Vermont has passed a bill, which the Governor is expected to sign into law (H.299) called “Bad Faith Assertions of Patent Infringements” – hat tip to Eric Goldman for identifying the law. Instead of defining bad faith assertions, it provides factors that may identify bad faith assertions, including: Failing to identifying the patent(s)-at-issue; Failing to identify… Continue Reading
Category Archives: Patent Trolls
Subscribe to Patent Trolls RSS FeedRetail is Troll’s Hardest Hit Non-Tech Sector
Posted in Industry Issues, Patent TrollsSanta Clara Law Professor Colleen Chien recently wrote an interesting article on Patently-O discussing some key patent troll statistics in light of President Obama’s troll comments and the new SHIELD Act. Here are some of the key takeaways for retailers: In 2012, trolls filed 62% of patent litigations – 2,921 of 4,701 suits. Retailers are… Continue Reading
Will the SHIELD Act Have the Impact Retailers Expect?
Posted in Industry Issues, Patent TrollsRetailers have been generally excited about the loser pays system the proposed SHIELD Act would create for trolls. But a recent iam blog discussing comments from Patent Freedom suggests the SHIELD Act may not have the impact many retailers expect. According to Patent Freedom: 75% of trolls are asserting only patents originally assigned to them… Continue Reading
Inventors Get Small Portion of Publicly Traded Patent Troll Revenues
Posted in Industry Issues, Patent TrollsBoston University School of Law Professors James Bessen and Michael Meurer wrote an insightful article at Patently-O looking at the ten publicly listed patent trolls from 2005 until 2010, including many well known to retailers such as Acacia. Here are some of their findings: Licensing revenues for the six year period was $68B. The mean… Continue Reading
The SHIELD Act is Back Promising a Loser Pays System for Retailers
Posted in Industry Issues, Patent TrollsThe SHIELD Act – Saving High-Tech Innovators from Egregious Legal Disputes — is back. The SHIELD Act was originally introduced in the last Congress and would have awarded costs, including reasonable attorney’s fees, to a prevailing defendant when, upon completion of the case, a Court held that the patentholder’s case had not had a reasonable likelihood… Continue Reading
President Obama Addresses the Patent Troll “Problem”
Posted in Industry Issues, Patent TrollsWith a hat tip to Dennis Crouch at Patently-O, President Obama recently addressed the patent troll “problem” as part of a Google Fireside Hangout. The patent troll question and the President’s answer start shortly after the 16:00 mark of the following video: President Obama’s answer is straightforward and focused upon addressing the problem. Here are… Continue Reading
Retailers Require a Market-Based Solution to the Patent Troll Problem
Posted in Industry Issues, Patent TrollsProfessor Colleen Chien from Santa Clara Law spoke at the December 10 DOJ/FTC troll conference. As a follow up to the conference, she offered IAM Magazine her thoughts attempting to put our current troll situation, which she acknowledges is “disruptive” for business, with two other historical periods of increased troll activity involving railroads and sewing… Continue Reading
FTC and DOJ Turn a Spotlight on Patent Trolls
Posted in Industry Issues, Legal Seminars, Patent TrollsThe Federal Trade Commission and the Department of Justice are teaming up to look at the patent troll problem. Initially, the FTC and the DOJ are seeking public comment regarding the impact of trolls (or “patent assertion entities”). You can send public comments to ATR.LPS-PAEPublicComments@usdoj.gov until March 10, 2013. In addition to seeking public comments, the FTC… Continue Reading
Does the Patent System Legitimize Trolls?
Posted in Industry Issues, Patent TrollsChicago-Kent Professor David Schwartz and University of Illinois Jay Kesan have written a thought-provoking article looking at what empirical data tells us about trolls (click here for their Patently-O summary of the article). Blog readers will remember that Schwartz has recently written an interesting article analyzing the empirical characteristics of trolls and their counsel —… Continue Reading
Federal Circuit Clears Way to Sever & Transfer Patent Cases
Posted in Patent Litigation Tips, Patent TrollsThe Federal Circuit recently issued an important decision that should pave the way for transferring cases to retailers’ home districts. In In re EMC Corp., Docket No. 100, several co-defendants whose motions to sever and transfer their cases in a pre-AIA multi-defendant suit appeals to the Federal Circuit on a writ of mandamus. Looking only… Continue Reading
Patent Trolls a “Modern Day Mafia?”
