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December 2013 Archives

Fee-Shifting Is Coming to Patents, One Way or Another

It's an issue that frustrates all three constitutionally recognized branches of government. The president has called for patent troll reform. Congress is considering it.

And so is the all-important judiciary, as the Federal Circuit continues to consider fee-shifting cases while waiting for the Supreme Court to step in, possibly saving themselves from their own arguably ill-advised precedent set in 2005.

Today's case? A memory maker sued a fellow Silicon Valley company, despite knowing that there was no literal infringement and that a "doctrine of equivalents" theory was tenuous, at best.

The Federal Circuit today reminded us all that judges are not clairvoyant, and if a party wants to make an assertion, it must back it up with actual facts and not "conclusory and generalized sentences."

In a quick and easy opinion (that is, for a patent case), the Federal Circuit affirmed the findings of the administrative law judge, and the International Trade Commission, and held that Motorola violated the Tariff Act of 1930 by importing goods that violated a Microsoft patent.

Last week the Supreme Court granted certiorari in a patent case that will have wide-reaching ramifications across the nation, across industries. The case, Alice Corporation Pty. Ltd. v. CLS Bank International, deals with a very basic issue: is computer software patent-eligible under the Patent Act?

Section 101 of the Patent Act allows for the patent eligibility of "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." The question then becomes, is computer software a "new and useful process?" Companies like Facebook, JPMorgan and Google think that patent-eligibility for computer software is "too lax," while Microsoft and Oracle think "limiting protection for genuine innovation could hurt the nation's economy," according to Bloomberg.

The end of the year is near, and in this not-so-busy period, it's a great time to brush up on the administrative basics -- and that's what the Federal Circuit is doing. With revised rules, fees and schedules, here's the latest info to keep your appellate practice moving smoothly...