A Reply to the Critics

US Inventor founder Paul Morinville recently published a response to my column criticizing the 2021 Restoration of American Leadership in Innovation Act (RALIA). In reply I will provide some observations.

I am of the opinion that the November 16, 2022 “China Manufacturing Act” states that juries are not an effective or reliable check of patent validity, but rather a contested validity review in the United States Patent and Trademark Office (USPTO). He argued that exclusion would be a disaster for the United States. Manufactured in the USA.

Attack on US chip makers

As if determined to prove my point, the VLSI Patent Claims Group recently handed down yet another huge infringement judgment against Intel based on patents that probably should not have been issued.

The patent in question, no. US Patent No. 7,606,983 claims a system for assigning the order in which multiple processors request access to computer memory.

Please be patient. You don’t have to have a PhD in electrical engineering to understand this case.

The advance claimed by the patent is that the rules defining the order of access to memory are identified in the access request itself. In the words of the ‘983 patent, “Each access request must: [and how]”It is to be executed sequentially among other occurrences of access requests.”

After being sued, Intel conducted its own prior art search and identified Khare’s references. Khare’s published patent application, which also describes a system for regulating the order of access to computer memory, filed three years before his ‘983 patent.

Khare’s system (look Paragraph 40) “Each transaction request” includes “ordering semantics” [that] For example, you can define a rule that allows a transaction or request to be processed or completed before another transaction. “

Khare’s wording is not identical to that of the ‘983 patent, but the concept is the same: when requesting access to memory, include an indication of whether to “do in order” in the request (the ‘983 patent); Or “rules that allow requests to be processed”. (Curry)

Intel has made a strong case that the ‘983 patent’s claims are self-evident. However, when he attempted to file this challenge with the USPTO, Intel was denied a hearing on the merits for the following reasons. dummy policy.

Two years later, the case went to trial in the Western District of Texas. As a result, the jury dismissed all validity challenges, found the patents infringed, and awarded nearly $1 billion in damages.

Why did the jury deny Intel’s prior art challenge to the ‘983 patent? Below is the jury’s explanation for its decision. Your guess as to why is the same as mine.

We know that jurors often do not understand or engage in obviousness analysis of high technology patents and publications. We also know that even foreign patent claim funds can be disguised as domestic start-ups, barring evidence to show. We also know that in another of his recent VLSI lawsuits, which resulted in a multi-billion dollar verdict, jurors posted “funny” memes comparing Intel to comic book series supervillains.

RALIA: Strategies to Undermine America

This is a ridiculous way to run an intellectual property system, especially when critical technology is at stake. If our system allowed patents as fragile as the ‘983 patent to award billions of dollars in damages, ultimately there would be little semiconductor industry left in the United States.

The founder of Intel was one of the first inventors of the integrated circuit. The company remains America’s leading chip maker. For example, it is the only US company on track to produce next-generation “5-nanometer” chips.

But past performance is no guarantee of future success. Semiconductor design and manufacturing is a highly competitive industry. Several foreign companies are working hard to replace Intel, some of them with active backing from their own governments. The history of the United States is replete with examples of technology originally invented in this country, once primarily manufactured here, but then transferred to foreign countries.

And chip design and manufacturing is not just an economic issue, it’s also a national security issue. Weapon systems such as fighters, strategic bombers, radars and communication systems, missiles, and naval platforms all rely on advanced microprocessors. Maintaining a lead in this technology is crucial for modern warfare. Ask the Russian Federation how its reliance on Soviet-era systems is performing in a war with Russia. UkraineAnd if the United States were to enter a military conflict with China, it would no longer be able to rely on its supply chains passing through Shenzhen.

Nor can you rely on VLSI to fill the gap. Don’t be fooled by the appropriation of the former US chipmaker’s name. The current “VLSI” is unrelated to his VLSI in the 1980’s and 90’s, nor does he manufacture or design chips (or anything else). This is just the patent claims arm of Fortress Investments’ litigation fund. VLSI acquired semiconductor patents from foreign companies that apparently decided to let go of weaker parts of their portfolio.

Fortress itself is owned by a foreign conglomerate, and no one knows who is funding the lawsuit campaign against Intel. VLSI refuses to disclose owners and investors other than unidentified “high net worth individuals” and “sovereign wealth funds.” As far as we know, the Chinese government itself He could be one of the investors looking to pull billions out of Intel.

