Stanford and Samsung offer $130,000 in Prize Money for Articles on Patent Remedies

Last week, President Obama’s administration released its new CHALLENGE.GOV website. Today stanford law school announced the Samsung-Stanford Patent Prize — this year focusing on patent remedies. All Patently-O readers are eligible:

Call for Papers: Samsung-Stanford Patent Prize

Topic: Patent Remedies

Samsung Electronics and Stanford Law School are proud to co-sponsor the inaugural Samsung-Stanford Patent Prizes. We are seeking outstanding papers and paper proposals on the topic of patent remedies. We will award up to seven Prizes in the amount of $10,000 each to academics, lawyers, and other professionals in any field who submit the best papers or abstracts. In addition, we will award up to 12 Prizes in the amount of $5,000 each to full-time students in any field who submit the best papers or abstracts. The winners are expected to attend and participate in a conference on the subject of patent damages to be held at Stanford Law School on February 18, 2011. Travel expenses will not be separately reimbursed, but should be paid out of the prize money.

Applicants should submit a precis of their draft or proposed paper (not to exceed five pages) by email to Brian Love at Stanford Law School (blove@law.stanford.edu) no later than October 31, 2010. Winners will be notified by approximately November 15, 2010. To be eligible for the Prize, winners must submit a draft of their paper in advance of the conference, by February 1, 2011.

The purpose of this prize is to encourage new research; eligible papers must not have been published before December 31, 2010.

44 thoughts on “Stanford and Samsung offer $130,000 in Prize Money for Articles on Patent Remedies

  1. 42

    that individual members of the public can’t or won’t do for themselves

    contra

    The public isn’t the entity doing the granting. – Sure it is

    AND

    Oh, I thought you were…let me carry on making this product.” Re: the product you were making that was just adjudicated to violate a right. In other words, IANAE wants to hurry back and continue to beat his wife.

    WW

    TT

    FF

  2. 41

    Ned: But that does not mean that they are unconcerned with salvaging as much value from a failed venture as they can.

    I’m sure they’re not at all unconcerned with getting whatever they can whether the business succeeds or fails. My point was simply that it’s not their primary source of profits, so they will still carry on chasing the winners and selling pieces of the losers for scrap, even if the scrap is worth a bit less.

    Patrick: The public isn’t the entity doing the granting.

    Sure it is. The public acts through the government, and the government acts through the PTO. It may not be exactly to your taste, but you’re one of the people who is indirectly supporting this system as a branch of your equally indirectly elected government. That’s how government works – the government does things to benefit the public that individual members of the public can’t or won’t do for themselves, like granting country-wide exclusive rights to inventions.

    Patrick: The courts just said that it wasn’t your business and you want me to sue you again?

    Oh, I thought you were talking about someone else’s case. If you’ve already sued me, then I’ll simply abide by the court’s decision. Here’s your money, now quit pestering me and let me carry on making this product.

  3. 40

    Are you suggesting that patents should not be granted with the intention and expectation of promoting progress in science and the useful arts, by encouraging inventors to invent and disclose new and exciting things?

    Nothing of the sort – but that is not what you said in the first instance. The public isn’t the entity doing the granting.

    Okay, then. Sue me
    Are you daft? The courts just said that it wasn’t your business and you want me to sue you again? Put the logic circuit back to on before you speak.

  4. 39

    IANAE, on venture capitalists. Sure. They insist on patents mostly to protect the ventures that do succeed from piracy. But that does not mean that they are unconcerned with salvaging as much value from a failed venture as they can.

  5. 38

    The public doesn’t give a rat’s a__ what is “of interest to the inventor”, nor should it.

    Are you suggesting that patents should not be granted with the intention and expectation of promoting progress in science and the useful arts, by encouraging inventors to invent and disclose new and exciting things?

    If we don’t care what’s of interest to inventors, why bother giving them all these highly valuable patents in the first place? After all, they’re pretty restrictive of my back pocket, my contracts, and my business plans.

    Except for the major point that your business isn’t – you’ve been found to infringe my right to exclude. You have no business doing that.

    Okay, then. Sue me and prove your damages. I’ll pay whatever the court tells me to.

    Or would you rather give me a license and save yourself all that expensive arguing?

  6. 37

    public expects a patent to be of any interest to the inventor

    You make an unwarranted assumption that is nowhere to be found in the patent deal, and then base a premise on that assumption. The public doesn’t give a rat’s a__ what is “of interest to the inventor”, nor should it. Yet another example of a socialist tendency for all-too-willing over reach. Stick to the basics – stick to the bargain.

    injunction interferes with … well, my business.
    Except for the major point that your business isn’t – you’ve been found to infringe my right to exclude. You have no business doing that. What you claim as your business the courts have just said NO. That’s what the right to exclude means. Patent basics.

