The PTAB is a thoroughly broken tribunal incapable of being fixed

By Gene Quinn
February 23, 2017

Pinocchio scales justiceIf doubt remained that the PTAB is a thoroughly broken tribunal incapable of redemption or fixing that doubt has to now be completely erased.  Last week the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office (USPTO) continued on a path that can only be described as the concerted harassment of Trading Technologies International, Inc. How much longer do we need to suffer the indignity of this rogue tribunal?

Trading Technology International owns patents on various graphical user interfaces. These patents have been subject to repeated covered business method (CBM) challenge at the PTAB despite the fact that graphic user interfaces are not business methods and they present a technological solution to a technological problem. Indeed, these same TTI innovations have been patented in Europe where there is an absolute prohibition against business methods; having been patented because they represent a technological innovation.

According to Section 18 of the America Invents Act (AIA), the USPTO may institute a covered business method patent challenge to review method claims for performing data processing or other operations used in the practice, administration, or management of a financial product or service. Specifically excluded from the definition of covered business method patents are those that relate to technological inventions. See 37 C.F.R. 42.301(a). To determine whether a patent is for a technological invention the PTAB is supposed to consider whether the claimed subject matter recites a technological feature that is novel and unobvious over the prior art; and solves a technical problem using a technical solution. See 37 C.F.R. 42.301(b).

The legislative history confirms that the entire point of CBM review was to provide an extraordinary post-grant review proceeding for business method patents because Congress believed that the USPTO was ill equipped to examine this type of patent application in the late 1990s and early 2000s. Every example of a CBM provided in the legislative history claims at some level a business method or data processing technique. Moreover, the legislative history specifically states in unequivocal terms that patents claiming GUIs for trading, as opposed to patents claiming a trading strategy, are not CBMs. In particular, the bill’s sponsor Senator Chuck Schumer (D-NY) agreed with Senator Dick Durbin (D-IL) that a patent claiming, “software tools and graphical user interfaces that have been widely commercialized and used within the electronic trading industry to implement trading and asset allocation strategies” was not a CBM.

Notwithstanding, multiple TTI graphical user interface patents were instituted for CBM review by the PTAB. Presumptive USPTO Director Michelle Lee has been asked to use her power — a power the Patent Office specifically and correctly acknowledges was given to the Office in the America Invents Act — to step in and put an end to this harassment at the hands of multiple petitioners and a complicit PTAB. Lee has refused. In fact, Lee has not stepped in to exercise her power to save patent owners from harassment despite the fact that certain patent owners find themselves hauled into multiple post grant challenges for each patent they own.

In any event, on January 18, 2017, the Federal Circuit determined that the claims of two TTI graphical user interface patents — U.S. Patents No. 6,772,132 (“the ’132 patent”) and No. 6,766,304 (“the ’304 patent”) — consisted of patent eligible subject matter. This is relevant because the PTAB had previously instituted a CBM review of the ‘304 patent. To the credit of the majority of the PTAB panel considering the ‘304 patent in CBM2015-00161, once the Federal Circuit issued its decision the CBM proceeding against the ‘304 patent was terminated. That, however, is the end of where logic prevails. The remainder of the story shows just how utterly broken, ideologically driven and incapable of redemption the PTAB has become.

One Administrative Patent Judge — Judge Meredith Petravick — dissented. See CBM2015-0016 Final Written Decision. Petravick said it was inappropriate for the PTAB to terminate the ‘304 patent CBM because the parties were different when compared to the Federal Circuit case. Petravick said that the review should be limited to the record of the ‘304 patent and not consider extraneous, out of record matters such as a Federal Circuit determination that the very same claims are, in fact, patent eligible. Petravick dissented saying that he would find the claims to the graphical user interface just found patent eligible by the Federal Circuit to be patent ineligible.

According to logic employed by Judge Petravick (if you can call it that) a ruling as a matter of law that claims are patent eligible is of absolutely no consequence and patent owners must necessarily obtain a favorable patent eligibility ruling against each and every challenger in each and every case or challenge. Absurd! For those who are not ideologically driven to destroy issued patents at all costs and at every opportunity, the two-step Alice/Mayo framework analysis obviously shouldn’t change from case to case when considering the same claims. Furthermore, whether Petravick likes it or not the PTAB is an administrative tribunal subordinate to the Federal Circuit.

