Patently-O -- which styles itself "[t]he nation's leading patent law blog" -- today tucks in to "non-practicing entities or 'patent trolls'" and "the same small set of contingent fee plaintiff's lawyers asserting patent claims against the same small set of companies." Their principal crime? Suing Google for patent infringement.
Patently-O diagnoses the problem thus:
Unfortunately, the temptations and opportunities for abuse have gotten too high. Lawyers and plaintiffs have seen the potentially huge payoffs available in patent litigation. Before 1990, there had been just one patent damage award of over $100 million. Since 1990, there have been at least 15, with at least five topping $500 million.
Blawgletter would like to know how many of those post-1990 $100 million+ awards:
- produced a $100 million+ judgment;
- survived an appeal;
- resulted in payments exceeding, say, $50 million; and
- happened in the last, oh, five years rather than in the preceding 14 (i.e., between 1990 and 2004).
Patently-O might also consider explaining why it considers large awards, as such, problematic. Google's quarterly revenues now exceed $5.5 billion, and Microsoft's latest quarterly take tops $15 billion. Small wonder that a jury would assess damages in the hundreds of millions on occasion?
Finally, haven't the courts already addressed "abuses" in patent litigation? During the last three years, the Supreme Court handed down four defendant-friendly patent decisions. The Court:
- toughened the "obviousness" test for validity in KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398 (2007) (post here);
- muscled up the standards for obtaining an injunction in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006);
- expanded jurisdiction to hear patent declaratory judgment claims in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 1163 (2007); and
- extended the patent exhaustion doctrine in Quanta Computer, Inc. v. LG Electronics, Inc., 128 S. Ct. 2109 (2008) (post here).
We also note that the Federal Circuit, for cases pending in the Fifth Circuit, liberalized the availability of mandamus relief to overturn refusals to transfer venue of patent cases in In re TS Tech USA Corp., Misc. No. 888 (Fed. Cir. Dec. 29, 2008) (post here).
The campaign for "long overdue" patent reform, for our money, aims less at leveling the battlefield than at bayoneting the survivors of battles that patent infringement defendants already won.
UPDATE: Turns out that the Patently-O post simply republished a post by Michelle Lee, Google's Head of Patents and Patent Strategy, on the Google Public Policy Blog. Imagine our surprise.
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