Paul Morinville is Managing Director of US Inventor, Inc and a tireless and effective Hill advocate for strong patents. With the story below Paul demonstrates the power of a memorable narrative when pro-patent universities discuss patent reform with congressional Members and Staff. Hill folks have busy schedules and short attention spans. Patent law’s arcane complexity is a time-suck buzz-kill for most. It cannot be compressed into an elevator speech. But water balloons?……now that’s a different story. Addressing a patent law conference earlier this month patent champion and STRONG ACT sponsor Senator Chris Coons diplomatically emphasized the importance of “narratives” when explaining the parlous state of today’s destabilized commercialization dynamic. We know that as patent protection become increasingly less assured, private sector investment becomes increasingly harder to attract. Because of PTAB nullifications and other investment deterring uncertainties, commercialization’s public-private partnerships are now becoming an endangered species. Continue reading Water Balloons and Commercialization’s Public Benefit Delivery
Worldwide skirmishing between Apple and Qualcomm has now erupted into a US legal battle. Apple has launched a billion dollar U.S. suit attacking Qualcomm’s licensing model. The suit’s specifics are thoroughly explained by Steve Brachman in an IPWatchdog post. Research university TTO’s generally pay little attention to such big tech combat but this suit is worth watching because Apple now seeks relief from the marketplace bargaining envisioned by our patent system through more narrowly focused judicial pricing. In an earnings conference call earlier this week, Qualcomm’s CEO put it bluntly. “Apple’s complaint contains a lot of assertions, but in the end this is a commercial dispute over the price of intellectual property,” CEO Steve Mollenkopf said. “They want to pay less than the fair value that Qualcomm has established in the marketplace for our technology even though Apple has generated billions in profits from using that technology.” See Forbes article here. Mollenkopf’s blunt assessment summarizes what the last ten years of congressional patent reform have been all about lowering the supplier cost of patented components to ICT assemblers who distribute finished products to the public in a very competitive global market governed by the exponentially accelerating pace of Moore’s Law. After fighting with each other over product market share, big ICT tech patent reformers are gladly holding Apple’s coat as it tries to suppress Qualcomm’s share of its product’s sales price by judicially attacking its licensing model.
Big tech intermediaries who market their ICT products (like smart phones) to consumers gained overwhelming bargaining leverage over their suppliers when the eBay decision effectively denied non-practicing patent holders the protection of permanent injunctive relief. Having judicially secured that bargaining edge, price negotiations with lesser-resourced component suppliers reverted to under-payment or simple avoidance. Efficient infringement had become irresistible but led to the creation of secondary market specialists who were branded ” patent trolls “by efficient infringers. For big ICT tech, which already had weaponized patents to fight for market share with big tech adversaries eBay set the stage for big tech to open up a second front they called patent reform. This new war would be waged on Capitol Hill against the patent trolls but in fact it was brought by big tech aggregators against their supply chain component originators in order to gain a greater share of final product price. In this battle the warring ICT intermediaries were allies. For lesser-resourced component suppliers’ efficient infringement and AIA eroded patent values. But well-resourced suppliers able to afford post AIA enforcement suits were impervious to efficient infringement and could manage the punitive costs of AIA. Qualcomm is such a supplier. Its size and must-use technology supplier enabled pricing that had to be attacked in court.
At congressional patent reform’s outset, efficient infringers had little to lose. If eventually they were found guilty, unauthorized use of the patented infringed technology would be “judicially priced” in the form of damages hypothetically calculated under Georgia Pacific’s royalty requirements. Royalty damages would be hypothetically calculated as if their use had been mutually agreed to in timely pre-infringement negotiations. This is retroactive compulsory licensing in effect without further imposition of other contractual limitations on the “compulsory licensee’s” conduct and use of the patented technology. “Infringe now and price later” may have been economically advisable in ICT markets propelled by Moore’s Law, but is unlawful under US patent law. Moreover, this widespread business model has clogged courts and has encouraged genuinely abusive and predatory trolling conduct. But well-resourced suppliers are not intimidated in the new post AIA environment. They must be bargained with on even terms. The courts have now been drawn into a battle to unbalance those terms. In order reduce Qualcomm’s licensing powers Big ICT tech wants to undermine Qualcomm’s licensing strength, hoping that judicially-imposed licensing restraints will lower supplier costs giving Apple a larger share of their product’s sales price.
