15 thoughts on “CBM Sunsetting

  1. 7

    As many had predicted, CBM went out with a whimper, not a bang. You didn’t see a huge rush of CBM filings, nothing like what occurred right before inter partes reexamination disappeared and was replaced with IPR in September 2012.

    Biggest reason you didn’t see a spike in filings is that a petitioner has no standing to file CBM unless the petitioner was “sued or charged” with infringement of the challenged patents, and for the most part, owners of CBM-eligible patents stopped suing and/or threatening suit on those patents years ago. This was largely because of two related issues, CBM and the ability to raise 101 issues in CBM, which together served as an effective scarecrow against assertion of these financial services patents by many patent owners. As a result, a lot of these patents sat dormant during the life of the CBM program.

    With CBM no longer an option, maybe you’ll start seeing some of these “financial services” being asserted again, provided that the banks don’t succeed in their recent push to ask Congress to extend the CBM program.

  2. 6

    Of course the worst thing about the CBM is that it tried to back door the standard of technical character as part of eligibility.

  3. 5

    Greg, the PTO statistics I just looked at show less than 550 CBMs filed in total, any only 17 in the last year shown.

    1. 5.1

      How embarrassing. You are quite right. I was reading the “all time” stats as if they were the “per year” stats. In any event, this only bolsters the point that the sunsetting of CBMs will hardly be noticed. There is not much use being made of them anymore, anyway.

      1. 5.1.1

        Greg,

        Your “not engage with those that offend me” tactics have developed — for you — FAR more embarrassing positions than merely expounding on a low level and ‘not worth it’ error only view of total versus actual. Several times of late, you have provided items that purport to support your narrative when in fact they support the opposite of your views.

        A grossly different type of error.

        Sure, one may choose to use their ‘real name’ for a variety of reasons, including ‘borrowed authority,’ or some attempt at imprimatur of legitimacy, but your use continues to have the opposite effects.

        Your ‘more polite’ friends would be doing you a favor in letting you know this.

        1. 5.1.1.1

          I think anon you should work on being more polite.

          I think you are used to MM, which required harsh treatment to keep him in check.

          1. 5.1.1.1.1

            Politeness is over-rated.

            I am more than perfectly fine with factual interchanges. Try to remember that ‘poor’ Greg engages in every bit as being impolite.

            I really did not have a problem with it, because I have always had the better legal positions. It is THAT that he cannot handle.

      2. 5.1.2

        The interesting question is WHY were CBMs so little used? Three I can think of are: (1) the ease of raising 101 issues just as cheaply in early 12(b)(6) pre-trial motions; and (2) The Fed. Cir. decisions that narrowed the scope of what kind of alleged “business method” claims could be raised in a CBM: and (3) apparent preferences for using IPRs instead, for patent and publication prior art, especially if the subject claim jurisdictions for an CBM might be disputed.
        Any thoughts on this by anyone else?

        1. 5.1.2.1

          For whatever little my opinion is worth, I credit #1 & #3, but not #2. I do not think that the CAFC’s interpretation of “business method” for CBM jurisdiction is any different than what a well-informed lawyer would have taken the words to mean when the AIA was signed.

          1. 5.1.2.1.1

            I agree Greg.

  4. 4

    The USPTO has been receiving ~550 CBM petitions per year for the last several years—scarcely any, in other words. Realistically, their absence will hardly be missed.

  5. 3

    With so many attorneys waiting for the last minute to file, EFS will crash.

    Then they will have to print everything out and file on paper. (What is the postage for a post card nowadays anyway?)

    Then they will run to the Post Office at the airport to discover that the Post Office, which used to be open until midnight, closed at 6 PM.

    Then the LA and SF attorneys will charter a flight to Hawaii to discover that they have to sit in quarantine for two weeks before they will be allowed to go to a Post Office there.

    Oops.

  6. 2

    It will be a procrastinator test for those patent attorneys who regularly file papers in the PTO on the last possible day.

  7. 1

    All bad things must come to an end.

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