An Empirical Study of Patent Litigation Timing: Could a Patent Term Reduction Decimate Trolls Without Harming Innovators?

This article reports the findings of an empirical analysis of the relative ages of patents litigated by practicing and non-practicing patentees. Studying all infringement claims brought to enforce a sample of recently expired patents, I find considerable variance. Product-producing companies predominately enforce their patents soon after issuance and complete their enforcement activities well before their patent rights expire. NPEs, by contrast, begin asserting their patents relatively late in the patent term and frequently continue to litigate to the verge of expiration. This variance in litigation timing is so dramatic that all claims asserting the average product-company patent are resolved before the average NPE patent is asserted for the first time. Further, I find that NPEs are the dominate source of patent enforcement in the final few years of the patent term. NPEs, enforcers of just twenty percent of all studied patents, are responsible for more than two-thirds of all suits and over eighty percent of all patent claims litigated in the final three years of the patent term. These findings cast serious doubt on the utility of the last few years of the patent term and suggest that Congress should, at a minimum, act to increase the frequency and magnitude of maintenance fee payments in the latter half of the patent term

Why Patentable Subject Matter Matters for Software

Increasingly, courts weary from years of arguing about the scope of patentable subject matter for software patents seem ready to throw in the towel. Rather than continue efforts to craft a test for determining when a software invention graduates from an “abstract idea” or mere algorithm into a patentable invention, several recent Federal Circuit opinions dismissinely reject section 101 challenges as attacks that should have be made instead under sections 102, 103, and 112. This short essay criticizes this recent trend in patentable subject matter jurisprudence. Accused infringers look to section 101 for relief not because doing so is a convenient shortcut around more traditional checks on patentability, but rather precisely because traditional checks on patentability have proven to be woefully ineffective weapons against overbroad software patents

Misuse of Reasonable Royalty Damages as a Patent Infringement Deterrent, The

This Article studies the Federal Circuit\u27s use of excessive reasonable royalty awards as a patent infringement deterrent. I argue against this practice, explaining that, properly viewed in context of the patent system as a whole, distorting the reasonable royalty measure of damages is an unnecessary and ineffective means of ensuring an optimal level of reward for inventors and deterrence for infringers. First, I introduce cases in which the Federal Circuit and other courts following its lead have awarded punitive reasonable royalty awards and explain the Federal Circuit\u27s professed rationale for doing so. Next, I demonstrate that this practice makes little sense, given the number of other powerful deterrents already present in the patent system. I also explain that any additional deterrence-related benefits attributable to excess damages are not realized when courts impose those damages against innocent infringers - a group that likely makes up the lion \u27s share of patent infringers. I further explain that there is good reason to believe that the patent system already overdeters infringement without the added burden of inflated royalties, because accused infringers participating in a competitive market face strong incentives not to challenge patents asserted against them. Finally, I propose several patent reforms for efficiently deterring deliberate copyists, while sparing innocent infringers from that threat

Like Deck Chairs on the Titantic: Why Spectrum Reallocation Won\u27t Avert the Coming Data Crunch But Technology Might Keep the Wireless Industry Afloat

Skyrocketing mobile data demands caused by increasing adoption of smartphones, tablet computers, and broadband-equipped laptops will soon swamp the capacity of our nation\u27s wireless networks, afact that promises to stagnate a $1 trillion slice of the nation\u27s economy. Among scholars and policymakers studying this looming spectrum crisis, consensus is developing that regulators must swiftly reclaim spectrum licensed to other industries and reallocate those rights to wireless providers. In this interdisciplinaryp iece, we explain in succinct terms why this consensus is wrong. With data demands increasing at an exponential rate, spectrum reallocation plans that promise only linear growth are destined to fail. What regulators should focus on, instead, are policies that encourage the sluggish incumbents presently dominating the wireless industry to roll out new networking technologies (like tiered network architectures, cognitive radio, and multicell MIMO) that together may allow exponential increases in spectral efficiency

Patent Validity and Litigation: Evidence from US Inter Partes Review

We analyze how new information about the validity of a patent impacts the settlement of patent infringement litigation. A party accused of patent infringement in the United States may—in parallel with defending itself in court—challenge the validity of the allegedly infringed patent by petitioning the Patent Trial and Appeal Board (PTAB), an administrative tribunal in the US Patent and Trademark Office. Review by PTAB generates new information about the validity of challenged patents, and we study empirically the resulting effect on settlement of an accused infringer’s decision to file a petition to challenge a patent’s validity and, conditional on the filing of a petition, the PTAB’s initial decision to grant or deny the petition on the basis of its assessment of a reasonable likelihood of invalidity. We find that both decision points have large, positive effects on the settlement of parallel court proceedings

