New Commissioner of Patents?

Posted on June 18, 2009 by Chun Ng

David Kappos, IBM's assistant general counsel for intellectual property, has just been nominated to be the new Commissioner of the Patent and Trademark Office.   PatentlyO called it right last month.

Mr. Kappos has testified recently before Congress on patent reform legislation, though that was on behalf of IBM.  Whether or not those are truly his views or he was simply giving the opinions of IBM, we will soon find out if he is confirmed.  In his testimony, he mentions enhanced inter partes reexamination, enhanced third party submission of prior art, and "first window" post grant review.  These reforms will go a long way to improving the validity and quality of patents issued from the patent office. 

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Are we still patent MAD?

Posted on May 9, 2009 by Chun Ng

EETimes has run a series of recent articles discussing the concept of "mutual assured destruction" (MAD) in the context of a patent arms race for electronics companies.  The thesis is that it doesn't matter whether your patents actually cover anything important - the only thing that matters is the number of patents in your portfolio.  By having a huge arsenal of patents, you protect yourself from competitors.  The corollary is that if you have more patents than the other guy, you can bully them into paying big royalties solely on the basis of a bigger patent portfolio. 

This strategy to me is incorrect for at least the following reasons: 

  • A huge arsenal of patents does absolutely nothing against an attack by a non-practicing entity (i.e. patent troll).  By definition, the NPE has no product and therefore has no fear of a counterattack from your patents.
  • Companies are not going to simply fork over seven-figure settlements just because you have a big stack of patents.  They are too sophisticated now.  They are willing to call the bluff and more likely to get you to identify specific patents you think are truly important.  If the quality is not there, companies won't be intimidated.  
  • Quality ALWAYS trumps quantity.  I would take one truly high quality patent that covers a lot of product revenue over a hundred patents that are written poorly or have questionable breadth. 
  • Patent reform is coming - the pendulum is swinging back towards patent defendants.  A string of cases over the past 5 years have been anti-patent plaintiff.  Furthermore, it looks as if Congress may finally pass legislation that would generally also be anti-patent plaintiff. 
  • Large companies are much more willing to fight now.  It seems as if, for whatever reason, large companies are not buying into this idea of MAD.  We are seeing more and more huge worldwide patent battles. 

 

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