Studying IPRs Not Enough, PTAB must be Repaired, Replaced or Repealed by Congress

By Chris Gallagher
April 19, 2017

Examining ‘PTAB files and user experience’ cannot reveal the indirect harm the PTAB has inflicted on our innovation ecosystem through… the weaponization of the PTAB by the infringement defense bar…

Capitol BuildingUnder Secretary of Commerce, Michelle Lee has launched an initiative to further shape and improve the Patent Trial and Appeal Board (PTAB). Her Senior Advisor at the PTO will be “coordinating this effort.” Because her tenure is ending the timing of her “effort” has caused some to wonder whether she plans to fix AIA’s second windows or to preserve them. Whatever her unspoken motives, an official in-depth look at the PTAB’s past performance is underway and warranted. But is the PTO looking in all the right places?

Inter Partes Review (IPR) is viewed by many as late-stage destruction of fully developed early-stage investor ROI in patented property. The Lee study will presumably weigh the costs of the PTAB and IPR against its benefits, but the worst far-reaching costs will not show either in its records or dialogue with its “users.” Examining “PTAB files and user experience” cannot reveal the indirect harm the PTAB has inflicted on our innovation ecosystem through the threats to file IPR petitions during licensing negotiations, the impact on declining patent values, the weaponization of the PTAB by the infringement defense bar and its unexpected heavy utilization. Discovering what the PTAB hasn’t seen and why it never saw it would be more informative and more relevant.

The PTAB nullification record demonstrates its many canceled patent claims, but Lee’s review will not show how many claims have been abandoned for lack of patent holder capacity to assert them despite their infringement. Therefore, this initiative will not reveal patent holder disappointment and investment data critical to understanding the drag on the innovation ecosystem that is the PTAB.

The PTAB’s claim destruction has destabilized investment’s keystone contribution in our nation’s innovation ecosystem. The correlative conclusion that PTO examiners are not “getting it right” the first time is compelling. It also might suggest that instead of post investment nullification, the PTAB’s budgetary drain on PTO resources may be better dedicated to improving PTO examination at its front door instead of studying its back-end post-grant second windows.

Indeed, if Director Lee’s inquiry into PTAB’s track record will show it is “as efficient and fair as possible” how does she escape the conclusion that PTO’s initial examination process is flawed? If as some have said IPR is where patents “go to die,” the lower standards applied by the PTAB and expedited proceedings are not just nullifying sound post development patents, they are nullifying patents’ pre-development investment.

The AIA’s legislative history tells us the PTAB was established to “clean-up” the so-called “bad patents” then allegedly infecting our patent system by supporting troll abuse. Deployed by the efficient infringer lobby, the “bad patents” narrative amplified projected false concerns about “ubiquitous patent trolls” abusing our patent system and causing a “litigation crisis.” Other measures minimize abusive troll activity but not by PTAB. Conjured royalty stacking, patent delays and patent thickets were academically theorized but never materialized (See Barnett). Their absence was not the PTAB’s doing. Junk science-based assertions of a “tax on innovation” was debunked by better economists, not by PTAB. These issues drove the infringer’s “bad patent” narrative, which gave birth to PTAB.

Offered as a means to address patent trolls and their “bad patents,” the PTAB was created to deter all patent enforcement by increasing its costs and adding more delay. It has worked well. But if PTAB was intended to rid the patent landscape of misused “bad patents” why do we still need it.? If patent quality is improving why is PTAB’s “bad patents” repair job still incomplete? How can Director Lee explain its continued utility without admitting her initial examiners aren’t doing their job? See Why hasn’t the Patent Office done anything about low quality patents?

Before she leaves, Lee had to find a way. The infringers successfully conflated “bad actors” who admittedly were abusively wielding “bad patents” with their profound antipathy to all patents. Their narrative continues, and it serves the PTAB’s anti-patent purposes. Patent uncertainty plagues our entire innovation ecosystem with doubt. By reviving the” bad patents” story, Director Lee’s inquiry can confirm continued need for the PTAB and its post-developmental destruction without impugning her examination staff.

