One of the real problems with the debate over patent litigation abuse is that it hasn’t focused on litigation abuse at all. Instead, the debate has focused on attempts to characterize patent owners with pejorative labels, such as calling anyone who has the audacity to seek to enforce their rights a “patent troll.” Unfortunately, the term “patent troll” has evolved to mean “anyone who sues me alleging patent infringement.” This has lead the media, the public and Members of Congress to incorrectly believe that there is a “patent troll problem,” which has influenced decision-makers all the way from Capitol Hill to the United States Supreme Court, who increasingly seems to be deciding patent cases with one eye firmly on what is a completely non-existent problem.
You have probably heard the narrative start something like this: there is an explosion of patent litigation. The objective reality, however, is that there has not been an explosion of patent litigation. The Government Accountability Office, after an exhaustive review of patent litigation, concluded that there was no patent litigation crisis. The same GAO report also found that 80% of the patent lawsuits filed are brought by operating companies suing other operating companies. Thus, those who profess there to be rampant problems associated with patent trolls and non-practicing entities suing for patent infringement are simply telling a tale that the factual data doesn’t support.
More recently Lex Machina has come forward with some eye opening statistics as well. A recent report from Lex Machina concludes: “Plaintiffs filed 329 new federal patent cases in September 2014, a 40% decrease from the 549 cases filed in September 2013.” Indeed, if you dive deeper into the 2013 and 2014 statistics you see that through the first nine months of 2013 there were 4,548 patent infringement lawsuits filed, but during the first nine months of 2014 there were only 3,887 patent infringement lawsuits filed, which represents a 15% reduction in patent litigation in 2014 compared with 2013. Furthermore, in 7 of the 9 months during 2014 there have been fewer patent infringement lawsuits filed during 2014 than during 2013. The statistics and independent GAO report just do not support a narrative that proclaims there to be a run away problem with patent litigation run amok.
We often return to Microsoft during the course of our Companies We Follow series here at IPWatchdog to profile the most intriguing inventions developed by a giant of American technological development. The U.S. Patent and Trademark Office has published dozens of recently filed patent applications assigned to this company. We noticed a great deal of research and development in the field of cloud computing, as well as an intriguing assortment of filings related to video gaming. Two of these involve the use of a physical activity monitoring device worn by a player for personal training or gameplay.
Microsoft has one of the most powerful patent portfolios in the world and the past few weeks have not shown any signs of slow activity here. One patent protects a system enabling mobile device users to quickly share video and audio content across short-range networks, like Bluetooth. A couple of software solutions for business issues are included, such as one patent protecting a method of syncing data from a recovery machine more quickly in response to a network failure. The prevention of phishing scams and methods of tailoring web services to the preferences of a group are also explored below.
Gene Quinn at the AIPF Annual Meeting in Washington, DC, September 29, 2014.
Today I am going to talk about what I call the patent pendulum. When Todd Van Thomme and I originally started talking about what I would talk about today I said that there would undoubtedly be something that comes up at the last minute. I even joked that I might wind up talking about how the Supreme Court actually got the Alice decision right, surprising us all and saying once and for all that software is clearly patentable. We all know it didn’t turn out that way. So the title of my presentation today is this: Dark Days Ahead: The Patent Pendulum.
As you are probably all familiar, patent law never stays the same in the same spot. It is always swinging one or another, either swinging more towards stronger patent rights and the patent owner, or away from strong patent rights and away from the owner. It has been that way throughout history.
Normally what’s happened is that we’ve seen the pendulum swing over longer periods of time, like over decades, and then it’ll move away. For example the 1952 Patent Act was premised on the fact that Congress didn’t like the way the law was developing over the preceding years and wanted more things be patentable, hence the 1952 Patent Act did away with the flash of creative genius test. So things swung back toward a more patent friendly law, at least for a while. And then in the 1970s no courts ever saw a patent that actually had valid patent claims. This famously prompted Congress to create the Federal Circuit. Under the guidance of Chief Judge Markey and Judges like Giles Sutherland Rich and Pauline Newman, who is still on the court, the pendulum swings back toward the patent owner once again.
Yesterday the Partnership for American Innovation (PAI), which is comprised of Apple, DuPont, Ford, GE, IBM, Microsoft and Pfizer, submitted comments responsive to a request for public information published in the Federal Register back on July 29, 2014, titled Strategy for American Innovation. Some may recall that in February 2011, President Obama released a Strategy for American Innovation, which described the importance of innovation as a driver of U.S. economic growth and prosperity, and the critical role the government plays in supporting the innovation ecosystem. The Office of Science Technology Policy and the National Economic Council are now tasked with updating the document to create a revised Strategy for American Innovation.
