• News on Enhanced Damages

    1. The Stanford Program in Law, Science & Technology and Samsung Electronics are sponsoring an event this coming Friday, October 20 titled “Patent Law in Global Perspective,” which will include a session titled “The law of enhanced damages and how …

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  • A Deep Dive on NPE Outcomes

    I glibly commented on a friend’s Facebook post last week that “patent troll” academic articles are so passe, despite the growing number of articles that use that term as compared to, say, 2012. Now, I shouldn’t complain; given that my most cited article is called Patent Troll Myths (2012, naturally), I’d like to think that I’m driving that trend (of course, that’s what the folks who wrote in 2007 would say).

    But one of the reasons I joked about trolls being so 2012 is that this is where much of the detailed data comes from, and this is when the key articles that are cited by many were published. Indeed, I’ve published two follow-on articles to Patent Troll Myths, each of which contains more and better data (and thus took longer complete and published later), but which gets only a tiny fraction of the citation love of the original article.

    And so it is no surprise that the latest in a series of articles by Chris Cotropia (Richmond), Jay Kesan (Illinois), and David Schwartz (Northwestern) was released with little fanfare. The article, called Heterogeneity among Patent Plaintiffs: An Empirical Analysis of Patent Case Progression, Settlement, and Adjudication is forthcoming in Journal of Empirical Legal Studies, but a draft is on SSRN. Here is the abstract:

    This article empirically studies current claims that patent assertion entities (PAEs), sometimes referred to as ‘patent trolls’ or non-practicing entities (NPEs), behave badly in litigation by bringing frivolous patent infringement suits and seeking nuisance fee settlements. The study explores these claims by examining the relationship between the type of patentee-plaintiffs and litigation outcomes (e.g., settlement, grant of summary judgment, trial, and procedural dispositions), while taking into account, among other factors, the technology of the patents being asserted and the identity of the lawyers and judges. The study finds significant heterogeneity among different patent holder entity types. Individual inventors, failed operating companies, patent holding companies, and large patent aggregators each have distinct litigation strategies largely consistent with their economic posture and incentives. These PAEs appear to litigate differently from each other and from operating companies. Accordingly, to the extent any patent policy reform targets specific patent plaintiff types, such reforms should go beyond the practicing entity versus non-practicing entity distinction and understand how the proposed legislation would impact more granular and meaningful categories of patent owners.

    In my article A Generation of Patent Litigation, I presented data about how often cases settle, and how that skews our view of how long they last, and who wins. This article extends the authors’ earlier work on categorizing just who is filing NPE suits (in 2010 in this article), and asks when they settle for each and every defendant. This is hard work. In most of today’s cases, each defendant is sued separately, so when the defendant settles, the case is over. Analytics companies track this all the time…now.

    But in 2010, a patentee could sue 100 defendants at once, and you could not tell how long each remained in the case without tracking each defendant. If you only track the end of the case, you capture the one defendant who fought it out, but you miss all the defendants who exited early. The other added value of this series of papers is tracking all plaintiffs by type, rather than one big “NPE” status. I do this in The Layered Patent System, but I only had a subset of cases over a longer period of time, They have captured all of the cases in a single year.  I’ll discuss what this all means after the jump.

    There is a lot of data in the paper and it is worth a read. The primary takeaway for me is that not all NPEs behave the same. Patent holding companies (firms that exploit just a few purchased patents) tend to have shorter cases than operating companies (as do large patent aggregators). But among the shorter cases, patent holding companies have more really short cases (implying nuisance value settlement offers), while aggregators do not. And individuals (and inventor formed companies) tend to have longer cases, implying that they are not in it for nuisance value.

    These differences are reflected differently in win rates. Operating companies have better win rates, which is consistent with other work in this area (including mine and Allison, Lemley & Schwartz). Patent holding companies were not that far below (if they got to adjudication), but individuals were atrociously bad. The irony of this is that the most frivolous of the patent claims may not be the ones that are being offered for nuisance value. Analytically, this means that we might have to separately consider nuisance from merit as we think about harmful plaintiff behavior.

    Others might draw different conclusions from the data; the authors offer a few of their own, but I’ll leave it to them to tell you when you read the paper.

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  • The Patent Litigation Landscape in the Wake of TC Heartland & Cray

    In the wake of the Supreme Court’s decision in the TC Heartland case, as well as the Federal Circuit’s decision in In re Cray, many attorneys are speculating about how these decisions will change the patent litigation landscape.  Some predict that California, particularly the Northern District, will see an influx of patent cases that would normally have been filed in the Eastern District of Texas.  Others, however, feel that plaintiffs will seek out more favorable districts, such as Delaware. …

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  • Ghana taking strides

    Source: Wikipedia

    News coming in from Ghana in the past few weeks is that of a country gearing up for modern day innovation and growth with a recognition for robust IP systems.

