Europe's Top Regulator Warns Nokia - Patent Licensing Will Trigger Antitrust Action

On December 9, Europe's top regulator warned although he approved the $7.2 billion sale of Nokia's business to Microsoft, he was concerned Nokia would attempt to "extract higher returns" from its patents. He said this seeking higher returns (e.g., a higher royalty rate in patent licensing) was behaving "like a patent troll, or "a patent assertion entity" and  he would not tolerate Nokia taking "illegal advantage" of its patents but instead sue it for the antitrust violation. So what can you Nokia do with its patents in Europe? Put them on a bookshelf-- and promise never to assert them.

See Associated Press article EU Warns Nokia Not to Become 'Patent Troll'

Copyright © 2013 Robert Moll. All rights reserved.

Donald Chisum's Article - Patents on Computer-Implemented Methods and Systems

Donald Chisum is a patent scholar who taught for many years as a professor at the University of Washington and Santa Clara University Law Schools. He is also the author of the well regarded Chisum on Patents. This 33-volume treatise is the most cited patent law treatise in American history. It stretches on for thousands of pages. On many legal issues, Chisum on Patents and Chisum's Patent Digest are great places to start for a summary of the law and for citations to cases. When I read the cases, I am impressed how accurately Donald Chisum had summarized U.S. patent law.

Today, Donald Chisum published an article Patents on Computer-Implemented Methods and Systems: The Supreme Court Grants Review (CLS Bank) Background Developments and Comments that states the need for the Supreme Court to clarify the test for patent eligibility of computer-implemented methods and systems.

Here's a passage from the article:

"On December 6, 2013, the Supreme Court granted a petition for certiorari,filed by a patent owner, which presented the following question:

Whether claims to computer-implemented inventions–includingclaims to systems and machines, processes, and items ofmanufacture–are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court. AliceCorporation Pty. Ltd. v. CLS Bank International.

That this question warrants Supreme Court deliberation in 2013 is startling and disgraceful. How can such uncertainty exist in the 21st century about so basic a question as the patentability of computer software? Computers, software, anddisputes about intellectual property protection for programming have been around since the 1960s. The statute at issue (Section 101) is unchanged since 1952.

The responsibility lies squarely at the feet of the Supreme Court. Its confusing statements about the patenting of "abstract ideas" have trickled down tothe lower courts, understandably causing disagreements among judges. Regrettably, the result is one of the most serious diseases that can infect the legal system: similar cases are decided differently based solely on the identities of the judges.

A review of recent case law developments beginning primarily with theSupreme Court's 2010 Bilski decision on the patent-eligibility of businessmethods, together with the details of the subject CLS Bank case, shows how dire the situation has become."

It is well worth consideration by the patent community; if someone with intimate familiarity with US patent law says the Federal Circuits fragmented test is so confusing no one knows how to apply it, it is time for the Supreme Court to speak. After all the concept of the current test for patentability of software related inventions appears to hinge on whether a particular judge or set of judges think it is an abstract idea (after ignoring various claim limitations) without any guidance what remains in or out of the claim. Justice Douglas' legacy is to place a cloud over all software related inventions with the abstract idea exception. It works perfectly if you  think patents are suspect monopolies and don't understand computers. 

Copyright © 2013 Robert Moll. All rights reserved.

Stanford Technology Law Review - Design Patents in the Modern World

The Stanford Technology Law Review appears to have joined Berkeley Technology Law Journal as a leader in law review coverage on emerging intellectual property topics.

One emerging topic in US patent law is design patents. The huge damage awards for infringement of design patents in Apple v. Samsung raised the importance of seeking design patents. It also highlighted the need to better understand the law surrounding the patentability, infringement, and remedies of design patents.

Today, Ms. Anna Sallstrom, Editor in Chief, Stanford Technology Law Review, sent me an email noting that STLR is publishing the presentations given in Design Patents in the Modern World conference held at Stanford Law School in 2013. Specifically, the following eight articles by leading scholars will be available online at http://stlr.stanford.edu this winter:

A Response to the Standard Criticisms of Design Patents
by Sarah Burstein

Rights, Remedies, and the Doctrine of Election
by Laura Heymann

Virtual Designs
by Mark Janis & Jason Du Mont

A Rational System of Design Patent Remedies
by Mark Lemley

Functionality and Graphical User Interface Design Patents
by Michael Risch

Progress and Competition in Design
by Katherine Strandburg & Mark McKenna

Law Without Design
by Madhavi Sunder & Peter Lee
     
(R)evolution in Design Patentable Subject Matter: The Shifting Meaning of “Article of Manufacture”
by Andrew Torrance & William Seymour

Copyright © 2013 Robert Moll. All rights reserved.

