In this final segment of my conversation with Ray Niro we discuss the politics of patents, starting with the reality that the Obama Administration has for some time adopted the view of Google and other similarly situated tech companies that seem comfortable with an ever weakening patent system. We also discuss the Supreme Court’s recent decision in Alice v. CLS Bank, as well as the continuing and alarming trend toward expanding the definition of patent ineligible subject matter.
QUINN: Given that the Obama Administration is already out in front anti-NPE, anti-patent troll, and seems to be taking the Google philosophy which is who their advisors are, it seems to me foolish to think the Patent Office is going to moderate that decision and limit it narrowly.
NIRO: Right. The Administration has become a shill for Google — you even have a Google person running the Patent Office. So you have a situation where any number of patents, tens of thousands of patents, are going to be affected by Alice and also by the Limelight decision on split infringement.
Generally speaking, “intellectual property” is probably best thought of (at least form a conceptual standpoint) as creations of the mind that are given the legal rights often associated with real or personal property. The rights that are obtained by the creator are a function of statutory law (i.e., law created by the legislature). These statutes may be federal or state laws, or in some instance both federal and state law govern various aspect of a single type of intellectual property.
The term intellectual property itself is now commonly used to refer to the bundle of rights conferred by each of the following fields of law: (1) patent law; (2) copyright law; (3) trade secret law; (4) the right of publicity; and (5) trademark and unfair competition law. Some people confuse these areas of intellectual property law, and although there may be some similarities among these kinds of intellectual property protection, they are different and serve different purposes.
Recently I interviewed Ray Niro. Our wide ranging discussion touched on all things patent, we first discussed the announcement that Niro, Haller & Niro is now doing patent infringement defense on a flat fee basis. We wrap up our discussion of this new defense business model for the patent litigation industry below. We then transition into a discussion about fee shifting in patent litigation, first discussing the recently failed patent reform and then moving into a discussion of the Supreme Court fee shifting cases from the October 2013 term.
QUINN: How many lawyers do you have at your firm currently?
NIRO: 28. Between 28 and 31 most of the time. We are in the process of adding a few, so we’re I think 28 now; we’ll probably be 31 in the fall.
QUINN: Okay. And the reason that I ask that is because I suspect that as this word gets out that you’re doing this that you’re probably going to see a lot of interest. And how do you envision things developing? Are you going to be able to grow? Are you going to try and choose cases, which cases you can get involved with? What’s the mechanical process?
We always make sure to pay good attention to the major developers of consumer technologies here in the Companies We Follow series, and IPWatchdog is back with an in-depth look at the innovations recently stemming from AT&T. The U.S. Patent and Trademark Office has published many patent applications and has also issued plenty of patents assigned to this corporation in recent weeks. Our most recent search of AT&T patent filings showed us a great deal of intriguing improvements to wireless communication products and services.
We begin today by sharing our featured patent application with our readers, a technology designed to create a privacy zone to disable unauthorized functions in mobile devices which are within the zone. This would enable a meeting administrator to ensure that smartphone device owners cannot produce a recording of a meeting from within the privacy zone, for example. Other patent applications we explore discusses systems for transmitting calls and messages to the proper destination device for more effective communication between those who own multiple devices, as well as a system for better providing local advertisements to device owners who are on the go.
WALKER: Let me give you an example, Gene, that would be simple. I would like to be the nonexclusive agent for your blog in South America. All right? I think I can get people in South America to pay to read your blog. Because how it works in South America they pay to read blogs. I don’t know how much I’m gonna generate for you, Gene, but you can revoke it at any time. I won’t license to any of the major television networks, publishers, et cetera, I’ll only license to small people. And 85% of any money I collect in South America for the blog licenses that I generate for you I’m going to give you. Would you be willing to list your blog with me to try to generate revenue for you in South America?
QUINN: Yeah, I mean that’s a no brainer.
WALKER: There you go. It’s no different. Exactly the same. It’s a no brainer. Listing with us is a no brainer. The only reason you wouldn’t list with us if you didn’t want to have a nonexclusive agent. If you only wanted to license on an exclusive basis.
Ray Niro is one of the most well know patent litigators in the country. In some circles he may be referred to as “infamous,” and in other circles he may be simply referred to as famous. It all depends upon whether he is your attorney or whether he is the attorney on the other side. Regardless, he is well respected within the industry and has made a name for himself as a winner. But not only any kind of winner, but a champion for inventors who have patents infringed by some of the largest, most well funded companies in the world.
Over the past few years I have gotten to know Ray, he has written several op-ed articles for us, and about once a year we catch up with him in an on the record interview. What prompted this interview was seeing an announcement that he and his firm are now offering flat fee defense representation in patent litigation matters. Ray Niro defending a patent infringement case? I have to admit I didn’t realize he did defense work, so I wanted to talk to him about this new business model. He agreed.
In order to discussing his defense activities, we also discussed the failure of patent reform, the inevitable future patent reform efforts that are now a permanent feature of political activity in Washington, DC, and the recent Supreme Court patent decisions from the October 2013 term.
Last March I attended a conference at the Stanford Law School entitled “Patent Trolls and Patent Reform.” From the title, the agenda of the conference was evident, so it was no surprise that the majority of professors who presented papers found that patents were bad. They cost society money, they stop the free flow of information, they make undeserving people wealthy, and they suck resources from legitimate businesses. Research done by these professors from elite universities around the country explained why patents, and those who license or litigate them, had made the United States such a plodding, backward nation that is desperately trying to catch up with progressive countries like China, Russia, and Europe. Fortunately, a few professors actually did support the U.S. patent system, and their research did too.
There are three main reasons that the paper is a ridiculous example of how our universities are putting out “research” that is terribly shoddy, detached from the real world, and simply reinforces generally faulty assumptions about how the world works.