The PTAB is doing as Congress has directed because Congress did as directed. Since Director Lee must establish a PTAB purpose other than its built-in anti-patent objective and must avoid the corollary existence of flawed initial examinations, she needs another justification. Enter “bad patents.” PTAB’s record thus confirms Congress’ wisdom and its continued need. And that depends on returning “bad patents” and their troll abusers to the Congressional top of mind. Expect the study to resuscitate the “bad patents” narrative.

There is no set time announced for ending Ms. Lee’s tenure. Similarly, the study’s announcement failed to establish a completion time. But when completed it will reflect the PTAB’s indirect destruction of our patent system. By focusing on its record and its “users” half of whom probably prevailed in IPR proceedings but all of whom were able to afford its transaction costs. At its conclusion do not be surprised if PTAB duties are retained or expanded, to address a revived “bad patent” narrative. Whatever the study’s outcome the next PTO Director must do whatever it takes to end the “bad patents” story. It is poisoning our innovation ecosystem.

The Author

Chris Gallagher

Chris Gallagher is President of IP Strategic.com and a perennial selection to The Best Lawyers in America. Having spent years as one of the most influential and highly regarded advocates in the New Hampshire Legislature and state administrative agencies, Chris is now focused primarily on federal policies in Washington, DC. Chris has been involved in nearly every substantial New Hampshire economic regulatory initiative over the last 25 years. He has served as general counsel for the New Hampshire Bankers Association and has represented New Hampshire utilities, hospitals, insurers, aggregate manufacturers and numerous other entities. This experience provides him with a uniquely respected voice on Capitol Hill, enabling him to communicate effectively with members whose federal decision-making must reflect and respect the complexities of their home-state constituents.

A frequent speaker and commentator in local and national media on policy issues, regarding financial services, privacy, business and government, Chris has testified on financial services issues before U.S. House and Senate Committees and has been a panelist in Capitol Hill briefings on intellectual property issues. He can be reached at chris@ipstrategic.com

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 23 Comments comments.

  1. Edward Heller April 19, 2017 1:54 pm

    Bravo, and well said.

  2. Paul Morinville April 19, 2017 3:40 pm

    It cannot be repaired. It is fatally flawed in that the same agency is both granting a property right and invalidating that right. As long as it continues to have dictatorial power over a property right, patents will never be able to attract funding for early stage startups. Patents will forever be made stronger or weaker depending on who is in charge of the rules. No investor will ever seriously consider the patent to have value because there will be no way to project what the next rule maker will do. A patent has a 20 year term. That means there will be at least 3 different presidents and likely more PTO directors writing rules. At minimum, rules will change 3 times in the life of the patent.

    It must be repealed.

  3. Gene Quinn April 19, 2017 5:51 pm

    Paul-

    I think the PTAB could be repaired if there was a political will. Of course, the types of things that would be required simply couldn’t happen. For example, if a patent owner withstood a challenge (whether final written decision or because institution was denied) the patent owner should be awarded both costs and attorneys fees for defending. That would make challengers think twice (or thrice) about challenging and end frivolous, harassing challenges. Refunding fees to unsuccessful challengers is a no-brainer, but not enough.

    -Gene

  4. JPM April 19, 2017 9:50 pm

    I agree 100% with Paul. The PTAB must be shut down. It is a kangaroo court designed and built by the infringer lobby.

  5. Paul Morinville April 19, 2017 10:19 pm

    Gene, That might thwart some who file frivolously and maybe disrupt the business models of companies like Unified Patents, but if you are Google adding loser pay really won’t make a difference. It is really just a rounding error in daily interest for them but they will probably still never have to pay it. Most inventors cannot afford to play the game that long and suspect many will settle.

    It’s not just the cost. It’s the lost time on the patent’s life. While the patent is in PTAB, it cannot really be enforced. That burns five years of its life and those years do not come back. At least in federal court, you can continue to sue other companies.

    I think things could be improved in the PTAB, but I really believe it is fundamentally flawed and those flaws are deep enough that we will never again have the economic engine we once had if we don’t just kill it altogether.

