Phil Hartstein, CEO of Finjan (Photo credit: Courtesy), via Times of Israel
THE USPTO's lenient attitude towards software patents prior to Alice is causing great difficulties and trouble to software developers in the US. Patent trolls absolutely love such patents for various reasons including the number of potential defendants (victims). In particular sectors, particular types of patents can only be used against very few companies and these companies tend to have deep pockets; not so with software...
Patent trolls, more formally known as Patent Assertion Entities (PAEs), are entities that acquire patents for the sole purpose of suing companies in order to monetize them. They also happen to make a habit of piling on a tremendous amount of added work, expense, and stress onto legitimate operating companies.
Preparing for possible litigation has become a standard “cost of doing business” over the years. As the General Counsel of Alcatel-Lucent Enterprise (ALE USA, Inc.), I’ve spent the last few years engaging in battles with patent trolls, at a cost to my company and colleagues. Meanwhile, the PAEs themselves faced few ramifications.
One distinguishing feature is its procedural posture: Blue Coat did not present an Alice challenge at the pleadings stage or in a summary judgment motion as have most Alice cases. Rather, it affirmed a district court’s post-trial denial of a JMOL motion. The standard of review was still de novo, but the Federal Circuit was faced with a fully litigated patent case, including claim constructions that significantly added to the few, very broad, very general terms used in the patent claims, where a jury had made a damages finding. And Finjan, the patentee, is a practicing entity [sic] that pioneered the patented technology. Although unspoken, these distinctions are relevant in the real world: the Court had the full benefit of claim construction and a contrary result would have overturned a completed trial and judgment won by a practicing entity. Nevertheless, such factors are likely not enough, singly or in combination, to explain the outcome.