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The Apple vs. Samsung Verdict Actually Demonstrates that Patents Do Promote Product Innovation

In the time that the Apple vs. Samsung patent fight has been underway, we have been inundated with an untold number of articles on how Apple is stifling innovation in the SmartPhone world.  (Haven't seen these:  just do a Google search for "Apple stif . . ." you don't have to type any more than this--the search auto-completes itself.) I often take a contrarian view from that stated by most "expert" commentators--be they members of the press or actual patent professionals, and the Apple v. Samsung verdict is no exception:  I think the result actually demonstrates that the patent system is working just fine in this instance, thank you very much.  But how can this be when Samsung got hit with more than a BILLION US DOLLAR jury verdict last week?!?  Doesn't the fact that Samsung could not make a product without infringing Apple's multitude of patents mean that

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False Marking Lawsuits are Real Problem for Business and Make Little Sense When Applied to Expired Patents

The threat of false marking lawsuits has garnered much attention in the IP business press in the last couple of years.  Companies of all sizes have been hit with qui tam actions (that is, suits brought by an individual or company on behalf of the US government to right wrongs done to the government, not the individual) where the basis of the action is the mis-marking of a product with an incorrect or expired patent number.  Like a gold rush, these lawsuits have resulted in a number of legal entrepreneurs seeking out products that are incorrectly marked--usually by identification of expired patents, which is an easy thing to find--and their bringing suit against the offending companies.  Indeed, there were over 500 false marking lawsuits filed in 2010, making this cause of action seem almost like a

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False Patent Marking Lawsuit Update: A Tale of Successful Defense Strategy

In November, 2010, I wrote a blog post where I talked about a client who was sued for false marking, even though they had months before the suit changed the packaging of their product.  We subsequently obtained a good result with our litigation strategy, and I think others may benefit from this experience.  Moreover, I think it is important for we lawyers to share strategies for the overall benefit of our respective clients.  This is not done enough:  we legal experts all-too-frequently provide sagely advice from the comfort of our own siloed client experiences.  For the past 3 years as a blogger, I have been working to build a more public dialogue on IP strategy, and did not want to let this opportunity go by to let others know of a successful strategy in dealing with a false marking litigation.  (I feel comfortable sharing my experiences with this litigation,

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Patent “Expert” Opinion on Reasons for Google Tender Offer for Groupon Reveals Fundamental Problems with IP Professionals

After several years of writing about how business leaders need to wrest control of their IP matters from lawyers, today brought a revelation that illuminated why this seems to be such a hard point to get across.  It should be a no brainer:  it has been shown time and time again that when a company aligns its IP strategy with its business strategy, value creation opportunities abound.  So, why is it so hard to get business people to sign onto something that is unquestionably in the best interests of their shareholders?  It's simple--patent experts wholly lack credibility with business people on these issues.  This lack of credibility is compounded by the fact that these experts are given a forum to trumpet these views through use of their firms' large marketing budgets, as well as by haphazard journalists who give them a forum to expound their self-interested views without counterpoint. To this

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Business Can’t Hide from False Patent Marking Lawsuits: Here’s How to Predict If You Might be Sued

The take home message:  If your company sells a product that bears a patent number, you need to read this post in its entirety. Much has been written in recent months about false marking lawsuits, most of these in the form of "urgent legal alerts" by law firms that calmly deconstruct the appellate court rulings (this one is illustrative).  At the end of the day, these articles likely do not look very "urgent" to business people like yourself because most business people do not engage themselves with patent law generally, let alone something as arcane as false marking.  So, even though the subject excites us a patent experts, we really cannot expect you to get excited about something that does not seem to affect your ability to conduct business today. However, if your business is a likely target of a false marking lawsuit it will cost you big bucks almost immediately. 

