Recent news in IP (Week of Feb. 27, 2017)

A few recent articles that have caught my eye:

Clearing the Underbrush: How to Fight Low Quality Patents Related to Commoditized Technology that Threaten Innovation

Source: IPWatchdog

I was surprised to see this opinion piece on IPWatchdog, as it takes the stance that there are some parts of the tech stack (the lower, "commodity" portions) that should be largely exempt from a lot of patent activity and that patenting, investment, and enforcement should be focused on the top, "differentiating" part of the stack. It is an unusual argument to be featured on IPWatchdog.

I am sympathetic to the argument that commodity functionality should largely be out of the realm of patent activity, but that is because most commodity stuff is old - far older than people think. The issue is not that certain parts of the stack should be free from patenting, but that a lack of specificity in patent claiming and enforcement allows a patent originally targeted at a particular niche to be reinterpreted to read on older, more broadly deployed tech.

I also think that it misses the point that there is both "commodity" and "differentiating" tech at each layer in the stack. The innovations may not be clearly visible if someone is not familiar with the underlying technology, but innovative things are going on at all layers of the stack.

Federal Circuit Sticks By Its Bad Law on Personal Jurisdiction In Patent Cases

Source: EFF Deeplinks

The issue brought up in this blog is interesting - What are the minimum actions needed to establish personal jurisdiction for purposes of a declaratory judgment action? The standard rule is that sending demand letters is not enough to establish personal jurisdiction (and frequently not enough to establish a case or controversy).

In the particular case cited (Xilinx, Inc. v. Papst Licensing GmbH & Co. KG, Fed. Cir. 2017), Xilinx was able to establish that Papst's actions were sufficient to establish jurisdiction in their particular case - but the Federal Circuit kept their same rule for the general case.

What hasn't been brought up so far is what effect TC Heartland may have on the DJ rules. The Supreme Court has been... shall we say unsympathetic?... to a number of the fixed rules that the Federal Circuit has established to govern patent cases. I don't see that this would necessarily be all that different. I wouldn't be surprised if this will be another area for appellate activity after TC Heartland comes down.

Patent Trolls and Small Business Employment

Source: Working Knowledge (Harvard Business School)

This is an NBER working paper evaluating the results of anti-patent troll legislation that has been working its way through the legislature in a number of states. It appears that these legislative efforts have a significant effect, which I didn't expect. Key finding:

"We find that the passage of this legislation leads to a 2% increase in employment at small firms in high-tech industries.... By contrast, the laws have no significant impact on employment at larger or non-high-tech firms. Anti-troll legislation is also associated with fewer business bankruptcies. Financing appears to be a key channel driving our findings: in states with an already established VC presence, the passage of anti-troll laws leads to a 19% increase in the number of firms receiving VC funding."

Oil States Energy Services v. Greene’s Energy Group

Source: Patently-O

The Supreme Court has asked the USPTO to comment on whether the PTO can cancel claims through the IPR/CBM/PGR process. There has been a drumbeat from a number of people (most cogently, Robert Greenspoon of Flachsbart and Greenspoon) arguing that patent rights are private rights, only subject to Article III tribunals, and it is a violation of the constitution for an Article II agency to cancel a patent.

The fact that the Supreme Court is asking for comment indicates that they think this is a subject worthy of consideration. But I ultimately don't think this will be successful. First, as long as Chevron deference is the law of the land, the PTO's own interpretation and rulemaking will be accorded significant weight. (In practice, I think that it would be accorded some weight even without Chevron deference.) Second, Dennis Crouch argues that rights don't need to be exclusively public or private; the courts are comfortable with quasi-private rights. Third, I think that this entire argument misses the context of the previous inter partes reexamination proceedings, which were similar in many respects.