Posts Tagged: "inter partes"

My thoughts continue to be that the statute is very simple and mandates the PTAB to issue a final written decision on all claims challenged. This seemed to be consistent with what Justice Alito and Justice Gorsuch were saying during the oral arguments. However, Justice Sotomayor dominated questioning throughout the early stages of the oral argument, continually saying that what was being sought was a reversal of the Court’s decision in Cuozzo. Justice Breyer, who seemed clearly in favor of the respondent, sought to re-write the statute to find the actions of the PTAB to be in keeping with the text of the statute. Nevertheless, the oral arguments suggest there will be a split among the justices, perhaps along political lines (i.e., liberal wing vs. conservative wing). Should the conservative viewpoint of Justices Alito and Gorsuch prevail there is also a chance that the Supreme Court will rule that the PTAB cannot grant partial institutions… After the conclusion of the oral arguments, I reached out to a number of industry insiders to ask them to provide their thoughts and predictions, which are admittedly quite different than my own analysis. Their answers follow.

After oral arguments were held on Monday, November 27, 2017, I again asked a number of industry insiders what thoughts and predictions they now have after having the benefit of hearing the Q&A that took place between the Justices and the attorneys representing the petitioner, respondent and federal government. Their answers follow, and show that there is little agreement among those watching this case with respect to what the likely outcome will be.

If wrongly decided, Oil States Energy Services v. Greene’s Energy Group may be the next Kelo v. City of New London decision. At bottom, the case will decide whether patent rights – which are enshrined in our Constitution – are fundamental private property rights, or something less. If the Court adopts the latter perspective, it would radically change the American view of property rights and endanger an innovation edge enjoyed by American companies and consumers alike… Conservatives must be vigilant about the importance of the Oil States case and understand what is at stake. We do not want to wake up on the morning after this decision and find, just as we did after the Kelo decision, that more of our property rights are slipping away. The Supreme Court must uphold our constitutional patent rights and end the administrative usurpation of this judicial responsibility. Our constitutional principles, and the future of American innovation, depend on it.

Justice Gorsuch seems the most likely, based on his questions, to support the petitioner’s position that there is a constitutional infirmity surrounding IPR proceedings. Chief Justice Roberts also seemed to have substantial concerns with respect to IPR proceedings. Perhaps somewhat predictably, Justice Breyer and to a lesser extent Justices Sotomayor and Kagan, seemed through their questions to view IPR proceedings as just another opportunity for the Patent Office to make sure the correct determination has been reached at the time the patent was granted by the Patent Office. Justice Kennedy overall seemed more in line with the thinking of the liberals on the Court, Justice Ginsberg asked difficult questions and seemed difficult to predict how she might rule. Justice Thomas characteristically remained silent, although his judicial philosophy would be typically in line with Justice Gorsuch. Justice Alito asked only a few questions of the petitioner’s counsel, Allyson Ho, which focused on whether the Constitution requires a Patent Act and whether Congress could put limitations on the grant of “these monopolies.”

October 30th was a very busy day for amici filing briefs with the U.S. Supreme Court on how the highest court in the nation should decide in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, a case in which oral arguments will be heard on November 27th. Many of the briefs filed on the 30th were submitted by some of the biggest names in the tech industry. Taking a look at briefs filed by this major companies, some of whom have been seeing great success in patent validity trials at the Patent Trial and Appeal Board (PTAB), it’s both revealing and unsurprising to find how the tech ruling class feels that the Supreme Court should decide in Oil States.

The government’s brief argues that IPR proceedings at the PTAB are consistent with Article III because, in its view, patents are public rights and not private ones and the right for an inventor to seek a patent is a public right. In the government’s eyes, it is constitutionally permissible for the U.S. Patent and Trademark Office to reassess previously issued patents for revoking in order to “correct its own errors.” If the PTAB errs, then patent owners have legal recourse in appealing those cases to the Court of Appeals for the Federal Circuit, the government argues.

A review of amicus briefs filed with the U.S. Supreme Court in advance of oral arguments in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC revealed that, by and large, the American tech ruling class wishes to see SCOTUS leave the Patent Trial and Appeal Board (PTAB) intact in the face of the constitutional challenges facing the PTAB in the case. Today, we’ll review a series of briefs filed by amici representing many of the smaller players in the U.S. patent system who have by and large been railroaded at the PTAB, an agency which invalidates patents at an incredibly high rate, fails to follow Congressional statutes regulating its own activities and stacks administrative patent judge (APJ) panels to achieve policy objectives desired by the Director of the U.S. Patent and Trademark Office.

