Week 12 Blog #4: My Expectations for Change in the Patent Industry As I Become a Professional

One issue that this course has gotten me passionate about is the role of trolls in the American economic system. Patents drive business, they are the lifeblood of companies ranging from multinational corporations to small start-ups in the garages and basements of individuals. As a burgeoning entrepreneur, the one entity that truly frightens me in my quest to create are patent trolls. A company that exists solely to take advantage of the innovation conducted by other companies should be an entity that is deemed illegal by our justice system. Unfortunately, this sort of rationale is not present and smaller companies become the prey and eventual fatalities of the actions by these trolls.

My expectation with the issue of trolls is that the government continues to address their impact on not just individual companies, but on the American economy as a whole. How can companies exist when they are consistently underneath the microscope of those who seek to simply find loopholes to take advantage of them? What kind of free-market world is this where companies don't even have the opportunity to develop? The AIA Act passed in 2012 by Congress was a good first step, but there is so much more to be done in terms of litigation and dealing with patent trolls.

I am hopeful that some sort of major legislation comes out sooner than later that will reduce the effects and existence of these trolls. We have already seen progress within the federal government, only to be stalled by the lobbyists in Washington hired by these trolls, but nonetheless this is an issue that is growing in prevalence. The matter of how our legal system will deal with these trolls is not simply a curiosity of mine, but a major influence in how I will go about in terms of conducting business in my future career. I will undoubtedly keep up with the developments of this ongoing battle and fully expect that within the next year or two, we will have a stricter form of legislation designed to stimulate innovation through putting a muzzle on these trolls that have caused a countless amount of damage to thousands of individuals and companies. It is time a stand is taken against these agitators.

Week 12 Blog #3: How My Personal Skills Improved Through Collaborative Learning

I've learned a lot of qualitative and quantitative knowledge through this course about patent litigation and the issues present within our current system, but one thing I wanted to note was how some of my more intrinsic, personal skills improved through both our class discussions and homework. There are as follows.

1. Communication
I never posted a YouTube recording of myself before and certainly never made a recording for something that was academic related on my YouTube account. One of the things this course taught me was effectively using social media, and specifically the video functions of it, to communicate to an audience outside of the traditional pen and paper. My first videos were filled with long pauses, moments of silence as I tried to think of what to say next, and general frustration on my end on how to make the perfect video. Through the critique of my peers, I learned that no video was ever going to be perfect in the sense of perfection that I sought, but the most important thing was to clearly convey my thoughts and opinions to my peers so that they would at least understand my material. I would write my blog posts before I made my videos and would attempt to summarize these posts prior to recording, which eased my transition to recording myself. Rather than read a long post that anyone could simply open up on my blog, I decided to intersperse separate thoughts, opinions, and questions in my videos to keep my audience engaged. And most importantly, I learned to shorten my videos and maintain them in a concise manner so my audience had a definitive understanding of the topic that I was presenting. The video aspect of this class played a major role in improving my communication skills.

2. Writing
Blogs are not your traditional essay formats. Frankly, the way I saw it, blogs could feature any format that was most comfortable for you. But what I sought to do in my blogs were to really go in-depth and attempt to present my information in a clear and logistical manner. Initially my blog posts would feature generic statements not really backed up with too much substance, but as the semester progressed, I noticed how my blog posts would feature more details whether it be facts around a certain case, quantitative trends that caught my eye that I could throw into a post, or just going more in-depth in explaining why I felt a certain way about an issue relating to patent litigation. The blogs were a good informal setting for me to improve my writing skills in a way that I could better communicate heavy amounts of information in a manner that was clear to my audience and was different from the traditional norm we are accustomed to in academia.

