Cross-posted on the Disruptive Competition Project. Today, April 26, is World Intellectual Property Day. And in the U.S., Congress is granted the power to create copyrights and patents—two key forms of intellectual property—in the Constitution. Article I, Section 8, Clause 8, grants Congress the power to “promote the Progress of Science and useful Arts, by…
Blog Posts
Discretionary Denials at the PTAB Continue to Rise, Benefit NPEs
by Josh Landau •
According to new data from Unified Patents, the rise in discretionary denials at the PTAB is showing no signs of slowing down. In 2019, there were 6 denials based on co-pending litigation (so-called § 314(a) or Fintiv denials). In these denials, the PTAB decides not to institute an inter partes review based primarily on related…
When Does “Without Ads” Mean “With Ads”? When You Want To Abuse A Patent
by Josh Landau •
Funimation is a successful anime streaming company. It has a monthly subscription tier, which is ad-free, and a free tier, which includes advertisement. This week, failed company Firtiva filed a lawsuit against Funimation. The lawsuit asserts that Funimation violates Firtiva’s patent, U.S. 10,116,999, titled “Method for advertisers to sponsor broadcasts without commercials.” “Without commercials” apparently…
One Case, All The Problems: VLSI v. Intel Exemplifies Current Issues In Patent Litigation
by Josh Landau •
Patent litigation suffers from a number of issues at present. Hedge funds backing non-practicing entities (NPEs) in order to chase a share of billion-dollar judgments. Plaintiffs using damages methodologies that have little to no relation to the reality of the patent system in order to obtain those billion dollar judgments. NPEs asserting patents that they…
Appropriateness Of APJ Appointments To Be Argued Monday In Arthrex
by Josh Landau •
On Monday, the Supreme Court will hear oral argument in U.S. v. Arthrex (also referred to as Arthrex v. Smith & Nephew, one of the consolidated cases at issue). The appeal, which will address whether the appointment of PTAB judges is constitutional under the Appointments Clause, is the most important patent case being heard by…
New Study Shows That IPR Delivers An Economic Benefit, Even If The District Court Doesn’t Stay Litigation
by Josh Landau •
New research from the Perryman Group shows that inter partes review (IPR) is economically beneficial, even if co-pending district court litigation isn’t stayed. The Perryman study, commissioned by Unified Patents, examines IPR’s economic impact, including the difference between staying or continuing on with a co-pending district court case. There are two important findings in this…
Senator Leahy to Take Chair of IP Subcommittee
by Josh Landau •
I’ve been informed that, contrary to what many expected, Senator Leahy will be taking over the Chair of the Senate Judiciary Subcommittee on Intellectual Property, with Senator Coons moving to a newly reconstituted Privacy, Technology, and the Law Subcommittee. Senator Leahy was one of the authors of the 2011 America Invents Act (AIA), and may…
Fintiv Denials Playing a Role in Huawei Assertion Campaign
by Josh Landau •
Whenever we discuss the U.S. patent system, it’s critical to recall that while these patents are U.S. patents, anyone in the world can obtain one. And they do. In fact, in FY2020, of the 399,055 patents issued by the USPTO, 210,695—more than half—were obtained by residents of foreign countries. Any changes that are made to…
All Hands on Deck: Ensuring Innovation, Not Just Patents, From All
by Josh Landau •
As the Iancu era at the U.S. Patent and Trademark Office comes to a close, one of the USPTO’s initiatives has focused on promoting diversity in patenting. The newly established National Council on Expanding American Innovation, and the associated USPTO request for comments on a national strategy for expanding innovation, focus on having under-represented groups…
Unwired Planet, International Chaos
by Josh Landau •
Late last August, the UK Supreme Court issued a ruling in Unwired Planet permitting UK courts to assert jurisdiction over worldwide rate-setting in standard-essential patent (SEP) disputes. I predicted that this would lead to widespread chaos, with companies picking different jurisdictions and attempting to obtain a better rate in one forum than the other. I…