The ridiculous dissent of Petravick isn’t the end of the story. On the same day the PTAB terminated the CBM on the ‘304 patent the same panel of PTAB judges issued a final written decision finding the claims of another Technology Trading International graphical user interface patent to be patent ineligible. In CBM 2015-00179, which challenged the claims of U.S. Patent No. 7,533,056, Administrative Patent Judges Sally Medly, Meredith Petravick and Jeremy Plenzler all ruled that claims that are substantively indistinguishable from those of the ‘304 patent are all patent ineligible. See CBM2015-00179 Final Written Decision. But don’t take my word for it, look at the claims yourself and confirm just how substantively similar they are.

Claim 1 of the ’056 patent reads:

A method of operation used by a computer for displaying transactional information and facilitating trading in a system where orders comprise a bid type or an offer type, the method comprising:

receiving bid and offer information for a product from an electronic exchange, the bid and offer information indicating a plurality of bid orders and a plurality of offer orders for the product;

displaying a plurality of bid indicators representing quantity associated with the plurality of bid orders, the plurality of bid indicators being displayed at locations corresponding to prices of the plurality of bid orders along a price axis;

displaying a plurality of offer indicators representing quantity associated with the plurality of offer orders, the plurality of offer indicators being displayed at locations corresponding to prices of the plurality of offer orders along the price axis;

receiving a user input indicating a default quantity to be used to determine a quantity for each of a plurality of orders to be placed by the user at one or more price levels;

receiving a user input indicating a desired price for an order to be placed by the user, the desired price being specified by selection of one of a plurality of locations corresponding to price levels along the price axis; and

sending the order for the default quantity at the desired price to the electronic exchange.

Claim 1 of the ‘304 patent was also pointed to as illustrative in the CBM institution decision by the PTAB. Claim 1 of the ‘304 patent reads:

A method for displaying market information relating to and facilitating trading of a commodity being traded in an electronic exchange having an inside market with a highest bid price and a lowest ask price on a graphical user interface, the method comprising;

dynamically displaying a first indicator in one of a plurality of locations in a bid display region, each location in the bid display region corresponding to a price level along a common static price axis, the first indicator representing quantity associated with at least one order to buy the commodity at the highest bid price currently available in the market;

dynamically displaying a second indicator in one of a plurality of locations in an ask display region, each location in the ask display region corresponding to a price level along the common static price axis, the second indicator representing quantity associated with at least one order to sell the commodity at the lowest ask price currently available in the market;

displaying the bid and ask display regions in relation to fixed price levels positioned along the common static price axis such that when the inside market changes, the price levels along the common static price axis do not move and at least one of the first and second indicators moves in the bid or ask display regions relative to the common static price axis;

displaying an order entry region comprising a plurality of locations for receiving commands to send trade orders, each location corresponding to a price level along the common static price axis; and

in response to a selection of a particular location of the order entry region by a single action of a user input device, setting a plurality of parameters for a trade order relating to the commodity and sending the trade order to the electronic exchange.

The PTAB determined that the ‘056 patent claims an abstract idea, but both the United States District Court for the Northern District of Illinois and the Federal Circuit determined that the ‘304 patent claims did NOT claim an abstract idea.

The PTAB determined that the ‘056 patent claims “do not add significantly more to the abstract idea or fundamental economic practice.” Again, both the United States District Court for the Northern District of Illinois and the Federal Circuit determined that even assuming the claims covered an abstract idea the ‘304 patent claims did recite an inventive concept that added significantly more.

How is it possible that the claims of the ‘304 patent are patent eligible but the claims of the ‘056 patent are patent ineligible? It is this kind of arbitrary and capricious ruling that is becoming the trademark of the PTAB, and demonstrative of the subjective nature of the Alice/Mayo framework. The PTAB does not like patents so they see everything as abstract and not contributing substantially more. It is impossible to argue with their logic because there is no logic. It is all subjective rhetoric masquerading as an objective test with some concrete meaning.

