Patent Lawyers' Tears

Summary: With 35 U.S.C. ۤ 101 (Section 101) in tact, tribunals continue to squash software patents and many firms no longer bother taking these to courts, knowing they'd lose the legal battle

THE USPTO can grant all the patents it wants, but the Patent Trial and Appeal Board (PTAB) will then squash many of them, with the Federal Circuit affirming. There's a big difference between getting a patent and using a patent in court. Many would not dare suing with a patent, knowing or predicting a negative outcome.

"There's a big difference between getting a patent and using a patent in court. Many would not dare suing with a patent, knowing or predicting a negative outcome."Patent lawyers' agony is rather revealing.

Yesterday, for example, the Watchtroll patent extremists (Aaric Eisenstein, a "patent licensing" guy) kept smearing PTAB and referring to invalidation of patents wrongly granted as "kill" (as if someone died). At around the same time we learned that PTAB targets patents of patent trolls once more, this time IPVal's. It happened after a petition (IPR) from Unified Patents and yesterday afternoon it wrote

On June 22, 2018, Unified filed a petition for inter partes review (IPR) against U.S. Patent 7,769,830 owned and asserted by Hypermedia Navigation LLC, an IP Valuation Partners subsidiary and known NPE. The '830 patent, related to methods for presenting and searching for hypermedia elements stored at a web server, has been asserted in district court litigation against Yahoo!, Facebook and Microsoft.

This is quite clearly a software patent. Judging by the number, it's an older patent than most and it predates Alice. It was granted in 2010. Expect it to be rendered invalid soon, 8 years after its issuance. Docket Navigator is meanwhile speaking of a "plaintiffs' invalidity expert" -- we presume a person who is dedicated to such legal arguments. From yesterday's sole Docket Report: "The court denied plaintiffs' motion to reconsider an earlier order granting defendant's motion to strike opinions from plaintiffs' invalidity expert that were submitted in support of summary judgment briefing because of the substantial unfair prejudice to defendant."

"Not too shockingly, litigation numbers are down sharply."Invalidity at the courts, not just at PTAB, has become pretty common. This means that many patent-holding entities are simply too afraid to sue; they'd rather settle out of court, but the targets of intimidation are harder to intimidate because they know they would win in court (if it ever came to that).

Not too shockingly, litigation numbers are down sharply. Yesterday IAM wrote: "Still a few days to go until the end of the month and the first half but @LexMachina's case counter is currently at 1775 new patents suits filed so far this year. At this rate the US is on course to see fewer than 4000 suits filed this year which would be well below recent highs..."

"The bottom line is, the way things are going the number of lawsuits hinged on software patents truly nosedived."Richard Lloyd from IAM added: "Recent high was 6130 cases filed in 2013. Last year total was 4045..."

So expect just over 3,000 lawsuits this year, i.e. way below 6,130. "Volume of US patent litigation continues to drop," IBM's Manny Schecter wrote. Remember that IBM is by far the biggest foe of Section 101 and it is suing a lot of companies, only to see PTAB invalidating many of its bogus software patents.

The bottom line is, the way things are going the number of lawsuits hinged on software patents truly nosedived. This can only be good news for software developers. ⬆