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Comment by majewsky | Hacker News Reader

Can someone explain in simple words what this is about? I've read the article, but I think I'm missing some context about these review boards and stuff.

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In simple terms before the new law you had to go to court to get a patent reviewed. Now you can file a request with the patent office and skip court. Which makes it cheaper and easier to fight bad patents.

That's a fair summary of the finding (and I would contend, the major issue in this case).

The counter-argument that might lead one to disagree with this decision is that the Patent Office reports to the President, so it is subject to the political motives of that branch.

For example, let's say, a major democratic donor receives a software patent on a novel ML algorithm useful for predicting voting behavior. Under inter partes review, the President (or his subordinates) could invalidate that person's patent if challenged regardless of the evidence. If inter partes review were found unconstitutional, they would need to convince a jury that the algorithm was, in fact, inappropriately granted.

Decisions of the PTAB are reviewable by the CAFC.

Good point, the courts still hold ultimate review of patents. The new law just moved the point when review switches over from the executive branch to the judicial branch.

The majority opinion relies on that in part too, briefly suggesting (in III-E) that it might not necessarily have reached the same decision if Patent Office invalidations weren't appealable in the courts. They don't specifically say that appealability is required, but they leave open the question of whether this review system could be upheld without it.

The counter-argument that might lead one to disagree with this decision is that the Patent Office reports to the President, so it is subject to the political motives of that branch.

No, because this decision wasn't about whether the process was good or bad, but whether patents are private property, which was the point made by Oil States International.

A party that has requested a review can take the USPTO to court over its review decision.

Hi. This is legally incorrect.

All inter partes review decisions are subject to judicial review by the Federal Circuit. The standard applied by the Courts is called "substantial evidence." To dumb down the standard (it is only slightly higher than this): The board cannot simply make shit up on the way to its decision.

Your hypothetical would probably fail under even more deferential standards of review. God fucking knows it would not survive the Federal Circuit--I'm happy to link plenty of cases where they told the board that its invalidity decision was not supported by substantial evidence.

Yes, sorry. My goal was to lay out the parade of horribles on the other side of the case to illustrate why the question was being asked at all.

You're right that IPR is judicially reviewable and I'd agree that my example would probably not hold up to review if clearly politically motivated and contrary to evidence.

Someone who's worried about this might argue with you that to have a patent invalidated, then the invalidation subsequently overturned is not the same thing as not having a patent invalidated in the first place, if only in the eyes of the market. I don't think it's a meritless argument, though it's not one that sways me personally.

Fair enough. You'd be surprised how well this stuff is priced in on the merits. Plenty of ex IP attorneys like me working in and for financial institutions evaluating these petitions. Not all patents are good. Not all are bad. But do this long enough you can decently handicap arguments, especially in IPRs where all the petitioners' evidence theoretically on the table from the start.

In simpler terms, things stay exactly the way they are today and this decision--by itself--has no impact on anyone. It was a hail Mary pass to overturn something, denying that radical change is not itself a change. I appreciate the legal certainty and philosophical questions raised, but for just about every HN reader: this isn't really newsworthy. Go about your day.

Someone gets a patent on something trivial (which didn't deserve a patent at all, because it's trivial). They sell the patent to a patent troll. The patent troll uses the patent to sue a bunch of people for a lot of money.

The review board is a way for those being sued to go back to the patent office and say, wait a minute, that didn't deserve a patent, without the expense of a court fight. Patent trolls don't like it because a whole bunch of their garbage patents have been thrown out this way. I assert that the world is better of for it, but the patent trolls don't see it that way. So they sued to shut down that process. The Supreme Court has allowed it to continue, which is good for almost everyone but patent trolls.

The 2012 America Invents Act set up a system for interested parties to challenge patents after they have been granted (post-grant review). Challengers must bring forward new evidence not previously considered by the Office. A special team of expert examiners within the Office reviews the challenges, and has the power to invalidate the patent if it was granted in error. This allows interesting patents to be reviewed again, with all of the resources that any interested person in the public might bring to bear in searching. The expert patent examiners reviewing these challenges are more likely than a judge to have background knowledge of the technology.

https://www.uspto.gov/patents-application-process/appealing-...

Bloomberg put a strongly negative slant on this. This additional review is good for anyone who appreciates strong, valid patents, but is frustrated by some of the low quality stupid patents that should never have been granted.

Is this a way for the EFF or something, to attack patent-trolls effectively? It seems too good to be true from the descriptions in this thread.

Here's a less dumbed-down article from a bit earlier in the process: https://www.law.com/dailyreportonline/sites/dailyreportonlin...

A 2012 law created an administrative review system for challenging patents, meant to reduce the expense of challenging patents by keeping the process out of court. That law was challenged as being an illegal taking happening outside a court of law. The Supreme Court disagreed, considering it just a corrective action of the patent office's discretionary granting abilities. More or less.

So IP lawyers (and their accounts receivable ledgers) are quite unhappy about this ruling, I'm sure.

Rather, companies are happy they can use their patent lawyers to gum up the system and prevent judgments.

It's mixed. These proceedings (along with other reforms, like limiting venue) have been very bad for litigation billing, as disputes are fewer and disposed of faster. But I think the consensus is that we're better off taking this hit than losing even more support from the public for patents and facing something more severe.

The IP lawyers who prepare post-grant patent petitions are happy with this ruling. Wouldn't you rather represent Google at the PTAB than represent the troll in court?

SCOTUS upheld the legality of inter partes review, which in simplified terms is sort of a fast-track way to invalidate bogus patents. Patent trolls hate IPR because it has been used extensively in recent years to toss out their crap; they tried to kill it here, and fortunately (no matter what Bloomberg thinks) they failed.

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