Patent Law Practice Center

Crowd-Sourcing for Prior Art

A recent Wall Street Journal article takes a look at the latest application of crowd-sourcing, this time within the patent industry. As the patent wars rage on, tech companies are soliciting help from the public to crowd-source evidence of prior art. Such evidence is used in patent infringement litigation to invalidate the patents these tech companies are allegedly infringing. The article highlights Article One Partners LLC, a New York-based company hired by major tech-companies to conduct research or prior art in hopes of invalidating the underlying patent.

Here is an excerpt from the Wall Street Journal article entitled, Tech Firms Crowd-Source to Fight Suits, which can be read in full here.

Article One, a New York-based company founded 3½ years ago, opened its Silicon Valley office last August in Palo Alto and has benefited as patent suits have proliferated in the region. With tech companies chasing hot technologies like smartphones and social networking, rivals are increasingly looking to settle their differences in court. Article One says its largest concentration of clients—some 15%—are in Silicon Valley.

Overall, about three-quarters of Article One’s cases are related to high-tech. The site currently features studies seeking prior art on technologies ranging from virtual keyboards to digital payments. Clients pay about $25,000 a study, or they pay varying annual subscription fees. The amount includes the awards for the people who find the best research.

Barney Cassidy on Non-Practicing Entities

Barney J. Cassidy, General Counsel and Executive VP of Tessera, Inc. as well as PLI faculty member, recently had an op-ed article published on Politico.com. The article, entitled, “Shooting a patent straw man,” challenges the notion that patent trolls and their readiness to litigate is at the root behind the recent surge of patent portfolio growth among the major tech companies.

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Facebook Continues to Load Its Patent Arsenal

The patent wars are all the rage amongst tech companies these days. Not too long ago, Microsoft Corp. made news when announcing it purchased approximately 925 patents from AOL, Inc. for an estimated $1.1 billion dollars. The commentary regarding that purchase was equally focused on the impressive sale price for the amount of patents purchased as it was on the fact that tech companies are looking twice at their patent portfolios as litigation and licensing tools.

The latest development is that Facebook, who is currently in a patent infringement battle with Yahoo, recently purchased 650 of the AOL patents from Microsoft for an estimated $550 million dollars. This recent acquisition comes just one month after Facebook purchased 750 patents from IBM. (more…)

Twitter’s Innovator’s Patent Agreement: The Future or Foolish?

Tech companies’ battles over patent portfolios have become the new norm in patent litigation. Yahoo sued Facebook over the alleged infringement of 10 patents, Oracle and Google are battling over operating system patents, Apple and Samsung have patent litigation in 10 countries simultaneously, and Microsoft just purchased 800 patents from AOL for over $1.1 billion dollars. We have previously reported on the growing use of patents as more than just defensive tools. But last week, Twitter announced it would not participate in such litigation.

Twitter’s Innovator’s Patent Agreement proposes that if a patent is assigned to Twitter, Twitter promises it won’t use that patent to sue anyone, except for defensive purposes or unless the engineers grant permission to the company to do so. According to Twitter’s announcement,

The IPA is a new way to do patent assignment that keeps control in the hands of engineers and designers. It is a commitment from Twitter to our employees that patents can only be used for defensive purposes. We will not use the patents from employees’ inventions in offensive litigation without their permission. What’s more, this control flows with the patents, so if we sold them to others, they could only use them as the inventor intended.

This is a significant departure from the current state of affairs in the industry. Typically, engineers and designers sign an agreement with their company that irrevocably gives that company any patents filed related to the employee’s work. The company then has control over the patents and can use them however they want, which may include selling them to others who can also use them however they want. With the IPA, employees can be assured that their patents will be used only as a shield rather than as a weapon.

Twitter’s proposed patent litigation model has received support as well as criticism. Supporters applaud Twitter for actively promoting creativity and innovation via its promise to not actively pursue legal recourse. Such a business model also reduces the amount of money spent by the company for litigation. Critics, including frequent PLI speaker Mark Radcliffe, on the other hand, question whether Twitter made a wise decision considering they could end up needing to pursue patent infringement litigation in the future. By granting technology engineers with the right to veto a legal action, Twitter would essentially be granting the power to make legal decisions to non-lawyers. Meanwhile Twitter’s plan gets implemented, the patent wars will rage on in courts all over the world. Time will tell what impact Twitter’s stance will have on patent litigation.