Kindness of LES’ Brian O’Shaughnessy, a letter was sent to USPTO Director Michelle Lee by the NY House congressional delegation. It outlines how IPR’s reputation for patent nullification is being leveraged by abusive hedge funds who are filing petitions for IPR review of publicly traded, patent reliant firms to reduce their stock prices. Continue reading Letter From NY Congressional Delegation to (former?) Dir. Lee
Gene Quinn pulls no punches in his feisty analysis (below) of Mayo. Mayo is the judicial equivalent of the market’s efficient infringement where maximizing financial return results from ignoring patents. Mayo enables their efficient judicial nullification. Mayo’s signal to patent validity tribunals has infected USPTO examiners, PTAB, the lower courts and SCOTUS itself. Like its market kin, its toxic impact has extended far beyond the judicial arena. Teamed with eBay’s blow to bedrock exclusivity our entire innovation ecosystem has been poisoned by it. Mayo provides efficiency to legal tribunals by enabling the early dismissal of IP originators’ exclusivity itself without their having to contend with prolonged disputes involving the complexities of patent law and technological progress. Continue reading Mayo, the Judicial Equivalent of the Market’s Efficient Infringement
Federation of American Societies for Experimental Biology (FASEB) members number 125,000 including thirty health-focused societies. It is the largest coalition of biomedical research associations in the United States. Widely considered as the policy voice of biological and biomedical researchers, FASAB annually advocates for “stable and predictable” congressionally appropriated federal funding for basic life science research. Its 2017 recommendations for added congressional funding of five federal life science grant agencies highlights recent medicinal therapies flowing from their life science grants. It also states why and by how much grant funding should be increased for each agency. here. Federal funding stability and predictability enable projects already being conducted to continue and enable formation of new commercialization partnerships leading to more promising scientific discoveries through private sector investment. Continue reading Drug Pricing and Life Science Commercialization
Because TT commercialization requires prudent private sector investment, increasing uncertainty regarding post-patent and post-development patent and pricing reliability threatens Bayh-Dole TT commercialization. Patent reliability and investor pricing aegis are critical prerequisites private sector entrance into commercialization partnerships. Both are now under attack. now it appears that R&D funding for disposition by federal grant agencies also is under concerted attack. When the NY Times and the Wall Street Journal publish op-eds attacking federal funding attacking NIH and research universities, the attack is confirmed and must be met head-on. Continue reading Bayh-Dole Commercialization Under Attack
Neal Solomon’s well-written, thoughtful IPWatchdog post (linked below) presents a patent policy agenda for President-elect Trump. It also is a policy roadmap for all pro-patent advocates in the months ahead. Already it has attracted 26 comments, many of which add other important pro-patent policy proposals. The harms it describes are especially applicable to research universities. Moreover it not only demonstrates that our pro-patent ranks have swelled , it warns us that commercialization of research universities’ basic research cannot continue if patents are insufficiently reliable to support private sector investment in commercially promising scientific research. When commercialization becomes impossible congressional R&D grants will no longer be politically justifiable. Continue reading We Are Not Alone . . . .
As usual, Paul Morinville’s logic is compelling . AIA should at least be repealed and replaced while Congress expressly restores IP property rights and fixes Sec 101. Continue reading Restore Patent Property Rights
Enclosed below is a link an article by Michael Rosen who writes intelligently for Tech Policy Daily but roots repeatedly for congressional enactment of mega-tech litigation reform. In today’s TPD post he likens hedge fund mogul Kyle Bass’ recent favorable decision on one of his many short sale-IPR filing schemes to the Cubs’ World Series triumph. Rosen reports it had taken Bass 18 months to actually invalidate a patent! Bass could not care less. Continue reading Bass Successful Patent Challenge By Adds Intrigue To Reform Debate
The Quinn-Keller dialogue below is must reading. Today’s patent problem isn’t patent trolls. It is the diminishing availability of infringement damages after efficient infringement. In the case of IT hardware companies like Apple, in a post IPR environment efficient infringement is virtually inevitable. In a post HR 9 business environment it will become virtually mandated. Continue reading Efficient Infringement’s Consequences Are Mostly Unavailable