by Dennis Crouch
Today, the Supreme Court heard oral arguments in the pending patent dispute Commil v. Cisco, Case No. 13-896. The Patent Act creates a cause of action for actively inducing infringement of a patent. Here, the Federal Circuit ruled that a defendant’s belief that a patent is invalid is a defense to induced infringement under 35 U.S.C. § 271(b). That decision is being challenged here — The patentee (Commil) argues that the mens rea requirement for inducement focuses on infringement rather than validity. The transcript is an interesting read.
Of course, invalidity of the patent is always a defense and so the issue is only critical if the defendant had a good faith belief of invalidity but the patent turned out to be valid.
JUSTICE GINSBURG: This question would come up only if the patent had been held valid.
The rule does, however, offer some additional procedural and evidentiary benefits – for example a good faith belief of invalidity should be easier to prove than invalidity itself. By taking the case, the Supreme Court suggests reversal, however, that result is not guaranteed here.
In his questioning, Justice Scalia focused on the idea that aiding and abetting requires wrongful intent, and practicing an invention covered by an invalid patent doesn’t seem wrong.
JUSTICE SCALIA: It’s a type of aiding and abetting liability and both in tort law and in criminal law. At the common law, it was clear that you’re not liable as an aider and abetter unless you have a wrongful intent. . . . It it seems to me that if you don’t know that you’re infringing or that you’re encouraging somebody to infringe is is no no worse than you’re not knowing that the patent is valid. . . . You’re just talking about supplemental liability for somebody who induced that violation. And generally, for that kind of liability, we have required mens rea. We have required knowledge that you’re doing something wrong.
The patentee’s response was threefold:
MR. WERBNER: Well, under the court’s Aro 2 case that the Court described in GlobalTech’s as a fixture of patent law, the Court specifically there recognized that once an accused infringer received actual notice of the patent and is put on notice of the infringing conduct, that that [invalidity belief] that creates no defense to that person. . . . [Second], there are [now] streamlined procedures available [for invalidating invalid patents]. . . . [Third] textual meaning of 271(b) [focuses on infringement not invalidity and] Congress knows the difference between invalidity and infringement. Where Congress is addressing both, it says both.
Arguing for Cisco, Seth Waxman’s primary point fell in line with Justice Scalia’s statements:
MR. WAXMAN: If you go back to the common law . . . [a] defense was available [for] someone who didn’t have that belief was not culpable and, “morally wrong.”
Justice Sotomayor queried whether infringement and invalidity were really two sides of the same coin since a broadly interpreted patent is likely to be invalid while a narrowly interpreted patent is likely to be not infringed.
A good amount of time was focused on the court considering how to deal with the reality that a large percentage of challenged patents are held invalid.
CHIEF JUSTICE ROBERTS: You mentioned the presumption of validity. What percentage of patents that are challenged are found to be valid.
MR. WERBNER: Well, Your Honor, from the briefing, it appears a high number; 40 percent was an estimate.
CHIEF JUSTICE ROBERTS: Well, 40 percent of the patents are found to be valid?Invalid.
MR. WERBNER: Invalid.
CHIEF JUSTICE ROBERTS: Invalid. So only 60 percent are upheld. That’s not much of a presumption of validity.
MR. WERBNER: Mr. Chief Justice, I would submit that it would be for Congress to change the presumption of validity, if it’s out of line. . . . And it’s more than just a procedural mechanism, it’s a message that patents are presumed valued. They should be respected not just by judges and juries, but by the public who are told that until proven otherwise, patents are presumed valid. And someone who wishes to gamble on their belief that it’s invalid should bear the consequences if they’re wrong. . . .
JUSTICE KAGAN: You’re quite right in your reply brief when you say that this is a tradition in American law, that we assume that statutes are constitutional, that we assume that contracts are valid, that’s right, but it’s because they really are. You know, almost all statutes are constitutional. And here we’re in a different universe entirely, aren’t we? Where, you know, you could flip a coin as to whether a patent is valid or invalid and be pretty close, right? It’s about 50/50. . . .
