Will Expanding Post-Grant Review Deter Abusive Patent Litigation?

usptoGuest Commentary

by Cory Clements, a 2013 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

The act of patent trolls asserting patent rights without first proving them is parallel to the actions of the troll in the fairy tale Three Billy Goats Gruff. Like the troll asserting a right to control who may and may not pass over his bridge, so too the patent troll asserts control over those who may be using technologies covered by broad patents – the acquisition of which makes up their entire business. The troll neither invented the bridge nor the patent troll the patent. These “trolls” are in the business, as one Forbes contributor puts it, to “buy up patents, sometimes by the tens of thousands, then scour the marketplace for people who may be infringing these patents.”

A New York Times article illustrates an interesting aspect of how this trend of patent litigation began. Many critics of patent litigation argue that big corporations are to blame in initiating this type of litigation, and it’s not hard to see why. Apple has spent billions of dollars litigating patent suits initiated both by and against it. According to the article, Steve Jobs’ attitude was to patent every idea Apple employees came up with because even if they didn’t move forward with the idea, they would have a defensive tool.

This attitude might lead one to believe corporations like Apple are to blame for the influx of troll-initiated patent litigation. That is, until one learns of some of the first lawsuits against Apple. A few notable cases include a 2004 settlement with E-Data over Apple’s popular iTunes, after which E-Data initiated lawsuits against 14 other companies. Then there was the 2005 Hong-Kong based Pat-rights suit demanding 12 percent from all iTunes and iPod sales followed by a 2006 suit by Singapore-based Creative Technology resulting in a $100 million settlement. Continue reading “Will Expanding Post-Grant Review Deter Abusive Patent Litigation?”

Past Author of WLF Paper, Speaker at Programs, Nominated to D.C. Circuit

PMillettCourt decisions, regulations, and new legal policy developments have been flying around so fast and furiously this month that we at The Legal Pulse have until this morning not offered our congratulations to one of Washington Legal Foundation’s pro bono authors and speakers, Patricia Ann Millett of Akin Gump Strauss Hauer & Feld LLP. On June 4, the President nominated Patti for a judgeship on the U.S. Court of Appeals for the D.C. Circuit (she’s standing to the right of the President in the photo).

We have been honored to have Patti speak at WLF Media Briefing programs on the U.S. Supreme Court in each of the past four years. Those programs can be viewed by clicking on the title links below:

Along with colleague Hyland Hunt, Patti expanded upon the thoughts she provided at the October 2011 term review on the Court’s preemption rulings in a September 23, 2011 WLF Legal Backgrounder, Crumbling Cornerstones: The Evolution Of Preemption Law In The Supreme Court’s 2010 Term.

Congratulations, Patti!