Friday, February 26, 2016

Professor Ronald Mann - Justices Unsettled on Standard for Enhanced Damages in Patent Cases

Professor Ronald Mann has an interesting post: Argument aalysis: Justices unsettled on standard for enhanced damages in patent cases on the SCOTUS blog.

More specifically, the Supreme Court hearing revisits how to interpret 35 U.S.C. 284, which states "Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court. When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed."

Commentators are speculating this case will change the standard in favor of patent owners, but I think Professor Ronald Mann has a more realistic view based on the hearing that the justices are unsettled and struggling as to the standard for enhanced damages.

In my opinion, Justice Scalia "irreverent" and insightful views were missed. At least Justice Breyer's insistence that big companies are often threatening little companies with enhanced damages is an "EFF balloon" that needed to be "burst" by someone. Justice Breyer's narrow interpretation when to award enhanced damages makes it too difficult to obtain them and would encourage patent infringement by big companies.

Copyright © 2016 Robert Moll. All rights reserved.

Friday, February 19, 2016

Federal Circuit - Mentor Graphics v. Synopsys - Approves PTAB's Policy of Partial Review of Challenged Patents

In Synopsys, Inc. v. Mentor Graphics Corp., the Federal Circuit in a split panel (2-1) rejected Synopsys' argument that Patent Trial and Appeal Board (PTAB) must review all of the challenged claims raised in its petition for inter partes review. The Federal Circuit stated 35 U.S.C. § 318(a) only requires PTAB address claims as to which review was granted.

This blesses PTAB's current practice which reduces the value of IPR challenges in that those claims not accepted for review are "still out there" and may serve as grounds for patent infringement.

Copyright © 2016 Robert Moll. All rights reserved.

Wednesday, February 17, 2016

Carnegie Mellon v. Marvell - Settle Patent Infringement Suit for $750M

Today, Carnegie Mellon University and Marvel Technology Group settled a patent infringement suit for $750 million.

Last year the Federal Circuit had vacated a $1.54 billion damage award in favor of Carnegie Mellon University (CMU) based on Marvell Technology Group's  infringement of U.S. Patent No. 6,201,839 and U.S. Patent No. 6,438,180 relating to improved accuracy of reading data from hard disk drives.

For additional details, please see my post: Federal Circuit - Carnegie Mellon University v. Marvell Technology Group - $1.5 Billion Damage Award and Joe Mullin's Marvell agrees to pay record-breaking $750M to university to end patent lawsuit.

Copyright © 2016 Robert Moll. All rights reserved.

Saturday, February 13, 2016

WSJ - Patent Litigation Up in 2015, Despite Efforts to Rein it In

In the Wall Street Journal article Patent Litigation Up in 2015, Despite Efforts to Rein it In, Ashby Jone's refers to a RPX report as supporting that non-practicing entities (NPEs) lawsuits seeking to monetize patents are flourishing in 2015 despite Congress' patent reform efforts and the Supreme Court decision making it more difficult to get a software patent in Alice.

The article is interesting, but doesn't explain why patent infringement lawsuits filed vary in 2013-2015:

2015: NPEs filed 3,604 lawsuits

2014: NPEs filed 2,891 lawsuits

2013: NPEs filed 3,733 lawsuits

Despite lots of activity, Congress didn't pass any significant patent reform in 2013-2015. Further, although the Supreme Court's heightened standard for software patent eligibility in Alice might explain why less software patent owners would want to file a lawsuit in 2014, it doesn't explain the rise in lawsuits in 2015.

Copyright © 2016 Robert Moll. All rights reserved.

Thursday, February 11, 2016

BTLJ - Strategic Decision Making in Dual PTAB and District Court Proceedings

In Strategic Decision Making in Dual PTAB and District Court Proceedings, Saurabh Vishnubhakat, Arti K. Rai, and Jay P. Kesan investigate how litigants are using inter partes review and covered business method review in conjunction with federal court litigation. The link above leads to a 61-page PDF copy of the article, which will be published in the Berkeley Technology Law Journal (BTLJ).

From their abstract:

"The post-grant review proceedings set up at the U.S. Patent and Trademark Office’s Patent and Trial Appeal Board by the America Invents Act of 2011 have transformed the relationship between Article III patent litigation and the administrative state. Not surprisingly, such dramatic change has itself yielded additional litigation possibilities: Cuozzo Speed Technologies v. Lee, a case addressing divergence between the manner in which the PTAB and Article III courts construe patent claims, will soon be argued at the U.S. Supreme Court.

Of the three major new PTAB proceedings, two have proven to be popular as well as controversial: inter partes review and covered business method review. Yet scholarly analysis of litigant behavior in these proceedings has been limited thus far to descriptive data summaries or specific policy perspectives on these types of post-grant challenges, such as their impact on the well-rehearsed patent troll debate. In this article, we present what is to our knowledge the first comprehensive empirical and analytical study of how litigants use these inter partes review and covered business method review relative to Article III litigation.

