Four Top Patent Stories This Week
The most patent-friendly Federal Circuit judges, IV's patent sell-off, and the Samsung-Ericsson global 5G battle
|Joe Mullin||Jan 15|
If you like this post, consider subscribing to the newsletter and getting future posts emailed to you. I’ll be writing regular newsletters about patent lawsuits and patent politics that will go out Tuesday mornings.
I’ll also have occasional roundups of patent stories that interested me, like this post. Those will come out later in the week. Next Tuesday’s newsletter will start digging in to the new patent cases filed in 2021.
Courts in China and the U.S. are fighting over who should have the authority to decide a worldwide 5G patent battle between Ericsson and Samsung, and each company has apparently hired a former Chief Judge of the Federal Circuit—that is, the top patent judge in the U.S.—to make its case. (IP Watchdog)
Lawsuits have been filed in the Wuhan Intermediate People’s Court of China, the International Trade Commission (ITC) in Washington D.C., and federal court in Marshall, Texas.
Former Chief Judge Randall Rader is working for Samsung, and told the East Texas court that letting the Wuhan legal action move forward would be just fine. Rader, who has spent several years working in China since leaving the bench, filed a declaration saying so on Jan. 1:
In recent years, China has become a world center for IP dispute resolution… China also features competent intermediate courts and a “Federal Circuit-style” central appeal court for all IP disputes in the IP Division of the Supreme People’s Court.
Ericsson, meanwhile, has former Chief Judge Paul Michel, who filed his own brief on Jan. 7, saying there are “significant reasons to be concerned with a single, relatively unknown court in Wuhan divesting this Court—as well as every other non-Chinese court—of… authority.” This week, E.D. Texas Judge Rodney Gilstrap decided both suits can move ahead in parallel.
Intellectual Ventures, the huge Seattle-based patent troll, has licensed 8,400 U.S. patents to defensive aggregator RPX, in a deal that suggests IV is winding down its operations. (IAM Media)
RPX’s CEO says the deal’s value is in the “low nine figures.” It means that RPX members, which include a lot of big companies, now can’t be sued over these patents.
Intellectual Ventures produces a lot of press material saying it’s all about supporting inventors and invention. But make no mistake, its main business was always threatening other companies with its massive hoard of patents. IV partnered with relentless patent litigants like Leigh Rothschild, whose non-practicing entities have filed hundreds of lawsuits, and profiled him as a great guy who’s just stuck in “invention mode.”
Appellants in patent cases won outright at the Federal Circuit only 12% of the time last year, with 9% getting mixed results, and 79% being denied any relief. (Law360)
On district court appeals, when patent owners were appellants (that is, the party asking for the appeal), they won only 10% of cases and lost outright 77% of the time, with 13% of cases showing mixed results.
When patent challengers asked for an appeal they fared a little better, winning 17% of the time and losing 56% of the time, with 27% of cases being mixed results.
So challengers do a little better than patent owners, but also: it’s better to not be an appellant! The party that won its case in district court tends to prevail on appeal.
These statistics come courtesy of Perkins Coie partner Dan Bagatell, who also creates a “patent friendliness index” (PFI) for each judge. In 2020, the most patent-friendly judges were Judge Pauline Newman (89), Judge Kathleen O’Malley (79) and Judge Kimberly Moore (79). The lowest PFI judges were Judge Alan Lourie (48), Judge Todd Hughes (52) and Chief Judge Sharon Prost (54).
In all, the Federal Circuit considered 430 patent cases, of which 37 percent were appeals of inter partes reviews (IPR) from the Patent Trial and Appeal Board.
The Federal Circuit knocked out more than 80 percent of software patents last year, when those patents were challenged last year under the Supreme Court’s Alice precedent. (IP Watchdog)
Many software patents challenged under Alice rules are the type of “do it on a computer” abstractions that I strongly dislike. The good news is that, for the most part, when judges actually hear the cases, Alice works. In 22 of the 27 cases that applied the Alice test, the patent was ruled ineligible. Three patents survived, one survived partially, and one was remanded to district court. I’ve bookmarked this excellent list of cases created by Theodore Rand, who is a 3L at UNH. Rand also wrote up brief descriptions of each case in a two part article.
More to read:
Speaking of the success of the Alice framework, the Federal Circuit just this week dismantled a software patent belonging to iLife, which said that its 1999 patent on a body-mounted fall detection system should entitle it to royalties on the Nintendo Wii. iLife won $10.1 million from a jury, but its patent was invalidated post-trial. (Patently-O)
I wrote earlier this week about Minerva v. Hologic, the Supreme Court’s upcoming case about an inventor’s right to challenge her own patent, which has big implications for inventive employees that go on to found startups. The case law dates to a 1924 case involving the inventor of Formica. (Letters Patent)
Check out Matthew Lane’s op-ed explaining how a recent Federal Circuit decision could jack up drug prices by nullifying the “skinny label” approval process that generics rely on. Lane, the director of the Coalition Against Patent Abuse, says if the ruling isn’t reconsidered, Congress will have to intervene. (Bloomberg Law)
The “widespread chaos” reflected in Samsung and Ericsson’s global venue fight relates to a U.K. ruling from last August, writes CCIA’s Josh Landau. That ruling allowed U.K. courts to set rates worldwide in fights over standard-essential patents. Landau predicted fights over jurisdiction, and companies seeking “anti-anti-anti-suit injunctions.” Four months later, the predictions came true. (Patent Progress)
That’s it! Have a great weekend.
Photo: Howard T. Markey National Courts Building, by AgnosticPreachersKid, CC BY-SA 3.0