Matt Levy

The Apple-Samsung case has dragged on for about six years so far, with no end in sight. The first case, involving design patents, has had a trial, gone to the Federal Circuit, up to the Supreme Court, where a unanimous Court sided with Samsung. The case is now back at the district court, which has to decide which “article of manufacture” on the infringing Samsung phones includes the patented design. Apple is continuing to try to salvage its $400 million damages award by any means necessary, including effectively nullifying the Supreme Court’s decision.

The FTC laid out Qualcomm’s predatory licensing tactics in its complaint. Instead of treating all companies the same, Qualcomm refuses to license to other chip makers so that it has a virtual monopoly on CDMA chips. And instead of licensing on FRAND terms, Qualcomm forces its customers to buy licenses they don’t need and massively overcharges them for those licenses… No one denies Qualcomm’s place in telecommunications history, but Qualcomm has been paid many times over at this point. Enough is enough.

I think the reality is that software patents in some form are here to stay for the foreseeable future; it is also true that things that used to be considered patent-eligible no longer are. Assuming that’s right, we need a way to identify which claims are patent-eligible… Yes, software can be patentable, but it has to provide a technical solution to a technical problem.

More importantly, the OIG’s report misses the point. Nearly everyone agrees that the quality of patents being issued is a problem, but the OIG didn’t consider patent quality at all. The OIG’s proposed solution of forcing examiners to produce more quickly is hardly a recipe for quality, particularly when examiners report that they don’t currently have enough time to do a thorough job. In contrast, the Government Accountability Office recently issued two reports on improving patent quality. The GAO looked at internal procedures and surveyed examiners in order to identify some of the real causes of poor patent quality. The GAO had a number of important recommendations for improving patent quality; the distraction of this “fraud” may mean that we waste a real opportunity to make some positive changes.

There is simply no reason for so many patent cases to wind up in a district with so little relation to those cases. Basic principles of equity and justice don’t vanish just because a patent is involved. The court hearing a patent case should have a real interest in the case, just like any tort or contract case. The Eastern District of Texas has literally created a local industry of patent litigation, intentionally or not. Even local businesses acknowledge it and exploit it. Patent venue reform is long overdue, and it’s something that Congress can and should get done.

I understand that patent owners are upset at having the playing field leveled somewhat. They must feel like the rules of the game have changed, and, to be fair, they have to some extent. But a patent is not real property and it’s not an entitlement. It’s a temporary grant of exclusivity by the government in exchange for sharing one’s invention with the public, assuming that the invention is novel and non-obvious. If it turns out that the original patent issuance was wrong, i.e., someone else came up with the invention first, you have to give up that grant.