  6. Benny April 20, 2017 6:43 am

    Disagreement this way comes.
    First, virtually every attorney’s response to a rejection contains an implied accusation that the PTO examiner’s process is flawed. The assumption that the process can be “cleaned up” at the source is correct in theory but probably impossible in practice.
    The underlying message of the article is that bad patents (why the inverted commas?) are asserted by NPEs/PAEs/”trolls”. Yet they can be wielded no less destructively by practicing entities, too – one against another.
    Just to be clear, I am assuming the term bad patent to mean a claim that was, prior to grant, either in the public domain or granted to a different applicant, and the examiner was not made aware of the fact. It is unrealistic to assume that the USPTO will get it right every time and no post-grant review process is necessary.

  7. Chris Gallagher April 20, 2017 10:38 am

    All your comments are appreciated. What I fear most about Director Lee’s inadequate analysis of PTAB’s records and its “users” is PTAB’s most egregious harm; its indirect impact on the value and commercialization of patents that for want of investor support will never be developed enough to be eligible for PTAB execution. If the results of the study: revive the bad patent narrative, confirm PTAB’s value to the system (it actually is helping to destroy), pave the way for HR 9’s next congressional iteration,or support future SCOTUS confirmation of patent rights as so-called “public rights”, or all of the above, its too narrow focus puts our patent system into existential danger. Should we loudly respond? Or borrowing a tactic from Sen. McConnell ignore her study while awaiting her successor ?
    We know PTAB’s elevation will preserve the bait-and-switch bad patents narrative that caused and will prolong DC institutional antipathy to patents. Repealing eBay and PTAB are appropriate aspirational objectives we all support. Paul’s campaign to overturn both we hope will us get there someday. But we must do something now because time is running out. We must at least preserve the status quo until it can be realistically reversed. Debunking the bait-and-switch bad patent narrative is doable now. This study can be converted to our opportunity to do so. I think we must respond forcefully to this study’s announcement by insisting that either it be broadened to include reviewing PTAB’s indirect ill effects or dropped until the next Director arrives.

  8. Tiburon April 20, 2017 12:43 pm

    Re: “political will” for PTAB. It’s called Google and they’ve got $80Billion cash and growing $50million per day. As long as Google is being hit left, right and center with patents then the “political will” exists.

    Now, if PTAB’s are used against Google in their fight against Uber, that right there might reverse the “political will”.

  9. Inventor0875 April 20, 2017 1:38 pm

    Why would anyone want to invent or to get a patent?

    Imagine you work for years and invent something with great value to society.
    You file a beautiful enabling disclosure.
    The USPTO and the Applicant agree on the meaning of the claims.
    USPTO approves of an issued patent with those claims.
    The Applicant thinks he has a valuable patent as a reward for the invention.

    Anytime during the patent lifetime (up to 15+ years later), the patent office re-looks at the patent using Broadest Reasonable Interpretation.
    The USPTO re-looks at the claims to find a new “broadest meaning” which leads to a different claim meaning and invalidation of the claims.
    The meaning of the claims that the USPTO had previously approved, is not considered and is totally disregarded.
    The reward for the Applicant’s great invention is taken way.

  10. Shawn Ambwani April 20, 2017 4:23 pm

    I love these discussions about how something is bad for the system, but never any actual numbers. The PTO has had similar proceeding for many years prior to IPR with the same standard. PTAB has only looked about little more than 6% of all the patents which have been in litigation and invalidated less than 2%. Those are hard verifiable numbers. There is no numerical proof that I have seen that any of the recent changes have affected Innovation, Patenting, or Efficient Infringement. There are no hard numbers and in fact, litigation and patenting has continued with little change. The values of the largest NPEs continue to be at all time highs. So clearly there is still a market. If we make the initial quality assessment more stringent then everyone will complain it is too costly and time consuming to get a patent. Can’t have everything.

  11. Gene Quinn April 20, 2017 6:03 pm

    Shawn-

    If you want to talk about facts, as you suggest, then let’s talk about facts. Allow me to correct you were you are either misleading, misinformed or just wrong.

    You said: “The values of the largest NPEs continue to be at all time highs.”

