Disruptive Startups Cannot Survive in a Post-AIA Patent Landscape

“The U.S. patent system is now actively working against disruptors like us and decisively in favor of Big Tech companies.”

https://depositphotos.com/61369901/stock-photo-perspective-word-on-a-puzzle.htmlI founded Netlist in Irvine, California, over 20 years ago to develop the most sophisticated memory module technology in the world. We succeeded, shipping over a billion dollars of product and partnering with top companies, such as IBM, HP and Dell, to power their high performance computers. Netlist continues to invest heavily in R&D in the U.S. We hold more than 130 patents, many of which have been designated as standards-essential. Our memory technology has benefited consumers, businesses and the U.S. military as it is now an integral part of advanced computers deployed in a variety of industries.

When we began the company, we were under the impression that securing a U.S. patent was the high-water mark of innovation and that this would protect our inventions against infringement. A patent, we believed, would allow small innovators like Netlist to compete with large incumbents that wield enormous market power. It’s a maxim in business that Goliaths leverage scale to grow while Davids must innovate to survive. Historically, the patent system has helped even the playing field between the large incumbents and disruptive newcomers. However, after an unprecedented, decade-long fight against one of the largest companies in the world, I’ve come to the conclusion that this is no longer the case. The U.S. patent system is now actively working against disruptors like us and decisively in favor of Big Tech companies.

Repeated Patent Attacks

Starting in 2005, Netlist began working with Google. Our early breakthrough design in advanced memory modules helped power Google’s search engine at a time when it was gaining dominance. But, after several years of partnership, Google stopped purchasing our products and decided instead to build and consume infringing knock-offs. Faced with blatant theft of our intellectual property, Netlist approached Google to initiate licensing discussions. Google instead preemptively sued us in 2009 and we responded in kind.

Following this, Google – in concert with their partners – challenged the validity of our ‘912 patent in proceedings before the United States Patent and Trademark Office (USPTO). This challenge initiated a stay in the patent suit that lasted at first for a decade, and, incredibly is back in effect. This initial challenge, a pre-America Invents Act (AIA) inter partes reexamination, eventually resulted in the USPTO upholding our patent as valid. However, following the passage of the AIA in 2012, the ‘912 patent reexam result was subjected to a PTAB review. Years later, the Board validated the ‘912 patent’s reexam result. Following that, even more reexaminations were pressed by more entities, with the examiner affirming claims of the ‘912 patent again, and then the PTAB finding the claims valid – again – in 2018. Finally, in 2020, the U.S. Court of Appeals for the Federal Circuit affirmed these multiple decisions and conclusively (or so we thought) found the ‘912 patent was valid – over ten years after our dispute with Google first began. All the while, our patented technology has been used by Google and other implementers free of charge.

We thought that after multiple reexam validations, multiple PTAB approvals, and an affirmation by the Federal Circuit, we had finally been given a quiet title to our invention. We were wrong.

The Fight Continues

Despite this patent being found valid FIVE previous times, including by the Federal Circuit Court of Appeals, Samsung, working in collaboration with Google, filed yet another IPR against the ‘912 patent earlier this year. Congress never intended IPRs to be used to endlessly harass patent-holders. Yet, the PTAB, now under its fourth USPTO Director since the case commenced, has just instituted this challenge. Google, with a market capitalization of over $1 trillion dollars, has now leveraged the system to avoid facing a trial for infringing our seminal patented technology for 13 years.

Unfortunately, this is part of a common and predictable playbook for Big Tech companies. Rather than take a license, they exploit the AIA’s IPR process to hold-out and use the technology for free with impunity. The judicial system is not fast to begin with. The IPR process adds years on top of this to tie the hands of patent holders and deny them their day in court. Google and Samsung alone brought 1,185 PTAB challenges between 2012 and 2021. They are not challenging “bad” or “low quality” patents per the original intent of the IPR process. The reality is that Big Tech companies rarely challenge bad patents; they tie up the best patents that pose the greatest competitive threat. The decision to hold out is based on business necessity, not legal merit.

An Institutional Fix is the Only Way Forward

Netlist will continue to innovate. But I could not in good faith encourage young entrepreneurs with new ideas to assume the U.S. patent system will not be misused by Big Tech. The U.S. patent system was established under the Constitution to promote innovation and encourage practitioners to create disruptive  technologies from which the benefits can flow to society at-large. For hundreds of years, the system was the underpinning of our innovation ecosystem and helped make the American economy the most powerful in the world. Over the decade of its existence, the AIA has upended this fundamental precept. A patent today is no longer a quiet title to protect your innovation. Nor is it an incentive to innovate, as it does not protect innovation. Rather the best patents are an invitation to endless, duplicative challenges by the  biggest companies, allowing them to hold out for years while they use the patented technology for free.

