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Richard Falk

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  • Dec 01, 2015 @ 10:39pm

    Possible Reason for Change of Heart

    Could it possibly be that the reason Judge Gilstrap has not only ruled using Section 101 after Alice but is also allowing for attorney's fee filings after Octane Fitness is that he is setting up counter-arguments against the tide in Congress towards reducing venue shopping? After all, it would have been easier for the EDTX to be painted as extreme when there were no attorney fee rulings after Octane when such rulings increased at least twofold overall (due to other districts). Similarly for the number of Section 101 opinions.

  • Nov 07, 2014 @ 12:01pm

    More Common Is Non-Infringement

    The more common situation is where the patent is valid but there is no infringement. That is a more expensive situation to win because one cannot stay the case and invalidate the patent at the USPTO and one cannot use Section 101 arguments to end the case early. Instead, one must go through at least core discovery and pay experts as well as lawyers and this is all very expensive. You can try for summary judgement, but if in the East District of Texas that is rarely granted or even considered.

    https://www.eff.org/deeplinks/2014/07/why-do-patent-trolls-go-texas-its-not-bbq

    So you are most likely required to go to trial which is always risky even if the facts are in your favor, especially for more technical patents. And then even if you win you would not normally be able to get fees shifted nor obtain sanctions absent litigation misconduct.

    http://sites.google.com/site/271patentblog/Home/DiagnosticSystemsvSymantec.pdf?attredirects=0

    Later cases (e.g. Marctec, Higmark, Raylon) would uphold §285 fee shifting or Rule 11 sanctions but the shell company subsidiaries of the PAEs would simply go bust since they had no revenues and the only asset was the patent being asserted. Even legislation proposing joining the real parties of interest will be circumvented by setting up foreign subsidiaries creating a jurisdictional corporate veil.

    The only truly effective method to stopping abuse is to hold the attorneys jointly and severally liable. Attorneys are the entrée into the legal system and should be held responsible for their conduct. As stated in Eon-Net v. Flagstar Bancorp, "But an attorney, in addition to his obligation to his client, also has an obligation to the court and should not blindly follow the client’s interests if not supported by law and facts."

    This is much more than a patent litigation abuse issue, but is a problem with civil litigation abuse in general. Read the following where trial lawyers admit this abuse:

    http://www.abajournal.com/files/Survey_Press_Release_Final.pdf

    If one narrowly tries to fix this problem for patents only, then like the game of Whac-A-Mole® the problem will simply pop up somewhere else:

    http://mcsmith.blogs.com/eastern_district_of_texas/files/IP.pdf
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1878966

  • Nov 29, 2013 @ 01:11am

    The Jury is Not Wholly at Fault

    See the following post for reasons why the jury likely did not find the patent to be invalid. As for non-infringement, the argument from the defense that RC4 was disclosed prior to the patent was weak (it was announced for sale at a conference before the key patent prior art date but was actually sold after that date). However, there were other non-infringement arguments that could have been presented that were much stronger and could have been corroborated by even the plaintiff's experts (namely, the distinction between stream ciphers that existed with pseudo-random number generators long before RC4 vs. block ciphers where the patent introduced the idea of both sides changing the key using a common pseudo-random number generator triggered by a predetermined amount of data transmitted/received).

    http://arstechnica.com/tech-policy/2013/11/jury-newegg-infringes-spangenberg-patent-must-pay-2-3-million/?comments=1&post=25764027