Posted: Friday, Jul 29, 2011 @ 10:40 am | Written by Gene Quinn | 2 comments
Groupon is a popular and growing website that features discounted gift certificates usable at local or national companies. The website launched in 2008, the company rejected an $6 billion offer to be acquired by Google and is eyeing an IPO. Yet, only now have they have truly and properly entered the tech sector. Groupon is now being sued in a recently filed patent infringement lawsuit.
SellerBid, Inc. brought the patent infringement lawsuit (see complaint) demanding a jury trial, against Groupon and others on July 20, 2011. Somewhat surprisingly, the lawsuit was filed in the United States District Court for the Eastern District of Virginia. The Eastern District of Virginia is famously known by attorneys everywhere as “the Rocket Docket,” thanks to how fast cases go from filing to trial. In a study published in October 2010, Stanford Law Professor Mark Lemley wrote: “The Western District of Wisconsin and the Eastern District of Virginia are truly rocket dockets; in those districts the average patent trial was completed less than a year after the case was filed.” So this case will not linger if it does, in fact, stay in the Eastern District of Virginia.
Posted: Thursday, Jul 28, 2011 @ 7:24 am | Written by Gene Quinn | 23 comments
Recently several of my articles have been critical against patent trolls. This is not something new for me, I have been critical of patent trolls for quite some time. Over the years I have also been very supportive of patent owners having the right to bring patent infringement lawsuits to enforce rights that have been granted in the patent; after all, if you cannot enforce a right is it really a right? I think not. This has lead me to at times champion the patent grant and oppose any watering down of the rights of patent owners, as was contemplated in years past with previous versions of patent reform.
For some my pro-patentee and anti-patent troll positions have been difficult to reconcile. I have been contacted privately by some who have urged me to tone down my use of the term patent troll, and that is a fair point. After initially resisting using the term for a great while I embraced its usage years ago, back when earlier versions of patent reform were seeking to curtail the right of a patent owner to obtain due compensation (in the form of damages) for infringement by a defendant. Periodically the Supreme Court has even raised the issue of patent trolls in a casual manner as justification for one bad ruling or another. Typically most use the term “patent troll” to refer to non-practicing entity, but doing that is simply absurd. So I turned to embracing the term. Does it feel right to call a university a patent troll? I think not, and I think most would agree. So not all non-practicing entities can be patent trolls, can they? See how the usage of the term starts to really crystallize the issues?
Posted: Wednesday, Jul 27, 2011 @ 10:14 am | Written by Gene Quinn | Comments Off
U.S. International Trade Commission
InterDigital, Inc. (NASDAQ:IDCC) yesterday announced that its wholly-owned subsidiaries InterDigital Communications, LLC, InterDigital Technology Corporation and IPR Licensing, Inc. filed a complaint with the U.S. International Trade Commission (“ITC”) against Nokia Corporation, Nokia Inc., Huawei Technologies Co., Ltd., FutureWei Technologies, Inc. d/b/a Huawei Technologies (USA), ZTE Corporation and ZTE (USA) Inc. The complaint alleges that the defendants have engaged in unfair trade practices by making and importing certain 3G wireless devices into the United States.
Posted: Tuesday, Jul 26, 2011 @ 2:51 pm | Written by Gene Quinn | 21 comments
In an interview with Tech Crunch published yesterday, Kent Walker, Google’s Senior Vice President and General Counsel, proclaimed: “A patent isn’t innovation. It’s the right to block someone else from innovating.” How someone who has achieved such a high profile position with one of the tech giants of the world could have such an erroneous, even myopic, view of patents is nearly astonishing. It is self evident to anyone who objectively looks at the patent system as it relates to innovation that patents do not block innovation, but rather they encourage innovation. That has always been the case. Obviously there is more to Walker’s statement than meets the eye.
Posted: Tuesday, Jul 26, 2011 @ 10:54 am | Written by Gene Quinn | 11 comments
Reexamination is a low-cost but seldom used alternative to litigation for determining the patentability of the claims in an issued patent. Despite what I write below, I am a fan of reexamination and I think that the fears associated with the process are largely unfounded. Reexamination could and should be used more often than it is, and if you are a defendant in an ongoing patent infringement litigation and you are not simultaneously involved in bringing a reexamination you need to ask yourself why not!
Yes, the reexamination process is slow. Yes, the reexamination process doesn’t work as well as it could or should. Yes, reexamination it adds extra cost. But the statistics don’t lie. In the right case reexamination is extremely effective. Unfortunately, some patent litigators counsel clients to steer clear of reexamination. This may be good advice, or it might just be because the litigator isn’t familiar with reexamination, or in some cases because you recommend what you know and do. The old saying — if you are a hammer all the world looks like a nail — comes to mind. So despite what follows relating to how Congress could and should make reexamination better, if you are on the wrong side of a patent infringement litigation you really should get some impartial advice about the pros and cons of pursuing a reexamination strategy before writing it off as a bad idea.
Posted: Monday, Jul 25, 2011 @ 12:25 pm | Written by Eric Guttag | 3 comments
Back in the “good ol’ days,” the Supreme Court rarely granted review of a Federal Circuit case involving patent law doctrines. One such “rare” instance where the Supreme Court did review (and partially affirmed and partially overturned the Federal Circuit) was the 2002 case of Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. involving when the doctrine of prosecution history estoppel barred an assertion of patent infringement based on the doctrine of equivalents when there was any amendment that narrowed the patent claim at issue.” See When Patent Doctrines Collide: Supreme Court Rules Claim Amendments Do Not Necessarily Preclude Assertion of Infringing Equivalents.