A major normative argument for administrative ex post review is that it should be an efficient, accessible, and accurate substitute for Article III litigation over patent validity. We assess the substitution hypothesis, using as our unit of analysis the individual patent. Our data indicate that the “standard model” of explicit substitution—wherein a district court defendant subsequently brings an administrative challenge to patent validity—occurs for the majority (70%) of patents challenged in inter partes review. An important implication of this effect is that the PTAB should use a claim construction standard that mirrors that of the district court, so that substituting administrative process for judicial process does not lead to substantively different outcomes.

Notably, however, standard substitution is not the only use of the PTAB: particularly in the area of inter partes reviews, we also see a surprising percentage of cases (about 30%) where the petitioner is not the target of a prior suit on the same patent. The frequency of these nonstandard petitioners, as well as their tendency to join the same petitions as an entity that has been sued, varies by technology. Our data on nonstandard petitioners provide some insight into the extent to which patent challengers are engaging in collective action to contest the validity of patents. Depending on the details of how nonstandard petitioning and collective action are being deployed, this activity could provide a social benefit or constitute a form of harassment."

Copyright © 2016 Robert Moll. All rights reserved.

Tuesday, February 9, 2016

Lex Machina Patent Trial and Appeal Board (PTAB) Report 2015

The Lex Machina Patent Trial and Appeal Board (PTAB) Report 2015 summarizes what is happening in the validity challenges in the USPTO America Invents Act (AIA) trials.

Copyright © 2016 Robert Moll. All rights reserved.

Wednesday, February 3, 2016

Harvard and NYU Business School - The Bright Side of Patents

In The Bright Side of Patents, Joan Farre-Mensa of Harvard Business School and Deepak Hegde and Alexander Ljungqvist of NYU's School of Business investigate and conclude patents help startups. I would add this is my experience working with startups over two decades. I have seen startups mainly fail for lack of sales, but if you are a technology leader and have even moderate commercial success the world is ready to copy you. We have seen it too many times. Patents can help a startup acquire a sustainable competitive advantage. So if trade secret is not an option, you should definitely think about it.

From the Abstract: "Motivated by concerns that the patent system is hindering innovation, particularly for small inventors, this study investigates the bright side of patents. We examine whether patents help startups grow and succeed using detailed micro data on all patent applications filed by startups at the U.S. Patent and Trademark Office (USPTO) since 2001 and approved or rejected before 2014. We leverage the fact that patent applications are assigned quasi-randomly to USPTO examiners and instrument for the probability that an application is approved with individual examiners’ historical approval rates. We find that patent approvals help startups create jobs, grow their sales, innovate, and reward their investors. Exogenous delays in the patent examination process significantly reduce firm growth, job creation, and innovation, even when a firm’s patent application is eventually approved. Our results suggest that patents act as a catalyst that sets startups on a growth path by facilitating their access to capital. Proposals for patent reform should consider these benefits of patents alongside their potential costs."

Copyright © 2016 Robert Moll. All rights reserved.

Tuesday, February 2, 2016

Stanford Technology Law Review - Patents and Small Participants in the Smartphone Industry

Patenting in the smartphone industry? Better check out the Stanford Technology Law Review article Patents and Small Participants in the Smartphone Industry.

From the abstract: "This Article seeks to show how patent rights affect the ability of small participants to enter, compete, and exit smartphone markets. The study collected and used comprehensive empirical data on patent grants, venture funding, mergers and acquisitions, initial public offerings, patent litigation, and marketing research data. This Article shows empirically that small participants succeed in the market when they have a low and specific critical mass of patents and that this success exceeds the general norms in the startup world. Surprisingly, the analysis demonstrates that the level of financing and market success do not increase with larger patent portfolios. Lastly, despite the controversies over patent trolls, this Article demonstrates that patent litigation, whether from operating companies or NPEs, does not appear to be a significant concern for small players and does not appear to pose barriers to entry. The Article concludes by arguing that patent rights are providing incentives for innovation among small industry players and that contrary to some expectations, patent rights support competitiveness in the smartphone industry for small market players."

Copyright © 2016 Robert Moll. All rights reserved.

Monday, February 1, 2016

PTAB - Appeals from Reexamination and from Examiner's Final Rejection - Webinar - Feb 2

The Patent Trial and Appeal Board (PTAB) is hosting a webinar on appeals from noon to 1 pm ET Tuesday, February 2, 2016.

It will discuss appeal practice from reexamination and from an examiner's final rejection.

Lead Judge Jeff Robertson and Judge Rae Lynn Guest will present and answer questions.

Webinar access information is below.

Event number: 994 178 459

Event password: 123456

Audio conference:

Call-in toll number (US/Canada): 1-650-479-3208

Access code: 994 178 459

Captions Link:

Copyright © 2016 Robert Moll. All rights reserved.