Comments on: Patent litigation can kill the small guy.

By: Dave Berkus

Dave Berkus — Wed, 29 Jul 2015 17:41:39 +0000

Dennis brings us a most important piece of news. I have already heard about one small company deciding to use this new channel to strategize their patent defense. With this many invalidations as representative outcomes, we should see a real change in the patent litigation system over time, including the reduction in litigation by so-called patent trolls, and a measurable lifting of backlog pressure upon the specialty courts.

By: Dennis Cagan

Dennis Cagan — Wed, 29 Jul 2015 16:20:34 +0000

I thought you might like a little additional detail. The new USPTO Patent Trial and Appeal Board (PTAB) and the related inter partes review process has been discussed extensively. The PTAB has so far (about March 2015) adjudicated 2500 patent cases and invalidated 73% of the patents brought before it. PTAB filings are up 200% since 2013 and District Court infringement filings are down 20%. A PTAB filing puts a stay on any District court litigation. Bringing a case to the PTAB costs around $1 million, and so, only the most important patents have been brought forward. Some of the cases are being appealed to the Federal Appeals Court (at an additional cost of $1.5-2 million), but so far most have been upheld. Also, recent key US Supreme Court rulings on software patentability (Alice), definiteness (Nautilus), fee shifting of legal fees (Highmark and Octane Fitness) and other patent matters, along with the performance of the new PTAB, have substantially decreased the value of naked patents.

By: Daniel Curran

Daniel Curran — Wed, 29 Jul 2015 02:48:56 +0000

Which is why I always recommend startups wait to file any patents until they have over $20M in revenues so they can play with the big boys. Until then, keep everything as a trade secret, and not letting any one person in the company know more than they need to do their job.