Intellectual Property and Tech Law Reports

Defending intellectual property in an internet age

By Richard Waters

SpaceX is in a race for its life with the Chinese. The US venture says it has $3bn in orders under its belt, making it one of the early leaders in the commercial space industry. But founder Elon Musk is under no illusions about the existential risk to his business: the Chinese path to success in the commercial space industry, he says, runs over his company’s dead body.

What should a company, or an entire industry, that finds itself in Chinese cross-hairs do? One response at SpaceX, Mr Musk says, has been to avoid seeking patent protection for the company’s most important technology.

This may sound counter-intuitive. Isn’t this just the moment when tech companies should be laying legal claim to their secret sauce? Not at all. To file for patents, says Mr Musk, would be to hand his Chinese rivals “a recipe book”.

The most important stuff stays under lock and key. SpaceX only applies for patents on “things you could observe anyway”, Mr Musk says. It is a paranoia that is evident throughout Silicon Valley.

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Patents emerge as significant tech strategy

By Janet I. Tu

Seattle Times technology reporter

It seems not a week goes by these days without news of another patent battle or announcement: Microsoft reaching licensing agreements with various device manufacturers. Apple and various handset manufacturers filing suits and countersuits. Oracle suing Google over the use of Java in Android.

Not to mention barbed digs and jabs that company executives trade over blogs, Twitter and news releases.

One example:

After Microsoft and Samsung announced a patent-licensing agreement last month involving Google's Android operating system, Google issued a statement saying, in part: "This is the same tactic we've seen time and again from Microsoft. Failing to succeed in the smartphone market, they are resorting to legal measures to extort profit from others' achievements and hinder the pace of innovation."

Microsoft's PR chief Frank Shaw shot back via Twitter: "Let me boil down the Google statement ... from 48 words to 1: Waaaah."

So what gives? What's up with the spate of patent petulance?

The answer is that they're visible signs that technology companies' patent practices have evolved from using them to defend their own inventions to deploying them as a significant part of competitive strategies in the fast-growing mobile market.

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How to Navigate the New Patent Law

By Diana Ransom

Published September 16, 2011 | Entrepreneur.com

No matter who you talk to, most people agree: The nation's age-old patent system needed an overhaul. But now that it's a done deal, new challenges are surfacing that may make it harder for entrepreneurs and small-scale inventors to get patents.

Bringing an end to a long history of bungled reform attempts, President Barack Obama today signed a sweeping reform bill into law that promises to change the system for determining priority for inventions at the U.S. Patent and Trademark Office. Formally known as the America Invents Act, the law also aims to shore up more financing for an agency that's suffered through years-long applications backlogs and out-of-date computer systems.

"I think it's a positive move," says Gary Griswold, the former Chief Patent Intellectual Property Counsel for 3M and spokesman for the Coalition for 21st Century Patent Reform, a business lobby group based in Washington, D.C. "It provides for higher quality patents and a more rapidly performing Patent Office."

Many other organizations agree that the reforms will help reduce the time it takes to get a patent and tamp down on the number of frivolous patents. But many small-business owners and inventors remain largely unconvinced that the new law will carry any benefits for them.

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Tech Giants Seek to Clamp Down on Multi-Tentacled Patent Suits

A veritable who’s who of the technology world has joined a patent litigation battle that raises an interesting issue: Is it fair to bring a patent infringement suit against many unrelated defendants?

Here’s an article from WSJ’s Don Clark about the litigation, which now involves such heavy hitters as Microsoft, HP, Oracle, Cisco, Yahoo and SAP AG’s U.S. unit. The companies are not parties in the case, but they filed a brief yesterday in support of EMC Corp, the defendant in the patent case.

At issue is the practice of bringing a patent infringement suit against a large numbers of defendants, which are frequently in different businesses and find it hard to work together to defend charges—and thus often wind up agreeing to costly settlements, WSJ reports. Rules governing such cases are being tightened by the patent-reform legislation recently passed by Congress, which has lead plaintiffs to file a flurry of multi-defendant suits before the new rules take effect.

Each of the six companies “has been named in at least one multi-defendant lawsuit similar to the one in this case,” the tech companies said in the brief, which was filed with the U.S. Court of Appeals for the Federal Circuit. The brief called for the court “to put a permanent end to this abuse.”