    Airport Expansion
    SITA is providing its world-class passenger and baggage processing technology as well as its airport management solutions to Ghana’s new Terminal 3 at Kotoka International Airport in Accra, helping cement the airport’s position as a vital regional hub.
    The country’s aviation industry has witnessed significant growth over the past decade due to the discovery of petroleum and gas reserves, sustained domestic demand and the growth of the tourism sector.
    When Terminal 3 opens at the end of 2017, it will have six contact stands and two remote stands for long-range aircraft, including Airbus A380s, A330s and Boeing 777s and 787s.
    Hotel growth
    Marriott International announced a few days ago (Marriott International continues extensive expansion into Africa) that its 160 room Le Meridien Accra, owned by 4-Mac Limited will be strategically located close to the international airport and is scheduled to open in 2021. The hotel marks the debut of Le Meridien brand into Ghana.
    Online commerce and digital expansion
    A new UN report reveals momentum for digital payments in Ghana could save over GHS 1 billion within next four years. With 37 percent of the value of all payments now made digitally, Ghana is on course to be a leader in the region, with great potential to expand economic opportunities for businesses. Read the full Ghana Diagnostic report here.
    It is perhaps no co-incidence then that separate independent releases Ecobank and DHL relate to digital commerce services.
    Ecobank just launched their mVisa cashless payment system across 33 African countries using smartphone technology. Ecobank have a presence in Ghana.
    DHL Express then announced its partnership with MallforAfrica which will facilitate selling of made-in-Africa products to customers in the United States. Businesses can do so via the eBay platform powered by MallforAfrica. Through this partnership, DHL locations will serve as drop-off points for products destined for consumers in the United States. This will be the first time businesses in Africa can sell their locally manufactured products directly on eBay.
    DHL Express currently handles inbound express delivery for MallforAfrica and has enabled its customers importing from the US to receive their packages seamlessly in Nigeria, Kenya, Rwanda and Ghana.
    But what about intellectual property and innovation …?
    At the 2017 Innovation Prize for Africa event, held in Ghana’s capital Accra, a high-level roundtable discussed how best to support the next generation of innovators and entrepreneurs on the African continent.

    The panel included speakers like Ghana’s Minister of Environment, Science, Technology and Innovation Kwabena Frimpong-Boateng, African Innovation Foundation (AIF) founder Jean-Claude Bastos de Morais and Yofi Grant, the CEO of the Ghana Investment Promotion Centre (GIPC).
    They highlighted four barriers according to the report:
    1. Disconnect from the youth
    2. Inharmonious business environment
    3. Difficulties securing financing
    4. A need for strong intellectual property protection
    “…while Bethel [a member of both the AIF Board and UN committee of Experts in Public Administration] agreed the time-to-market approach [the focus on taking a product to market as a prerequisite over anything else including IP protection] may work in some countries, she expressed concern regarding the speed with which many foreign companies can replicate an idea, protect their IP rights and then market it globally.

    “So I believe the two really must go hand in hand, I don’t see that the one necessarily dominates the other. And my advice would be to protect your intellectual property.”

    See full report here.

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  • OUTER SIDE

                            目次はこちら

    OUTER SIDE

    –>outside

    $$ It will be understood that the inner side of the bogie is located, when the aircraft is on the ground, closer to the fuselage than the outer side. / 尚、航空機が地上にある時、ボギーの内側は、外側よりも、胴体により近付いて位置することを理解されたい。(USP8376273)

    $$ The opposite, outer side of the plate 25 is flat over the fourth region 223 to the outer edge of the plate. / その反対側であるダイアフラム板25の外側は、第4の領域223を越えてダイアフラム板の外側縁部に至るまで平坦である。(USP8235828)

    $$ Examples of possible embodiments are that the second unit is sealingly, removably, replaceably, magnetically or hingedly attached to an outer side of a surface of the first unit. / その可能な態様の例としては、第2ユニットを密閉式、取り外し自在、交換自在、磁力でまたはヒンジ式に第1ユニットの外面に取り付けることが挙げられる。(USP8162136)

    $$ Cover layers 3 and 4 in FIG. 1 are at the outer sides of the laminate and are, for example, mechanically protecting plastic sheets which hold the laminate together. / 図1のカバー層3、4は、積層体の外側にあるものであり、例えば、互いに積層体を保持する機械的保護性のプラスチックシートとする。(USP5929562)

    $$ The outer side of the coupling body has an encircling outer wall 16 formed integrally with the coupling body centrally along the body. (USP7100948)

    $$ It is found that the efficiency of gas exchange between chamber 7 and the inner and outer sides of the sheet is enhanced in the case of the second fabric… (USP5656352)

    $$ Supplementary side faces 26 allow light progressing sideways in semiconductor layers 6, 7 to escape from the chip without having to travel all the way to outer side faces 25. (USP01022495)

                            目次はこちら

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  • Early Whispers Of Next WIPO Director General Election Cycle

    It’s safe to say most delegates at the annual World Intellectual Property Organization General Assemblies this month gave no thought to the next election for the director general of the UN agency. It’s not surprising, as it is still years away and was not on the agenda this year. It’s safe to say most delegates at the annual World Intellectual Property Organization General Assemblies this month gave no thought to the next election for the director general of the UN agency. It’s not surprising, as it is still years away and was not on the agenda this year.

