Here is the ‘policy question’ from my 2009 patent law exam:
Essay 3 (15 points) < ?xml:namespace prefix ="" o />
Congressman I. N. Venter has proposed an amendment to the Patent Act that would create a special right known as a “pioneering patent.” According to the proposal, pioneering patents would be awarded for inventions that are both the product of genius and that dramatically alter the technology landscape. Examples might include the airplane and the polymerase chain reaction (PCR). The pioneering patent would require greater evidence of nonobviousness, but the applicant would be allowed to pursue broader claims that might not otherwise satisfy the enablement and written description requirements of Section 112. What are the pros and cons of this proposal? Would a better approach be to extend the patent term a number of additional years for inventions determined to be pioneering? (I.e., longer patents instead of broader patents).
I wonder if given the new statute requiring separate lawsuits against infringers whether a class action might be still be possible. Assuming the patent valid, and an adequate representative, that might be the only recourse available to the patentee. The adequate representative part is the problem, of course; it seems to be the problem the State is addressing here.
Also, if a patentee class action were possible, the state might pursue a class action against the patentee on behalf of its citizens.
The State can certainly file for reexamination. I wonder if they have standing to request a DJ action on behalf of accused citizens to have the patent declared invalid in court.But these are the lawful procedures the State must follow, in my view. The district court is right to restrain unlawful state interference with patent law. I
Ned the only thing they restrained were things the state themselves promised not to do at the outset.
Read again (slowly if needed) the words in bold and then try again.
Doesn’t the following provide an easy work-around to avoid reading on the claim:”a dedicated computer means in proximity to said housing and dedicated only to the operation of said display system”Proximity? Only? God, am I missing something here if your the alleged infringer?
It makes no sense that a device such as this could be deemed patentable over the reams of earlier “non-dedicated” devices that included the recited functionality, among others. That’s an example of per se obviousness if there ever was one.I don’t see any “serious consequences” of infringing this claim. I’ve infringed it myself and will continue to do so, without a second thought. Perhaps there are other claims with meaningful limitations? If so, those claims should be pointed out by Farney in its letters. Otherwise, it would appear that (1) Farney’s lawyers are asserting claims that they know are j*nk or (2) Farney’s lawyers are imcompetent.I’m shocked this is coming out of Texas.
Same old B$ – software FAIL
A comment like “it would appear that (1) Farney’s lawyers are asserting claims that they know are j*nk or (2) Farney’s lawyers are imcompetent.” remains while a mere post highlighting such a comment is expunged?Really?
a mere post highlighting such a comment is expunged? Really?Gosh, what does it mean?
It means that the underlying offensive posts are (implicitly) being given an ‘OK’ nod.C’est La Vie
Here’s the phrase that pays:”Farney Daniels had no intention of suing all, most, or many of these targeted businesses…. In the debt collection arena, misrepresentations of legal consequences have been held to violate deceptive trade practices laws.” Very interesting and colorable theory. Also, the issue is against the law firm acting, in part, as a debt collector, not the patentee or the law firm in its representation of the patentee. Is there proof to prove the requisite intent?
West Coast, I think they would sue if a class action were permissible. That is what one does, effectively, if one sues a manufacturer for contributory infringement where his millions of customers are direct infringers.I see nothing wrong in suing a contributory infringer and naming as John Does his million customers. After all, one has to prove direct infringement and the damages are measured by the direct infringers damages.
Excellent Law Review article recommending using defendant class actions.link to uclalawreview.org?…Matthew K. K. Sumida, DEFENDANT CLASS ACTIONS AND PATENT INFRINGEMENT LITIGATION
A number of points:1) Patent enforcement through the courts is not akin to debt collection. Patent rights can be enforced ONLY through the courts.2) Your quote misses the part about the statement being an assertion by the State. An assertion that itself seems to lack evidence. Thus, your assertion of ‘colorable,’ then, seems faulty (don’t try to cash the check on that phrase that pays).3) Patent infringement is a strict liability transgression. Not sure what proof of intent you are looking for. Are you advocating that people need to have proof of intent in enforcing their rights in order to even state that they have rights that can be enforced if need be?