    Keep out of my back pocket, out of my contracts, and out of my business plans – Given the plain legality, they are really none of your business.

  7. 36

    Nowhere is any “policy” of the neo-socialists about having to use the object of the invention or put it into practice.

    Why do you think the public expects a patent to be of any interest to the inventor? My guess is that, in traditional American fashion, the public expects the patent to be worth money to the inventor. If the patentee asks for an injunction for non-economic reasons, there’s no reason for the patent system to give him that remedy. If the patentee asks for an injunction to extort a higher royalty from the infringer, the patent system still has no reason to give him that remedy because the patent system provides directly for a royalty remedy.

    The canard about robbing people of the value by preventing anyone from practice ignores in the first instance the not-so-subtle government forcing of something that is not even a part of the patent right, and ignores in the scond instance that it is entirely not the government’s say in the matter.

    If you think the lack of an automatic injunction means the patentee isn’t really getting an “exclusive right”, feel free to bring that up in court. You’re in a federal court anyway, so they should feel right at home hearing a constitutional question.

    But I think you’ll find it completely is the government’s say in the matter, since the government explicitly provided that injunctions would be granted according to the principles of equity, rather than automatically once infringement is found. Which also means that it’s very much my business if the patentee’s insistence on a worthless (to him) injunction interferes with … well, my business.

  8. 35

    Let’s just start with some patent common law contracts basics.

    This is compelte B$:
    might discourage people from inventing things the public never had before just to say “neener neener, you can’t use this”, but the patent system was never designed to encourage that in the first place, and in fact it doesn’t. It takes a truly perverse mind to invent something just to deprive people of it at your own expense, no matter how you design your patent system.

    The plain and unadultered fact is that the patent system has a Quid Pro Quo with a negative right traded for the enabled description (all other things being equal). Nowhere is any “policy” of the neo-socialists about having to use the object of the invention or put it into practice. The canard about robbing people of the value by preventing anyone from practice ignores in the first instance the not-so-subtle government forcing of something that is not even a part of the patent right, and ignores in the scond instance that it is entirely not the government’s say in the matter. The government has received all that it deserves, all that has been bargained for. The published patent has obvious value to the world even during the ever so brief time of limited exclusivity, and all the value after this time. What the patent holder decides to do with his well earned exclusivity is, simply and undenialbly, NONE of your F’ n business.

  9. 34

    When an entity fails, the most viable assets it may still have are its patents.

    Having some assets for the creditors to salvage when businesses fail is wonderful, but venture capitalists are really after the businesses that succeed. Whether the ones that fail are total write-offs or mostly-total write-offs isn’t going to destroy their business model.

    Just like the big pharmaceutical companies, they don’t need to make money every single time. They just have to make enough from the ones that do turn a profit to come out ahead in the end.

    Anyway, even non-practiced patents can still be licensed, and even the courts will ostensibly give you a reasonable market royalty. There’s plenty of profit left in that particular business model.

  10. 33

    IANAE, there are a lot of assumptions that went into your last comment that may not be true. It would be truly perverse for somebody to invent something, only to then deny that invention to the public as a plan. But I make a suggestion to you that the patents being licensed by NPEs are patents from, for example, failed startups. For every startup that succeeds, nine do not. When an entity fails, the most viable assets it may still have are its patents.

    Perversely, reducing the return on investment for such patents reduces the incentive for venture capitalists to fund startups which clearly and unmistakably harms the United States.

  11. 32

    In technology the amount of financial risk, time invested in research, and sweat of the brow can vary dramatically and if the less time or money is spent on developing a cancer vaccine because potential creators or investors know it can be licensed on a compulsory basis, more people die and society has suffered a great loss.

    You can’t reasonably make the claim that “compulsory licenses” (in the form of royalties instead of injunctions) are a tremendous disincentive to spending lots of money on R&D with an expectation of profit, because as the law currently stands you will still get a pretty much automatic injunction if you’re even making an effort to make any money at all from your invention.

    It might discourage people from inventing things the public never had before just to say “neener neener, you can’t use this”, but the patent system was never designed to encourage that in the first place, and in fact it doesn’t. It takes a truly perverse mind to invent something just to deprive people of it at your own expense, no matter how you design your patent system.

