Inventor organization US Inventor (USI) and Ron Katznelson—the author of a widely cited study detailing the link between Patent Trial and Appeal Board (PTAB) judges’ decisions and their compensation—have filed separate amicus briefs supporting New Vision Gaming and Development, Inc. in its most recent appeal to the U.S. Court of Appeals for the Federal Circuit (CAFC). New Vision is arguing that America Invents Act (AIA) trials violate the Due Process Clause and that the recent Government Accountability Office (GAO) Report documenting how U.S. Patent and Trademark Office (USPTO) and PTAB management control influences Administrative Patent Judges’ (APJ) decision making bolsters its previous arguments and warrants a new appeal. While USI’s brief expands upon this argument, Katznelson’s provides both old and new data that he says proves a “structural bias” exists.
Section 145 of the Patent Act authorizes patent applicants to bring suit against the United States Patent and Trademark Office (USPTO) in district court following a loss at the Patent Trial and Appeal Board (PTAB). Under Section 145, patent applicants can present new evidence that was not suitable in a Patent Office appeal, including expert testimony. A 145 action can…
The CAFC on Friday, February 11, denied a petition for writ of mandamus filed by B.E. Technology in November of last year asking the court to intervene to “prevent an unconstitutional deprivation of B.E.’s property rights in the onslaught of IPR proceedings that have been brought to challenge the validity of its most critical patents.” B.E. has been embroiled in litigation with big tech companies like Facebook, Twitter and Google for close to a decade now. The CAFC said in its denial that “B.E. has not shown a clear right to a different result here by relying primarily on a self-published article that is outside of the record.”
Asking whether the industry has gone too far to eradicate weak patents misses the point entirely, and to some extent will allow those who want the patent system to continue its march off the cliff to inappropriately claim the moral high ground. Regardless of how you prefer to characterize problem patents, whether it be as weak, bad, low quality, or invalid, no one wants those problematic patents to issue or be used to harass individuals or businesses as they sometimes have been used by bad actors. But that begs the real question. In an attempt to eradicate the system from those problematic patents have things gotten out of control and, thereby caused collateral damage in an indiscriminate way to all patents, including high quality, strong patents? To that question the answer must be a resounding yes!
A troubling fundamental aspect of the proposed mandatory stay is that it would chip away at the quid pro quo of the patent bargain. To ensure the Constitutionally-protected exclusive right, patent rights have long been recognized as covering multiple and independent separate causes of action: “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.” 35 U.S.C. § 271(a) (emphasis added). Strict liability attaches to each one of these forms of infringement independently of the others. These are separate violations, any one of which being subject to injunctive relief “to prevent the violation of any right secured by patent.” 35 U.S.C. § 283.