Patent Litigation Trends - It Pays to be a Patent Troll

A recent PriceWaterhouseCoopers study suggests that nonpracticing entities (NPE), more commonly referred to as patent trolls, are thriving.

The largest award went to Dr. Bruce Saffran who, in 2008, was awarded nearly $432 million in damages (and, not reported in the study, another $69 million in pre-judgment interest awarded by the judge after the trial).  A jury found that Boston Scientific Corporation infringed on his drug-eluting stent system patent.

Rambus, a company that at one time actually sold computer memory but now proudly bills itself as “one of the world’s premier technology licensing companies,” was recently awarded $397 million plus future royalties in a final judgment against Hynix Semiconductor.  Not to be stopped, Rambus is now pursuing damages against NVIDIA, a maker of computer graphics chips.  A favorable decision by the U.S. International Trade Commission (ITC) found three of five asserted Rambus patents to be valid, enforceable, and infringed by NVIDIA.

Some other highlights of the study include:

•     Damages awards for NPEs have averaged more than double those for practicing entities since 1995.

damages-npe-vs-pe

•     Annual median damages award has ranged from $2.2 to $10.6 million, with no discernible trend since 1995.

median-damages-1995-to-2008

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$2.322 billion to USPTO for 2011

* Up 23 percent from 2010’s expected budget.

* Proposal to increase statutory patent fees by 15 percent.

* USPTO hoping to reduce average of 34.6 months to approve or reject a patent application.

links: FY2010 President’s Budget Request, USPTO Budget, Plans, and Reports.

(via U.S. patent office gets boost in Obama budget | Reuters)

iPad - The New Apple Tablet! Liveblog Event

http://live.gizmodo.com/

PTO Rescinds Controversial Patent Rules

The claim and continuation rules that were supposed to go into effect on November 1, 2007 are dying a slow death… thankfully.

via Law.com - PTO Rescinds Controversial Patent Rules.

PDF Creators Compatible with EFS-Web

EFS-Web is the United States Patent and Trademark Office’s (USPTO’s) web-based patent application and document submission system.  I have been filing all my documents electronically since the USPTO started beta testing electronic filing (and I am shocked to see that some law firms still do not use electronic filing).

All documents filed via EFS-Web must be pdfs with embedded fonts, or image-based.  This requires a pdf writer.  According to the USPTO, versions of commercial PDF Writer software that work with EFS-Web include: More »

Patent Rejections at Nearly 60%

After consistently rejecting applications at a rate of about 35% since 1975, the Patent Office — faced with a growing backlog — underwent a convulsive shift around 2004 and now turns down well over half. In the quarter that ended June 30, it denied more than 59%.

via jsonline.com “Patent rejections soar as pressure on agency rises“.

How to digitize your life (or at least have a paperless office)

Over the last several years many people have asked me how to remove paper from their lives.  Here are some tips on how to empty your file cabinets and get rid of that pile of mail.

Scanner + OCR = pdf

Get a duplex document scanner with at least a 25 sheet feeder and good OCR software.  I use a Fujitsu Scansnap that is a few years old and it does a nice job.  For OCR I use ABBYY FineReader that was bundled with the scanner.  Acceptable entry-level scanners start at around $300, but it is worth spending more for the next level up.  The more expensive models give you greater scanning speed with less misfeeds and paper jams.  This is especially important if you want to scan different types and thicknesses of paper at the same time, such as bills, credit card receipts, and business cards.  If you really want to go all out, buy a networked scanner.

If it doesn’t come bundled with your scanner, buy Adobe Acrobat Standard or Pro (unfortunately, bloated and expensive).  More »

Patenting Methods of Determining the Value of Patents?

So, will we see lawsuits for infringement, not of the patents that are sold, but for determining how much to sell them for?

7,493,262 Method for valuing intellectual property

7,386,460 System and method for developing and implementing intellectual property marketing

7,346,545 Method and system for payment of intellectual property royalties by interposed sponsor on behalf of consumer over a telecommunications network

7,346,518 System and method for determining the marketability of intellectual property assets

7,315,836 Method for obtaining and allocating investment income based on the capitalization of intellectual property

7,292,994 System and method for establishing value and financing of intellectual property

7,272,572 Method and system for facilitating the transfer of intellectual property

7,269,566 Method for obtaining and allocating investment income based on the capitalization of intellectual property

7,228,288 Method of repeatedly securitizing intellectual property assets and facilitating investments therein

7,216,100 Method for obtaining and allocating investment income based on the capitalization of intellectual property

7,188,069 Method for valuing intellectual property

6,959,280 Method of protecting against a change in value of intellectual property, and product providing such protection

6,330,547 Method and apparatus for establishing and enhancing the creditworthiness of intellectual property

6,018,714 Method of protecting against a change in value of intellectual property, and product providing such protection

via Ip Prospective “Proof of a Burgeoning Market: Patenting IP Valuation Methods | IP P®OSPE©TIVE“; 12:01 Tuesday “Patenting the Business of Patents“.

