Allison et al. Understanding the Realities of Modern Patent Litigation

If you are interested in U.S. patent litigation, I recommend John Allison, Mark Lemley, and David Schwartz's article Understanding the Realities of Modern Patent Litigation which will be published in the Texas Law Review.

Here's the abstract of the article:

"Sixteen years ago, two of us published the first detailed empirical look at patent litigation. In this Article, we update and expand the earlier study with a new hand-coded data set. We evaluate all substantive decisions rendered by any court in every patent case filed in 2008 and 2009 — decisions made between 2009 and 2013. We consider not just patent validity but also infringement and unenforceability. Moreover, we relate the outcomes of those cases to a host of variables, including variables related to the parties, the patents, and the courts in which those cases were litigated. The result is a comprehensive picture of the outcomes of modern patent litigation, one that confirms conventional wisdom in some respects but upends it in others. In particular, we find a surprising amount of continuity in the basic outcomes of patent lawsuits over the past twenty years, despite rather dramatic changes in who brought patent suits during that time."

The authors noted the "overall picture painted by our data is complex. In many ways, patent litigation is rather different than it was when we conducted our original study. The top districts for patent litigation—the Eastern District of Texas and the District of Delaware—were not nearly as important twenty years ago. The Markman hearing did not exist in our original study. Patent assertion entities (referred to by some as “patent trolls”) were a minor feature of patent litigation in the 1990s. And the most successful validity challenges today—patentable subject matter and indefiniteness—were virtually unknown twenty years ago."

The authors stated that "ten years ago, Janicke and Ren found that patentees won only 25% of decided cases; we find that number virtually unchanged today. Forty-six percent of patents whose validity was decided in the 1990s were held invalid; today the invalidation rate is 43%. Much has changed about patent law, but the overall dynamics of patent litigation—in which patentees win at trial but not on summary judgment, and in which patentees win each individual issue but lose overall—remain remarkably similar to the patent litigation we studied twenty years ago."

Copyright © 2014 Robert Moll. All rights reserved.

Joe Mullin - How the Patent Trolls Won in Congress - A Brief Comment

In How the patent trolls won in Congress, Joe Mullin reports that "trial lawyers and pharma companies teamed up to stop change to patent laws." This account of what stopped patent reform strains credibility.

The article revolves around anti-patent people who felt surprised and frustrated that patent reform did not pass this year. It stops short of exploring why people opposed the reform due to obstacles it raised for small businesses enforcing their patent rights. Instead it focuses on frustrated lobbyists who recount bitter disappointment on a done deal thwarted and multiple unnamed sources who blame Senator Reid as caving to special interests.

What's the evidence for this amazing claim that trial lawyers influenced Senator Reid? The article notes securities litigators met to raise funds for Senator Reid's campaign in 2010. How does this relate to patent reform in 2014? We are supposed to see Senator Reid as beholden to trial lawyers of all types now and forever. Why big pharma is to blame is not articulated.

I guess when you fail as a lobbyist, you go into damage control, casting blame on somebody (make that anybody) to avoid the perception that you failed. After all you don't want to "lose your reputation" as being effective at tailoring the law to meet your client's objectives since it could eliminate your next lucrative lobbying job.

Copyright © 2014 Robert Moll. All rights reserved.

Congress' Patent Reform Stalls for Lack of Consensus

Congressional patent reform has stalled for lack of consensus. More specifically, on May 21, 2014, Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, stated the following:

"We have been working for almost a year with countless stakeholders on legislation to address the problem of patent trolls who are misusing the patent system. This is a real problem facing businesses in Vermont and across the country.

Unfortunately, there has been no agreement on how to combat the scourge of patent trolls on our economy without burdening the companies and universities who rely on the patent system every day to protect their inventions.  We have heard repeated concerns that the House-passed bill went beyond the scope of addressing patent trolls, and would have severe unintended consequences on legitimate patent holders who employ thousands of Americans.

I have said all along that we needed broad bipartisan support to get a bill through the Senate. Regrettably, competing companies on both sides of this issue refused to come to agreement on how to achieve that goal.

Because there is not sufficient support behind any comprehensive deal, I am taking the patent bill off the Senate Judiciary Committee agenda.  If the stakeholders are able to reach a more targeted agreement that focuses on the problem of patent trolls, there will be a path for passage this year and I will bring it immediately to the Committee.

We can all agree that patent trolls abuse the current patent system.  I hope we are able to return to this issue this year."

In my opinion, the proposed patent reform raised real obstacles (e.g., attorney fee shifting) for legitimate licensing and enforcement of patents. The goal of the legislation was purportedly to deal with patent trolls, but it would have impacted the patent rights of small businesses and startups. Hopefully, Congress will spend the time to study a tricky problem leading to laws that precisely target patent trolls rather than harm the sector of the American economy that creates jobs.

Copyright © 2014 Robert Moll. All rights reserved.

PTAB - How to Make Successful Claim Amendments in AIA Trials

At the AIA Trials conference at Santa Clara Law school on April 29, 2014, the Patent Trial and Appeal Board (PTAB) administrative judges noted it is difficult to amend claims during an inter partes review (IPR), post-grant review (PGR), or covered business methods (CBM) review (i.e., the AIA proceedings).

Part of the problem appears to be attorneys are confusing claim amendment practice in AIA trials with that employed in patent prosecution. In prosecution of a US patent application one can freely amend a claim before the final Office action as long as the amended claim meets the requirements of 35 USC 112. Once amended, the burden shifts to the examiner to establish how the amended claim is unpatentable. In IPR, PGR, or CBM proceedings, the patent owner can only file a motion proposing to amend a claim then bears the burden to show the claim is patentable. For whatever reason, patent owners are having a difficult time meeting these two requirements and are not getting any claim amendment entered in the AIA proceedings, which can invalidate the patent claim.

