3 ms·

Who holds the review board accountable for making bad decisions vs the accountability of the courts? I think this question is just as important. Aside from that

Who holds the review board accountable for making bad decisions vs the accountability of the courts? I think this question is just as important. Aside from that, I imagine it's far easier for a lobbyist to get someone who is industry friendly appointed to the review board vs appointed as a judge, which is concerning.

billbrown 8y ago
That's one of the reasons for Gorsuch's dissent. I suggest you read it: it's quite clear and principled. I think the Court's opinion is that the remedy to the courts is still available even after the board's decision, so it's fine. (I think this is good but an unfavorable board decision reversed by the courts later is going to have very bad effects on the businesses affected. Property rights need to be secure and uncertain property rights are _punished_ mightily by the market.)
- microtherion 8y ago
  I agree that an unfavorable board decision can hurt a non-practicing entity. On the other hand, an improperly granted patent can hurt a business that is bringing actual products to market. I would argue that if these scenarios have to be balanced, one should err on the side of allowing products to be shipped.
- mtgx 8y ago
  Intellectual "Property" is an intentional misnomer used by IP holders as propaganda to support the idea that IP is "just like property." It's not, because unlike property you can't establish that 100% of a project were your ideas and your ideas only. Every new project is a recombination of ideas. It's not 100% original. If copyright and patents would be enforced perfectly and automatically, there would no longer be any new inventions. More on this here: https://www.theguardian.com/technology/2008/feb/21/intellectual.property https://www.theguardian.com/technology/2008/feb/21/intellect... https://mises.org/library/intellectual-property-not-true-property https://mises.org/library/intellectual-property-not-true-pro... https://www.everythingisaremix.info/watch-the-series/ https://www.everythingisaremix.info/watch-the-series/
deleted 8y ago
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md2be 8y ago
Wrong on both points.
tptacek 8y ago
PTAB decisions are reviewable by the CAFC.
pkilgore 8y ago
The courts do. Nearly every invalidity decision by the PTAB is appealed to the Federal Circuit. Now, the standard of review from the Board is more deferential than from a typical court, but this is for a reason: The panels at the PTAB have both relevant technical expertise (that Art. III judges almost always lack) and focused legal expertise (your average Art. III judge rarely handles patent cases). But the problem that concerns you (regulatory capture by lobbyists) is almost certainly prevented by Federal Circuit review of the PTAB's IPR decisions, which require the Board to support its decision by applying both the correct legal standards and based on 'substantial evidence' (which is a legal term of art).

billbrown 8y ago

That's one of the reasons for Gorsuch's dissent. I suggest you read it: it's quite clear and principled. I think the Court's opinion is that the remedy to the courts is still available even after the board's decision, so it's fine. (I think this is good but an unfavorable board decision reversed by the courts later is going to have very bad effects on the businesses affected. Property rights need to be secure and uncertain property rights are _punished_ mightily by the market.)

microtherion 8y ago
I agree that an unfavorable board decision can hurt a non-practicing entity. On the other hand, an improperly granted patent can hurt a business that is bringing actual products to market. I would argue that if these scenarios have to be balanced, one should err on the side of allowing products to be shipped.
mtgx 8y ago
Intellectual "Property" is an intentional misnomer used by IP holders as propaganda to support the idea that IP is "just like property." It's not, because unlike property you can't establish that 100% of a project were your ideas and your ideas only. Every new project is a recombination of ideas. It's not 100% original. If copyright and patents would be enforced perfectly and automatically, there would no longer be any new inventions. More on this here: https://www.theguardian.com/technology/2008/feb/21/intellectual.property https://www.theguardian.com/technology/2008/feb/21/intellect... https://mises.org/library/intellectual-property-not-true-property https://mises.org/library/intellectual-property-not-true-pro... https://www.everythingisaremix.info/watch-the-series/ https://www.everythingisaremix.info/watch-the-series/

deleted 8y ago

[deleted]

md2be 8y ago

Wrong on both points.

tptacek 8y ago

PTAB decisions are reviewable by the CAFC.

pkilgore 8y ago

The courts do. Nearly every invalidity decision by the PTAB is appealed to the Federal Circuit. Now, the standard of review from the Board is more deferential than from a typical court, but this is for a reason: The panels at the PTAB have both relevant technical expertise (that Art. III judges almost always lack) and focused legal expertise (your average Art. III judge rarely handles patent cases). But the problem that concerns you (regulatory capture by lobbyists) is almost certainly prevented by Federal Circuit review of the PTAB's IPR decisions, which require the Board to support its decision by applying both the correct legal standards and based on 'substantial evidence' (which is a legal term of art).