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IPWatchdog recently published an article dealing with the federal government’s writ of certiorari in which it claims that it is a “person” entitled to file petitions to invalidate patents before the Patent Trial and Appeal Board. IPWatchdog also recently published an article highlighting the inequity of repeated and concerted patent attacks.
These issues, and a few others, are discussed in the dialog between Inocencia Erfinder, the heroine in my forthcoming book Plight of the Patentee, and her lawyer.[1]
Inocencia: Can a series of attackers file inter partes review petitions and, to the extent those petitions are granted, stay patent litigation for years on end?
Lawyer: Yes. That can happen. Let me tell you a true story.
On November 8, 2013, Applications in Internet Time sued Salesforce.com for alleged infringement of the plaintiff’s patents (7,356,482 and 8,484,111). Salesforce.com tried to invalidate these patents by filing a petition for the Patent Trial and Appeal Board to review the patents in-suit under its Covered Business Methods program. The parties agreed to a stay their litigation at the time of this filing but that stay was lifted after the PTAB denied the CBM petitions.
A short while after the CBM petition was denied, RPX Corporation filed an inter partes review petition with the PTAB. Salesforce.com filed a new motion for a stay which the district court judge granted after the PTAB granted RPX’s inter partes review petition. The district court judge’s reasoning for granting the stay was that Salesforce.com was not a party of interest in the RPX petition which in unfathomable given the points discussed below.
Inocencia: Okay. I see how multiple players could elongate stays by filing consecutive inter partes review petitions. But, just for my education, did Applications in Internet Time also initiate patent infringement litigation against RPX?
Lawyer: No. Applications in Internet Time never accused PRX of infringing its patents.
Inocencia: I’m confused. If PRX was not a defendant, why did that company move to invalidate Applications in Internet Time’s patents?
Lawyer: Well, you may want to pose that question to RPX. But here is my take. RPX is in the business of extricating the companies that pay it large sums of money from paying damages resulting from such clients’ (allegedly) infringing activities. While Salesforce.com was busy with its CBM petition, it lost its one-year window (subsequent to the initiation of patent litigation) to file a petition for inter partes review. So, a few months later, RPX swooped in and filed its own inter partes review petition in efforts to invalidate the patents that were asserted against Salesforce.com.
Inocencia: Aren’t there standing requirements to move to invalidate someone’s patents via inter partes review proceedings? Can anyone at any time use inter partes review to seek to invalidate someone’s patents?
Lawyer: Let me answer your second question first. Anyone can attempt to invalidate any patent at any time for any motive (or for no motive). The only exception is that defendants in patent litigation who choose to go the inter partes review route must file a petition for inter partes review within one year of the beginning of the patent litigation. I suppose I inadvertently answered your first question; there are no standing requirements to file an IPR. However, Section 312 states that inter partes review petitioners must disclose all real parties in interest.
Inocencia: So was it just coincidental that RPX’s inter partes review petition dovetailed with Salesforce.com’s efforts to invalidate the same patents?
Lawyer: In its inter partes review petition, RPX stated that it was the only party of interest, the only party involved in preparing and presenting its inter partes review petition, and that PRX was not representing anyone else in its petition. Nonetheless, there is quite a bit of evidence that RPX was motivated to rescue Salesforce.com from its embroilment as an accused infringer. To wit:
- com was the only entity that Applications in Internet Time accused of infringing its patent in-suit; no other company had any immediate stakes in seeing the subject patents invalidated.
- com was an RPX client; Salesforce.com made substantial and increasingly large payments to RPX.
- RPX’s advertising materials stated that its interests were “100% aligned” with those of its clients, that it provided patent infringement “insurance” services to its clients, and that it served as an adjunct to its clients’ in-house legal departments.
- RPX was aware of the Applications in Internet Time lawsuit and the denied CBM petitions as evidenced by numerous communications between RPX and Salesforce.com leading up to the filing of its inter partes review
- The two companies had a mutual director on their boards.
- RPX and Salesforce.com were located in the same building.