This is not a matter of the PTAB applying the broadest reasonable interpretation (BRI) and the federal courts applying the Philips standard. The question of whether a claim is patent eligible is a question of law. Thus, this is a matter where the PTAB, an Article II tribunal made up of appointed Administrative Patent Judges who are not even Administrative Law Judges, is doing whatever they want and ignoring Article III tribunals; including an Article III tribunal that is their direct superior.

There is absolutely no doubt that the PTAB is a rogue tribunal that does what they want, when they want and without regard to anything. Worse, the sole purpose for the creation of the PTAB was to provide a lower cost alternative to challenge low quality patents and get rid of patent trolls. The PTAB has been a complete and total failure; failing to deliver a solution for low quality patents that continue to force large operating entities to pay extortion-like settlements to patent trolls. But what’s worse are the truly head scratching decisions that seem to be made by those without any familiarity with law or process. Given the lack of due process, the arbitrary and capricious rulings, refusing to consider timely submitted evidence, fundamentally misapplying the law of obviousness, determining that an MRI machine is an abstract idea, and the PTAB ignoring the law, it is time to seriously consider whether the only real solution available is to disband the PTAB and search for a different answer.

CORRECTION: Update on Friday, February 24, 2017 at 9:47am ET. The dissenting Judge in the termination of CBM2015-00161 was Judge Meredith Petravick. An earlier version of this article incorrectly identified Judge Jeremey Plenzler as the dissenting judge.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 35 Comments comments. Join the discussion.

  1. gary February 23, 2017 11:45 am

    What about one simple change to the statute: “The applicant may choose to have the initial examination performed by a PTAB tribunal [for an extra fee of X]. A patent issued upon examination by a PTAB tribunal and by unanimous vote of the PTAB tribunal shall not be subject to post grant review.”

    If PGR is intended to improve patent quality, paying extra to have three senior patent experts review the patent application and make the issuance decision should more than take care of the issues of patent quality, and hopefully should establish a record that provides courts with a solid roadmap later. If the PTAB is making the issuance decision, then we would also be back to a proper situation of Article 1 tribunals granting property rights that only Article 3 courts can take away.

  2. jbavis February 23, 2017 1:10 pm

    “the sole purpose for the creation of the PTAB was to provide a lower cost alternative to challenge low quality patents and get rid of patent trolls”

    combined with large corporations encouraged not to talk to small entities until they bring an infringement trial: http://www.ipwatchdog.com/2013/05/01/is-patent-litigation-really-a-problem-for-big-tech/id=39325/
    “he and his company were told that Apple wouldn’t take licensing overtures seriously unless there was a patent infringement lawsuit pending against them.”

    all results in the PTAB not working for anyone – large entities and certainly not legitimate small entities being stripped of their patent property rights and thereby incentive to invest in innovating.

  3. Molly (JD Candidate) February 23, 2017 1:15 pm

    I’ve heard that the PTAB is known as the death squad for patents. However, on the other hand, the Federal Circuit, according to the latest statistics, affirms the PTAB almost 80% of the time (http://www.lexology.com/library/detail.aspx?g=1f7a05ed-6267-4a6e-b402-e40db7a39c96).

    Not sure what to make of this. If the problem is with Article 1 tribunals instead of Article 3 tribunals, why in the world would the Federal Circuit side with the PTAB? Wouldn’t it be the other way around?

  4. Interloper February 23, 2017 3:06 pm

    Gene, how about traveling to Hollywood, FL on March 12 and demanding some answers? I understand that the press will be there.

    http://www.autm.net/2017-annual-meeting/highlights-networking/fireside-chat/

  5. jbavis February 23, 2017 3:49 pm

    Interloper @ 4:

    I threw up when I read this part from your link:

    “Ms. Lee also serves as the principal advisor to the President, through the Secretary of Commerce, on domestic and international intellectual property policy matters. Through working to strengthen the intellectual property systems—including patents, trademarks, copyrights and trade secrets—she helps promote innovation and economic growth. Ms. Lee also drives international intellectual property harmonization efforts, which support the administration’s top priorities to increase both trade and economic growth.”

    “Strengthen IP systems”?!? “Promote innovation and economic growth”?!?