CHIEF JUSTICE ROBERTS: Is that a is that an historical development? Did more of them used to be valid, however many decades ago and, it’s sort of changed recently?
MS. ANDERS (US Gov’t): I think it makes sense to say that a good faith belief in invalidity is not a defense even though 40 percent of patents may be invalid.
. . .
JUSTICE KAGAN: Well, but that might be a very good reason for Congress to take a new look at this presumption of validity. But [Cisco’s] problem is that this presumption of validity exists and that this question of validity functions in a patent suit only as an affirmative defense.
The Court seems to make a big deal out of the fact that litigated patents are found invalid around half the time, but under some sort of fictional rational actor hypothetical isn’t this about what you would expect? It would seem like parties would be most likely to litigate the validity of patents where that validity is indeterminable and it is a coin flip as to whether they are valid.
How would you explain the consistency between the willful blindness doctrine of Global-Tech and 35 USC 298? It seems very hard to prove willful blindness if you cannot use the fact that the defendant did not seek an opinion.
This is just ridiculous. Congress needs to do something about these 9 treasonous people.
The Constitution says Congress may make laws regarding patents. The Congress made a law saying that if the executive branch issues a patent it is to be presumed valid.
I think what has happened is that somehow the 9 have decided that they are really the ones in charge of patents because of their early federal common law on patents. Really, this is starting to amount to treason.
You know, any rational person would see that the 9 have gotten so out of line that serious consideration should be given to removing all 9 and starting over.
It is not just patents but many areas of law. I think it is so obvious with patents because the Constitution expressly gives the legislative branch the authority over patents–not the judicial. Their federal common law became null and void with the 1952 patent act and yet they consistently misrepresent this fact. They really are treasonous in their behavior.
If you actually read some of this transcript, you realize that the 9 act as if the 1952 Patent Act was just full of advisory recommendations for how their laws should be interpreted. It is outrageous.
(By the way, again, this is just more clear for patents.)
This transcript should be used as Exhibit A to impeach all 9.
Oh that’s special. An honored legal scholar determines that all nine justices of the high court are treasonous….. and that same eminence suggests that you shouldn’t listen to the viewpoints of people without similar qualifications in training, considered judgment, and experience as his own….
So to get this straight- Congress passes a law that says the sky is brown, courts look up and see blue half the time, and it’s treason for them to suggest that the law may not be tenable?
Oh…Okay then. The things you can learn on the Internet these days……
Nice to have the infringing heckler bark in. Not having any legal training, I guess, means that you can’t sort out what I’m saying.
“Nice to have the infringing heckler bark in.’
Easy bro. Talk about people going all full on defamation up ins.
The thing is, Martin: NWPA is hardly alone in making such statements.
That’s what makes the microworld of “patent law experts who love patents” so wacky and wonderful (from a sociological point of view, anyway).
They really believe they are super smart and super serious but when the going gets rough you find out very quickly they are really just super entitled and super greedy and not just a little bit ignorant.
You should have been around here for the discussions about Prometheus v. Mayo when their little entitled heads were exploding left and right as their favorite drafting trick got flushed down the tubes.
The paid blogger and the barking infringer* agree. What a surprise.
(*Or alleged infringer or whatever. All we know for sure is that he doesn’t file patent applications and complains bitterly that anyone should get a patent.)
Yes, my writings here show nothing but contempt for patents and belief that nobody should get one. So says the honored legal scholar who apparently can’t read. How about this: the moment I invent something worthy of a patent, I promise to apply for one?
Of course, in this world, falling out of bed in the morning should be a patentable method. Independent claim: still drunk from last night. Dependent claim: on Pabst taken from a stainless mug.
Is heckling a heckler a kind of meta-heckling? mmmm
Metaheckler….good screen name come to think of it….
Dennis,
It would be great if comments could be a place for rational discussion of patent law issues, but instead you get posts like this which is asserting that the Supreme Court is treasonous.
It would be awesome if people could register with their name and Reg. No. and you could filter comments to only view those by registered patent attorneys.
