It’s been a slow couple of weeks in tech-law news, so here’s some great analysis by Patently-O on a recent software patent case.
In addition to the cellphone opinion we already covered, on June 25th, the Supreme Court decided the Aereo case in favor of the major broadcasters.
We’ve been a little tied up, but our friends at the Entertainment Law Update did a quick podcast discussing the opinion. It’s some of the best analysis of the opinion we’ve seen. Hopefully we’ll be able to chime in with a few thoughts soon.
The opinions are in the hotly anticipated Akamai case, where the Court rejected the Federal Circuit’s expanded induced infringement doctrine, and in the less anticipated Nautilus case regarding certainty in patent claims. We’ve linked to some solid analysis by the folks at Patently-O, above.
Comments Off Posted in: Links on June 3, 2014
I believe the opinion is the first to award fees under a new standard that the Supreme Court handed down in April. That case was not unusual in that it told the Federal Circuit that the test it was using, here to determine whether fees should be awarded, was too restrictive (a common theme in Supreme Court patent opinions).
This case is important because it has a lot of the features that people most associate with so-called patent trolls: settlement offers from plaintiff well-below the cost of litigation, limited or absent pre-suit diligence, weak infringement claims, and weak patents. This case is less important because those cases make up a relatively small percentage of patent litigation. Further, the conduct that the plaintiff engaged in was arguably independently sanctionable, even without the need of 35 U.S.C. 285 to shift fees.
Notably, nothing in this opinion reach patent trolls who send demand letters, but never file a case. If anything, this opinion will encourage trolls to send more demand letters to companies, but avoid reaching a court room.
Patently-O is reporting that patent reform has been taken off the agenda for the Senate judiciary committee due to a lack of consensus regarding the competing proposals. Because of the impending mid-term elections, it is unlikely that this matter will come up again before the 2015 Congress is sworn in.
There were two major competing proposals for patent reform this term: one that concentrated on fee shifting, and a second that would have, among other things, raised the pleading standard in patent cases – requiring more proof from the plaintiff before a suit could be filed.
“Accordingly, the court orders Righthaven to show cause, in writing, no later than two weeks from the date of this order, why it should not be sanctioned for this flagrant misrepresentation to the court.”
A Las Vegas judge has ordered Righthaven to show cause as to why it should not be sanctioned for failing to disclose Stevens Media as an interested third party in its cases, and for misrepresenting the ownership right it had over the copyrights in question.
This is very bad news for Righthaven. Very bad news.
Comments Off Posted in: Links on June 14, 2011
Today, Apple filed a motion to intervene under FRCP 24 in the Lodsys patent suits which have been threaten/filed against seven iOS developers who refused to pay licensing fees for Lodsys’ patent no.’s 7,222,078 and 7,620,565.
Over the past several weeks, Lodsys has been criticized in the tech media for claiming that the developers are required to obtain licenses from Lodsys for utilizing in-app purchasing technologies. This claim was widely covered by the tech media because the seven developers at issue were, for the most part, very small players in the appdev world, and because Apple already licenses this technology for iOS. Lodsys, on the other hand, believes that licenses must be obtained from both Apple and the developers. On June 1, Lodsys sued the developers after Apple sent a letter to Lodsys asking them to play nice.
In case you haven’t already heard…
Yesterday, the Supreme Court issued an opinion in the Microsoft v. i4i case which has been one of the most closely watched cases on the Supreme Court’s docket during this term. The result was a unanimous 8-0 victory (Justice Roberts recused himself, because he owns Microsoft stock) for i4i. This means that the burden a challenger must meet to successfully defend an allegation of patent infringement under § 282 (on grounds that the patent is invalid) will remain the same: the Court affirmed the “clear and convincing evidence” standard, which the Federal Circuit has used since 1982, rather than the lower “preponderance of the evidence” (in plain English: “more likely invalid than not”) standard Microsoft argued for — and Microsoft will still be on the hook for that ~$300M verdict they owe.
Patently-O has an excellent post describing the ruling. There is also a strong
likelihood we will talk about the opinion during this week’s podcast as well.
After some speculation about how Lodsys would respond to Apple’s letter about the alleged infringement, Lodsys filed suit against some of the developers.
Lodsys also disputed Apple’s legal arguments. We’ll try to find a complaint.
This does not bode well for Righthaven.
Comments Off Posted in: Links on May 20, 2011