The Digital Pulse of the Patentsphere
We've been in a bit of a summer slump. Maine-like weather makes it hard to stay inside. We decided we'd better break out of our own summer slump and get back to work, so here is a chronicle of interesting and noteworthy things happening in intellectual property.
Last week USPTO dropped its weekly grants from its 5,500 range down to 3,599. It is never clear if this is a by-product of summer doldrums, the sequestration, or contract thresholds with their publications contractor. This week things returned to more normal with rates with grants back over 6,000. USPTO is up to 163,214 grants for a 7% year over year increase in its grant run rate over 2012.
Jonathan Band and the Marrakesh Treaty
We first met Jonathan Band a couple of years ago at the Global Congress on Intellectual Property and the Public Interest in Washington. (We were expecting progressive and left-leaning wing nuts at the gathering but instead found thoughtful civil society, legal, and business types who did the best job so far explaining the extreme complexity in issues related to IP and its impact on access to information in the age of the internet.) Mr. Band was an active participant. His work on IP, information technology, copyright issues, particularly issues related to libraries, information access and the internet, and access to published works for persons who are blind, visually impaired, or otherwise print disabled, is impressive and accessible to anyone taking the time to explore it. Like all matters related to IP, access to published works by the blind and print disabled looks simple on the surface but reveal a complex terrain of issues when you look closer.
This week Mr. Band released a User's Guide to the Marrakesh Treaty, a diplomatic conference of the World Intellectual Property Organization (WIPO) held in Marrakesh, Morocco that is creating the framework for providing this important information access. Mr. Band is a prolific writer whose thoughtful work can be accessed at his website policybandwidth.com. (Love the play on words.)
Standards Essential Patents
The Apple/Samsung epic battle for world domination of the smartphone business resulted in the Obama Administration vetoing the ban on importing certain older model Apple products covered by an International Trade Commission decision on patent infringement. We leave the nuances of the Smartphone patent wars to Florian Mueller and his FOSS Patents blog. Instead we want to shed a little light on the whole matter of standards essential patents, FRAND, and the whole imbroglio of the magical moment when someone's patent becomes a standards essential patent.
Here is a summary of the basis for the veto decision, the dissenting decision by ITC Commissioner Dean Pinkert via CNN Money:
- The patent in question was part — and only a tiny part — of an international standard, and as such Samsung had agreed to make it available for licensing under terms that are fair, reasonable and nondiscriminatory (FRAND).
- Samsung had made no effort to demonstrate that the licensing terms it offered Apple "satisfied an objective standard of reasonableness."
- That the only time Samsung made such an offer — in oral discussions in December 2012 — it came with strings attached to which Apple could not agree.
- While those strings were are blacked out in the document, Pinkert adds in the next sentence: "it is neither fair nor non-discriminatory for the holder of the FRAND-encumbered patent to require licenses to non-FRAND-encumberd patents as a condition for licensing its patent" (emphasis his).
Reading between the lines, it sounds like Samsung had refused to license its standard-essential patents (SEPs) unless Apple offered its non-essential iPhone patents -- the company's crown jewels -- in return.
Anyone who has ever taken a basic business law class knows that full line forcing and tying are a big time no-no and that Apple isn't about to hand over its portfolio of goodies to the honorable competition. (Note to Tim Cook, the $1,000/hour patent attorneys and ITC practitioners and the major amounts of agita that goes with these battles must be getting tiresome.) The interesting links on the subject are on the Link-O-Matic on the right.
Even The Mentalist Knows About Patents
By Sunday night most cable outlets have run out of steam and you are left with reruns of the Sunday news shows and their talking heads and old police procedurals in the "just the facts, Maam" genre. A Sunday rerun of The Mentalist had to do. In this episode The Mentalist, Patrick Jane, was taking a break from his relentless quest to find Red John to solve the kidnapping case of a software mogul. As the characters explored their options, the dialog that went something like this.
The Mentalist: "They are asking for $5 million in ransom. Do they have that kind of money?"Patents on a cop show. Patents may be jumping the shark.
Lead Cop: "He is a software engineer and he's got a bunch of patents. He has the money."
I'm Late, I'm Late for a Very Important Date
The ITC decision brought up issues surrounding patent litigation which in turn stirred up the talk of patent troll infringement cases which brought us back to the "momentum" in reigning in patent trolls. Lots of legislation, lots of cage rattling, and public appearances by legislative luminaries the only one of which owns patents is Daryl Issa. Perhaps a "we have momentum to stop the trolls" meme is momentum. Really?
At the risk of being cynical, GAO is late, very late, in delivering its analysis of NPE patent litigation. Lex Machina released a report with nine categories for classifying litigation and the players behind it which featured five categories of "I don't know." where they were unable to definitively identify the man behind the curtain, the Real-Party-In-Interest. No wonder GAO is having a headache. The number of patent infringement cases brought by NPEs, including the Trustees at Boston University, is growing because the America Invents Act requires that the patent trolls file separate lawsuits against each defendant. (Did the guys on the Hill really think making someone file separate cases was going to slow down guys with a valuable patent, deep pocketed investors, and a market analysis that shows a $20B market? There is still no news on when GAO is going to release its report. They are probably having some doldrums on their own and a really big headache.
Way Better Patents Is Responsive
Way Better Patents is a responsive website designed to work on all of your devices. Here are some tips for getting the most from your Way Better Patents user experience.
Responsive web design senses the size of the viewport (web talk for the size of your browser window) and changes the presentation of the content optimized to your device and orientation. This means that the site is designed to look good on all of your devices. We hate those "m." mobile websites even more than we hate having to scroll around on our smartphones to use a regular site on our small format digital stuff. (We are agnostic using both iPhones and Androids — an iPhone5 and a Samsung Galaxy) and tablets (iPads only at the moment). The Support page has tips on how some of the cool features work on your phones and tablets.
We are also responsive to our users. Please feel free to let us know what you need, what you love, and what you hate at firstname.lastname@example.org or use our Contact Form. They follow us where ever we go so we'll get your message right after you hit send. We'll do our best to get back to you the same day.
About Our Links
We like links but hate not knowing what we are getting until after we click. Too much screen detritus without much value. In the interest of not adding to the clutter, and making sure the visually impaired know what they are getting, most of our links use the Hyper Link Title Feature. When you hover over a link you'll get the details on what this link is about and hopefully whether it is worth your time to click.
We keep a list of the academic articles that we find interesting. Not necessarily the ones we like but the ones that we find thought provoking. They appear on The Latest from Way Better Patents page. We added a page that has all of the publications and their links so we can keep the list on The Latest fresh. Click the link to see the whole Thought Leadership List.
We added the latest list of browsers, data sources, and other interesting things to get the most out of using Way Better Patents to the Support Page. Please check it out.