USPTO After Final Consideration Pilot Extends to September 30, 2014

Here's some good news from the USPTO: the After Final Consideration Pilot 2.0 (AFCP 2.0) program is being extended from December 14, 2013 to September 30, 2014.

As I noted earlier in USPTO - After Final Consideration Pilot Program 2.0 Extends to December 14, 2013, the AFCP 2.0 gives a framework for after final negotiations that can lead to prompt allowance and save a request for continued examination (RCE) fee as long as you meet the requirements. For details on the requirements see www.uspto.gov/patents/init_events/afcp.jsp.

Copyright © 2013 Robert Moll. All rights reserved.

U.S. Supreme Court Grants Certiorari in Alice v. CLS Bank

Today, U.S. Supreme Court granted certiorari in Alice v. CLS Bank to consider the patent eligibility standard for software related inventions. No word on whether the Court will grant certiorari in another software patent eligibility case Ultramercial v. Hulu and Wild Tangent. 

See Mr. Lyle Denniston's Court to rule on patent rights, Joe Mullin's Supreme Court will take up messy ruling from top patent court, and Ashby Jones' Can Software Be Patented? Supreme Court to Decide

See my related articles in 2012 - 2013:

May 21, 2012 - WildTangent v. Ultramercial - Supreme Court Rejects Federal Decision on 35 USC 101

July 29, 2012 - Software Patent Eligibility - Ending 40 Years of Controversy

October 9, 2012 - CLS Bank v. Alice Corp. - Federal Circuit Revisits Test for Software Patent Eligibility

December 9, 2012 - CLS Bank v. Alice Corp. - Amici Briefs Addressing Software Patents

December 17, 2012 - CLS Bank v. Alice Corp. - US Government's Amicus Brief Addressing Software Patents

February 8, 2013 - CLS Bank v. Alice Corporation - Oral Arguments Recording

May 11, 2013 - CAFC - CLS Bank v. Alice - Software Patent Eligibility?

July 31, 2013 - Ultramercial v. Hulu and WildTangent - The Software Patent Eligibility Controversy

Copyright © 2013 Robert Moll. All rights reserved.

USPTO - Updated Application Data Sheet Form

The America Invents Act (AIA) presented new AIA forms for US patent applications filed on and after September 16, 2012. Tonight, I will tackle just one and briefly because it is late-- the application data sheet (ADS) required under 37 CFR 1.76. What's an ADS? It is the bibliographic data of a US patent application including inventor, correspondence, application, representative, domestic benefit,  foreign priority and applicant information.

The ADS is lengthy and no fun to complete. But the USPTO promises if I complete an ADS it will reduce data input errors, and I guess transfer responsibility to me. I don't find this compelling, but the USPTO has a way to deal with my reluctance: 37 CFR 1.76(a) states a priority claim in a specification must be also stated in an ADS. Although a priority claim reduces patent term, it also reduces prior art so many applications eligible for continuing application status claim priority.

But the "form fun path" is just starting, since an ADS requires the name of the attorney of record. Initially when I completed an ADA, it appeared an attorney could no longer act in a representative capacity on a continuing application under 37 CFR 1.34. That appears to be no longer the case, but check for yourself as you may need to file a power of attorney form to be the attorney of record. If so, the person signing the power of attorney must prove authorization from the patent application owner. That requires a 37 CFR 3.73 statement of right stating the chain of title and the representative's qualifications.

The USPTO says it provides forms to assist the public, but making an optional form like the ADS mandatory per the new rules can generate unintended consequences -- like Obamacare.

In any event, the USPTO updated the Application Data Sheet (AIA/14) form on November 27, 2013. For assistance e-filing forms contact the Patent Electronic Business Center (EBC) at EBC@uspto.gov or call 1-866-217-9197 from 6:00 am to 12:00 midnight (ET) Monday through Friday. Also for more information on USPTO forms generally, send an email to patentpractice@uspto.gov.

Copyright © 2013 Robert Moll. All rights reserved.

