Posts Tagged: "efficient infringement"

How I Discovered Strong Patents Are Critical for America

Over the past 25 years, I have patented innovations relating to digital watermarking, content recognition, deep packet inspection, rights management, and related technologies. Today digital watermarking is found on billions of files moving around the Internet every day. This technology protects musicians, artists, writers, and developers from having their work illegally copied. How ironic it is that for the past decade, I have been forced to file many legal challenges to protect my own intellectual property. With the passage of the America Invents Act of 2011, Congress sharply tilted the playing field in favor of large corporations that decide to infringe patents owned by small businesses and inventors like me.

Caltech’s infringement lawsuit against Apple, Broadcom is latest in university patent suit trend

According to multiple reports, the Caltech patents-in-suit are incorporated into both the 802.11n and 802.11ac wireless connectivity standards, which are used by Apple products to communicate digital information. This latest patent infringement lawsuit is part of a growing trend where universities find themselves forced to file suit in U.S. district courts in order to protect their patent rights. They are forced to sue because those that infringe the patents refuse to take licenses on reasonable terms, they refuse to negotiate, and they refuse even to return calls. They choose to infringe with eyes wide open because they feel like they can. This is the face of what is called efficient infringement.

Institutional Challenges to a Reliable Patent Regime for Inventors

What we can, and should, address are institutional challenges. Regrettably, our institutional approach to patents has only further challenged small business and diminished innovation. Those challenges come from changes to our patent law in the America Invents Act (AIA), and precedent that has compromised the exclusive nature of the patent right (eBay v. MercExchange), and rewritten the law of patent eligible subject matter (Alice, Mayo and Myriad). Perhaps most significantly, pending legislation (S. 1137 and H.R. 9), if enacted, will further curtail the patentee’s ability to enjoy the rights granted and to seek just reward for infringement. On top of all this is profound uncertainty as the US Patent and Trademark Office (PTO) struggles to keep up with these changes.

The Patent Scrooges: The rise and potential fall of the efficient infringers

So it now looks like this: if you are a patent owner and feel that your rights have been encroached upon, you now have to assume there will be a challenge to their validity by a potential licensee through an Inter Partes Review (IPR). If you are one of the lucky few (~25%) who survive such a challenge with at least one valid patent claim, you then have to expect an appeal. Assuming you win that appeal, then the real court battle starts in earnest and you’ll have to face what has now become a $3-5M ordeal in legal fees to get through a full trial on the merits and the routinely filed appeal should you beat all odds and win. Treble damages for willful infringement have been rarer than a dodo bird sighting and even winning does not mean you will collect your money any time soon, as the Apple-Samsung saga has recently shown.

A patent owner defending property rights is NOT a bully

Would you consider a business owner who prevented someone from breaking into their store and stealing a tangible product to be a bully? Of course not! They would be taking reasonable steps to protect themselves, and their property, from the thug who was stealing. But if that is the case, why then would you consider a patent owner who protects and defends their rights to be a bully? The truth is you could only consider a patent owner to be a bully if you do not believe patents are a property right. While everyone is entitled to hope and dream, we do have a definitively correct answer. The Patent Act unambiguously says: “patents shall have the attributes of personal property.” See 35 U.S.C. 261. Thus, if a shop owner defending a tangible item against a thief is not bullying then neither is a patent owner defending rights against an infringer.

US close to innovation heart attack, warns Priceline founder Jay Walker

Jay Walker: “Any marketplace that cannot make a deal without filing a lawsuit in federal court is in deep trouble… The results of this mess are sad and unpredictable. There is less incentive to create long-term intellectual property. There is certainly more incentive to infringe if you can figure out what infringement is. There will be more secrecy and there will be less innovation or certainly a very different kind of innovation.”

The theory of patents and why strong patents benefit consumers

Consumers benefit most when patents are strongest and act to block actors. When competitors are blocked that means they cannot simply copy and flood the market with knock-offs or products that at their core are essentially identical. Competitors that are blocked by strong patents have a choice. Either they ignore the patent rights and infringe, which is sometimes the choice made particularly when a small company or individual owns the patent and it is believed they can be bullied. Alternatively, competitors must figure out how to design around the patents in place and find new, creative ways to do what they want to do. When patents are designed around that is when paradigm shifting innovation can and does happen. Unfortunately, thanks to the Supreme Court and Congress we have a patent system that today incentivizes copycats and bullying of innovators.

Chief Judge Rader: “We Need to Tolerate A Little Injustice”

During his contemporaneous, unscripted speech, Chief Judge Randall Rader made several remarks about the access to justice that raised some eyebrows. On Friday we were told that we need to tolerate the injustice of certain rules that might lead to an unfair result, but then on Saturday morning during the Judges’ panel we were told that rules of thumb couldn’t and shouldn’t apply to the law of damages. Rader on one hand was saying that certainty and relatively bright line rules are necessary to control the process of litigation, but then on the other hand saying that a flexible, case-by-case approach needs to be what we pursue. In short, it seems to me that Judge Rader wants to have his cake and eat it too! I dissented in person, and I dissent here and now.