Congress needs to end serial and abusive attacks on legitimate patents and patent holders. It can be done; the current system is not what the legislators envisioned when the AIA was passed. The market response to the systemic weakening of our patent system is evidenced by inventors taking their patent applications to China, where the numbers of patent issued has grown dramatically over the past few years while the U.S. patent issuances have remained stagnant. At a time when our country is investing hundreds of billions in the semiconductor industry in order to preserve our global competitive advantage, the legislature should roll back the pernicious fallout of the AIA and preserve the original intent of the patent system, which helped to create our competitive advantage in the first place.

Image Source: Deposit Photos
Image ID: 61369901
Author: iqoncept

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64 comments so far. Add my comment.

  • [Avatar for Geo_D]
    Geo_D
    November 22, 2022 09:00 pm

    Support H.R. 5874 and bring back the System that was in place 15 years ago.
    https://usinventor.org/resolution/

  • [Avatar for Geo D]
    Geo D
    November 22, 2022 07:04 pm

    Contact your respective Congress members on stopping the proposed S.4417 bill. https://www.congress.gov/bill/117th-congress/senate-bill/4417/all-info
    “Please stop and desist S.4417. S.4417 is a dangerous legislation that will confuse the validity of patent rights directly by bringing contradicting validity decisions from the PTAB and the Federal Courts. This will cloud the title of all patents even more than it is already. This will further disrupt early-stage funding of startups particularly those that bring emerging technologies and compete with Big Tech and CCP controlled companies. The policy must support the Constitution to promote innovation and encourage practitioners to create disruptive technologies from which the benefits can flow to society at-large. The proposed S.4417 policy does not support as such, causing other companies outside of legal merit and take the lead in the next generation of new technologies.”

  • [Avatar for Chris Whewell]
    Chris Whewell
    November 22, 2022 07:01 pm

    I saw the trend in Netlist’s earnings, it is a good trend and not easy to do these days. I hope you get more Commercial respect in the future Dr. Hong, you are a true Warrior.

  • [Avatar for Anon]
    Anon
    November 22, 2022 06:32 pm

    George,

    You have even less. Far less.

    You might want to remember that in your postings.

  • [Avatar for George]
    George
    November 22, 2022 05:38 pm

    @ anon

    LOL! You got nothing! Just keep ‘pounding the table’ … ‘poser’!

  • [Avatar for Felix Q]
    Felix Q
    November 22, 2022 10:57 am

    Folks Go to Congress.gov and oppose the bill s-4477 being introduced by Leahy, Cornyn and Tillis. It does nothing to protect the innovators. It’s big tech with all their money trying to move the goal post.

  • [Avatar for Anon]
    Anon
    November 21, 2022 11:56 pm

    Again, “George,” you only provide bombastic posts.

    For all the work that you claim, you provide NO actual ‘sausage’ for me to actually watch.

    That is one reason why I engaged you on this thread: I am looking forward to seeing you do more than run your mouth.

  • [Avatar for George]
    George
    November 21, 2022 08:39 pm

    @ anon

    Blah, blah, blah is all you know! Go and actually ‘practice’ some law, somewhere. Then come back here.

    I’m 3 for 3 already! lol. I also file all my own applications (including claims & even drawing figures). Not many people do that anymore. I can learn NOTHING from you (and no one else can either). So, just sit back and watch how the sausage ‘really gets made’, OK? lol

    Next year will be our biggest suit yet! We’re looking forward to it – a lot! Should get a lot of publicity too. Might even break the 2023 record for civil recovery in my state (which is one of the stingy ones)! Watch for it – lol!

  • [Avatar for Anon]
    Anon
    November 21, 2022 01:47 pm

    George,

    Your “just shut up” is the epitome of why you have the reputation that you have (hint: you know nothing about the law).

    Maybe instead, you take the time to consider the items provided to you, recognize the points presented, and learn something.

  • [Avatar for George]
    George
    November 21, 2022 01:21 pm

    @ anon

    Please just shut up. You are totally embarrassing yourself now and I am sure there are some people who know exactly who you are, what your reputation is, and what your status in society is. Maybe they will even reveal that one day (when they finally get fed up with you).

  • [Avatar for Anon]
    Anon
    November 21, 2022 08:27 am

    A couple of points my friend:

    In regards to “First Name:”

    Whether or not George is actually your first name is a non sequitur to the point that posting under JUST that first name no more identifies you than does the use of any pseudonym or posting anonymously – when such is done on a consistent basis. My use of “Anon” here sets forth a consistent basis of “actual words” with which to evaluate viewpoint, veracity, credibility, or any other ‘measure’ that applies in a forum such as this.

    That you want to emphasize that this IS your real name, while missing the immediate direct point that such ONLY first name is one example of you consistently missing a direct point in the dialogues in the blogging forum.

    Mind you, one NEED NOT ‘out themselves’ or use full names to establish any of the viewpoint, veracity, credibility, or any other ‘measure’ that applies in a forum such as this. Further, as I have repeated on occasion, this country was built with MANY pseudonymous writings (such as for example, Publius, and Poor Richard).