3. Participation
I normally sit in the front of most of my classes, but I rarely ever participate because I'm typically frightened by the prospect of blurting our the wrong answer or because participation doesn't have any sort of impact on my grade. Seeing the importance of participation in this class initially for my grade really got me to raise my hand as often as I could in the semester, but I see my learning experience was also enhanced by this. Yes, in many cases my analysis would typically be faulty or incomplete, but I felt that I was consistently corrected and I actually understood the material better through making these mistakes through thinking out loud. By the end of the semester, I was more eager to participate and did so because although in many cases, I didn't know whether my logic was correct, by putting it out there, I could see how I analyzed certain issues correctly and where I could improve my overall line of thinking and I think this emphasis on participation for this class really demonstrated to me the importance of participation not just for the learning experience of the class, but for myself personally.

Week 12 Blog #2: On the Value of IEOR 190G

To be honest, when I first signed up for this class, I had no idea of what I was getting into. I didn't quite understand the syllabus initially, I didn't understand if there would be any technical material in this course, and I didn't understand how a business major with no intention of going to law school would ever really need to use patent law and an understanding of patents for my future career. For me this class initially sounded very vague and I was quite hesitant about whether this was the right class for me to take. Having gone through over 12 weeks of IEOR 190G, my mindset has undergone a full 360.

I believe the beauty of this class lies in its ability to connect to all the different spheres of the tech world and the individuals involved to showcase how patents truly dictate the evolution of our society. Coming in and leaving this class, my immediate ambition after graduation lies working with technology services and institutions in either a consulting or investment banking analyst role. While these industries are indeed number driven and focus a lot on the quantitative and qualitative nature of their businesses, I never realized how patents drive the existence of these tech companies first and foremost. When I recently went to a conference a few weeks ago for individuals interested in investment banking, speaking to professionals in the industry, one of the key components they spoke about when it came to the valuation of companies was about the patent portfolio of these tech companies. The importance of patents for so many people in so many separate industries really surprised me throughout this course and for someone who desires to be involved in the tech industry in my future, this course taught me that the foundational structure of any tech company revolves around that company's patent portfolio.

The reason I would suggest this class to my peers is because of its cross-functional utility for so many different industries. It doesn't matter whether your an engineer, business major, or pre-med, patents apply to so many different fields of study and I feel that this is definitely a course useful for whatever field of study a person is in. But I would not recommend this course simply because of the usefulness of the course for future careers. There are many courses at Berkeley that are offered that are useful for our future careers, but what separates this course is the learning experience. We are consistently challenged in class when answering questions, pushed in our homework to provide clear analysis and understanding of patent law, and have our work critiqued by our own peers. This learning experience is eye-opening and forces you to learn in a new style that improves your sense of interpreting patents and using deductive reasoning to come to conclusions. That is why I would suggest this class to my peers. The unique experience behind it differentiates it from so many courses offered at our great university.

Week 12 Blog #1: On Collaborative Learning Through Social Media

I feel one of the ongoing issues in higher education that we face today is the attempted individualistic, divided nature of work. The idea of "my work" comes before the thought of "our work". In life, nothing can be done without using the foundational precedents that are already in place. When we craft a research paper, we use sources. When we solve a physics or statistics problem, we utilize the earlier formulas and theories derived by those in the field. When we seek to create a product, we take bits and pieces of the prior art that came before our finished product. Yet from the beginning of our academic careers, we're taught to be individualistic, to showcase our thoughts and ideas as wholly independent from the thoughts and ideas of others.

One of the reasons I enjoyed this class was the fact that Professor Lavian attempted to break through this form of learning that had been instilled in our minds for so long. When comparing my earlier work in the semester to the blog posts and YouTube videos I produce now, I credit my improvement to collaborative nature of this class through social media. The beauty and value of social media exists in its ability for individuals to clearly convey their opinions and thoughts in an engaging matter. I don't know if this applies to all in the class, but for me, I took the comments I received on both my blog posts and YouTube videos quite seriously. How I convey my thoughts and how others perceive the quality of this ability are two components I truly sought to understand through this social media activity. I would take all the feedback from my peers, whether it concerned the volume of my speech in the videos or my inability to properly go more in depth on my opinion concerning certain components of my posts, and attempt to structure my work more so to their liking and opinions.

