Posts Tagged: "Patent Litigation"

Prior User Rights and the Incentive to Keep Innovations Secret

However, if prior users are keeping their technology secret while being protected, that leap-frogging from one breakthrough to the next be impeded. Disclosure is the backbone of the progression of the sciences for this reason. “[T]he ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats v. Thunder Craft Boats, 489 U.S. 141, 151 (1989). Sharing ideas allows others to improve upon the state of the art and as a result, better products such as medicine and consumer electronics are brought to market thereby driving our economy and benefiting the welfare of the U.S. as a whole. Prior user rights, on the other hand, will inhibit this progression.

Follow the Money – Will the ITC Lose its Patent Jurisdiction?

Such is the case with the newest lobby in Washington, the self-described “ITC Working Group.” You won’t learn anything about this organization by searching Google — odd, considering that Google is a member — but according to industry sources, its aim is twofold: First, it wants to block the International Trade Commission (ITC) from hearing patent infringement cases brought by “non-practicing entities” — i.e., patent holders like universities, independent inventors, and others who license their patents for manufacturers to commercialize. And second, it wants to weaken the ITC’s power to block the importation of infringing products into the U.S.

Are Patent Wars Good for America?

In short, today’s smartphone patent wars are simply “back to the future” when it comes to how disruptive new industries are developed. Every major technological and industrial breakthrough in U.S. history — from the Industrial Revolution to the birth of the automobile and aircraft industries on up to today’s Internet and mobile communications revolutions — has been accompanied by exactly the same surge in patenting, patent trading, and patent litigation that we see today in the smartphone business. This is how the rights to breakthrough new technologies have always been distributed to those best positioned to commercialize them — to the benefit of the whole nation in terms of new jobs, new medical advances, and new products and services.

Ordinary Plain Meaning: Defining Terms in a Patent Application

The question of whether a term is defined adequately is really a legal question, so the views and opinions of those who are not well versed in the law are hardly probative. Inventors invent and patent attorneys describe those inventions to satisfy the legal requirements. If inventors could describe their inventions to meet the legal requirements they wouldn’t need patent attorneys, but we all know that inventors who represent themselves make numerous errors and always obtain far more narrow protection than they would have been entitled to receive. They just don’t understand the law well enough and are not qualified to offer opinions on matters of law.

Court Slams Frivolous & Vexatious Litigation with $4.7 MM in Fees

In what seems to be a continuing trend, the United Stats Court of Appeals for the Federal Circuit is continuing to show increasingly little tolerance for abusive patent litigation tactics. In the most recent pronouncement along these lines the Federal Circuit, per Judge O’Malley (with Judges Newman and Prost joining), ruled the district court appropriately awarded the defendant $3,873,865.01 in attorney fees and expenses under § 285, as well as $809,788.02 in expert fees.

Acacia Research by the Numbers: Inside the Belly of the Beast

Acacia has long been considered by many to be the mother of all patent trolls. But are they really a patent troll? The term “patent troll” is one that is nearly impossible to define given the reality that one man’s patent troll is another man’s innovator who just chooses to license. Increasingly, however, the true bad actors in the non-practicing entity community are engaging in what the Federal Circuit has called extortion-like behavior. Is Acacia Research one of those patent trolls that engages in mafioso tactics, or are they a godsend to inventors and small businesses who otherwise couldn’t monetize their patent portfolios?

What Will Prior User Rights Mean for Patent Litigators?

If you believe that prior user rights are insignificant and don’t deserve discussion you have permission to keep your head firmly planted in the sand. Everyone else keep reading. Think of all that will easily be fair game in discovery. The defendant has the burden of proof and controls the evidence. Judges are going to allow liberal discovery, particularly where the evidence is uniquely held by the defendant and cannot otherwise be obtained by the patentee. When things go wrong it will be the lawyers who are at the short end of the pitch-fork. Don’t let that be you!

The Software IP Detective: Infringement Detection in a Nutshell

When copying has occurred, much of the code may have changed by the time it’s examined due to the normal development process or to disguise the copying. For example identifiers may have been renamed, code reordered, instructions replaced with similar instructions, and so forth. However, perhaps one comment remains the same and it’s an unusual comment. Or a small sequence of critical instructions is identical. Correlation is designed to produce a relatively high value based on that comment or that sequence, to direct the detective toward that similarity. If correlation were simply a percentage of copied lines, the number could be small and thus missed entirely among the noise of normal similarities that occur in all programs.