    In regards to your fantastic [sic] legal plans:

    Your retreat here (for whatever reasons) signals a different message than the one that you want to give.

    If you are going to BE bombastic (and do so in a plainly illogical manner when it comes to legal matters such as legal procedure or the plain substance of laws), AND you are not committing to actually following through in any meaningful manner, ALL that you are doing is being bombastic. Pause for a moment and realize how your own presentation detracts from any credibility that you may want to ‘earn’ with only your words attached to a ‘(real) First Name.’

    This combined with the non-singularly identifying manner of Just-First-Name places the ‘credibility’ of your posts only on the words therein.

    Please note that I have no problem with dealing with credibility based only on the words therein, and – critically in this forum of blogging – this is actually a preferred manner, seeing as the ‘borrowed’ authority of using one’s actual name is often attenuated or even disconnected from the actual words of posts.

  • [Avatar for George]
    George
    November 20, 2022 04:38 pm

    The USPTO has NO respect for inventors or attorneys, despite 99% of their employees NOT BEING attorneys but nevertheless making ‘legal decisions’ all the time, involving new technologies that could be worth many billions of dollars!

    How does that NOT invite corruption, Congress?

  • [Avatar for George]
    George
    November 20, 2022 03:52 pm

    @ Alan

    We intend to make public what happened under the SAWS program, and seek justice for all those ‘abused’ by it! We believe it was all unconstitutional and hope to be able to prove that. We may be able to do so as an additional result of a lawsuit we’re planning to bring against the PTO, as soon as we can. They could then be FORCED to turn over ALL DOCUMENTS pertaining to this ‘super-secret’ program as part of discovery relating to our suit.

    They definitely wouldn’t like that, since it could result in a long list of ‘conspirators’ being disclosed, who could then be separately charged with various crimes as well, and possibly still be held legally accountable for them. It would be very interesting to learn a lot more about the SAWS program in any case and what ‘really’ was behind its creation. We want no more ‘cover-up’ of what secretly went on for 20 years at the PTO. Would be very interesting indeed to get all that information and the names of all those inventors FINANCIALLY HARMED by it. I’m sure Congress might like to learn more about it too!

  • [Avatar for George]
    George
    November 20, 2022 03:35 pm

    @ Anon

    I’d written even more about why we’ll likely be suing the UPSTO and several of its examiners & SPEs (as individuals), but my cat decided to erase it by stepping on my keyboard. But let me just say that I’m very serious about pursing the ‘legally novel’ strategy of charging the PTO & its examiners & management, with FELONY fraud charges & more specifically ‘RICO fraud’ charges, so they won’t be able to simply have those dismissed on the grounds of sovereign immunity. Felonies can’t be so easily dismissed, especially in STATE courts! LOL!

    In any case, that can’t happen yet because I’m just beginning another ‘big’ lawsuit this month and won’t have the time for another one for at least a year now. But stay tuned! You’re very likely to hear about it again and it sure doesn’t look like the grounds for such a lawsuit will be going away, anytime soon. Also we’re now out of at least 12 YEARS of term and that’s only sure to grow with time (making ‘damages’ far, far greater, not to mention ‘punitive damages’)!

    We aim to get back ALL the term we should have gotten within two years of filing – multiple applications! Indeed will aim to get back 18 years of term, on ‘multiple patents’ that have not even issued yet (but clearly should have).

    By the way, we DON’T LET our applications get published by the PTO UNLESS they issue as ‘good’, ‘strong’, ‘enforceable’ patents. Our inventions therefore remain ‘trade secrets’ until that time! I highly recommend that all inventors now ‘insist on’ non-publication, unless they’re actually issued ‘good’ and ‘valid’ patents on their work, especially since most smaller entities can’t afford to file for international protections anyway. At least initially (until they obtain at least one domestic patent), American inventors should just file ‘unpublished’ applications to provide them with very good protection against invention theft, while still allowing them to claim ‘patent pending’ status on all their ‘undisclosed’ work. Indeed their inventions can remain ‘patent pending’ for many years if necessary, without anyone ever learning anything from them.

    Early publication is one of the DUMBEST things ever thought of, as just part of the destruction of the once greatest patent system in the world! It is just a free ticket to steal anything one might like, since most inventions will never be commercialized whether patented or not, and small entities CAN’T any longer afford to enforce even their patented inventions! Early publication is just an invention to the wholesale theft of new ideas. Especially for China. The USPTO is now their one-stop shopping place for FREE IDEAS! They don’t even NEED espionage anymore! Our USPTO is giving them anything they want now – for free!

    I don’t think Tesla ever had to disclose anything without it first being issued a ‘strong patent’ protecting his ideas as his part of the original ‘social contract’ intended by the Founders. What happened to that ‘social contract’, Congress? What happened to that, Director Vidal?

