Supreme Court Issues Much Anticipated Oil States and SAS Decisions

Supreme Court stormEarlier today, the US Supreme Court issued it’s highly anticipated 7 to 2 decision in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC which upheld the Constitutionality of inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB), as well as their decision on SAS Institute Inc. v. Iancu. In Oil States, SCOTUS applied the public rights doctrine to the government’s grant of a patent, finding that patent validity trials need not take place in an Article III court nor did they violate the Seventh Amendment, which ensures a person’s right to a jury trial. The majority opinion was authored by Justice Clarence Thomas. Justice Neil Gorsuch penned a dissent to which Chief Justice John Roberts concurred.

Justice Thomas’ majority opinion starts off by noting that Congress has authorized administrative processes at the U.S. Patent and Trademark Office to reconsider and cancel patent claims decades prior to the enactment of the Leahy-Smith America Invents Act (AIA) of 2011, the law which created IPRs and other validity trials at the PTAB. Notably, Congress created ex parte reexamination proceedings in 1980 and the Court noted that those proceedings continue today. Congress further created inter partes reexamination in 1999, though those proceedings were phased out with the enactment of the AIA.

The majority opinion goes on to cite various statutory elements of the AIA regarding various aspects of IPR proceedings, including preliminary responses by the patent owner, the USPTO Director’s determination of the reasonable likelihood that a petitioner will prevail before instituting an IPR, and post-institution activity such as oral hearings before the PTAB and the claim amendment process. The decision also gives a brief history of the case between Oil States and Greene’s Energy Group including Oil States original patent suit against Greene’s in 2012, Greene’s petition for IPR proceedings on the patent near the end of discovery in the district court case, and the Supreme Court’s grant of writ to take up Oil States’ appeal from the PTAB after the Federal Circuit summarily affirmed the PTAB’s decision in light of that court’s decision in MCM Portfolio LLC v. Hewlett-Packard Company.

“Inter partes review falls squarely within the public rights doctrine,” Justice Thomas wrote. The Supreme Court found that it has long recognized the grant of a patent as a matter involving public rights, citing to the Court’s 1899 decision in United States v. Duell. “Ab initio, the grant of a patent involves a matter ‘arising between the government and others,’” the Oil States decision reads. Citing to SCOTUS’ 1871 decision in Seymour v. Osborne, the Court found that patents are “public franchises” granted by the government. Further, the granting of patents occurs through the executive branch under statute laid out by the legislative branch without requiring judicial interpretation, and thus the determination to issue a patent grant “need not be adjudicated by an Article III court.”

Because IPR proceedings involve the same basic matter as the grant of a patent, “it, too, falls on the public-rights side of the line,” the Supreme Court found. In IPRs, the PTAB considers the same statutory requirements that the USPTO originally considered in granting the patent, preventing the “issuance of patents whose effects are to remove existent knowledge from the public domain,” citing to language found in 1966’s Graham v. John Deere Co. Although IPRs occur after the issue of a patent, the court found that didn’t create a distinction from the USPTO’s determination of a patent’s validity prior to granting a patent.

“If patents are public rights that can be challenged at any time and revoked that necessarily means they are not property,” said patent attorney and IPWatchdog publisher Gene Quinn. “Property rights vest and title quiets. Without that fundamental attribute, patents are nothing more than a government franchise. It is hard to believe innovators will spend hundreds of thousands of dollars and up to a decade fighting the Office to obtain a government franchise that can be stripped at will.”

“Trade secrets will become far more important until Congress overrules Oil States,” Quinn said. “In the meantime, it will be hard for innovators to justify spending billions necessary to achieve disruptive innovation only to be awarded a government franchise that can and will be revoked by the PTAB once proven valuable.”