After reading a couple more posts for context, I think I understand where the post is coming from. Comment retracted as to this post, but there are a lot of posts on here that just make it hard to sort through any actual discussion.
With Justice Breyer’s recent comments about the “worth” of oral arguments in mind, I find the “tea leaves” not all that interesting…
A problem inherent in being the “highest” court is the susceptibility of thinking that “You” are above it all and can do whatever (and thus inviting the sycophants that wish that some other legislation were in place).
With Justice Breyer’s recent comments about the “worth” of oral arguments in mind, I find the “tea leaves” not all that interesting…
And yet this makes about 28 posts from you on this page.
Did you have a point that you wanted to make? Because, like, you know, you actually counted the posts, but did you bother to see how many were geared to the tea leaves?
You just can’t help yourself, can you DanH/Leopold? And yet another smarmy but ill-advised post from you.
List of Cisco products below:
link to router-switch.com
It is axiomatic that an invalid patent is not infringed. …. judge Rich “that invalid claims can’t be infringed is a nonsense statement”… chicken. .. egg … chicken. .. egg ……
“WE NEED SOME STRUCTURE TO THIS ARGUMENT PEOPLE”
Rich?
What is axiomatic is that there is no liability for infringement with respect to an invalid patent.
271(a) provides that whoever makes uses or sells etc. a patented invention infringes. There is nothing in this about validity, just that the invention be patented. Invalidity is a defense under 282. It negates liability.
Thanks Ned – as you can see, some clamor for answers already there. Here, there already is the structure (validity as a defense).
Great quote.
That’s how Judge Rich thought of it, sometimes. He also said “The claim being invalid there is nothing to be infringed” in Richdel v. Sunspool, 714 F.2d 1573. This leads directly to his corollary that “an invalid claim cannot give rise to liability for infringement.” What is the difference. The phrases are not inconsistent. I wonder why he thought the oft repeated axiom was nonsense? It never affected any outcome in any case (that I know of).
In the same time frame, other Federal Circuit cases held that an “invalid patent cannot be infringed.” For example, Schering v. Optical. Archer, no dope, held that “invalid claims cannot be infringed” in Banner Engineering v. Tri-Tronics.
The axiom is still in use: “because invalid claims cannot be infringed, we affirm ….” from Specialty Rental Tools, v. Boyd’s Bit Service (2003). Viskase v. AMC (2001) also states the axiom.
The axiom stems from some ancient case law, like 19th century Supreme Court decisions.
JUSTICE KAGAN: You’re quite right in your reply brief when you say that this is a tradition in American law, that we assume that statutes are constitutional, that we assume that contracts are valid, that’s right, but it’s because they really are. You know, almost all statutes are constitutional. And here we’re in a different universe entirely, aren’t we? Where, you know, you could flip a coin as to whether a patent is valid or invalid and be pretty close, right? It’s about 50/50. . . .
In the so-called computer-implemented “arts” it’s way, way worse than that.
Hilarious to see the true believers downthread pretending otherwise. But, hey, that’s what they do.
Remember folks: it’s the insistence that patents on logic and information are the most important patents and the judge-built foundation of playing cards propping that mythology up that has driven the patent system into the sewer.
This was all predictable, as is the final solution. In the meantime, stay tuned for more rich entitled people whining about their “constitutional rights” to threaten the 99.99% of non-patent grifters with their captured-agency granted junk. Again: it’s all these people know how to do.
Maybe later one of these “innovators” will pop up and advocate impeachment of the Justices because they don’t love patents hard enough. It wouldn’t be the first time …
More of the same dissembling…
Y
A
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“This was all predictable, as is the final solution”
The denoument, based on Supreme decisions and the bill before Congress, appears to be to weaken all patents, make patent litigation more advantageous to richer and more powerful companies, and do nothing at all for small companies or patent quality.
Nobody is even talking about a return to Flook, Benson, and the reasonable simple perfect solution of simply keeping an impermeable wall between software and patents. Without such a division, information will always be patentable with simple clever drafting.