Patent Misuse, Exploring the Basics

The term “patent misuse” refers to specific types of prohibited behavior engaged in by the owner of the patent rights. Patent misuse is an affirmative defense that recognizes that it is possible for a patent owner to abuse the exclusive right enjoyed as a result of the issuance of a patent. As an affirmative defense, patent misuse cannot be used as a sword, but can only be used by an alleged infringer if and when the patent owner seeks to enforce the exclusive right of the patent in a patent infringement suit. Once a patent infringement suit is initiated, the alleged infringer, in order to successfully rely upon the patent misuse defense, must “show that the patentee has impermissibly broadened the ‘physical or temporal scope’ of the patent grant with anticompetitive effect.” If the alleged infringer can demonstrate that the patent owner did engaged in prohibited behavior, the patent will be unenforceable despite the fact that it is valid. In this respect, patent misuse is similar to the doctrine of inequitable conduct, which also works to make an entire patent unenforceable.

What if the Spouse of Every Inventor Living in a Community Property State has an Undivided Interest in an Invention?

If you think the title only raises a wild possibility, consider what happened in a recent case decided by the Federal Circuit. After being sued for infringement, the defendant had the ex-wife of the inventor of the patent-in-suit sell to it any interest she had in that patent. The defendant argued that as a result there could be no infringement, both because plaintiff lacked standing and because the defendant had acquired an undivided interest in the patent. It almost worked.

U.S. News Ranks Top Patent, Copryight & Trademark Law Firms

Of course, these lists never give any love to the small or mid-size firms that provide high quality legal work at a reasonable cost to clients. But that is only one of the things that will raise some eyebrows. U.S. News included Howrey LLP in the top tier for intellectual property litigation and the firm dissolved on March 15, 2011, hardly 10 weeks into 2011. So how exactly does that qualify Howrey, a firm that no longer exists, for top tier ranking? That alone will cause some to scratch their heads and wonder exactly what U.S. New was thinking.

Point – Counterpoint: The Debate Over Prior User Rights

Exactly who is to blame if a pharmaceutical company, say Eli Lilly, decides to invest billions of dollars and build a facility when they haven’t adequately protected their own intellectual property? Moreover, who is to blame if that company consciously chooses to resort to trade secret protection, which we all know is exceptionally fragile, as the foundation to build a multi-billion dollar investment? For crying out loud, the very premise that a patentee could force the closure of a manufacturing facility employing hundreds or thousands of people and interrupt the production and distribution of anything, let alone something as consequential as a pharmaceutical, is nothing more than fantasy. Talk about chicken little! Only someone unfamiliar with the evolution of the law relative to preliminary and permanent injunctions in patent litigation could with a straight face much such an argument. Indeed, the mother of all straw arguments!

Tenth Circuit Finds Patent Infringement Insurance Coverage Under “Advertising Injury” Clause

Therefore, no one should read this decision as stating a general rule that patent infringement is covered under “advertising injury” provisions in a typical insurance contract. Rather, the decision should be read as saying that it is possible, based on these peculiar facts, that coverage could exists for this particular patent infringement claim under the advertising injury provisions. Essentially, reaching this determination on summary judgment without full consideration was deemed inappropriate.

Android Woes: IV Sues Motorola Mobility for Patent Infringement

So here we are, many years later and IV’s philosophy seems to have changed. No longer is litigation a poor way to monetize patents, but rather IV sees itself as having a responsibility to litigate. The self-righteousness of IV’s claims is why they engender such distrust, even bordering on hatred. For so long they came in peace and now that they have the leverage they seem to be playing a different tune, and using patent litigation with greater frequency. They accumulated patents over time, sometimes getting as much as $50 million from companies like Google, eBay, Sony, Intel, Microsoft, Apple, Nokia and others, ostensibly for the purpose of obtaining a defensive patent position. Oh how the tables have turned.

Revolutionizing Prior Art Research: How Crowdsourcing Could Save the Angry Birds

The question may arise – what if the result of crowdsourcing is less than the proverbial “smoking gun,” can it place the App Developers at a disadvantage in court? Case law indicates that the answer is no. Last year, in a patent litigation brought by Personal Audio LLC, the plaintiff attempted to argue that their patent was valid based on crowdsourced research and to seek discovery on this basis. Personal Audio lost on both counts, with federal Judge Miriam Cedarbaum concluding, “eliminating a negative doesn’t show validity” and commenting on the patent owner’s approach with the statement “that’s what I call desperation.” Transcript of Oral Argument and Decision at 12-13 and 14, Personal Audio LLC v. Sirius XM Radio, Inc. et al, No. M8-85 (S.D.N.Y. Nov. 2, 2010).