Design Patents on Virtual Designs

Virtual Designs to be published in the Stanford Law Review in 2013 appears to be worth reading. Thanks to Professor Dennis Crouch for his Patently-O blog that drew attention to Microsoft IP Fellow Jason J. Du Mont and Indiana University Law Professor Mark Janis's comprehensive article on design patenting of virtual designs such as graphical user interfaces and icons on smartphones and tablets.

Copyright © 2013 Robert Moll. All rights reserved.

USPTO - Plans for Manual of Patent Examination Procedure (MPEP)

On November 26, USPTO Commissioner for Patents Peggy Focarino announced plans for the Manual of Patent Examination Procedure in Fiscal Year 2014 in a blog post: USPTO Revises MPEP Publication Process. For an online copy of the MPEP Manual of Patent Examination Procedure (MPEP).

The MPEP is not legal authority (e.g., a Federal Circuit decision trumps a conflicting MPEP interpretation), but can be helpful because it describes patent prosecution details that may not arise in court decisions, it is well indexed, and it is often persuasive to examiners. As long as it matches CAFC decisions which is many times, I think it is a great resource.

One of its problems is it is lags behind court decisions, and has a quirky style of printing to show where revisions occur. As to the new publication process -- making the MPEP text clean and showing the last revision date on each section is not earthshaking, but should improve its readability. A more interesting change is the effect we may see with Ideascale which will allow the public to submit ideas on how to improve the MPEP.

Because the USPTO plans to release three MPEP editions in FY 2014, it is best to keep up to date online. The first edition is expected to incorporate the provisions of the America Invents Act (AIA), which was enacted in September 2011. The second edition will give guidance on the new Patent Law Treaty, and the third edition will give guidance on the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs.

Copyright © 2013 Robert Moll. All rights reserved.

Apple Awarded $290M for Samsung's Patent Infringement

Today, the federal jury in San Jose California awarded Apple $290 million in the retrial of part of the  damages with respect to patent infringement by Samsung products. Although less than the $410 million awarded last year, with the addition of $290 million, Apple's damages total $929 million.

See FOSS Patents Retrial jury awards Apple $290 million, total damages in case against Samsung: $929 million and CNET's Jury reaches verdict in Apple v. Samsung damages retrial.

Copyright © 2013 Robert Moll. All rights reserved.

Microsoft Making $2 Billion Annually From Android Patent Royalties

The Business Insider reports Microsoft Is Making An Astonishing $2 Billion Per Year From Android Patent Royalties. Even more amazing is the analyst's estimated 95% margins on this revenue stream. Is this right and is this fruit from Bill Gates' decision to hire x-IBM patent licensing guru Marshall Phelps? Thanks to Suzie Lipton-Moll for passing this article my way tonight.

Copyright © 2013 Robert Moll. All rights reserved.

USPTO - Silicon Valley Satellite Office will be in San Jose City Hall

Today, the USPTO announced the Silicon Valley satellite office will be permanently housed in the San Jose City Hall building at 200 East Santa Clara Street. The office is expected to open in late 2014.

The City of San Jose, California state assembly’s speaker’s office, plus a California congressional delegation decided to do that rare thing in politics today work together for the public's benefit. I was also surprised to read that the City of San Jose offered this space rent free for two years.

For details: USPTO Press Release: U.S. Patent and Trademark Office Selects San Jose City Hall as Permanent Space for Silicon Valley Satellite Office - Generosity from City of San Jose and California State Assembly Speaker’s Office Put Site Selection Back on Track Following Sequestration

Copyright © 2013 Robert Moll. All rights reserved.

Professor Risch - Functionality and Graphical User Interface Design Patents

Apple's $1B damage award (now being retried) caught the attention of anyone awake in the patent community about the importance of design patents. Much less understood was how to analyze design patent protection of graphical user interfaces (GUIs). The problem is GUIs raise a difficult line drawing exercise between ornamental elements (appearance) that design patents are intended to protect and functional elements that are not.

Professor Risch's Functionality and Graphical User Interface Design Patents, to be published in the Stanford Technology Law Review, is a timely article discussing among other things the design patent relating to the Apple iPhone home page and the line drawing problem.

Professor Risch says the article answers three questions:

"1. Aren’t GUIs something that should be protected by copyright only? Why should there be a patent? The answer is relatively simple: the law has, since 1870, contemplated dual protection. The article traces the history to explain why the law could have evolved differently, but simply did not.

2. Display screens change, both before and after sale. How can someone patent an ephemeral screen design? It also turns out that ephemeral designs have been protected for some time. Even so, the article proposes some limitations on the protection of GUIs that should address the special nature of GUI design patents.