I found the value of learning through social media to be astounding because of for the first time, I could quickly find out how to improve not only the learning experience of others, but the learning experience of my own self. The succinct, concise nature of social media keeps individuals engaged and really helps make points clear in a manner that differs from the traditional, obtuse form of learning we have become so accustomed to throughout the years. My opinions, thoughts, and ideas were influenced by my peers and I really felt that social media connected all of us in a way that it took the larger concepts that we were studying and broke it down to the point where we could all collaboratively form a pool of ideas and pick and match what ideas best fit along with our ideologies. It would be wonderful if a greater number of professors utilized this form of learning as for the first time, I felt I could ask my peers to see their own opinions and meld these thoughts with my own to create stronger arguments. In classes where concepts can be tricky and sometimes not as clear to understand, I think this form of collaborative learning through social media really helps breaking down obtuse concepts and allowing for students to thrive not as individuals, but as a group. But the way to truly make this a constructive concept requires students to truly buy into this initiative. In this class, I know as a group we were all fortunate enough to see so many students focused and engaged in their blogs and videos that really assisted everyone in terms of their learning. That is how this initiative can succeed. When students provide constructive, critical commentary that provides debates, that causes disagreements, and brings to light new ideas others had not come up with before is how collaborative learning through social media can succeed. Right now we have the tools, but as students and lecturers, we have to truly buy in to make these tools work.

Week 11 Blog #4: Patent Advice for Small Companies

In Ms. Kasznik's lecture she quoted that a patent serves as a strategic asset that can be used as leverage in any situation and that for small companies and start-ups, their advantage in filing patents was the fact that they have the ability to innovate faster than most larger companies who are primarily focused on defending the patents they already possess. While looking more in-depth into this fact, I happened to come upon an article published by Todd Hixon of Forbes who argues that for most small companies, patents are just about worthless. Mr. Hixon writes that many entrepreneurs misunderstand the value patents create and how difficult they are to enforce.

I believe patent owners struggle with understanding that patents function more so as an attacking mechanism rather than a defensive tool in the sense that patent owner are free to go after those parties they feel are infringing upon certain elements within their patent, but the patent doesn't give the owner the right to develop that technology solely without any interference from other parties. We see this in the multiple patents we have reviewed over this course such as the numerous patents for a beverage cup protector that essentially were patents that were all quite similar, but had a few differing characteristics that made each one non-obvious and novel.

The issue for small companies however is the fact that there exists so many blockades to them filing patents for their work or simply getting their business off of the ground. Mr. Hixon gives the example of a small company where the product design might be protected by a patent, but the manufacturing process might be subject to another company's "blocking" patent. Furthermore, smaller companies in the information technology world are attacked by the broad patent portfolios of larger companies and with the major players in the market dominating this patent pool, new entrants are left in the cold.

With all these factors in play, Mr. Hixon provides some suggestions for small technology companies to help them grow outside of a reliance on their patents. Some suggestions include not basing a company's business strategy on patents, filing patents in the U.S. and not beyond that, paying close attention to patents that others hold which might enable competitors to block you, and build business on real competitive advantages such as product value-in-use, customer relationships, and rapid innovation. While Mr. Hixon provides some good advice in this matter, I still believe patents have a good amount of value for small companies in terms of defending their products and getting noticed on the map by big competitors who might seek to buy them out. While there are certain risks associated with attempting to base a business model off of patents, I wouldn't say patents are completely worthless to these small companies.

Week 11 Blog #3: Comparison of IP Rights

In the early part of her lecture, Ms. Kasznik provided certain insight into the different forms of intellectual property and what made each form unique. I will proceed to go into an in-depth analysis of these different types of IP and what makes each one unique from the other.

1. Copyrights

Copyrights are original works of authorship: literary, dramatic, musical, artistic, etc. They are guaranteed automatic protection and last throughout the author's life along with an additional 70 years. Copyright provides a framework for relationships between the different players in the content industries, as well as for relationships between rights-holders and the consumers of content. 