Posted in Patent TrollsIn a recent Washington Post article, Vivek Wadhwa, a Stanford University fellow, identifies patent trolls as “modern day mafia.” Wadhwa focuses on software patents, the trolls’ favorite type of patent and the scourge of every retailer. Wadhwa looks briefly at the argument to eliminate software patents, advanced by tech giant Brad Feld, and then quickly… Continue Reading
An Empirical Study of Patent Trolls
Posted in Patent TrollsVillanova law professor Michael Risch is publishing a new paper based upon his two-year study of patent trolls (focused upon the ten most litigious trolls). Here are some of the highlights: Only 8% of asserted patents included business method claims. Software and business method patents combined only made up 31% of asserted patents. Those percentages… Continue Reading
Another Call for Patent Reform
Posted in Patent TrollsThe Wall Street Journal continues its focus on the patent troll problem with a provocative article by columnist Holly Finn: A Patently Obvious Problem. Finn notes the amazing growth the U.S. has seen in issued patents – 70,000 U.S. patents issued in 1977 compared to almost 250,000 in 2011. Finn provides a succinct description of… Continue Reading
Patent Trolls: Know Them When You See Them
Posted in Patent Litigation Tips, Patent TrollsIn the lead up to a recent Stratford Publications CLE program that I gave regarding troll-proofing your business and defense strategies for troll cases, I received an interesting and earnest question about what a patent troll was. The question was unique in that it carefully laid out arguments on both sides and was not fueled… Continue Reading
American Invents Act: The More Things Change, The More They Stay The Same
Posted in Patent Litigation Tips, Patent TrollsBNA has an interesting article by James Pistorino of Perkins Coie and Susan Crane looking at the impact of the America Invents Act (“AIA”) on district court patent litigation filings. The article looks at 2011 data, only one quarter of which is after enactment of the AIA. But even a quarter’s data tells a clear… Continue Reading
Actual Patent Reform: Addressing the Patent Troll Problem
Posted in Industry Issues, Patent TrollsAndy Kessler, a former hedge fund manager and the author of “Eat People”, has a compelling opinion piece in the Wall Street Journal (subscription required) arguing for further patent reform to reign in the damage patent tolls are doing to the economy. As I have discussed many times, last year’s patent reform (the America Invents… Continue Reading
Retailer Patent Litigation News: Arbitration, Patent Trolls and the ITC
Posted in Industry Issues, Patent TrollsI have been holding a number of news stories and blog posts that will be valuable to retailers, but did not warrant a full blog post. So, what follows are links to those and some thoughts on why you will find them valuable: Federal Circuit Reaffirms Power of Arbitration Clauses. David Healey at PatentMath looks… Continue Reading
Federal Circuit Opens the Door to Misuse of Reissue Procedure by Trolls
Posted in Patent Litigation Tips, Patent TrollsMy colleague Daniel Farris and I co-wrote this post. Daniel is a part of my retail patent litigation team with strong technical experience related to internet and computer-based technologies. Thanks to the Federal Circuit’s recent In re Staats decision, a favored patent troll tactic has just been strengthened. Retailers are all too familiar with the… Continue Reading
Profiles of Contingent Fee Patent Troll Counsel (Part II)
Posted in Patent Litigation Tips, Patent TrollsThis is the second part of a two-part series about Professor David Schwartz’s (Chicago-Kent School of Law) draft article, Contingent Fee Patent Litigation. If you do not know Schwartz from his empirical study of claim construction reversal rates, you should read that article as well — Practice Makes Perfect: An Empirical Study of Claim Construction… Continue Reading
Profiles of Contingent Fee Patent Troll Counsel
Posted in Patent Litigation Tips, Patent TrollsProfessor David Schwartz of the Chicago-Kent School of Law has made a draft of his newest, article — Contingent Fee Patent Litigation — available for download. If you do not know Schwartz from his empirical study of claim construction reversal rates, you should read that article as well — Practice Makes Perfect: An Empirical Study… Continue Reading
Revolving Door in Patent Litigation: Alarming Trend or Just Business Reality?
Posted in Patent Litigation Tips, Patent TrollsThis morning the Wall Street Journal cast light on an increasing trend in patent troll defense work: When Lawyers Become ‘Trolls’ (subscription required). It is written by Ashby Jones, one of the Journal’s top legal reporters and a former author of the WSJ Law Blog. The article is worth a read by itself, but it is… Continue Reading
Multiple Defendant Cases Die Hard
Posted in Patent TrollsIn September, I wrote that the America Invents Act’s (“AIA”) main impact upon patent litigation would be the new joinder rule prohibiting suing multiple, unrelated defendants in a single case. In the two weeks between the Senate’s passage of the AIA and President Obama signing it into law, patent trolls flooded the federal courts with… Continue Reading
Patent Litigation Strategies for Retailers Based Upon the PWC Patent Litigation Study
Posted in Patent Litigation Tips, Patent TrollsI wrote last week about some key implications of PWC’s excellent 2011 patent litigation study. The study is so dense that it deserves more discussion. Here are several of the key takeaways from the study. Big Dollars for Trolls. Troll damages awards were nearly double those of practicing entities received by practicing entities. NPE’s Are… Continue Reading
Retailers Face Increasing Patent Troll Exposure Despite Positive Patent Litigation Trends
Posted in Industry Issues, Patent TrollsPWC just released its 2011 Patent Litigation Study — a must-read for any retailer regularly facing patent troll litigation. The study tells us somethings that we already: the number of patent suits is increasing and a disproportionate percentage of cases continue to be brought by patent trolls. The study also shows that the average patent… Continue Reading
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