Patently-O Bits & Bytes by Lawrence Higgins

Patent Jobs:

  • Steven Rinehart is looking to hire a former US Patent and Trademark Office (USPTO) examiner/patent agent for patent prosecution work. Any patent agents hired can work from home anywhere in the US. (Salt Lake City, Utah) [Link]
  • O'Brien Jones, PLLC is seeking full-time registered patent attorneys and patent agents with 2-5 years relevant experience. (Tysons Corner, Va) [Link]
  • The Silicon Valley office of Alston & Bird has an immediate opening for a Patent Prosecution associate with at least 4 years' experience in the preparation and prosecution. (EE, computer engineering or computer science is required) [Link]
  • Nike seeks a Utility Patent Specialist who will research innovation developments for utility patent opportunities. [Link]

Upcoming Events:

  • American Conference Institute is hosting the FDA Boot Camp in Boston, MA on September 17-18, 2013. ACI's FDA Boot Camp has been designed to give products or patent litigators, as well as patent prosecutors, industry in-house counsel, and life sciences investment and securities experts, a strong working knowledge of core FDA competencies. Register with discount code "PTO200".  [Link]
  • The Licensing Executives Society (LES) will hold their annual meeting September 22-25, in Philadelphia. The annual meeting is themed "IP Matters in Every Deal" the meeting is a must-attend IP, licensing and business development event. Patently-O readers save $100 with code PO13.  [Link] 
  • American Conference Institute is hosting the Paragraph IV Disputes Master Symposium in Chicago, IL on October 3-4, 2013.  At this symposium, there will be in-depth discussions and practical take aways that will prepare you for this new era of extreme Hatch-Waxman litigation. Critical sessions will address all facets of Paragraph IV litigation from pre-litigation concerns to the commencement of suit through final adjudication. Register with discount code "PTO200".  [Link]
  • The USPTO's 18th Annual Independent Inventor Conference will be held October 11-12. For two days, independent inventors and small business owners will have an unparalleled opportunity to learn, network, and jumpstart their creative endeavors. Experts and senior officials from the USPTO will present valuable information on patents, trademarks, and other intellectual property (IP) matters while successful business owners and inventors will relate their inspiring personal experiences in bringing their dreams to market.  [Link]
  • The EPO will hold their Patent Information Conference on October 22-24, in Bologna, Italy.  The EPO Patent Information Conference 2013 will be organized in co-operation with the Directorate General for the Fight against Counterfeiting – Italian Patent and Trademark Office.  [Link]
  • AIPLA annual meeting will take place October 24-26, in Washington, DC. The Annual Meeting offers  opportunities to connect with others in the IP industry from around the world to learn during sessions such as: Navigating Through the PTAB and Federal Courts After the AIA; Trademark Fair Use; What You Need to Know About the Hague Agreement; Evolving IP Rights in China, and IP Issues Facing Government R&D Contractors.  [Link]
  • American Conference Institute is hosting the FDA Boot Camp Devices Edition in Chicago, IL on November 5-6, 2013.  Many products liability lawyers, patent counsel, business and investment experts, medical and regulatory affairs professionals, and those involved in pricing and reimbursement — despite their tenure in working with FDA-regulated devices — are not well-versed in the essentials of the approval process and the regulatory hurdles of the post-approval period. ACI's Third Annual FDA Boot Camp – Devices Edition has been designed to give you a strong working knowledge of core FDA competencies. Register with discount code "PTO200".  [Link]
  • IQPC is hosting its Patent Infringement Litigation Summit on December 9th and 10th in San Francisco. The Summit will bring together in-house counsel from major companies, law firm attorneys and representatives from other vendors to facilitate strategy and information sharing among these key stakeholders. [Link]
  • The Chisum Patent Academy is now accepting registrations for their 2014 Advanced Patent Law seminars, to be held
    • March 5-7, 2014: Cincinnati, Ohio
    • August 13-15, 2014: Seattle , Washington
    • August 18-20, 2014: Seattle, Washington

    The Academy applies for 18 CLE credits in each state where seminars are held. [Link]

Contact Lawrence.Higgins@patentlyo.com with leads for future Bits and Bytes.

26 thoughts on “Patently-O Bits & Bytes by Lawrence Higgins

    1. He is only ready if he has learned his lesson from beign rebuked by the judge.[added] And to your reply 6, That’s rather an important point – twice in discussions of the route the AG took you failed to show an understanding of exactly WHY the AG MUST take a different route. When you are able to understand such things, you will be beginning to understand the law.

      1. Did he have time still to appeal that?And if by “learne d his less on” you mean le arned that he’ll likely need to take a different r oute to st op the beha vior he’s looking to sto p, sure thing, I’m su re he did.

  1. “Jury Orders Newegg To Pay $2.3 Million To TQP Development”Of course they did, because “fighting” the trolls is the answer, right Eugene?