Nvidia Scores Win Against Rambus in Patent Fight

Rambus replied that the game is hardly over.

via eWeek.com Nvidia Scores Win Against Rambus in Patent Fight.

May 26, 1981: Programmer-Attorney Wins First U.S. Software Patent

May 26, 1981: Programmer-Attorney Wins First U.S. Software Patent

via May 26, 1981: Programmer-Attorney Wins First U.S. Software Patent | This Day In Tech | Wired.com.

Link: U.S. Patent No. 4,270,182.

Richard Feynman - Ode on a Flower

Richard Feynman was one of the great physicists of the 20th century, and an incredible teacher.  He won the Nobel Prize in Physics for his contributions to the development of quantum electrodynamics.

I learned about Feynman in the 1980s when I was studying physics, and spent many a night watching films of his famous lectures at Caltech.  To this day, he has inspired me to persevere in my love for science and math, while appreciating that science and math do not derogate the arts and humanities.  To the contrary, math and science only add to the beauty, mystery, and appreciation of the world - art and science are complementary.

This short video says it all: YouTube - Richard Feynman - Ode on a Flower.

TOP 10 Litigation Wins of 2008

TOP 10 Litigation Wins of 2008

via TOP 10 Litigation Wins of 2008.

Law.com - Federal Circuit Sides With PTO in Dispute Over Rules

The U.S. Court of Appeals for the Federal Circuit ruled Friday in a split decision that the Patent and Trademark Office did not overstep its authority in adopting a set of new rules that some intellectual property lawyers say fundamentally alter patent practice and threaten innovation.

via Law.com - Federal Circuit Sides With PTO in Dispute Over Rules.

Divisional Applications, Europe, and the Paris Convention

EPC Rule 36:

(1) The applicant may file a divisional application relating to any pending earlier European patent application.

(2) A divisional application shall be in the language of the proceedings for the earlier application and shall be filed with the European Patent Office in Munich, The Hague or Berlin.

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Bilski cited, again, in BPAI rejection

Method claim 1 does not recite any machine or apparatus or call for transforming an article into a different state or thing. A domain name is simply a series of characters representing the address of a resource, such as a server, on the World Wide Web.

Links: Ex parte Atkin.

USPTO in 2012: Over 600,000 applications filed, and backlog of 1.4 million

Patent Applications Filed 1995 to 2012

Source: USPTO 2007-2012 Strategic Plan

The United States Patent and Trademark Office predicts that patent application filings will continue to increase to over 600,000 a year in 2012.  Furthermore, according to their own estimates, there may be a backlog of around 1.4 million patents:

It is an unchallenged reality that the rate at which patent applications are being filed has increased beyond the rate at which the USPTO is presently able to examine them, resulting in an increasing backlog (cases that have not been examined). It is possible that this backlog could approach about 1.4 million by 2012—unless something is done.

Link: USPTO 2007-2012 Strategic Plan.

Utility and Design Applications May Be Continuations of Each Other

A utility application can claim the benefit of a design application, and a design application can claim the benefit of a utility application:

Where the conditions of 35 U.S.C. 120 are met, a design application may be considered a continuing application of an earlier utility application. Conversely, this also applies to a utility application relying on the benefit of the filing date of an earlier filed design application. See In re Chu, 66 F.3d 292, 36 USPQ2d 1089 (Fed. Cir. 1995); In re Salmon, 705 F.2d 1579, 217 USPQ 981 (Fed. Cir. 1983). In addition, a design application may claim benefit from an earlier filed PCT application under 35 U.S.C. 120 if the U.S. was designated in the PCT application.

via MPEP 1504.20 Benefit Under - 1500 Design Patents.

Can I show my “patent pending” product or idea without an NDA?

Q: We filed a patent application (provisional or non-provisional) and have “patent pending” status.  Can we show our product to others without having them sign an NDA (non-disclosure agreement)?

A: Yes… more or less.  If the most important thing to you is building your company, and you have a well written patent application and thorough IP strategy, go show your product and get the word out, but keep the following in mind:

An NDA helps fulfill the immediate need or desire to stop others from copying your invention.  However, it is a bit impractical and reduces your ability to sell your product if you have to ask everyone to sign an NDA.  So, while an NDA would provide some level of “protection” not yet afforded to you by the patent application, you can proceed without one.  Keep in mind, that without a granted patent or NDA, someone can still copy what you have disclosed to them and you would have few if any legal arguments to stop them.

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PTO will apply its “broadest reasonable” claim interpretation

The legal point to consider from this case is that the PTO will apply its “broadest reasonable” claim interpretation during its §101 analysis. Here, the BPAI panel found that the broadest reasonable interpretation of IBM’s claim does not necessarily “require computer or machine implementation” and thus that the claim fails the “tied to a particular machine” prong of Bilski machine-transformation test.

via Patent Law Blog (Patently-O): BPAI: PTO Should Apply Broadest Reasonable Claim Interpretation to Section 101 Analysis.

Roundup: In re Bilski

PatentlyO:

Fish and Richardson:

Groklaw:

Electronic Frontier Foundation:

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