    My first name really is ‘George’ by the way! lol . . . Stay tuned!

  • [Avatar for Alan]
    Alan
    November 19, 2022 11:23 am

    I prosecuted patents that were under SAWS (the Examiner told us they were). The Examiner would tell us claims in continuations of the patents involved in IPXs, ex-parte reexams, and IPRs were allowed but the NOAs didn’t show up for months. I contacted an ombudsman twice asking what the hell was going on. The NOAs were issued soon thereafter. Two FOIA request concerning SAWS – the USPTO stonewalled for both arguing they were too broad. What a crock. If anyone seriously believes there was no wrongdoing by the USPTO when Lee was the director, they need a reality check. The Federal Circuit needs to wake up, as well.

  • [Avatar for Anon]
    Anon
    November 19, 2022 09:08 am

    George,

    I for one am eagerly awaiting that lawsuit of yours and wish you well getting out of the gate.

  • [Avatar for George]
    George
    November 18, 2022 10:12 pm

    @ Pro Say

    The (super-secret) SAWS program that was denied to even exist for 20 years – but then wasn’t?! How many inventors got DEFRAUDED out of patents by that one? 100? 1000? More than that? Will we ever find out? Will Congress ever investigate that scandal, fraud & cover-up? Will inventors & attorneys ever DEMAND THAT? Will they ever be compensated for it by the USPTO (like with at least $1M each)? Will anyone at the USPTO ever be held accountable for that ‘scandal’ and its deliberate cover-up?

  • [Avatar for George]
    George
    November 18, 2022 10:02 pm

    @ Jack Stewart

    You are of course correct and I’ve been saying that since the AIA was overwhelmingly passed by Congress and then signed by Obama. It goes to show that politicians just don’t understand science & technology & what’s required to keep it going and motivate a new generation of scientists & inventors. It’s basically the same thing that motivates most people, Congress. Innovators CAN’T and won’t just WORK FOR FREE (like Elon Musk would love too). They don’t want to be like ‘starving artists’, especially if they have families to support. Why should they? And, HOW CAN THEY, when their expenses aren’t just for a canvas & some paint, but tens of thousands of dollars for lawyers & PTO fess too (for the life of any patent they might be ‘lucky’ enough to even get).

    The AIA was & is a ‘catastrophe’ for the future of innovation & invention in America! It’s also a gift to China & others, who don’t really need to steal American IP anymore. They can just look up all the ‘published’ inventions they want now (patented or not). Even pending patents are all FREE to at least look at, improve on, or just steal, without much worry of ever have to face any consequences for doing that (especially from the U.S. government). And even better, the actual risk of getting sued by an inventor today (much less EVER being ‘successfully sued’ by one today) is almost zero, because ONLY big companies can afford to do that anymore unlike like 100 years ago. Being able to actually ‘protect’ and ‘enforce’ IP in America, is now a ‘luxury’ that can only practiced by the wealthiest of individuals & companies! Patent protection & enforcement has now truly lived up to its reputation of being the ‘sport of kings’, with mere ‘peasant inventors’ not even welcome to try!

    So, MOST U.S. inventions are now essentially ‘free for the taking’, except in the case they happen to belong to one of the 100 or so largest companies & monopolies in the world, like Apple, Google, Amazon, etc. This obvious ‘fact’ now makes the AIA completely ‘absurd’ and useless, both legally & economically! Might as well just get rid of patents altogether at a savings of billions of WASTED dollars a year!

    But, let me guess who ‘paid Congress’ to get the AIA ‘easily passed’ and who actually WROTE IT for them? I wonder what the Founders would have said about that?! They seem to have been a lot smarter & wiser than people today.

  • [Avatar for Jack Stuart]
    Jack Stuart
    November 18, 2022 12:26 pm

    At a very minimum, patents should enjoy a presumption of validity, once issued; AIA destroyed that presumption with the institution of the PTAB.

    Federal courts have a clear-and-convincing standard for the burden of proof (i.e., that patents are presumed valid and thus civil courts’ highest burden of proof is required to overcome that presumption). In contrast, an infringer at a PTAB proceeding need prove only that the claims are more likely than not unpatentable to invalidate a patent that would have survived such weak sauce in a federal district court.

    The bottom line is that both the AIA and its progeny, the PTAB, have fundamental flaws undermining the patent system, and these extend well beyond this single issue. But this is a great starting point to fix this dumpster fire, in any case.

  • [Avatar for Sonny53]
    Sonny53
    November 18, 2022 10:13 am

    The other problem with the new petition, against the 912 patent, is that some of the documents cited in the new petiton wer a part of the previous prosecution history of the patent. In other words, they have already been considered before. Samsung cites Perego, Amidi, and Ellsberry in their petition. Specifically, Amidi US2006/0117152 and Ellsberry US2006/0277355. Both documents were a part of the 912 prosecution history. Perego was also listed on an information disclosure sheet, although a different patent than what Samsung is putting forth. It still begs the question; if Perego was considered in the prosecution history, why wasn’t this other patent brought up then? But seeing that Samsung paired Perego with Amidi in their petition and Amidi was previously considered, it would seem that the PTAB has ignored their own practice of not considering something previously brought before them.

