Patent Law Practice Center

The Decline in Patent Contingency Litigation

There has been a steady decline in the number of contingency litigation law firms, attorneys, and even cases filed. This continues to greatly impact the intellectual property industry.

According to Paul Storm, a partner in Gardere’s Intellectual Property Practice, the decline in contingency representation over the last few years can be explained by weakened patents making success on the merits less likely. Even if the patent owner does prevail, what will they win? After a win at trial, the law of damages has made large damages less likely to achieve in the first place, and keep even if awarded. (more…)

AST acquires 70 patent assets in fixed-price, fixed-term buying program

AST, a provider of proactive patent risk mitigation solutions, recently announced the results from IP3 2017, a fixed-price, fixed-term, collaborative patent-buying program. Launched this past August, IP3 2017 gave sellers an easy way to access the secondary market by streamlining the process of selling patents with a fixed-price, rapid-response model. Through IP3 2017, patent sellers had the opportunity to offer their patents for purchase to AST’s full membership, which includes dozens of the world’s most successful companies across multiple industries.

Like the inaugural IP3, IP3 2017 attracted strong interest from both patent sellers and AST members. Participants in IP3 2017 included 15 operating companies including Google, IBM, Microsoft, Ford, Honda, and Cisco with nearly $2.5 million spent to acquire 70 active assets.

Unlike IP3 2016, which was open to AST and non-AST Members and sought patent submissions across all technologies, IP3 2017 was a narrower program and sought submissions limited to the following technologies: (1) Internet of Things, (2) Wireless, (3) Content Delivery, (4) Networking, and (5) Communications.

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U.S. Argues Patents are a Public Right in Oil States

In going through the Department of Justice brief in Oil States, you will find no fewer than seven different places where the government makes the argument that patents are a public right, and not private property as they are ordinarily considered. This is interesting because the patent statute itself refers to patents as having all the same attributes of personal property, and at various times the Supreme Court has themselves equated patents to real estate.

Notwithstanding, the Federal Government argues patents are a public right throughout its Oil States brief, as shown from the passages that follow:

DOJ Oil States brief at pg. 13

The justification for patents is not that an inventor has a natural right to preclude others from making or using his invention, but that patent protection will ultimately benefit the public by providing an incentive to innovate. Governmentally-conferred franchises designed to serve such purposes create “public rights,” whose scope and continuing effectiveness may be resolved by non-Article III tribunals.

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Jury finds Corel willfully infringed Microsoft Office patents

A jury from the Northern District of California recently awarded Microsoft Corporation a total of $278,000 in a patent infringement action against Corel Corporation and Corel, Inc. (collectively “Corel”). See Microsoft Corporation v. Corel Corporation et al (Case: 5:15-cv-05836-EJD). Microsoft had requested more than $1 million in damages for the infringement of patents related to Microsoft Office (i.e., the Microsoft Office patents).

Microsoft sued Corel in December 2015, asserting infringement of nine patents — 5 utility patents and four design patents. By the time the case was submitted to the jury on Friday, February 9, 2018, only six patents remained in the case…two utility patents and four design patents.

Microsoft argued that Corel willfully infringed those patents. The asserted Microsoft patents are directed to graphic user interfaces used in Microsoft products, such as Microsoft Office. Microsoft asserted that it has given its interfaces, including menus and toolbars, a distinctive look and feel, which Corel copied into the accused products, including WordPerfect X7. WordPerfect X7 even includes an option to use the product in the “Microsoft Word mode.” See Complaint para 3-5. Similarly, Quatro Pro X7 offers the option to use the product in the “Microsoft Excel mode.” See Complaint para. 6-8.

In the jury verdict form returned, the jury unanimously agreed that Corel had willfully infringed those patents. (more…)

Another patent reform advocate to retire from House of Representatives

Congressman Darrell Issa (R-CA), has announced that he will not seek re-election in 2018 and will retire from Congress. Issa, who currently chairs the House’s Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet, has been an outspoken advocate for the need for more patent reform.

Issa’s decision not to seek re-election means that the three most ardent Republican supporters of patent reform in the House will not return for the 116th Congress in January 2019. House Judiciary Chairman Bob Goodlatte (R-VA) announced his retirement in November 2017. Former House Judiciary Chairman and co-sponsor of the America Invents Act (AIA) Congressman Lamar Smith similarly announced his retirement in November 2017.

If Republicans hold on to a majority in the House, it seems likely that Congressman Doug Collins (R-GA) will take over as Chair of the House IP Subcommittee. Collins, an ally to inventors and creators, is currently Vice-Chair of the House IP Subcommittee.

While many patent owners and independent inventors will celebrate Issa’s decision to retire, his legacy on patent issues is a complicated one.

“As a patent owner himself, Chairman Issa understood the importance of a strong IP system,” said Todd Dickinson, former Director of the United States Patent and Trademark Office and current partner at Polsinelli.  “While some differed with him on his approach to specific reforms, his heart was always with the system, so losing someone who knew the patent system personally will be a loss.”

Whether Issa was a hero or villain on matters of patent reform will largely be in the eye of the beholder. Many large corporations — such as Google, Cisco and J.C. Penney — have continued to seek additional patent reform ever since the AIA was signed by President Obama in September 2011, and have found Issa to be a strong ally.

What is not open for debate, however, is Issa’s influence in a positive way on how the federal courts structurally handle and assign patent lawsuits. “He should specifically be remembered for initiating the legislation that ultimately lead to the judicial Patent Pilot Program, which has been a successful attempt to create focus and training among District Courts and their judges having a particular interest in patent cases,” Dickinson said.

Should the Democrats take the House of Representatives in the next election cycle probably either Congressman Jerrold Nadler (D-NY), who is the Ranking Member on the House Judiciary Committee, or perhaps Congresswoman Zoe Lofgren (D-CA), would become the new Chair of the House Judiciary Committee. Both Nadler and Lofgren have been supporters of patent reform efforts in the past. Congressman Hank Johnson (D-GA) is currently the Ranking Member on the Subcommittee on Courts, Intellectual Property and the Internet, and could perhaps ascend to Chair the House IP Subcommittee. Johnson has taken positions in the past favorable to patent owners, such as his Amendment that would have substantially changed the fee-shifting provisions of the Innovation Act.