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01.10.17

With Help From the US Supreme Court (Key Cases), Patent Trolls Are Going Away

Posted in America, Courtroom, Patents at 9:33 am by Dr. Roy Schestowitz

Ebbing away from the market…

Inside a bottle

Summary: The demise of patent trolls in the United States, a trend partly attributable to Alice and other Supreme Court decisions, will likely accelerate soon (later this year) as the future of the Eastern District of Texas courts is at stake

THE US Supreme Court (SCOTUS) is doing some fine job in the area of patents. We hope that Justice nominations by Trump won’t ruin it all.

On December 6th the EFF’s Daniel Nazer said that “Supreme Court Curb[ed] Excessive Design Patent Damages” and a week later, on December 14th, his colleague Vera Ranieri said that the “Supreme Court Agrees to Hear Case that Could End Texas’ Grip on Patent Cases”. We wrote several articles about that before. This is very big news and the decision can be historic. In an IDG article by Evan Schuman it said:

For years, patent trolls have been the best evidence that pure evil exists. And like most evil entities, they are almost impossible to stop. Even a 2014 U.S. Supreme Court decision that was highly critical of patent trolls has done little to slow their slimy, reptilian-like existence. But a federal judge on Dec. 19 crafted a novel tactic to curb patent trolls when she slapped a half-million-dollar bill on the lawyers and said that they were personally responsible for paying it, not their client. This could truly be a game-changer.

This is well overdue, as it will help real companies in the US. Patent trolls contribute nothing to the economy or to competitiveness.

In past years we wrote about all sorts of patent trolls and abusers, including Garfum last year (more than once). The EFF posted an update about this serial abuser, which is politely called just a “Patent Bully”:

District Court Undoes Fee Award Against Patent Bully

A district court judge has issued a disappointing ruling reversing an earlier decision to require an abusive patent litigant to pay an EFF client’s attorney’s fees. Judge Jerome Simandle of the District Court of New Jersey held that, even thought the patent was invalid, the relevant law was too uncertain to find the case exceptional and award fees.

This case began in late 2014 when Garfum.com Corporation sued a small photography website called Bytephoto.com for patent infringement. Garfum claimed to own the idea of having a ‘vote for the best’ competition, but on the Internet. The case had a lot of problems. For one thing, Garfum had filed for its patent in 2007 but Bytephoto had been running online photo competitions since 2003. Also, its absurd patent, U.S. Patent No. 8,209,618, was plainly invalid under the Supreme Court’s decision in Alice v. CLS Bank, which holds that abstract ideas do not become patent eligible simply by being implemented on a generic computer or on the Internet.

As the above update serves to reveal, Alice among other factors already contribute to the demise of some abusive activity. Suffice to say, to trolls-funded sites such as IAM ‘magazine’ this is terrible news to be protested rather than celebrated. Only last night, for instance, IAM was again grooming the world’s latest patent troll, Intellectual Ventures, as it did several times before.

To quote this new propagandistic masterpiece:

Two of the biggest names in the IP market have joined forces. Intellectual Ventures co-founder and former VP of patent licensing, strategy and litigation at Intel, Peter Detkin, has today become a senior adviser at Sherpa Technology Group, the strategic IP consultancy among whose managing partners is Rembrandts in the Attic author Kevin Rivette. Sherpa was previously known as 3LP Advisors.

Calling them “biggest names in the IP market” is like calling ISIS and Al-Shabaab “biggest names in the political market.” Then again, when you speak for the patent microcosm — much like the media industry that speaks for the military-industrial complex — war-makers are framed as heroes and champions.

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