    That is simply not true. And since you say you want to talk in facts, let me observe that Acacia Research, a publicly traded NPE, once traded for $46.47 back in September 2011, but today is trading at $5.20, so pretty definitively not an all-time high. Another publicly traded NPE – Finjan – traded as high as $11 in December 2013, but today is trading at $1.81, again definitively not an all-time high. Yet another publicly traded NPE – Wi-Lan – traded as high as $9.52 in July 2011, but today is trading at $2.06, once again not anywhere near an all-time high. So I don’t know who you are trying to fool, but it wouldn’t be anyone with any knowledge of the industry. NPEs have been vanishing and values of patents have been eroding. Only someone who is unfamiliar with the NPE business would suggest that NPE valuation is at an all time high.

    You say: “clearly there is still a market.”

    Interestingly, we published two-pieces of the 2016 Patent Market Report just this week, which you really need to look at. Yes, there is still a market, but the rate of sales has decreased yet again from 2015 to 2016. Finally, asking prices seem to have stopped falling and have stabilized. But to pretend that the market is fine and unaffected by the PTAB is simply ignorant. See:

    http://www.ipwatchdog.com/2017/04/18/2016-patent-prices-key-diligence-data/id=81708/
    http://www.ipwatchdog.com/2017/04/20/patent-sales-rates-patent-market/id=81713/

    You also say: “There is no numerical proof that I have seen that any of the recent changes have affected Innovation, Patenting, or Efficient Infringement.”

    Obviously you haven’t looked. The amount of R&D that is moving overseas is becoming a real concern, with word just this week that China is beating the U.S. in innovation and outspending the U.S. in late stage innovation:

    https://www.usatoday.com/story/money/2017/04/17/why-china-beating-us-innovation/100016138/

    Patent filings are increasing dramatically in China and Europe, while they remain flat in the U.S. See:

    http://www.ipwatchdog.com/2016/03/03/record-2015-epo-patent-filings/id=66749/
    http://www.ipwatchdog.com/2016/12/05/chinese-patent-office-one-million-patent-applications/id=75322/

    And China is becoming a preferred jurisdiction over the U.S., for among other reasons precisely because they are following the exact opposite approach and making more patent eligible rather than less patent eligible.

    http://www.ipwatchdog.com/2017/03/03/china-relaxing-barriers-software-business-method-patents/id=79017/
    http://www.ipwatchdog.com/2016/11/10/china-increasingly-preferred-venue-patent-litigation/id=74585/

    So When you say that you cannot see any proof it is only because you don’t look, or you are again attempting to mislead.

    Facts are indeed wonderful things. If you are going to make wild, crazy, erroneous claims you should try and keep it to areas where there aren’t facts to so easily prove you wrong.

    -Gene

  12. Shawn Ambwani April 20, 2017 6:46 pm

    Hey Gene. Your cherry picking of data is awesome and almost as scary as a Trump twitter feed. 🙂

    Here are my responses in order, but in summary, try again:

    1. None of the companies you mentioned are the largest NPEs. Think larger, like over $1 billion in valuation. Happy to name them. How are they doing? Does your narrative still fit? Don’t think so. Try again…

    2. Causation doesn’t equal correlation. You have not proven causation as to any falling values in patents are related to PTAB. Only a correlation. In fact, last quarter was the most popular for PTAB and prices have stabilized according to your own source. If you narrative is accurate it should go down further. There are a lot of reason why this could have occurred, Alice, or just an overheated market which needed a correction like housing. NPEs had had a good ride for a while, perhaps (just perhaps) they were just overpriced? Note you didn’t argue with any of my data on the number of challenged and litigated patents compared to invalidated. Does it seem logical that invalidating 1 out of every 6000 patents would cause prices to tumble 50 to 75%. Weird huh?

    3. As for activities in other countries such as litigation and filings, everything you mention is anecdotal and is likely the result of simply some places improving the lax IP protections to something more akin to the US. But their improvements do not mean that we are getting weaker. Unless you are saying China IP protections are getting weaker. If that is the case, then you might a good blog post. But I doubt you would claim that. I guess you don’t consider your blog a real publication which has to supported by facts so its OK, but in the real world amount of patent litigation in those counties continues to be miniscule compared the US. To the level that an increase of 10 in a year would mean a huge increase in Europe and in China we are still waiting for any meaningful decisions. I don’t see NPEs flocking there if it such a great venue. Wonder why? You can point to 1 or maybe 2. But I don’t see any migration…. do you? If so, show the numbers….there aren’t any.

