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The U.S. Supreme Court will today hear arguments about whether the systems used by technology companies, including Apple and Google, to invalidate patents and see off litigation are unconstitutional (via Bloomberg).

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The Patent Trial and Appeal Board (PTAB), set up by Congress in 2011, has invalidated more than 2,000 patents. Apple is the single biggest user of the patent review board, having successfully attacked as many as 200 patents through it, and has said that it relies on "Congress's promise of a fair and efficient forum to challenge what often prove to be woefully weak patents that should not have issued in the first instance." Other users of the PTAB include Intel, Google, Microsoft, Oracle, and Samsung.

The PTAB has been dubbed a "death squad" due to its tendency to toss out patents, and some smaller inventors believe that the board has become an anticompetitive tool for large companies. It is alleged that the PTAB's judges may be serving in violation of the Constitution due to the amount of power they wield.

According to the U.S. Court of Appeals for the Federal Circuit, which handles most patent disputes, PTAB judges have important enough powers that they should be appointed directly by the president and confirmed by the Senate as "principal officers."

On the other hand, the Justice Department is urging the Supreme Court to leave the current system in place, saying that patent judges are "inferior officers" who do not need to be presidential appointees.

The Supreme Court could go as far as to bar the board from continuing to review and invalidate patents until changes to the appointment system are made, or shut down the PTAB entirely, forcing Congress to create a new board that more clearly caters to the needs of smaller inventors and patent owners. A ruling against the board could mean that hundreds of patent cases would have to be reconsidered, which could have considerable ramifications for companies that have used it successfully.

The PTAB survived a challenge at the Supreme Court in 2018, in a ruling which found that the panel was not unconstitutionally wielding powers that belong to the courts, but amid increasing scrutiny on the power of big tech companies and antitrust cases, there is a chance that things may pan out differently this time.

Article Link: Supreme Court to Determine if Patent Appeal Board Used by Apple is Unconstitutional
 
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PinkyMacGodess

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A board that seeks to eliminate the power of patent trolls is seeing their future clouded? Who couldn't see that happening.

It'd be like someone writing a bill to end hedge funds, the headwind would be worse than the 'wind' speed on Neptune! People from everywhere would be crawling out from under rocks not discovered yet to try to end that legislation. Or ending 'dark money' in politics. It used to be Social Security as the untouchable ;third rail' of politics, and now it's the money flow into politics. With the richest Congress in American history.
 
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whooleytoo

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Aug 2, 2002
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So, is the Patent Trial and Appeal Board the "anti-Eastern District of Texas district court"?

You need a weak/overly vague patent enforced? Go to Texas.
You need a potentially valid patent overturned? Go to the PTAB.
 
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cmaier

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Jul 25, 2007
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There have been multiple attacks on the constitutionality of IPR proceedings, and so far it’s survived. Even if it were ruled unconstitutional, the most likely result would be a delay while the administrative law judges are reappointed. But the most likely result is probably that they find that who appoints the judges doesn’t matter so long as the head of the USPTO, who is appointed by the executive branch, has final authority. Just guessing, of course.
 
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I7guy

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Nov 30, 2013
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Gotta be in it to win it
I guess there are two sides to this. 1) Patents are "weak" and 2) any patent can be challenged and the big company's with unlimited funds can use the system as they see fit.
 
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PinkyMacGodess

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So, is the Patent Trial and Appeal Board the "anti-Eastern District of Texas district court"?

You need a weak/overly vague patent enforced? Go to Texas.
You need a potentially valid patent overturned? Go to the PTAB.

One would think. Yes, Texas makes a lot of money off of vague patent defense. The PAB was an attempt to reign in the hot mess of companies existing only to trap people potentially infringing on their patents. Sometimes it's just the 'appearance' of infringement. Such frivolous cases clog the courts and enrich a special class of bottom feeding lawyer. Many cases take years to litigate, and have a negative effect on development. Just the threat of a suit, or discovery for a suit is enough, sometimes, to stop products as such cases are a huge money black hole. And so many patents are questionable, and yet are defended as if they are the only reason the corporation exists, which is true and all too common.

People have the right to defend their IP, but if that's all they do, it makes the value of their IP questionable to me. It's like sitting on a bench, and suing anyone that tries to sit on, or walk by your bench. It gets tedious after a while... Like a chihuahua that barks at anything that walks on 'their' sidewalk.
 
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v3rlon

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Sep 19, 2014
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We need the patent mess fixed.

Inventors of new and original works deserve compensation.

Obvious processes simply done on computer should not be used by trolls.

The patent shouldn’t stifle innovation (wait till Covid dust settles and the vaccine companies go after each other).

There needs to be a way to effectively penalize the people who try to abuse the system, whether that is trolling with lame patents or deep pockets trying to outspend small patent
 
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SBlue1

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Oct 17, 2008
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Patents on technology should expire after 5 years, for the good of all. Same as medical patents although they expire later.
 
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rlhamil

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Feb 6, 2010
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While I don't hate the little guy, to the big guys with wider interests, a lot more might not only be in the way of their interests, but might also seem obvious, so that they'd easily come up with it independently as a side-effect of their broader scope.

Patents (and copyrights) are meant to serve the PUBLIC interest by giving creators a LIMITED exclusive benefit from their works, thereby providing some incentive to create. Some products can be so expensive to create, esp. given the proportion of failures to successes (but necessary, like drugs) that perhaps no change in patent systems could both promote innovation AND reduce consumer costs for them.

