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Patent Reform Needs Reform

Joseph Fjelstad
10/16/2017 00:01 AM EDT

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lakehermit
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Re: USPTO PTAB Abuses
lakehermit   10/18/2017 1:39:22 PM
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"The largest corporations in America used the original patent system as a ladder to climb to their present success. With the AIA's reforms, they have now substantially pulled that ladder up behind them to assure that young upstart individuals and companies cannot use patents for future successes of their own." That is an excellent (but overly polite) description of what is going on. In my view corruption of the USPTO aimed directly at pulling that ladder appears to have been created by the AIA. For example, the immediately past Director of the USPTO, Michelle Lee, was stacking the PTAB panels with Judges she knew would vote the way she wanted in a practice referred to as "reconfigure the panel so as to get the result you want": "The case where this nearly unbelievable admission was made during oral argument was Yissum Research Development Co. v. Sony Corp. (Fed. Cir. 2015). The pertinent part of the oral argument, which 717 has conveniently provided here, reads as follows: USPTO: And, there's really only one outlier decision, the SkyHawke decision, and there are over twenty decisions involving joinder where the – Judge Taranto:  And, anytime there has been a seeming other-outlier you've engaged the power to reconfigure the panel so as to get the result you want? USPTO: Yes, your Honor. Judge Taranto:  And, you don't see a problem with that? USPTO: Your Honor, the Director is trying to ensure that her policy position is being enforced by the panels. Judge Taranto:  The Director is not given adjudicatory authority, right, under § 6 of the statute that gives it to the Board? USPTO: Right. To clarify, the Director is a member of the Board.  But, your Honor is correct – Judge Taranto: But after the panel is chosen, I'm not sure I see the authority there to engage in case specific re-adjudication from the Director after the panel has been selected. USPTO: That's correct, once the panel has been set, it has the adjudicatory authority and the – Judge Taranto:  Until, in your view, it's reset by adding a few members who will come out the other way? USPTO: That's correct, your Honor.  We believe that's what Alappat holds." And: "The USPTO also made a similar, although not so direct, admission during oral argument in Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., which was decided by the Federal Circuit on Tuesday, August 22, 2017. In his concurring opinion Judge Dyk (joined by Judge Wallach) mentioned concern with the USPTO stacking PTAB panels, but said the Court did not need to reach the issue. "While we recognize the importance of achieving uniformity in PTO decisions, we question whether the practice of expanding panels where the PTO is dissatisfied with a panel's earlier decision is the appropriate mechanism of achieving the desired uniformity," Dyk wrote." Second and third quotes above from http://www.ipwatchdog.com/2017/08/23/uspto-admits-stacking-ptab-panels-achieve-desired-outcomes/id=87206/  Further, there is no code of conduct for PTAB judges and it has been discovered that PTAB judges sit on post grant reviews where their former clients are petitioners. "Indeed, we have found yet another example of a situation where an PTAB judge has issued a decision and is participating in post grant administrative proceedings as a judge in a case where a former client is the petitioner." From http://www.ipwatchdog.com/2017/05/07/more-conflicts-interest-surface-second-ptab-judge/id=83012/ The above IP Watchdog articles (and many others) should be required reading for anyone concerned with abusive practices in the USPTO which stem from the AIA act. With all of the investigations Congress does, I'm surprised that these abuses haven't already been investigated.    

Inventor001
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Re: PTAB
Inventor001   10/17/2017 2:31:22 PM
I share your impressions that big companies file for patents on just about everything. They often have wheelbarrels full of patents in their arsenal to beat back small entities.   I once gave a bridged presentation to multiple sites of a very big company describing my company's technology and its advantages. A voice from the distance came through the speaker system in the ceiling saying that the company already had a patent on such a concept. I said "That's great because I don't need to convince you it is a good idea" and I asked for the patent number and the names of the inventor(s) so I could reference the art in the future. I was met with silence. In doing some digging after I found nothing, until about 2 years later when I came upon a patent application publication which was filed by the company after my presentation and had the names of a couple of people, whose business cards I held in my hands. Could it have been mere coincidence? Perhaps. Steve Jobs was famous for quoting Picasso's "Good artists copy, great artists steal" comment and it became a montra of sorts in the industry but I suppose Bill Gates put the hand writing on the wall best with his "Life is not fair, get used to it" comment. He was right and today he is also a multi-billionaire who company made great use of the old patent system on its road to success. Life is definitely less fair for the small entity and in my humble opinion, even less fair in the present environement.     