We spoke with Todd Dickinson, a Partner with Polsinelli and the Former Under Secretary of Commerce for Intellectual Property & Director of the USPTO, who shared his thoughts with us:

In his opinion in Oil States v. Greene’s Energy, Justice Thomas, 7-2, upheld the Constitutional power of Congress to legislate the basic Inter Partes Review scheme (with a long tracing of patent statute history.)   In many ways, though, the money-quote is “We emphasize the narrowness of our holding”, taking pains to note that they’re not deciding the validity all aspects of the process, nor due process or retroactivity, leaving open the possibility of additional lines of defense for patent holders.  In dissent, Justice Gorsuch (with the Chief Justice), also reviews the history, but concludes that the IPR process is unconstitutional, with a ringing endorsement of the need for stability in the patent right (“Just because you give a gift doesn’t mean you forever enjoy the right to reclaim it”), and a deep skepticism of political influence on agency judicial independence.

While the majority clearly authorizes the continuation of the IPR process, its effects beyond the general status quo may be limited.  One possible result may be more stays from the District Courts, now that its legitimacy is clarified, letting the PTO do even more of the heavy invalidity lifting.

Ironically, it is the procedural nit case, SAS v. Iancu¸ which may have the more lasting impact for change.   In his 5-4 opinion,  Justice Gorsuch in SAS (as in his dissent in Oil States) dismisses the PTO’s interpretation of the AIA on so-called “partial institutions” as contrary to the statute, and clearly suggests that a majority of the Court is not wild about the abuses they’re hearing about the PTO IPR rulemaking process, and also signaled his known antipathy to Chevron deference for future deliberations.

Interestingly, Gorsuch seems to poke a very big hole, if not entirely overturn, their two-year-old decision in Cuozzo regarding appealability of institution decisions, elevating the Alito warning about PTO “shenanigans” in statutory interpretation and rulemaking in his Cuozzo dissent to the majority opinion in SAS, and suggesting they may be open to greater review of PTO IPR procedures generally.  Given this, I would expect PTO Director Iancu’s recently-announced intention to review and likely change PTAB processes, coupled with things like Sen. Coons STRONGER Patents Act, to be where the focus of the debate shifts even more than it has.

We also spoke to Russ Silfer, a Principal at Schwegman Lundberg & Woessner, and the Former Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office who had the following to say as well:

There is no doubt that the Court’s holdings in Oil States and SAS will be analyzed in depth over the next few months.  For me, the Court’s decisions were generally as expected.  I was not looking for the Court to provide a silver bullet to help inventors.  I anticipated that AIA trials would be held constitutional, however, I thought the Court could have ruled that pre-AIA issued patents would be treated differently.  The Court declined to address that issue stating, “Oil States does not challenge the retroactive application of inter partes review, even though that procedure was not in place when its patent issued.”  I anticipate a petition for certiorari is being drafted already.

For me, the holdings of these two cases highlight the critical importance of Director Iancu’s recent statements that the USPTO needs to make changes to how the PTAB conducts and institutes post-grant reviews.  He has stated a sincere desire to balance these proceeding in both reality and perception.  The USPTO must use the powers granted by Congress in the AIA to ensure the integrity of the patent system.  I made some suggestions last year that perhaps Director Iancu will consider as he determines the appropriate reactions to these decisions.’

According to Paul Fucito, Press Secretary for the United States Patent and Trademark Office, “The USPTO is carefully considering the Supreme Court’s decisions and determining their impact on various proceedings at the PTAB.

Stay tuned to IPWatchdog in the coming days and weeks as we will be covering both Oil States and the SAS decisions as well as Industry Reaction to both cases.

The Author

Steve Brachmann

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

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Discuss this

There are currently 41 Comments comments. Join the discussion.

  1. B April 24, 2018 1:42 pm

    Just finished reading it. Not surprised at any of it. While I think it was the correct decision, unfortunately the decision leaves patent owners vulnerable to the less-than-competent-as-a-rule APJs.

  2. Night Writer April 24, 2018 1:44 pm

    Not correct decision. Privy Counsel was not being used at time of adoption of English common law into US law, so it was a common law case and thus entitled to Article III. Ole Lemley has pulled another fast one and has won again.

  3. Anon2 April 24, 2018 1:55 pm

    It would appear that the onus of protecting individual patent rights now falls squarely on the shoulders of Iancu, since Congress, SCOTUS, and everyone else are not prepared to do so (or are acting against it).