Whatever the degree of coordination or water carrying on RPX’s part for the benefit of Salesforce.com, Applications in Internet Time must have felt that it was at the epicenter of a full-on pincer movement. In the district court, Salesforce.com argued that the claims it was accused of infringing should be construed very narrowly, so narrowly that Salesforce.com could not possibly be infringing them. When RPX took a whack at Applications in Internet Time’s patents, that San Francisco-based company argued the claims of Applications in Internet Time’s patents were extremely broad, making the mission of producing patent invalidating prior art much easier. (To be fair to RPX, Unified Patents has also been accused of helping infringers circumvent the one-year state of limitations that kicks in after an alleged infringer has been sued in district court.)
Inocencia: So, what you are telling me is that anyone can move to invalidate any patent at any time for any reason through a government tribunal that former Federal Circuit Chief Judge Randall Rader depicted as “death squads killing property rights” as long as the attackers disclose who is really behind the invalidity attempt; but even if a patent attacker fails to meet that minimum requirement, the attack is still allowed to proceed?
Lawyer: That is not how the system is supposed to work. Judges and Administrative Patent Judges have days where they make bad decisions. It can happen to the best of them.
Inocencia: For every day that a judge or Administrative Patent Judge makes a bad decision, there is an inventor who just realizes that he had a bad decade in terms of investing in patent worthy inventions. Just for clarity, as long as a person has money, he can attempt to invalidate any patent at any time?
Lawyer: According to the U.S. government, the petitioner doesn’t even need to be a person in the sense that you and I think of the term “person.” On October 26, 2018, the U.S. Supreme Court granted a writ of certiorari to take up Return Mail Inc. v. United States Postal Service. In this case, the federal government is arguing that it is a person who may petition the Patent Trial and Appeal Board to institute patent validity review proceedings.
Inocencia: Why in the world would the federal government want to be an active participant in invalidating patents that the USPTO grants? Does the federal government believe that an insufficient number of patents are challenged through inter partes reviews, that there is insufficient gang tackling (which occurs when another petitioner requests joinder using a near-photocopy of the original petition), or that there are insufficient serial attacks on the same patents? To put the last issue in other words, does the federal government really believe that nine attacks against some patents are needed? Anyway, at least there is still the requirement to pony up some money to launch inter partes review.
Lawyer: That is true but a bit of qualification might be in order. First, assuming that the U.S. government wins the Return Mail case, I don’t know if the federal government would have to pay fees to the PTAB. Second, petitioners for inter partes review are eligible to receive a partial refund of their filing fees if they elect to halt their IPR proceedings before a decision is reached. Third, Unified Patents has supported the training of law students in “identifying prior art and properly making arguments which could be used at the PTAB to invalidate such patents.” In supporting such training in conjunction with the University of Detroit – Mercy School of Law and Berkeley Law, Unified Patents can reduce the cost of putting IPR petitions together.
Inocencia: As to your second qualification, does the patent office refund patentees for any of the expenses they bear in defending their patents in IPR proceedings? Does the patent office refund patentees for the maintenance fees they have paid when their patents are invalidated? Do patentees receive extended terms on their patents to compensate for the time their cases are stayed while going through IPR proceedings?
Lawyer: Of course not. On the contrary, the USPTO’s position has long been that patentees should pay the expenses the patent office incurs when the patentee appeals a PTAB decision before the Federal Circuit Court.
Let me say something before you ask me about Unified Patents supporting the training of law students in attempting to invalidate patents. Training law students is a good thing. Purging bad patents also has merit. So, I don’t have a problem with Unified Patents supporting the training of new cadres in the methods of invalidating patents.
Inocencia: Then, there shouldn’t be a problem with someone sponsoring scholarships directed to training aspiring real estate lawyers in the best ways of dispossessing people of their homes because chains of title problems exist or because of misrepresentations on mortgage applications. Maybe law students studying employment law should receive similar support in learning how to conduct rigorous employment law compliance audits. It would be incongruent for the principals of Unified Patents to object if such subsidized scrutiny were directed to their residences or business.
Lawyer: I haven’t thought about that. But I can’t argue with the logic.
_______________
[1] Did you catch the double entendre? The heroine’s name means “innocent inventor” in Spanish and German, respectively.
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Join the Discussion
25 comments so far.