3. There are many differences between Apple’s patent and Samsung’s product. How can Apple own the idea of square icons in a grid with a dock bar at the bottom? This last question is the most intractable: determining when a design is infringing, and the role that functionality should play in that consideration. The bulk of the article is dedicated to answering this question.

To answer the third question, the article draws on lessons from prior copyright disputes about GUIs. It first suggests that courts must act as gatekeepers, rather than allowing juries to determine which elements to disregard as functional. It then develops economic factors that can help the court determine whether a design element is functional, and whether to allow reuse by a competing program."

I  am still reading it, but want to pass it along as it should give insight to anyone considering design patent protection of GUIs.

Copyright © 2013 Robert Moll. All rights reserved.

USPTO Website - Is It Down Right Now?

Today, I couldn't get the USPTO fee schedule from USPTO website, which still appears to be down. In the process of Googling on this problem, I ran across a third party organization Is It Down Right Now? that gives the status and ping times for the USPTO. Note this organization immediately told me what the USPTO much later conceded to be true.

Copyright © 2013 Robert Moll. All rights reserved.

Federal Circuit Chief Judge Rader Speech - Patent Law and Litigation Abuse

Federal Circuit Chief Judge Rader seems to relish poking the anti-patent crowd in the eye. On November 1, 2013, Judge Rader gave a speech Patent Law and Litigation Abuse in Plano, Texas.

Here's a passage from his speech:

"As an illustration of the crisis of confidence in the benefits of Patent Law, I wished to just discuss one unsubstantiated charge against the merits of this system of Constitutional dimension. Academics often charge the Patent system with creating a so-called "tragedy of the anti-commons." This academic canard suggests that a "thicket" of patents can actually inhibit innovation; that the administrative burdens of enforcing patents can multiply to frustrate the goal of the Act. Thus, the law of innovation supposedly works against itself. In an age of empirical research to verify every legal hypothesis, I would urge you and any policymaker to reject this academic supposition – whether it comes from a high court or any other source – until and unless it is verified by empirical data. By the way, the only studies on this topic that I have seen could not verify this guess but generally confirmed the opposite – that patents spur innovation.

May I offer a common sense rebuttal to this academic hypothesis? [Hold up my smart phone] This smart phone resides in the technological space most occupied by patents, perhaps in the history of patent law dating back to 1624. With design patents as part of the equation, this device probably includes easily more than a thousand active patents. If you count expired patents in this technology back to the advent of the computer age, this device would implicate tens of thousands of patents. If ever the administrative burdens of a concentration of patents would inhibit innovation, this technology would be the place to observe that encumbrance. Now you tell me: is this technology experiencing sluggish and encumbered innovation? I doubt that I could keep track of the pace of innovation in this technology if I devoted my full time to the project.
No doubt a study would show that the disclosure benefits of patents bring the entire world into the innovation circle that drives smart phone technology forward faster than any of us can fathom. I am afraid the “tragedy of the anti-commons” has its own tragedy: it simply is academic nonsense. The patent system does not inhibit
invention."

Copyright © 2013 Robert Moll. All rights reserved.

USPTO Publishes Updated Trademark Manual of Examining Procedure

On October 30, 2013, the USPTO published the updated Trademark Manual of Examining Procedure (TMEP). I am a patent attorney, however, when I do have a trademark question this is a great place to start. Here's a web link to the TMEP by chapters and also as zip files in PDF and HTML.

Copyright © 2013 Robert Moll. All rights reserved.

House Bill to Provide Permanent Funding for USPTO

The Federal government demonstrated during sequestration that the America Invents Act (AIA) didn't eliminate fee diversion. In response, Representatives Conyers, Watt, Issa, and Collins introduced a House bill (H.R. 3349) to provide permanent funding for the USPTO on October 28, 2013. The bills calls for a revolving fund into which the USPTO would deposit its fee revenues to be used solely for its reasonable expenses. The USPTO would also no longer be subject to the annual appropriations process. Many applicants would agree with AIPLA Executive Director Q. Todd Dickinson's statement that "the time has come for Congress to provide the USPTO with the ability to do the work its customers pay for by ending the possibility of fee diversion, once and for all." But will Congress vote against another source of funding?

Copyright © 2013 Robert Moll. All rights reserved.