    Yeah maybe for large corporations being able to better get away with IP theft from smaller entities. Efficient infringement indeed.

    Hard to believe that Trump has fallen for this.

  6. angry dude February 23, 2017 3:51 pm

    gary @1

    Why not just do proper patent examination in the first place right where it should be done – in appropriate technology division by trained professional examiners ?

    I would allow a full week to initially examine one tech patent
    Granted, it would cost $$$$ but still a lot less than PTAB or IPR

  7. step back February 23, 2017 4:13 pm

    The Supreme Court is broken.
    If Congress had intended a quantitative meaning they could have simply written, “all or at least a majority of the components”. It’s not as if Congress is short on words. But no. They wrote, “substantial portion”.
    The SCOTeti can’t comprehend to that level.
    The Supreme Court is broken.

    Life Technologies Corp. v. Promega Corp. (Supreme Court 2017)

  8. Curious February 23, 2017 4:36 pm

    However, on the other hand, the Federal Circuit, according to the latest statistics, affirms the PTAB almost 80% of the time
    Recommendation — before you leave law school, take a course in administrative law. While few patent attorneys recognize this, they are engaged in the practice of administrative law.

    As for the rate at which the PTAB is affirmed, understand that the Federal Circuit reviews legal issues de novo but factual issues are review for substantial evidence with the latter being highly deferential to the USPTO.

  9. Invention Rights February 23, 2017 5:31 pm

    Molly @3 is certainly representative of many observers in asking what seems a reasonable question. We need to work on artculating the answer. I do not have the formulation yet, perhaps together we can refine it. What I see is that except for §102 novelty, all the other requirements for a patent are subjective inquiries. Two different people can reasonably reach different conclusions as to §101 eligibility, §103 obviousness, or §112 definiteness. A rigorous examination will result in claims that the examiner determines in his opinion meet the threshold. There is no reason to expect the next examiner, judge, or expert to agree. This is not much of a problem when the first examiner applies a stricter standard. That is how it worked before the AIA. But now the 2nd (3rd, 4th, 5th, etc.) PTAB judge applies the same standard as the original examiner. Inevitably, one of the judges/panels is going to eventually determine the claim falls short of the threshold, in his personal opinion. As a result, no patent is ever secure, and every patent is at risk of being invalidated, no matter how many times it has been reviewed.

  10. Anon February 23, 2017 7:46 pm

    Thankfully, the title to this article IS capable of being fixED.

    😉

  11. Anon February 23, 2017 7:49 pm

    gary @ 1,

    Sorry but I am fundamentally opposed to any notion of “gold-plating.”

    What you appear to deliver (for extra) is ALREADY paid for – and paid for by each and every applicant.

  12. Anon February 23, 2017 7:51 pm

    Invention Rights @ 9,

    Sorry but the phrase “There is no reason to expect the next examiner, judge, or expert to agree.” is not only not true – it is legally not true (hence, the presumption of validity).

  13. Anon February 23, 2017 7:56 pm

    Invention Rights,

    But let me add (since I was perhaps a bit premature), that when that stick in the bundle of property rights that is a granted patent is taken (as is done at the institution decision point of the AIA vehicles), then what you suggest very well can be in play.

    But that only emphasizes how important that particular stick in the bundle of property rights is.

  14. Invention Rights February 23, 2017 8:14 pm

    I meant “There is no reason to expect the next examiner, administrative judge, or expert to agree.”

    So yes, presumption is key. Presumption or some other elevated standard (as compared to examination) is necessary. Otherwise every patent is chronically at risk of invalidation in a(nother) PTAB challenge.

    It seems that there is a general misconception that patentability is an objective inquiry. However §101, §103, and §112 are primarily subjective inquiries, on which qualified individuals can disagree.

  15. Anon February 23, 2017 11:00 pm

    Lee is a Trojan, crafted expertly by her handlers. All is going according to plan in the US. For those that watched or attended the Roundtables in Nov/Dec, it was apparent that the Director did not care. 101 is a cancer, the patient is terminal. The PTAB, soon they will being doing Rule 36 types of affirmances. And, when a mere signature from a TC director reopens prosecution after examiner reversal by the PTAB to inject the cancer causing vector, there’s little hope.

