Prior to the PTAB, Masimo patents withstood every challenge in Court and the USPTO. Those challenges were extensive, by well-funded large companies such Nellcor, now part of Medtronic, and Philips Medical. Thus, Masimo’s patents were subjected to intense scrutiny from millions of dollars of attacks by very competent, well-paid lawyers. Yet, Masimo’s patents survived all of those attacks. Compare that with what happened at the PTAB with Apple. Apple filed 33 inter-partes review (IPR) petitions on 22 Masimo patents. Apple challenged 473 claims, of which 343 were held invalid by the PTAB. The judges that invalidated hundreds of property rights previously granted by the U.S. Government had no particular background in pulse oximetry. Yet they decided that the primary examiner with almost 3 decades of expertise in the field of the invention and the pre-existing technology, had gotten it wrong about 80% of the time. This is the same examiner that issued other Masimo patents that withstood rigorous legal challenges in Federal Courts. We spent over $13 million defending our patents in these IPRs filed by Apple. How many companies could afford such an expense? We have no doubt that these patents struck down by the PTAB would have been upheld before an Article III judge and jury and normal patent validity challenges at the patent office, just as all Masimo patents in the past. https://lnkd.in/ghiWdXxG
Hans Hartman
10mo
The USA has sold its creative soul with the AIA. And now everyone in Government thinks Big Tech has the answers as to why the U.S. is falling behind China. The reason we are falling behind, is because the small inventor is being screwed by the Government.
I’d think more patent lawyers would be upset- what inventor wants to pay for a useless patent? The industry will wither
Alan Burnett
10mo
PTAB judges that are not skilled in the relevant art is a huge problem. The Examiners in the art unit that issue a patent generally have far more knowledge of the relevant art. To be objective, there are patents that are issued by the USPTO that are indeed invalid. But in most cases, especially when an SPE is involved, the Examiner's involved in examining and subsequently allowing claims are better equipped to determine validity of the claims than the PTAB judges. Another issue that should (IMO) have been better addressed during the hearing is the lack of cross-examination of "experts" during an IPR. That is where a jury trumps PTAB APJs. Most APJs, lacking sufficient skill in the art, cannot distinguish when an expert is telling the truth or is merely signing a declaration prepared by counsel that is full of falsehoods. Those experts would be destroyed on cross-examination during a trial.
E.C. DeSpain
10mo
I believe that the lower "preponderance of evidence" standard is a large part of what is broken at the PTAB. Not all, but definitely a huge part. The other issue is patent owners being subjected to endless IPR challenges from petitioners. The issue is that preponderance has to only prove "more likely than not" that a case is true. That's basically a coin toss. 51% more likely than. The issue with this is that when it comes to matters of human judgment this gives a lot of latitude to USPTO judges who may/may not be trained in the specific subject matter. IF the USPTO judges aren't informed enough, or spend enough time, understanding the differences between the state of the art and the patent it could lead 2/3 USPTO judges to be persuaded by the petitioner. IF a petitioner brings ANY expert that contravenes the evidence of the claim-owner then it could lead 2/3 USPTO judges to be persuaded by the petitioner. IF the petitioner claims the technology was "obvious" (even though it wasn't) it could lead 2/3 USPTO judges to be persuaded by the petitioner. IF the petitioner files 50 times they only have to win once, the inventor has to win EVERY SINGLE TIME to preserve their patent. The petitioner is playing with loaded dice.
Merritt Fletcher
10mo
I wish people would say the “USPTO judges” that invalidated hundreds of property rights previously granted by the USPTO (U.S. government) had no particular background in pulse oximetry. People are getting lost in translation by inventors using PTAB and judges and iprs… this is the USPTO … call it USPTO’s PTAB or back door. If not most Americans have no idea what we are talking about.
Richard Howe
10mo
It appears that a patent is not worth the paper it is printed on unless you have a billion dollars in the bank to defend it.
Schumann Rafizadeh
10mo
Nothing can withstand a corrupt government agency like USPTO and PTAB mafia. PTAB judges not only don't know pulse oximetry the don't have any technical education let alone scientific innovation. They only know how to bill hourly to big tech for doing their dirty work. This now has seriously jeopardized American innovation and future security.
Dr. Edward Lin
10mo
PTAB simply has to go. It is destructively unfair.
Patent Plaintiff Contingency; WDTX local counsel
10moThis is interesting. Are there any statistics about whether the PTAB judges are matched to the technology? One of the big sells for the IPR process was technologically specialized judges.