It is unbelievable that we allow this. A major U.S. chipmaker is being sued by an undisclosed foreign interest based on apparently weak patents, yet we are preventing the chipmaker from defending itself in a USPTO lawsuit. It would be difficult to think of a policy so clearly designed to undermine the United States.

And RALIA will magnify and institutionalize this disaster.VLSI’s litigation campaign so far has relied on more than a dozen cases dummy Refused to obtain $3.2 billion in damages against Intel. But under RALIA, every day Patents are exempt from validity examination at the PTAB. It would effectively be an open season for US tech makers.

PTAB does quality work

I promised to get back to Paul Morinville, but as it turns out, he and I don’t disagree on many details. He does not dispute my conclusion that in March 2021 he issued a $2.2 billion ruling against Intel that the other alleged patents for VLSI are also likely invalid. (He should get a final decision from the USPTO on those patents early next year).

He also does not dispute my conclusion that the Leak Surveys patents cited by US inventors on their website are clearly obvious in view of the prior art.

Mr. Morinville disagrees with me, claiming that Coulter Ventures’ jump rope patent was “wrongfully invalidated.” you will be the judge The ‘809 patent states that the cable is attached to a ball element “pivotally coupled” to a shaft “rotatably journalled” inside the handle of the skipping rope so that the cable can swivel and pivot relative to the handle. Insist on jumping rope.

However, a prior art patent application from the 1970s describes a jump rope with a rotating handle (a “jump rope” with a shaft rotatably supported on the handle) and an “external oscillation” of the rope.

The ‘809 patent claimed these same features for the same function. The Patent Trial and Appeal Board (PTAB) considered both arguments, made a carefully reasoned decision, and concluded that all claim limitations were satisfied by the prior art.

Otherwise, it’s hard to see how the board could have found out. In fact, had it ignored the evidence presented, the Board would have been overturned by the Federal Circuit.

Unlike juries, PTABs are subject to the Administrative Procedure Act. Therefore, unlike a jury, the board cannot submit a verdict form that looks like an a la carte menu. Before you do that, you must analyze the evidence and explain why (as an attorney for the agency, I need to know that I lost an appeal when the committee failed to articulate its findings). there is).

However, despite the Board being subject to this stricter examination standard, the PTAB’s finding of patentability more A retrial is likely to be granted on appeal. According to a recent academic study, “PTABs are upheld significantly more frequently than district courts. [patent] And the “most straightforward conclusion” is that the technical expertise of the panel judges “supported decision-making on the thorny scientific questions inherent in patent law.”

Interestingly, the same survey found that boards teeth overturned on appeal, but more often overturned Fail Finding a claim unpatentable rather than arguing that the claim is unpatentable. So much for the infamous “Death Squad” slander.

The road to credible patent rights

Morinville concludes by arguing that RALIA will allow us to go back in time to the patent system that existed early in US history. This is not accurate.

For most of our nation’s history, patent cases were heard before judges. Most recently he benched his trial in over 90% of patent trials until 1978.

The current confusion is the product of two factors. First, two of his judgments during the Warren era allowed plaintiffs to seek jury trials in complex civil cases, including patent infringement suits. Another factor is the rise of patent he-magnet jurisdictions, where judges advertise patent litigation and recruit plaintiffs to file lawsuits. This combination, combined with routine disregard for Rule 702, has made it possible to seek exorbitant rulings on invalid patents.

What has kept the system balanced in recent years is the evolution of post-publication examination at the USPTO. In many cases, this alone is enough to check invalid patent claims. By proposing to abolish such scrutiny, RALIA would create a legal nightmare unprecedented in US history.

If US inventors want to return to the days of a better patent system, they should support the USPTO’s current initiative to develop a more rigorous examination procedure. We also need to reform the culture of patent prosecution. Over the last 20 years, the cost of preparing a patent application has dropped substantially.

We must allow an experienced attorney sufficient time to examine the application and return to a system where prior art searches are a routine part of the examination. If considered during prosecution, the patent is largely insulated from the technology in subsequent PTAB proceedings. This is the proper way to create a gold-plated patent.

Of all the patents with invalid claims that US Inventor cites on its website, how many were relevant prior art presented to the examiner during prosecution? I would hardly bet.

U.S. inventors’ claims in RALIA do not create strong patents. It just isolates invalid patents from scrutiny. In doing so, it would undermine U.S. chipmakers and other manufacturers and make the U.S. technologically dependent on China and other foreign countries.

RALIA is not a road to regaining its past glory. It’s a prescription for financial suicide.