Patent Law Practice Center

A First Step Toward Solving the Patent Troll Problem

Years hence we may look back to Tuesday, January 14, 2014 as the turning point in the battle against abusive patent litigation. On January 14, New York Attorney General Eric Schneiderman announced the settlement with one of the more notorious patent trolls. See NY Attorney General Settles Investigation into Patent Troll. This operator, MPHJ Technologies, is the owner of patents dealing with scanning technology and has claimed that thousands of small businesses infringe its patents. MPHJ has been one of the entities used by those in the anti-patent community as an example of a patent system run amok. At the end of the day, at least for those who carefully pay attention and look at the facts, this is not a story about the patent system in any way, shape or form. It is a story about a bully that engaged in reprehensible pre-litigation scare tactics.

Unfortunately, in his announcement of the settlement, Attorney General Schneiderman went too far in condemning legal patent activities in the name of defining what is a patent troll. Schneiderman said:

Patent trolls – sometimes referred to as “patent assertion entities” – are not innovators. They buy patents owned by others and then try to turn a profit by aggressively pursuing businesses they claim infringe the acquired patents. In virtually all cases, the businesses targeted by patent trolls did not copy other companies’ technology. Instead, patent trolls argue that that independently developed technology or business processes used by the target – and in some cases, everyday business activities – require a license linked to the troll’s patents.

The problem with this definition is that there is nothing illegal or immoral about acquiring patents, there is nothing illegal or immoral about enforcing patents and seeking out licensing agreements, and independent creation has never been a defense to patent infringement. Thus, it is unfortunate that legitimate patent activities that are clearly legal were at least to some extent compared with the deceitful activities of MPHJ.

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A New Doctrine of Equivalents? CAFC Defines “Use” Under §271

Gene Quinn, of IPWatchdog and Practice Center Contributor, passed along this article on the recent Federal Circuit decision Centillion Data Systems, LLC v. Qwest Communications International, Inc..  In the article, Quinn discusses the opinion and questions whether it will “breathe new life into the doctrine of equivalents” given the Court’s determination of the meaning of “use” of a system as a matter of law under 35 U.S.C. 271 (a).

On January 20, 2011 the United States Court of Appeals for the Federal Circuit issued a precedential opinion in Centillion Data Systems, LLC v. Qwest Communications International, Inc., in which the district court was affirmed in part and reversed in part. Of particular note here is the determination of the meaning of “use” as that term is used in 35 U.S.C. 271(a). The Federal Circuit, per Judge Moore (with Judges Lourie and Linn joining) acknowledged that the Court has never directly addressed the issue of infringement for “use” of a system claim that includes elements in the possession of more than one actor, thereby making the specific issue a question of first impression. (more…)