The term “patent troll” conjures up all kinds of images and ideas, but what is a patent troll? Unfortunately, there is really no universally accepted definition of what a patent troll is, which has lead myself and others to recognize that, by and large, if you are being sued for patent infringement, it is your belief that you are being sued by a patent troll. Sadly, who is and who is not a patent troll is largely in the eye of the beholder.
Still, we are not without at least some recognized industry definition. For those who can look past the surface and do not feel that patent owners are evil simply because they own patents, the term “patent troll” is usually a term that is reserved for those who acquire patents from inventors or companies, perhaps through bankruptcy, auction or otherwise, and then turn around and sue giants of industry for patent infringement. In other words, patent trolls are those who simply acquire patents for the sole purpose of monetizing the patents through licensing regimes and ultimately litigation if a license cannot be obtained. These types of patent acquirers are typically well funded, they are not engaging in any commerce, so they do not fear a patent infringement counter-claim because they are not infringing (or, in fact, doing) anything.
The Department of Commerce recently had a ceremony at Langdon Education Campus in Washington, DC, commemorating the issuance of the 700,000th design patent (see main image to the left). The design patent, titled Hand-held learning apparatus, was issued to LeapFrog Enterprises, Inc. (NYSE: LF) on February 25, 2014, but the celebration ceremony was not held until March 26, 2014.
“Protecting and promoting our idea-driven economy is essential to keeping America open for business,” said U.S. Secretary of Commerce Penny Pritzker. “The USPTO plays a major role in serving our nation’s innovators by granting them the intellectual property rights they need to secure investment capital, build companies and bring their products and services to the global marketplace.”
The ceremony also included the launch of a new Intellectual Property (IP) Patch developed as a joint project between the USPTO, the Girl Scout Council of the Nation’s Capital, and the Intellectual Property Owners (IPO) Education Foundation.
Once upon a time, one of the ways you could separate the unsavory underbelly of the patent industry from the legitimate operators was to look at who was directing clients to get design patents. Design patents have always been easy to obtain…indeed, far easier to obtain than a utility patent. But design patent rights are exceptionally weak. Nevertheless, over the past decade, design patents have continued to grow in numbers, and have proved to be an effective part of patent strategy, in some cases. If you have not considered advising clients to seek design patents, you really should consider the benefits.
On March 31, 2014, the United States Supreme Court will hear oral arguments in a case that could determine the fate of software patents in the United States. Recently, IBM filed an amicus brief at the United States Supreme Court in the case of Alice Corporation Pty. Ltd. v. CLS Bank International. While many attorneys contributed to this brief, former Solicitor General of the United States Paul D. Clement is the Counsel of Record on behalf of IBM.
I think it is fair to say that the IBM brief can be summarized as follows: ‘The abstract idea doctrine is unworkable.’ Bravo! If the Supreme Court cannot define the term “abstract idea,” which they have never done, how can it be at all appropriate for the Court to apply the doctrine as if it has meaning? At least with respect to software, there is also no uniform application of the patent laws, which at least conceptually should raise concerns of disparate treatment of those similarly situated.
Something needs to be done to once and for all acknowledge that software is patent eligible. Even having to say that and hope it is what ultimately happens is truly saddening in the year 2014. Software is all around us and empowers practically everything, and according to a Government Accountability Office (GAO) report from August 2013, somewhere between 50% to 60% of all patent applications filed deal in some way with software. Software is the very backbone of innovation and the fact that we have to wonder whether it is patent eligible more than 46 years after the first software patent issued is really an indictment of the judicial system as it relates to patent law and jurisprudence.
On February 12, 2014, the Federal Circuit issued its decision in Solvay S.A. v. Honeywell International. In this case, Solvay S.A. appealed to the United States Court of Appeals for the Federal Circuit from a judgment of the United States District Court for the District of Delaware in favor of defendant Honeywell International. The district court held that asserted claim 1 of Solvay’s U.S. Patent No. 6,730,817 was invalid under pre-AIA 35 U.S.C. § 102(g)(2). The question at the heart of this appeal, as dictated by the specific factual scenario, was whether an invention conceived by a foreign inventor and reduced to practice in the United States qualifies as prior art under § 102(g)(2). This was the operative question because engineers working at the Russian Scientific Center for Applied Chemistry (“RSCAC”) first conceived the invention, which was reduced to practice in this country by Honeywell personnel pursuant to the RSCAC’s instructions, and they did not abandon, suppress, or conceal it.
At trial, Honeywell argued that the invention was conceived by Russian inventors outside the United States and reduced to practice in the United States by Honeywell personnel following the Russian inventors’ instructions before the ’817 patent’s priority date. As a result, Honeywell argued, the invention qualifies as §102(g)(2) prior art. A jury ultimately determined that, as required by § 102(g)(2), the Russian Scientific Center for Applied Chemistry did disclose the invention of claim 1 in the 1994 Russian patent application, which means that they did not abandon, suppress, or conceal the invention. Based on the jury verdict, the district court entered judgment for Honeywell, finding asserted claim 1 invalid under § 102(g)(2).