    So…..Try again…. Best, Shawn

  13. Patent Investor April 20, 2017 8:29 pm

    Shawn,

    If the language of some other message boards was allowed here I’d really tell you my thoughts on you and your arguments. First, you cite TWO stats, 6% and 2%, and yet you claim gene cherry picks HIS numbers. Your numbers are by the very nature of the PTAB small. The PTAB has only been in existence for a few years, they only receive a finite number of petitions, and they have not had time to finish off many of those in their sites. Many of those patents already lost to business have survived multiple rounds of Federal District court invalidation proceedings (mostly by the largest and most well financed of the efficient infringers) and come out unscathed, yet get trashed by the PTAB. Second, you say, “happy to name them”. Anybody interested in educated discussion would have listed them the first time and not played childish games. I’d expect something a little more mature and less manipulative from somebody in the business, even somebody in the patent litigation insurance business. As a co-founder of the “Anti-Troll”, I can’t say you speak with your master’s voice, but your own is just as tainted with bias.

    Feel free to reel off all those NPEs with a billion dollar market cap, other than IDCC I can’t think of one and IDCC got a rather large head start on most of their brethren.

  14. Gene Quinn April 21, 2017 11:36 am

    Shawn-

    I don’t know what kind of game you are playing, but I demonstrated that 3 well known NPEs are trading for a fraction of what is their all-time high. So that makes you wrong and me correct. Yet you come here and with mystery say that there is some other NPE that you can name if you really have to. I’m giving facts and you hide behind secrecy and then dismiss the actual facts I provide and ignore them as if they aren’t true. What a joke you are. Only someone with an agenda and intent on lying would say, suggest or pretend that NPEs are at all-time high valuations. That is a lie, plain and simple.

    You say: “Causation doesn’t equal correlation.” And that is where I stop reading. I hear that all the time. What people like you who say that are saying is that even though the correlation is 100% you choose to ignore the correlation and then pretend that I have no evidence. In fact, correlation is evidence, and when the correlation is absolute that means you have a heavy burden to come up with something, anything, which of course you can’t do which is why you have to retreat to the asinine line about causation not being correlation.

    As far as the PTAB not causing a lowering in patent values, only someone without any experience in the industry or an agenda would say that the PTAB has not negatively impacted patent values. It is universally accepted as true that the PTAB has negatively impacted values, even by infringers who have weaponized the PTAB to harass patent owners and get out of having to pay. There is no mystery about this. This is a part of every negotiation. Threats to take patents to the PTAB, PTAB filings which are then paraded about by attorneys as dramatically lowering the value of any claim. So you’d have to be completely ignorant of actual facts in the industry, or a liar, to hold your views.

    Finally, it is laughable that you say that what I point out about other countries is only anecdotal. That is an absolute lie and there is no other explanation. When I say that patent filings are increasing in other countries and not in the U.S. that is a fact, not anecdotal. When I say that China is spending more on late stage R&D than the U.S. that is a fact, not anecdotal. Do you even understand the meaning of the word “anecdotal”?

    Thankfully, people like you are on the anti-patent side of this debate. Your lies and ignorance make it all too easy to demonstrate that you are wrong. So thank you!

    -Gene

  15. Edward Heller April 21, 2017 12:37 pm

    Let us say this loud and clear: IPRs are the single worst mistake in the history of patent legislation, either here or across the planet.

  16. Shawn Ambwani April 21, 2017 12:55 pm

    I am going to combine all the great feedback into one. Gene mentioned 3 “well-known” entities who have lower stocks now. Therefore, according to him, “he is right and I am wrong.” I will name 3 “well-known” entities which have higher stocks now: Interdigital, Rambus, and Tessera. Not only have they always been larger than the 3 Gene named, but have gone substantially up in value. Does that make me right now? My point is picking 3 entities and saying it is a universal trend is rather cheeky.

