US Patent Office Proposes Rule To Make It Much Harder To Kill Bad Patents
from the why-does-the-pto-want-more-bad-patents? dept
So, this is bad. Over the last few years, we’ve written plenty about the so-called “inter partes review” or “IPR” that came into being about a decade ago as part of the “America Invents Act,” which was the first major change to the patent system in decades. For much of the first decade of the 2000s, patent trolls were running wild and creating a massive tax on innovation. There were so many stories of people (mostly lawyers) getting vague and broad patents that they never had any intention of commercializing, then waiting for someone to come along and build something actually useful and innovative… and then shaking them down with the threat of patent litigation.
The IPR process, while not perfect, was at least an important tool in pushing back on some of the worst of the worst patents. In its most basic form, the IPR process allows nearly anyone to challenge a bad patent and have the special Patent Trial and Appeal Board (PTAB) review the patent to determine if it should have been granted in the first place. Given that a bad patent can completely stifle innovation for decades this seems like the very least that the Patent Office should offer to try to get rid of innovation-killing bad patents.
However, patent trolls absolutely loathe the IPR process for fairly obvious reasons. It kills their terrible patents. The entire IPR process has been challenged over and over again and (thankfully) the Supreme Court said that it’s perfectly fine for the Patent Office to review granted patents to see if they made a mistake.
But, of course, that never stops the patent trolls. They’ve complained to Congress. And, now, it seems that the Patent Office itself is trying to help them out. Recently, the USPTO announced a possible change to the IPR process that would basically lead to limiting who can actually challenge bad patents, and which patents could be challenged.
The folks over at EFF are rightly raising the alarm about just how bad this could be if it goes into effect.
The U.S. Patent Office has proposed new rules about who can challenge wrongly granted patents. If the rules become official, they will offer new protections to patent trolls. Challenging patents will become far more onerous, and impossible for some. The new rules could stop organizations like EFF, which used this process to fight the Personal Audio “podcasting patent,” from filing patent challenges altogether.
The wording of the proposed changes seems to be written in a manner to be as confusing as possible. But there are a few different elements to the proposal. One part would limit who can bring challenges to patents under the IPR system, utilizing the power of the director to do a “discretionary denial.” For example, it would say that “certain for-profit entities” are not allowed to bring challenges.
Why? That’s not clear. But what difference does it make if the operation bringing the challenge to a bad patent is for-profit or not-for-profit? A bad patent is a bad patent, and often for-profit entities have the resources to actually hunt down the necessary prior art and to hire the best patent lawyers to bring a credible IPR challenge.
But the more worrisome change is this one:
Recognizing the important role the USPTO plays in encouraging and protecting innovation by individual inventors, startups, and under-resourced innovators who are working to bring their ideas to market, the Office is considering limiting the impact of AIA post-grant proceedings on such entities by denying institution when certain conditions are met.
Basically, if a patent holder is designated as an “individual inventor, startup” or “under-resourced innovator” then their patents are protected from the IPR process.
But, as anyone studying this space well knows, patent trolls often present themselves as all three of those things (even though it’s quite frequently not at all true). Patent trolling operations love to present themselves as the “small inventor,” even if they just got a terrible patent and sat on it waiting for someone to build something successful that — if you squint — can be presented in way that if someone doesn’t read carefully they might think violates the patent.
And, again, none of this should matter. A bad patent is a bad patent. Why should the USPTO create different rules that protect bad patents? If the patent is legit, it will survive the IPR process.
As EFF notes:
Many patent trolls would be exempt from IPRs altogether. The USPTO would prohibit anyone from challenging the patents of “small entities” and “under-resourced inventors.” But it’s trivially easy for even the most litigious patent trolls to portray themselves as “small inventors.” It happens all the time, and the USPTO rules buy into this sham. Many “inventors” are patent attorneys who have learned to game the system; they haven’t invented anything other than patents. Patent trolls that have sued hundreds of small businesses, and even public transportation systems, including Shipping and Transit LLC and various Leigh Rothschild entities, have claimed to be “inventor owned” businesses.
If these rules were in force, it’s not clear that EFF would have been able to protect the podcasting community by fighting, and ultimately winning, a patent challenge against Personal Audio LLC. Personal Audio claimed to be an inventor-owned company that was ready to charge patent royalties against podcasters large and small. EFF crowd-funded a patent challenge and took out the Personal Audio patent after a 5-year legal battle (that included a full IPR process and multiple appeals).
If you click through to the EFF page they show how you can provide comments to the USPTO on why it should not move forward with this plan, so if you’re concerned about giving patent trolls more power to abuse bad patents to stop innovation, please consider sending in a comment.
Filed Under: ipr, patent trolls, patents, uspto
Comments on “US Patent Office Proposes Rule To Make It Much Harder To Kill Bad Patents”
The other thing the rule about small-time “inventors” would protect is outright crankery. Can’t wait for all the innovation in the free electricity and perpetual motion spaces to heat up.
Personal Audio? Ah, yes, the guys who sued podcasters and forced them to either fight an expensive lawsuit or pay PA money up front to go away. I remember when the Shiva Ayyadurai fanboy was desperately trying to convince everyone that this was all legit.
Come to think of it the so-called “inventor” of electronic mail seems to have faded into obscurity. Good bloody riddance.
So it’s wrong to have a valuable idea first if one doesn’t have the money to bring it to market?
Re:
No, it’s not wrong.
But that’s not what the patent trolls are doing.
The patent trolls don’t want to bring it to market. They want others to bring it to market so they can sue them.