Patents should probably expire sooner - such as when sufficient comparably effective or economic alternatives exist for a patented item or method. Otherwise patents (and software copyrights) just form an ever-denser field of landmines. And patent holders should have to PRODUCE products or services to which their patents at least might apply; in particular, those who simply buy up patents as an investment, and produce nothing, are obnoxious. They dilute the connection between the invention and the rewards, probably reducing the incentive to invest while only helping those with patents to sell and an immediate cash shortage (meaning they probably won't be doing more inventing any time soon anyway).
 
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v3rlon

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Of course, as long as we’re dreaming, they could work on fixing copyright too.

superhero for the modern era: Litigation Human, with the power to make laws that work and make people happy. They battle their arch nemesis, Loophole.

The only reason it would never catch on would be the costs in printing a 597 page comic book every month that that is so filled with legal jargon it puts more people to sleep than Ambien and Red Wine combined.
 
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az431

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I don't see how a board on patents can be seen as unconstitutional per se, but I can see the argument for making its members presidential appointees.
It’s not. Under article III of the constitution, congress has the sole power to establish lower courts, and there is nothing that requires judges to be presidentially appointed.
 
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Jamalien

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Oct 29, 2014
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We need the patent mess fixed.

Inventors of new and original works deserve compensation.

Obvious processes simply done on computer should not be used by trolls.

The patent shouldn’t stifle innovation (wait till Covid dust settles and the vaccine companies go after each other).

There needs to be a way to effectively penalize the people who try to abuse the system, whether that is trolling with lame patents or deep pockets trying to outspend small patent
The problem with all legislation is that if it involves subjectivity, it will always be messy and open to abuse. With something as inherently subjective and broad as patent filing, its conceptually impossible to make it a 'fair' process. It has and always will be a cesspool of degenerate patent trolls and anticompetitive megaconglomerates.

I see everyone complaining about it, citing the broad values of what an ideal system should uphold, but no-one offering up a clear set of specific actionable measures to fix it. (Hint: It's because it can't be). People are literally screaming into the wind
 
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v3rlon

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Sep 19, 2014
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The problem with all legislation is that if it involves subjectivity, it will always be messy and open to abuse. With something as inherently subjective and broad as patent filing, its conceptually impossible to make it a 'fair' process. It has and always will be a cesspool of degenerate patent trolls and anticompetitive megaconglomerates.

I see everyone complaining about it, citing the broad values of what an ideal system should uphold, but no-one offering up a clear set of specific actionable measures to fix it. (Hint: It's because it can't be). People are literally screaming into the wind
While you make a valid point, I cannot accept that, because it is hard, we shouldn't bother to try.
You want specifics, I can throw a few ideas up, but some enterprising soul(less bastard) would still find a way to game the system. First and foremost, we must be able to more rapidly respond to bad actors.

  • I do not object to the the panel of judges. Making the presidential appointees isn't a terrible idea either.
  • Set them up with "terms" though. No lifetime appointment. How about 4 years?
  • Empower them with neutral subject matter experts, especially in fields that are difficult to understand (pharmaceuticals, computer code, and so on). So when a bank tries to obfuscate a simple process that verifies you have money in your account before completing the transaction behind several pages of code, you can call them out for it. Maybe use grad students from relevant universities and subject matter experts from non-competing fields.
  • You cannot go work for companies whose cases you presided over for 3 years after leaving the position.
  • You could enhance their into expertise by appointing them into some kind of 'grooming' position where they learn more about the technical aspects of one or more of these fields before moving up to serve on the panel.
  • Nothing that occurs in nature, including natural math can get a patent. I do not care how Intel solves for the square root, it can't be patented. Your secret formula for determining the right amount of rum going into a Cuba Libre based on temperature, humidity, and size of ice cubes can be protected, as that is a formula to make something not found in nature.
  • Doing something already done before on a computer is out. Doing something obvious is out (electronic shopping cart, scan to email).
  • Patent abuse forfeits the patent to open source. Repeat offenders can be forced to give up additional patents.
  • Ridiculously broad patents cannot be granted.
  • Patent of an idea must at least demonstrate the ability to design a working concept. You cannot patent "smellovision" without detailed instructions on how that would work. A "1 page memo" about motion sensitive game controllers does not let you go after Nintendo and Sony when they actually build one.
  • Ridiculously specific patents cannot be expanded to a broader context. Amazon cannot have a patent on photographing a product in front of a white background just because they put some exact data about distance, lights, and angles. This practice was done billions, maybe even trillions of times before Amazon even existed.
Sadly, I am using a lot of real examples in this.
 
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hudson1

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Jun 12, 2012
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The problem with all legislation is that if it involves subjectivity, it will always be messy and open to abuse. With something as inherently subjective and broad as patent filing, its conceptually impossible to make it a 'fair' process. It has and always will be a cesspool of degenerate patent trolls and anticompetitive megaconglomerates.

I see everyone complaining about it, citing the broad values of what an ideal system should uphold, but no-one offering up a clear set of specific actionable measures to fix it. (Hint: It's because it can't be). People are literally screaming into the wind
Because no one here has outlined a detailed rework of the patent process, it must not be achievable? I'm failing to see your logic on this one.

Back to the SCOTUS... they are ruling on the constitutionality of this special court and how it's formed, not whether it's a good or bad idea to have it.
 
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