Like the most recent run of decisions overturning Federal Circuit patent jurisprudence, the Supreme Court found, in Festo, that the Federal Circuit’s rule that, whenever prosecution history estoppel applied, there would be no range of equivalents for the amended element, was too “inflexible” for the High Court’s taste.
Indeed, the Therasense decision has created quite a buzz in the patent community. For years the Federal Circuit law relating to inequitable conduct was difficult to reconcile, to be polite. Inequitable conduct, which relates to a violation of the duty of candor owed to the Patent Office during patent prosecution with intent to deceive the Office, is supposed to punish those who engage in nefarious activities connected with obtaining a patent from the USPTO. The penalty for engaging in activities that constitute inequitable conduct is the rendering of the patent as a whole unenforceable, essentially a forfeiture of the entire patent irrespective of claim validity.
Posted: Saturday, Jul 23, 2011 @ 3:21 pm | Written by Gene Quinn | 50 comments
On Thursday, July 21, 2011, attorneys for Lodsys LLC, a company rapidly becoming a reviled patent troll, filed an amended complaint in the United States Federal District Court for the Eastern District of Texas. (*) As a result of this amended complaint some big names in the gaming world have been brought into the ongoing patent litigation battles being waged by Lodsys. Lodsys had already sued a number of Apple App developers and others such as Best Buy and the New York Times, see here and here. More specifically, as a result of the filing of this latest complaint Lodsys has brought patent infringement charges against Atari Interactive, Inc. and Electronic Arts, Inc. (NASDAQ:ERTS), among others. But in the mind of the general public the highest profile defendant to date will almost certainly be Rovio Mobile Ltd., the maker of the extraordinarily popular game Angry Birds, which is available for iPhone, iPad and Android, among other platforms.
In view of Therasense, the Patent Office is proposing to revise the materiality standard for the duty to disclose information to the Office in patent applications and reexamination proceedings. It is the belief of the Patent Office that the Therasense standard will reduce the frequency with which applicants and practitioners are being charged with inequitable conduct, thereby reducing the incentive for applicants to submit marginally relevant information to the Office. Thus, the Therasense standard should curtail the practice of filing Information Disclosure Statements that refer to boxes full of prior art that is of marginal significance, allowing patent examiners to focus on that prior art that is most relevant. The USPTO adopting the Therasense standard could, as a result, lead to improved patent quality and even a streamlining of prosecution in at least some cases.
Posted: Wednesday, Jul 20, 2011 @ 4:11 pm | Written by Gene Quinn | 4 comments
Louis Foreman, the producer of the Emmy Award winning PBS television show Everyday Edisons and the publisher of Inventors Digest, announced in April 2011 that he was launching of a $25 million Innovation Fund. Phase 1 of the search for inventions for the Fund to invest in was completed in mid-June 2011. Phase 2 of the search for inventions and ideas has just begun and will run through Monday, September 12th, 2011.
“The Fund is off to a great start and we have received some very innovative technologies as part of the first wave,” Foreman said. “I am amazed at the creativity and ingenuity. It just reinforces our original premise that everyone has a great idea, but most people don’t follow through. The Fund has become a catalyst to submit these ideas and see if they have commercial viability.” The proceeds of the Fund which will be invested by Edison Nation to bring innovations to market. Inventors who have their inventions or ideas selected will share in any profits with Edison Nation.
Posted: Wednesday, Jul 20, 2011 @ 1:27 pm | Written by Gene Quinn | 3 comments
Yesterday Ocean Tomo released the results of its Patent Quality Benchmark Study. The Patent Quality Study is intended to provide a benchmark for those studying patent quality across the 430 United States Patent Classes as defined by the United States Patent and Trademark Office. The Study was conducted using the Ocean Tomo PatentRatings® system, which is a software platform for objectively assessing patent quality, relative value and competitive trends for patents, patent portfolios, companies, and technology sectors. The Ocean Tomo PatentRatings® System itself is a patented method, covered by U.S. Patent Nos. 6,556,992, 7,657,476 and 7,716,226, as well as various other pending patent applications.
The Study reflects Nanotechnology (class 977) as the number one technology class for patent quality, with the highest current average IPQ® score, which is an objective rating of patent assets based on a statistical methodology. Class 977 received an IPQ® score of 126.5. A median score is 100.
Posted: Tuesday, Jul 19, 2011 @ 6:08 pm | Written by Gene Quinn | 9 comments
Recently Judge Martin Reidinger of the United States Federal District Court for the Western District of North Carolina issued an interesting and perhaps important decision relating to the granting of attorneys’ fees and costs in Precision Links Inc. v. USA Products Group, Inc.
The case was an action for patent infringement involving U.S. Patent No. 5,673,464. The invention disclosed in the ‘464 Patent is a tie-down strap used to restrain cargo during transport. The Plaintiff is the owner of the patent and the manufacturer of the adjustable tie-down strap that is claimed to be covered by the Patent. The Defendant, USA Products Group, is alleged to import a strap accused of infringing the ‘464 patent and was alleged to have sold the accused strap to Defendant Home Depot USA, Inc., which is alleged to have sold the accused strap. Shortly after the Markman ruling the district court entered summary judgment in favor of the Defendants. Not being satisfied with victory, the Defendants moved for attorneys’ fees and costs, arguing that the case was “exceptional”, as defined by 35 U.S.C. § 285.