Summary: The latest reports about the supranatural court that works from the US and imposes US patent law worldwide serve to show that Intellectual Ventures too has its finger in the pie

THE USPTO has granted truly awful patents for a number of decades. The chart (graph) of the number of granted patents (over time) makes it abundantly clear. The problem is that low-quality patents won’t always be tested by a court and many lawsuits predate the Patent Trial and Appeal Board (PTAB), which uses inter partes reviews (IPRs) to invalidate US patents outside of courts, too.

“These people can and do assert control over foreign companies.”A dozen years ago Microsoft used patents to embargo a rival from East Asia, not from China but from Asia in general (although the production is often in mainland China, Microsoft’s production included). Microsoft filed a complaint at the ITC and managed to block the competition (in the area of computer mice). We covered that at the time.

ITC has since then made quite a few headlines and yesterday Docket Navigator wrote about it, which is rare (citing “LED Lighting Devices, LED Power Supplies, and Components Thereof, 337-TA-1081 (ITC July 24, 2018, Order) (Lord, ALJ)”). To quote: “The ALJ denied respondents’ motion for summary determination that complainants could not satisfy the economic prong of the domestic industry requirement because of their de minimis domestic investments.”

ALJ stands for Administrative Law Judge, which at the United States International Trade Commission is a high position. These people can and do assert control over foreign companies. Well, the ITC and its ability to impose embargoes is on the line again. Richard Lloyd from the patent trolls’ lobby (IAM), a known cheerleader of Microsoft’s biggest patent troll, now speaks of efforts to embargo the rivals (of Microsoft, as usual) using the ALJs. To quote: “An International Trade Commission judge has called into question Intellectual Ventures’ ability to get an injunction against several car manufacturers and industry suppliers in what is a key case in the firm’s attempts to license much of the sector. A failure to get a favourable verdict from the ITC would come as a considerable blow to the broad assertion campaign that IV launched last year. In a hearing earlier this week, Administrative Law Judge Thomas Pender suggested that IV had not done enough to satisfy the domestic industry requirement.”

This isn’t really about cars (there are many non-vehicular things inside cars these days). Another new article by Yury Kalish and Blaney Harper (Jones Day) has meanwhile emerged at Mondaq, the context for this case having been covered here dozens of times before. ITC basically continues to make products deliberately worse, ignoring judges at PTAB when they say the patents at hand are invalid. As Yury and Blaney put it a few days ago:

The underlying investigation between the Complainant, Cisco Systems, Inc. (Cisco) and Respondent, Arista Networks, Inc. (Arista) concluded in May 2017 when the ITC found that Arista, infringed two of Cisco’s patents – U.S. Patent Nos. 6,377,577 (“the ’577 patent”) and 7,224,668 (“the ’668 patent”). The ITC subsequently issued an LEO and a CDO against Arista. [...] Parties at the ITC should pay particular attention to the usefulness of redesigned products at the ITC. Respondents should look to incorporating a redesigned product into their case strategy early and Complainants should consider how to address any such redesigns, including how to effectively utilize modification and enforcement proceedings. As this case demonstrates, the ITC gives little deference to PTAB proceeding unless all appeals have been exhausted.

This has been truly incredible; the ITC’s ALJs basically assert that they are above all other courts and can simply disregard other courts’ rulings. What sort of justice is this? Embargo first, ask questions later? And now they even open their doors to Microsoft-connected patent trolls such as Intellectual Ventures, whose patents are very often invalidated by the Federal Circuit? This is very wrong. █

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