  • [Avatar for cw]
    cw
    November 17, 2022 03:25 pm

    First word that came to mind:

    Barratry.

  • [Avatar for Pro Say]
    Pro Say
    November 17, 2022 11:11 am

    The Four Horsemen of the Innovation Apocalypse are alive and well . . . continuing their scorched-earth ride of innovation devastation.

    Say their names:

    1. SCOTUS
    2. CAFC
    3. PTAB
    4. Congress

    Say. Their. Names.

  • [Avatar for Don Riley]
    Don Riley
    November 17, 2022 10:45 am

    How to help? This is wrong !

  • [Avatar for George]
    George
    November 16, 2022 11:59 pm

    Correct Mr. Hong. I’ve been saying this since the AIA passed. It’s a disaster! Obama should never have signed it into law. The problem is no one in Congress understands science & technology and what motivates the risk taking that’s needed for new discoveries to be made and for new products to come into the marketplace. We sold out to Europe! We should have stayed with our earlier set of laws and statutes. They gave us the industrial revolution & the middle class.

    Large corporations are now destroying all that because they paid for & got exactly what they wanted. Their intent was to make independent inventors EXTINCT, once & for all, so they can monopolize and control any field they believe is theirs alone. They want to get rid of any potential ‘upstarts’ who could possibly compete with them. Wonder how much they paid Congress for the AIA? I’m sure it was a huge amount. It’s a disgrace. Congress simply colluded with them. The rest of the world should have adopted the American system of IP protection, not the other way around! We ‘invented’ that system too!

    If the top 1000 companies in the world control all future innovation, we’ll have very little of that. Older companies always fall behind in innovation as they mature and develop significant inertia and risk avoidance, in order to keep investors happy. Researchers & inventors are not so much different from ordinary people, though. They don’t want to spend huge amounts of time & money just to never be recognized for it and never be compensated for it. They don’t want to see their work ‘destroyed’ by PTO ‘tricks’, in favor of large corporations & monopolies. Why should they accept the current state of affairs? Inventors should organize and go on strike for just one year. Let’s see what Congress (and companies who depend on stealing tech from others) do then!

    If possible we will now turn our back on ‘worthless’ patents and try to rely more on stealth, ‘free’ trade secrets, copyrights, and trademarks, and NDAs, along with just rapid marketing in order to be first to market. Inventors can no longer hope to license anything they come up with. That will never work again. Inventors hoping to do that will just go broke in a hurry now! We will never have an Teslas, or Bells, or Wrights again.

  • [Avatar for F22strike]
    F22strike
    November 16, 2022 04:09 pm

    This is a common story resulting from the AIA that big tech bought from Congress.

    As another example, Caltech’s patents on ground-breaking error correction inventions that make WiFi what it is today have been subject to serial IPRs for years at the hands of Apple, etc. Caltech uses royalties from licensing patents to support its world class research. Apparently that will no longer be the case thanks to the AIA.

    Query, is it even ethical for an attorney to prepare and file a US patent application for his/her client? If the invention has no commercial value, the patent is worthless. If the invention has commercial value, its asserted claims will either be revoked in one of a series of IPRs and/or the owner will be subject endless litigation delays, making the patent worthless.

    Congress has sanctioned the efficient infringer business model.

    In a nutshell, patents no longer secure exclusive rights to inventors and their assignees as the founding fathers wisely intended.

    If I were the house counsel for a company, I would recommend against filing any US patent applications and instead place emphasis on trade secret protection where practical and available.

  • [Avatar for Anon]
    Anon
    November 16, 2022 02:11 pm

    Aside from the thrust of the actual article, it is interesting to note the rather unusual (and outsized) level of new commentators on this particular matter.

  • [Avatar for Robert P. Taylor]
    Robert P. Taylor
    November 16, 2022 01:24 pm

    A great article. Thank you, Mr. Hong.

    The Alliance of U.S. Startups and Inventors for Jobs (USIJ) posted a White Paper in 2018 showing that the intent of Congress at the time of passage of the AIA was to limit PTAB challengers to “one bite at the apple,” after which they could pursue further challenges in district court. https://www.usij.org/research/2018/serial-attacks. That objective was lost as soon as the PTAB was fully organized. By 2018, many of the tech companies (Google and Samsung were high on the list), were filing multiple challenges to the same patent a high percentage of the time. That our government is incapable of addressing such pernicious behavior demonstrates that this nation’s leadership in science and technology is imperiled and waning rapidly.

