Patent Office Review Process Challenged

     SAN FRANCISCO (CN) – The U.S. Patent and Trademark Office’s patent review process violates the separation of powers and the right to trial by jury, a California security company claims in court.
     Security People, of Petaluma, sued the UPTO and rival security firm Ojmar US on July 8 in Federal Court.
     The case began when Security People sued Ojmar in November 2014, claiming it infringed on a patent for an electronic lock.
     After Ojmar in April petitioned the Patent Trial and Appeals Board for an inter partes review, the federal court stayed proceedings pending a PTAB ruling.
     Security People claims the USPTO process violates the separation of powers, by removing its patent lawsuit from an Article III court – in the judiciary – to an Article I court, in the Executive Branch.
     The USPTO’s inter partes review process was established in the America Invests Act, to “modernize America’s patent laws,” President Barack Obama said when he signed the bill into law on Sept. 16, 2011.
     The new process replaced the previous inter partes reexamination process, under the Board of Patent Appeals, with the PTAB.
     The new inter partes review process requires challengers of patent claims to establish “a reasonable likelihood of success” for at least one contended claim, according to the National Law Review.
     A Stanford law professor told Courthouse News he saw little hope for Security People’s lawsuit.
     “People have been arguing for 35 years that the PTO can’t review its own decisions to grant patents,” said Stanford’s Mark A. Lemley, who specializes in intellectual property and patent law. “Those arguments have never succeeded, and I don’t think this one will fare any better.”
     Security People seeks declaratory judgment, an injunction and costs.
     Attorneys for Security People and Ojmar did not immediately respond to requests for comment. Phone calls to the USPTO went unanswered.
     Security People is represented by Frear Schmid.
     Ojmar is represented by N. Andrew Leibnitz with Farella Braun & Martel.

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