Patent Troll Tries To Reanimate Dead Patent With Desperate Ploy Over Effective Typo; Court Shoots Zombie Claim Dead
from the die-troll-die dept
Back in January, we wrote about Newegg’s fairly complete victory over patent troll Soverain Software’s attempt to claim it had patents on basic online shopping cart technology. This was a fight that had gone on for many, many years, in which many e-commerce companies just paid off Soverain rather than fight it. Newegg has taken a “we won’t settle with patent trolls” pledge, and successfully destroyed the patent. Everyone thought the patent and the case were finally dead… except it appears that Soverain sought one last desperate attempt to reanimate the corpse, basically by focusing on what was, in reality, a typographical error.
The short version is this: Soverain had earlier stated that it would be asserting claim 35 of its key patent, 5,715,314, against Newegg. 35 is a dependent claim, which is reliant on the independent claim, in this case 34. It’s the independent claims that are generally the key to a patent, as the dependent ones just build off of the independent ones and maybe add a minor thing or two. Wipe out the independent claims and the dependent ones generally go with them. So, throughout the case, Newegg and Soverain, basically argued over claim 34. That’s what mattered. But, remember, Soverain had said it was asserting 35 against Newegg. So in that final appeals court ruling, the court invalidated claim 34, which most people recognized to mean that 35 was gone as well, even if it wasn’t explicitly noted. Soverain apparently decided that one slight error was a chance to reanimate their dead patent (and dead patent trolling operation).
The court heard both companies out and basically told Soverain to piss off, first noting that Soverain itself never even bothered to distinguish 34 from 35, and further, that it presents no evidence at all that the same prior art that invalidated 34 doesn’t also invalidate 35.
On the question of whether the payment step of claim 35 was embodied in the prior art CompuServe Mall, no contrary argument is here proffered. Soverain devotes most of its supplemental briefing to reargument of issues resolved in the court’s prior opinion, especially relating to the terms “product identifier” and “shopping cart database.” We discern no basis for departing from the court’s analysis in its prior opinion….
[….] On consideration of the additional briefing and arguments, we confirm that claim 34 is representative of the “shopping cart” claims, including claim 35, and conclude that dependent claim 35 is invalid on the ground of obviousness
And, boom, that nascent attempt to reanimate a patent trolling corpse has been shot dead. There’s still a small chance of an appeal to the Supreme Court, though it seems unlikely that the Court would be interested in hearing this case. Either way, Newegg says it would relish a chance to go before the Supreme Court on this one. Here’s Newegg’s chief patent slayer, Lee Cheng, responding to Joe Mullin’s questioning:
Asked this week whether Soverain might continue its fight, Cheng himself appealed to an even higher power than the courts. “Please God, let Soverain file a petition for cert to the Supreme Court,” said Cheng. “That would be so funny. Please make my day.”
Of course, seeing that Soverain was even willing to fight over a pretty clear typo, I wouldn’t put it past the company (really a group of patent lawyers) from trying once again.