anon,The issue does not involve patent law. It involves state collections law by a debt collector. As a former debt collections attorney who is now a patent attorney, I was considered a debt collector working on behalf of my creditor-client and had to work within debt collections statutes.If you read the AG’s letter, it addresses the demand letters made by the firm on behalf of NPEs. Its position is that the firm has no intent to sue. According to the letter, the firm “has exhibited a pattern and practice within Nebraska of deceptively alleging patent infringement and subsequent litigation.” According to the AG, the demand letters are seen by the AG as “baseless harassment” of Nebraska consumers and businesses.Put it this way, the AG would not have (and could not have) taken its own action (i.e, writing its own demand letter) had the firm filed the lawsuit without sending the demand letter.
“It involves state collections law by a debt collector.’No. It does not. The debt collector argument is merely an analogy.I understand the position stated by the AG – it is a mere assertion. What basis do they have in reality that ‘intent’ is missing? What basis is there that you cannot inform someone of how patent rights are enforced in this country?I understand how the AG views the letters. The problem is that the AG is wrong.You cannot force someone to file a lawsuit first in order to tell someone that they have a right to file a lawsuit in order to enforce patent rights.
One question here is whether the state has any power to control the way that a patent holder goes about collecting royalties. That is a straw-question and the answer is clearly yes. For instance, a patentee may not (without court order) commit unlawful trespass or physical assault even when in pursuit of license fees owed on a valid patent. So, given that the state can interfere with some enforcement activities, the question is whether there is some line that goes too far?
I would say the line of “I hereby demand that you immediately cease and desist the initiation of ANY AND ALL new patent infringement enforcement efforts within the State of Nebraska pending the outcome of this office’s investigation. easily goes too far.
He needs time to conduct a possibly criminal investigation anon, what’s wrong with him making such a demand? He isn’t threatening them with retribution if they do. He’s just demanding.
I agree with 6 that the state generally has legal power to stop patent demand letters that violate state law so long as that law at least allows a notice of infringement be sent. However, Anon is also correct that the attorney general’s order here is difficult to swallow because it is represents a preemptive restriction on speech.
I am sure that there is case law under the state of NE CPA and UDTPA of which debt collection attorneys have raised the very First Amendment defenses which Dennis has mentioned. If not NE, I am confident there is such case law out there which draws the fine line between a debt collector’s right to collect versus a consumer’s and business’ right to be free from harassment.
BTW…the caption of any action by the AG would go along the lines of State of Nebraska (on behalf of its consumers and businesses) v. Farney Daniels.It would not be patentee v. alleged infringer.
We are not talking about the action by the AG – per se.We are talking about the content of what the AG said that impacts the patent arena.
We are not talking about the action by the AG – per se.I disagree. The AG is considering taking a potential action involving claims under the two state Acts.BTW…I meant to say that any action taken by the AG would NOT be captioned:State of Nebraska v. patentee
Then we are not talking about the same point wherein a State AG goes beyond his authority in a letter to a law firm related to patent enforcement matters.Clearly you are in some other case not involving patents but talking about some collections efforts. How you stumbled onto a patent blog is a bit of a mystery to me. Sorry to intrude into your other discussion.
“Then we are not talking about the same point wherein a State AG goes beyond his authority in a letter to a law firm related to patent enforcement matters.”Of course not. Nobody else cares like you do anon.
“We are not talking about the action by the AG – per se.”No see, everyone else is talking about that. You’re not. Which is why you’re always the one left out of the majority position. You always find some little subject to pick up on that nobody else cares one whit about, and then harp on that as if it is what everyone else is talking about.
the attorney general’s order here is difficult to swallow because it is represents a preemptive restriction on speech.Sure, but threatening to sue hundreds (thousands?) of people because they use a computer monitor to display some generically described information … no problem! After all, the USPTO granted the patent. These guys from Texas are just trying to prevent the “waste” of good IP.
Translation: patents are the second worst thing EVER. Actually attempting to enforce a patent (presumed valid by law) is the worst thing EVER.Malcolm, how do you live with yourself when you work in a field, creating work product that you detest so much?
