Thursday, December 16, 2010

*** USPTO Announces First Satellite Office In Detroit ***

"Take him to . . . Detroit!"
- Dr. Klahn, Kentucky Fried Movie (1977)

Commerce Secretary Gary Locke announced today that the USPTO will be opening a satellite office in Detroit, Michigan.  Detroit is the first of (hopefully) a larger number of satellite offices planned for the agency, and is initially slated to house 100 examiners, plus a smaller number of support and administration personnel. Detroit beat out more than a dozen other cities across the nation to get the satellite office - congratulations!


While a specific site has not been selected yet, Commerce Department officials expect to sign a lease as soon as February, with hiring to begin in the spring.  As residents of the area know very well (I was born and raised there), it would be shocking if the agency selects a location in the city itself (God forbid).  Likely candidates would be locations in the northern suburbs (Troy, Rochester), or possibly on the west side, near the airport. 

Why Detroit?  Because of research and development done by the auto industry, Michigan has more applicants than most other states (see here for the USPTO statistics).  Also, real estate prices are dirt cheap - the home value index of Detroit properties are almost half that of properties in, say, New Orleans or Des Moines, Iowa.

Most of the hiring for the office will be done from the Detroit area and that announcements for vacancies should be posted on the agency’s website -- www.uspto.gov – and on the federal government’s employment site - www.usajobs.opm.gov – in early spring.



See Detroit Free Press: "Eureka! Patent Office picks Detroit" (link)

See also Gene Quinn at the IP Watchdog: "Detroit, Michigan Announced as First Regional Patent Office"
(link)


Wednesday, December 08, 2010

*** Intellectual Ventures Launches Massive Litigation Across 3 Industries ***

"Gentlemen, you can't fight in here - This is the War Room!
         -- President Merkin Muffley (Dr. Strangelove, 1964)
For some, this was a surprise.  For most everyone else, it was a matter of "what took so long?"

From this morning's newswire:
Today Intellectual Ventures ("IV") enforced its rights and filed patent infringement complaints in the U.S. District Court of Delaware against companies in the software security; dynamic random access memory (DRAM) and Flash memory; and field-programmable gate array (FPGA) industries.
"Over the years, Intellectual Ventures has successfully negotiated license agreements with some of the top technology companies in the world. However, some companies have chosen to ignore our requests for good faith negotiations and discussions," stated Melissa A. Finocchio, Chief Litigation Counsel, Intellectual Ventures. "Protecting our invention rights through these actions is the right choice for our investors, inventors and current licensees."
Despite the creation of a "Patent Defense Fund" (to protect against patent trolls, don't-you-know) and assurances that IV is "opposed to litigation" (for more on that, see here), IV has decided to launch 3 lawsuits involving over 10 patents in the following industries:
Software Security - defendants include Check Point Software, McAfee, Inc., Symantec and Trend Micro.  To view the complaint, click here.

DRAM / Flash RAM Memory - defendants include Elpida Memory Inc., and Hynix Semiconductor.  To view the complaint, click here.

Field-Programmable Gate Arrays (FPGA) - defendants include Altera Corp., Lattice Semiconductor and Microsemi.  To view the complaint, click here.
Interestingly, IV refers to itself in the complaint as "Intellectual Ventures I" and "Intellectual Ventures II" and notes that "[a] significant aspect of Intellectual Venture's business is managing the two plaintiffs in this case, Plaintiff Intellectual Ventures I and Plaintiff Intellectual Ventures II."  No explanation is given as to how this split is arranged from a business perspective.

However, IV does mention that it "has purchased more than 30,000 assets and . . . has earned nearly $2 billion by licensing these patents to some of the world's most innovative and successful technology companies who continue to use them."

IV also describes itself as a scientific research entity that "has a staff of scientists and engineers who develop ideas" and "has invested millions of dollars developing such ideas . . . [and] has also invested in laboratory facilities to assist with the development and testing of new ideas."

This could be significant, since research entities are given a little more slack when seeking injunctions in a post-eBay world.  In CSIRO v. Buffalo Technology, Inc., E.D. Tex. (6:06-CV-324), June 15, 2007, the district court made the following "irreparable harm" determination on CSIRO (a non-practicing entity) when it granted a permanent injunction:
The majority opinion in eBay rejected the conclusion that “a ‘plaintiff’s willingness to license its patents’ and ‘its lack of commercial activity in practicing the patents’ would be sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not issue.”