  4. Pro Se April 24, 2018 2:05 pm

    It’s the IPR abuses that has effectively destroyed the U.S. patent system. It’s the filing of frivolous IPRs that are “legal doorstops” to stay district court litigations for a full year surrounding a 6 month institution decision window.

    When an IPR is filed today, courts and defendants acts like the patent has a cloud over it.. it can be wet paper frivolous, it doesn’t matter… the reputation of IPRs being a shredding machine for patents makes it impossible to enforce an infringed patent these days.

    Why Pharma would continue to invest in R&D for new medicines when protecting it was ruled a public right for Generics to steal?

    The U.S. patent system died for good today.

  5. David Salk April 24, 2018 2:07 pm

    Quite remarkable that we have a country that prides itself on innovation, and yet has proceeded to yank the ladder away from aspiring inventors, thereby defending the power of those who have already risen to it. The federal Courts have always served an important role in determining the validity of granted patents -yet here we are with a system where the granted patent means absolutely nothing until the EXPECTED IPR upholds the already granted claims…not a happy day for innovation in the U.S.A.

  6. Night Writer April 24, 2018 2:08 pm

    Kind of disappointing that Alito didn’t join in the dissent.

  7. Night Writer April 24, 2018 2:14 pm

    >>The U.S. patent system died for good today.

    At least as any type of objective system. We are political from now on. Your patent is only as good as the current administration wants it to be.

  8. Anon2 April 24, 2018 2:18 pm

    NW @6

    Well on the way towards a nation ruled by men and not law.

  9. EG April 24, 2018 2:47 pm

    The majority opinion can’t properly distinguish the difference between the GRANT of a patent (examination) versus the ADJUDICATION of its validity (IPR). Also, calling patent rights equivalent to a “franchise” is nonsense. Finally, as Gorsuch’s dissenting opinion correctly points out, McCormick Harvesting means what it says, and says what it means-once the patent is GRANTED, ADJUDICATION of its validity is only proper in an Article III court.

  10. Insignificant Dallasite April 24, 2018 2:53 pm

    “If patents are public rights that can be challenged at any time and revoked that necessarily means they are not property.” This quote signals an eccentric understanding of property. Is cocaine not property? What about money that represents ill-gotten gains of a criminal enterprise? Even real property can be seized by the government if you don’t pay your taxes. It’s not not property because of that fact. And people have been trying hard to get patents for 200 years despite the fact that they can be invalidated. This decision didn’t change anything in the law, so why would it change anything in fact?

  11. angry dude April 24, 2018 2:57 pm

    “The majority opinion was authored by Justice Clarence Thomas” :):):)

    This kind of summarizes it all – no need for comments (I’d rather not use bad words here)

    NO MORE PATENTS FOR ME ! AMEN !

  12. Night Writer April 24, 2018 3:06 pm

    I think –need to look at it closer–that Gorsuch and Roberts are saying that Lemley’s paper is wrong about the Privy Counsel. That is kind of interesting. Here we have a paper that was published in a vanity press with no review and the SCOTUS is citing it and using it for a dispositive fact, i.e., at what time did the Privy Counsel stop adjudicating validity of patents before the US or after the US.

    Be interesting to look closer at that paper of Lemley’s and see what unethical things he did. Absolutely shameful that the SCOTUS is quoting an unreviewed paper to determine such an important issue.

  13. Night Writer April 24, 2018 3:07 pm

    @12 Oh, the issues determines whether it is a common law issue or not. I wish Ned were here to discuss this with.

  14. PTO-Indentured April 24, 2018 3:08 pm

    NOT UNCONSTITUTIONAL:

    Here’s your property we grant to you under our first PTO test of its validity.

    Here’s your property we (and others encourages to do so) take away from you under our second, significantly easier-to-defeat PTO test(s) / serial test(s), of that previous test you thought yielded validity.

    What the …?: “…the court found that [IPRs] DIDN’T CREATE A DISTINCTION from the USPTO’s determination of a patent’s validity prior to granting a patent.”???

