With spring in the air, it is time to take another look at current news in the world of patent troll litigation. By now full-fledged media darlings, patent infringement lawsuits filed by non-practicing entities are everywhere you turn, garnering not just upvotes on Hackernews, retweets on Twitter, but time in the halls of Congress and the White House.
USPTO Hosts Silicon Valley Round Table
Patent trolls, otherwise known as non-practicing entities (“NPEs”) or patent-assertion entities (“PAEs”), are often vilified in legal scholarship and, lately, in the mainstream media as well. Without the USPTO granting slews of software patents, however, there would be fewer patents for these non-practicing entities to assert. Some of the current hand wringing over the epic rise in patent litigation of late focuses, as a result, on the USPTO. Accordingly, many were delighted when, last November, the USPTO announced its new director for the soon-to-open Silicon Valley satellite office. Michelle Lee, formerly a lawyer at Google, had scribed publically about the need for patent reform and specifically called out trolls. Consequently, her hire prompted much rejoicing.
Following this heralded move, the USPTO announced a “software partnership” roundtable session in Silicon Valley—ground zero for software innovation. At the meeting, held on February 12, stakeholders shared thoughts on software patents. The audio, for those inclined, is available here, here, and here. Colleen Chien, author of many groundbreaking studies on PAEs, explored the possibility of utilizing heightened application of 35 U.S.C. § 112(f) to construe patents as functional. Professor Chien analyzed several arguably functional patents including U.S. 5,930,474, which GeoTag asserted against 435 defendants in 115 lawsuits. The scope of patents like GeoTag’s would likely be “limited to the technology the patentee actually designed and equivalents known at the time the patent issued” in litigation should 112(f) be so constrained. According to proponents, such a limitation could profoundly affect many patents currently asserted in troll litigation. Horacio Gutierrez, Corporate Vice President and Deputy General Counsel at Microsoft, also presented some thoughts about potentially limiting § 112(f). He noted that more rigorous enforcement of § 112(f) is “one part of the solution.” However, according to Mr. Gutierrez, this solution would not address issues such as inadequate notice and excessive breadth.