“Actually attempting to enforce a patent (presumed valid by law) is the worst thing EVER.”Mmmmm, by a deceptive letter writing campaign? Sure.
And I should be clear, it looks like that is a felony in Nevada.
The “any and all” is beyond his authority and operating under color of authority has its implications – the AG is not free to go about making unlawful demands.That’s a rather important point in our society.
Perhaps under some needlessly broad interpretations. He was just talking about the letters and similar actions, not filing cases. Which he subsequently clarified.
“any and all” was not subsequently clarified, 6.Have you read the letter?
The clarification was not in the letter prorper. It was in the follow up reply. “Finally . . . the July 18 letter in no way affects Plaintiff’s rights to bring suit in this or any Court.” And had anyone bothered to ask them, I’m sure the AG would have clarified that they didn’t mean several other things as well. The AG is not being some imminently unreasonable chap here. He’s just trying to carry out a civil or possibly criminal investigation is all. Perhaps he went a little far in a sound byte that seems a bit broader than it should have been in the context of the letter, but that is easily sorted out. The part that might be somewhat less easily sorted out is the possible jail time.
6,You do realize that the quote your provide here is the court telling the AG that his demand of ‘any and all’ is void, right?Thanks for proving my point (yet again).
“With regard to the Supremacy clause and patent law’s preemption of state-law, the Attorney General argued that its consumer protection action does not impact the patent laws.Federal law does not preempt the state regulation of entrepreneurial letter writing campaigns. The Attorney General’s possible state law deceptive trade practices claims do not involve any legal application to the validity of the patent, to the scope of what is infringing, or to the public domain in any way.Finally . . . the July 18 letter in no way affects Plaintiff’s rights to bring suit in this or any Court.”^That appears to be D telling us what the AG argued. If I’m mistaken, then perhaps you guys should start posting the source material instead of an ambiguous synopsis.
People in state authority are not free to carry out their investigations by removing federal rights.You seem to have a difficult time understanding the abuse of power concept.
And you seem to have a difficult time understanding what the state AG was concerned about here and thus have a distorted view of what the entire issue (you know, the one raised by the AG) even is. But gl, perhaps one day it will dawn upon you. Or you’ll go to jail in a similarly criminal get up. Either way.
I would say that ‘debt collections’ and “royalties’ are appreciably different animals.
“One question here is whether the state has any power to control the way that a patent holder goes about collecting royalties. “The states have nearly infinite power. And I don’t see any federal statutes preempting, so I’m going to bet that they do, since they have power over just about everything else that isn’t directly regulated by the feds. States are Over Powered for sure.
“That is a straw-question and the answer is clearly yes.”lol a straw-question. I like it D and I’m going to use it.
“You cannot force someone to file a lawsuit first in order to tell someone that they have a right to file a lawsuit in order to enforce patent rights.”Nobody minds you doing that. They mind you threatening to do so when you have not intention of doing so where they know you have no intention of doing so because of your past behavior.
It is not a matter of “nobody minds you doing that,” 6.
You cannot force someone to file a lawsuit first in order to tell someone that they have a right to file a lawsuitSomeone? Some “one”?A rather extreme distortion of the facts at issue here appears to have taken place.
How so?
What basis do they have in reality that ‘intent’ is missing?My understanding is that at least part of the “basis” for “lack of intent” is that “in reality” Farney Daniels is incapable of sueing and taking to trial even a small fraction of the people throughout the country that Farney Daniels threatened.
“Patent rights can be enforced ONLY through the courts.”Looked to me like they were attempting to do so through the simple mailing of letters. “Are you advocating that people need to have proof of intent in enforcing their rights in order to even state that they have rights that can be enforced if need be?”I think he, like the AG, were simply saying that you cannot lie to someone in a threat to file a lawsuit and simultaneously have no intention of suing. That’s called deception.
You misunderstand what ‘enforce’ means then 6.I suggest you come up to speed before continuing the conversation.
Tell it to the AG anon. Tell it to the AG.
I think the court already did.