So instead, all patents and the system that drives so much progress will weaken more and more in response. This years’s changes will be just the beginning as more and more abuses accumulate and more weakening will continue because the abuses will not stop while software is considered eligible.
Also: ‘final solution,’ MM? Seriously?
“Nobody is even talking about a return to Flook, Benson, and the reasonable simple perfect solution of simply keeping an impermeable wall between software and patents. Without such a division, information will always be patentable with simple clever drafting.”
Not sure what that means exactly. If you’re saying no one thinks Benson should be overturned, you have not been here long enough!
Clearly, the last word in Bilski that Diehr cabined both Flook and Benson – as well ig noring the points within each of those two earlier cases (i.e. “We do not so hold”) is lost on both the anti-software “Owen” and the ever polite (?) cheerleader.
I’ve literally never heard anyone here (except Martin maybe….) say that software is patent ineligible per se…
Go, not all software. Just software that results in further processed information. If the software is used as a controller of a physical structure or process that passes the M0T test, I think it should be eligible. Same goes for methods.
If you cant pass an MoT test, you may have utility, but you don’t have a patentable thing IMHO. That may change someday with some other kind of technology- I think a statute similar to the doctor’s exception could be written for software/methods to preserve that possibility. Yes anon, I get what a ‘clue’ is. A STRONG clue I might add….
OTH, some nations don’t allow software per se so it’s hardly otherworldly to consider the possible benefits. The costs of unbounded software patents are obviously extreme.
“hardly otherworldly to consider the possible benefits.”
The point of the matter Mr. Snyder, as Mr. Katznelson and others have attempted to show you, is that you have been steadfastly attemptin to NOT consider the historical benefits and leading status of this country because of our past view on allowing patents for innovations under the existing law – not your wannabe-law-should-be-something-else.
Your selectiveness is your undoing. You have zero credibility (and whether or not you use your own name is absolutely immaterial).
Martin,
For a variety of reasons, the “if the software is used as a controller of a physical structure or processes…” standard doesn’t seem to work, to me. It just creates a new level of drafting tricks.
For example, take the silly software in your case. Would it really matter if the software caused a computer monitor to display the results? MoT though, right?
Displaying results to a human being does not pass MoT.
The problem(s) with the patents in our case go well beyond the 101 issue. Obvious, anticipated, divided infringement, laches, ….but the litigation abuse stems from the tiny real potential damages, that we ditched the accused method when we found out about it, the unhinged demands for back royalty that likely exceed all of our profits in the period for a separately accounted for subcomponent that contributed not even 5% of revenue or any profits in the period, the age of the thing – 15 years at filing, now 18 years, the utter insignificance of either us or the feature except as tools of extortion, the huge damage to us of the litigation v. the utterly immaterial costs of endless, meaningless litigation to the plaintiff…. The whole travesty is a perfect miniature of the damage mid ’90’s software patents can do in the hands of bad actors.
Yea, so that got me active about software patents. But I have put a lot of thought into my position, I have read a lot of cases, and unlike the many professors and honored thinkers here, I have been in the software business trenches for 20 years, and I understand what drives sales, profits, and innovation in the space. It ain’t patents.
Patents are critically important when properly used, and I’m not even anti-software patent. I am against patenting ideas rather than structures or processes that have physical results in the world. Processes or methods that merely inform human action? They cannot be fairly adjudicated and they should not be granted exclusionary rights, no matter how novel and useful, because once you start patenting ideas, you cannot contain the costs or damages. We have seen that. The Supreme Court sees it. People in my industry see it. Responsible patent lawyers see it too.
Martin,
I think we mostly agree. I’m not saying displaying results to humans passes the MoT test.
I’m saying that I think configuring a monitor to display a particular thing passes the MoT. The computer monitor is real, physical thing that is being changed by a computer program (color, electrical current, etc.)
Maybe there is some case law I’m not aware of?
“Maybe there is some case law I’m not aware of?”
It is difficult to believe, Go, that you are unaware of the fact that Mr. Snyder’s views are NOT based on actual law of any kind (statutory or case law), and only engages in pure “Belieb” fantasy law…
You have to understand that when he uses terms of art, he does not care to use those terms with tier art-specific meaning, a meaning that IS tied to real law.