    As for causation vs. correlation, I think a simpler reason is that patents were overpriced compared to historical norms because of a large secondary market created by NPEs such as IV, which was purchasing at a rapid pace. Now that is diminished prices are going down to what they were before the run up. I think it would be better to look at the average selling price of patents over the last 20 years rather than a snapshot of the last 5 or 10.

    My point was (and I will repeat what I wrote) that it seems odd that the small number of patents invalidated by the PTAB (1 out of every 5000 issued) is the primary cause for any devaluation of patents.

    It is also a stretch to say Chinese R&D is larger than the US now because of the PTAB or the patent system in general. Countries like Korea have a very strong amount of R&D per capita and their patent system is very weak compared to the US or other countries. Also, countries like Japan have many filings, but very little enforcement. Pointing out the R&D of 1 country and saying its change is attributable to a change in another’s patent system is a pretty big leap in my opinion.

    As for the rest of the comments. Sticks and stones Gene. You can label me to make it easier, but this is all the result of lower quality patents being issued. You can have your cake and eat it too. Increasing the quality on the front end take a lot more money and time to issue. A lot of businesses were hurt by litigation by NPEs with dubious patents who never wanted to have their patents challenged, but expected a settlement.

    Saying I am an anti-patent is simply not true. I am anti-troll. I firmly believe a valid patent and innovation should be protected. Feel free to continue to label people if it makes you feel better, its your blog and perspective. 🙂

  17. Chris Gallagher April 21, 2017 2:36 pm

    Shawn @ 16
    I have stayed out of this because you obviously have permanently chosen sides. But your snarky reference to a 20 year average patent valuation timeline rather than Gene’s “snapshot of the last 5 or 10” ? ? …C’mon man ….To clarify the irrelevance of averaging patent prices over twenty years compared with looking at the last ten let’s substitute the timing of AIA’s IPR enactment for your “5” and eBay and its efficient infringement aftermath for your “10” year” “snapshots” These occurrences caused the plague afflicting patent values. They created a “correlation” even you can credit with causality.

    If you are truly “anti-troll” perhaps you will define “troll” for the rest of us. Congress hasn’t done so. Does your troll definition include licensing model entities like Tessera, Interdigital and Rambus ? Does it include predatory op cos? How about research universities and independent inventors ? Who are the ‘trolls” you oppose?
    Did you support the Commerce Committee’s anti-troll legislation narrowly aimed at abusive troll demand letters? Or did you work instead to pass so-called troll-curbing bills whose “curbs” applied to ALL patent holders ? Debate these issues if you like but it is meaningless swerves like your average over 20 year gambit that helped sell the phony narrative continuing patents’ devaluation. Most of us were there the past ten years …They certainly were no “snapshot”

  18. Gene Quinn April 21, 2017 3:16 pm

    Shawn-

    Thanks for naming the companies.

    Rambus is currently trading at $12.99. Back in December 2009, Rambus traded at $24.40. That makes me right and you wrong since $12.99 is NOT an all-time high.

    Interesting that you pick InterDigital. InterDigital is holder of one of the largest standard essential patent portfolios. Of course, if you are knowledgeable about the industry you realize InterDigital’s success is because of a contractual agreement with those who agreed to pay InterDigital because they adopted the technological solution that InterDigital came up with. So if you are going to consider research and development companies as NPEs, which I know your employer does, then you might as well say that Apple is an example of a company that is doing very well despite not making anything. GE also has entire units that do nothing but own patents and other units that do nothing other than research and develop, which I know you don’t think is a legitimate business model.

    Of course, the reality still stands that NPEs are not doing well, patent valuations have cratered. It is the truth, you know it, everyone knows it. Hundreds of articles have been written about it, we’ve published dozens of articles analyzing the price/sales data ourselves. It comes up in ever negotiation, every litigation, and for you to pretend otherwise is just asinine.