  2. Gotta love that jury verdict in favor of Spangenberg. Newegg refused to settle not because they believed the patent invalid and not infringed, but because Spangenberg is a troll.That is what the story says. If true, I think Spangenberg is owed increased damages.

    1. Also, that expert witness blowhard who claims to have invented public key encryption seems to have exaggerating quite a bit. He was humiliated in court.

      1. If you’re talking about Whitfield Diffie, it’s hard to call it a clear exaggeration. He is commonly credited with having co-invented public key cryptography (Diffie-Hellman). The argument at that trial was that someone else working for the U.K. government invented it several years before Diffie in the late 1960s, but the U.K government kept that work secret until the 1990s. It is foolhardy for anyone to boast that they “invented” any complex and ambiguously defined area of technology, and Diffie’s boasting was totally unnecessary to establish that he was more qualified than the other side’s expert on the topic of cryptography.NewEgg doesn’t go to trial because “Spangenberg is a troll.” They refuse to settle because they’re relatively tiny compared to the other companies named as co-defendants with them in those e-tailer suits (such as Amazon). The amount of damages a patentee can get out of NewEgg is small, even in E.D.Texas, so NewEgg’s overall risk footprint is manageable. (They didn’t even put on a damages rebuttal witness in this case, and only got pinched for $2.3M, probably less than they spent in attorneys’ fees.) That puts NewEgg in the ideal position of being able to take every single case to the mat, to “send a message” to the trolls, so to speak. In this case, they’ll just put up the 10% for the bond and appeal the judgment to the Federal Circuit, where they’ve already prevailed once this year in overturning an E.D. Tex. jury verdict based on invalidity. Very little downside to NewEgg, it seems.It seems that their overall strategy is to set themselves up as the “fly in the ointment” of these troll suits, by refusing to settle and defending themselves far out of proportion to their potential liability. In the long term, given how puny they are relative to their co-defendants, and their refusal to settle, their apparent hope is that trolls will make the rational economic conclusion that NewEgg just isn’t worth naming in the next round of suits. Apparently that has worked in recent months, although one can question the utility of a strategy that depends both on the company’s low revenue, and a high outlay for attorneys’ fees.

      2. that expert witness blowhard who claims to have invented public key encryption seems to have exaggerating quite a bit. He was humiliated in court.How was he “humiliated”? Is there a transcript or a detailed summary of the cross-examination? I think Diffie’s (and his collaborators) roles in the development of so-called “public key encryption” is fairly well-established. Were similar encryption methods independently invented by others (e.g., working for the government)? I’ve seen that suggested. I’m still not sure why it matters so much, except to suggest that a lot of people were aware of the problem and had figured out the solution well before this Jones “genius” filed his “improved modem” patent.

      3. Ned, can you direct to a good link to the transcript or a blog which describes the “humiliation”? I didn’t pick up on that from the other reporting that I read but maybe you’re aware of some other source.Anyone else know of any more detailed reporting on that final day of trial (compared to, e.g., Mullin)? Thanks in advance!

    2. It’s a classic example of a case where the patent doesn’t describe how SSL works nor does it describe a new technique in 1989. The described approach had many, many times been considered and immediately rejected because it isn’t very good.No one with skill in the field could expect the patent in question to be valid, infringed, or relevant. This is one of the sorts of cases that have led the programming profession to be against issuing software patents by about 10 to 1.Of course, the jury doesn’t know any of that. There’s no practical way to find an unbiased jury that does understand even basic issues about computers. And that, of course, is another reason that software patents are a terrible idea.About Whitfield Diffie, I have to agree with Ned. He was humiliated.I saw Diffie at a debate at MIT around 1998 where he discussed the practicalities of encryption key security and recovery with a representative from the FBI’s computer security team. The MIT audience started leaning Diffie’s way and finished almost unanimously on his side because he justified his position well.I spent the whole debate imagining what a non-MIT audience was likely to think. The FBI guy would have had the near total approval of the general public over Mr. Diffie. He spoke well and calmly, ignored technical issues in favor of emotional appeals, cultivated an air of authority, and wore a good suit that fit him well. Diffie, on the other hand, was unkempt, an uneven but entertaining speaker, and depended on facts and reason to make his case.When I read the widespread celebration and approval of Diffie’s testimony among techies, I could see exactly how a jury with no experience in the field would ignore him.The techies and especially cryptographers know that Diffie’s testimony was true and right, that he is a genius, and that his original invention of the actual processes used to keep internet communications secret is undisputed even though a few incomplete aspects were secretly explored earlier at secret spy agencies. I’m not making an argument for that proposition or slinging rhetoric; I merely observe you can ask any dozen actual experts and they’ll all agree. We also know the opposing witnesses are charlatans and liars. There is no way for the general public to know that.So I guess Newegg is headed to the CAFC as usual. Let’s hope they draw a reasonable and unbiased panel.