Inventor001
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Hidden patent sales
Inventor001   10/17/2017 2:00:28 PM
NO RATINGS
Thanks for your comments and observations, especailly your closing observation. You are right that is would be very difficult to tease out what happens privately and/or under NDA.

windhorn
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Re: PTAB
windhorn   10/17/2017 11:19:47 AM
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Well, petition for ex parte review is only $500, which doesn't sound too onerous.  Inter partes review is more at $9000, still not too bad. Since IANAL, I'm not altogether sure what the differenc is, but I think it was ex parte that I was talking about.  I believe you can submit supporting prior art online without any fee.

Battar
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Re: PTAB
Battar   10/17/2017 10:38:08 AM
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First, PTAB proceedings are not affordable for the independent or small inventor, unless your invention concerns a machine for printing money or weighting roulette wheels. Second, regarding that 80% figure, that has to be taken in the context that before you begin the proceedings you set up the target patent within easy range and take careful aim, so you would expect that figure to be even higher. Only a fool would take a hopeless case to appeal.  The article also ignores the fact that appealing a patent is often a last resort. Cheaper and quicker to simply buy out the inventor or invention (but these deals are private so there are no statistics on them).

me3
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Re: PTAB
me3   10/16/2017 1:01:37 PM
NO RATINGS
PTAB is cheaper, but is it affordable by a small inventor?  Anyway, PTAB is a government appointed junta. And the government is supported by financial contributions from the big companies. The same lot of companies that sent millions of jobs overseas and importing hundreds of thousands of endentured tech workers each year to flood the US job market. Would you think the junta would be fair to a Joe the inventor when potentially hundre million dollars of damage is at stake?  

me3
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The gutting of US innovation
me3   10/16/2017 12:43:25 PM
NO RATINGS
AIA and related "reforms" are driven by large companies in order to eliminate potential competition. A large company employing hundreds of Ph.Ds would naturally resist a small start up, regardless how good its technology is.  Engineers hate patents like cowboys hate fences, because patents limit what they can do. These people typically have very little understanding or respect for the US patent system. Many otherwise decent people would engage in activities that trespass on the properties of the small guys in order to get some sort of reward. The word "theft" never crosses their mind. The USPTO also increased the cost of patent application and prosecution by small entities. It cleverly tried to cover its deeds by creating a micro entity catagory that few serious challengers to big companies can qualify.   The US patent system was the driving force of US innovation. Without it, a big company has no reason whatsoever to listen to the pitch of a small start up. That is what happens in Japan, Europe, and Korea. Under the watch of a European socialist president, the bi-partisan gutting of the US innovation environment is complete. America is no longer exceptional, and small guys are screwed like everywhere else.

a.windhorn
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PTAB
a.windhorn   10/16/2017 12:36:01 PM
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"Since the new process started, nearly 80% of patents reviewed have been invalidated, according to one source. The PTAB is effectively becoming a rubber stamp for deep pocketed IPR petitioners." Yes, but I would like to hear whose patents are being invalidated, and who is doing the petitioning.  The way I understand how it works, the big companies file for a patent on everything, legitimate or not, and rely on the expense of a court battle to keep from being challanged.  The PTAB lets the small inventor have a channel to get these weak or obvious patents off the system without the expense of going to law.  In software patents at least, there is a consortium of developers that are actively hunting down illegitimate patents awarded to patent trolls and large companies, and filing requests for review.  This may be where the 80% invalidation rate comes from.  Let's have more data about this.  

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