Patent Progress provides useful information and timely analysis for navigating the high-tech patent landscape. We address the patent wars, trolls and privateers that have engulfed the technology sector in an unprecedented storm of multi-jurisdictional, worldwide patent litigation, along with the conflicting incentives and systemic failure at the heart of the crisis. Patent Progress explains the misalignments and asymmetries and how the system can be reformed to promote innovation instead of conflict and litigation.
Patent Progress is a project of the Computer & Communications Industry Association (CCIA). CCIA was created 40 years ago by technology companies that found their attempts to enter the hardware, software and telecommunications markets blocked by incumbents. Since then CCIA has fought for competition, innovation and open markets in technology. While CCIA has long been concerned about the anti-competitive use of patents, the use of the patent system to thwart competition and innovation has recently become a very serious problem in the U.S.
Because patents and patent litigation are difficult to follow, CCIA has created Patent Progress as a public resource for accurate information. The Resource Center includes case summaries of active and inactive patent litigation in the U.S. Courts and before the International Trade Commission, links to key filings and copies of the patents being litigated. It will also include our commentary on these cases as we write on issues relevant to the cases. The Resource Center also includes copies of bills being considered in Congress.
If you would like to contact us, please click here.
If you believe in our mission and have ideas for blog posts or are interested in becoming a contributor, please contact us. We strongly suggest that you comment on some posts first and become an informal contributor.
Patent trolls, commonly referred to as “non-practicing entities” (NPEs) or more accurate as “patent assertion entities” (PAEs), assert patents against companies that have inadvertently incorporated patented technology into their products. Although trolls are sometimes the original inventor or applicant for the patent, they usually acquire patents through a subsequent transaction. Since trolls generally do not produce or sell anything, they are not at risk of infringing other patents, allowing them to assert patents aggressively without fear of retaliation. Often defendants, especially smaller companies and startups, will choose to settle to avoid expending time and resources on costly litigation.
A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it.
A narrower term for trolls that focuses on the core business model rather than whether the entity is actually making use of the patented technology (“working the patent”). As their name implies, they generate revenue from asserting their patents to obtain licensing fees, settlements or court-mandated damages.
Privateering is a recent development in which large companies work with trolls, explicitly or implicitly, to attack their rivals. In one common form, companies license patents to allies, retain a license for themselves, and then sell the patents to trolls who can use them to attack unlicensed third-parties. Unlike the company that originally owned the patents, the troll can go after that company’s rivals full force without fear of retaliation or reputational damage. A variation on privateering includes spinning patents off into shell companies that become patent assertion entities.
The Federal Circuit is short for the Court of Appeals for the Federal Circuit, also abbreviated CAFC. The Federal Circuit is a specialized appeals court that hears all appeals of federal district court decisions on patent litigation. Traditionally, when a district court case is appealed, it moves up to the regional circuit court that has appellate jurisdiction over the district court. The Federal Circuit was intended to make patent law more uniform, but it became a “booster of its specialty,” making patents easier to get, easier to assert, harder to invalidate, and available for abstract subject matter.
The International Trade Commission (ITC) is an independent, quasi-judicial federal agency that has the power to block imports into the United States for “unfair trade practices,” including patent infringement. Through the ITC, it is possible to get an exclusion order as a result of a 337 action, which permits patent owners to exclude from entry into the United States goods found to infringe a U.S. patent. Following the Supreme Court’s 2006 eBay decision, which made injunctions–particularly for non-producing entities–more difficult to obtain in patent infringement cases before the federal courts, the ITC has seen a marked increase in patent infringement complaints. With an average case length between 12 and 15 months, ITC cases are usually resolved more quickly than district court cases, but the ITC cannot award damages. Once the Administrative Law Judge (ALJ) rules on a case, following a recommendation by ITC staff, the ITC’s six commissioners vote on whether to uphold or reverse the ALJ’s decision. Following the ITC decision, the president has 60 days to override the ITC’s order. If the president does not act within 60 days, the ITC’s import ban takes effect.
Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. Business method and software patents are utility patents.
Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. Design patents do not overlap with utility patents; they are expressly limited from applying to any functional characteristic or attribute. A design patent may only protect ornamental, non-functional qualities. Smartphones may be covered by design patents in addition to utility patents.
Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.