A couple of weeks ago, I dusted off my crystal ball and reflected on both the market in 2021 and stuck my neck out with my first 5 predictions for the IP market in 2022. You can read that first set here. My first prediction concerning new USPTO Director Kathi Vidal is on track, since she cleared the Senate committee last week and is up for a full Senate vote soon.
Today, I add the final 5 predictions to round out my stint as a soothsayer. But first, there is major change on the horizon at the US Supreme Court with the announced departure of Justice Stephen Breyer. Patent owners are rejoicing at the news. I discuss why below.
As usual, as I focus on the macro picture in this newsletter, I want to remind everyone that we track everything that is going on in this world and for those who need their regular dose of news, once again you can follow me on either LinkedIn or Twitter where I post almost daily about some of the most newsworthy events.
Tangible IP News
We’ve started 2022 a lot like we finished 2021, with another deal closing and, after the recent announcement of the sale of 10 lots of the AST IP3 program earlier this month, we are pleased to officially announce the sale of a digital content delivery portfolio owned by Media I/P.
We would also like to thank everyone who reached out to me after our last post discussing our torrid growth in the past year and our willingness to explore strategic partnerships or investments to continue on this path for the years to come. There is still time to raise your hand of you’d like to have a conversation.
I was honored to be recently featured in this year’s edition of the IAM Strategy Global Leaders Guide where I share some of my views about the current marketplace and other related topics.
We will soon celebrate officially our 10th anniversary and the successful brokerage of our 5000th patent. Stay tuned.
As we indicated in our last issues, we are letting our readers know the areas where we have buyers willing and ready to acquire patents. Our VP Brokerage, Erika Warner is the point of contact for those. You can also reach her at firstname.lastname@example.org.
Currently, we either formally or informally represent buyers with interest in the following technology areas:
- Medical Device Technology – specifically anything related to x-ray, CT scanners, ultrasound
- Networking Technology patents – including multiple device communications
- Semiconductor patents – packaging, processing and manufacturing
Most of you have some familiarity with the patent-related decisions of the past decade as they have impacted the patent market in monumental ways. You were probably mystified – like many of us – by some of the underlying reasoning from certain justices, especially those of Justice Stephen Breyer who just announcement his retirement. For patent owners, this news could not have come at a more critical juncture. Here’s why; most people do not realize that Justice Breyer has been instrumental in writing many landmark decisions that have severely impacted patent rights across the board. He is probably the only one who has so openly bought in the farcical “patent troll” myth, and has, over a slew of written decisions, demonstrated, shall we say, a rather incomplete and biased grasp of patent law. We “owe” him decisions/comments in precedent setting cases such as Mayo, Cuozzo, Halo, Alice, Octane and a few others that all went against patent right owners. Looking at some of his “pearls of wisdom” below, it is rather obvious that the guy neither liked patents nor understood them very well. See for yourself. (Here I am indebted to a great article entitled “The Fantastical World of Justice Stephen Breyer” which appeared in 2016 and which contains many revealing quotes from Justice Breyer during oral arguments that should give you shivers down the back).
“But there is another way to look at it. And the other way to look at it – and that’s what I would like your comment about — is that there are these things, for better words, let’s call them patent trolls, and that the Patent Office has been issuing billions [sic] of patents that shouldn’t have been issued. I overstate but only some. And what happens is some person in business gets this piece of paper and looks at it and says, oh, my God, I can’t go ahead with my invention.
And so what we’re trying to do with this process is to tell the Office, you’ve been doing too much, too fast. Go back and let people who are hurt by this come in and get rid of those patents that shouldn’t have been issued. Now, we will give you, again, once the same chance we gave you before, and that is you can amend it once if you convince the judge you should have done it before. But if, on the broadest possible interpretation, you know, reasonable interpretation, it shouldn’t have been issued, we’re canceling it. And that is for the benefit of those people who were suffering from too many patents that shouldn’t have been issued in the first place. I don’t know.”
