08.12.18

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Keep Boston (and Massachusetts in General) From Becoming an Infestation Zone for Patent Litigation

Posted in America, Courtroom, Patents at 3:23 pm by Dr. Roy Schestowitz

“Although the District of Delaware saw the largest increases by number of cases in 2017, other districts including the District of Massachusetts, the Western and Southern Districts of Texas, and the Western District of Washington all saw significant increases in terms of percentage over 2016.” (Source: Lex Machina)

Boston at night

Summary: Boston, renowned for research and innovation, has become somewhat of a litigation hotbed; this jeopardises the state’s attractiveness (except perhaps to lawyers)

THE EPO seems eager to attract patent trolls, having clearly failed to heed warnings from the United States. China has made similar mistakes and belatedly realised that.

In the United States the District of Delaware is overtaking East Texas as the ‘capital’ of patent litigation and last week we took note of Massachusetts becoming increasingly attractive to it as well. We keep hearing of more and more cases from Massachusetts, Boston in particular.

“A lot of the research in question was funded by taxpayers; this begs the question, why were patents pursued in the first place and why are these being litigated over (through a sort of proxy, the “Trustees of Boston University”)? It’s unjust.”A few days ago Kluwer Patent Blog wrote about the High Court in the UK dealing with Boston Scientific Scimed, which deals with medical devices and is formally based in Marlborough, Massachusetts. Just shortly before that we saw Boston University mentioned in relation to a District Court and the Federal Circuit, especially in the case of Everlight Electronics (recently, as in last week, covered here in passing, taking note of Boston University's past with patents). Patent Docs wrote about it some days ago, speaking about the patent’s (granted by the USPTO) particulars:

The ’738 patent describes a method for producing GaN semiconductors using a form of epitaxy termed molecular beam epitaxy, which is “a two step process comprising a low temperature nucleation step and a high temperature growth step.” This produces a first buffer layer of amorphous GaN when heated in the second step to “crystallize the amorphous layer.” This permits monocrystalline GaN to be grown on the crystallized substrate layer.

The District Court construed the term “grown on” to mean “formed indirectly or directly above,” and construed the term “a non-single crystalline buffer layer” to mean “a layer of material that is not monocrystalline,” i.e., one that is polycrystalline, amorphous, or a mixture of amorphous and polycrystalline, and that is “located between the first substrate and the first growth layer.” The parties’ disagreement, and the Federal Circuit’s opinion, concerned construction of the term “grown on.”

A lot of the research in question was funded by taxpayers; this begs the question, why were patents pursued in the first place and why are these being litigated over (through a sort of proxy, the “Trustees of Boston University”)? It’s unjust.

As we have repeatedly noted here lately, East Texas with its appeal for trolls has become a deterrent against businesses operating there. A lot of true innovation has happened in Massachusetts for centuries; if the state becomes a hotspot for patent litigation, however, this advantage can be put at risk/peril. There’s plenty of research on that, including some from Boston itself (e.g. Professor Bessen).

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