  • [Avatar for Anonymous]
    Anonymous
    November 16, 2022 11:51 am

    Capt Obvious,

    The company accused of infringement in this case has had 13 years to defend itself and the patent has been found valid at least 4 times. Is that enough? And, oh yeah, the whole time Google has been using this technology to build a trillion dollar global monopoly. Defend that.

  • [Avatar for mike]
    mike
    November 16, 2022 11:13 am

    @Felix Citizen, you are an internet troll and only trying to fool the public with your comment. Leahy created the PTAB with the Leahy-Smith America Invents Act. Now, Leahy, Tillis, and Cornyn are trying to make the patent system WORSE. Many people think that bill you cite is horrible. See
    https://ipwatchdog.com/2021/09/30/stakeholders-speak-leahy-bill-to-restore-the-aia-is-too-unbalanced-to-pass/id=138249/

    To fix the patent system, inventors stand behind Massie’s bill, H.R. 5874.
    https://usinventor.org/massie-innovation-act/

  • [Avatar for John Norris]
    John Norris
    November 16, 2022 10:50 am

    The rich get richer. Time to balance out the wealth. Be fair already!

  • [Avatar for Felix Citizen]
    Felix Citizen
    November 16, 2022 10:20 am

    Totally disgraceful situation no wonder we are falling behind China. There is a bill introduced in congress to completely overhaul this corrupt Ptab. It’s Bill S-4417 introduced by Patrick Leahy,John Cornyn and Thom Tillis.It will set up provisions to stop patent challenges from repeated inter parties review(ipr) It was introduced in June of 2022 Darrell Issa is now in charge of bringing a revised bill to congress. Leahy has retired this month.

  • [Avatar for Wedgecake]
    Wedgecake
    November 16, 2022 10:06 am

    I had 100k shares and then sold after Netlist lost the post IPR appeal to SK Hynix ,based on a post Claim Construction re-definition of the word “generate”. This was the Distributed Buffer Architecture (DBA) patent, used worldwide now by all memory houses. I have never seen this before. Usually, 90%+ Claim Constructions stand on appeal pre AIA!!
    That’s when I realized the PTAB process was broke and corrupt, unfortunately.
    SK Hynix actually flew their top execs to DC ,including CEO, for a beltway dog and pony show to wine and dine key Republicans and a few Dems before this Appeal decision. They boasted of future billion dollar investments for stateside semi fab mfg. Then Netlist lost the appeal.
    Now, Samsung is doing same re the seminal 912 patent with its IPR review, using obscure prior art already reviewed and discarded. They are promulgating a semantic tertiary re-definition of the word “rank”. Sound familiar?
    This is the well known “Dilutory” delay strategy used by Google in particular….for last 13 yrs.
    I would love to re-invest in Netlist but now do not trust the PTAB and their admin review judges, especially w/r to the Samsung 912 IPR review.
    If you now look at Netlist remaining unrestricted cash on hand, coupled with their burn rate, they will be BK in 4 quarters and this 912 IPR review, as well as other Netlist patent reviews, will drag out till 2025 court cases are completed.
    Then Micron will use the same “Dilutory” strategy! Maybe another post Claim Construction appeal overturn on semantics.
    Good Lord.

  • [Avatar for Alan]
    Alan
    November 16, 2022 09:41 am

    Is the litigation in ND Cal? It is shameful that litigation is/might be stayed again for an IPR petition filed by a non-party. It is also shameful that a party that is barred from having an IPR instituted can join an IPR – that is just wrong.

    I believe the four Inter Partes reexaminations I have been working on for 11 and 10 years are among the very few left. Once you survive an IPX, you should be done for any proceeding involving the party that filed the IPX request. Unless all the art in the new IPR request is new, you should be able to apply collateral estoppel under SynQor, Inc. v. Vicor Corp., 988 F.3d 1341 (Fed. Cir. 2021) for any determinations in your favor from the IPX and the ex-parte reexaminations.

  • [Avatar for Model 101]
    Model 101
    November 16, 2022 09:41 am

    The whole patent system is crooked.

    All you did was tell the world how to do it.

    Duh!!!!!

  • [Avatar for Dr. Rick James]
    Dr. Rick James
    November 16, 2022 09:37 am

    This article is simply another case of patent holdout, which was developed as a solution to patent holdup. Neither abuse can be solved without solving the other. The courts allowed patent holdout because the notion that a tiny fraction of essential patents in any given technologies could be abused to force major techs to pay usury royalty rates was considered an obstacle to innovation. Although there is no doubt that the large techs are abusing patent holdout, they are only able to do so because of the lack of any other solution to patent holdup. Might be time to consider correlated intellectual patent rights.

  • [Avatar for Keith Willhelm]
    Keith Willhelm
    November 16, 2022 08:53 am

    Chuck,

    I have to believe Netlist will beat back the most recent IPR instituted by Samsung. At this point I know that is small consolation. There have been some changes recently that make it more difficult to file multiple and serial petitions. Thanks for speaking out. There is more work to be done. Perhaps a statue of limitations for petitions running either from the issue date or from the filing of an initial petition. Better fixes likely could be implemented if the problem is seriously addressed. In any event, thanks again for your comments and for your company’s innovations. We’re all better off when smart people work hard. Best of luck.

