Bonum Certa Men Certa

Patents in the US Are Not Hard to Enforce, Software Patents Are



Some trolls and businesses have become accustomed to a pipeline of extortions

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Summary: Depending too much on abstract software patents is a losing strategy; it does not, however, mean that patents in general are not enforceable

THE number of patents granted by the USPTO kept climbing for many years. This sheer number and this growth is about to end. As we shall show later today, examiners are becoming tougher, owing primarily to PTAB.



Someone has just said that "it's still almost impossible to enforce a patent in the US. Rare cases of success take 4-7 years and $5M-10M+."

"...examiners are becoming tougher, owing primarily to PTAB."This isn't true unless one assumes that a low-quality patent like a software patent gets used.

Just the other day Michael Loney took a look at Lex Machina's data and said that "ANDA pharma litigation spikes back up in 2017" with some record rulings (in terms of damages). To quote:

After a slump in 2016, US pharmaceutical patent litigation triggered by the Hatch-Waxman process rose to 411 cases last year

Last year 411 ANDA cases were filed in the US, up from 318 in 2016, reveals Lex Machina’s recently released Patent Litigation Year in Review report.


"The report features many interesting statistics on case filing (the headline figure is a 10% drop) and the impact of TC Heartland on districts," Loney wrote in another part (this too behind a paywall). His summary mentions Section 101 invalidation: "A closer look at Lex Machina’s Patent Litigation Year in Review report reveals some interesting nuggets of information on success rates of transfers, the judges with the most cases, design patent litigation, injunctions, Section 101 invalidation and damages..."

"Inherently, the problem isn't enforcement but enforcement of software patents specifically."Speaking of Section 101 invalidation, Watchtroll now calls the patent troll "Blackbird Technologies" [sic] an "intellectual property monetization firm" and says it intends to appeal the Section 101 invalidation of its software patent. We wrote about that less than a couple of weeks back. Why do they insist on enforcing software patents, knowing the very slim chances of a victory? Watch these patent trolls scraping the bottom of the barrel for exceptions to the norm and these awful results (face-saving press release) from InterDigital, which sees income going down by about 20%.

Inherently, the problem isn't enforcement but enforcement of software patents specifically. It's not hard to see that.

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