    The SCOTUS majority decision-makers appear to have simply accepted (bought the packaged-idea) that IPRs are “A way to ‘check’ a ‘quality’ of a patent” (how benign sounding). AS IF, such a ‘check and balance’ was done on an even playing field, not under significantly different and consequential rules — refusing to take into account an institutionalized double-standard having proven itself to yield: a 90% patent kill rate for years / since AIA 2012; and, a tumbling of the U.S. patent system from 1st-ranked to 12th-ranked state.

    Bears repeating: “…the court found that [IPRs] DIDN’T CREATE A DISTINCTION”

    The SCOTUS decision may have erased from the books of 2018 any substantive prospect for change at the PTO, as action on current patent reform bills before Congress is likely to be (intentionally) delayed until some time in 2019.

    I wonder: will the PTO by 2019 be ranked at 15th worldwide by then? Anyone want to make any bets?

  15. Paul Morinville April 24, 2018 3:12 pm

    Goodbye US patent system. It was a good run. You helped us become the greatest economic and military power the world has ever known. But now we stand aside for others to take that lead. It is a voluntary decision on our part. We no longer need you as our corporations have grown larger than our government and more influential. You now stand to corrupt the relationship between our corporations and our elected officials and government employees. That of course would damage the money flow. So, please go to other places like China. We no longer need technological advancement. We just need corporate dollars.

  16. Anon April 24, 2018 3:18 pm

    Not only is the score board broken – the usual people are celebrating that the score board is broken.

    As with any addiction problem, the first step is recognizing that there is a problem.

    The US Supreme Court has failed that first step.

    NOW – more than ever, we need Congress to step in, exercise its own Constitutional power of jurisdiction stripping of the non-original jurisdiction of patent appeals from the Supreme Court, write (or now, re-write) the law to be clear (and for strong patent rights), and create a NEW (untainted) Article III court of review (in order to maintain the holding of Marbury).

    Anything short of this will not do.

    (sadly, I cannot see the current Congress itself even recognizing this need)

  17. Night Writer April 24, 2018 3:24 pm

    @16 you are asking Congress to step in because the SCOTUS did not find something the Congress passed as unconstitutional. Good luck with that.

  18. angry dude April 24, 2018 3:25 pm

    So patents are officially declared sh1t … but somehow are listed as intangible assets and assigned multi-million dollar values on the balance sheets of large tech corps…

    WTF ???

    Time for writing off shareholder’s assets, class action lawsuits or what ?

    How can they be allowed to fool the general public and assign big dollar value to something that is not their property and can be taken away any time ???

  19. B April 24, 2018 3:29 pm

    “The US Supreme Court has failed that first step.”

    Look, if the PTAB weren’t such a clown college of bias and incompetency, few here would be so condemning of this opinion. There are argument for and against it.

  20. Silicon Valley Inventor April 24, 2018 3:31 pm

    @Angry #18 “How can they be allowed to fool the general public and assign big dollar value to something that is not their property and can be taken away any time ???”

    Because they own the government (and the general public’s data for that matter), and have the capital to make the system work for them. If the little guy tries to fight them, they will quickly turn out the guy’s lights. If another big guy tries to fight them, they will need their patent portfolio to avoid paying out a huge settlement by negotiating cross-licensing deal. That’s why their intangible assets are worth high valuations. They have the attorneys on staff (and on K street) to make those valuations stick.

  21. Silicon Valley Inventor April 24, 2018 3:34 pm

    I should add to the others, horrible miscarriage of justice today. Depressing. How I wish, when I filed my first patents in 2010, I had the foresight to file in China.

  22. Pro Se April 24, 2018 3:36 pm

    @21. Me too… I’m kicking myself now that I didn’t go for China as my biggest infringers have exported a major part of their services there.

  23. step back April 24, 2018 3:43 pm

    We have “unleashed” the hounds of American innovation and they hath run off to bide their time elsewhere. Great again no more.

  24. Anon April 24, 2018 3:55 pm

    Night Writer @ 17,

    That irony is not lost on me.

    That being said – the decision here (and the rationale that “somehow” in certain circumstances, patents are not really property – IS something that Congress should collectively stand up and take notice.