If you are not clear on this you risk adding to the muddle and cacophony instead of bringing legal clarity and understanding.
go arthur: I’m saying that I think configuring a monitor to display a particular thing passes the MoT. The computer monitor is real, physical thing that is being changed by a computer program (color, electrical current, etc.)
Can you give an example of the kind of claim you are envisioning and the specifics of the “MoT” test that you are applying?
“A display monitor configured to display [new non-obvious information]” is an ineligible claim because it protects the information being displayed. It doesn’t matter that the recited display monitor is a “real physical thing” because configurable monitors for displaying information are old.
The same is true of a claim that recites “A book configured to display [new non-obvious information].” Books are “real physical things”. They are also old and granting such a claim allows the patentee to protect the information, at least in the field of books. Therefore the claim is ineligible.
The programmable computer in Alice was also an old “real physical thing”, as was the computer/networks recited in ABL and all the other well-reasoned cases where computer-implemented junk has been tanked under 101.
MM,
The whole point of my post and the post above is:
I think that the MoTT is inadequate for evaluating subject matter under 101 and just encourages drafting tricks.
Your post indicates you maybe think I was making the opposite point…
“For a variety of reasons, … doesn’t seem to work, to me. ”
I’m curious as to what “it” is that does not seem to work for you, Go…
What is it that these so called “scrivining tricks” are being applied to so deviously?
What is your agenda?
Anon,
Oh c’mon, you know what I’m talking about. For example, Beauregard claims.
My goals are the same as (I assume) everyone else. A fair patent system that allows good claims and rejects bad ones. Also, truth, justice and the american way.
As I’ve stated many times, I don’t object to software per se, but struggle to articulate a good rule to separate the wheat from the chafe.
I’d love it if some of our software-inclined friends would help articulate such a rule, but all I get when I bring this topic up is indignation.
I don’t know what you are talking about, and what is wrong with Beauregard claims and what is this with others to venture something less than what the law provides because of some philosophical thing against software (that you still have not quite elucidated)?
The question still stands because your “mom and Apple pie” answer simply does not fit.
Try again.
Anon,
I feel like the problem is obvious. Over the past decade (or so), the USPTO has issued many, many law quality patents. Especially software patents.
That doesn’t mean software is bad, or that software patents can’t be granted properly. But, I feel like that point is required for us to have any common understanding.
If you grant that point, that there is a problem somewhat unique to software (but admittedly shared by other fields: Mayo, for example), the question becomes: How do we deal with this problem?
That’s the question I’m interested in. I see a lot of “that’s not a problem/that problem doesn’t exist.”
Go,
My post of 6:03 pm remains unanswered.
Your “feelings” are not an answer.
Your still wanting something less than what the law actually provides is not an answer.
ALL art fields may have “bad” patents granted. You keep in ig noring the plain fact that the patent system was never built to have perfect examination as some rationale for blindly accepting a philosophical-based screed against a particular form of innovation, and that my friend is simply and entirely unacceptable.
You should keep in mind as well that this is NOT a battle of “recent” “poor quality as that kool-aid induced mantra goes, but has been a fifty year battle (as evidenced by Prof. Crouch on a thread awhile back with that very title).
Wake up son.
“But, I feel like that point is required for us to have any common understanding.”
Well, there it is then.
You can “feel” all you want, but rah has nothing to do with either understanding or the law.
It is just bizarre that we have people saying how bad software patents are, and yet, we are the number one country in software — by far –. And this occurred under the encouragement of patents.
We just either get the paid lobby, the ignorant developer (who in many cases wouldn’t have a job or couldn’t change jobs but for patents), the hurt infringer, the liberal professor who thinks they are restricting, or the paid professor who takes Google bucks.
The one you most love to cheerlead is on record here with that Belieb.
and do nothing at all for small companies or patent quality
Supremes just did Nautilus. How did the FC run with that? I think your anger is misplaced.
well, two judges in DDR basically undid much of the potential for Alice to clean things up, but until the SC draws a bright line test for software / methods as physical processes or structure, the rest of the system will necessarily suffer the inevitable distortions of patenting the unpatentable…..
