Posts Tagged: "Patent Validity"

Using AI to Reduce Transactional Costs of Patent Validity and Infringement Determinations

The United States has a clear need for patent reform, but does our legislature understand how to implement that reform? For decades, a shortcoming to our approach to patent reform has been misidentifying the problem as “patent trolls” (more generally, bad actors). Based on a misidentified problem, we have implemented a decades-long policy to systematically weaken patent rights, in an attempt to deter this archetypal bad actor. If we instead use economic principles to address patent reform, we would understand the root problem to our patent system—exorbitantly bloated transactional costs.

Standard Essential Patents: Statistics and Solutions to the Real Party in Interest Problem

As I noted in part one of my talk at the IPWatchdog Patent Masters Symposium, the validity statistics for SEPs do not look very good at first glance. Thus, according to a 2017 PricewaterhouseCoopers study, plaintiffs in U.S. courts (ignoring patent type) have on average a 33% chance of success—only a 27% chance in the case of telecommunications patents. This chance of success is probably overstated for Standard Essential Patents (SEPs), based on the easy availability of prior art. Indeed, according to RPX’s 2014 study, in the United States, SEPs are likely to be less than half as successful as non-SEPs.In my talk, I pointed to the high invalidation rates in Europe to buttress my point that, at first glance, SEPs seem particularly vulnerable to validity challenges. Thus, in Germany, a supposed nirvana for patent assertion, the authors of the study “Patent Paper Tigers” reviewed the case law of the German Federal Patent Court and the German Federal Court of Justice in nullity matters in the period from 2010 to 2013 and found that: The nullification rate of all Senates of the German Federal Patent Court is 79.08% in total; and the nullification rate at the German Federal Patent Court regarding Software and Telecom patents which are (currently) of particular relevance from an economic point of view is 88.11%. Returning to the point made in the first part of my talk, having noted that most SEP nullification comes from obviousness, and not novelty, there should be no public interest exception to my argument that: unprovoked—that is, without first having made a FRAND offer or counteroffer—serial nullification of SEPs is contrary to the duty to negotiate in good faith and should remove a party’s defense against an injunction to SEPs.

Now, there is a flaw in this theory, and that is that, in the past few years, third parties have emerged that will—for their members or other contracted entities—kill patents.

Are all U.S. Patent Claims Invalid?

Nobel Biocare Srvcs. AG v. Instradent USA, Inc. makes one wonder whether all U.S. patents are invalid, or will eventually become invalid. This case demonstrates that decisions affirming the validity of patent claims by the Federal Circuit are nothing more than advisory opinions. Decisions affirming validity of patent claims are merely a preliminary round in a fight that will last until the patent claims are all finally invalidated.

Federal Circuit Asked to Reconsider IPR Ruling in Context of Database Search Algorithms

On May 9, 2018, Network-1 Technologies, Inc. filed a combined petition for panel rehearing or rehearing en banc with the United States Court of Appeals for the Federal Circuit, requesting reconsideration of the panel’s Claim Construction Ruling in Context of Database Search Algorithms in a consolidated appeal from inter partes review decisions relating to four of Network-1’s patents. 

Federal Circuit Upholds Thales Motion Tracking Patent Asserted against U.S. Government for Second Time

The recent Federal Circuit decision in Elbit Systems of America, LLC v. Thales Visionix, Inc. affirmed a final written decision issued by the Patent Trial and Appeal Board (PTAB), which upheld some claims in an inter partes review (IPR) proceeding challenging the validity of Thales’ U.S. Patent No. 6474159, titled Motion-Tracking and issued in November 2002. The patent claims a system for tracking the motion of an object relative to a moving reference frame using a first inertial sensor mounted on the tracked object, a second inertial sensor mounted on the moving reference frame and an element that receives signals from both inertial sensors to determine an orientation of the object relative to the moving reference frame. The resulting invention enables the use of inertial head-tracking systems for platforms including flight simulators and other vehicular applications.