Much Ado About Injunctions

It’s become an article of faith among those complaining that patent reform has gone too far that the 2006 eBay case must be overturned—but that assertion doesn't appear to be backed up by the facts.

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Granted In 19 Hours

Patent examiners have an extremely hard job.  They’re given a patent application—which could be anywhere from a page long up to hundreds of pages, with patent claims ranging from a…

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New Federal Circuit Appeal Claims PTAB Unconstitutional Because Of Fee Funding—But Ignores The Patent Examination Process

In a recently filed brief in the Federal Circuit case New Vision Gaming v. SG Gaming, the appellant argues that the PTAB is unconstitutional because the fees charged for the proceeding create a bias towards institution.  Specifically, New Vision Gaming claims that PTAB judges stand to benefit from institution and therefore it’s a violation of due process for the judges to make an institution decision.

That claim fails to hold up, because the financial bias argument is baseless, but if it were to be upheld, it would throw into question every single patent currently in force.  The financial incentive to grant a patent created by the USPTO fee structure is more clearly apparent and far greater, in monetary terms, than any potential incentive for financial enrichment by the agency or by a PTAB judge deciding whether to institute or deny an IPR.

Recent posts

Counterproductive Patent Incentives

Earlier this year, a pair of economists, Jay Bhattacharya and Mikko Packalen, published a research paper proposing an explanation for why scientific progress appears to have slowed.  Their theory?  An overemphasis on citation count, h-index, and similar metrics for scientists incentivizes them to pursue safe, late-stage research, not the scientific exploration needed to create the…

Covered Business Method Review and Thryv

On Monday, the Supreme Court granted, vacated, and remanded (GVRed) the Federal Circuit’s decision in Emerson Electric v. SIPCO in light of this year’s Thryv decision.  Emerson was challenging the Federal Circuit’s overturning of the USPTO’s determination that the SIPCO patent was eligible for review under the covered business method (CBM) program. With the Court’s…

Meet the Western District of Texas—NPEs Certainly Have

For years, the Eastern District of Texas was the favored stomping ground for patent trolls.  Short times from filing to trial, shorter trials, judges with local rules friendly to patent plaintiffs, and a jury pool that tended to be friendly to plaintiffs all contributed to this.  It probably didn’t hurt that Eastern District judges were…