Paul Morgan
December 4, 2018 05:02 pmHere is a recent report from the prestigious Jones Day lawfirm;
“The PTAB has discretion to deny “follow-on” petitions that challenge the validity of a patent that has been previously subjected to inter partes review. See 35 U.S.C. § 314(a); Gen. Plastic Indus. Co. Ltd. v. Canon Kabushiki Kaisha, Case IPR2016-01357 (PTAB Sept. 6, 2017) (Paper 19) (providing list of factors to consider in evaluating follow-on petitions). Most often, this situation comes up when the same party files multiple petitions challenging the same patent. But the PTAB’s recent decision in United Fire Protection Corp. v. Engineered Corrosion Sol’ns, LLC, Case IPR2018-00991 (PTAB Nov. 15, 2018) (Paper 10) at 11, makes clear that the PTAB’s discretion under Section 314(a) “is not limited to situations where the same party files multiple petitions” and “the General Plastic factors provide a useful framework for analyzing the facts and circumstances present in this case, in which a different petitioner filed a petition challenging a patent that had been challenged already by previous petitions.”
Mike
December 1, 2018 12:40 pmYes. I read it with delight the first time you posted.
A more pressing question is:
How do we get Iancu’s office to become aware of these ideas and exercise the power? I encourage you to post your dream (and even modify it to include proper denial of IPR institution as outlined here) on every article that comes out so it hits home. I mean, if President Trump gets his news from FoxNews, who’s to limit an advisor from scouring these very comments and finding sound ideas?
The sender/source of a message should not have any bearing on its merits, but just even knowing such message exists is paramount. This is why I do not hesitate to express things here, especially since Gene Quinn and Director Iancu have a working relationship. All I need is for at least one thing to resonate. The bathwater has been thrown out and me, a pro se inventor along with it, but I still have a voice.
Accordingly, I encourage you to compile your collective writings across these various threads and blogs into some type of paper, book, or resource with evidence and a proposed call to action that can be consumed and referenced. You can remain Anon or even Publius. Someone should personally hand this work to Iancu and staff, Congress, and even SCOTUS.
I personally am looking for resources such as these that can then be simplified into consumable video bites or PowerPoints for the purposes of sharing with representatives/legislators, along with proposed legislation in hand. The latter as a result of my discussion with Josh Malone, where he said that when he shared his story with congresspersons, they would ask, “So what do you want to do to solve this?” with literally no suggestions to offer. They literally need someone to offer them legislation. I mean, if even J. Breyer admits not knowing how long the terms of patents are, yet rules on them, imagine the education needed for someone newly elected. We literally have to hand deliver them a written solution to have any effect.
Anon
December 1, 2018 09:27 amWe are in agreement, Mike.
Did you perchance see my “dream?”
Mike
November 30, 2018 07:12 pm“I … continue to admonish all that EVERY branch of the US government (and that includes the judicial branch must act UNDER the Constitution.”
I agree 100%. It is here where I think Iancu can boldly continue to adhere to his oath. Once can watch a video recording of his oath on the USPTO facebook page. He affirmed: “I, Andrei Iancu, do solely affirm: that I will support and defend the Constitution of the United States, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.”
His duty, and the duty of all in the Patent Office, is to support and defend the **Constitution**, NOT the Supreme Court and NOT even Congress. If the Supreme Court or Congress gets it wrong with respect to this duty to support and defend the Constitution, Iancu and the Office should carry on in conflict. He/they represents the Executive Branch. It is within their power. The Patent Office is to execute the law AS WRITTEN, so long as it does not interfere with the duty to support and defend the Constitution. It is for this reason alone Iancu should order a directive that any IPR petition for a preAIA patent should be denied. Reason? Their oath is to support and defend the Constitution. The Constitution takes precedence. Carrying out law that does not support nor defend the Constitution should keep them up at night. They have every right to deny institution due to this alone.
Like I’ve said before, it’s all here:
The Constitution, Article I, Section 8 states: “The Congress shall have Power To…promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries …”. Congress did that, and said that “patents shall have the attributes of personal property”, 35 U.S. Code § 261.
Congress then created the AIA (note that the personal property attribute clause did not change), and included retroactive application of IPRs on patents having priority dates that predated the enactment of the act, which flies in the face of at least due process and takings. The Constitution, 5th Amendment, says that “No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (“Due Process” & “Takings” Clauses).