In situ Dynamic Rheological Study of Polyacrylamide during Gelation Coupled with Mathematical Models of Viscosity Advancement

Acrylamide dynamic viscosity has been measured in aqueous solutions. Separate rheological measurements were performed on neat resins devoid of the curing agent over a range of shear rates to yield the initial resin viscosity. The gels were also characterized by sub-ambient DSC to determine the phase structure as a function of formulation. The dynamic viscosity shows a marked sigmoidal behavior with a plateau viscosity. Mathematical interpretations of the gel time both by sigmoidal and power law models were comparable. The power law model allowed a direct determination of the gel time while the sigmoidal model yielded parameters associated with the initial viscosity, one associated with the plateau viscosity of the gel, and two time constants controlling the sharpness of the transition.Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/65053/1/146_ftp.pd

Do oil and gas platforms off California reduce recruitment of bocaccio (Sebastes paucispinis) to natural habitat? An analysis based on trajectories derived from high-frequency radar

To investigate the possibility that oil and gas platforms may reduce recruitment of rockfishes (Sebastes spp.) to natural habitat, we simulated drift pathways termed “trajectories” in our model) from an existing oil platform to nearshore habitat using current measurements from high-frequency (HF) radars. The trajectories originated at Platform Irene, located west of Point Conception, California, during two recruiting seasons for bocaccio (Sebastes paucispinis): May through August, 1999 and 2002. Given that pelagic juvenile bocaccio dwell near the surface, the trajectories estimate transport to habitat. We assumed that appropriate shallow water juvenile habitat exists inshore of the 50-m isobath. Results from 1999 indicated that 10% of the trajectories represent transport to habitat, whereas 76% represent transport across the offshore boundary. For 2002, 24% represent transport to habitat, and 69% represent transport across the offshore boundary. Remaining trajectories (14% and 7% for 1999 and 2002, respectively) exited the coverage area either northward or southward along isobaths. Deployments of actual drifters (with 1-m drogues) from a previous multiyear study provided measurements originating near Platform Irene from May through August. All but a few of the drifters moved offshore, as was also shown with the HF radar-derived trajectories. These results indicate that most juvenile bocaccio settling on the platform would otherwise have been transported offshore and perished in the absence of a platform. However, these results do not account for the swimming behavior of juvenile bocaccio, about which little is known

Controlled Release Characteristics of Aqueous PEO‐PPO‐PEO Micelles With Added Malachite Green, Erythrosin, and Cisplatin Determined by UV–Visible Spectroscopy

Dynamic diffusion experiments were performed on aqueous polymeric micelles mixed with malachite green (0.05% mass v−1), erythrosin (0.1% mass v−1), and cisplatin (0.1% mass v−1) to gauge release from sequestered structures using ultraviolet–visible spectroscopy. The additives were formulated with 20% mass v−1 aqueous solutions of polyethylene oxide‐polypropylene oxide‐polyethylene oxide, PEO‐PPO‐PEO (F127). Each additive was tested neat at room temperature, neat at 40 °C, and formulated with F127 at room temperature, and 40 °C. After constructing calibration curves, the dynamic release for each ternary additive and corresponding diffusion coefficients were calculated. Results show that F127 retards permeation at room temperature. In general, the neat additives at 40 °C showed the highest permeability for both malachite green and erythrosin. Malachite green released almost 90% of the dye by 60 min of permeation. When formulated with F127 at 40 °C, sizeable release was still noted, but with an induction period of 10–30 min to register release. The behavior with cisplatin was more complicated as the first 5 h of permeation resulted in a burst delivery with cisplatin (6% total release with cisplatin‐F127‐RT compared to 4% total release cisplatin‐RT) but with overall lower release. The higher fluence at elevated temperature is attributed to reducing the blocking effect of the amphiphiles on the walls of the dialysis tubing as they are directed to form colloidal gels. There is also likely a correlation between higher temperature and higher overall permeability if the membrane pores also expand with temperature.Peer Reviewedhttps://deepblue.lib.umich.edu/bitstream/2027.42/142528/1/jsde12001.pdfhttps://deepblue.lib.umich.edu/bitstream/2027.42/142528/2/jsde12001_am.pd

An Empirical Look at the Brokered Market for Patents

We studied five years of data on patents listed and sold in the quasi-public “brokered” market. Our data covers almost 39,000 assets, an estimated eighty percent of all patents and applications offered for sale by patent brokers between 2012 and 2016. We provide statistics on the size and composition of the brokered market, including the types of buyers and sellers who participate in the market, the types of patents listed and sold on the market, and how market conditions have changed over time. We conclude with an analysis of what our data can tell us about how to accurately value technology, the costs and benefits of patent monetization, and the brokered market’s ability to measure the impact of changes to patent law