Category Archives: Patent

Patent Trolls Win Bigger Judgements than Companies that Are Actually Doing Business With Their Patents

The latest PricewaterhouseCoopers‘ Patent Litigation Study found that between 2006 and 2011, the median damages award for nonpracticing entities (the so-called “trolls”) was $6.9 million, compared to $3.7 million for practicing entities. The median damages award for patent cases overall was $4 million and the number of these cases is higher than ever.

While the non-practicing entities don’t win as often as the practicing entity, when they do win, they win big. Although it might seem counter-intuitive that trolls get higher awards, that is probably because they are better positioned to “forum shop” than the company that is developing and operating a business around the patents. The report noted that cases by non-practicing entities are concentrated in a relatively small number of forums, with 10 courts accounting for 56 percent of nonpracticing entity suits.  It looks like most plaintiffs are banking on Texas justice: the Eastern District of Texas alone accounted for 12 percent of decisions involving nonpracticing entities.

For both practicing and nonpracticing entities, the report bears out the common sense belief among lawyers that juries give higher awards than judges. Between 2006 and 2011, patentees prevailed at jury trials 76 percent of the time, compared to 59.3 percent of the time at bench trials.

So, if you are a patent plaintiff, you want a jury trial in Texas if at all possible. The alleged infringer wants to be almost anywhere else, taking his or her chances with a judge.

Federal Circuit Changes Standard for Proving Inducement of Patent Infringement


The Federal Circuit caused quite a stir in the patent world last week when it drastically changed the rules for asserting and proving inducement of patent infringement claims. My partner, Terry Clark, our resident patent guru, wrote the following article to alert our clients to these changes with the able assistance of Brian Iverson. I thought it would make a great blog post as well. Both Terry and Brian are key players in Bass’ intellectual property group and I’m honored to have them as guest stars on the blog. Without further ado, here’s Terry and Brian’s post: Continue reading

U.S. Supremes Remind Us That You Can’t Patent the Laws of Nature

On March 20, 2012, the Supreme Court issued a unanimous decision, authored by Justice Breyer, in Mayo Collaborative Services v. Prometheus Laboratories, Inc. The court held that the process patent that Prometheus Laboratories had obtained for correlations between blood test results and patient health is not eligible for a patent because it incorporates the laws of nature. The Court found that the claimed method merely restated a law of nature, specifically the correlation between the concentrations of certain metabolites in the blood and drug effectiveness or toxicity and, thus, it was not patentable subject matter under Section 101 of the Patent Act.

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Groupon Gets Big Win in Florida Patent Case

The folks at Groupon must have had a good Thanksgiving. Last Wednesday a Florida federal judge ruled that Groupon, Inc.’s deal website does not infringe rival eWinWin Inc.’s three technology patents. U.S. District Judge Susan C. Bucklew granted summary judgment of noninfringement to Groupon, holding that Groupon had not violated any of eWinWin’s patents.

EWinWin sued Groupon in December of 2010, accusing the popular coupon site of patent infringement. According to Judge Bucklew, eWinWin’s patents document a system that decreases the price for a good or service as more and more users sign up for the deal. Groupon, in contrast, uses its website to sell coupons to local businesses, but the coupons only become available if a predetermined number of buyers take the business up on the deal. Judge Bucklew found that all three of eWinWin’s patents require that the product price drops as more people take advantage of it. Because Groupon does not sell its coupons for more than one price, Judge Bucklew held that Groupon’s service did not violate the patents. Although Judge Bucklew dismissed Groupon’s counterclaims of invalidity as moot, Groupon’s counterclaims of infringement against eWinWin remain in the case. eWinWin might be regretting bringing this suit right about now.

eWinWin Inc. v. Groupon, Inc., Docket No. 8:10-cv-02678, U.S. District Court for the Middle District of Florida.

In Patent Cases, Only Enforcement and Defense Activities Directed Toward The Forum State Count in the Personal Jurisdiction Analysis

This case involved a dispute between Radio Systems, a pet-related product manufacturer in Knoxville Tennessee, and Accession, located in Hamilton, New Jersey. Radio Systems manufactures several pet-related products, including a patented electronic pet access door (the “SmartDoor”), which unlocks in response to a transmitter worn by the pet. Accession’s sole employee is its president, Thomas Sullivan. Mr. Sullivan is the named inventor of U.S. Patent No. 7,207,141 (“the ‘141 patent”), issued on April 24, 2007, and assigned to Accession. The ‘141 patent is directed to a portable pet access door (the “Wedgit”) that can be inserted into sliding glass doors.

There were several communications between these parties regarding a possible business alliance and then, later, a dispute eventually ensued as to whether Accession should be added as a co-inventor of Radio Systems patent. Radio Systems filed a declaratory judgment action, seeking a judgment of non-infringement and invalidity of Accession’s ‘141 Patent. Accession moved to dismiss for lack of personal jurisdiction or, in the alternative, to transfer. The district court granted the motion and Radio Systems appealed to the Federal Circuit.

Holding: Sending cease and desist letters into the forum state will not be enough to confer jurisdiction over the defendant. Likewise, activities that are directed at commercializing the patent are not sufficient. It is only those enforcement or defense activities specifically directed towards that forum state that count in the personal jurisdiction analysis. Because the communications between the parties before August 2009 were targeted towards creating a mutually beneficial business arrangement, rather than defense and enforcement, they would not be sufficient to confer jurisdiction. Calls that Accession made to the USPTO in Virginia about Radio Systems’ patents were also not sufficient to establish personal jurisdiction in Tennessee because enforcement and defense activities outside the forum state don’t count either. And finally, even though the parties had entered into a non-disclosure agreement that had a forum selection clause naming Tennessee as the forum for disputes arising out of the NDA, the forum selection clause had no effect on the personal jurisdiction analysis, because the litigation did not arise out of that agreement. The district judge’s dismissal for lack of personal jurisdiction was affirmed.

R. Bradford Brittian, Pitts & Brittian, P.C., of Knoxville, TN, argued for the plaintiff-appellant. With him on the brief were Robert E. Pitts, Paul A. Forsyth and Matthew J. Stark.

Robert J. Basil, Collier & Basil, PC, of New York, NY, argued for the defendant-appellee.

Before BRYSON, LINN, and DYK, Circuit Judges.

Radio Systems Corp. v. Accession, Inc., 638 F.3d 785, 98 U.S.P.Q.2d 1485 (Fed.Cir. 2011).