03.10.16

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Patents Roundup: Patent Trolls, Patent Reform, IAM’s Willful Ignorance, PTAB Paranoia, and Long Briefs

Posted in America, Patents at 12:38 pm by Dr. Roy Schestowitz

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Summary: A look at patent news from the United States, focusing primarily on patent trolls or software patents (the trolls’ weapon of choice)

Trolls’ Antics Spreading

“ServiceNow (NOW) stock rose Tuesday,” said this article, “with word out that it might be able to settle some of its patent litigation with privately held BMC Software, avoiding a trial scheduled to start Friday.”

“The cost of going to trial (plus all the appeals which typically ensue and moreover the duration which casts doubt and uncertainty) is greater than just settling.”This is what very often happens when it comes to software patents. The cost of going to trial (plus all the appeals which typically ensue and moreover the duration which casts doubt and uncertainty) is greater than just settling. That’s what gave rise to a lot of what’s now known as “patent trolls”, even though large companies with actual products do the same thing (our next post will deal with Microsoft, which even created a troll-like entity called “Microsoft Technology Licensing LLC”).

Patent Reform in the US

“In his Patently-O Patent Law Journal essay,” says this post, “James Daily reports the results of his investigation into the signatories to these open letters [regarding patent reform that focuses on patent trolls]. He finds, inter alia, that the signatories of the second letter are (1) more likely to be donors to the Republican Party and (2) more likely to be registered patent attorneys.”

“Republicans often stand for (or support) what’s good for large corporations, which also get represented by patent lawyers (hence they ‘trickle down’ money to them, at the expense of everybody else).”This is expected, but receiving a reminder that reinforces these expectation can be helpful. Republicans often stand for (or support) what’s good for large corporations, which also get represented by patent lawyers (hence they ‘trickle down’ money to them, at the expense of everybody else).

IAM Doesn’t Know What “Trolls” Are (Follow the Money)

Why do we still see so many patent trolls in the US? Why does the EPO’s management want to bring them over to Europe with the UPC? And why do friends of the EPO’s management (sites like IAM) take money to promote the UPC and to soften the image of trolls? Follow the money. It’s not hard.

“It’s pretty obvious that the Eastern District of Texas is friendly to trolls.”Consider this new article from friends of software patents who are also receiving money from patent trolls (and whose “Editor in chief” does not know how much money is being paid to by sponsors). Whenever they write about patent trolls they manage to not even to mention the word “troll” (because it might offend IAM’s parent company, as it’s paid by trolls). Here’s the latest example which says that “as Congress waits, the Court of Appeals for the Federal Circuit (CAFC) is set to tackle one of the most controversial aspects of patent infringement cases in the US – the thorny topic of venue shopping. Almost all sides of the reform debate can agree that it is not healthy in any legal system for a disproportionately large number of cases in any field to be heard by just one court and for one judge to hear so many. Last year, according to Lex Machina, 2,540 patent cases were filed in the Eastern District of Texas – 43.6% of the total suits brought in the US. Of those, 1,686 were filed with Judge Rodney Gilstrap. Regardless of Judge Gilstrap’s judicial skills, that lack of plurality does not paint the US patent system in a good light.”

Amazingly, the article does not say a thing about trolls. Astonishingly, they miss the strong correlation between the Eastern District of Texas, patent trolls, and even software patents.

“U.S. Supreme Court refused Monday to rehear arguments from Pi-Net International Inc., which saw its Federal Circuit appeal in a case against JPMorgan dismissed after it used formatting tricks to hide the fact the appeal brief was too long.”
      –Law 360
“Of course,” they added, “if the CAFC or Congress does severely stymie patent plaintiffs’ ability to bring cases in East Texas we might finally see whether patent owners flocked there not because the courts gave them such an easy hearing, but because it’s the only place in which they have been able to get a fair hearing.”

It’s pretty obvious that the Eastern District of Texas is friendly to trolls. It even openly advertises this, as covered widely in the press just weeks ago. How could IAM miss this crucial fact?

Fear of PTAB

The Intellectual Property Owners Association, which is essentially a lobbying group of the super-rich (not just any holder of patents), is trying to demolish previous reforms that introduced a court known for eliminating a lot of software patents, especially post-Alice. There is also the article “Fed. Circ.’s [CAFC] Embrace Of PTAB To Fuel More AIA Reviews”, which related to what we wrote two days ago.

Patents Keeping the Price of Ink Sky-High

To understand the wider impact of patent maximalism look no further than the Lexmark story, which continues to be the subject of lawyers’ analyses, e.g. [1, 2, 3, 4] in recent days.

Too Much Work? Inadmissible!

We couldn’t help but notice this new article which says that the “U.S. Supreme Court refused Monday to rehear arguments from Pi-Net International Inc., which saw its Federal Circuit appeal in a case against JPMorgan dismissed after it used formatting tricks to hide the fact the appeal brief was too long.”

A lot can be said about this, either about the cheeky lawyers who disguised the length of the brief or the court which judges based on the number of words (rather than merit).

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