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07.17.18

What Patent Lawyers Aren’t Saying: Most Patent Litigation Has Become Too Risky to be Worth It

Posted in America, Patents at 6:54 pm by Dr. Roy Schestowitz

These people rely on a constant flow of lawsuits (for them to bill and profit from both sides)

Old key

Summary: The lawyers’ key to the castle is lost or misplaced; they can’t quite find/obtain leverage in courts, but they don’t want their clients to know that

THE SUMMERTIME/summer season generally brings out or yields fewer decisions, hence less news. The EPO and SUEPO have been quiet this past week and the USPTO says just about nothing. Iancu seemingly vanished (his name hasn’t been brought up in nearly a month). Court proceedings, however, still go on.

“Iancu seemingly vanished (his name hasn’t been brought up in nearly a month).”The real (and growing) risk of getting oneself fined — at times pretty badly — for frivolous patent litigation is becoming more profound (under 35 U.S.C. § 285).

Some days ago we said that “Cellspin Soft Will Likely Need to Pay the Accused Party’s Lawyers Too After Frivolous Litigation With Patents Eliminated Under 35 U.S.C. § 101” and Donald Zuhn caught up with a similar case shortly afterward when he wrote:

Last month, in Akeso Health Sciences, LLC v. Designs for Health, Inc., District Judge S. James Otero of the U.S. District Court for the Central District of California denied a Motion for Exceptional Case Determination and Award of Attorneys’ Fees filed by Defendant Designs for Health, Inc. (“DFH”). In its Motion, DFH argued that the case should be deemed “exceptional” within the meaning of 35 U.S.C. § 285, and that DFH should therefore be awarded attorneys’ fees.

Frivolous patent litigation going astray and punished again? We have seen not one but several such cases very recently. It’s becoming somewhat of a ‘trend’. 35 U.S.C. § 285 was also brought up in Eko Brands, LLC v Adrian Rivera Maynez Enterprises, Inc. et al, which Docket Navigator has just covered by saying that “[t]he court granted in part plaintiff’s requested fees under 35 U.S.C. § 285 because defendant maintained its invalidity defense solely to extend the time of an ITC preclusion order.”

“Frivolous patent litigation going astray and punished again?”That’s about ITC rather than the Federal Circuit. We have been highly critical of the ITC’s refusal to accept Patent Trial and Appeal Board (PTAB) judgments on patents after inter partes reviews (IPRs) had been filed.

The signifiance of 35 U.S.C. § 285 here is that it can act as a deterrent — an additional one on top of 35 U.S.C. § 101 — against unnecessary/abusive litigation.

“The worthy conclusion here is that reasons to refrain from filing patent lawsuits have only grown in number.”The Docket Navigator has since moved on to Olivia Garden, Inc. v Stance Beauty Labs, LLC et al, which hours ago it said involved a “motion to dismiss for improper venue because plaintiff provided no authority for the court to exercise pendant venue over defendant to further judicial economy in a two-defendant action.”

Another case which cites TC Heartland (TC Heartland LLC v Kraft Foods Grp. Brands LLC) in order to deal with unjust patent litigation venue? This too is a deterrent these days.

The worthy conclusion here is that reasons to refrain from filing patent lawsuits have only grown in number. Patent law firms don’t want to say this as it’s “bad for business” (their ‘business’).

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