For tips on how to succeed on getting amendments entered, please see USPTO Message from PTAB: How to Make Successful Claim Amendments in AIA Trial Proceedings

Updated May 22, 2014: We now have exactly one case where the motion to amend claims was permitted. Although these are relative new proceedings, the comment during the conference that "it is difficult to amend claims in an AIA trial" understates the difficulty patent owners currently face. 

Copyright © 2014 Robert Moll. All rights reserved.

WSJ Apple Got Sued the Most Over Patents Last Year

On May 16, the WSJ reports Data Point: Apple Was Sued the Most Over Patents in 2013. In 2013, Apple was sued 59 times and Amazon 50 times for U.S. patent infringement.

Copyright © 2014 Robert Moll. All rights reserved.

Apple and Google Settle Patent Infringement Cases

Today, Reuters reports Apple, Google settle smartphone patent litigation. Apple and Google did not agree to cross-licensing any IP so this doesn't preclude other patent infringement cases.

Copyright © 2014 Robert Moll. All rights reserved.

EFS Web Unavailable All Day?

Today, I was planning to file papers using the USPTO Electronic Filing System (EFS) Web and seeking to show EFS Web is the "efficient way to file." The computer hanging kind of blew that presentation. We tried to upload the papers twice more that morning. Finally, late in the afternoon, the USPTO published that EFS web was unavailable for follow on submissions. I think the non-availability should have been posted earlier. In any event, I have learned to file well in advance of due date so it was not a big deal.

To this some might say "Bob if you don't have anything nice to say don't say anything at all!" Okay, but sometimes you have to say something to make things better. And this is my attempt to make things better. However, until the USPTO gets higher availability, I think most would agree with me that filing on the last day is not the safest strategy with EFS Web.

Copyright © 2014 Robert Moll. All rights reserved.

Federal Circuit Holds Java API's Copyrightable Revisited

On May 11, I posted FOSS Patents article on the Federal Circuit holding the Java application programming interface (API) copyrightable. The result is surprising to the software community so I want to give more information. Here's the Federal Circuit decision for Oracle v. Google and an article: Has US Court Killed API economy? commenting on the decision.

Copyright © 2014 Robert Moll. All rights reserved.

Federal Circuit Holds Oracle's Java API Protectable

Yesterday, FOSS Patents reports Oracle Wins Android-Java copyright appeal: API code copyrightable, new trial on fair use.

Copyright © 2014 Robert Moll. All rights reserved.

Slate Article - American History of Patent Examiners

Tonight, I would point you to Professor Kara Swanson's The Surprisingly Engrossing History of Patent Examiners - In the 19th century, they were celebrities!

Copyright © 2014 Robert Moll. All rights reserved.

America Invents Act (AIA) Patent Trial and Appeal Board - AIA Trial Roundtable in Denver and Webcast on May 8

The Patent Trial and Appeal Board (PTAB) is concluding the AIA Trial Roundtables in Denver on Thursday, May 8.

I was able to attend the roundtable in Silicon Valley a week ago, and enjoyed the presentations and mingling with the patent community. If you are outside the Denver area, you should catch the webcast that starts at 1 pm MDT. The USPTO has done an excellent job of preparing for the roundtables!

Here is the access link to watch, learn, and share feedback with the administrative patent judges (APJs) about the AIA trials: http://www.cba-cle.org/uspto.html

As stated in the reminder, "the program is broken into three segments, so feel free to join for any or all of them:
• Segment 1 (one hour): lecture to highlight trial filing statistics and lessons learned about inter partes review and covered business method review proceedings
• Segment 2 (one hour): mock conference call focused on a motion to amend the claims and a motion for additional discovery
• Segment 3 (approximately 1.5 hours): panel discussion with expert AIA trial practitioners and APJs covering all phases of the trial process."

Copyright © 2014 Robert Moll. All rights reserved.

USPTO - Glossary Pilot Program

The USPTO is launching a Glossary Pilot Program to study how a glossary in the specification of a patent application may facilitate examination and ultimately improve the clarity of the patent claims.

The Glossary Pilot Program will run for six months from June 2, 2014 or until the USPTO accepts 200 petitions to be in the program, whichever is first, and may be modified and/or renewed for another six months after that.

The big hurdle is one of subject matter. To be eligible for the program, the application must be classified under Technology Centers 2100 (computer architecture, software & information security), 2400 (computer networking, multiplexing, cable, and security) 2600 (communications), or 3600 (business methods).

Applications writing a glossary and accepted into the program will get expedited processing for up to the first Office action. It might make sense if you can write the glossary so it does not become a claim construction tool for defendant's use at the Markman hearing.

For the details see the Federal Register Notice Glossary Pilot Program

Copyright © 2014 Robert Moll. All rights reserved.

Federal Jury Decides Samsung Only Pays $119.6 million for Infringement of Apple Patents

Today, the WSJ reports a jury ordered Samsung should pay $119.6 million for infringement of Apple's patents. Given Apple sought more than $2 billion, looks like a favorable result for Samsung. For details see Verdict Seen as Token Apple Victory, Boost for Samsung. Next up whether Apple will be granted an injunction by Judge Lucy Koh banning infringing Samsung products.

Updated May 5, 2014: Samsung ordered to pay Apple just $120 million for infringing patents

Copyright © 2014 Robert Moll. All rights reserved.