07.02.16

Cuozzo Case Summarised, Immersion Corp. v HTC Corp. to Remain Negligible Unless it Too Reaches SCOTUS

Posted in America, Patents at 1:58 pm by Dr. Roy Schestowitz

Summary: A ruling from the US Supreme Court (SCOTUS) on Cuozzo Speed Technologies LLC v Lee paves to way to less software patents in the United States and why this matters

The Cuozzo case was a big win against software patents [1, 2, 3], having profound implications/impact at the USPTO and more so at PTAB. Just like Alice, this decision came from the Supreme Court, so we’re likely to hear a lot more about it in the future. In a nutshell, the US Supreme Court (SCOTUS) validated the approach by which PTAB invalidates software patents en masse, without relying on costly trials. Defendants or prospective defendants (i.e. victims) can eliminate patent threats without them even being asserted (and lawyers/attorneys paid a fortune to work on legal correspondence, analysis and so on).

In its article about the subject, IP Kat can’t help calling PTAB “death squad” (the patent lawyers’ insulting term for a software patents abolisher, i.e. quality control). Do we really need to compare patent (re)examination to murder or assassination (which is rarely practiced anymore for moral reasons)?

“Defendants or prospective defendants (i.e. victims) can eliminate patent threats without them even being asserted (and lawyers/attorneys paid a fortune to work on legal correspondence, analysis and so on).”A week ago we collected many opinions that had been published by law firms on the subject [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15]. We had a good laugh at patent maximalists who promote software patents for nearly a decade; they openly deny the existence or relevance of a case that they don’t like (see “Cuozzo: The Case That Wasn’t” and “Cuozzo, Phony IPR Statistics and the Death of the American Inventor”; at least these two were contrasted with “The importance of PTAB patent review proceedings for addressing low quality patents”). The “most recent example is Cuozzo Speed Technologies,” wrote Ars Technica, which as usual took a difficult subject and made it easier for non-lawyers to understand. Here is the outline: “Patent trolls don’t fare well at the Supreme Court. When they show up, their cases tend to result in decisions that are ruinous for the profit margins of their industry. Two prominent examples: the 2006 eBay v. MercExchange case effectively ended trolls’ abilities to get injunctions, and the 2014 Alice Corp. case made it far easier for patent defendants to invalidate abstract software patents.

“And yet, the cases keep coming. The most recent example is Cuozzo Speed Technologies LLC v. Lee, a case that was resolved earlier this week with an 8-0 opinion dismantling arguments presented by Cuozzo, a patent-holding entity controlled by two New York patent lawyers, Daniel Mitry and Timothy Salmon. The two attorneys own dozens of other patent shell companies through their consultancy, Empire IP.”

This case was a very important one not just because of the subject it addressed and issues it tackled. It’s important because it was decided at the highest possible level. By contract, see Immersion v HTC reports (not many of them exist) “Yesterday,” said patent law firms [1, 2], “the Court of Appeals for the Federal Circuit reversed and remanded the decision of the Delaware district court in Immersion Corp. v. HTC Corp.” In a sponsored “article” (they called it “REPORT”) for the EPO/FTI Consulting-sponsored IAM this case got a mention as well. Continuation filings are applicable not just to software patents and/or invalidation thereof. Therefore we haven’t been writing much about the subject and probably never will, unless or until SCOTUS rules on it (this latest decision, one among several, was only at CAFC level).

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