Joe Mullin - Lawmakers blast patent trolls, but split on parts of a key bill

In Lawmakers blast patent trolls, but split on parts of a key bill, Joe Mullin tells us "Rep. Brent Farenthold (R-TX) was incredulous that Whataburger, the Texas-based chain of hamburger joints, had been targeted by a patent suit. 'They make hamburgers!' sputtered Farenthold. 'They don't play in the intellectual property game ... You know there's a problem when I can't get Wi-Fi and the prices at my grocery store are going up, because they're tagged by frivolous lawsuits." Sounds like Rep. Farenthold is voting yes on the bill, and I would too if I didn't have Wi-Fi and rising grocery prices due to frivolous patent cases.

Copyright © 2013 Robert Moll. All rights reserved.

USPTO - Changes to Implement the Patent Law Treaty

On October 21, 2013, the USPTO published Changes to Implement the Patent Law Treaty which will implement some revisions to the rules of practice before the USPTO that may help some recover patent rights in some situations so are worth reading. Here is the summary that the USPTO provided:

"The Patent Law Treaties Implementation Act of 2012 (PLTIA) amends the patent laws to implement the provisions of the Hague Agreement Concerning International Registration of Industrial Designs (Hague Agreement) in title I, and the Patent Law Treaty (PLT) in title II. The PLT harmonizes and streamlines formal procedures pertaining to the filing and processing of patent applications. This final rule revises the rules of practice for consistency with the changes in the PLT and title II of the PLTIA. The United States Patent and Trademark Office (Office) is implementing the Hague Agreement and title I of the PLTIA in a separate rulemaking.

The notable changes in the PLT and title II of the PLTIA pertain to: The filing date requirements for a patent application; the restoration of patent rights via the revival of abandoned applications and acceptance of delayed maintenance fee payments; and the restoration of the right of priority to a foreign application or the benefit of a provisional application in a subsequent application filed within two months of the expiration of the twelve-month period (six-month period for design applications) for filing such a subsequent application.

This final rule also revises the patent term adjustment provisions to provide for a reduction of any patent term adjustment if an application is not in condition for examination within eight months of its filing date or date of commencement of national stage in an international application, and contains miscellaneous changes pertaining to the supplemental examination, inventor’s oath or declaration, and first inventor to file provisions of the Leahy-Smith America Invents Act (AIA)."

Copyright © 2013 Robert Moll. All rights reserved.

Professor Robin Feldman - Patent Demands & Startup Companies - A Comment

Professor Robin Feldman published an interesting article Patent Demands & Startup Companies: The View from the Venture Capital Community on October 28, 2013.

Some of Professor Feldman's findings, based on responses from Members of the National Venture Capital Association and CEOs of the VCs member companies, are as follows:

• About 70% of VCs and 30% of startups report having received a patent demand.  
• 80% of VCs think patent demands have increased over the last five years.
• 70% of VC believe patent demands most impact the IT sector, 30% life sciences, and 10% clean tech.
• VC report 60% of patent demands came from patent assertion entities whose core activity is licensing or litigating patents.
• 60% of VCs estimate defense costs exceed $100,000, with some reporting costs in the millions.
• 75% of VC and 60% of CEOs report patent demands had a highly or moderately significant impact on startups, since they distracted management, expended resources, or altered business plans.
• 70% of VCs don't think patent demands are positive. Every VC said a patent demand against a prospect could influence an investment decision, and 50 percent said it would be a major deterrent.

Professor Feldman concludes "the economic and human toll of patent demands on startup companies is substantial." Yes, but in a selective way as 2/3 startups have never received a patent demand. I also wonder how many of the patent demands that the 30% received led to litigation, since I have seen many patent demand letters that didn't result in a lawsuit, because the patent is invalid or not infringed or the patent owner is not willing to risk losing the patent or incur the cost of litigation. The patent is reviewed and analyzed and a reply sent to the patent owner, if appropriate, why the company doesn't need a license, and the matter is quietly dropped. So if my experience as a patent attorney over the last two decades is representative, the finding that 1/3 of startups get a patent demand does not support 1/3 of startups are sued.

The article is well researched and written, but I am not sure it supports major patent reform is urgently needed to protect startups from patent demands. Like any potential lawsuit (e.g., contract dispute, founder or shareholder suit, product liability, domain name, or employment suit) patent demands are not a positive development, but something to manage so they don't have "a highly or moderately significant impact," "distract management," "expend resources," or "alter business plans."