  16. Caesar Salazar February 23, 2017 11:22 pm

    Invention Rights,

    I agree with you that Molly @3 raises an interesting point. If the PTAB is “bad” and the Federal Circuit is “patent friendly,” then why does the Federal Circuit uphold the PTAB most of the time? It seems like the “PTAB is bad” argument would necessarily include an indictment of the Federal Circuit as well. You speak about the PTAB in your post but don’t discuss the Fed. Circuit. Those are in fact Article III judges, which is the bigger question. If you question the PTAB judges and hope that the Art. III judges will save us, then it seems that the stats aren’t on your side.

  17. Eric Berend February 24, 2017 7:40 am

    @ 5, ‘jbdavis’:

    More to the point, IPR and PGR are evils imported from the European history of patents, historically being the province of the well-off, over there.

    One of the great virtues of American jurisprudence was throwing the doors open to everyone who could articulate a spark of original genius. Thus, we see the references lately to African-Americans, and women in States where real property ownership was prohibited or discouraged, respectively; being granted ownership of U.S. patents, as historical precedents.

    Great genius immigrants of the past such as Charles Steinmetz and Nicola Tesla, who would never have had such opportunity for their intellectual property being protected in Europe, as here in the United States; were drawn to emigrate to the New World; precisely because of the potential represented by the implied bargain of Article 1, Section 8, Clause 8.

    Will we see a reverse exodus “brain drain” of inventors, in sad reprise of that glorious past? Perhaps not. The denizens of intellectual plunder are afoot in every sovereign domain; and their corrosive influence is felt far and wide. Best, to take that stand right here, in the U.S.?

    I proposed a 4-point plan for pushing back against this evil tide, in comment #17 to the recent article “What Inventors Need to Fix the Patent System” (http://www.ipwatchdog.com/2017/02/21/inventors-need-fix-patent-system/id=78587/ ).

    That said, I do agree with Gene in that, as far a proposal to abolish the PTAB goes; if parts of this overall task can be accomplished piecemeal, then this is a worthwhile and pragmatic path to pursue. We should not count small victories lightly. And, such milestones can become examples of a better direction of “reform” to follow, in the future.

  18. Night Writer February 24, 2017 8:05 am

    Google Self-Driving Car Unit Accuses Uber of Using Stolen Technology

    Gene: this is what I am talking about with trade secrets. Google could transform into a very secretive company that uses the trade secrets to lock down employees. This was the direction we were headed in before patents became more prevalent after the formation of the Fed. Cir.

    The trade secret route is a disaster.

  19. Night Writer February 24, 2017 8:07 am

    I think Ed the Ned had a good idea. Make the PTAB advisory and have post-grant procedures instituted only at the request of a federal district judge.

    That is actually a brilliant solution. It appeases Roberts so his courts don’t overflow and the patent holders.

  20. Eric Berend February 24, 2017 8:30 am

    @ 3., ‘M0lly:
    @ 9., ‘Invention Rights’:

    The short answer, is that this area of law has seen major changes and is still evolving at the judicial bench. M0lly, that view ‘loses the forest for the trees’ – you are not perceiving the whole lay of the land, here.

    The CAFC is composed of judges that while quite obviously well accomplished and learned, are also human. In the face of a lack of guidance from the Supreme Court as to exactly how to parse the details of certain precedential decisions, and faced with a sea change in jurisprudence in the application of the AIA, for several years, they proceeded cautiously; and, in light of the ‘Chevron exception’ that lately has become the subject of specific legislation, this should not be too surprising. For example, in terms of Article I law; here, it is worthwhile to note that few legal cases have, thus far, been presented on APA grounds.

    However, lately, in the past year or so, that milieu seems to have become changed at least somewhat; for just two such instances, please see the articles, e.g., http://www.ipwatchdog.com/2016/08/30/ptab-arbitrary-capricious-denying-motion-amend-ipr/id=72448/ , and http://www.ipwatchdog.com/2016/11/21/federal-circuit-slams-ptab-cbm-patent/id=74925/.