Innovation Act would not help small business and Alice and Nautilus are well on their way to being overturned by the CAFC.
Stripping CAFC of patent jurisdiction and returning it to circuits would be the best reform possible. Add venue reform for small businesses so they be sued only in their home district and not some biased far-away troll district and you’d have the real reform we need.
also: ‘final solution,’
I admit … a terrrible choice of words. “End result.” “Conclusion of the story.” “Inevitable outcome.”
Such a natural phrase, but forever destroyed by horror I think.
Das ist nur eine Fehlleistung, angesichts der Propaganda Textbuch verwendet er…
I’m loathe to make a full opinion before the actual audio comes out, as pauses are often as important as what people say. Here’s a good example:
Waxman made an extremely important point towards the ends that has gotten little play. When the argument is limited to only good faith on infringement, it leaves the inducer’s mind only partially explored in a statute that is clearly designed to look into the mind of the inducer. This directly coincides with what Scalia began the case by saying.
Invalidity and infringement are different things, but there is only one malum prohibitum – violation of the right to exclude. Historically Mistake of Law could serve as a defense to malum prohibitum offenses as they negate the mens rea, therefore you have to consider both. Kagan gets at the same point in a less fanciful way – she couches it in terms of someone “trying to figure out if they have liability” (two sides of the same coin) which is a pseudonym for the singular prohibition.
Scalia also responds to a comment about conflating two things asked by Kagan, and his reponse is transcribed as “HE” said. The “he” would be Alito having penned Global-tech. I suspect that a large number of the court members simply think that they considered the issue in Global-tech.
I suspect it will be affirmed with modifications simply for the pragmatic effect: Cisco gets over a letter a day, and Commil stated it is 18 months to do an IPR. What do you think it going to happen? The court is going to formulate a rule that requires Cisco to wait 18 months from every letter they get to avoid liability? Cisco would never produce anything!
This is an example of the ridiculousness of certain types of overbroad uses of language (it rhymes with bunctional flaiming) coming home to roost. There is so much uncertainty in the law the defense will be construed broader to fix it.
Random, “a statute that is clearly designed to look into the mind of the inducer.”
The original drafters, Rich and crew, had no intention at all to change the law. All the law required is that one know that the acts one was inducing resulted in the particular product or process, the process that was an infringement. Knowledge of the whether the product or process actually infringed was completely irrelevant.
Reading Aro II, it is manifestly clear that congress did not intend to change the law in this regard. The words they chose were inartful. Thus the majority held that knowledge of the patent was required.
They required nothing more. Why in the fricken world are we expanding that requirement to the moon — moving ever further away from the intent of congress. We need to remind the Supreme Court that Aro II was 5-4 and of the intent of congress not to change the law.
I see a news flash. Governor moonbeam has ordered a 25% increase in rainfall.
Why in the fricken world are we expanding that requirement to the moon
It’s subject to a good faith standard, it’s not expanding it nearly as much as you think.
Just so we’re clear, if I had a patent on receiving intellectual property legal advice wherein the means of communication is electronic, you would cease all non-face-to-face contact with your clients?
I hope this is a joke.
Just to be clear, no.
But that does not mean I should not respond in damages if I am wrong in my conclusions about validity.
Ned: that does not mean I should not respond in damages if I am wrong in my conclusions about validity.
This issue isn’t whether “your conclusions” were wrong. That’s the starting point. The issue is whether your “wrong conclusions” were reached in good faith (e.g., a detailed opinion that the judge almost adopted as his/her ruling) or whether you just looked at the claim and said “This uses the term ‘function’ so it’s probably invalid.” Why shouldn’t that affect the damages calculation?
The acknowledgement that “it’s easy to reach a reasonable but wrong conclusion about patent validity” is easy to make once we remember that people who very publically hold themselves out as professional “patent law experts” these days (e.g., many of the “patent law experts” who opined on Prometheus) got it completely wrong, as did a substantial portion of the Federal Circuit (a trend that the Supreme Court has been observing for years).