Well you think wrong. The letter writing campaign is no doubt on hold. The exact thing the AG wanted in the first place.
Still think that I think wrong, 6?
“The possible violations specified in this letter are serious and require your immediate and unconditional cooperation. Given the significant ramifications posed to Nebraska consumers and businesses by your potentially unlawful conduct, I hereby demand that you immediately cease and desist the initiation of any and all new patent infringement enforcement efforts within the State of Nebraska pending the outcome of this office’s investigation.”That might get their attention.
“Getting attention” by violating the law is not that smart. (Ab)using the power of one’s office to ‘send a message’ is considered a bullying tactic – and you cannot force someone NOT to be able to enforce their federal rights like that.Congrats 6, you picked the very sentence that got the AG in trouble.
And what law did he violate upon anon? And what “trouble” is he in? It appears from what D said that the court simply made sure that the state wasn’t going to do exactly what the state confirmed it wasn’t going to do from the outset.
#3 Same old B$ – software FAIL
Perhaps also amusing is that Activision.TV is currently getting their pants sued off by Activision – you know, the video game company that’s been around since 1979. For trademark infringement, because apparently they can invent a digital menu board but can’t think of a name that isn’t already being used by a multi-billion-dollar company.Here’s at least a partial docket (archived elsewhere from PACER, so even us cheapskate laypeople can see it):http://ia601009.us.archive.org…
I find this comment to be amusing.
1. A display system for generating an image on a display member and allowing for enhancing the image which is displayed thereon, said display system comprising:a) an outer housing;b) a display panel on said housing and being observable to a viewer; andc) a dedicated computer means in proximity to said housing and dedicated only to the operation of said display system, said computer means operating on the basis of a series of sequential programmed instructions at a predetermined time or on a real time basis, said computer means controlling the image presented on said display panel, said computer means capable of altering the manner in which a display is generated on the screen and capable of providing computer generated effects on a display on the display panel and thereby modify the image displayed on said display panel.Offered without comment. Very curious to hear John Storella’s or Andrew Duhey’s thoughtful opinion(s) about the validity of this claim. It was filed in 2001. I think they were alive then.
Stand-alone PC comes to mind.
This appears to cover the LED scrolling notice board that we had in my high school back in the 1980s
The etymology of the word monitor (as in, computer monitor) puts the 102 nature of a rejection far earlier.
I’m thinking 102/103, not Attorney General. This AG deserves to be put in his place.
This AG deserves to be put in his place.I think he should be given a medal for highlighting the obxnoxious behavior of these trolls and for zealously trying to protect the citizens of Nebraska from being preyed on by said trolls. Have these tough Texas cowboys already papered over their own state with their silly letters?
#2 Same old B$ – software FAIL
Advocating an awarding of a metal for violating rights available under federal law based on the philosophical belief that the rights are j*nk is appalling. Advocating the wanton infringement of a still-valid patent is reckless – whether or not you take a very Carroll stance of seeing ‘serious consequences’ or not. You close your eyes to the legal presumption of validity that alone color the action of enforcement as legitimate. You neglect that it is the client (and not the advocate) that decides whether to pursue enforcement. So even if the advocate thinks the claims are j*nk, he can but explain this to the client, outlining the likely success or failure, and then he must get out of the way. It makes me wonder whether you practice law, or whether you merely want to QQ.
Advocating an awarding of a metal for violating rights available under federal law based on the philosophical belief that the rights are j*nk is appalling.Exactly what is the “right available under Federal law” that you are referring to? The “right” to threaten hundreds of people for infringing a j*nk patent that should never have been granted?I violate those “rights” all the time. People should feel free to violate those “rights.”Throw those letters in the trash, people.it makes me wonder whether you practice lawI don’t care what you think. Why would anyone what you think about anything?You close your eyes to the legal presumption of validityTranslation: “Be afraid. Be very, very very ….. Zzzzzzzzzzzz”
Malcolm, what point are you trying to make with the vacuous post immediately above?You ask questions that I have already provided answers to, to re-engage in what is classic reckless behavior, and you spurn the law and what it means.How is any of that even close to a conversation?