Bonum Certa Men Certa

Towards the End of Patent Trolls-Friendly Courts in the United States

USPTO panel



Summary: Texas and its epidemic of patent trolls (owing to trolls-friendly courts) may be enjoying its last months of exploitation and the patent law firms that are based there might soon need to relocate

THE USPTO is moving in the opposite direction of the EPO (which pursues the UPC). Tomorrow we'll publish a lengthy and detailed post about the FTC study, but today -- in preparation for that -- we shall remark on another aspect.



A recent article by Annalee Newitz spoke about Lee Cheng, who made a name for himself by fighting patent trolls to death and even compelling them to pay Newegg's legal fees after the trolls had lost (a lengthy and expensive process). Newegg was praised here in the past for this (one example among half a dozen from last year) and "“Patents are bullshit,” says Newegg legal chief" is the headline of this new article. To quote from it:

Lee Cheng is one of the few attorneys to fight back against patent trolls and prevail. And at the latest Ars Live event, we talked to him about his most famous case, how people can fight patent trolls today, and what the future of patent abuse will look like in coming decades. His answers, as expected, were incredibly candid and hilarious.

In 2007, a patent troll known as Soverain had already gotten millions of dollars out of The Gap and Amazon for their online shopping cart patent when they hit Newegg with a suit. Cheng's colleagues in the legal community said you'd better just pay up—this patent is legit. Cheng didn't see it that way. Newegg had just reached a billion in sales, and he thought this piece of litigation would be the first of many lawsuits brought by companies that wanted a piece of Newegg's success. And sure enough, soon after the shopping cart claim, Newegg was hit with patent claims on several aspects of online search. Cheng decided he wasn't going to lie down and take it. He thought he could win on appeal if he could just make it through the courts in the Eastern District of Texas, where 40 percent of patent infringement claims are brought.


Remember that Newegg got dragged down to Texas, and notably the Eastern District of Texas, which is probably the world's most notorious (globally). It actually advertises its bias that favours litigants with abstract patents. That's why many companies and trolls file their patent cases in there. On the fifth of October we saw United for Patent Reform stating that "85% of the 33 patent lawsuits filed today were filed by patent trolls. It's time for Congress to take action to #fixpatents!"

How many of these were filed in Texas?

Patent Progress wrote that "The Eastern District of Texas Is Still Home for Patent Trolls" (also under the #fixpatents hashtag) and pointed to this new article from Mr. Levy (cross-posted at the Huffington Post). To quote some bits:

The year is mostly over, so I thought I would take a look and see what’s going on in the Eastern District of Texas. The Eastern District of Texas still has more patent cases filed there than any other district at 1,224. Some 794 (that’s about 8% of all patent cases) of those cases were assigned to Judge Rodney Gilstrap, in the Marshall Division — almost 10 times more than any judge outside the Eastern District. That’s more than twice as many as the entire District of Delaware (311 cases), even though most big companies are incorporated in Delaware.

In fact, Judge Gilstrap, a judge in a small town in Texas, is handling about as many patent cases as Delaware, California, Illinois, and New Jersey combined.

Marshall, Texas has a population of about 25,000 people. It has no major research facilities, no major industries, and has not produced any major innovations that I can identify. And yet it hosts more patent litigation than any other place in the country, by an order of magnitude.

I’m sure Marshall is a charming town with nice people, but there’s simply no reason for so much patent litigation to go through there. We might as well have patent litigation go through Bangor, Maine, where I went to high school. The town is about the same size, but it has better food and it’s near the coast. Bangor also has a modern airport and a life-size statue of Paul Bunyan.

Seriously, it’s obvious that something is wrong here, even if you don’t know the details. Patent trolls wouldn’t be flocking to a small town with no airport unless they had good reason.

And they do have good reason.


Levy is right to single out or point out Mr. Gilstrap for reasons that we covered here before. In another new article, this one from Patently-O, they alluded to the VENUE Act [1, 2] by suggesting change to patent venue and naming the VENUE Act explicitly:

Earlier this year, we presented some initial results of our study of what might happen if patent venue reform took place. Since then, Senator Flake (R-Az) introduced the VENUE Act of 2016, and last month, petitioners, led by a group including James Dabney and John Duffy, filed a petition for writ of certiori in the TC Heartland case in the Supreme Court. Amicus briefs are due October 17, 2016 and Kraft’s brief is due on November 16, 2016.

To support these deliberations, we examined the history of the patent venue law and presented some statistics about plaintiff venue preferences for the Eastern District (for even more statistics on this point see the new paper by Brian Love and James Yoon). Additionally, we empirically modeled both reforms by randomly selecting 939 cases from 2015, and making our best guess as to where cases would have been filed under the proposed rules, assuming they would have been filed at all. Since 2015, the overall number of patent cases has declined, about 20% YTD based on data from Lex Machina (4,216 cases by this time last year vs. 3,369 today). The Eastern District of Texas has made a number of changes and its share is also down from 44% in 2015, to 35% 2016 YTD (30% in 1Q, 36% in 2Q, and 38% in 3Q); the next closest district (Delaware) has seen about 9% of filings, based on data from Lex Machina.


