Bonum Certa Men Certa

Nationality and Sovereignty in AIA Era: Patent Trial and Appeal Board (PTAB) Under Siege From Patent 'Activists'

'Activists' as in greedy and mischievous law firms, whose reckless actions damage the image of the US patent system

Wanted poster



Summary: The gunslingers that shoot from the hip at tribunals which assess patent quality don't quite seem to understand what the outside world thinks of them; aggressiveness against the government itself merely reinforces the belief that they -- the law firms -- are the outlaws or the people's (not just the state's) enemy

THE USPTO must obey or at least respect rulings from the Supreme Court (SCOTUS). Otherwise it might grant patents in error, only to be 'reprimanded' (or at least embarrassed) by judges years down the line. The America Invents Act (AIA), introducing the Patent Trial and Appeal Board (PTAB), helps assure that the USPTO more or less complies with SCOTUS, e.g. on ۤ 101. It intervenes before and after patent grants, often thwarting application grants or voiding them after the grant.



AIA has been good, but it's no good for law firms that are accustomed to lengthy (hence expensive) legal battles.

'Activist' law firms have decided to do something about it, even if they're opposed by Federal courts and politicians, who generally accuse these firms of "shams", "scams" and so on. Even the Federal Circuit got involved. The patent "scam" of Allergan and Mohawk Tribe is one such example; it is a threat to the very core of the patent system. The lawyers behind this "scam" are threatening me because they don't like the negative publicity. Yesterday Bloomberg had this article by Susan Decker, who wrote the following:

Technology companies, banks and insurers say that allowing drugmaker Allergan Plc to use an American Indian tribe’s sovereign immunity to avoid competition from generics could undercut a system to weed out bad patents.

Industry groups filed arguments with the U.S. Court of Appeals for the Federal Circuit in Washington ahead of oral arguments Monday. The court is considering whether patents for the company’s blockbuster dry-eye drug Restasis can still be challenged despite being transferred to a tribe that claims sovereign immunity.

“If Allergan’s ‘rent-a-tribe’ strategy is ultimately successful, it could doom the entire” review process, said Brad Wright, a patent lawyer with Banner & Witcoff in Washington. “Patent owners of all types -- not just pharmaceutical companies -- would be able to circumvent the process by asserting sovereign immunity.”

[...]

The Mohawk tribe has since reached a similar agreement with another company, SRC LLC, and together they sued Amazon.com Inc. and Microsoft over patents for high-speed computing. Apple Inc. was sued over a patent owned by three North Dakota tribes, though the case was settled.

The goal is to avoid a review of issued patents before the patent board, which has an easier legal standard to cancel issued patents and is a favorite among tech and financial companies. The U.S. Supreme Court in April rejected claims the administrative reviews were unconstitutional.


Don't expect these "scams" to last. Thus far (and it has been going on for about a year) they lose at every turn. On their side they mostly have dishonest law firms and patent maximalists such as Watchtroll. The concept of covered business method review (CBM) -- a part of the America Invents Act (AIA) -- was recalled/mentioned by Dennis Crouch the other day in relation to patent maximalists who want to sue even their own government for patent infringement. In one instance they want the government to stay out of their business and here they suddenly care so much about the government? To quote:

The America Invents Act (AIA) allows for a “person” to file a covered business method review (CBM) to challenge an issued patent. See AIA Section 18 (because they it is a temporary program, the CBM provisions have not been codified in the United States Code).

[...]

The setup here is fairly limited because it is only focused on governmental use, but it is the type of questions likely to receive interest from the Supreme Court. In its decision in the case, the Federal Circuit ruled (over a dissent) that a Section 1498 action counts as an infringement lawsuit for the purposes of the AIA and that the U.S. Government counts as a “person” under the statute — writing that “The AIA does not appear to use the term ‘person’ to exclude the government in other provisions.”


As usual, Crouch hopes to solicit patent maximalists' input for SCOTUS (and lawyers make money from any litigation, so why cares about laws anyway?). What these people don't care to realise is that the reckless behaviour (as above) merely serves to discredit the patent system as a whole. They don't want to play by the rules and in the process they just smash the underlying system (as happened at the EPO).

Recent Techrights' Posts

Free Software Foundation Subpoenaed by Serial GPL Infringers
These attacks on software freedom are subsidised by serial GPL infringers
Publicly Posting in Social Control Media About Oneself Makes It Public Information
sheer hypocrisy on privacy is evident in the Debian mailing lists
Frans Pop suicide and Ubuntu grievances
Reprinted with permission from disguised.work
Workers' Right to Disconnect Won't Matter If Such a Right Isn't Properly Enforced
I was always "on-call" and my main role or function was being "on-call" in case of incidents
A Discussion About Suicides in Science and Technology (Including Debian and the European Patent Office)
In Debian, there is a long history of deaths, suicides, and mysterious disappearances
Federal News Network is Corrupt, It Runs Propaganda Pieces for Microsoft
Federal News Network used to be OK some years ago
 