    As for your claim about a small number of patents involved at the PTAB, that is also just false. There were 4,520 patent infringement lawsuits filed in 2016, and there are 1600-1700 IPRs filed a year, plus another 150 +/- CBMs filed every year. Given that many of those patent infringement cases assert the same patents over and over again even a casual observer without the benefit of any kind of deep dive analysis would conclude that the PTAB is looking at a far greater percentage of commercially relevant patents. Indeed, those patents that are commercially relevant, whether through licensing or litigation, are brought to the PTAB. So you can try and conflate the statistics if you want, but you’ll have to try and mislead someone who isn’t familiar with the facts.

    http://www.ipwatchdog.com/2017/01/17/lex-machina-litigation-report-drop-patent-infringement-suits-2016/id=77108/

    Finally, you say: “Saying I am an anti-patent is simply not true. I am anti-troll.”

    No, you are anti-patent. That is clear when you raise InterDigital as an NPE, which your employer uses interchangably with the term patent troll. InterDigital has one of the largets portfolios of standard essential patents. I’m not sure how one with standard essential patents can be a patent troll, but I’m sure you’ll try and back pedal and misrepresent your way out of that.

    -Gene

  19. Gene Quinn April 21, 2017 3:18 pm

    Chris asks: “If you are truly anti-troll perhaps you will define “troll” for the rest of us.”

    Why don’t you tell everyone who your employer is and how they define NPE and patent trolls? The answer is Shawn’s employer interchangeably uses the term NPE and patent troll, and considers R&D companies as NPEs (and therefore patent trolls).

  20. outofbox3.14 April 21, 2017 5:04 pm

    How to increase Patent Quality and settle Patent Rights:

    Proposal:
    Strongly incentivize competitors to monitor patents and notify USPTO of bad claims soon after issue. Shorten USPTO feedback loop to discover & correct underlying quality problem(s)/cause(s).

    Incentive on Competitors:
    Impose increasing claim interpretation standards, that settle patent rights by making it much more difficult to invalidate claims later in time.

    Example:
    Prosecution is only re-opened under the Broadest Reasonable Interpretation standard when the USPTO has been notified of bad claim(s) within 6-9 months (TBD challenge-window) of issue.
    At end of challenge-window, all challenges are aggregated & decision to re-open prosecution made by USPTO Quality Board
    USPTO prioritizes re-opened prosecution (done by Art Units TBD). Quality Board oversees re-opened prosecution (e.g., issues corrective/interactive feedback to Art Unit).
    Quality Board approves claims from re-opened prosecution.
    Following Quality Board approval, claims are to be presumed to be valid and there is a strong attempt to interpret claim(s) so that the claim(s) are valid.

  21. Shawn Ambwani April 21, 2017 7:05 pm

    This is fun.
    1. Gene, are you saying that all SEP patents are valid? You realize they are just self-declared by the owner and never been actually tested in court… I can point to many SEP declared patents later declared invalid.

    2. It is interesting that you ignored Tessera, and tried to distinguish Interdigital as not being an NPE, or were you and saying if they were then everyone else is. I’m not quite sure. Let’s forget about that for the moment 🙂 You argued the stock price is lower now for Rambus from 2009 so they are doing worse. First, PTAB didn’t occur until 2012 so I would suggest looking at that year to compare to. Second, if you were as good as understanding financial markets as in writing slanted posts and making stuff up you would know stock price means NOTHING as to the value of a company unless you take into account the number of stock issued. Luckily we have thing called computers and it is able to provide the market cap too! Amazing technology. And lo and behold Rambus market cap has more than doubled since 2012, when PTAB started.

    3. Luckily for you at Unified Patents we track all litigation and PTAB cases. The fact is that only 6% of all litigated patents since PTAB accepted its first filing have been challenged. Less than 2% of all litigated patents in the same period have been judged by PTAB. No conflation here or confusion here. Just the cold, hard facts man.

    Enjoy that weekend and to all a good night. 🙂

  22. Anon April 22, 2017 8:05 am

    at Unified Patents we track all litigation and PTAB cases

    Shawn, so then you are saying that your views here are tied to your business activities?

    https://www.unifiedpatents.com/team/

    Not quite “here or there,” but I would note that Shawn is not eligible to sit for the patent bar exam.

  23. Chris Gallagher April 22, 2017 9:32 am

    outofbox3.14 @20
    Thx for a serious start on a constructive approach to IPR’s late stage nullification chill on investment in early stage innovation.