After the FTC study that we shall mention separately it seems more likely that the VENUE Act will become a reality, or folded into an existing/prospective patent reform bill.

Speaking of patent trolls, even universities are feeding them now. Here is MIP sort of supporting the practice, as if weaponising universities that are funded by the public and turn into trolls that tax the same public is a good thing. No wonder MIP did this, with firms like McKool Smith as 'company'; To quote: "The increase in university patent lawsuits in recent years and strategies for winning cases were among the issues discussed by presenters in the webcast "University Patent Licensing and Enforcement", hosted by Managing IP in association with McKool Smith on September 26."

These are euphemisms for what often boils down to trolling, if not direct then indirect, e.g. by passing patents to trolls like Intellectual Ventures -- now at the epicentre of the collapse of software patents in the United States (more on that in an imminent long post as well).

If the VENUE Act passes, or even gets incorporated into a future patent reform bill, then Texas can say goodbye to a lot of its parasitic business.

Recent Techrights' Posts

A Week After a Worldwide Windows Outage Microsoft is 'Bricking' Windows All On Its Own, Cannot Blame Others Anymore
A look back at a week of lousy press coverage, Microsoft deceit, and lessons to be learned
 
Links 26/07/2024: Hamburgerization of Sushi and GNU/Linux Primer
Links for the day
Links 26/07/2024: Tesco Cutbacks and Fake Patent Courts
Links for the day
Links 26/07/2024: Grimy Residue of the 'AI' Bubble and Tensions Around Alaska
Links for the day
Gemini Links 26/07/2024: More Computers and Tilde Hosting
Links for the day
Links 26/07/2024: "AI" Hype Debunked and Elon Musk's "X" Already Spreads Political Disinformation
Links for the day
"Why you boss is insatiably horny for firing you and replacing you with software."
Ask McDonalds how this "AI" nonsense with IBM worked out for them
No Olympics
We really need to focus on real news
Nobody Holds the GNOME Foundation Accountable (Not Even IRS), It's Governed by Lawyers, Not Geeks, and Headed by a Shaman Crank
GNOME is a deeply oppressive institutions that eats its own
[Meme] The 'Modern' Web and 'Linux' Foundation Reinforcing Monopolies and Cementing centralisation
They don't care about the users and issuing a few bytes with random characters costs them next to nothing. It gives them control over billions of human beings.
'Boiling the Frog' or How Online Certificate Status Protocol (OCSP) is Being Abandoned at Short Notice by Let's Encrypt
This isn't a lack of foresight but planned obsolescence
When the LLM Bubble Implodes Completely Microsoft Will be 'Finished'
Excuses like, "it's not ready yet" or "we'll fix it" won't pass muster
"An escalator can never break: it can only become stairs"
The lesson of this story is, if you do evil things, bad things will come your way. So don't do evil things.
When Wikileaks Was Still Primarily a Wiki
less than 14 years ago the international media based its war journalism on what Wikileaks had published
The Free Software Foundation Speaks Out Against Microsoft
the problem is bigger than Microsoft and in the long run - seeing Microsoft's demise - we'll need to emphasise Software Freedom
IRC Proceedings: Thursday, July 25, 2024
IRC logs for Thursday, July 25, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Links 26/07/2024: E-mail on OpenBSD and Emacs Fun
Links for the day
Links 25/07/2024: Talks of Increased Pension Age and Biden Explains Dropping Out
Links for the day
Links 25/07/2024: Paul Watson, Kernel Bug, and Taskwarrior
Links for the day
[Meme] Microsoft's "Dinobabies" Not Amused
a slur that comes from Microsoft's friends at IBM
Flashback: Microsoft Enslaves Black People (Modern Slavery) for Profit, or Even for Losses (Still Sinking in Debt Due to LLMs' Failure)
"Paid Kenyan Workers Less Than $2 Per Hour"
From Lion to Lamb: Microsoft Fell From 100% to 13% in Somalia (Lowest Since 2017)
If even one media outlet told you in 2010 that Microsoft would fall from 100% (of Web requests) to about 1 in 8 Web requests, you'd probably struggle to believe it
Microsoft Windows Became Rare in Antarctica
Antarctica's Web stats still near 0% for Windows
Links 25/07/2024: YouTube's Financial Problem (Even After Mass Layoffs), Journalists Bemoan Bogus YouTube Takedown Demands
Links for the day
Gemini Now 70 Capsules Short of 4,000 and Let's Encrypt Sinks Below 100 (Capsules) as Self-Signed Leaps to 91%
The "gopher with encryption" protocol is getting more widely used and more independent from GAFAM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 24, 2024
IRC logs for Wednesday, July 24, 2024
Techrights Statement on YouTube
YouTube is a dying platform
[Video] Julian Assange on the Right to Know
Publishing facts is spun as "espionage" by the US government and "treason" by the Russian government, to give two notable examples
Links 25/07/2024: Tesla's 45% Profit Drop, Humble Games Employees All Laid Off
Links for the day
Gemini Links 25/07/2024: Losing Grip and collapseOS
Links for the day