Moreover, the Constitution, Article I. Section 9 also states: “No ex post facto Law shall be passed.” The technical definition for ex post facto at the time clearly included both criminal and civil law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2469141), and even Justice Thomas, 200 years later, is not convinced of its limitation to the criminal context in Calder (1798). See his concurring opinion in Eastern Enterprises v. Apfel (1998). One need look no further than Federalist 44 for the definition of, and the reason behind omitting, ex post facto laws: “[E]x-post-facto laws are contrary to the first principles of the social compact, and to every principle of sound legislation. … [T]he convention added this constitutional bulwark in favor of personal security and private rights; … The sober people of America … very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society”.
Retroactive application of IPRs on patents having priority dates prior to the enactment of the AIA
a) voids the patent bargain with owners of said patents,
b) is “contrary to the first principles of the social compact”,
c) is not “in favor of personal security and private rights”,
d) creates “speculation on public measures”,
e) reduces “general prudence and industry”, and
f) destroys “a regular course to the business of society”.
Perhaps by Iancu’s firm order to carrying on with his Constitutional creed by denying IPR institution on preAIA patents will then Congress see the conflict. Actions like this would have even more effect, for example, encouraging Congress to legally strip the courts from creating things like judicial exceptions. Iancu has his lawyers. They all need to remember the oath, read the Constitution, and grow a pair. The Constitution has got his back, and so do inventors. Majority does NOT rule. Truth rules. All it takes is one to stand firm and dissent.
Anon
November 29, 2018 09:56 amMike,
Please remind me again in two weeks to pick this up. I will be swamped until then.
I think that you have some interesting angles here (and that MORE angles of Constitutional infirmity attach to what the Court has been doing in the patent space).
As you most likely can tell, I am not one of those that place too much emphasis on the “Supreme” of the Supreme Court, and continue to admonish all that EVERY branch of the US government (and that includes the judicial branch) must act UNDER the Constitution. Each branch is constrained by that document and the checks and balances of our system. The Federalist Papers (of which I know that you are familiar) actively warned of a “too-strong” judicial branch. I have also called for attorneys to reflect on their actual state oaths as to their duty to NOT place the Supreme Court above the Constitution. To date, the only state oath that has been shared and shown to be even arguably vague about this duty has been the Commonwealth of Massachussets (seemingly placing the Court on a ‘preferred client’ basis).
Concerned
November 29, 2018 05:03 amSadly, no matter how strong the legal arguments and logic, I see a hidden agenda to kill all software patents and/or pick the winners arbitrarily.
Just like the sub prime mortgage scam, where ridiculous arguments were made to give straw men loans so manipulators behind the scenes profited, this patent hoax will continue until it threatens the country as a whole and/or starts screwing the manipulators.
And like the sub prime mortgage scan, everyone’s great ideas or legal arguments will fall on deaf ears as those ideas or legal arguments are premature to the involuntary stoppage of this patent scam (screwing the country as a whole or backfiring on the manipulators.)
My examiner advancing an argument that even a novice could tell is bogus on the surface is just a symptom of the same. Again, just like the sub prime mortgage scam where common people waiting in a grocery store line remarked to others how their friend got a home loan with no income or financial means, everyone seemed to know of such a story. Of course it was ridiculous, and everyone knew it was ridiculous. The manipulators got their huge fees while screwing anothers until they could no longer screw us, the nation was on the verge of financial collapse.
Frustrating to watch history repeat itself at the expense of good people. I feel sorry for those that made patents their career field. I am just a lucky one time inventor who can walk away after getting bent over.
Mike
November 28, 2018 11:35 pmAnon:
Not exactly. Suggesting a congressional reset (Game 2, new rules) does not forego the inquisition on how to pick up and use Oil States remnants (in the current Game 1): due process, takings, ex post facto, appointments etc. I did both here as well as on the other thread.
I wish we weren’t anonymous here. You might be able to help my developing case.
Anon
November 28, 2018 07:23 pmMike,
Would it be fair to say that your view here sounds like my view on another thread (a view that, as you put it, may not be fruitful in the art of persuasion)…?