    It has been speculated in some quarters that after several important cases were refused certiorari, the CAFC was finally realized they might be expected to rule on those pesky details heretofore left undefined by the SCOTUS as to their ‘bright lines’ of application; such as: just how to determine ‘obviousness’ and what actually qualifies a patent as being “CBM eligible”.

    These aspects cannot be captured as data in mere statistical study alone, particularly in an area of practice that is so radically changed, so recently; essential structural details become irrecoverably lost.

  21. Eric Berend February 24, 2017 8:40 am

    @ 17., ‘Night’:

    I usually agree with you on most issues and, despite the tortuously conflicted nature of most of “Ed/Ned” ‘s comments here; it makes pragmatic sense.

    It may be a far reach to have to PTAB abolished entirely, without also seeing the repeal of the AIA wholly or substantially; failing that greater good, a beneficial transformation, particularly under the direction of a lawful and independent USPTO Director; could be the best that can be accomplished, for the short and medium term.

  22. Night Writer February 24, 2017 8:56 am

    @18: “despite the tortuously conflicted nature of most of “Ed/Ned” ‘s comments here”

    It does come through doesn’t it? Ed the Ned appears to be a good ethical moral man that has sold out for money and it pains him immensely.

  23. Gene Quinn February 24, 2017 9:36 am

    Caesar @16-

    You are missing the point altogether.

    How can one who is being procedurally railroaded and deprived fundamental due process create a record capable of meaningful appellate review?

    You are aware that the Federal Circuit is now issuing Rule 36 affirmances in over 50% of PTAB decisions, correct? And I and others have been criticizing the Federal Circuit relentlessly.

    Are you also aware that the Federal Circuit has been deferring to the PTAB with respect to the interpretation of the rules that disadvantage patent owners?

    What do you suppose the reversal rate would be if the Federal Circuit actually was doing its job as an appellate court and reviewing PTAB decisions rather than simply rubber stamping every ridiculous decision and rules interpretation?

    And before you answer any of these questions, perhaps start with this… do you think it is appropriate for the PTAB (or any tribunal) to refuse to consider timely considered evidence a party submits as a matter of right (i.e., specifically allowed by the Code and filed timely)? The PTAB says they don’t have to consider evidence timely submitted as a matter of right, and believe it or not the Federal Circuit agreed with the PTAB. See:

    http://www.ipwatchdog.com/2016/01/06/federal-circuit-ptab-timely-supplemental-information/id=64743/

    So the PTAB is as bad as what I am saying and worse. And the Federal Circuit is complicit, as I’ve been saying for some time.

    -Gene

  24. jbavis February 24, 2017 10:33 am

    Eric Berend @ 17:

    I like your proposal but notice no mention of Lee. I find it hard to hard to believe the necessary PTAB changes will happen with her anywhere near the joint.

  25. Caesar Salazar February 24, 2017 11:05 am

    Gene,

    You make good points about the Fed. Circuit. However most of what I hear in everyday discussions focuses solely on the PTAB. It’s an easy scapegoat, but there seem to be bigger issues at play here. It’s almost too easy to go for the low-hanging fruit. If the PTAB is abolished, cases go back to district court, BUT the Fed Circuit invalidates patents anyway (which seems plausible given the current environment), then all will be for naught.

  26. Molly (JD Candidate) February 24, 2017 11:16 am

    Mr. Berend,

    Maybe this trend change is inevitable. I can tell you from the view of the younger generation that views on patents are all but defeated in the culture war. The same is happening to copyright.

  27. Eric Berend February 24, 2017 12:11 pm

    @ 24., ‘jbavis’:

    Thank you very much. I wholeheartedly agree with this observation.

    Point #5, as an addition to the “4-point plan” comment I referred to above (“#17” to a previous article): appoint a lawful and independent Director of the USPTO.

  28. Gene Quinn February 24, 2017 2:15 pm

    Caesar @25-

    Don’t forget that the CAFC is using two completely different standards. When they review patents from the PTAB not only are they completely deferring to the PTAB from an administrative law perspective, but the PTAB does not assume patents are valid. District courts must assume patents are valid.

    What is interesting is PTAB judges are not administrative law judges and most, if not all of them, could never qualify to be administrative law judges. So why then would the CAFC give them any deference at all under the APA?