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East Side Ovens named in patent suit

By Bruce Vielmetti of the Journal Sentinel

A small artisan bakery in Bay View has been named, along with more than a dozen corporate cookie makers, as a defendant in a patent infringement lawsuit by Brandeis University over the use of fats and blends to improve the ratio of good to bad cholesterol in their products.

Joining Brandeis as a plaintiff is its licensee for the two patents at issue, New Jersey-based GFA Brands, maker of Smart Balance foods.

The suit, filed in federal court in Madison, claims East Side Ovens and more than a dozen major food corporations - such as Nestle, Pillsbury and Unilever - are infringing on a patent for "Increasing the HDL Level in the HDL/LDL Ratio in Human Serum by Balancing Saturated and Polyunsaturated Dietary Fatty Acids."

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Mining Patent Gold: What Every CEO Should Know

By Marshall Phelps and John Cronin

In the weeks since Google acquired Motorola Mobility and its 17,000 patents for $12.5 billion, the media has engaged in an orgy of hand-wringing over a supposedly broken patent system that diverts resources away from innovation and towards litigation instead.

Ignore the histrionics. What the Google-Motorola deal actually proves is that innovation—and its embodiment in intellectual property—is more valuable and necessary than ever for market success. What’s more, patents are no longer simply akin to mining claims that give one the exclusive right to pan for gold. In many cases, patents are the gold itself.

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Patent reform OK'd; critics say it impedes start-ups

By John Schmid of the Journal Sentinel

As the nation's economy struggles to reduce persistent unemployment and avert a double-dip recession, the Senate on Thursday passed a sweeping overhaul of the American patent system that supporters touted as essential to job-creation but that critics decried as a strike against innovation and a sellout to big business.

"My prediction is that fewer new companies will be started and many universities will find it too expensive to patent technologies arising from their research," said Carl Gulbrandsen, managing director of the patent licensing arm of the University of Wisconsin-Madison, the Wisconsin Alumni Research Foundation.

The view in Washington was diametrically different: The Senate overwhelmingly approved the America Invents Act by a vote of 89-9, making it a rare piece of major economic legislation to achieve bipartisan support.

The bill, already passed by the House, was to be sent immediately to President Barack Obama, who has been a strong supporter.

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Patent Reform Passage Likely Today

The Senate has scheduled to vote on final passage of H.R. 1249 for 4 p.m. (ET) today.

A handful of amendments to the bill have been proposed. However, none of them are likely to be approved.

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Google Hands HTC Patents to Use Against Apple

By Phil Milford and Susan Decker

HTC Corp. (2498), Asia’s second-biggest smartphone maker, is using nine patents bought from Google Inc. (GOOG) last week to pursue new infringement claims against Apple Inc.

Google had taken ownership of the patents less than a year ago, with four of the patents originating from Motorola Inc., three from Openwave Systems Inc. and two from Palm Inc., according to U.S. Patent and Trademark Office records. Jim Prosser, a spokesman for Mountain View, California-based Google, wouldn’t discuss reasons for the nine transfers to HTC.

HTC now has more ammunition in its fight to fend off multiple patent-infringement claims lodged by Apple that contend phones running Google’s Android operating system copy the iPhone. Google’s involvement in aiding HTC represents a new front in an industrywide dispute over smartphone technology that has also ensnared Android customers Motorola Mobility Holdings Inc., Barnes & Noble Inc. and Samsung Electronics Co.

“That’s a bit of a game-changer,” said Will Stofega, a technology analyst at Framingham, Massachusetts-based IDC. “Google was interested in protecting its licensees with Android. It shows they need to support their customers in order to make sure the customers stick with them.”

HTC sued Apple yesterday in court and filed a complaint at the U.S. International Trade Commission, alleging infringement of the patents obtained from Google.

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Google, needing patents, buys Motorola wireless for $12.5 billion

By Casey Johnston

Google announced plans to acquire Motorola Mobility this morning for $12.5 billion in cash. One of Google's biggest motivations for the purchase is to bolster its patent profile, which has been under relentless attack by companies including Microsoft and Apple. With the purchase, Google will gain control of more than 17,000 mobile-related patents worldwide, with 7,000 more Motorola patent applications in the pipeline.

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