With apologies to Greg, and general readers attempting to follow along, some replies due to Greg are bunched here.

The time listed is the time stamp of the post from Greg to which I am responding, and reflects a “going straight down the page” as opposed to an attempt at in time sequence – I attempt to minimize any “out of context” with the generous quotes of Greg’s statements. Not perfect, mind you, but the thread is becoming a little long in the tooth, and the “tripwire” of “moderation” is in effect, so…

April 16, 2017 at 10:09 pm

“ Er, o.k., but the statute giveth and the statute taketh away. IPRs are just as much a creation of statute—duly effected by bicameral assent and presentment to the lawfully elected and sworn executive—as is the presumption of validity.”

Except for the fact that timing is involved and that later legislation may run afoul of OTHER Constitutional protections – as I have point out and as you have continued to neglect.

“ I gather Invention Rights simply thinks that the statute is insane (“It is insane to set the bar as low as the statute allows…”), which is fair enough. It seems passing strange, however, to defend IR’s call for the USPTO to “make a decision on patentability under 103 and stick to it,” by recourse to the statute. It is the very statute that says that the system is not supposed to run as IR would have it to run.”

A fallacy of equating any one part of the statute as having an equal validity under the law as any other part. The fallacy comes from the plain fact that a later change in the law to something that earlier has inured Constitutional protections may very well be improper.

“ Incidentally, this is not really germane to anon’s remarks, but while I am thinking of the subject of the statute and the presumption of validity, I heard the craziest thing the other day. I was listening to the oral arguments in EmeraChem v. Volkswagen, and I heard Judge Chen say that Congress did away with the presumption of validity in IPRs. This appears to be a common misunderstanding, but I assure you, it is not true.”

The statement here, while appearing to be educational, only rises to be misleading, as the difference in levels of the presumption of validity are not addressed, and in fact, are made to seem immaterial. Some of the best L I E S are merely half-truths, and this appears to be one of such.

April 17, 2017 at 12:26 pm

“ I think that i4i is one of the few recent SCotUS cases that the Court got right, but I do not see how it helps your argument here. The i4i Court held that “Congress… codif[ied] the common-law presumption of patent validity and, implicitly, the heightened standard of proof attached to it,” (emphasis added) Microsoft Corp. v. i4i Ltd., 131 S. Ct. 2238, 2249 (2011). In other words, the reason invalidity must be proven by clear & convincing evidence is because that is the implicit requirement of the statute. However, where the statute elsewhere makes explicit that only a preponderance of the evidence is required, the logic and rule of i4i simply ceases to apply, so it is useless to appeal to the authority of i4i on this point.”

Once again – you ignore the fact that protections once created, cannot be merely wiped away – even by the branch of the government with proper authority to write the statutory law that is patent law. The fallacy of “both in the statute” continues…

“ As you already know, I really cannot agree with you here. Nothing changes vis-à-vis the evidentiary standard for invalidity when the PTAB grants an IPR petition.”

Your agreement, or lack thereof – matters not at all – as you were informed previously. As to the “nothing changes” this is so patentably incorrect as to beggar the imagination as to why you put it forth.

“ Even if we imagine that such a “stick” was ever part of a patentee’s “bundle,” it is not a “taking” to remove a single stick from the bundle. Andrus v. Allard, 444 U.S. 51, 66 (1979) (“[W]here an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking, because the aggregate must be viewed in its entirety”). It could hardly be otherwise. After all, if your municipality zones your neighborhood as “residential,” that takes sticks from your bundle, and yet the municipality need not pay you for dispossessing you of your right to open a feed lot in your backyard. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 147 (1978) (“While zoning at times reduces individual property values, the burden is shared relatively evenly and it is reasonable to conclude that on the whole an individual who is harmed by one aspect of the zoning will be benefited by another,” italics in original). IPRs are, in this respect, much like zoning. Any given patent owner’s property might be diminished by the existence of an IPR scheme, but the patent system as a whole is improved, and this aggregate benefit makes it not a taking.”

This is a bit of a twist here, where YOU make a proposition, and then turn around and demand that I give evidence otherwise (all the while you clench tight your eyes to the IPR “death rates”).

You further merely assert that “the patent system as a whole is improved” and offer zero proof or evidence for this statement.

April 17, 2017 at 7:40 pm

“ Yes. That is what I am saying. In fact, I will go one pace further and say that the value of patents in the aggregate is enhanced by IPRs.”

Again – mere assertion and no proof (or evidence – quite in fact, ample evidence to the opposite has been posted, of which you merely do not agree and simply dismiss without more)….

April 17, 2017 at 11:57 am

“ It is in the nature of an organization to arrange itself to maximize revenues.” (remarking on a drawback of the PTAB financial-related structure)

As I have previously point out to Ned, in the administrative law sense, the USPTO’s charter is one of the weakest as to the separation of the political (the Executive Branch) and the semi-judicial. For this reason alone, the deference provided to any of the semi-judicial edicts of the PTAB is suspect – and rightly so.

April 18, 2017 at 11:55 am

“Mostly because of the expense. It is much less expensive and much less time consuming to litigate most questions of validity in front of an administrative tribunal like the PTAB than in front of an Art. III court. A person who has claimed a patent right that is not legally permissible (for novelty and/or obviousness reasons) has imposed costs on the relevant industries and market participants, and it is no fault of those market participants that the wrongful patentee has done so.”

Guilty until proven innocent – and the OPPOSITE of the level of presumption for a granted property right…. This is perhaps one of your most egregious overstepping of the protections afforded property under different Constitutional protections. Further, your attempts to place this on convenience of “expense” misses the mark –and badly so. This is nothing but pro-efficient infringer Kool-Aid.

“ The problem, you see, is that both sides have legitimate rights here,”

There you go again, reducing the legislated LEVEL of presumption of validity of the property right that is a granted patent to vapor.

April 17, 2017 at 12:32 pm

“ As noted above, “presumption” is just an other word for “party X has the evidentiary burden.” If the PTAB requires the challenger to prove unpatentability, then that is as much as to say that the PTAB operates with a presumption of validity in place.”

And again – the fallacy of “a” presumption is the same as “any” presumption….

“If not, then it is simply incoherent to argue that the PTAB does not apply a presumption of validity.”

…and again…

April 17, 2017 at 1:22 pm

“And I repeat: “The word ‘presumption’ properly used refers only to a device for allocating the production burden.” ”

…and again…

What you are describing is not a presumption, but rather an evidentiary standard. I do not think it a particularly worthy standard, but that is really beside the point that I am making. “Presumption” has a very particular meaning in the law, and at the point where one is talking about the “presumption” including elements of Examiner error, one is simply misusing the word.

…half truth… – and simply wrong on the misuse, as the level of presumption is indeed critical here.

April 18, 2017 at 9:32 am

“”What am I missing?”

The levels, and the legal point that such simply are not interchangeable as your views require…(as should be amply clear by now)