WiLAN has stepped up its campaign against the growing personal digital assistant market filing six lawsuits before and after Christmas against a series of big tech companies including Amazon and HTC over patents that underpin Siri, the popular electronic assistant on Apple devices. The most recent case was filed on Tuesday against ZTE in district court in Delaware, bringing the total number of suits that the NPE’s subsidiary IPA Technologies has filed in this campaign to 11.
WiLAN acquired the patents in question in two tranches, including a package of nine grants in May 2016, from SRI International, a non-profit research institute which spun out of Stanford University more than 40 years ago. SRI began developing the technology for a voice-controlled electronic assistant following a grant from the US Defense Advanced Research Project Agency (DARPA), eventually setting up Siri Inc which was spun out as an independent entity in 2007 and was then bought by Apple in 2010.
The headline numbers for the 2016 litigation year in the US were out last week and showed a big drop in the total number of new patent infringement cases. According to Unified Patents there were 4,382 new cases, a drop of almost 25% on the 2015 figure. That is the lowest level since 2011 when the America Invents Act (AIA) came into force and new joinder rules had a significant inflationary effect on litigation volume.
RPX also released some stats and included a numbers of interesting data points. Among them was a big fall in the number of NPE campaigns against companies with revenues of $50 billion or more. Those companies are, of course, typically among the most popular targets for licensing efforts but they’re also the ones most likely to fight back in long, drawn-out lawsuits.
What the new administration should be doing with patents
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Continue to Fight Patent Trolls
It is true that patent troll litigation dropped in 2016, but according to a recent RPX report, nearly all of that drop is due to fewer lawsuits against very large, well-funded companies. Patent trolls seem to be shifting their focus to smaller businesses that can’t afford to defend themselves effectively. Trolls’ venue of choice continues to be the Eastern District of Texas, as I’ve written about a number of times.
A new paper by Brian Love and James Yoon confirms why this is true: patent trolls use the Eastern District of Texas (EDTX) because its procedures increase costs for defendants quickly. In fact, 90 percent of cases there are filed by patent assertion entities. The paper also shows that only 18 percent of EDTX cases have any local link to the original inventor, original patent owner, or the first named defendant. By comparison, nearly 88 percent of the cases filed in the Northern District of California (which includes Silicon Valley) have such a link to the district.
The reality is that we need venue reform. Congress needs to fix the patent venue statute so that patent owners can’t sue a company virtually anywhere. The evidence is simply undeniable that patent trolls are taking advantage of a court with overly friendly rules in order to extort money, and there’s no reason to allow this to continue any longer.
Do No Harm on Patentable Subject Matter
With recent Supreme Court decisions, there has been a lot of handwringing about the patentability of software, diagnostic methods, and certain biotech inventions. There have even been proposals to do away with the patent-eligibility requirement altogether.
Congress needs to let the law develop slowly. The courts are gradually coming to some reasonable interpretations based on previous case law, and that’s as it should be. There are a lot of stakeholders with competing interests, and the best way to develop this law is a bit at a time. Yes, it’s painfully slow, but it’s the way our legal system works.