https://www.techdirt.com/2023/06/08/us-patent-office-proposes-rule-to-make-it-much-harder-to-kill-bad-patents/ [ ] Techdirt. [ ] * Sign In * Register * Preferences Techdirt [ ] * TechDirt * GreenHouse * Free Speech * Deals * Jobs * Support Techdirt [podcast-ti] Tennessee Appeals Court Says Vanity License Plates Are Likely Protected Speech FCC 'Fines' Right Wing Bullshitters Wohl, Burkman $5 Million For Voter Robocall Scam US Patent Office Proposes Rule To Make It Much Harder To Kill Bad Patents [patents] Patents from the why-does-the-pto-want-more-bad-patents? dept Thu, Jun 8th 2023 07:42pm - Mike Masnick 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 24 CommentsLeave a Comment If you liked this post, you may also be interested in... * Taco Bell Seeks To Liberate 'Taco Tuesday' For Itself, The Masses * Stupid Patent Of The Month: Trying To Get U.S. Patents On An AI Program * Supreme Court Refuses To Hear Case Over AI's Right To A Patent; AI Inventions Remain Unpatentable * Aaron Judge, MLB Beats Back Trademark Opposition From Squatter * Stupid Patent Of The Month: Traxcell Tech Gets Ordered To Pay Attorneys' Fees * * * * * * * * * * * * * * * * * * * * * * * * Rate this comment as insightful Rate this comment as funny You have rated this comment as insightful You have rated this comment as funny Flag this comment as abusive/trolling/spam You have flagged this comment The first word has already been claimed The last word has already been claimed Lightbulb icon Laughing icon Flag icon Lightbulb icon Laughing icon Comments on "US Patent Office Proposes Rule To Make It Much Harder To Kill Bad Patents" Subscribe: RSS Leave a comment * Filter comments in by Time * Filter comments as Threaded * Filter only comments rated Insightful * Filter only comments rated funny LOL * Filter only comments that are Unread 24 Comments Collapse all replies [774a69a47d]Anonymous Coward says: June 9, 2023 at 1:30 am 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. Reply View in chronology Make this comment the first word Make this comment the last word [3e67333c89]Anonymous Coward says: June 9, 2023 at 2:50 am 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. Reply View in chronology Make this comment the first word Make this comment the last word [f82ca17139]Anonymous Coward says: June 9, 2023 at 4:57 am So it's wrong to have a valuable idea first if one doesn't have the money to bring it to market? Collapse replies (7) Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] This comment has been deemed insightful by the community. [d5c8723d5d]TFG says: June 9, 2023 at 5:17 am 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. Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] This comment has been deemed insightful by the community. [48852fd7b1]Anonymous Coward says: June 9, 2023 at 7:38 am 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. Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [user-default]Toom1275 (profile) says: June 9, 2023 at 8:19 am Re: So you like making moronic bad-faith strawmen? Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] This comment has been deemed funny by the community. [user-default]James Burkhardt (profile) says: June 9, 2023 at 9:44 am Re: Your question presents a strawman so bad it isn't even stuffed into clothes. Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [u5_100x0-1]Mike Masnick (profile) says: June 9, 2023 at 4:57 pm Re: So it's wrong to have a valuable idea first if one doesn't have the money to bring it to market? 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." Collapse replies (1) Reply View in chronology Make this comment the first word Make this comment the last word Threaded [3] [user-default]Toom1275 (profile) says: June 9, 2023 at 7:28 pm 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. Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [29d92f17f3]Anonymous Coward says: June 9, 2023 at 10:47 pm Re: Nice try, John Smith. Reply View in chronology Make this comment the first word Make this comment the last word [ab12686272]Anonymous Coward says: June 9, 2023 at 5:02 am When will the patent office improve its processes so that it does not grant so many bad patents? Collapse replies (2) Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [3a6615fa04]TFG (user link) says: June 9, 2023 at 5:18 am Re: When outside influence, probably Congress, forces it to. So don't hold your breath. Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [74cb7bf3a4]Anonymous Coward says: June 9, 2023 at 2:16 pm Re: It seems rather intent on backsliding against every positive reform, so... never? Reply View in chronology Make this comment the first word Make this comment the last word [user-default]That One Guy (profile) says: June 9, 2023 at 5:48 am 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. Reply View in chronology Make this comment the first word Make this comment the last word [118082a90a]Anonymous Coward says: June 9, 2023 at 5:54 am 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. Collapse replies (1) Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [user-default]That One Guy (profile) says: June 9, 2023 at 6:13 am 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... Reply View in chronology Make this comment the first word Make this comment the last word [6747fa9ed7]Anonymous Coward says: June 9, 2023 at 8:37 am 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. Collapse replies (1) Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [86c73625c1]Anonymous Coward says: June 10, 2023 at 5:59 am Re: Violence solves nothing Reply View in chronology Make this comment the first word Make this comment the last word [74dea26427]Anonymous Coward says: June 9, 2023 at 1:28 pm 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? Reply View in chronology Make this comment the first word Make this comment the last word [u143050_100x0-1]Coyne Tibbets (profile) says: June 9, 2023 at 2:14 pm Patent Trolls Capture USPTO, Write New Rules Favoring Themselves News at eleven. Reply View in chronology Make this comment the first word Make this comment the last word [ee7fc3e104]Anonymous Coward says: June 9, 2023 at 8:12 pm When times are tough, you can buy just about anybody, it seems. Reply View in chronology Make this comment the first word Make this comment the last word [fb48efe901]Anonymous Coward (user link) says: June 11, 2023 at 7:43 am 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! Reply View in chronology Make this comment the first word Make this comment the last word [95b87c60a4]Anonymous Coward says: June 11, 2023 at 12:00 pm Wonder if this is in response to the hawk technologies case. Reply View in chronology Make this comment the first word Make this comment the last word [user-default]oldasdirt (profile) says: June 12, 2023 at 3:14 pm 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. Reply View in chronology Make this comment the first word Make this comment the last word --------------------------------------------------------------------- [] says: Add Your Comment Cancel reply Your email address will not be published. Required fields are marked * Have a Techdirt Account? Sign in now. Want one? Register here Name [ ] Email [ ] [ ]Subscribe to the Techdirt Daily newsletter URL [ ] Subject [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] Comment * [ ] Comment Options: (*)Use markdown. ( )Use plain text. Make this the ( )First Word or ( )Last Word.(*)No thanks. (get credits or sign in to see balance) what's this? 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