Posts Tagged: "interview"

“Our promise to the small or medium size operating company is we will give them a simple and affordable way to understand the patent environment they’re doing business in, to find the hundred patents that are most statistically relevant to their product line. And provide them with either a license or a warranty that allows them to reduce the risk they’re facing on those one hundred patents. And if you’re a small or medium size operating company who is coming to understand that every business needs an IP strategy these days as IP becomes a more important part of markets and the economy then this is a very affordable and simple entry level strategy for understanding and dealing with patent risk. And that puts you in a much better position arguably than the position that you’re in right now which is you know very little about the risk you’re facing and you can do nothing about it.”

Ray Niro is one of the most well know patent litigators in the country. In some circles is 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… I noticed 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.

KUNIN: ”But what is the one thing that can be a break the bank issue? What if the patent owner asserts eight patents against you in a litigation. Can you pick and choose which are the best patents among the eight to challenge? Or are you going to have to file and pay for eight IPRs? At what particular point does it actually become a financial burden for you to go after every asserted patent against you in that litigation in separate IPRs? Either you can try to strategically determine which are the patents which are most harmful to you and most vulnerable and go after them in IPRs, or try to go after all of them in IPRs. But if you go after all of them, you already explained how expensive it is, all right? So let’s assume for argument sake it’s a fairly complex proceeding and it’s costing $300,000 per IPR. So $300,000 times eight is the total cost. What’s the cost of the litigation in defending against all the asserted patents?”

KUNIN: ”Remember though an Act of Congress in 1982 the Federal Circuit was established as the single reviewing court for district court patent appeals to provide uniformity and consistency in the development of the patent laws. And for a couple of decades it was pretty much left unsupervised by the Supreme Court to let the patent law develop more consistency. But now if you look back from 2014 you see that there’s been a sea change in how the Supreme Court has exercised its supervisory role. This may be in part due to the intra-court disagreements in the Federal Circuit decision-making inviting the Supreme Court to take a case. We see that systematically there seems to be a desire of the Supreme Court to get the Federal Circuit, in the area of patent law, to apply general law principles. No special rules for patent cases need exist for legal aspects that are not unique to the patent statutes.”

GROSSMAN: “I think that we will see some form of patent litigation reform passed by the Senate and then ultimately by Congress. Currently, there are very few things on which the Republicans and the Democrats can come together. However, patents and other types of intellectual property seem to be one area in which joint action is possible. I think that ultimately both parties are going to want to do something that shows that they can work together and get something important accomplished. Enacting the appropriate type of patent litigation reform would foster innovation and create jobs and thereby demonstrate to the American people that they still have a functioning Congress. The House has already passed a bill, and the President urged Congress to pass a bill in his State of the Union address. I think the momentum is there.”

MUELLER: “I think a lot is going to ride on what we see going forward from the PTAB, for example decisions in post grant review. Will those decisions be high quality and will the courts respect them? We know that the Office has hired some really good folks but they’ve also been hampered by the sequestration. I’m delighted that Michelle Lee has taken the reins. I sure hope that’s going to be permanent. I think she’ll do an outstanding job and be highly respected. But I also think a lot of attention is going to be paid to what happens as those post grant review decisions start coming out.”

CHISUM: “I’m very skeptical when Congress starts talking about reform. I don’t think there is enough sophistication in Congress and among committee staff members about how the patent system really operates and about the challenges the many thousands of people operating the system face. Most of the legislative efforts I’ve seen over the last 30 years to reform the patent system, in fact, reformed very little. The “reforms” have tended to respond to particular interest groups, to particular complainants. Congress has tended to respond only to a consensus that something was wrong rather than thinking outside the box as to what will really improve the efficiency and predictability of the patent system.”

There was nothing off the table for discussion in this interview. We discuss how and why he choose McDermott, as well as what it was like working for David Kappos and working with Judge Ray Chen when he was Solicitor at the USPTO. We also discuss the future of the Patent Office, the appointment of Michelle Lee to be Deputy Director of the USPTO, substantively what the USPTO was trying to do with respect to post grant procedures, the new ethical rules applicable to Patent Attorneys and Agents, and a variety of other issues.

On July 1, 2013, I spoke on the record with Ray Niro, who is one of the most well known patent litigators in the United States. Throughout his career he has been a champion for the inventor who was facing long odds due to widespread patent infringement. So loathed was Niro, he was the one who was originally referred to as the “patent troll” by the media due to his representing innovators against giant technology companies. Of course, if you are going to call Ray Niro a patent troll you might want to also point out that he is extraordinarily successful, which means he has been very good at proving that large corporations have infringed valid patents, sometimes on fundamentally important innovations.

In June 2013 the anti was raised significantly in the ongoing discussion of patent trolls. The White House chimed in, which you might be inclined to think would be an important development. Sadly the President getting involved in the discussion had more to do with grandstanding than solutions. With all this in the news who better to speak with than Ray Niro, the original “patent troll” according to the media. In our interview Ray unapologetically, and unsurprisingly, comes out in defense of American inventors and those who engage in the hard work that is research and development of new and wonderful innovations. He pulls no punches, and in part 1 of our interview he calls out Cisco, a strong critic of non-practicing entities, as a hypocrite for doing the very thing that they rail against.

We know that Trolls for example have a methodology and they send out cease and desist letters in waves, right, and they collect all they can until they have to start filing suit. By the way the defendants we should be praising, the defendants in any Troll lawsuit means they told the Troll to take a jump so they’re already a hero, right, but we know that these Trolls work in waves with these cease and desist letters and most people who get these cease and desist letters figure they’ll just keep quiet. The problem with that is they’re giving up key advantages like forum choice so they can all talk with each other without talk — speaking publically you might be able to figure out how to pull funds and go have one company step forward or find the best DJ Jurisdiction and have that company step forward and bate the Troll into giving him another correspondence to trigger DJ Jurisdiction, right? That’s one way where you might really start to push back on these 8 Symmetries, but there’s no way, there’s no forum, there’s no secret forum for the recipients of these letters to even speak with each other.

Rachael Lamkin is a patent litigator who recently became Associate General Counsel at Blue Ocean Enterprises, Inc. I have known Rachael virtually for several years, communicating with her both via e-mail and via Twitter

Steve Kunin is the head of Oblon’s Post Grant Patent Proceedings practice group, and is also on the firm’s Management Committee. He is also a friend. For several years now I’ve been getting together with Steve for lunch periodically to talk about a variety of patent issues. On May 6, 2013, we sat down for a wide ranging discussion about patents, ranging from post grant proceedings to secret prior art to the Supreme Court and the Economic Espionage Act. Of course, we ended with several fun topics including discussion of the Washington Nationals and must-see Sci-Fi summer movies.