One can hope that this group of venerable American innovators will be able to get through to decision makers who will be responsible for charting the new innovation and intellectual property strategy. Notably missing from the PAI, however, is Google, who will certainly have different views.
Google is known to be one of the primary advocates of watering down, if not outright destroying, the U.S. patent system. This is interesting because Google is a top 10 patenting company according to data from the United States Patent and Trademark Office for 2013. They have also spend tens of billions of dollars acquiring patent portfolios that now due to their lobbying efforts are practically worthless. Regardless of Google’s schizophrenic approach to patents, the arm of Google that seems to loathe patents and the U.S. patent system has particular influence in Washington, DC. Both current and former Google executives are known to have the ear of the White House, which is largely to blame for the substantial anti-patent sentiment flowing from the White House. Unfortunately, all of this suggests that whatever the new strategy for innovation will be it will be one that incorporates significant anti-patent positions support by Google.
IPWatchdog’s Companies We Follow series always tries to pay close attention to the intellectual property activities of the world’s largest consumer electronics developers. Microsoft’s investment into research and development for computing technologies results in a large number of patent filings registered at the U.S. Patent and Trademark Office. We return once again to focus on patent applications and recently issued patents assigned to Microsoft to provide an interesting look into this corporation’s innovations for our readers.
The featured patent application which we’ve chosen for today’s column discusses a social networking method which tries to enhance the shared viewing of video content among a group of people in geographically diverse locations. The movie theater interface gives group members the opportunity to communicate thoughts and emotions with others watching the same content. More intelligent computing systems for task management and advertising video games for download are also described within recently filed patent applications.
Here at IPWatchdog’s Companies We Follow series, we’re stopping back into the offices of the U.S. Patent and Trademark Office to uncover the most recent inventions coming out of the facilities of the Microsoft Corporation. Our readers will be interested to find out about the various software technologies being created for both business and personal activities, as well as a few novel pieces of computer hardware.
We start today with a long look at the featured patent application, which describes a hardware device capable of determining a person’s mood from various sensors and inputs. In what you might consider a modern day evolution of the mood-ring, this device is capable of representing a person’s mood and stress levels. The system works by using biometric data signals indicative of mood from a variety of sources, including a heart rate monitor, galvanic skin monitor, camera or microphone.
Periodically I stumble across a number of items that catch my attention, so I have occasionally published a monthly column that incorporates various items of possible interest. As I was reviewing the wire I noticed that this past week was particularly busy. Obviously, this is not intended to be an exhaustive summary, but rather interesting items that might be worth knowing about in order to keep your finger on the pulse of the industry.
Without further ado, here are some interesting patent business items from the past week.
Spherix Incorporated (NASDAQ: SPEX), a Tysons Corner, Virginia intellectual property monetization company, recently announced that it has entered into a series of agreements with Rockstar Consortium (US) LP in which Spherix Incorporated acquired over 100 patents and patent applications. The newly acquired patents cover among other things, numerous aspects of access, switching, routing, optical and voice communication network devices.
In addition to the 100 patents/application acquired will complement the Rockstar patents previously acquired by Spherix and will further support Rockstar’s current licensing efforts. Rockstar will also share usage information with Spherix for the transferred patents, and will assist Spherix in working with the patents’ inventors, to assist Spherix’s commercialization efforts.
Take a quick listen to the many conversations that have been taking place in the computing world over the past year and you’ll likely notice one term being thrown about fairly often: cloud computing. This new form of computer networking is fraught with possibilities that would completely transform the idea of computing, whether in the home or in the workplace.
Even as more of us are becoming acquainted with the idea of the cloud, many of us are still woefully ignorant of what the term actually means. For example, a survey by cloud software developer Citrix Systems showed that 54 percent of respondents did not believe that they used cloud-based computing, even though 95 percent of them actually did. Almost as many respondents confused the cloud metaphor, believing that stormy weather could actually interfere with cloud systems.
Cloud computing is set to take a much more prominent role in our technologically savvy society. Providing advanced computing applications through networking channels severely reduces the IT needs of homes and businesses who want to use more powerful software programs without installing them on a client computer. With more than $131 billion in economic activityfor the cloud computing sector in 2013, more business infrastructure and software services should be taking to the cloud than ever before.
Entire corporations have begun to narrow their focus on cloud computing. IBM has been developing cloud-based solutions for business needs for a few years now, and Google’s cloud options for Internet users include online file storage and document creation. It is against this backdrop that we want to take a quick look back at 2013 and celebrate what some could call the Year of the Cloud, during which the concept began to truly enter the mainstream consciousness.