Asserting patent rights is a surreal endeavor these days. Two weeks ago, our team at Tabet DiVito & Rothstein was celebrating a key win for client Thales Visionix at the Federal Circuit. That same week, Andrei Iancu was confirmed as our new Director of the USPTO. (Welcome to the party, Andrei.)
Then the Federal Circuit issued its ruling in Berkheimer v. HP, followed by its decision in Aatrix Software v. Green Shades. Glimmers of hope?
Shout out to Gene Quinn for publishing my short piece in IPWatchdog this week on what we both feel is an important development at the Federal Circuit: two rulings within a week of each other vacating lower court determinations of patent ineligibility.
I’m optimistic about the court’s future approach to reviewing such decisions!
Any time a patent survives today’s dual gauntlet of a dismissal on the pleadings and inter partes review, I get a big smile on my face. The patent system may not be working as efficiently as it could be, but it’s working.
On Feb. 6, our client Thales Visionix prevailed at the Federal Circuit in a long-running dispute with infringer Elbit Systems of America, on the key claims of a patented technology for the helmet-mounted display used in the F-35 Joint Strike Fighter.
On October 23, 2017, inventor and patent-holder Evolutionary Intelligence LLC (EI) will file a petition for writ of certiorari at the Supreme Court in Evolutionary Intelligence, LLC v. Sprint Nextel et al., appealing the Federal Circuit’s affirmance of a lower court’s invalidity decision under Section 101.
I love talking to inventors about protecting ideas.
But while I used to receive calls asking about the procedure for getting a patent, I no longer do. I fear it’s because inventors no longer believe patents are worthwhile.
I get it: if I were to get a call today, I couldn’t paint a rosy picture for would-be patentees. What do we say, today, to someone who calls to ask about patenting their invention? Who wants to file an infringement litigation? What if they ask how much it’s going to cost?
This spring Tabet DiVito & Rothstein submitted a brief on behalf of the Intellectual Property Law Association of Chicago (IPLAC) as amicus curiae, in support of a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, in Synopsys, Inc. v. Mentor Graphics Corp., No. 16-1288 (2017).
Once in a while, it’s fun to get creative about something you feel passionate about, and that’s how this “fairy tale” came to be. Over the course of the first three installments, the big and powerful B-Techs became frustrated when the New Innovators threatened their dominance, so they hatched a pernicious plan to bring down the pesky patentees.
So, yes: I wrote “a fairy tale.” Well, sort of. As I noted in the “first installment” on Monday, a bunch of things came together all at once—including a Sunday morning when I had a little extra time. So I cued up this story of how the Behemoth Tech companies became big and powerful because of their imaginative use of chips. But as time passes, innovation can be hard to replicate.
“A fairy tale?” you ask. Well, yes. Because every once in a while, even though the work has piled up, you feel energized and spirited about something enough during breakfast on a Sunday morning that ideas just well up and the words spring onto the page. And if you have a couple of spritely, cheerful teenage daughters who occasionally read stories, narratives intersect and you just have a little fun with things. And that’s what happened here. So, a fairy tale … of a sort. And here goes.
In posts here on my blog on March 27 and April 3, I described how in Evolutionary Intelligence v. Sprint et al. the district court for the Northern District of California invalidated a valuable pair of what had been durable software patents—a decision that in February the Federal Circuit upheld.
Both courts erred in overlooking valid claims, although in the wake of the wacky Alice ruling, such a decision might not have been unexpected.