  12. 30

    I think compulsory licenses are a bad idea in patent law. In music or copyright it’s one thing because a song is a song and if there’s less investment or time spent on that because of a reduced reward life will go on. In technology the amount of financial risk, time invested in research, and sweat of the brow can vary dramatically and if the less time or money is spent on developing a cancer vaccine because potential creators or investors know it can be licensed on a compulsory basis, more people die and society has suffered a great loss.

  13. 28

    IANAE, the threat of injunction is what motivates settlement. That gone, there is little incentive left to settle at any stage.

    That’s patently false. The incentive to settle is that litigation is expensive and it’s not worth the risk. Cases also commonly settle in areas of law where an injunction isn’t even a remotely attainable remedy and the only thing at stake is money.

    The important factor for incenting settlement is predictable results at trial. No sane litigant is going to throw money at a case he can’t win, but plenty of litigants would throw money at a case they might win, especially if the other guy is demanding unreasonable settlement terms.

    The public interest is represented by the PTO.

    I thought the great thing about America is that the public interest is represented by whoever has enough money riding on the question of validity, because that person has an incentive to bring a validity challenge, and the fair adjudication of that challenge either way furthers the public interest.

    Another thing I would like would be to provide damages without regard to notice or to marking if it is proven that a competitor copied.

    I’m all for that.

  14. 27

    Another thing I would like would be to provide damages without regard to notice or to marking if it is proven that a competitor copied.

  15. 26

    IANAE, the threat of injunction is what motivates settlement. That gone, there is little incentive left to settle at any stage. This incents litigation, and that is not in anyone’s interest AFAIK, unless you take the view that the defendants are representing the public interest rather than their own interests.

    The public interest is represented by the PTO. Invoke a reexamination if the patent is invalid.

  16. 25

    All the infringer would have to do is agree to the shape of an ongoing license should he lose at trial. What conceptually is wrong with that?

    Nothing, I guess. But why is a license conditional on a particular result any different from a license negotiated after that result occurs? Or are you implying that the parties can no longer settle a case once the plaintiff wins on the merits and it’s down to damages?

    If he doesn’t like the terms being offered, he can run the risk of trial, but knowing that if he loses, he will not get a compulsory license — he will rather be enjoined and at the mercy of the NPE.

    But that’s just pre-eBay, isn’t it? The plaintiff will get his injunction, and the defendant will have to pay some ridiculously above-market royalty to license around it.

    On the other hand, if the PO is being unreasonable, and this is determinable from the RR awarded by the jury or court, as the case may be, he should be at the mercy of the court to set the terms of a compulsory license. But if his offer is on the whole not unreasonable, and it is turned down by the infringer, then he should get his injunction. Thereafter, he can charge an arm and a leg for a license if he so chooses.

    So we’d be back to the court deciding what amount of royalties is reasonable. And if the plaintiff is not willing to settle for reasonable, the court forces him to settle for reasonable. But that’s what we do already.

    But if his offer is on the whole not unreasonable, and it is turned down by the infringer, then he should get his injunction.

    So if the infringer is not willing to pay the reasonable royalty in exchange for his license, he should stop infringing. But that’s what we do already. The infringer is always free to stop infringing if he’s not happy paying ongoing reasonable royalties.

    I don’t understand how this will motivate settlements big time, compared to the current system.

  17. 23

    All the infringer would have to do is agree to the shape of an ongoing license should he lose at trial. What conceptually is wrong with that? If he doesn’t like the terms being offered, he can run the risk of trial, but knowing that if he loses, he will not get a compulsory license — he will rather be enjoined and at the mercy of the NPE.

    On the other hand, if the PO is being unreasonable, and this is determinable from the RR awarded by the jury or court, as the case may be, he should be at the mercy of the court to set the terms of a compulsory license. But if his offer is on the whole not unreasonable, and it is turned down by the infringer, then he should get his injunction. Thereafter, he can charge an arm and a leg for a license if he so chooses.

    This would motivate settlements big time.

  18. 22

    IANAE, the fear of an injunction would motivate the defendant to settle.

    Sure, if he thought he’d lose. But then he’d be motivated not to settle because the patentee would charge him more to settle as a direct result of the stronger bargaining position caused by the mandatory injunction. So if he thought he could beat the injunction and also avoid the huge royalties associated with the threat of an injunction, he’d take his chances in court.

    Also, the fear of decapitation would motivate the defendant to settle. But that alone does not make it an appropriate remedy for the patentee.