  25. Bemused April 24, 2018 5:47 pm

    “When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.” – Frederic Bastiat

    Oil States will go down in history as the Dred Scott decision of patent law. Shame on those seven fools at the US Supreme Court who are too stupid to even understand the damage they’ve done to this country.

    So what gave rise to the presidency of Donald Trump? Was it racism or misogyny or white privilege? Nope. It was the corruption of the political class (Congress) aided and abetted by the indifference of the guardians of our Constitutional rights (SCOTUS) and the mad-as-well-we’re-not-going-to-take-it-anymore push-back of the oppressed and the forgotten citizens of this great nation.

    So, let’s go ahead and grind our teeth and curse the corrupt politicians and the pompous fools who wear the black robes and go lick our wounds. Then tomorrow once again back unto the breach cause this fight is far from over.

    This country, our children and future generations demand no less from us.

  26. A Contrarian April 24, 2018 6:04 pm

    After the city planning department draws the property map accidentally giving part of the street to my neighbor, I’m glad to be able to petition the planning department to correct the map without having to sue my neighbor.

    A few hours of examiner search is insufficient to find all existing prior art. Want certainty of validity? Do your own prior art search.

  27. Night Writer April 24, 2018 9:47 pm

    >>Want certainty of validity? Do your own prior art search.

    KSR means validity is in the eyes of the fact finder. The AIA means that lots of different people can look at it and get to decide all over again whether it is patentable. eBay, KSR, Alice, Oil States, AIA, and others have put us where we are.

  28. Benny April 25, 2018 6:56 am

    SIV and ProSe,
    Chinese patents can be invalidated, too. (article 48)

  29. Mark S. Graham April 25, 2018 8:38 am

    With all due respect to our well-meaning colleagues on the Court, the Oil States decision is completely misgiuded! As a 30+ year veteran of Patent Law practice/litigation, I am dismayed; and I stand ashamed today. Congress undoubtedly needs to overrule this unfortunate, nonsensical fiat, ASAP.

    It is now quite obvious that this Court is currently out of its element in the realm of Patent Law. The majority in Oil States fundamentally misunderstands basic, time-honored principles of property law and Article III powers, as applied to issued US patents and the rights they embody. Standing true to these principles has kept this sort of aberration in check for decades.

    Again, Congress must act to effectively overrule this decision, reclaim the unfortunate IPR experiment (doomed from day one) and remedy this chronic sickness in our system of adjudicating rights under issued US patents; and it must do so with all dispatch!

    Relatedly, Congress MUST legislate uniformity of patent claim construction in assessing validity/infringement of issued US Patents. I mean, what am I missing? I have seen no reasonable explanation as to why the current dichotomy of approach to claim construction makes any sense whatsoever. It should be obvious to any rationally thinking person knowledgeable about patent law that this bizarre schism of claim construction standards must be rectified. It is like a cancer that is killing our patent system.

    WE MUST GIVE FULL GIRTH OF ADJUDICATING ISSUED US PATENTS BACK TO THE US DISTRICT COURTS WHERE IT HAS ALWAYS BELONGED! WE MUST LEARN TO PATIENTLY ENDURE DEVELOPMENT OF THE PATENT LAW IN THE DISTRICT COURTS AND IN THE APPELLATE COURT SYSTEM.

  30. B April 25, 2018 1:20 pm

    “KSR means validity is in the eyes of the fact finder.”

    Respectfully, KSR once meant validity was in the eyes of the fact finder. It only took seven years of turmoil, but the CAFC finally got it right in K/S HIMPP v. Hear-Wear (2014). Evidence is still necessary to prove individual limitations, and even under KSR there must be evidence and/or reasoned argument to modify a reference.

    This doesn’t mean that it’s possible to enlighten PTO examiners and APJs despite the KSR-based comments in the MPEP.

  31. A Rational Person April 25, 2018 2:30 pm

    B@31,

    KSR also still means that hindsight may be used to combine references, because there are few protections against the use of hindsight bias in the KSR decision.