This is where people need to start realizing that the standards for “good patents” are rock bottom from a “quality control” viewpoint. If the rate of bad sausage issuance was anything like the rate of junk patent issuance our society would probably have banned sausage production forever and never thought twice about it again.
“Good faith” from Malcolm….
Way too funny.
But that does not mean I should not respond in damages if I am wrong in my conclusions about validity.
It’s one thing for the actual infringer to have to respond in damages. It’s another for everyone in the chain to have to respond.
People sell things that are perfectly legal on their own and only infringe as part of a combination patent. If you let “notice only” control that situation you’ll have people extending their monopoly past the actual scope by threatening people with damages for supplying an essential element and therefore inducing the combination.
There are similar and equally reasonablee considerations, along with a plain reading of the statutes, that will drive the Supreme Court’s rejection of the CAFC’s holding in Promega v. Lifetech, 9-0.
link to patentlyo.com
Great link for plain reading…
Maybe you want to do a plain reading of 1 US 1…?
“Cisco would never produce anything.”
My do I love these false dilemmas.
Right up there with strawmen, false premises, and red herrings.
How is it a false dilemma? Cisco makes things, those things can be used to infringe, and the question of whether it has substantial noninfringing uses is a question of law. Every time someone does something with your machine and you receive a letter, you’re potentially on the hook. There was clearly intended to be SOME defense – are you suggesting that the defense was “wait for an IPR in every case”?
Random, among other choice is to
1) take a license;
2) design around;
3) deliberately infringe and take one’s lumps when sued;
and, of course,
DJ or IPR.
If software, the cost to do a fix is ridiculously low per the case between Apple and Motorola. The problem is, the likes of Cisco don’t like to do changes because they are locked in to certifications, etc. The license alternative might be the very best choice.
Ned: software, the cost to do a fix is ridiculously low
Not nearly as low as the cost to imagine a new function for a computer without ever disclosing any actual working software whatsoever.
Not even close.
That’s why the grifters love software patents more than anything else. If they were restricted to patents that actually required them to have any skill other than speculation it would ruin all their fun.
Now watch ’em puff themselves up and pretend to be really offended by this.
1) take a license;
You’re not in a situation where you can stop production and simply eat your sunk production costs. You have product out there already that has to be recalled because your liability is out of your control now. Is that conducive to arm’s length negotiation? What incentive does your opponent have to offer you a fair value? Or for that matter, any license at all?
2) design around;
The very same patents that are most likely invalid due to overbreadth, the very ones there should be a good faith defense for, are the very ones that can’t be designed around.
and, of course, DJ or IPR.
If notice that you fall under a super broad scope is all that is necessary, then you’ll constantly receive notice until the patent system rights itself, which means you’ll constantly be doing IPRs. If a smartphone uses, how many was it? 2000 patents? How many patents over similar or overlapping subject matter with those 2000? Let’s conservatively say 1 in 100 patents have at least partial overlapping claims with another patent. That’s 20 letters you get. Even if they’re spread out only over a year, add in the 18 months and you’re looking at 2.5 years before you can actually produce on the lines you shut down to do IPRs.
3) deliberately infringe and take one’s lumps when sued;
This is, of course, conclusory, because it could just as easily read “3) formulate a plausible good faith argument which is actually accepted at the trial level before being reversed by the FC not knowing what it is doing and POSSIBLY take one’s lumps when sued”
Who… ultimately pays $$$ for the lunps? (Me)… upfront costs (declaratory judgment, IPR, ex parte) it’s gotta be cheaper for me.. net net
“If software, the cost to do a fix is ridiculously low per the case between Apple and Motorola.”
This seems to be written by someone who has never written software before. Software is rarely easy to fix.
OT, but in the other oral arguments before the high court yesterday, our Justices display the stellar logic that even knowing that a prior ruling is point blank wrong may not (in their eyes) warrant a decision “righting the ship,”
See link to nytimes.com