(Oral Argument, Cuozzo Speed Technologies v. Lee, April 25, 2016)
“Today’s patent world is not a steam engine world. We have decided to patent tens of thousands of software products and similar things where hardly anyone knows what the patents really about. A company that’s a startup, a small company, once it gets a letter, cannot afford to pay $10,000 to $100,000 for a letter from Counsel, and may be willing to run its chances.
You start saying, little company, you must pay $10,000 to $100,000 to get a letter, lest you get willful damages against you should your bet be wrong.
We have one more path leading us to national monopoly by Google and Yahoo or their equivalence, and the patent statute is not designed to create monopolies throughout the United States. It’s designed to help the small businessman, not to hurt him. So leave those words for interpretation to the expert court, and in this area it may well be the Federal Circuit.
We have all kind of amicus briefs that say that’s the truth. And indeed, thousands and thousands and thousands of small businessmen are trying to break into businesses that they just can’t do without software. And when you have tens or hundreds of thousands of patents on software by other companies, that means we can’t break in.”
(Oral Argument, Halo Electronics v. Pulse Electronics and Stryker Corp. v. Zimmer, Inc., February 26, 2016)
“Can you in fact now, this is — look, there are 42 briefs in this case. I actually read them and I found them very, very helpful up to the point where I have to make a decision, because they’re serious. I mean, you know now, the problem that I came away with is the one that you’re beginning to discuss, that if you simply say, take an idea that’s abstract and implement it on a computer, there are — you’re going to get it much faster, you’re going to be able to do many, many things, and if that’s good enough, there is a risk that you will take business in the United States or large segments and instead of having competition on price, service and better production methods, we’ll have competition on who has the best patent lawyer. You see where I’m going on that one?
And if you go the other way and say never, then what you do is you rule out real inventions with computers.”
(Oral Argument, Alice Corp. v. CLS Bank Int‘l., March 31, 2014)
“It’s highly abstract language. I gather you, like I, have read some of these claims. They are very hard to understand and when you get to the bottom of it, the abstract nature of the language, plus the fact that it has something to do with computer input, plus the fact that, you know, you suspect very strongly it’s baseless, but you really don’t like to say something that isn’t true and you can say, well, I could see how somebody might think there was something to this claim, just in that tone of voice, which you can’t write down that tone of voice.”
(Oral Argument, Octane Fitness LLC v. Icon Health and Fitness, Inc., February 26, 2014)
“Well, how what do you do with the government’s argument here, which I take it as being on page 17, they make an argument which, as I understood it, which is a big qualification, that some of these things are awfully complicated.
You might have a a claim or, really, it’s a set of claims that cover 48 pages with all kinds of symbols and 42 different sort of division possibilities.
And then the so called infringer, or the person who falls outside the coverage, is looking at his product, and it’s one of the most complex things you’ve ever seen. And he has to think to himself, well, how am I supposed — how does the claim cover this? And it’s — there are many, many, many possibilities. I take it that’s what they mean when they say it makes sense to put the burden of demonstrating how the claim limitations map onto the accused product because infringement may be found only when the product falls within the scope of the asserted claim or claims in every respect.
Your client, who’s the patentee, knows how. Otherwise, he wouldn’t be bringing this infringement suit or the inside the coverage suit or responding to someone who says it’s outside the coverage. But the person who is the alleged infringer might not know it, and therefore, it makes sense to put everything in the same place; notice of infringement, burden of production, burden of proof. And that way, it will be easier to focus on what’s at stake.”
(Oral Argument, Medtronic Inc. v. Boston Scientific Corp., November 5, 2013)
If you are not screaming by now, you have not been paying attention! It’s no wonder we have been stuck in this current mess for years. It goes without saying that our highest tribunal can and should do much better when it comes to ruling on patent cases. This sector, while often misunderstood, directly impacts our competitive edge and economy as a whole.
