Posts Tagged: "patent infringement"

While the Federal Circuit ruled that Microsoft did infringe and the patent claim in question (claim 19 of U.S. Patent No. 5,490,216) was valid, it was Microsoft who was the big winner here. The damages awarded by the jury to Uniloc were $388 million, which was set aside by the district court, a ruling that the Federal Circuit affirmed. The Federal Circuit also agreed there was no willful infringement. So while Uniloc has won at least something from Microsoft as a result of its infringement of a valid patent claim, it seems like it will be far less than the $388 million, particularly given the Federal Circuit threw out the 25 percent rule and said the entire market value rule was not applicable in this case.

The Supreme Court agreed to hear the appeal of Stanford University v. Roche Molecular Systems, Inc.; faculty and student inventors, the public, and American industry have an enormous stake in the Court’s decision. The appeal pits university patent administrators against university inventors. If the administrators win, university inventors will have no invention rights—not in the work they do at the university, and not in the work they do in the community. This is a crucial juncture for every researcher who has ever or might someday work in federally funded research. Likewise, it presents a tipping point for innovative industry and anyone with a vested interest in American research.

If the remainder of her decision is any evidence as to what she was thinking, it seems pretty clear to me that if she were forced to have addressed that issue she would have said that as a result of Twombly and Iqbal the model patent infringement complaint no longer satisfies the requirements of Federal Rule of Civil Procedure 8. She also found unpersuasive the argument that since Twombly and Iqbal are not patent infringement cases they offer no appropriate guidance or insight.

Article One Partners announced yesterday that patents held by NTP Incorporated are the focus of three new requests for research, which Article One Partners refers to as Patent Studies. NTP was made famous for its litigation against BlackBerry maker Research-in-Motion (RIM) that resulted in a settlement north of $600 million. New litigation by NTP has expanded the assertion of patent infringement to other top players in the mobile and smartphone industry, which is prompting Article One Partners to engage their global community of researchers by challenging them to identify evidence predating the patents in question and which can be used to invalidate one or more of the patent claims owned by NTP.

Earlier today the United States Supreme Court granted certiorari in Microsoft Corporation v. i4i Limited Partnership, with Chief Justice John Roberts taking no part in the decision or petition. This comes only days after the United States Patent and Trademark Office refused to grant reexamination of the patent in question. Given Microsoft doesn’t even have strong enough prior art to provoke a reexamination by the USPTO it seems absurd to think they could have been victorious even if the district court reviewed the patent claims de novo and without any presumption.

This strategy is tried and true, and any company with a serious patent portfolio and an eye toward enforcing that portfolio through licensing or litigation has followed this strategy. What you do is look at what your competitors are doing, or what that big target prospective licensee is doing, and you write a claim that exactly covers what they are doing. Then you add that specific claim to your continuation. As long as your original disclosure supports that claim you are entitled to add the claim. So if you are a serious inventor, a would-be patent troll or a business of any size with designs on licensing or litigating, you absolutely cannot cut corners at the time of filing the first, foundational patent application. You want the kitchen sink in that first patent application because if the path proves commercially viable you will want to milk the disclosure for many patents, and you will want to be able to argue convincingly that whatever claims you add later are actually covered by your initial patent application.

On Friday, August 27, 2010, Interval Research Corporation brought a patent infringement lawsuit against a who’s who of tech companies in the United States District Court for the Western District of Washington at Seattle, specifically suing AOL, Inc., Apple, Inc., eBay, Inc., Facebook, Inc., Google Inc., Netflix, Inc., Office Depot, Inc., OfficeMax Inc., Staples, Inc., Yahoo! Inc. and YouTube, LLC.…

Late yesterday Oracle announced in an exceptionally brief and direct press release that it has filed a lawsuit against Google. But someone at Google didn’t find this amusing and seemingly tampered with Google’s search algorithm and database by eliminating Oracle altogether. This was brought to my attention earlier today and then confirmed at approximately 3:00pm Eastern Time. By approximately 6:00 pm Eastern Time things seemed back to normal with Google search, someone apparently getting wind that some intentionally harmful and malicious behavior was engaged in by someone somewhere.

