Ray Niro is one of the most well-known patent litigators in the country, and the attorney who was famously dubbed “a patent troll” some 14 years ago, marking the first time the term was used. See The Man They Call the Patent Troll. The label “patent troll” doesn’t really fit Niro, if you ask me, because he hs been extraordinarily successful at proving that large corporations have infringed valid patents, sometimes on fundamentally important innovations. In fact, Niro has been a champion for independent inventors and small businesses who have created some of the most revolutionary inventions. WiFi is an example.
Over the past few years, I have gotten to know Ray…he has written several op-ed articles for IPWatchdog.com…and about once a year we catch up in an ‘on the record’ interview. I spoke with Niro at length on June 25, 2014. The complete transcript of my interview with him is available at A Conversation with Patent Defense Litigator Ray Niro.
What prompted this interview was seeing an announcement that he and his firm are now offering flat fee defense representation in patent litigation matters. Ray Niro defending a patent infringement case? I have to admit I didn’t realize he did defense work, so I wanted to talk to him about this new business model. We discuss this at length during the first segment of our conversation.
While you can read the full 8,000 word interview with Niro at IPWatchdog.com, what follows are some of the most interesting excerpts from our discussion.
Niro on the Obama Administration and Alice:
QUINN: Given that the Obama Administration is already out in front anti-NPE, anti-patent troll, and seems to be taking the Google philosophy which is who their advisors are, it seems to me foolish to think the Patent Office is going to moderate [the Alice] decision and limit it narrowly.
NIRO: Right. The Administration has become a shill for Google — you even have a Google person running the Patent Office. So you have a situation where any number of patents, tens of thousands of patents, are going to be affected by Alice and also by the Limelight decision on split infringement.
Niro on Judges saying practitioners should just write better patent claims:
QUINN: — How a claim with tangible items recited can be an abstract idea is beyond me.
NIRO: Well, it boggles my mind when these judges say if you’d written the claims better or if your client had written the claims better, you wouldn’t have this problem. And I’m tempted to say, ‘you know, Your Honor, with all the respect that I can give you, did you ever write a claim? Did you ever sit with an inventor and try to define a new invention?’ And I’ll bet you the answer is no. In hindsight, everything could be done differently and better. But what they do is they change the rules of the game and then they say well you could have fixed it. I mean that’s like saying in a baseball game, ‘well, you know what, I don’t like the outcome. I think I’m only giving you one strike instead of three. And we’ll play only seven innings, not nine.’ I mean, come on. You play the game under one set of rules. You don’t change them and then change the result as a consequence of that change.
Niro on the defeat of the latest patent reform efforts and fee-shifting in particular:
QUINN: — But what are your thoughts on current developments? Let’s start with the defeat of patent reform….
NIRO: Well, I’m happy that the fee shifting provision was challenged; it was the thing that, I think, broke the back of the reformers. Fee shifting is a game changer. And the reason it’s a game changer is it is aimed at eliminating the little guy. Which it will do. I mean think about life this way. Taking Apple as an example. It has $150 billion in cash. Invested at 5%, that’s what, $7.5 billion a year or something like that? And I’ve done the math so I may be off here. But it’s about $20 million a day that they earn in interest. Now, if they’re hit with a $10 million award of fees in a case that goes south, it’s noise, it’s not important. I mean it’s important, but it’s not gonna break the bank. It’s a half a day’s interest, right? But if you’re an individual or a small company, $10 million runs you out of business. You’re gone. So it’s not fair to say, ‘oh, well, the fee shifting applies to everyone.’ It may apply to everyone, but its consequences are most devastating to the little guy. It’s the reason that we have the American rule, everybody’s entitled to their day in court whether they’re big, small, rich or poor. And the problem is the special interests are targeting the poor and the small. And they’re systematically going to be eliminated. So I think there was enough pushback, and I’m not an expert in this because I don’t have a pipeline to what goes on in the Senate, but I think there was enough pushback on that provision that the bill got tabled. They couldn’t get a consensus. But you’re right, it’s coming back. And what the special interests want in the name of patent reform, what they really want to do, is eliminate the little guy.
Tags: fee-shifting, patent, Patent Litigation, patents, Ray Niro
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