  • [Avatar for Elias Jeckerfield]
    Elias Jeckerfield
    November 16, 2022 08:21 am

    Why apply for patents if you are going to be put through 13 years of litigation action only to end up loosing your patent anyway to big corporations.

  • [Avatar for Sonny]
    Sonny
    November 16, 2022 07:59 am

    It seems that the PTAB and AIA have not lived up to their billing. It needs to be reformed or outright abolished. There is much more detail to the example that Mr. Hong gave. Samsung and Google have a significant customer/ supplier relationship that dates back to at least when the 912 patent was in a merged IPR, with three petitioners. An IPR where all claims were challenged. As a result, Google is estoppel from filing its own IPR petition. They directly benefit from Samsung’s petition because both are involved in litigation with Netlist, concerning the 912 patent. There is too much to write here, concerning Netlist, but a company should expect a quiet title to their patents after being prosecuted and upheld as much as the 912 has been. Instead they have encountered another petition and delay after delay. Mr. Hong, it is good to see you speaking publicly about the issues at hand.

  • [Avatar for Jane Citizen]
    Jane Citizen
    November 16, 2022 07:36 am

    It’s absolutely appauling how after over a decade of litigation,
    and being upheld 5 times that collusion between big tech such as samsung and google is clearly overlooked by PTAB.
    The continuation and unnecessary delays by said colluding companies, in order to drag this out to attempt to bankrupt a company, simply because they both stole intellectual property and milked netlist of all the royalties, and even ensuring they can’t get a fair market price for their own sales.

    The courts have recognized everything, and can’t stop big tech using these loopholes. PTAB needs to be investigated at very least.

    I also suggest/request, an Audit of Ruling Members from PTAB’s stock portfolio’s, It might well be they are heavily vested in both of netlist’s competitors.

  • [Avatar for Bob Dickerman]
    Bob Dickerman
    November 16, 2022 07:31 am

    Not a lawyer, but large corporations bringing PTAB IPR challenges to delay and deny justice in the patent arena strikes me as being exactly like what Trump and other wealthy entities have been doing every day in other arenas – bringing lawsuits to delay and deny justice. This problem doesn’t seem to be limited to patent law; rather, it seems pervasive across our entire legal system. Crafting laws that provide the “correct” balance seems a task of central importance.

  • [Avatar for Anon]
    Anon
    November 16, 2022 07:28 am

    Mr. Malone,

    Sadly, I do not see the impetus that you (want to) see.

    Not that these types of articles should stop — quite the opposite.

  • [Avatar for Mike Tavery]
    Mike Tavery
    November 16, 2022 06:45 am

    This article is spot on. Google and it’s brethren steal with impunity , shielded by incredibly egregious patent laws.

  • [Avatar for Niels Grabol]
    Niels Grabol
    November 16, 2022 05:03 am

    Thank you for this honest and precis evaluation of a system that only favor Big tech companies. Hope this steal Will end soon.

  • [Avatar for Walt]
    Walt
    November 16, 2022 02:37 am

    I agree 1000% with you Chuck, the US patent sys. is deeply flawed for the very reasons you’ve so thoroughly articulated. Let’s call it what it is, the sys is corrupt! When trillion dollar cos. like Google and Samsung can simply rip off the technology innovations of small startup cos. and then brutalize them with endless costly litigation and spread their wealth throughout the US Patent office to get unfounded and baseless rationale to steal this technology under the current sys. There is zero oversight of these cos.’ tactics mainly because of their enormous wealth. It’s my opinion but I firmly believe these cos’ bribe US Patent Off. officials, Federal Judges and most definitely political office holders to get exactly what they want. How can a disruptive patent owner survive such insurmountable odds like that? How many “honorable” US Patent officials are there? How many are taking the bribes? I seriously believe they’re not hesitating taking the money that the Google and Samsungs of the world are slipping to them under the table. Its as obvious the noses on our collective faces,

  • [Avatar for KNichols]
    KNichols
    November 16, 2022 02:30 am

    This article represents us as shareholders as well. Thank you Mr Hong. As a larger shareholder of Netlist, I believe strongly in their technology, diligence and fortitude in this rigged PTAB system. We hold these shares in the hope that no matter what the PTAB does, the legal system and judges will rule that google has infringed as evidenced in 2010 by an independent inspector. I am grateful to Hong for keeping enough money together to afford 15 years of drug out multi company infringement lawsuits. We shareholders can wait. We are ok. Just pray the judges do the right thing. Mr Hong, you need to write these more often and widespread. Thank you for never giving up. We won’t either!

  • [Avatar for Barry Houseman]
    Barry Houseman
    November 16, 2022 12:09 am

    Shutting down innovation is ruining this country. Justice should not take decades!