😉
Mike
November 28, 2018 01:27 pmThe butterfly flapped its wings in China eons ago, and we are now experiencing the thunderstorm effect. Such is the flaw with law created from the bench and by precedent. Ironically, China seems like the place to go for IP protection.
A Congressional reset seems to be the next course of action. There’s also the method the French Revolution used, but I won’t suggest that.
Concerned
November 28, 2018 12:45 pmMike:
Routine, well understood and conventional is not in statute.
The phrase is non-existent and the labeling of my process as such is not factual, not truthful and not logical.
How does such happenings occur in a legal environment?
Mike
November 28, 2018 11:46 amconcerned:
When you say “When an examiner says ‘Routine, conventional and well understood’ …”, I ask: Is this in the statute? Where is the authority for creating judicial exceptions expressed?
concerned
November 28, 2018 05:06 amMike @13
I agree and I will go one step further. When an examiner says “Routine, conventional and well understood” it should mean that the claims have been used by someone on Earth, and more likely, used by a lot of someones. My claims were rejected even though I proved that no one uses my claimed process to include the experts and professionals.
My examiner has only approved 2 patent applications out 114 during the last 12 months. Does anyone sincerely believe that the law is really being followed as the text has been written?
Do we really believe that those 112 rejected inventors who spent thousands of dollars and that the 112 competent attorneys who prosecuted their applications, were all wrong about the invention and the law? The 2 applications that were approved were probably approved to make the process look somewhat legit.
The USPTO does not even follow their own official memos, the examiner tossed those memos in addition to the hard evidence. In retrospect, my application was dead on arrival regardless of what the law says and regardless of what I proved.
People from this website have read my file wrapper and stated my attorney did fight for me, he was not kvetching. My colleagues have congratulated me on my solution, it is the USPTO that kvetches and rejects.
Inocencia Erfinder may be a fictional person in the upcoming book “Plight of the Patentee” but I am a REAL person in that upcoming book.
Mr. Wanetick: Thank you for all your efforts!
Mike
November 27, 2018 12:06 pm@Paul Morgan:
I was not aware that the mere quoting of the text of a statute equates with its intended effect.
I *OUGHT* to be able to quote all day that “patents shall have the attributes of personal property” in lieu of the title’s provisions, and also that Congress has been given the power of “securing to inventors the exclusive right to their discoveries” to promote the progress of science and useful arts, but quoting either of these wouldn’t dispose someone’s comment saying these statutes are not true in practice. Simply put, the government’s lack of enforcing the actual text of these statutes has proven to many inventor the pursuit of patent protection frivolous.
But if you wish, I’m all for taking words as they are literally expressed. There is no other way to properly express or communicate intent except by way of using actual written language.
If this indeed were the case, retroactivity of the current IPR scheme on preAIA patents wouldn’t hold muster due to the Ex Post Facto Clause alone. Even Justice Thomas has an issue with the misreading of this constitutional clause in Calder (1798). See Eastern Enterprises v. Apfel (1998).
Anon
November 27, 2018 08:36 amWhich IPR petitions were filed by Indian tribes?
The only “sniping” Mr. Morgan is your sniping, seeing as you refuse to engage on the merits in any meaningful debate of law.
Do you “throw in” a “pro-patent” snippet? Sure. Did my comment reflect that? Sure. Did my comment reflect more than that? Sure. Did that “more than that” reflect your typical cheerleader mode? Sure.
Where exactly do you have an issue with my comments?
Anon
November 27, 2018 07:59 amMr. Morgan,
Your pro-IPR cheerleading stance is no obsession of mine.
Let’s leave the Malcolm-Mooney like “Accuse Others” meme on that other blog.
Paul Morgan
November 26, 2018 08:19 pmAnon, your obsession constantly snipe amusing failed to note that the case and guidelines I noted are for the BENEFIT of patent owners resisting follow-on IPRs.
he resulting changes in PTAB practice. Here is some more patent owner case benefit: the Federal Circuit’s decision in Applications in Internet Time (AIT) v. RPX, holding that the PTAB took an “impermissibly shallow” look at evidence presented by the patent owner about the relationship between the petitioner and another party.
