Assignment 8: The Political Battle Against Patent Trolls

In the past month, more than 50 law professors and economists sent a joint letter to Congress, asking government officials to crack down on patent trolls. They argue that these trolls are inhibiting R&D and venture capital investing, essentially preventing innovation from occurring.

Economists and analysts cite a number of studies that find "the more R&D a firm performs, the more likely it is to be hit with a patent lawsuit" and "associates lawsuits from PAEs with a decline of billions of dollars of venture capital investment." Patent trolls on the other hand, argue that the current system "is effective for promoting innovation." Fortunately for patent trolls and unfortunately for companies attempting to innovate, patent lawsuits are cheap to file but expensive to defend.

Congress has already tried and failed to reform patent law twice in the past 5 years. However, recent court battles and media controversy has alerted and informed both political parties and the three branches that patent reform is necessary, if just to provide transparency to the inner workings of patents and their trolls.

Assignment 7B: Beneficial Innovations vs. Google

In January of 2014, Google won a trial against patent troll Beneficial Innovations. The patent troll sued multiple media companies over infringement of online advertisement patents. However, Google did not stand by and defend against the patent troll's attacks, as is typical of a troll lawsuit. Google instead went on the offensive and argued that the troll had violated contract by proposing this lawsuit.

Google had already paid for a license to use the patents in question, and since the other media companies were clients of Google's licensed technology, Google argued that these other firms should be free of blame.

Google won the case, but only received damages of $1 as well as a court order preventing Beneficial Innovations from suing other companies that use Google's technology.

A few months later, however, the judge ruled that Google should also be able to collect attorneys' fees, bringing Google's payment amount up to $1.3 million and a dollar.

The significance of this case is not that Google won some money, but that the company won against a patent troll. In very few cases do the defendant actually win against patent trolls, as it is their specialty and lifeblood to learn the intricacies of patent litigation. This court case win is like a bulldog in front of the Google house, an unfriendly reminder that Google can and will fight back.

Assignment 7A: Introduction to Patent Trolls

The term "patent troll" is, of course, not an official one. It is used to describe people or companies that use patents not as a tool to defend their own works, but as one to attack other entities. Officially called a patent holding company (PHC), patent assertion entity (PAE), or non-practicing entity (NPE), a patent troll can obtain patents through two ways:

1. Buying them at patent auctions where bankrupt companies often try to liquidate assets
2. Prove that the troll company itself had the idea first

After acquiring the target patents, trolls engage in lawsuits against companies that infringe on the patents. In addition to this, trolls can also just present infringing companies with the threat of a lawsuit. This forces the infringing companies to stop production in fear that a lawsuit could steal everything.

According to Business Insider, the biggest patent troll in 2012 was Intellectual Ventures. This company holds anywhere between 10,000 to 60,000 patents, depending on whom you ask. Not much is known about this company, other than the fact that it holds hundreds of subsidiaries to carry thousands of patents.

As you can tell, patent trolls are extremely powerful organizations, holding the power to make or break other companies. However, they are not invincible. Take for example, Beneficial Innovations' case against media giants including Google, which is what I will discuss in my next post!

Assignment 6B: Further Discussion of Obviousness

Hi everyone,

First off, I will be referencing to this YouTube video:

First off, the video establishes credibility--whoever is speaking comes from a firm that specializes in patent law. This is extremely important as the patent process is a long and grueling one.

Now to the speaker: the speaker is very clear, offers examples, stresses key points, and the video editing is such that it provides strategic pauses. All of these points together lend the viewer a sense of peace and safety--there is time to understand the material, examples to show real-life scenarios, and not so much information that would overwhelm a listener.

Now to the content: the content is split into two parts--novelty and obviousness. While this week we are focusing primarily on obviousness, it is important that he mention both in the same video as they are connected to each other. Novelty is associated with a single prior art, whereas obviousness is associated with more than 1. By explaining them in conjunction with each other, he enables the viewer to understand the difference and as a result, build a better patent application.

Most importantly, the speaker does not overwhelm the viewer. Almost every other article and video seeks to explain obviousness very succinctly (too little information) or very in-depth (too much information). This video provides the basics, but also backs them up with examples, leaving the step-by-step process for the next video.

Assignment 6A: Defining Obviousness

Hi everyone,

This week I will be taking a deep-dive into background, definition, and applications of obviousness. Obviousness is typically the most difficult obstacle to overcome for would-be inventors, as the law makes this condition seem difficult to understand, subjective, and even arbitrary.

The concept of and requirement for obviousness came about as a result of the United States Supreme Court case of Graham v. John Deere. The trial determined a 4-step process for analyzing the level of obviousness for a patent:

1. Determine the scope and content of the prior art
2. Ascertain the differences between the claimed invention and the prior art
3. Resolve the level of ordinary skill in the pertinent art
4. Consider objective indicia of non-obviousness

As you can tell, the definition/process of obviousness is not so clear. After looking through the internet, I found a suitable and easier-to-understand definition:

"With obviousness we are asking whether there is any combination of prior art references that when put together would be the invention in question. In other words, could an ordinary mechanic create your invention or was there some kind of non-obvious innovation."

 A more refined set of criteria (if even one of these criteria is met, then the patent is considered obvious) to determine obviousness is the following:

1. If the invention is a product of combining prior art elements and yields predictable results, the invention is obvious.
2. If the invention is created through a substitution of one known element for another to obtain predictable results, the invention is obvious.
3. If the invention is achieved by using a known technique to improve a similar device in the same way, the invention is obvious.
4. If the invention is created by applying a known improvement technique in a way that would yield predictable results, the invention is obvious.
5. If the invention is achieved from choosing a finite number of identifiable, predictable solutions that have a reasonable expectation to succeed, the invention is obvious.
6. If known work prompts variations based on design incentives or market forces and the variations are predictable to one of skill in the art, the invention is obvious.