  • [Avatar for Clyde Anderson]
    Clyde Anderson
    November 15, 2022 11:30 pm

    The PTAB should exist to protect the legitimate patents of innovative companies like Netlist. Instead, they continually support the illegitimate interests of the big corporations. The system is immoral and desperately needs to be changed.

  • [Avatar for Josh Malone]
    Josh Malone
    November 15, 2022 11:27 pm

    Thank you for speaking up Chuck. I’m standing with you. This is a very clear explanation and I believe will squelch the recent propaganda campaign by USPTO and big tech to salvage the reputation of the PTAB. Those APJs might might want to reach for their golden parachutes soon.

  • [Avatar for BolliverShagnasty]
    BolliverShagnasty
    November 15, 2022 11:18 pm

    I sold my shares

  • [Avatar for Ted]
    Ted
    November 15, 2022 11:11 pm

    Wow that is so disheartening and kind of disgusting to hear about really!
    It seems very dishonest at the very least and really disappointing that kind of thing can happen here in the USA where we are generally lead to believe higher standards, honesty and just legal practices are what separates our nation from the those of developing nations.
    I guess I am just naive to think the right things will come to pass for those who deserve it.

  • [Avatar for Lohith P]
    Lohith P
    November 15, 2022 10:58 pm

    It’s shameful that a country that was built on innovation is now causing pain to disruptive innovators and promoting blatant and effective infringement of seminal patents ….sincerely wish that American justice system does justice and Congress fixes the inefficient system they put in place to safeguard intellectual property owners ..

  • [Avatar for Mason]
    Mason
    November 15, 2022 10:32 pm

    Unbelievable. Big boy control everything.

  • [Avatar for Christie Congleton]
    Christie Congleton
    November 15, 2022 09:54 pm

    This is a travesty. This abuse has gone on for years and years. And just when they finally get it upheld, and justice is about to be served, they do a rug pull. They are inept, it borders on criminality and corruption. Change the laws, we don’t need our patent owners heading to other countries. Our country is on the leading edge and forefront of technology, but not for long. Companies must be paid and licensed for their hard work, what’s the point otherwise.

  • [Avatar for Kyle]
    Kyle
    November 15, 2022 09:31 pm

    Totally agree

  • [Avatar for Karl Janes]
    Karl Janes
    November 15, 2022 09:30 pm

    This is such injustice!! 13 years!!! Hong we are with you. Keep the fight

  • [Avatar for Barry Houseman]
    Barry Houseman
    November 15, 2022 09:23 pm

    Let Treble Damages be the quick fix for the court system. Less infringers, more licensing…problem solved.

  • [Avatar for Anonymous]
    Anonymous
    November 15, 2022 09:14 pm

    Patent board just do your job please protect the little guy. Preserve our democratic rights to innovate and be fairly compensated. That’s all ask of you surely a decade is far to long !!’

  • [Avatar for Sonny53]
    Sonny53
    November 15, 2022 09:10 pm

    Chuck, you are absolutely right and rightly upset about it. It is disgrace and black eye to our patent system that companies such as yours can be subjected to abuses by multiple actors. It is a travesty that large corporations have been given such a big stick to bludgeon smaller companies into submission. The fact that big corporations use the PTAB to self servingly attempt to destroy or steal innovation is an indictment of the whole patent system.

  • [Avatar for Norma Perry]
    Norma Perry
    November 15, 2022 09:06 pm

    I am seriously praying that the Lord will speak to the hearts of the infringers and the people in charge of protecting the inventors. Also may God bless the inventors.

  • [Avatar for LiveFree]
    LiveFree
    November 15, 2022 08:56 pm

    PTAB and the patent system are failing due to persistent corruption and incompetence. District courts and congress need to intervene and put an end to the madness. This is the USA still right?

  • [Avatar for Robert Cobb]
    Robert Cobb
    November 15, 2022 08:51 pm

    Its a shame what the patent system has come to,when a company like Netlist has been abused for so long and the PTAB allows it to continue,Congress needs to make changes or do away with PTAB all together!

  • [Avatar for Dwayne Veillon]
    Dwayne Veillon
    November 15, 2022 08:48 pm

    Keep up the good fight Chuck. The world is opening their eyes to the abuse of big tech.

  • [Avatar for Alan Palmer]
    Alan Palmer
    November 15, 2022 08:41 pm

    It’s time that Mr Hong’s story is told. America’s future is in the hands of the innovators and inventors. Netlists inventions made the internet what it is today while Google becomes a trillion dollar company bearing no responsibility for its infringement. I hope they learn the phrase ‘ Treble Damages’

  • [Avatar for Capt Obvious]
    Capt Obvious
    November 15, 2022 06:33 pm

    Serial and abusive?

    So people you sue serially (and you’ve sued tons) shouldn’t be able to defend themselves?

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