Paul Tagliamonte & Debian: White House, Pentagon, USDS and anti-RMS mob ringleader
Reprinted with permission from disguised.work
Jacob Appelbaum character assassination was pushed from the White House
Reprinted with permission from disguised.work
Why We Revisit the Jacob Appelbaum Story (Demonised and Punished Behind the Scenes by Pentagon Contractor Inside Debian)
If people who got raped are reporting to Twitter instead of reporting to cops, then there's something deeply flawed
Red Hat's Official Web Site is Promoting Microsoft
we're seeing similar things at Canonical's Ubuntu.com
Enrico Zini & Debian: falsified harassment claims
Reprinted with permission from disguised.work
European Parliament Elections 2024: Daniel Pocock Running as an Independent Candidate
I became aware that Daniel Pocock had decided to enter politics
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 30, 2024
IRC logs for Tuesday, April 30, 2024
[Meme] Sometimes Torvalds and RMS Agree on Things
hype around chatbots
[Video] Linus Torvalds on 'Hilarious' AI Hype: "I Hate the Hype" and "I Don't Want to be Part of the Hype", "You Need to Be a Bit Cynical About This Whole Hype Cycle"
Linus Torvalds on LLMs
Colin Watson, Steve McIntyre & Debian, Ubuntu cover-up mission after Frans Pop suicide
Reprinted with permission from disguised.work
Links 30/04/2024: Wireless Carriers Selling Customer Location Data, Facebook Posts Causing Trouble
Links for the day
Links 30/04/2024: More Google Layoffs (Wide-Ranging)
Links for the day
Fresh Rumours of Impending Mass Layoffs at IBM Red Hat
"IBM filed a W.A.R.N with the state of North Carolina. That only means one thing."
Mark Shuttleworth's (MS's) Canonical is Promoting Microsoft This Week (Surveillance Slanted as 'Confidential')
Who runs Canonical these days? Why does Canonical help sell Windows?
What Mark Shuttleworth and Canonical Can to Remedy the Damage Done to Frans Pop's Family
Mr. Shuttleworth and Canonical as a company can at the very least apologise for putting undue pressure
Amnesty International & Debian Day suicides comparison
Reprinted with permission from disguised.work
[Meme] A Way to Get No Real Work Done
Walter White looking at phone: Your changes could not be saved to device
Modern Measures of 'Productivity' Boil Down to Time Wasting and Misguided Measurements/Yardsticks
People are forgetting the value of nature and other human beings
Countries That Beat the United States at RSF's World Press Freedom Index (After US Plunged Some More)
The United States (US) was 17 when these rankings started in 2002
Record Productivity and Preserving People's Past on the Net
We're very productive these days, partly owing to online news slowing down (less time spent on curating Daily Links)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, April 29, 2024
IRC logs for Monday, April 29, 2024
Links 30/04/2024: Malaysian and Russian Governments Crack Down on Journalists
Links for the day
Frans Pop Debian Day suicide, Ubuntu, Google and the DEP-5 machine-readable copyright file
Reprinted with permission from disguised.work
Axel Beckert (ETH Zurich), the mentality of sexual violence on campus
Reprinted with permission from Daniel Pocock
[Meme] Russian Reversal
Mark Shuttleworth: In Soviet Russia's spacecraft... Man exploits peasants
Frans Pop & Debian suicide denial
Reprinted with permission from disguised.work
Hard Evidence Reinforces Suspicion That Mark Shuttleworth May Have Worked Volunteers to Death
Today we start re-publishing articles that contain unaltered E-mails
The Real Threats to Society Include Software Patents and the Corporations That Promote Them
The OIN issue isn't a new one and many recognise this by now
Links 30/04/2024: OpenBSD and Enterprise Cloaking Device
Links for the day
Microsoft Still Owes Over 100 Billion Dollars and It Cannot be Paid Back Using 'Goodwill'
Meanwhile, Microsoft's cash at hand (in the bank) nearly halved in the past year.
[Teaser] Ubuntu Cover-up After Death
Attack the messenger
The Cyber Show Explains What CCTV is About
CCTV does not typically resolve crime
[Video] Ignore Buzzwords and Pay Attention to Attacks on Software Developers
AI in the Machine Learning sense is nothing new
Outline of Themes to Cover in the Coming Weeks
We're accelerating coverage and increasing focus on suppressed topics
[Video] Not Everyone Claiming to Protect the Vulnerable is Being Honest
"Diversity" bursaries aren't always what they seem to be
[Video] Enshittification of the Media, of the Web, and of Computing in General
It manifests itself in altered conditions and expectations
[Meme] Write Code 100% of the Time
IBM: Produce code for us till we buy the community... And never use "bad words" like "master" and "slave" (pioneered by IBM itself in the computing context)
[Video] How Much Will It Take for Most People to Realise "Open Source" Became Just Openwashing (Proprietary Giants Exploiting Cost-Free or Unpaid 'Human Resources')?
turning "Open Source" into proprietary software
Freedom of Speech... Let's Ban All Software Freedom Speeches?
There's a moral panic over people trying to actually control their computing
Richard Stallman's Talk in Spain Canceled (at Short Notice)
So it seems to have been canceled very fast
Links 29/04/2024: "AI" Hype Deflated, Economies Slow Down Further
Links for the day
Gemini Links 29/04/2024: Gopher Experiment and Profectus Alpha 0.9
Links for the day
[Video] Why Microsoft is by Far the Biggest Foe of Computer Security (Clue: It Profits From Security Failings)
Microsoft is infiltrating policy-making bodies, ensuring real security is never pursued
Debian 'Cabal' (via SPI) Tried to Silence or 'Cancel' Daniel Pocock at DNS Level. It Didn't Work. It Backfired as the Material Received Even More Visibility.
know the truth about modern slavery
Lucas Nussbaum & Debian attempted exploit of OVH Hosting insider
Reprinted with permission from disguised.work
Software in the Public Interest (SPI) is Not a Friend of Freedom
We'll shortly reproduce two older articles from disguised.work
Harassment Against My Wife Continues
Drug addict versus family of Techrights authors
Syria, John Lennon & Debian WIPO panel appointed
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 28, 2024
IRC logs for Sunday, April 28, 2024
[Video] GNU and Linux Everywhere (Except by Name)
In a sense, Linux already has over 50% of the world's "OS" market