On August 10th, Congressional blog The Hill published a piece of writing by John Thorne, general counsel of the High Tech Inventors Alliance (HTIA), one of the newest institutions serving the efficient infringement lobby in Washington, D.C. The article was an advance critique of the US Inventors protest of the Patent Trial and Appeal Board (PTAB) scheduled for the following day; that event was considered successful as patent owners burnt their patents in full view of the U.S. Patent and Trademark Office as planned without any issues from law enforcement, despite the USPTO’s denial of a use permit application for the event.
“On Friday, a group claiming to represent the nation’s small inventors will demonstrate at the Patent and Trademark Office (PTO) building,” Thorne’s article begins, noting that the demonstrators are calling for an end to inter partes review (IPR) processes at the PTAB. “Some of the speakers will be genuine small inventors. But behind those little guys will be the big dollars of the biggest big-guy exploiters of the PTO’s missteps and mistakes.”
First of all, those in glass houses should not throw stones. Because, Mr. Thorne, who exactly are these nameless “biggest big-guy” exploiters who are supporting US Inventor’s agenda? Is it Google? Maybe Amazon.com? Or perhaps Intel, the tech company who first came up with the “patent troll” moniker back in the 1990s? Are there any bigger big guys than those tech giants? Interesting to note that those are just a few of the major tech companies making up the HTIA cabal, a group which continues to push for legislation which would further devein patent rights in ways which may prompt even more individual patent owners to burn their patents. It’s downright aggravating to see such brash talk from an efficient infringer lobby shill who’s getting paid by the tech ruling class in order to cast aspersions and further suppress the rights of individual inventors and patent owners.
But who is John Thorne? A bio of Thorne available via the U.S. Department of Justice’s website describes Thorne as senior vice president and deputy general counsel of Verizon Communications where he was “responsible for Verizon’s legal work in the areas of antitrust, intellectual property, and privacy, among other areas.” The DOJ bio notes that Thorne had previously been successful in representing Verizon and its predecessor companies in antitrust cases involving competitive video entry and at least one victory in a patent infringement case brought by Verizon against Vonage. According to Thorne’s LinkedIn profile, he served in his VP role for Verizon between 2000 and 2012.
That would mean that John Thorne was VP and deputy general counsel for Verizon during its legal battle against former American cable television company Cablevision where Verizon asserted a series of patents it owned. In March 2010, Verizon sued Cablevision in the District of Delaware, asserting eight patents owned by Verizon. That same month, Verizon took action with the U.S. International Trade Commission (ITC), filing a Section 337 patent infringement complaint with the agency against Cablevision. An initial determination finding no patent infringement committed by Cablevision was issued by the ITC in May 2011 and Thorne is listed as having appeared in the case to represent Verizon. As Verizon’s VP and deputy general counsel, it can be assumed that Thorne was very familiar with Verizon’s legal strategy for this dispute if he wasn’t intimately involved with crafting that strategy himself.
A closer look into the patents renders some interesting information about the patents Verizon asserted and the company’s legal strategy in the case. Two of the eight patents asserted by Verizon in the District of Delaware weren’t originally invented by Verizon, Bell Atlantic or other any other of Verizon’s predecessor companies; they were acquired from outside entities. According to data collected through Google Patents’ searchable database, U.S. Patent No. 6055077, titled Multimedia Distribution System Using Fiber Optic Lines, was published in April 2000 and issued to Nynex Science and Technology Inc. Nynex had merged with Bell Atlantic by 1997 but the patent was assigned to Verizon until January 2009, more than three years after Verizon was formed and a little more than a year before Verizon’s campaign against Cablevision. Then there is U.S. Patent No. 6381748, titled Apparatus and Methods for Network Access Using a Set Top Box and Television and issued to GTE Main Street Inc. in May 1997. The ‘748 patent remained with GTE Main Street, and then GTE Corporation, until it was assigned to Verizon in September 2009, months before Verizon began its campaign against Cablevision.
A further look into Verizon’s filings with the U.S. Securities and Exchange Commission (SEC) shows that Verizon was asserting patents against Cablevision covering technologies that Verizon didn’t appear to be practicing, especially as pertains to the ‘748 patent. A Form 8-K filed by Verizon with the SEC in March 2010 makes no mention of cable set top boxes as a business activity; any mention would have indicated that Verizon was working to practice the technology covered by the ‘748 patent. Verizon’s business description in that Form 8-K mentions local exchange business, network access service, enhanced voice and data services, consumer and small business switched long distance services, as well as dial-up or fiber-to-the-premises Internet service provision. There is mention of broadband video provision which potentially could have included the use of set-top boxes to receive broadband video data, but those activities were limited to Indiana, Oregon and Washington.
Reports on the ITC’s May 2011 ruling in the case indicate that the ITC found that Cablevision infringed on the ‘748 patent but the ‘748 patent was invalidated by a ruling from around the same time coming out of the Eastern District of Virginia. Interestingly, a statement released by Verizon at the time of the ITC ruling indicates that Verizon’s legal action on patent infringement claims was instigated in part by Cablevision refusing “to deal with us respecting their own intellectual property (HD sports in New York) on any terms.”
Even if Verizon was using set-top boxes for its broadband video activities, those business operations were well outside of New York. Verizon acquired a patent on set-top boxes to assert against a company and seems as though it did so in order to force a licensing agreement on Cablevision’s HD sports channel properties in New York, not to seek damages on infringement of a technology which Verizon was itself practicing. These activities are the hallmarks of what makes people consider an entity to be a non-practicing entity (NPE), a patent assertion entity (PAE) or a “patent troll.” And John Thorne was VP and deputy general counsel for Verizon during the whole ITC action and even actively represented Verizon in the case.
And haven’t we been told by the likes of Unified Patents that non-practicing entities are synonymous with patent trolls? (see here, here and here, for just a few examples) One would have to assume if Unified is being logically consistent they would have extraordinary problems with Verizon’s activities where the patents used to sue Cablevision were acquired and not the subject of in-house innovation (a telltale patent troll characteristic), and they were not being used by Verizon, thereby meaning Verizon was not practicing the innovation for which they were seeking to exclude Cablevision (i.e., they were a non-practicing entity).
Clearly, anything that John Thorne says about the U.S. patent system and the community of patent owners and inventors in this country needs to be taken with at least a few grains of salt, seeing as he himself seems to be a patent troll, at least by the definition of those he seems to be philosophically aligned with.
UPDATED Thursday, August 24, 2017 at 10:30am.