    Finally, with more than 50% of cases being 1 word… “affirmed”… there is no way to know how many mistakes the CAFC is making. We know that the Supreme Court thinks the CAFC makes a lot of mistakes, so in all those 50+ percent of cases that simply say affirmed what is the CAFC error rate? Undoubtedly very high.

    -Gene

  29. Gene Quinn February 24, 2017 2:18 pm

    Molly @26-

    Thank you for finally admitting you are anti-patent and anti-copyright. Not that it wasn’t obvious that you are fundamentally anti-property, but now that you have admitted that for everyone to see it will be quite insightful for everyone.

    To your substantive point… if the young generation doesn’t like patents and copyrights I’d suggest moving to Sudan or Yemen or places where there are no intellectual property rights. Of course, you will realize pretty quick that those countries that don’t have strong intellectual property regimes also have no economies. You can’t have one without the other in the 21st century.

    -Gene

  30. B February 24, 2017 2:47 pm

    “The PTAB does not like patents so they see everything as abstract and not contributing substantially more. It is impossible to argue with their logic because there is no logic. ”

    A PTAB panel recently reversed an examiner for 112 and 103 rejections for one of my Client’s patent applications, but affirmed a 101 rejection having no evidentiary support as being well-known, routine and conventional while ignoring literally 2/3 of claim language for part 1 of Alice. The Panel failed to address the limitations as an ordered combination, disregarded the requirement for substantial evidence, misconstrued the stated advantages, and believed that the claim was abstract merely because a general purpose computer could perform the recited limitations. Pathetic, but in this case I think the problem was a lack of competence in relevant 101 law.

    I filed a RFR and RFR en banc about two months ago and am awaiting the decision.

    That said, I had another PTAB panel cite new evidence during oral hearing – misrepresenting the content of the document to mean the opposite of what was stated. When confronted on RFR, they gave a non-answer.

    Now to the issue of “something more.” It is my opinion that the courts and PTO are totally clueless on addressing both part 1 and part 2 of Alice because the courts and PTO arbitrarily choose to address claim limitations as a whole under part 1. It’s a meaningless exercise depending on what a particular APJ or CAFC panel eats for breakfast. Contrast Electric Power Group and Bandai

  31. B February 24, 2017 2:52 pm

    Gene,

    “Of course, you will realize pretty quick that those countries that don’t have strong intellectual property regimes also have no economies. You can’t have one without the other in the 21st century.”

    John Locke thought the same thing for the 17th century.

  32. B February 24, 2017 2:58 pm

    “What is interesting is PTAB judges are not administrative law judges and most, if not all of them, could never qualify to be administrative law judges. So why then would the CAFC give them any deference at all under the APA?”

    Dickenson v. Zurko, S706 of the APA, and the fact that most CAFC judges are technologically clueless – the exception being Judge Newman, who coincidentally, is the judge least likely to give PTO decisions deference.

  33. B February 24, 2017 3:06 pm

    Dear Curious,

    “As for the rate at which the PTAB is affirmed, understand that the Federal Circuit reviews legal issues de novo but factual issues are review for substantial evidence with the latter being highly deferential to the USPTO.”

    The CAFC takes an arbitrary view on following the APA. They were spanked by the SCOTUS in Dickenson v. Zurko where after Judge Newman got it right in In re Sang-Su Lee.

    That said, the CAFC may or may not follow the APA depending on the panel you get. Also, in their de novo review, if the CAFC determines that the PTAB got an issue of law wrong or failed to follow the law, the CAFC MUST (in theory) set the decision aside.

  34. Night Writer February 24, 2017 5:59 pm

    I think the whole problem is that the PTAB is not feminine enough.

  35. angry dude February 25, 2017 9:50 pm

    Gene @29

    Please don’t send feminist Molly to shariat countries – they still stone women over there…

    The place to send her is Soviet Union in the 50s… no, still too cruel.. maybe 70s or early 80s – the period of stability and “prosperity”

    when she comes back she will fully appreciate the “luxuries” like decent toilet paper afforded by patent system (unless she’s also a masochist – then “Pravda” newspaper will do 🙂

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