  32. B April 25, 2018 4:55 pm

    “KSR also still means that hindsight may be used to combine references, because there are few protections against the use of hindsight bias in the KSR decision.”

    Hindsight has always been allowed to combine references – as long as there’s other, independent support. See MPEP 2145(X)(a)(‘However, “[a]ny judgment on obviousness is in a sense necessarily a reconstruction based on hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill in the art at the time the claimed invention was made and does not include knowledge gleaned only from applicant’s disclosure, such a reconstruction is proper.” In re McLaughlin, 443 F.2d 1392, 1395, 170 USPQ 209, 212 (CCPA 1971).’)

    The MPEP recognizes this. The Courts recognize this. KSR didn’t change this – just the SCOTUS in some dicta stated that the CAFC was too rigid on the idea that hindsight drove everything.

    Example: In 2005, one holding company tried to sue three separate clients of a large firm I worked for: Menards, Toyota and Victoria’s Secret. The claims were so badly written and vague that three separate groups of attorneys located in SF, DC and Chicago were struggling to understand them, and invaliding them was a nightmare if not impossible given the courts’ reluctance to invalidate a claim under s112,p2. In the end, I found art that described what our various clients were doing that pre-dated (over a year) the patents at issue, but didn’t claim what our clients were doing. Plaintiff then went away.

    Hey, I’m pro-patent, but I’ve dealt with some real stinkers, and even recommended forgoing a suit on an overly-broad independent claim that had zero chance of surviving in favor of one or more viable dependent claims. I’ve also counseled clients to take a patent into narrowing re-issue/re-exam before filing suit.

    My point: Some patents deserve to die, some do not. Give me a fair, knowledgeable and unbiased judge; and a reasonable set of rules based on evidence.

    As the PTAB tends to provide nothing reasonable, unbiased, fair, and knowledgeable – and is clueless w.r.t. evidentiary requirements – I get why the patent community has gone apeskeit re Oil States. The SCOTUS unwittingly handed over the keys of the kingdom to the kids on the short bus.

  33. staff April 26, 2018 1:53 pm

    ‘will be revoked by the PTAB once proven valuable’

    Precisely. As we found with the secret SAWS program and with gerrymandering of PTAB panels to ensure management’s desired result, the PTO is not immune to political and industrial intrigues which deny inventors due process and property rights. Neither as we now see are the majority of the court. By way of this and many other decisions since at least eBay in 2005, the court has failed inventors and America. We now have no course but to draft and enact our bill with the help of our friends in Congress in a manner that prohibits misguided or unjust courts, knowingly or otherwise, from denying our rights. Is the SCOTUS majority suited or even competent to hear cases involving patent law?

    For our position and the changes we advocate (the rest of the truth) to restore the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
    or, contact us at aifj@mail.com

  34. A Rational Person April 26, 2018 5:49 pm

    B@33

    Your point is well-made and understood. However, the power of “hindsight bias” is known to be incredibly strong and I’ve seen very little in the way of “independent support” in justifying any combination rejection I have seen since KSR. I regularly see combinations of references made where my inventors’s application has been used as a road-map to combine unrelated references that would never have been combined before KSR. In many cases, it is clear that the combinations were based on what my inventor’s application teaches and a word search for terms in the claims, not on based on a consideration of what was known in the art prior to my inventor’s invention.

    As long as an Examiner includes any hindsight reason for combining the references, it’s virtually impossible to challenge a combination. So effectively, virtually all types of hindsight reasoning are now permitted in making a combination, unless you can show a teaching away in one of the references or show that the combination is physically impossible.

  35. staff April 26, 2018 6:34 pm

    ‘will be revoked by the PTAB once proven valuable’

    Precisely. As we found with the secret SAWS program and with gerrymandering of PTAB panels to ensure management’s desired result, the PTO is not immune to political and industrial intrigues which deny inventors due process and property rights. Neither as we now see are the majority of the court. By way of this and many other decisions since at least eBay in 2005, the court has failed inventors and America. We now have no course but to draft and enact our bill with the help of our friends in Congress in a manner that prohibits misguided or unjust courts, knowingly or otherwise, from denying our rights. Is the SCOTUS majority suited or even competent to hear cases involving patent law?

