News and Commentary
July’s entry in EFF’s “Stupid Patent of the Month” series is up! This particular stupid patent is owned by Anuwave LLC, and it covers technology that allows an application to send or receive information via SMS without an internet connection. Anuwave has trolled several companies since 2014, and the patent itself isn’t even for a specific technology. The Supreme Court’s Alice decision would likely make this overly-abstract patent invalid, but a 2017 complaint to the PTAB about the patent in question was dropped after Anuwave decided to settle with Unified Patents.
An Oklahoma medical marijuana dispensary is being sued by a Canadian children’s entertainment company for copyright infringement, specifically with respect to the use of a logo that was allegedly willfully copied and designed to use a “confusing similar imitation.”
A group of law professors, former government officials, and other pro-patent persons submitted a letter to the Senate Judiciary IP Subcommittee in favor of reforms to Section 101. Despite concerns by a number of groups, namely the ACLU (which the letter calls out in numerous places), they argue that the reform to Section 101 is necessary to undo Supreme Court decisions related to subject matter eligibility, and that other provisions of the patent act are sufficient to guard against over-patenting.
A recent episode of The Trader Joe’s podcast discusses fruit patents, specifically in relation to the apple. While a separate category of patents for plants was created in 1930 and the statute was revised in 1970, findings on the effects of plant patents are mixed.
Adam Mossoff has a piece in Slate describing how, by today’s standards, famous inventors such as Thomas Edison and Charles Goodyear would have been considered patent trolls. These inventors-cum-businessmen sued to assert their patent rights, even for inventions that they didn’t necessarily use. While Mossoff’s (presumed) intent was to show that patent trolls could be applied so broadly as to include famous inventors, the fact of the matter is that these “heroes” did, in fact, use the patent system to stifle competition.
One of the biggest complaints from the June Senate Judiciary Committee hearings on Section 101 reform was that the recent Supreme Court precedent on what inventions are or aren’t eligible for patenting is that it has created “vague” standards. Uncertainty is certainly a problem, but a new paper from Jason Reinecke surveyed over 200 practicing attorneys to examine how well they could predict the outcome of pending patent litigation. Patent prosecutors, those who tend to write patents, correctly guess the outcome 67% of the time, while patent litigators did so only 60% of the time (the latter group had much higher variance). While our system is not “a beacon of absolute clarity,” it is far from the black box many make it out to be.