    We don’t want parties to settle out of fear of an uncertain but draconian outcome. We want the parties to settle because the result at trial is reasonably predictable, the result of the settlement would be similar, and litigation is a huge waste of time and money.

  19. 21

    IANAE, the fear of an injunction would motivate the defendant to settle. The fear of a compulsory license would motivate the nonpracticing entity.

    Both sides with fear losing at trial.

  20. 20

    Mandatory injunctions would make losing more expensive for the defendant, which would make settling more expensive for the defendant, which would make the fixed expense of trying to win the litigation more worthwhile by comparison.

    If you are at the stage of mandatory injunction, you are already past the stage for “trying to win the litigation”.

    If the parties can agree to the terms of a license without a trial (which is somehow different from a settlement?), why would there ever be a litigation in the first place?

    And why should the winner have to settle for a contract that the court drafts with a complusory license?

    what would that have to do with the likelihood of success on the merits?

    “Rational expectations” is the answer.

  21. 19

    Ned: Perhaps we ought to consider a rule that would make an injunction mandatory unless the parties agree to the terms of a license prior to trial.

    By mandatory, do you mean binding on the patentee as well? Like, if the patentee asks for an injunction he can no longer license to the defendant? Or are you only talking about un-deciding eBay by Act of Congress?

    Mandatory injunctions would make losing more expensive for the defendant, which would make settling more expensive for the defendant, which would make the fixed expense of trying to win the litigation more worthwhile by comparison.

    Ned: At that time, both sides would pretty much know their likelihood of success on the merits and the value of the patent.

    Two questions. If the parties can agree to the terms of a license without a trial (which is somehow different from a settlement?), why would there ever be a litigation in the first place? Also, what would that have to do with the likelihood of success on the merits?

  22. 18

    One of the problems I would like to see discussed is the issue of compulsory licenses granted infringers when the patent owner is a nonpracticing entity. Perhaps we ought to consider a rule that would make an injunction mandatory unless the parties agree to the terms of a license prior to trial. At that time, both sides would pretty much know their likelihood of success on the merits and the value of the patent. Such a negotiation would also probably lead to settlement of many patent disputes.

  23. 17

    But since this is academia,

    Well, there we go now.

    Will the judging criteria be the number of cites and footnotes to articles of other academics

    Well earned chuckles Paulie (not at, with)

  24. 16

    would welcome someone with a more transnational approach

    For thinking out of the box – or thinking along the lines of making the US patent more like the ROW (weaker)?

  25. 15

    Am I missing something or is the title deliberately broad to allow the author to massage it into a particular shape?

    For example – on a daily basis – I see US companies wasting thousands upon thousands of pounds/dollars trying to prosecute ex US Euro-PCT applications which have been doomed from the outset by US style drafting. It needs a remedy – but not in the sense of section 61(a).

  26. 14

    Are they going to explain what they mean by: “proposals on the topic of patent remedies”?
    To most real-world patent attorneys “remedies” would mean damages and/or injunctions for patent infringement. But since this is academia, did they really loosely mean patent reform in general [remedies for problems], as some readers already seem to think?
    Are they interested in realistic or academic proposals? Do we really need more ideas along the lines already fully proven politically impossible to legislate [in five years of trying] that they are no longer even in any pending patent reform legislation?
    Who will be the judges? Will the judging criteria be the number of cites and footnotes to articles of other academics, or real plausibility, judged by real experts?

  27. 13

    Lawrence – My understanding is that there are no territorial limits on participation. I actually suspect that the organizers would welcome someone with a more transnational approach.

  28. 7

    Further to Cy Nical’s post, one might also win with a compelling argument as to why patent damages favor the patent holder too much. The options are broader than one might think.

  29. 6

    I suppose the implication in this one is that current patent remedies are inadequate and the paper should address possible solutions? But why not just say that?

    Because you might win if you can come up with a compelling argument as to why current patent remedies are completely adequate. The organizers aren’t more specific because they want you to do the thinking.

  30. 5

    While looking through a number of CHALLENGE.GOV proposals, I had a hard time understanding what they are looking for because the proposals all lack specificity. I suppose the implication in this one is that current patent remedies are inadequate and the paper should address possible solutions? But why not just say that?

  31. 4

    (1) In legalese, a “remedy” is the result that the plaintiff is seeking in a lawsuit. This may take the form of monetary damages, injunctive relief, or a declaration of non-infringement, for example.

    (2) I did not intend to imply that the CHALLENGE.GOV site also has a prize for patent remedies – only that the US Government is also awarding prizes.

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