cumulative to what was on the patent, and certainly was not a surprise to us or the examiner. We didn’t patent prior art, we patented inventions.

      I am talking about 30-40% of the IPRs filed against genuine inventors with reasonably well drafted patents on real inventions.

      I lived through the nightmare and I can tell you there is no certainty of any patent getting through the PTAB. We have no path to getting a reliable patent.

      They are not our noodles, they are every element of this misguided system for having the USPTO “correct its own mistakes” after issuance. It is working as well as if the PGA passed a mulligan rule that allowed sponsors to decide which players’ shots were mistakes and warranted a do-over.

      1. 2.2.1

        Sure Josh. I agree with you.

        I think, though, that the point is that so much of what is being said is simply not going to work against IPRs.

        I think your post makes it clear that IPR reform may be the answer.

        The real problem is 103 where the Scotus has basically said anything is obvious if the fact finder feels like holding that it is obvious.

        In my opinion, the IPR system will never go away because the district courts just can’t deal with so many patent cases. You know this is not isolated to patents. The criminal attorneys say that we have completely broken system where it is almost impossible for someone accused of a federal crime to get a fair trial unless they have $30 million dollars. And that what is driving this is the federal courts don’t have the capacity so they force plea deals with Congress and the Scotus adding misery just like they have in the patent world.

        I think the solution is to figure out how to make the IPRs a fair forum for patent holders.

      2. 2.2.2

        Greg, that is not fair… Don’t lump us in with the anti-IPR crowd.

        Sorry, who are the “anti-IPR crowd” if not the folks sending around an e-mail that describes the AIA as “the bill that Congress was so mislead on and that created the patent killing PTAB!”? I do not see the “unfair” characterization here. What am I missing?

        1. 2.2.2.1

          I agree with Greg.

          Further, there is nothing wrong in being among the anti-IPR crowd.

          This is NOT to say that members of the anti-IPR crowd are somehow against improper patents. This IS to say that the mechanism of Post Grant review as being against improper patents is fraught with ill-developed and quite frankly a weakening of innovation protection far beyond ANY “quality” promised by that system.

        2. 2.2.2.2

          Are you serious? We are anti-rigged-IPR including the 270 hack lawyers hired to make up reasons to invalidate our patents. If we were getting fair outcomes we wouldn’t be complaining, and I wouldn’t be sending out letters and arguing with patent lawyers on blogs.

          You do know my story right? Do you think my patents were defective and it was reasonable what the PTAB did to me? Look, I spent hundreds of hours working with very skilled practitioners and first class examiners to prosecute my patents. Others have been through multiple reexaminations, district court, and even the Federal Circuit. There is no patent that is safe from the PTAB. And it has nothing to do with overlooked prior art.

          If IPR worked like it does in other countries there would be no noodle-throwing, no newsletters from inventors, and no patent burnings. Have you seen the documentary? We are not making this up, we lived it. It was terrifying for me and devastating for almost every other entrepreneur that has been through it.

          Where is all the outrage is coming from? You think we are sore losers that really want to assert bad patents? You need to put yourself in our shoes. We take enormous risks, invest millions of dollars and tens of thousands of hours, endure years of failed products and businesses, and finally achieve a commercially viable solution to a problem. Then idiot judges from the USPTO misinterpret our claims, accuse us of patenting something obvious, take away our rights, and wipe out liability for a competitor who stole our invention.

          It is extremely unfair to label this anti-IPR. If IPR were fair we would not have any complaints, and I would not be sending newsletters to bloggers.

          1. 2.2.2.2.1

            The odd thing Josh is that you are wrong in saying “ It is extremely unfair to label this anti-IPR.

            It is eminently fair.

            It is also eminently justified.

            Greg’s implicit spin is that it is UNfair to be critical of IPRs.

            It is THIS position that is “unfair,” as there is no doubt that the IPR regime (as constructed and as applied) is riddled with problems and was over-sold as a “quality” checkpoint, while having ZERO actual quality aspect where quality is actually needed (at the front end of examination quality).

            ALL granted patents (and not just poorly examined ones) are impacted with the (disconnected) and “out of the barn” Post Grant assault on personal property rights.

            It is more than just a little disingenuous to ONLY look at whether a revoked patent is one that should not have been granted after the fact (and after well-monied interests take a shot at scouring for prior art).

            There is more than a little “sleight of hand” going on with selling “but this gets rid of bad patents.”

            There is a dynamic of leverage of non-competition factors (that is, established entities with far larger bankrolls are the ones who CAN benefit MORE from spending more in a post-grant mechanism).

            Sure, the particular Ends here certainly sound good and no one can really argue with the Ends in and of itself (as those Ends are being sold).

            But — as usual — the Ends are NOT the entire story (no matter how much the cheerleaders like Paul and Greg would like them to be).

            There simply is nothing wrong with being anti-IPR.

            Being anti-IPR is NOT the same as being Pro-bad-patent.

            1. 2.2.2.2.1.1

              … to draw the parallel to criminal law, being anti-IPR is as much being pro-bad patent as being “innocent until proven guilty” is being pro-criminal.

  13. 1

    >>One of the witnesses they will listen to was actually a key person behind the passage of the America Invents Act, the bill that Congress was so mislead on and that created the patent killing PTAB!

    We do know that some of the people that got the AIA passed have been making many millions from doing so, e.g., Lemley.

    What we should require is full disclosure of money sources for anyone testifying so we know who/what entity is actually being represented and stop this pretend nonsense that any of these people are academics.

    1. 1.1

      We should also require more disclosures about post government position income. Is Lee being paid off by SV for services while at the PTO? I don’t know. We should have the right to know.

      1. 1.1.1

        This is a good point. All former executive appointees should be obliged to file income source disclosures for five years after they leave the government. As you say, we should be entitled to know if an appointee’s work in office might appear—in hindsight—tainted by conflicts of interest.

        1. 1.1.1.1

          Talk about credulousness.

          Night Wiper spent years here complaining about “Obama judges”. If you think Wiper cares about oversight of Rep-u-k-k-k-es who are making his wallet fatter, then I have a bridge to sell you.

        2. 1.1.1.2

          “This is a good point. All former executive appointees should be obliged to file income source disclosures for five years after they leave the government. As you say, we should be entitled to know if an appointee’s work in office might appear—in hindsight—tainted by conflicts of interest.”

          Spoiler: They are.

          1. 1.1.1.2.1

            Thanks. I learn something every day. Where does one look up this info?

            1. 1.1.1.2.1.1

              Go to their house.

    2. 1.2

      Remember when Night Wiper used to obsess over “O-b-a-m-a judges”?

      He’s a very serious person.

      1. 1.2.1

        …as opposed to YOUR 0bsess10ns….?

        Oh, how Trump of you, Malcolm.

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