WE HAVE spent almost half a year covering analyses of the Alive case because it may signal the demise of software patents in the United States (home of software patents). Lawyers were consistently denying it would have an impact on granting/rulings, but facing the real facts they must now admit that they were wrong. One patent-wielding parasite, a law firm called Barnes & Thornburg LLP, wrote an article in a few sites of lawyers, concluding: "For patent litigation, the data are not as clear as the USPTO data, but data suggest that €§ 101 challenges to issued patents are becoming more common—as well as more likely to succeed. New patent litigation filed in September 2014 (329 cases) was a 40% reduction compared to September 2013 (549 cases).7 Over the past few years, new patent litigation cases are reduced over the summer but increase again in September. However, a post-summer increase did not happen this year. Although correlation does not equal causation, the Alice decision may make patent holders hesitant to file new litigation due to not wanting to proceed with possible invalid claims under €§ 101. However, Alice is not the only factor. The America Invents Act provided an alternative pathway to challenge patents--2003 inter partes reviews (IPRs) and 240 covered business method reviews (CBMs) have been requested since September 16, 2012.8 In the first two years, the PTAB has found all challenged claims invalid in 65% of the 126 final decisions. Thereby, there are most likely several contributing factors leading to the decrease in patent litigation, whereby Alice is probably one of several factors."
Scanner Patent Troll Slapped On The Wrist By FTC; Told To Stop Misleading Behavior.
For a few years now, the FTC has talked about taking on patent trolls. In 2011, 2012 and 2013, we heard stories about the FTC putting patent trolls "on notice" and getting ready to crack down on them for deceptive practices. Last year, it finally "launched an investigation" into certain patent trolls, starting with notoriously crazy patent troll MPHJ, famous for its rather aggressive form of trolling, using a questionable patent on "scan-to-email" technology, sending out thousands of demand letters from a range of shell companies, telling lots of small businesses that they had to pay between $900 to $1200 per employee if they had a scanner with the "scan-to-email" function (most modern scanners).
John Lindgren, President and CEO of Conversant (formerly MOSAID Technologies), was also on the first panel. He concurred that “the calculus has changed.” He and others on the panel recognized what everyone in the industry has been speaking about, namely that the market for acquiring patents is dead, at least from the point of view of the patentees. The agreement on the panel was that well run non-practicing entities are in a particularly good position to start accumulating patents at a steep discount. Lindgren also predicted that we will see consolidation of the industry both with respect to private and public companies in the NPE or patent monetization space. I concur completely. Recently I wrote about the inevitable rise of super trolls, or super patent trolls. The market is not going away and the actions of Congress and the Supreme Court, which have made individual patents worth far less, and portfolios likewise worth far less, will ultimately work to create the monster that all of this anti-patent activity was intended to prevent. But that is always what happens when politicians attempt to regulate an industry that they don’t understand and Judges are more interested in playing the part of super legislators.