CSIRO has shown that its harm is not merely financial. While CSIRO does not compete with Buffalo for market share, CSIRO does compete internationally with other research groups—such as universities—for resources, ideas, and the best scientific minds to transform those ideas into realities. CSIRO’s reputation is an important element in recruiting the top scientists in the world. Having its patents challenged via the courts not only impugns CSIRO’s reputation as a leading scientific research entity but forces it to divert millions of dollars away from research and into litigation costs. Delays in funding result in lost research capabilities, lost pportunities to develop additional research capabilities, lost opportunities to accelerate existing projects or begin new projects. Once those opportunities have passed, they are often lost for good, as another entity takes advantage of the opportunity. Delays in research are likely to result in important knowledge not being developed at all or CSIRO being pushed out of valuable fields as other research groups achieve critical intellectual property positions. Thus, the harm of lost opportunities is irreparable. They cannot be regained with future money because the opportunity that was lost already belongs to someone else.
Hang on to your hats . . .

Tuesday, December 07, 2010

PwC Publishes 2010 Patent Litigation Study

PriceWaterhouseCoopers (PwC) recently published its annual 2010 Patent Litigation Study, and this year's publication has some interesting data:

•  Despite a small uptick of granted patents in 2009, the number of filed patent actions dropped to 2,744, a decrease of over 6% from 2008.  This broke a 3-year trend of growth in case filings, since the last drop in 2005.  NPEs are involved in almost 20% of reported decisions


•  Annual median damages continue to hold steady - between 1995 and 2009, median damages ranged between $2.4M to $10.5M.  However, damage awards for NPEs averaged more than triple those for practicing entities since 2001 ($12.9M vs. $3.9M).


•  NPEs continue to be vulnerable to summary judgment - overall, NPEs have a 31% success rate versus 40% for practicing entities.  In instances when a final decision is made at summary judgment, NPEs are successful only 13% of the time (vs. 20% for practicing entities).  However, both have about a 2/3 win rate at trial.


•  NPEs have increased their success rate over the last 4 years.  In 2005, NPEs suffered from a decade-low success rate of 23%.  In 2009, the success rate jumped to 48%.


•  Declaratory judgment actions increase win rates fort alleged infringers.  However, the increased win rate is only significant when the patent holder is an NPE.


•  Despite the large volume of patent cases, median time-to-trial holds steady: 69% of cases reached trial within 3 years from the filing date of the initial complaint.


The Fastest Jurisdictions (Median Time-To-Trial, In Years):

  1. ED Virginia -- 0.93
  2. WD Wisconsin -- 1.07
  3. MD Florida -- 1.71
  4. D. Delaware -- 1.89
  5. SD Texas -- 2.00
  6. ED Texas -- 2.04
  7. SD Florida -- 2.27
  8. CD California -- 2.28
  9. ND Texas -- 2.42
  10. D. Minnesota -- 2.45
  11. SD New York -- 2.50
  12. D New Jersey -- 2.71
  13. ND California -- 2.95
  14. ND Illinois -- 3.42
  15. D. Massachusetts -- 3.64
The Most "Patent Friendly" Jurisdictions:
  1. ED Virginia
  2. D. Delaware
  3. ED Texas
  4. MD Florida
  5. CD California
  6. SD Texas
  7. WD Wisconsin
  8. ND California
  9. ND Texas
  10. ND Illinois
  11. D Minnesota (tie)
  12. D. New Jersey (tie)
  13. D Massachusetts
  14. SD New York
  15. SD Florida
Top 5 Districts by Overall Success:
  1. MD Florida -- 59.1% overall, 80% trial success rate
  2. ED Texas -- 55.3% overall, 66.7% trial success rate
  3. D. Delaware -- 47.3% overall, 64.5% trial success rate
  4. CD California -- 47% overall, 72.4% trial success rate
  5. ED Virginia - 45.9% overall, 70.6% trail success rate
Bottom 5 Districts by Overall Success:
  1. SD Florida -- 26.5% overall, 42.9% trial success rate
  2. D. New Jersey -- 32.2% overall, 57.9% trial success rate
  3. SD Texas -- 32.4% overall, 66.7% trial success rate
  4. WD Wisconsin -- 32.4% overall, 40% trial success rate
  5. ND California -- 33% overall, 71.1% trial success rate
For more details, you can download a free copy of the PwC study here (link)

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