Additionally, most of these patent trolls are getting patents on things that should not get patents. Frequently, it’s (insert existing thing widely used here) but (on a computer).
The particularly egregious cases are those who look at the market, see something that is already in use and on the market and get a patent that covers that type of activity. This is what “prior art” means – where the thing you have patented existed before you patented it, so no, it wasn’t your invention.
The only patents that get put through IPR are the ones that have made nuisances of themselves – and the only ones that die are the ones that deserved to die. Don’t get it twisted – the people who are against this process are not the idea guys who didn’t have the funds to bring it to market.
Rather, they are the guys who would sue said idea guy when he finally got some funding to bring it to market, because they have some overbroad patent that supposedly covers what the small inventor had an idea for.
Re:
If it was a valuable idea, it would survive IPR. But these aren’t valuable ideas, they’re ridiculously broad, and used as legal cudgles against the ACTUAL idea people trying to make things.
Make no mistake, patent trolls are a scourge on innovation, full stop.
Re:
So you like making moronic bad-faith strawmen?
Re:
Your question presents a strawman so bad it isn’t even stuffed into clothes.
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Where did anyone even suggest that? If you have a legitimately patentable idea, it can survive the IPR process.
And, if you have a “valuable idea,” then you can work with others to get it to market. If you can’t convince partners to bring it to market, you might not have a “valuable idea.”
Re: Re:
This is likely he same illiterate shitwit that hallucinates that anyone has argued they shouldn’t be allowed to make money for their work.
Re:
Nice try, John Smith.
When will the patent office improve its processes so that it does not grant so many bad patents?
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When outside influence, probably Congress, forces it to.
So don’t hold your breath.
Re:
It seems rather intent on backsliding against every positive reform, so… never?
USPTO: 'Hold my rubber stamp'
So the groups more likely to have the funding required are prohibited from challenging garbage patents, so long as you claim to be an individual the quality of your patent doesn’t matter once it’s granted and any challenge brought can just be dismissed out of hand just because.
It’s like the USPTO realized that all the bad patents being shot down were making them look terrible for granting them and decided to solve the problem in the worst possible way.
Just imagine the bullshit patents that will result from ChatIP submittals.
No need for a working model, no need for anything of substance, just a lot of mindless bullshit and a paid for rubber stamp.
Re: If they want junk patents that badly...
A process and model for pressing the letter ‘a’ on a digital keyboard on a computer and recording the input.
A process and model for pressing the letter ‘b’ on a digital keyboard on a computer and recording the input.
A process and model…
These days when misinformation and fake support campaigns can ba bought along with the crooked politicians to push for it, it seems we are headed towards the worst case but obviously predictable scenario of using violence to stop patent trolls. Nothing tells these sociopaths to look for a mote honest way of life than a couple dozen murder cases of patent trolls and their enablers.
This used to be a far fetched notion but with billions at stake and dirty politicians all too willing to play dumb for a big payday its becoming an actual possibility.
Re:
Violence solves nothing
be better to make it easier to succeed with good patents and easier to stop fucking idiotic patents from even being considered!! but, why try to bring some common sense into the equation?
Patent Trolls Capture USPTO, Write New Rules Favoring Themselves
News at eleven.
When times are tough, you can buy just about anybody, it seems.
New idea, hear me out:
a) Patent a process to record and track patents.
b) Sue the patent office for using my patent.
c) I’m an individual inventor, so they can’t IPR me! I can’t lose!
Wonder if this is in response to the hawk technologies case.
I see a pattern
Trump killed the Post Office, so I guess Biden decided to kill the Patent Office. Important parts of our government shouldn’t be left out in the open for any knuckle dragging politician to ruin.
Let's not screw the under-resourced because of trolls, either
It costs a lot to get a patent filed. Many inventors spend that money in good faith, with good lawyers, go through a lot of work and time. For one reason or another, their hard work doesn’t reach the market. Happens all the time. The inventor runs out of money or has to support that work with consulting and working on the side, which delays market release.
Meanwhile, a well-resourced company with lots of lawyers comes along and challenges that patent. They bury the PTO with paperwork. What do you think the PTO will do?
I agree that a bad patent is a bad patent – and maybe the PTO shouldn’t have granted it in the first place – but should we always assume that because someone thinks a patent is bad – most likely because it prevents them from doing whatever it is they want to do – it must be bad, and that the first plan of action is to try and overturn it? Why bother getting a patent in the first place if any patent could be overturned?
And you know what else? There are a ton of good patents that get bought by patent trolls, and that’s a real problem too – not just a few bad patents. How are we going to fix that? IPR doesn’t. Maybe the whole patenting thing isn’t working and we should do away with it all. (I guess I could go along with that, since at least it removes any extra work and investment on the part of an inventor who really would rather be inventing, than writing a patent because an investor insists that they need to have IP that is protected.)
One last thing. I’ve been on both sides of the table here. As an inventing company trying to stop a larger company who was infringing, I was told, “it’s going to cost you $2M, and a year or more, and we will have IPOed by then, so we don’t care, go waste $2M”, and as someone who was targeted by the patent trolls and had to settle because we couldn’t afford to do anything else. The system favors those with the bigger pockets and the ability to afford the cost and time. So, I don’t see the IPR as fixing the patent troll problem, but it does make it easier for savvy lawyers to find ways to invalidate a good patent.
Re:
Having read your response, you seem amenable to the idea that in order to protect less-funded inventors from the abuse inflicted by trolls – or the consequences of said abuse – it might be that we need a complete overhaul or removal of the patent system as we know it. Which… is far more reasonable than most of the “inventors” who comment on this site.