      1. Owen, I don’t know about the particulars of the patent or the technology. I was intrigued by the storyline that Newegg fought because it fights trolls, not because it had a genuine belief in the patent’s invalidity.I have been in similar situations where I have asked our technical folks about a patent and whether we should take a license. I asked them to assume the patent was valid. What have I gotten back in response — at times — is an assurance that the patent was invalid because the technique was old; this by folks who had never even read the file history, but who had only read the abstract or the spec. But we both know such anecdotal evidence is not real evidence. And, there may be some little detail there that is not in the prior art that is the basis for allowance. That is why competent patent attorneys give opinions. Opinions are not crowdsourced.Moreover, if the folks are telling you not to take a license because the technique is old, they are also saying something else as well.

        1. I was intrigued by the storyline that Newegg fought because it fights trolls, not because it had a genuine belief in the patent’s invalidity.Where did you come across that “storyline”?

        2. I was intrigued by the storyline that Newegg fought because it fights trolls, not because it had a genuine belief in the patent’s invalidity.Where did you see this “storyline”, Ned? I’ve not heard anyone suggest that Newegg didn’t genuinely believe in the patent’s invalidity.

        3. Ned, you can’t take an article headline like that and take it as gospel. When you’re talking about software patents in the encryption or security space that didn’t come from RSA or some other famous source, it’s almost impossible to not have “a genuine belief in the patent’s invalidity.” There are patented innovations in this space, to be sure, but they typically aren’t the patents being asserted by trolls. The only patents that trolls can get their hands on are those covering approaches that failed both commercially and technologically, assuming they were implemented at all. This gives the troll a built-in trial story; the technology failed because it was just “too far ahead of its time,” and its relevance appreciated by the dirty rotten infringer years later.Whitfield Diffie is not the kind of guy who’d play well in front of an E.D. Tex. jury, frankly. He looks and behaves like a Richard Stallman-like hippie. A brilliant guy, no doubt, but not a great trial witness. NewEgg has already overturned one adverse E.D. Tex. jury verdict this year based on invalidity, and it will not be difficult to imagine this one will get overturned also. My bets, when you have guys as famous as Diffie and Rivest testifying at trial that the patent is invalid, the Federal Circuit will take notice, and will use the case to vindicate the patent system’s reputation by invalidating the patent.

        4. What have I gotten back in response — at times — is an assurance that the patent was invalid because the technique was old; this by folks who had never even read the file history, but who had only read the abstract or the spec.Ned — you raised a very good point. Namely, most non-patent types (and even some patent professionals) don’t understand what is covered by the claims of an invention. I’ve seen this with examiners as well. They’ll read a specification, abstract or even claims and say to themselves, “I’ve seen this before” without realizing that the claims include, e.g., a 4-word phrase that represents the “twist” to the known invention. Thus, while most of the specification/abstract/claims describe what is known, there is a small part that differentiates the claimed invention from the prior art.In the context of patent journalism (i.e., articles about patents), I have very little faith that the writer of the article (or the so-called technical expert quoted by the writer) actually knows what is covered by the patent.

      2. Interesting comment, Owen. I’m curious about Diffie’s “humiliation”. Was there some reporting on that last day of trial that missed? Because from what I read it didn’t sound like he was humiliated. Irritated and bemused, possibly. But I only read the briefest write-up.

      3. “There’s no practical way to find an unbiased jury that does understand even basic issues about computers.”Or judge, which is why we have software patents to begin with.

        1. Well, we know the dangers of bias and corrupt dealing in a specialist court like the CAFC are extreme. Narrow subject matter jurisdiction almost guarantees myopic reasoning and bad decisions.With one well-known exception, district courts usually produce reasonably unbiased judges in patent cases. A geographically based broad and varied jurisdiction doesn’t lead to a systematic self-identification with the patent bar or applicant interests like you see from the CAFC.

          1. Owen,It appears that you can learn a little form history – check out the period of time between 1952 and 1982.Just because the end results of a unified patent law are against your philosophical leanings, does not mean that such results are “myopic.”

    3. Newegg refused to settle not because they believed the patent invalid and not infringed, but because Spangenberg is a troll. That is what the story says.With all due respect, Ned, I see nothing in “the story” (presumably the linked story, above) that supports your statement here.

    4. I can assure you that Newegg believed the patent to be invalid and not infringed, that’s why they didn’t settle. Only in the EDTX could this result have happened.When this result is flipped at the CAFC, will you call for Spangenberg to pay Newegg’s litigation fees?

  3. anon, I think yes. We were sued once upon a time by a patent attorney who had done just that. He worked for a number of different companies in Silicon Valley, saw which way technology was heading based on the applications he was drafting, then drafted and filed a patent application athwart the direction of progress. Of course, the specification was filled with non public client information. But, his prediction was correct.

    Now, what is wrong with that from a “patent law” perspective?

  4. “Nike seeks a Utility Patent Specialist who will research innovation developments for utility patent opportunities”

    What in the he ck does this mean? You look through issued patents for opportunities to patent out ahead of the newly minted patentee?

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