    For our position and the changes we advocate (the rest of the truth) to restore the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
    or, contact us at aifj@mail.com

  36. Marion Eugene Cavanaugh April 30, 2018 3:38 pm

    Good decision. Taking a bad patent from an organization that has some idea of what should be allowed, to a judge, who often is at the mercy of attorneys who also have some idea, but see it only as the client wants it to be, is a very bad idea.

  37. B April 30, 2018 4:28 pm

    “Taking a bad patent from an organization that has some idea of what should be allowed . . . is a very bad idea.”

    You’re obviously oblivious as to the nature of the PTAB. I think the SCOTUS decision was correct, but NO ONE I ever met thinks the PTAB is remotely competent or unbiased.

  38. John Wu May 2, 2018 3:35 pm

    Patent invalidation is a common feature in all patent systems I know. So, most people would think all problems within the common law framework. In those non-common law nations, they do not have millions of potential challenges and defenses…. No matter what processes they use, they would never invalidate more than say 10% granted patents. When a patent system is given a device to invalidate more than 70% patents, it is same as crippling the patent system.

    China now treats patents (a public right) as being closer to private rights, but U.S. treats patent right as a public right. What has turned the earth to spin a wrong direction is the Citizen Untied. Did the Chief Justice see what would happen when he handed down that opinion? He will not able to fix all on-going problems and endless new problems that will come out from that bad decision in his life time. So, when corporations run the nation, all decisions are driven by bottom-line (nothing is wrong for them to do that). It is natural to see environmental destruction, national population health destruction, technological define, economic define, and finally lost distinction between humans and machines.

    Patent is only a small thing. I found that U.S. resident’s disease probability will soon hit a unity probability if I add all disease chances for all years from 10 to 80 years for all diseases. Population infertility is hitting the nation with unstoppable momentum.

    While the nation is implementing national policies like committing suicide, all major media and corporations are enjoying great growth….

  39. b May 2, 2018 4:43 pm

    “China now treats patents (a public right) as being closer to private rights, but U.S. treats patent right as a public right. What has turned the earth to spin a wrong direction is the Citizen Untied.

    You’ve obviously never read the CU decision. I’ve never met a person who was critical of CU to actually know what the case stands for. Go ahead – without looking up the case on the internet – tell me what you think CU holds.

  40. Anon May 3, 2018 6:49 am

    “Small b,” your post accusing someone else of not doing something (with nothing more), and then asking them to make your case (down to the “Go ahead” dare style) seems copied from that other blog’s Malcolm Mooney.

    That does not work for him.

    That does not work for you.

    You appear to be of the view that Citizens United simply cannot be wrong and that anyone who is critical of that case just does not “actually know what the case stands for.”

    The case concerns a certain status for juristic persons. It does so as if in a vacuum, not accounting for the real world differences between ANY such juristic persons and real persons. This “in a vacuum” effect exacerbates the problems already inherent in juristic persons already having certain advantages over real persons.

    This is not a difficult concept, and flows quite easily from the case.

    What – and go ahead and look up anything you want on the internet – would make you think otherwise?

  41. B May 3, 2018 10:46 am

    “Small b,” your post accusing someone else of not doing something (with nothing more), and then asking them to make your case (down to the “Go ahead” dare style) seems copied from that other blog’s Malcolm Mooney.

    I stand by my statement unapologetically, but please let Mr. Wu explain EXACTLY how CU ‘turned the earth to spin a wrong direction.’

    I’ll wait patiently.

    You appear to be of the view that Citizens United simply cannot be wrong and that anyone who is critical of that case just does not “actually know what the case stands for.”

    I’m not saying CU couldn’t be wrong, although I think it is a great stride protecting the free speech of non-millionaires and non-billionaires. Imagine letting people of modest means pool their money to create political advertisements – thus putting them in competition with Michael Moore et al. Some people think that’s a bad thing. I do not.

    Still, I’ll wait for Mr. Wu to opine himself.

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