It is great to know that settlement has been achieved, and incredibly newsworthy to learn that the victorious party was “pleased with the outcome.” But really, sometimes I do stumble across rather interesting press releases that are newsworthy. Unfortunately, I just don’t have the time to write about everything I would like to. So I thought I might start a News & Notes column that collects some interesting news items that could be of interest, but which probably don’t warrant detailed treatment or analysis. With that in mind… here goes…

As so many run to condemn patent trolls and would like to compromise the integrity and strength of all patent rights to combat what they perceive as bad actors, I wonder whether patent trolls are really a drag on the high-tech industry. Are patent trolls really costing the industry, or is the industry making much ado about nothing? One theory holds that the tech industry is treating the patent troll phenomenon as nothing more than a nuisance, and a nuisance that is not worth doing anything about. I have for a long time stated that there are obvious strategies that could be employed, but they are ignored in favor of doing nothing. But earlier today I heard an interesting twist. What if they simply don’t want to do anything and they view the patent troll matter as simply a cost of doing business?

The Federal Trade Commission approved a settlement with Intel Corp. that resolves charges the company illegally stifled competition in the market for computer chips. Intel has agreed to provisions that will open the door to renewed competition and prevent Intel from suppressing competition in the future. Under this agreement Intel must modify its intellectual property agreements with AMD, Nvidia, and Via so that those companies have more freedom to consider mergers or joint ventures with other companies, without the threat of being sued by Intel for patent infringement.

The complaint seeks $3.8 billion in damages at a minimum, but no event less than a fair and full reasonable royalty, but also seeks tripled damages as a result of willful infringement, which would bring the total to $11.4 billion at a minimum. While willful infringement is quite hard to prove, if the facts actually are what is alleged it would seem as if the case is exceptional, which could lead to triple damages and attorneys fees as well. So when you add that all together and add pre-judgment and post-judgment interest, the total amount on the line could easily exceed $15 billion. And before you write this off as a patent troll trying to hold up a true innovator, which some of the uninformed in the popular press are doing already, read the rest of the article and take a look at the complaint. If the facts alleged even remotely resemble reality this could turn out to be an epic battle to which we will all want front row seats!

After first “threatening,” then being “silent” for over three years, the patentee in Aspex Eyewear was barred by the defense of equitable estoppel from getting any relief for patent infringement. What’s even worse, after the initial “threat” of infringement the patentee in Aspex Eyewear created this ticking estoppel time bomb by failing to mention (in follow up exchanges) the two patents for which suit was filed, while mentioning three other patents which were not involved in the suit that was filed.

There is more than meets the eye to Nokia selecting the Western District of Wisconsin. According to a study done by Stanford Law Professor Mark Lemley, the average patent litigation is resolved in .56 years, just over 6 months, in the Western District of Wisconsin, which ranks first in terms of time to resolution for patent infringement actions. The Western District of Wisconsin also ranks first in terms of average time to trial, with the average being .67 years, or just 9 months to trial in patent infringement actions. Also, 7.4% of cases proceed to trial, which ranks third.

In a 52 page opinion Judge Means found the case an exceptional case for purposes of awarding attorneys fees under 35 USC 285, found that Rule 11 sanctions were appropriate and fined the attorneys involved and their law firms. The complete lack of investigation by the patent owner, the continued pursuit of infringement claims even after the patent owner’s deposition testimony admitted there was no infringement and persistent frivolous defenses painted this patent troll into a corner. On top of that, Judge Means determined that the attorneys for the patent owner misrepresented facts to the Western District of Pennsylvania in order to get a transfer to the Northern District of Texas. I wonder if this decision was handed down on April Fools Day for a reason? Nevertheless, watch out patent world if Rule 11 starts to grow teeth!