LitigationPatent

SIPCO v. Emerson Underscores Inherent Problems with CBM: So Don’t Revive It

In the late 1990s, prolific inventor David Petite invented a foundational technology for the Internet of Things. His invention drove proliferation of wirelessly networked machines and met with huge commercial success. But last month, the U.S. Court of Appeals for the Federal Circuit upheld the revocation of his patent through a byzantine and controversial administrative proceeding. This patent was subjected to a Covered Business Method Review (CBM) at the Patent Trial and Appeal Board (PTAB). The PTAB is a division of the U.S. Patent and Trademark Office (USPTO) created by the 2011 America Invents Act that has invalided a whopping 84% of the 3,000 patents they have reviewed. Coming too late to save Petite’s patent, the “transitional” CBM program expired September 16 of this year (two other types of PTAB proceedings remain in effect). CBM was not used nearly as much as the other PTAB proceedings, which have no restrictions on subject matter. Yet, corporate interests are still trying to revive CBM, and there’s buzz that attempts are being made to reinstate the program via the fiscal 2021 spending bill this week. There’s no logical basis to do so.

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