Many VCs want patents filed to protect their startups inventions, but readily vote to sell them to the highest bidder (i.e., a patent monetizer) if the startup fails. Maybe we should determine how many patent demands are based on patents purchased from VC backed startups that failed in case we are unsure of VC's role in this problem.

Copyright © 2013 Robert Moll. All rights reserved.

USPTO Fee Schedule - Current and Revised Patent Fees on January 1, 2014

The USPTO sets and adjusts patent fees as authorized by the American Invents Act (AIA). The fees are set and adjusted to be sufficient to pay for operations, reduce backlog, improve patent quality, and upgrade IT infrastructure. See Final Rules Notice Federal Register Setting and Adjusting Patent Fees. Surprisingly, many categories of patent fees decrease on January 1, 2014:

USPTO fee schedule through December 31, 2013

USPTO fee schedule effective January 1, 2014.

Copyright © 2013 Robert Moll. All rights reserved.

Patent Trolls or Patent Monetizer - Goodlatte's Innovation Act of 2013

The news media has barraged the public with the evil of patent trolls: they harm our business and create nothing of value. Yes, patent litigation abuse needs to be curbed, but how?

Goodlatte's Innovation Act of 2013 proposes to change things. The Act limits legal estoppel to issues actually raised in post-grant proceedings and increases transparency on patent ownership, which should help, but also proposes to radically change decades of US patent law by introducing fee shifting perhaps in many if not all cases. This is more than "modernizing" 35 USC 285 folks this is giving up the American rule. We have this rule to encourage small entities to be able to protect their rights against large interests. If passed, large company defendants will have an incentive to overspend on legal fees, resulting in a win (how could they not win if they spent an order of magnitude more?), then hand the losing patent owner a very large legal bill. We are talking millions in legal fees. This will soon deter a small entity from enforcing a patent against any large company that decides infringement makes sense. The Act also heightens an infringement complaint to essentially require the patent owner submit a claim chart showing infringement with the complaint, and do it all before any discovery! Is this how we want it to work, establish infringement without discovery? Such a provision should be carefully considered by the patent community, because it only benefits large companies.

Beside carefully considering the impact of the laws, we need to drop the pejorative labels. Many acknowledge we shouldn't use the term "patent troll." Instead, we should refer to "patent assertion entities," but months later it is back to calling non-practicing patent owners patent trolls in the press, which preconditions the debate. Consider if you were accused of bullying others. Let's assume we don't know yet if you are. What if we each time we cross paths I ask, "So Mr. Bully, what have you been doing today?"

Congress appears to be introducing patent reform based on PR, media, and lobbyists. Many arguments raised against "patent trolls" might be raised against any patent licensing. Is it evil for someone to seek to obtain income from patent licensing and/or litigating rather than provide a service or make a  product? IBM, Microsoft, Texas Instruments, HP, Intel, and SanDisk have all licensed patents beyond what is in their products, but that is left out of the media barrage, because these companies make valuable products and services (even if not related to a patent) and therefore are not "patent trolls."

We must delve into the facts to understand how to reduce patent litigation abuse. The FTC recently launched an investigation into patent monetizer. Some academics have done a great job of investigating into the facts. In The AIA 500 Expanded: Effects of Patent Monetization Entities, Professor Robin Feldman investigated almost 13,000 cases and 30,000 patents in lawsuits filed in 2007-2008 and 2011-2012 and draws interesting conclusions about how patent monetizers are reacting to changes of the patent law in the America Invents Act (AIA). This fact investigation with reasonable conclusions is a step in the right direction and should continue. Some of the findings of Professor Feldman's article:

• In 2012, patent monetizers filed 58.7% of all patent lawsuits filed in the USA. In contrast, patent monetizers filed only 24.6% of US patent lawsuits.
• The recently issued US patents are most frequently litigated, which might mean people are applying for patents with the plan to file lawsuits.
• Current mechanisms to notify the public when a patent is asserted in lawsuit did not operate 2/3 of the time. 
• Month-by-month data show a massive spike in monetizer activity the month prior to the joinder provisions of America Invents Act became effective then the lawsuits began to rise again in the last part of 2012. I thinks she gets it right in noting, "The data demonstrate that the increase in activity by monetizers in recent years is not an artifact of the changes in the America Invents Act, but represents a true rise in the level of litigation activity."