The leading candidate to replace Justice Breyer, according to several pundits, is Judge Ketanji Brown Jackson, whom President Biden recently nominated to the Court of Appeals (D.C.). Ironically, she is the former clerk of Justice … Stephen Breyer! Worse, she’s probably heard very few or perhaps, no patent cases at all in her career having remained solely in the D.C. district. Let’s at least hope she did not drink the same Kool-Aid as the one she might replace…
So, for now, I stand by my Prediction #3 in our last issue. Until we get a new justice appointed (who will hopefully raise the level of the court when it comes to IP matters), any sort of clarity over Alice remains a pipedream. Which brings us to our Predictions #6 to #10:
Our Predictions for 2022 (Part II)
6. US patent litigation will continue to increase. Let’s be honest, it already has in the past couple of years. But just looking at the number of new NPEs knocking on our door to acquire patents, the influx of money available to finance assertion campaigns and the stubborn resistance by too many who still refuse to engage in licensing discussions until they are being sued, this perfect storm is there to stay.
7. Germany will do away with easy injunctions. For years, the German courts have been the darling of patent owners who could bring a case there and get a decision on the infringement aspect of said case months before the validity of the patent (which is presumed) would even be adjudicated upon by a separate judge. Add to this that German judges are very competent, discovery is limited (which keeps schedules tight and costs down) and you can ask for an injunction if you succeed on the infringement case. This may not be the case for much longer though; the same group that successfully lobbied the US government is poised to repeat the same fate in Germany where part of the parliament has now voted to change the rules in place and do away with the famous “bifurcated” process between infringement and validity, while also subjecting NPE-backed litigation to a higher standard. This is the identical playbook that led to the eBay case here in the US and essentially destroyed what used to be (and should still be) at the very heart of a patent, i.e., the right to exclude others from practicing one’s invention without a license.
8. The Unified Patent Court in Europe will finally get going . It has been almost 45 years in the making, but 2022 could finally be the year that sees the UPC take flight. (Since I last wrote 2 weeks ago, Austria was the first member State to ratify the agreement which officially kicks things into gear). This should inject some interesting dynamics as patent owners will be able to choose the country where they want to assert (hello Slovenia!) and secure decisions that apply throughout the whole European community (unclear what will happen to the UK). This should also trigger some interesting jockeying from courts of smaller countries who will compete with their larger neighbors to foster a friendlier environment to patent owners. Will Cyprus become the new Germany?
9. China will stop any pretense of a neutral forum. As we have been writing for the last decade, Act I of China’s transformation from an IP “borrower” to an IP exporter was to build a patent system that others would consider competent and fair, just like the US system used to be. Act II was to invest massively in domestic patent filings, which they did by subsidizing applicants for 5 years in a row, until it became obvious that the quality of the patents filed by Chinese inventors – literally for free – were often of dubious quality. Act III was to then redirect this substantial investment into the commercialization of IP rights in China, which led to a vibrant startup industry which now attracts more VC money than the US, according to recent studies. China is now ready for the Final Act; with a specialized patent court system that can hear thousands of cases per year, the central government can now ensure that Chinese-based companies are well protected while making it much harder for foreign ones to enforce their IP on the mainland.
10. A new pro patent lobby will emerge in the US. This may be more wishful thinking than a pure prediction, but I would not be surprised if a group of well-respected IP-centric US-based operating companies (not NPEs) finally decide that they have had enough and gang up together to offer a counterweight to the ever-powerful infringement lobby. I have seen some op eds lately from individuals in some of these large companies, but there has been no apparent coordination thus far. Some is greatly needed as the US Inventors and other voices for the “small guy” are simply not able to compete head-to-head with the kind of dollars the other group throws at decision makers. With midterm elections coming soon, it is not too early for large patent owners that actually care about the fate of the system to show up and have their voices heard. It might be too late next year.
Bonus Prediction: I will get it wrong at least half the time… 😉