Paul Morgan
November 26, 2018 06:11 pmGene, IPR statute 35 USC 312 [and see accompanying PTO Rules] specifically states:
“(a) Requirements of Petition- A petition filed under section 311 may be considered only if–
…
(2) the petition identifies all real parties in interest; ..”
This disposes of your comment: “That is not true, and you know it or should know what you say is false.”
A mere handful of abnormal contested IPR petitions filed by licensing companies, trade associations or Indian Tribes asserting that they are the real party in interest does not make anything I said either untrue or untypical.
Anon
November 26, 2018 03:14 pm“For those interesting in fighting for clients rather that just kvetching here,”
With all due respect, Mr. Morgan, pound salt.
What you label as kvetching is merely fighting for a different type of client than what you fight for. Some of us fight for clients that are innovators rather than clients that are Efficient Infringers.
Paul Morgan
November 26, 2018 01:31 pmFor those interesting in fighting for clients rather that just kvetching here, note that this article does not even mention the 2017 expanded Board decision in General Plastic Industrial Co. v. Canon Kabushiki Kaisha, No. IPR2016-01357, slip op. 16–18 (Paper 19) (P.T.A.B., Sept. 6, 2017) increasing the grounds for, and numbers of, denials of “follow-on” IPR petitions against the same patent, or the new PTAB guidelines on that subject.
Gene Quinn
November 26, 2018 01:17 pmPaul Morgan-
You say: “IPRs must identify the real party in interest and its privies.”
That is not true, and you know it or should know what you say is false. Entities like Unified Patents are still allowed to take money on behalf of clients and then suddenly and surprisingly file IPRs on the patents their clients are used on. There is no disclosure of the clients paying Unified to invalidate those patents. The privity law created by the Federal Circuit up to this point looks nothing like the law of privies in any other area of law. Turning a blind eye to the benefit received is willful ignorance, and not what the law was intended to allow.
Paul Morgan
November 26, 2018 01:04 pmThe upcoming end of all CBM filings in 2020 is definitely not irrelevant to readers of this article concerned about plural PTO proceedings against patents. Unlike IPRs, CBMs do not have a one year time deadline running from the complaint, are not limited to only 102 or 103, and are not limited to only patents or publications. Also,CBMs do require an actual infringement suit or threat, and the article says that the parties had agreed to a stay for the CBM petition decision.
Anon
November 25, 2018 05:58 pmMr. Morgan,
Why is it nearly every post from you comes across as a cheap defense of the IPR system?
Here, you cop a “what, me worry, these things are hardly used” position that has no touch on the merit of the complaint of the article – your last sentence notwithstanding (one may safely eliminate ALL of your cheerleading up to that last sentence).
Paul Morgan
November 25, 2018 02:00 pmThe now rarely used Covered Business Methods [CBM] program complained of here will soon automatically end, due to its limited life span.
The other PTO proceeding noted here, inter partes review, is rarely used other that for defenses against patents that have been sued on. IPRs must identify the real party in interest and its privies. The latter is now finally getting better enforced, which should reduce plural actions by related parties, the gist of the complaint here.
concerned
November 25, 2018 11:05 amThank you for your upcoming book!
Eric Berend
November 25, 2018 10:54 amThe hate-on-inventors madness – continues.
The United States government, riding shotgun for IP pirates – continues.
And at this point in time, the common contempt and antagonism towards actual inventors is so well known and widely promulgated, that I have little sympathy for any inventor foolish enough to apply for a U.S. Patent, on any invention whatsoever.
The IP killing fields, are now obvious and well warned. For the moment, the crapshoot of this farce is better in China, apparently; however, there is much less wealth to be gained there (royalties and legal awards are far less lucrative). Europe has always maintained patents as being sport for kings only, so they have nothing to offer the non-wealthy individual inventor and little credibility in the matter.
Meanwhile, BigTech influenced media spreads stories about the supposed “anniversary” of inventions that are popular, attempting to signal to society and the ignorati out there (Ms. “Average Consumer’) that “all is well” for inventors in the U.S. today. Today’s farcical example, is the waterbed.
It just cannot get more mendacious and flat-out evil in the world with complex, wide-ranging power abuse exploits, than this.