I am not saying let's give any patent monetizer a free pass, but let's stop labeling them patent trolls and let the FTC investigation take its course. It should help identify conduct that needs to be stopped before we rush to change laws. Otherwise, Congress' efforts to change the law may bar legitimate patent enforcement and licensing activity. 

Copyright © 2013 Robert Moll. All rights reserved.

USPTO Confirms Validity All Claims of Steve Jobs Patent in Reexamination

Today, FOSS reports U.S. Patent Office confirmed all 20 claims of the Steve Jobs patent: bad for Samsung, Google.

U.S. Patent No. 7,479,949 to Steve Jobs et al. addresses the "need for touch-screen-display electronic devices with more transparent and intuitive user interfaces for translating imprecise user gestures into precise, intended commands that are easy to use, configure, and/or adapt ... in mobile computing devices."

Not only are all claims confirmed as patentable, the ex parte reexamination certificate states "no amendments have been made to the patent." Thus, an infringer cannot argue they obtained intervening rights. Of course, this allows damages up to six years before filing the patent infringement action. Further, this patent does not appear to be a standard essential patent (SEP) in any sense of the word and de facto SEPs has not caught on. So Apple may not only get damages, it may seek injunctions. Sure people are getting smarter about designing around, but tinkering with the UI risks annoying users into switching to an iPhone. I guess losing every aspect of an ex parte reexamination although rare has some not so fun implications. It may not bar validity challenges in court, but it may convince some courts that a validity challenge on similar literature should fail.

Copyright © 2013 Robert Moll. All rights reserved.

Samsung Agrees To Not Seek Injunctions In Enforcing Standard Essential Patents (SEPs) In Mobile Communications for Five Years in Europe

ZDNet reports that Samsung waves white flag on patent wars. Perhaps a bit of hyperbole, but still a significant change in Samsung's strategy in enforcing standard essential patents (SEPs) in the mobile computing patent wars in Europe. Thanks to Suzie Lipton-Moll for passing on this article today.

Copyright © 2013 Robert Moll. All rights reserved.

Samsung Can't Import Some Smartphones and Tablets - President Obama Won't Veto ITC Ban

On October 8, Bloomberg reports Samsung Loses Bid for Obama Veto of Apple-Won Import Ban. The administration vetoed Samsung's ITC ban, and now the reverse? Is the Obama's administration siding with an American company over a Korean one? It is not completely unreasonable to wonder after reading this article, because it is not that clear.

Even if the Obama administration was right to veto Samsung's ITC ban but not Apple's, it should explain how the different facts drove the different results.

Mr. Edward Black, president of the Computer & Communications Industry Association, which counts Samsung and Google as members, claims the veto of the Apple import ban was based on political pressure and favoritism, which sounds plausible, but was not supported by evidence discussed in the article.

For more details Apple's patent infringement case against Samsung is "In the Matter of Electronic Digital Media Devices, 337-796, and Samsung’s case is In the Matter of Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers, 337-794, both US ITC.

Copyright © 2013 Robert Moll. All rights reserved.

Professor Robin Feldman - Prolific Patent Scholar

If you follow this blog, you know I like to read and post late at night. One of my "late night discoveries" after I started blogging was Professor Robin Feldman. I had met her husband Boris Feldman, a partner WSGR, as an associate in 1993 -1998. Boris had all of our respect (despite the toys in the office) because of his brilliance in fending off opportunistic SEC claims. A typical result for Boris? Case dismissed. No discovery, just dismissed. Someone mentioning his wife was a law professor at UC Hastings, but that's all I remembered ... I was too busy.

So when I stumbled across The Giants Among Us on the rise of patent aggregators and saw one of the authors was a UC Hastings law professor Robin Feldman ... I thought wait is this Boris' wife? As I read Giants, I was stunned. It was a tour de force and gave many fresh details regarding Intellectual Ventures, a firm that has been shrouded in secrecy. The fact research was excellent. It followed she had graduated second in her class at Stanford Law school.

Tonight, when I saw UC Hastings law school had an article Robin Feldman: Shaping Patent Policy Through Scholarship noting her influential law review articles in recent years, I was not surprised. I appreciate her scholarship and hope it continues well into the future. She strikes me as someone who is relentlessly investigating and reporting on the challenges of US patent law, something we need before Congress passes "helpful" bills for the sake of the US economy. Thus, reading her articles is much a better starting point to understanding today's challenges than the agenda set forth by corporate lobbyists.

Copyright © 2013 Robert Moll. All rights reserved.