The 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,
Does the Patent System Legitimize Trolls?
Chicago-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
Can Massive Troll Costs Prompt Meaningful Patent Reform?
Last week, I wrote about the findings in an article from Boston University analyzing some excellent and thought-provoking data from RPX and the Coalition for Patent Fairness. I also looked at takeaways for retailers. While the data identifies some interesting trends, the most valuable role of the article is acting as a wake up call
Trolls Cost Society $29 Billion – With a “B”- in 2011
The scholars of Boston University have provided another thought-provoking analysis of the costs of patent troll litigation. The article is backed by some excellent and thought-provoking data from RPX and the Coalition for Patent Fairness. For context, this is what the article says about the state of patent troll litigation:
- There were 5,842 patent troll
SHIELD Act: A Step Towards Patent Troll Litigation Reform?
Meaningful patent troll reform may finally be on the horizon. Last year retailers across the country had high hopes for patent reform. Unfortunately, the version of the America Invents Act that was signed into law by President Obama in September 2011 offered little or no help in stopping or even significantly slowing patent trolls. But
How the AIA is Changing Patent Rights for Retailers, Part II – Challenges and Validity Issues
Before the enactment of the American Invents Act (“AIA”), I identified four key provisions of the new law that will impact retailers. My colleague Daniel Farris provided some additional depth into the effects of the AIA on retailers, particularly with respect to the patent prosecution process and creation of patent rights – the first in
Actual Patent Reform: Addressing the Patent Troll Problem
Andy 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
Retailer Patent Litigation News: Arbitration, Patent Trolls and the ITC
I 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
How the AIA is Changing Patent Rights for Retailers
Before the enactment of the American Invents Act (“AIA”), I identified four key provisions of the new law that will impact retailers. I have asked my colleague Daniel Farris to provide details regarding what retailers need to know about the rest of the AIA. Daniel is a part of my retail patent litigation team with a particular focus on internet and computer technologies.
The following is the first in a three part series providing greater depth and analysis of the new provisions of the AIA. This post focuses on patent prosecution and the changes in the way patent rights are created by the AIA.
First-To-File System
Perhaps the most notable change made to the U.S. patent system by the AIA was the change from the first-to-invent to the first-to-file system. The switch brings the U.S. system more in line with the way the rest of the world’s patent systems work. Unlike most of the rest of the terms of the AIA, the changes made to 35 U.S.C. § 102(a) will not go into effect until March 13, 2013.
The impact of the first-to-file system has been widely debated. While it creates greater uniformity amongst the major patent systems of the world, some speculate that the quality and completeness of applications and claim language will suffer as inventors race to the Patent Office to file first. One reality of the AIA will be increased pressure on inventors to file applications earlier in the development process, much closer to conception and before commercial use or public reduction to practice. This pressure to file, as well as pressure to publicly disclose the invention near conception, will likely be greater at corporations with large patent portfolios and substantial research and development budgets, particularly given the amendments that allow assignees to file on behalf of inventors and the limitations on prior art. Some worry that the result of all of this pressure may be to create an even more overburdened Patent Office, which will be forced to deal with less specific patents, making for murkier patent claims. While the first-to-file system creates clarity with regard to priority date, and eliminates some uncertainty surrounding “conception” of patentable subject matter, that clarity may come at the cost of quality in patent applications and ultimately patent claims. The fear for retailers is that the murkier claims that may result give patent trolls another series of broad claims with fuzzy boundaries that we saw coming out of the Patent Office in the 1990’s in the internet space. They increase uncertainty and cost of patent troll litigation. The Patent Office had resolved many of these cases, but first-to-file could bring them back.
Continue Reading How the AIA is Changing Patent Rights for Retailers
Retailers Face Increasing Patent Troll Exposure Despite Positive Patent Litigation Trends
PWC 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