    But it was surprising to hear a few delegates in the hallways utter the first very early whispers about what the next election might look like. So Intellectual Property Watch talked to delegates and looked at the possible timeline for the next election for the top post at WIPO.

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  • Renegotiate NAFTA to Make it the Gold Standard in IP Protection

    As President Trump embarks on the renegotiation of NAFTA, it is critical that we seize the opportunity to make it the gold standard in intellectual property rights protections… The stakes are tremendous and cannot be ignored.  In total, it is estimated that intellectual-property theft costs the United States approximately $600 billion per year.  A recent New York Times article notes that this is the “greatest transfer of wealth in history”.

    The post Renegotiate NAFTA to Make it the Gold…

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  • Bray on Remedies and Economics

    According to the old saying (attributed to the Greek poet Artilochus and later popularized by Sir Isaiah Berlin) the fox knows many things, but the hedgehog one big thing.  That could, perhaps, be the message of Professor Samuel Bray’s recent paper Remedies, Meet Economics; Economics, Meet Remedies, which is forthcoming in the Oxford Journal of Legal Studies.  Bray argues that, while one might “expect to find a high degree of affinity between law and economics and the field of remedies,” in fact this often isn’t the case–one possible reason being “disciplinary fragmentation . . . .  As specializations narrow and literatures grow, keeping up becomes difficult.”  Too many of us are hedgehogs, in other words, and not enough of us as foxes.  (This may even include me, as much as I try to be a fox.  I admit that I wasn’t aware of Landes & Posner’s 1994 paper in the Journal of Legal Studies on the economics of anticipatory adjudication, which Professor Bray cites (and critiques) in this article.)  I suspect there’s a good deal of truth in Professor Bray’s observation, and overall this is a very interesting, though-provoking paper (though I’m not sure I would agree that Calabresi and Melamed intended some of their statements about property and liability rules, as presented in their famous 1972 paper, as anything more than a stylized model, as Professor Bray himself at times seems to acknowledge).  I hope the paper spurs greater interest among both remedies scholars and law-and-economics scholars to work together and learn from one another.  Anyway, here‘s a link to the paper, and here’s the abstract:
    One would expect the fields of ‘law and economics’ and ‘remedies’ to have substantial interaction. But scholars in each field largely ignore those in the other. Thus law and economics scholars blunder in their description of the law of remedies, and remedies scholars are cut off from economic insights. For scholars who are in these fields, this article offers a critique, as well as suggestions for cooperation. For all legal scholars interested in melding conceptual and economic analysis, it offers a cautionary tale of disciplinary fragmentation.
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  • Bray on Remedies and Economics

    According to the old saying (attributed to the Greek poet Artilochus and later popularized by Sir Isaiah Berlin) the fox knows many things, but the hedgehog one big thing.  That could, perhaps, be the message of Professor Samuel Bray’s recent paper Remedies, Meet Economics; Economics, Meet Remedies, which is forthcoming in the Oxford Journal of Legal Studies.  Bray argues that, while one might “expect to find a high degree of affinity between law and economics and the field of remedies,” in fact this often isn’t the case–one possible reason being “disciplinary fragmentation . . . .  As specializations narrow and literatures grow, keeping up becomes difficult.”  Too many of us are hedgehogs, in other words, and not enough of us as foxes.  (This may even include me, as much as I try to be a fox.  I admit that I wasn’t aware of Landes & Posner’s 1994 paper in the Journal of Legal Studies on the economics of anticipatory adjudication, which Professor Bray cites (and critiques) in this article.)  I suspect there’s a good deal of truth in Professor Bray’s observation, and overall this is a very interesting, though-provoking paper (though I’m not sure I would agree that Calabresi and Melamed intended some of their statements about property and liability rules, as presented in their famous 1972 paper, as anything more than a stylized model, as Professor Bray himself at times seems to acknowledge).  I hope the paper spurs greater interest among both remedies scholars and law-and-economics scholars to work together and learn from one another.  Anyway, here‘s a link to the paper, and here’s the abstract:
    One would expect the fields of ‘law and economics’ and ‘remedies’ to have substantial interaction. But scholars in each field largely ignore those in the other. Thus law and economics scholars blunder in their description of the law of remedies, and remedies scholars are cut off from economic insights. For scholars who are in these fields, this article offers a critique, as well as suggestions for cooperation. For all legal scholars interested in melding conceptual and economic analysis, it offers a cautionary tale of disciplinary fragmentation.
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