Posts Tagged: "Gene Quinn"

What’s in a name? Well likely far more than most businesses realize. Your business name is how people will identify with your goods and services, so you want to have one identity that is all your own. Simple enough really, at least in concept, but making a mistake at the selection stage will prove costly. You really need to be picking a business name that gives you the opportunity to create a unified Internet marketing and branding strategy, from the domain name you select to your usernames and identity on popular social media and social networking sites like Twitter, Facebook and LinkedIn.

Despite the gathering storm, some businesses would prefer to pretend that patent infringement is not a problem for them and they won’t be sued. The graph below shows that since 1980 the number of patent lawsuits filed has only gone up, with a record number (3,301) being filed in 2010. Add the frequency of the “dime a dozen” threatening letters sent by those seeking to extract licensing payments to the number of lawsuits filed and you can readily see that patent infringement litigation, and the associated threats thereof, are a growth industry. Here is what you need to know when you get sued or get that threatening letter.

Between 1995 and 2009 the overall median patent litigation damage award was $5.2 million, but between 2002-2009 there was a huge discrepancy between the average damage award for practicing entities versus non-practicing entities. The median award for non-practicing entities was $12.9 million, while the median award for practicing entities lagged far behind at $3.9 million. No wonder there is ever increasing activities by those the Federal Trade Commission refers to as “patent assertion entities,” which seems to be yet another sanitized name for patent troll.

It is still early to know whether this is irrational exuberance or whether this is a meaningful event for the companies that follow LinkedIn to IPO. In all likelihood it is a little of both, namely a meaningful event that demonstrates at least some irrational exuberance. With the economy and the IPO market having been in the tank for so long a little zeal never hurt anyone, right? In any event, regardless of what LinkedIn does from here on out the fury of trading and interest suggests that good things are on the horizon for the economy and perhaps for job creation as well.

Earlier this year Intellectual Property Today announced its annual Top Patent Law Firms for 2011. Just recently they also announced the Top Trademark Firms for 2011. I thought it might also be interesting to see which firms were mentioned on both lists. In fact, there were 11 law firms that appeared on both the Top Patent Law Firms List and on the Top Trademark Law Firms List.

In a bit of a twist this year, the party nominating the National Inventor of the Year will also be recognized. Most nominations come from patent attorneys, so this is a great way for the IPO to recognize the team behind the inventor, as well as honoring the inventor. The nomination deadline is June 1, 2011, so now is your chance attorneys and agents to nominate those inventors you work with for their innovative contributions. I can’t think of a more worthwhile endeavor for our industry than to recognize remarkable innovators, so I encourage everyone to go through their client rosters and nominate those outstanding inventors who deserve recognition.

It doesn’t roll off the tongue quite like the famous Shakespearean line — “to be or not to be: that is the question” — the opening line of Hamlet’s soliloquy in Act 3, Scene 1, but the question that some inventors will ask themselves is whether they should seek out licensing opportunities or follow the path of manufacturing and selling.  Truthfully, many inventors probably don’t ask this question and instead jump past this fundamental question and straight for the licensing revenue, but is that the best thing in the long run?  Licensing takes a lot of work out of the monetization equation and minimizes risk, but foregoing manufacturing and pursuing licensing can significantly cut down on profit realized by the owner of the invention rights.

I don’t doubt that the Google Legal Team is an excellent department, and undoubtedly praiseworthy. It is also correct to say that they are dealing on nearly a daily basis with cutting edge issues that relate to the use of intellectual property in a still young medium — the Internet. It is also true to observe that they have had to deal with antitrust matters, patent litigations, copyright and trademark matters, not to mention the undoubtedly countless private matters that we haven’t yet learned about and many we won’t ever learn about. Nevertheless, I wonder whether there is a premature victory lap or recognition that is just slightly ahead of accomplishment. Certainly if Google scores a final victory in the Rosetta Stone appeal on trademarks (more below) and can resurrect the book settlement (more below) that would go a long way to justifying this award, I just wonder whether it might be a year ahead of schedule and a bit akin to President Obama winning the Nobel Peace Prize after only a few months in Office.

The Patent and Trademark Office is once again sponsoring the USPTO Patent Experience Externship Program (PEEP) for the Summer of 2011. Time is extremely limited to get in an application. The deadline for making application to the program is Friday, May 20, 2011.

Typically I let what Hal writes slide off my back because I don’t take him seriously. Having said that, the other day he did one of his trademark hatchet jobs on an article I wrote titled The Constitutional Underpinnings of Patent Law This was actually the second Constitutional article I wrote in as many weeks. One week earlier I wrote Patents, Copyrights and the Constitution, Perfect Together. Hal’s newsletter, sent out with the subject “naive and wholly incorrect understandings,” grossly misrepresented my writings, and was incorrect on the law in places as well. That being the case, and given the particularly prickly and fallacious subject heading, I thought I might set the record straight. I think it is also time to challenge Hal to a debate so he will either put up or shut up.

Overall there will be few large paydays for small and mid-size companies against the Fortune 1000, and fewer still for those who do not engage an appropriate strategy and simply rush head first into litigation or licensing negotiations. Notwithstanding, cultivating or acquiring a patent portfolio will allow small and mid-size companies to hold assets that are capable of being leveraged in the event a large corporation comes knocking. Additionally, as the business grows and revenues become available having a patent portfolio can enable small and mid-size companies to pursue litigation against Goliaths, but the odds of prevailing and having critical leverage go up if the plaintiff is a practicing entity. Simply stated, without the threat of a permanent injunction the Goliaths of the corporate world are exceptionally likely to just push you around.

While many people believe that alternative energy is at least several decades away, what is clear is that if we do not set out about making that future a reality it will never been the future we realize. There is tremendous research ongoing relative to battery technologies, solar energy, biofuels, geothermal energy, wind energy, hydroelectric energy and much more. In all likelihood no one, single solution will replace our dependence on fossil fuels, at least not in the foreseeable future, but there does seem to be a light at the end of the tunnel. We only need to choose the path to obtain that reality.

On Friday, May 13, 2011, the Federal Circuit issued the latest decision in a long line of Rambus decisions stemming out of conduct of Rambus as it participated in the JEDEC standard-setting body, as well as litigation events that followed. A five judge panel of the Federal Circuit (per Judge Linn) affirmed the district court’s determination that Rambus destroyed documents during its second shred day in contravention of a duty to preserve them and, thus, engaging in spoliation.

Since the Supreme Court’s decision in eBay v. MercExchange there have been 131 cases where a permanent injunction has issued and 43 cases where a permanent injunction has been denied. Some have tried to pass this off as not much of a departure from the practice prior to the Supreme Court’s decision. Such a viewpoint is, however, not correct. Prior to the Supreme Court’s decision it was virtually unheard of for a district court to deny a victorious plaintiff a permanent injunction in patent infringement case. So the Supreme Court’s decision in eBay v. MercExchange has been one that has significantly altered the patent litigation landscape and, therefore, is easily one of the most important Supreme Court patent cases in recent memory.

It has always been my belief that the PLI course is the best, and now I think there is absolutely no doubt. Yes, there are some competitors out there but how many other courses have two faculty members that are practicing patent attorneys and law professors? John and I both have a private practice and we have made legal education an important part of our careers. We are even patent attorneys, which might sound like an odd thing to tout but there are actually courses out there that don’t have patent attorneys developing the course and creating materials. The patent bar exam is hard enough as it is, the rules of patent practice are almost ridiculously archaic and you think you can take a patent bar course taught by someone who hasn’t ever even passed the exam let alone represented anyone in real life? Yeah, right. Think again.