Patently-O Bits and Bytes No. 96

  • Upcoming Event: ACI's 3rd Annual Paragraph IV Disputes on April 27-28, 2009 in New York City (Downtown Marriott). http://www.americanconference.com/ParagraphIV.htm . This is a good event because it is well attended by both the innovators (brands) and the generics. On the wednesday following the class, several speakers will walk through a brand-generic settlement agreement and work on mechanisms to avoid FTC & antitrust problems.  
  • PCT Search Offices: The PTO is warning PCT applicants to make sure that the selected International Search Authority (ISA) is certified for your particular type of claims. One problem, the EPO is not ready to handle business method claims. [Notice]
  • Court Report: 2,875 patent lawsuits were terminated in the year ending Sept 30, 2008. Of those, only 3.8% (109) reached trial. Although 3.8% appears low, patent cases reach trial more often than many other claims brought in Federal Court. The same statistic for Copyright and Trademark cases shows 1.3% and 1.7% reaching trial respectively. During the past year, only six patent cases were filed in the Court of Federal Claims alleging infringement by the US Government. Read the Report.

14 thoughts on “Patently-O Bits and Bytes No. 96

  1. If only six patent cases reached the Court of Federal Claims in a year, how are infringement claims against the Government being resolved? By negotiation? Through an administrative claim for patent infringement (48 C.F.R. ยง 227.7004)? By the alternative dispute resolution mechanisms the Court of Claims uses? Or do claimants just give up?

    Does anybody track this? Cases that were actually decided by the Court of Claims leave a public record, but none of the other paths do.

    I’ve been looking hard for information in this area, but haven’t been able to find much other than anecdotes. I did find someone who’s had an infringement claim pending for a decade, and had a conversation with a rather bitter inventor.

    Reply
  2. “Which is why we need better enforcement of Rule 11 sanctions against trolls.”

    Why just so-called “trolls,” Alan? Why not all plaintiffs?

    Reply
  3. “Jay Kesan’s paper which shows that patent “trolls” are significantly LESS likely to take a case to trial”

    No kidding, Ray.

    Reply
  4. “During the past year, only six patent cases were filed in the Court of Federal Claims alleging infringement by the US Government.”

    Where is that in the report? I looked, but couldn’t find that number. Thanks.

    Reply
  5. WRT the EPO and business methods, it actually is less a matter of not being ready to search them, than of not wanting to touch them with the proverbial 10-foot pole.

    Most business method PCT applications sent to the EPO as ISA have always been returned to sender unsearched under Rule 39 PCT, anyway. Ms. Brimelow’s avowed first priority is to reduce the EPO’s backlog, mostly by discouraging patent applicants (gone are the times when examiners were requested to be “applicant-friendly”). Since PCT searches present a particularly acute workload problem for the EPO, she’s merely making the long-standing policy of not searching business method claims more publicly known, in the hope that business method patent applicants go elsewhere (read: to the USPTO) for their international search reports and at least don’t clog the EPO’s administrative machinery.

    Reply
  6. Which is why we need better enforcement of Rule 11 sanctions against trolls.

    How many troll suits would be filed if the first response, even before an answer, was a motion for Rule 11 sanctions where the parties knew that the court would actually give the motion a fair hearing?

    One problem is that the troll will plead for discovery to prove what it was supposed to know before filing the suit and the judge will grant the request. As soon as that happens, the troll sends a discovery request that itself will cost more to respond to than the settlement offer. This needs to be stopped.

    Reply
  7. Of litigations, although Mark Lemley wrote in the first paragraph of the executive summary of his testimony to Congress that the number of patent litigations in 2007-2008 remained roughly constant, he wrote in the second paragraph of “the growth in patent lawsuits.” In the claim drafting business, one calls this an antecedent basis problem. Also, Lemley’s forthcoming publication in the UPenn Law Review concludes the majority of the most-litigated patents are owned by entities that do not produce any product. Combining Lemley, Kesan, and Bloom, one might infer that the majority of the “most litigated patents” are not litigated to judgment. There’s a lot of tricky wording here.

    Reply
  8. “Also, please go read Jay Kesan’s paper which shows that patent ‘trolls’ are significantly LESS likely to take a case to trial.”

    me, I’m not sure what you’re suggesting that this proves. If we assume, FOR THE SAKE OF ARGUMENT, that “trolls” as a category are more likely to assert their patents for the primary goal of extracting settlements that are less than the cost of litigation, then of course they are less likely to take a case to trial. Getting to judgment only means increased likelihood of a finding of invalidity, or a damaging claim construction, etc. If I’m asserting a weak patent, the last thing I want to do is to go to trial. However, a defendant can know this and still decide that the rational thing to do is to settle the case.

    Reply
  9. 3.8% – count me unimpressed.

    Also, please go read Jay Kesan’s paper which shows that patent “trolls” are significantly LESS likely to take a case to trial.

    Reply
  10. “2,875 patent lawsuits were terminated in the year ending Sept 30, 2008. Of those, only 3.8% (109) reached trial.”

    OK, but in 6’s real world, those other 2,856 sure felt like going to trial.

    Reply
  11. Splash one more app! U for the S an tha C to the 103.

    Now accepting pats on the back for a job well done :)

    Reply
  12. I saw that there was one comment on this already, and I was pretty sure I knew what it was going to say. Sure ’nuff.

    Reply
  13. “the EPO is not ready to handle business method claims.”

    the USPTO isn’t either :-)

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>