IP Market Updates
October 3, 2016
There have been quite a bit of interesting developments in the IP marketplace since our last issue. In the US, the Federal Circuit (which hears all the appeals from both district courts and the PTAB) has been trying to bring some clarity to the ever confusing concept of “abstract idea” introduced by the Supreme Court in re: Alice, and which has caused the invalidation of many patents (especially software patents). A few recent decisions, although not always quite as consistent as one would wish for, have nevertheless brought a better set of examples of what can be claimed validly and not. The problem though is that for most inventors it is too late to go back and modify the way they initially drafted their patent…
Meanwhile, the PTAB, despite a few slaps on the wrist from the courts, continues to chop off patents at an astounding rate through the Inter Partes Review (IPR) process. It will be very interesting to see whether the US Supreme court accepts to hear a couple of cases this fall, that are challenging the constitutionality of the whole IPR system.
On the bright side, the impact of the Halo Striker case (lowering the bar for awarding enhanced damages) by the same Supreme Court summer is starting to trickle down and some case have been remanded and judges have indeed increased the damages initially awarded. A victory last Friday by Non-Practicing Entity VirnetX against Apple for over $300 million, significant enough by itself, will be the first large award since Halo Striker to look at treble damages under the new test and the market will be watching.
According to the latest statistics, new patent filings in the US are down noticeably since last year, which may reflect a decreased confidence by inventors that the legal system will adequately protect their interests. And not surprisingly, new patent lawsuits in the US are back to their historical level (apprx. 5000/year) after a dip last year. Many attribute this to the fact that most “efficient infringers” are simply not interested in entertaining licensing discussions with patent owners in the current environment, and litigation often becomes the only way to get their attention and open a dialogue … Elsewhere around the globe, we see the exact opposite and patent filings are generally up, as there is increased demand for related European and Asian (especially Chinese) patents by acquirers, in order to de-risk the uncertainty of a corresponding US portfolio while the market comes back to a more neutral environment (with some anxiety as to what Brexit might do the upcoming Unitary European Patent system).
All in all, the market for IP is still pretty soft; valuations -which were down significantly from 2 years ago- haven’t yet started to move up yet, but we are seeing an upward trend over time as the pendulum continues to swing back towards a more balanced approach between protecting the innovators and preventing abusive litigation. As such, we see several new buyers entering the field. This tendency could accelerate if we see either a few large awards that treble damages against willful infringers, a decision from the Supreme Court that curtails the devastating (for patent owners) IPR process, and/or a more seminal decision from an en banc Federal Circuit that clarifies once and for all the boundaries of what constitutes an “abstract idea” and restores some predictability into the hundreds of thousands software patents still in force.
Below are selected news and interesting articles from the last couple of weeks that you might enjoy.
Apple Just Lost Its Patent Retrial To VirnetX
IN THE NEWS
A federal jury in Texas on Friday night ordered Apple to pay more than $302 million in damages for using VirnetX Holding Corp's patented internet ... (more)
First Amendment Finally Reaches Patent Law
The big news from Intellectual Ventures v. Symantec (Fed. Cir. 2016) is not that the court found IV's content identification system patents invalid as ... (more)
Germany's Bosch Files Patent Suit Against South Korea's Mando
Branding in Asia Magazine
Germany's Bosch Files Patent Suit Against South Korea's Mando. "We will prove that Bosch's claims are groundless should the lawsuit proceed," ... (more)
How I Discovered Strong Patents Are Critical for America
Our strong patent system has been the foundation for America's transformation from an agrarian backwater to the world's leading economy over the ... (more)
Patent Rights in the U.S.: Is the Pendulum Finally Swinging Back to Center?
The U.S. patent system has long struggled to strike a balance that both encourages patent rights and prevents patent abuse. Finding that balance ... (more)
Here's the patent that could crush Monsanto and save the world
Monsanto has a new enemy… fungi. Mycologist Paul Stamets holds a patent for insect-killing fungi – ormycopesticides – that could disrupt the ... (more)
Patent litigation: A smart way to manage your costs
Tech City News
Some businesses see the real value in acquiring IP assets, including patents, whilst others let their position fall to the wayside. Many small businesses ... (more)
“Patents are bulls–t,” says Newegg Chief Legal Officer Lee Cheng
Lee Cheng is one of the few attorneys to fight back against patent trolls and prevail. And at the latest Ars Live event, we talked to him about his most ... (more)
Intellectual Ventures' Global Good Fund wins 'Patents for Humanity' award from USPTO
When looking for a solution to a tough humanitarian issue, patents are rarely the first thing on anyone's mind. But the U.S. Patent and Trademark ... (more)
Correlation of US Patent System and Productivity Growth
“Without a limited exclusive rightin a patent, there is simply no incentive to perform risky and expensive research because anyone can steal the ... (more)
Will Yahoo Feed the Patent Trolls?
Yahoo, like many tech companies, maintained a large portfolio of patents and patent applications. However, when Verizon recently purchased Yahoo ... (more)
Post-Grant Review May Be Used to Invalidate Patents Directed to Patent-Ineligible Subject Matter
Addressing patent-eligible subject matter issues, the Patent Trial and Appeal Board (PTAB or Board) issued a final written decision in a post-grant ... (more)
Federal Circuit Provides Additional Support to Software Patents
The federal circuit recently reversed a decision in McRO, Inc. v. DBA Planet Blue that asserted claims in patents at issue, relating to a method for ... (more)
With the “troll” threat reducing, the case for defensive patent aggregation may no longer be as ...
The week before last I hosted a webinar for IAM Market entitled Readying a Patent Portfolio for Sale: What You Need to Know to Be Successful. (more)
What Brexit means for UK, EU intellectual property rights
Minneapolis Star Tribune
The good news is that Brexit will have no effect on European patents or patent applications. European patents are granted by the European Patent ... (more)
The Current State of Computer Software Patentability
The Legal Intelligencer
What many people do not realize is that Samuel Morse, inventor of Morse code, fought a protracted battle to protect his patent rights. One of his patent ... (more)
Does Europe Issue Better Patents than the US?
European Patent Office president said his office scrutinizes patent applications more closely than the USPTO, which results inpatents that are more ... (more)
Assessing the Current State of Patent Value
Over the last 10years patent value has eroded little by little, starting first with thelost of a presumptive right to an injunction with the Supreme Court ... (more)