When the Patent Trial and Appeal Board (PTAB or “Board”) first decided the IPR that led to the Fintiv rule, it justified its decision on the basis of “balanc[ing] considerations such as system efficiency, fairness, and patent quality.” But that rationale doesn’t hold up to the facts.
Blog Posts
Guest Post: A Solution to the OpenSky Problem
by patentprogress.org •
Joe Matal is a former Acting Director and Acting Solicitor of the USPTO and a current partner at Haynes and Boone, where he specializes in PTAB trials and Federal Circuit appeals. I have written several times about the $2.2 billion verdict in the VLSI v. Intel case. The case is extraordinary not just because of…
Fintiv Analysis Proves That Fintiv Is Being Used To Leave Likely Invalid Patents In Force
by Josh Landau •
A recently released study from Unified Patents has put numbers to the sense many patent attorneys already had—the Patent Trial and Appeal Board is spending a lot of time on Fintiv discretionary denial analysis. And I’ll follow up on that in a future post. But there’s one other thing that jumps out of the study’s…
Why SMART Isn’t Smart – Importing FRAND’s Flaws Into Copyright
by Josh Landau •
This piece was originally posted at the Disruptive Competition Project. “Intellectual property,” as a term, is a problem. It groups together areas of law that, while they may share some things, are fundamentally disalike. Copyright law has compulsory licenses and an independent creation defense; patent law has neither. Trademarks aren’t duration limited; copyrights and patents…
Is litigation finance turning justice into the newest financial asset?
by Josh Landau •
This op-ed was originally published at The Hill. The U.S. Supreme Court famously has the words “equal justice under the law” emblazoned above its front door. While the application of this phrase is subject to debate in the courtrooms, committee rooms, and kitchen tables of America, one point of agreement is that the law is supposed…
Yet Another Private Equity NPE at the ITC
by Josh Landau •
Stephen Breyer is retiring, Jeopardy has new hosts, and the Cincinnati Bengals have made the Super Bowl—the world changes constantly. Some things don’t change, though—patent trolls are still going to the ITC to try to extract huge payments from innovators under the threat of having their products barred from the U.S. market. This week’s contestant? …
Albright Names NPE Lawyer As New Magistrate Judge For Waco
by Josh Landau •
With the transformation of his Waco courtroom into the venue for more than 25% of all patent cases in the United States, Judge Albright can’t keep up with all the business he’s “drummed up” for his courtroom. He’s made heavy use of technical advisors—one of whom made more than $700,000 in the first half of…
The Pat-Signal Is Going Dark—Senator Leahy Won’t Seek Re-Election
by Josh Landau •
Senator Patrick Leahy (D-VT) has announced that he won’t be seeking re-election to the Senate for a ninth term. First elected in 1974, Senator Leahy has spent nearly 50 years in the Senate, focused on a wide variety of issues. Intellectual property is one of those issues, and it’s an issue where he’s been a…
Sens. Leahy and Tillis to Chief Justice Roberts: Something’s Up In Waco
by Josh Landau •
The Senate Judiciary Committee’s IP Subcommittee had an active day yesterday with members sending out a pair of letters that suggest that they see some serious problems in the patent system. The first letter, sent by both Chairman Leahy and Ranking Member Tillis to Chief Justice Roberts, in his role as head of the Judicial…
Widespread Support for IEEE 2015 Patent Policy
by Josh Landau •
In 2015, the IEEE made changes to its Patent Policy for standard-essential patents (SEPs). Among other things, that policy strongly disfavored seeking injunctive relief for SEPs because injunctive relief permits using the threat of enjoining an entire product to extract a royalty that covers more than the value contributed by the patent. The policy also…