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The US Has Institutionalized Big Tech’s Intellectual Property Theft
Another Institution Ensconcing Awfulness
Thanks to Donald Trump, we finally focused upon Communist China’s decades’ worth of anti-US awfulness. One of the awfullest things China does - is steal our Intellectual Property (IP).
We the People can address China’s ongoing, rolling theft - by dealing with China less.
But there is another humongous criminal cabal engaged in China-esque levels of IP theft. And they’re a little more difficult from whom to extricate ourselves. Because they’re here. Behold the larcenous Leviathans that are Big Tech.
Shocker: It didn’t.
Big Tech is sometimes born by IP theft.
Often, IP theft is Big Tech’s modus operandi.
Often, Big Tech figures out how to maximize IP theft along the way.
“First, Amazon used the patent system to differentiate themselves from their competitors with the one-click patent, thus gaining market share. Then the U.S. government crashed the patent system so that no small inventor or startup could challenge Amazon with improved technologies. With no challengers, Amazon monopolized.”
Because we aren’t each worth $2.3 trillion. Apple is.
Sometimes it’s a Clash of the Theft Titans.
And surprise: It happens in both directions. There is no honor among thieves.
Of course, Communist China is Communist. So….
Most unfortunately, the US legal system also enables IP theft. As mentioned above: “(T)he U.S. government crashed the patent system so that no small inventor or startup could challenge….”
How did our government do this?
“The (2013) America Invents Act (AIA) was the single worst disaster in the 226 year history of the U.S. patent system. The AIA did very real damage – enough to put many inventors out of business and discourage many others….
“The real damage was hidden in the AIA’s creation of the Patent Trial and Appeals Board (PTAB) and three new procedures to invalidate issued patents – Inter Partes Review (IPR), Post Grant Review (PGR) and Covered Business Method Review (CBM).”
What is PTAB, you ask?
“DC has reverse-engineered the government entity responsible for issuing patents – to now destroy patents. Patents that government entity its own self had issued – are now destroyed by that same government entity.”
“Since its creation by Congress in 2012, the board has angered the inventing community, which says the review process is biased.
“One judge, for example, represented Apple Inc. in private practice and then ruled in favor of the tech giant 17 times after joining the court….
"Eyebrows were raised this summer when a lawyer representing the patent office in a federal court appeal of a board decision acknowledged that the agency had added extra judges to reviews in order to achieve the desired outcome….”
Despite grandiose claims to the contrary, the PTAB was created for Big Tech:
“PTAB is used almost exclusively by large multinational corporations to attack patents of much smaller competitors. Apple, Google, Samsung, Microsoft, Intel, Comcast, and Cisco are top filers. Smaller companies occasionally attempt to use the PTAB, but usually adds a lot of expense without resolving the dispute….
"PTAB adds an average of $450,000 for each challenge filed. Most disputes involved multiple patents, so the additional cost usually exceeds $1M. If the inventor survives PTAB, they have to fend off similar challenges in the regular court.”
$450,000 per filing is loose pocket change for Big Tech. It is a crushing fortune for individual inventors.
And what Big Tech companies often do is team up against a patent holder. They each file the same PTAB challenge, worded slightly differently, over and over and over. Bringing the “cheaper” PTAB cost into the tens of millions. Thereby drowning the patent holder - and forcing him to forfeit his patent defense…and his patent.
Shocker: The PTAB keeps ruling for Big Tech. An AWFUL lot:
“PTAB invalidates 84% of patents they review. In a regular court the number is about 29%. That comparison is even worse considering that regular courts allow 5 types of challenges (eligibility, novelty, obviousness, definition, and inequitable conduct) while PTAB only allows 2 types of challenges (novelty and obviousness).”
The PTAB is considered an agency entity comprised of “experts.” Absurd as that is, the Supreme Court tacitly ensconced that absurdity nearly forty years ago…:
“Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., (1984), was a landmark case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. The decision articulated a doctrine now known as ‘Chevron deference.’ The doctrine consists of a two-part test applied by the court, when appropriate, that is highly deferential to government agencies: ‘whether the agency's answer is based on a permissible construction [emphasis added] of the statute", so long as Congress has not spoken directly to the precise issue at question.’”
And get this Court-imposed confusion….
The main alleged point of the PTAB was saving small inventors money by having relatively cheap PTAB hearings instead of expensive patent-defense lawsuits. Now they have to have both - because the Court bizarrely ruled you can get different rulings in each on the same patent case.
Of course the courts often defer to the PTAB’s routinely awful decisions.
And get this….
“A California federal judge said Friday that the US inventor cannot intervene in tech titans’ lawsuit against a rule that allows the Patent Trial and Appeal Board to deny patent litigation based of the status of joint lawsuits….”
Wouldn’t want actual inventors screwing up Big Tech’s patent theft case.
Perhaps the biggest beneficiary of PTAB’s theft largess - is Google.
And Google does pretty well in the courts.
All of which brings us to this….
Google bypassed the PTAB this go round - by instead stealing copyrighted material.
“(A)n ongoing legal case within the United States related to the nature of computer code and copyright law. The dispute centers on the use of parts of the Java programming language's application programming interfaces (APIs), which are owned by Oracle (through subsidiary, Oracle America, Inc., originating from Sun Microsystems), within early versions of the Android operating system by Google. Google has admitted to using the APIs….”
Google admits the theft? Indeed….
Google has spent the last decade-plus trying to defend this theft in court. In November, the Supreme Court heard the case.
By ruling against obviously guilty Google, the Supreme Court can begin to clean up Google’s rampant IP theft. And by extension all of Big Tech’s.
And perhaps Google’s blatant theft in this case will show the Court that Google’s very many PTAB wins - are very often corrupt. And begin a courts’ course correction - where they won’t side quite so frequently with the PTAB.
And perhaps Google winning so many PTAB cases - despite their often flagrant IP theft - will cause the Court to reconsider its very awful Chevron deference to allegedly “expert” agencies like PTAB.
Dare to dream. Ladies and Gentlemen.
Of course, we still need Congress to clean up its titanic America Invents Act mess.
Dare to dream. Ladies and Gentlemen….
This first appeared in Red State.