Thursday, November 01, 2007

Wi-LAN Experiments with the "CSIRO Approach" to Injunctions

Yesterday, it was announced that Wi-LAN filed two separate lawsuits in the ED Tex. against over 22 companies alleging infringement of three of its patents, two of which relate to Wi-Fi technology and one that involves power consumption in DSL (digital subscriber line) products.

A number of interesting side-notes to this litigation:

The effect of Medimmune - Jim Skippen, chief executive of Wi-LAN, spoke to about the litigation, and commented on how Medimmune affected his enforcement strategy. Instead of facing the possibility of one or more declaratory judgement actions, Wi-LAN chose the "sue first, ask questions later" approach: "We were concerned that we would be forced into other courts through declaratory-judgement actions if we did not sue virtually all of the likely defendants."

Increasing the number of defendants - following recent trends in "non-practicing entity" (NPE) patent litigation, Wi-LAN found it beneficial to clump multiple defendants in each action. While minimizing the risks of DJ actions, Wi-LAN commented that there are "significant economies of scale" in suing multiple defendants.

Transforming NPE's into "research institutions" - Earlier in June, the ED Tex. heard the case of CSIRO v. Buffalo Technology, Inc., E.D. Tex. (see 271 blog coverage here), where Judge Davis carved out a de facto "research group" exemption to permanent injunctions. From the order granting a permanent injunction to CSIRO:

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 . . . 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.

Now - and don't say you didn't see this coming - Wi-LAN is in the research business. From CNNMoney:

On Oct. 10, Wi-LAN announced the hiring of Robert Wu, who will head a small research and development team at Wi-LAN tasked with developing wireless technologies and patents. In Thursday's interview, Skippen said the team will consist of three to four engineers and will work on problems like bringing WiMAX technology directly into the home. Skippen didn't quantify the team's budget, but said it was "relatively modest." He also noted that Wi-LAN provides funding to some universities conducting research into wireless technology.

In addition to providing Wi-LAN with future patents, Skippen acknowledged that the firm's research and development activities and university funding may also help the firm obtain permanent injunctions in litigation, as the courts could recognize the firm's status as a research and development organization.

View Wi-LAN's complaints (link1) (link2).

See article "Wi-LAN Goes Big, Sues 22 Firms For Patent Infringement" (link)

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