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Much Ado About Patent Marking: Why It is So Hard for Corporations to Get It Right and Why False Marking Lawsuits Might be a Good Thing Overall

Misalignment between patent and business functions is the underlying cause of false patent markingIt is fairly rare for patents to make hit the radar screen of mainstream news outlets but, recently, there has been much space allotted to the issue of patent mis-marking and lawsuits being brought by third parties for "violation" of the law requiring that products cannot be marked with an incorrect patent number.  Indeed, the usually substance-free local paper in my mother's Southwest Florida community reported about the flood of patent mis-marking lawsuits.  And, it is no wonder that the undoubtedly arcane issue of patent marking has reached the status of "news" in a small-town paper given the huge number of cases currently pending in the federal courts.  It seems as if patent marking litigation may be the new business model for trial lawyers who are

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For Inventor of 21 Patents, Patent Troll Litigation Not Very Lucrative

  Recently, I wrote a post on why I think that patent litigation is not a viable business model for inventors.  Given a realistic deconstruction of the costs and possible damage awards, I concluded that, in most situations, it is not realistic for an inventor to presume that she will "hit the jackpot" by suing infringers and extracting settlement or damage awards.  I obtained some pushback from this post, mostly from patent litigation lawyers, who contend that I am wrong in my view that patent litigation does not pay for inventors.  Of course, everyone is entitled to their opinion, and I respect the views of others, however, no one who objects to my (somewhat) negative view of patent litigation as a business model, has provided me with numbers to discount my economic analysis of patent litigation.  This recent post from The Prior Art blog entitled "Revealed! How Much Money a

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A Patent Reality Check: Litigation Not a Viable Revenue Source for Most Inventors

The ability of an intrepid inventor to strike it rich from a great idea seems to be embedded in the DNA of many Americans.  Perhaps this view emanates from the presence of patents in the US Constitution, which could create a feeling that US citizens have an "inalienable right" to use patent protection to their advantage.  Alternatively, people may perceive the occasional media reports of successful inventors and substantial patent litigation awards as a signal that patents can serve as a path to wealth for those with great ideas (certainly, this is the Hollywood view).  In truth, however, getting rich merely from a patent is a rare occurrence--maybe not as low a probability as winning the lottery, but the odds are incredibly long that any person can make money from a patented idea alone.  Think about it: if all it took was a patent to make someone wealthy, there would be

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The NY Times is Wrong: Patent Auctions Do Not Provide Indendent Inventors with “Protection”

Patent auctions will do little to help independent inventors sell their patents
Patent auctions will do little to help independent inventors sell their patents
Those seeking ways to generate revenue from their patentable ideas will find the recent NY Times article entitled "Patent Auctions Provide Protections for Inventors," written by Steve Lohr, to be an interesting read.  However, as someone who works with entrepreneurs and corporations wishing to monetize their patent rights, I find it necessary to comment on the assertion that patent auctions can operate to "provide protections" for independent inventors, as well as the underlying premise that these it is generally possible for non-corporate inventors to generate value from their patent rights irrespective of the underlying subject matter of the patents.*  As an initial matter, the NY Times article states that "[independent inventors] can often find themselves in court, battling

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Is There an Emerging Business Model for IP Lawyers’ Owning So-Called "Patent Trolls"? Only Until Their Corporate Clients Find Out.

Dennis Crouch of The PatentlyO blog recently posted an intriguing tidbit aboutCorporations are punishing patent trolls by refusing to feed them work about well-known IP attorneys Carl Moore (Of counsel at Marshall Gerstein); Timothy Vezeau (patent attorney at Katten Muchin); and Nate Scarpelli (who used to and still appears to be associated with Marshall Gerstein). These prominent members of the Chicago IP community appear to be "moon-lighting" from their respective law practices to act as managing partners at a patent holding company called "Virtual Photo Store LLC" ("VPS"). As reported in PatentlyO, VPS is currently involved as defendant in a Declaratory Judgment action. Here is a copy of the DJ Complaint, also posted at PatentlyO. (Interestingly, the Complaint lists VPS' address as that of the Marshall, Gerstein law firm.)The Complaint alleges that VPS is a non-practicing entity