Posts Tagged: "Erich Spangenberg"

Are you bullish or bearish on the 2018 patent market? That is the question I asked a panel of experts recently. For the most part, those industry insiders who responded are bullish, although some are cautiously bullish. As you will read below, there seems to be a consensus that activity will be up in terms of deals in 2018, but relief from the downward pressure on prices experienced over the last several years likely will not be forthcoming in 2018.

The clear consensus seems to be that the patent licensing market is not dead, but that the U.S. market is in decline and due to a weakening of patent rights capital will go elsewhere.

Erich Spangenberg commented on our most recent Rule 36 article, “Does the Federal Circuit’s use of Rule 36 call into question integrity of the judicial process?” He raised a significant and potent question: Logically, when the Federal Circuit uses Rule 36 to affirm without a written opinion should fees and costs be awarded?… The Federal Circuit is using Rule 36 so often that it has to raise questions even in the mind of the most vocal supporter of the Court. It is entirely predictable that such secrecy would lead people to ask questions, including the dramatic – why is it not appropriate to award at least costs if the appeal is so easy and nothing could be gained from writing an opinion?

While I would never go into business handicapping the outcome of SCOTUS deliberations, I do have an opinion about what they should do in this case, at least on the claim construction issue. Judge Newman had it exactly right in her panel dissent and her concise dissent from the denial of rehearing en banc. The “broadest reasonable interpretation” standard is useful during the examination phase, ensuring that no conceivably relevant art is overlooked and that the applicant’s opportunity to amend is well informed. But it’s silly, and ultimately damaging to the system, to apply the same standard in a post-issuance process that is directed at determining exactly what issued claims mean and where amendments are seriously restricted. Just as in district court, IPRs benefit from contested advocacy about the meaning of claim terms. In that adjudicative phase there is no place for the artificial construct of “broadest reasonable interpretation” in place of “most reasonable interpretation.”

Kyle Bass and Erich Spangenberg (Coalition for Affordable Drugs) won two more victories at the Patent Trial and Appeal Board (PTAB). This time Bass and Spangenberg obtained favorable institution decisions in two inter partes review (IPR) petitions filed against the University of Pennsylvania, which challenged patents covering Juxtapid, which it intended to slow cholesterol production so that your body has less cholesterol to remove from the bloodstream.

Michelle Lee talks about transparency, but the PTO is hiding behind redacted pages and claims of privilege to deny a legitimate FOIA request from Kyle Bass. “I don’t want to be embarrassed” is not a grounds for privilege and improperly asserting privilege is not being transparent… On page 407 there’s an email to Michelle Lee with briefing materials for the BIO meeting that were prepared by BIO. Not only are the many pages of the BIO briefing materials themselves redacted, but in the email the list of what’s included is redacted. We don’t even know what’s missing. How can materials prepared by BIO and shared with Ms. Lee be privileged?

This year our panel has a diverse variety of wishes. We see the usual wishes relating to patent eligibility and the abstract idea exception, with a reference to a Moody Blue’s song to make the point. We also see wishes relating to inter partes review (IPR) and the biotech industry, and a wish for uniformity at the Federal Circuit. There is a wish for federal trade secret legislation to finally pass, and a reminder that elections matter, even for us in the intellectual property space, a topic that we will return to quite a lot during 2016 here at IPWatchdog.com. We also see several exasperated wishes, hoping for solutions to the real problems facing the industry rather than the same old tired cries for “reform” that would benefit only a handful of large entities while harming practically everyone else.

The inaugural IAM event Patent Law & Policy, which will focus on how developments in law and policy affect patent owners’ ability to monetize their rights, will take place in Washington DC on November 17, 2015. This one-day conference in Washington DC offers all those involved in the patent market the perfect opportunity to listen to, learn about and engage in the many legal and policy debates currently taking place around patents.

I will moderate what should be a lively discussion on the PTAB and inter partes review. I will be joined by Erich Spangenberg, advisor to Kyle Bass and the person some have described as “the most notorious patent troll in America.” Also joining me will be Q. Todd Dickinson, former Director of the United States Patent and Trademark Office and current partner at Novak, Druce. Among other things we will discuss: (1) What will become of the Kyle Bass IPR petitions? (2) USPTO proposed rule changes and pilot programs (3)
Is Congress likely to legislatively reform IPRs?

According to Celgene, the Kyle Bass strategy of shorting a stock and filing an inter partes review challenge is an abuse of the process and not what post grant procedures were designed to accomplish. In a filing seeking sanctions filed with the Patent Trial and Appeal Board (PTAB) at the United States Patent and Trademark Office (USPTO), Celgene argues that the financial motivation for the IPR filing makes the filings by Bass’ Coalition for Affordable Drugs sanctionable. Bass calls this theory “curious,” pointing out that “at the heart of nearly every patent and nearly every IPR, the motivation is profit.”

Time and time again throughout the legislative history post grant proceedings were explained as being a faster, low-cost alternative to litigating validity disputes in Federal District Court. That being the case, it would seem extremely odd that any petitioner could bring a post grant challenge to a patent when that petitioner would not have standing to sue to invalidate the patent in Federal District Court. However, the statute does say that a person other than the patent owner can file a petition to institute an inter partes review.