Is a patent a property right? It certainly has been considered so for over 200 years. If it is a property right, to invalidate it should require an Article III (judicial) court with all the normal due process required to invalidate property right… The US Supreme Court will look at these issues when it deliberates Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, starting Monday morning, November 27th. US Inventor, the premier non-profit fighting for inventors’ rights, will be staging a demonstration to bring attention to the issue. You have the unique opportunity to come and be a part of history as we make our voices heard.

In two final decisions and five decisions on IPR institution, the PTAB panel of administrative patent judges (APJs) found that petitioners Apple and AT&T did not meet the required burden of proof to invalidate two VoIP-Pal patents. In the final written decisions, Apple and AT&T failed to prove invalidity of the challenged claims by a preponderance of the evidence. Similarly, the PTAB found that neither party had shown a reasonable likelihood of invalidity at the institution stage in the other cases. Along with last November’s denial of an IPR petition filed by Unified Patents, the VoIP-Pal patents have been unscathed through a total of eight IPR petitions.

Luckily for Apple and Microsoft, however, VirnetX did not assert the ‘135 patent against Mangrove Partners, a hedge fund, which filed a petition for IPR against the ‘135 patent on April 14th, 2015; Mangrove reportedly shorted VirnetX stock around this time. On October 7th, 2015, the PTAB panel adjudicating the case decided to institute the IPR as the petitioner Mangrove had demonstrated a reasonable likelihood of proving invalidity of the challenged claims. Then in January 2016, Apple was successful in having its petition for IPR review of the challenged ‘135 claims joined to Mangrove’s IPR. VirnetX had objected to Apple’s motion for joinder based on the Section 315(b) language but the PTAB found that Section 315(b) did not apply to joinder motions which are governed by 35 U.S.C. § 315(c).

The United States Supreme Court will hear oral arguments in SAS Institute v. Matal on Monday, November 27, 2017. This case will give the Supreme Court the opportunity to declare whether the Patent Trial and Appeal Board must issue a written decision covering all claims challenged in an inter partes review proceeding. In advance of this much anticipated hearing, I reached out to a number of industry insiders with a simple question: What are you thoughts and predictions on SAS Institute in advance of Supreme Court oral arguments? Their answers follow.

The United States Supreme Court will hear oral arguments in Oil States v. Greene’s Energy Group on Monday, November 27, 2017. This case will give the Supreme Court its first opportunity to address the constitutionality of the inter partes review procedures created by the America Invents Act (AIA). In advance of this much anticipated hearing, I reached out to a number of industry insiders with a simple question: What are you thoughts and predictions on Oil States in advance of Supreme Court oral arguments? Their answers follow… As for my thoughts — I’m going to go out on a limb this time with my prediction that the Supreme Court will find IPRs unconstitutional.

Oil States Energy Services LLC v. Greene’s Energy Group, LLC, now scheduled for oral argument before the Supreme Court on November 27, is clearly receiving all the attention this fall. The possibility of finding Patent Trial and Appeal Board (PTAB) post grant proceedings unconstitutional cannot be understated. But oral arguments will also be heard on that same day in the less-noticed SAS Institute v. Matal… Should any form of IPRs survive Oil States, the following SAS Institute decision should be watched with equal anticipation. A reversal in SAS Institute will no doubt have you rethinking your PTAB strategy.

Of the 1,582 patents with a final written decision, 1,343 were found to have defects by the PTAB. That is an 85% defect rate. Only 239 patents were affirmed to be fully compliant with the statutes by the PTAB. Yet the Office of Patent Quality Assurance (OPQA) claims a 6-8% defect rate… 263 patents were found valid in full and fair trials in a court of law and also tried in the shortcut infringer-biased PTAB. Only 63 of them got the same results in both venues. The other 200 the PTAB came to a different conclusion. If the courts are correct then the PTAB is wrong 76% of the time.

U.S. Inventor, the nationwide inventor advocacy organization representing over 13,000 members, including, individual inventors, university research institutions, patent holders and intellectual property dependent start-up businesses, today announced that its members will stage a protest in front of the U.S. Supreme Court on November 27th during oral arguments in the case of Oil States Energy Services, LLC v Greene’s Energy Group, LLC.