Big news today in the Microsoft-Motorola RAND breach of contract dispute taking place before the U.S. District Court for the Western District of Washington. After the November 2012 bench trial and significant post-trial briefing between the parties on a variety of issues, we finally have an order from the court. However, we will need to
Back in December 2012, the Federal Trade Commission and the Department of Justice held a joint workshop to explore the impact that patent assertion entities (PAEs — or non-practicing entities/NPEs) may be having on innovation, competition, and the U.S. economy. The FTC and DOJ invited the public to submit comments for consideration by the agencies, even extending the deadline for submission until early April. All in all, 68 separate submissions have been received and posted on the FTC/DOJ workshop’s site.
The commenters represent a wide variety of industries and interests, and express divergent viewpoints and positions about the effects of PAE activity. Many comments focus on the newly-reintroduced SHIELD Act. Given that the main focus of this blog is on standard-essential patent issues, we won’t even try to give a comprehensive rundown of all of the comments — we’ll leave the focus on non-practicing entities to others. But several of the comments do express particular concern about the interplay between PAEs, standard-setting organizations and standard-essential patents. After the jump, we’ll discuss some of these issues that are being flagged as troublesome.
This afternoon, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet held a hearing titled “Abusive Patent Litigation: The Issues Impacting American Competitiveness and Job Creation at the International Trade Commission and Beyond.” This hearing comes on the heels of a broader hearing on abusive patent litigation held by the same committee two months ago, as well as a different hearing in July 2012 that generally addressed the ITC’s role in deciding patent disputes. Several witnesses representing a variety of diverse backgrounds and interests testified today before the subcommittee, including:
A link to the video webcast of the full hearing is available at the House Judiciary Committee’s website, along with PDFs of each witness’s prepared testimony. Our friends at Patent Progress also live-tweeted the event — take a look at their Twitter feed @PatentProgress for their blow-by-blow account.
As we anticipated, while standard-essential patents were not the focus of this particular hearing, the issue of SEPs was indeed given some attention. In his opening remarks, Congressman Melvin Watt noted concerns some have expressed about the potential for improper usage of standard-essential patents in seeking injunctive relief, and Congressman Ted Poe briefly quizzed Prof. Chien about the propriety of asserting standard-essential patents in the ITC.
Continue Reading House Judiciary Subcommittee hearing on abusive patent litigation and the ITC focuses on non-practicing entities, litigation costs, and remedies
For those of you unfamiliar with the pace of litigation at the U.S. International Trade Commission, it is fast. Just several days ago, we were writing about the comments on the public interest submitted in Inv. No. 337-TA-794 by Apple and Samsung, the ITC Staff, and several other interested non-parties. Late last week, Apple, Samsung, and the ITC staff each submitted responses to these initial public interest comments.
Barring unexpected additional submissions from the parties (e.g., a notice of supplemental authority citing Judge Robart’s forthcoming ruling in the Microsoft-Motorola RAND case, which may come down any day), the briefing in this important ITC case should now be all wrapped up. Now, the waiting game begins — the Commission has until May 31 decide whether it will issue an exclusion order barring Apple products, should it find that they infringe Samsung’s (alleged) 3G UMTS-essential patent(s) (although a ruling could, of course, come before then).
A round-up of and links to the recent responsive submissions, after the jump…
Continue Reading Public interest briefing wraps up in Samsung-Apple ITC battle (337-TA-794) — parties now play the waiting game on exclusion orders and SEPs
Just like with cellular standards, the widespread use of the IEEE 802.11 wireless networking (“WiFi”) standard often makes WiFi-compliant devices easy targets for patent infringement lawsuits — particularly suits brought by non-practicing entities. The most infamous of these NPEs targeting WiFi is probably Innovatio IP Ventures LLC, who has accused thousands of businesses of
(Note: the subject matter of this post is a bit off-topic for this blog, but with all of the attention being paid to non-meritorious patent lawsuits and potential solutions, we thought this warranted mentioning.)
Patent litigation, like most litigation in this country, is generally controlled by the “American Rule” — the general rule that each party pays its own litigation-related costs and attorneys’ fees. This stands in contrast to the rules in other countries such as England, where the losing party generally pays the other’s attorneys’ fees. There are exceptions to the American Rule in various jurisdictions and types of litigations, including the patent-related provision in 35 U.S.C. § 285.
Section 285 provides that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” However, it’s well-known that courts rarely award fees under Section 285 except in the most egregious circumstances (in fact, we recently posted a patent alert about a denial of fees). Under current Federal Circuit precedent, cases are only deemed exceptional if there has been litigation misconduct or fraud in securing the patent, or if an infringer’s claim is both objectively baseless and brought in subjective bad faith. See Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 687 F.3d 1300, 1308 (Fed. Cir. 2012).
In a recent petition for certiorari, Octane Fitness LLC has asked the U.S. Supreme Court to overturn this precedent and make it easier for prevailing patent infringement defendants to recover attorneys’ fees from infringement plaintiffs.
Continue Reading Is Section 285’s “exceptional case” requirement too exceptionally hard to satisfy?
Patents have been getting a lot of attention on Capitol Hill lately, with the reintroduced SHIELD Act and the recent Congressional hearing on “abusive patent litigation.” Next week patents will get even more airtime, as the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet will hold a hearing titled Abusive
Recently Apple explained to the ITC that many of the standard-essential patents asserted by Samsung against Apple have failed under the scrutiny of litigation, resulting in a finding of non-infringement or invalidity. Well, Apple can now chalk up another SEP win on the board, although one that has nothing to do with Samsung. Yesterday, Judge Sue Robinson of the U.S. District Court for the District of Delaware ruled on summary judgment that Apple does not infringe two patents alleged by Golden Bridge Technology to be essential to the 3G W-CDMA wireless telecommunications standard.
Golden Bridge is a noted non-practicing entity whose “primary business is the creation, licensing, and enforcement of Wideband CDMA technology and intellectual property.” The company is involved in several lawsuits over its allegedly-essential cellular technology, and even brought (and lost) an antitrust case against several mobile device makers a few years back, where it had accused the mobile device companies of excluding Golden Bridge’s technology from the standard-setting process.
Continue Reading Delaware court says Apple does not infringe Golden Bridge W-CDMA patents