Copyright protection subsists in original works of authorship fixed in any tangible medium of expression from which they be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. In essence, the purpose of the copyright is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship.

2. Trademarks
Trademarks are the word, name, symbol, device used in trade to distinguish goods. Two basic requirements must be met for a trademark to be eligible for protection: it must be in use in commerce and it must be distinctive.

There is no expiration as long as the trademark is used commercially. The purpose of trademarks are for companies to protect their brands. When a company trademarks a logo or name, it is essentially ensuring that others will not steal or mimic the original company's identity. Certain companies are identifiable by certain defining aspects of their products through symbols, names, or words and trademarks ensure that this brand is allowed to exist without the interference of others stealing and diluting the established brand name. 

3. Trade Secrets
Trade secrets are business items/info that are of economic value and kept confidential. There is no need to show novelty or to disclose to the public and there exists the need to take measures to keep confidential. The lifespan of trade secrets are indefinite and their purpose is to protect a company's most valuable product from being infringed on.

4. Patents 
Patents are the right to exclude others from making, using or selling products covered by invention in a defined territory, a constitutional property right as defined by Ms. Kasznik. As we've discussed before on numerous occasions patents must be novel, non-obvious, reduced to practice, and features territorial protection for up to 20 years from filing.

There exists four types of patents that the USPTO has established:

• Utility Patent: Issued for the invention of a new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof, it generally permits its owner to exclude others from making, using, or selling the invention. Approximately 90% of patent documents issued by the USPTO have been utility patents. 
• Design Patent: Issued for a new, original, and ornamental design embodied in or applied to an article of manufacture, it permits its owner to exclude others from making, using, or selling the design for a period of fourteen years from the date of patent grant.
• Plant Patent: Issued for a new and distinct, invented or discovered asexually reproduced plant including cultivated sports, mutants, hybrids, and newly found seedlings.
• Reissue Patent: Issued to correct an error in an already issued utility, design, or plant patent, it does not affect the period of protection offered by the original patent.

Week 11 Blog #2: Roadblocks to a Patent Sale

In Ms. Kasznik's presentation, she spoke about the industry trend of a slow-down in patent transactions. Looking further into this trend, I found an article published by Art Monk of TechInsights listing some of the potential hazards preventing the successful sale of a patent portfolio. Hazards include the following:

1. Unknown encumbrances appear during the buyer's due diligence
The discovery of an unknown encumbrance during the buyer's due diligence, particularly if the entities that have major shares in the markets the patents read on, can derail the transaction.

2. Prior art is found that invalidates the key patents
This is a known fact that we have repeated a countless number of times in our course before: any discoveries of prior art during a potential buyer's diligence effort can derail a proposed acquisition. Buyers go to great lengths to ensure that no public disclosures that would have enabled a person skilled in the art to formulate the invention were available at the time the patent was filed. If such disclosures are discovered, then the patents for sale would essentially have no value as they would be invalidated.

3. Chain of title is incomplete
The USPTO records do not show the seller as being the current title holder as there is no requirement under US law to record prior patent assignments so buyers will require this be corrected before a transaction can close.

4. A government entity contributed development funds
If a R&D fund is back by the government, the government may seek a share of the transaction proceeds to recoup its investment additionally insisting on information rights covering the identity of future buyers and their commercialization efforts associated with the patents, factors that could potentially discourage potential buyers from engaging in a deal with the seller.

5. Rights to past damages were not previously transferred
Unless the ability to sue for past damages has been explicitly transferred in all prior assignments, the patents being sold may have no rights to past damages which can come up in the buyer's diligence and if not dealt with, could impair the transaction.

6. Rights of first refusal 
Some sellers enter into agreements to allow a third party the right of first refusal to acquire designated IP assets. This impairs the ability of the seller to market a patent/portfolio because buyers will not invest significant funds into a diligence effort if they know a third party might exercise a right of first refusal and trump their best offer.

7. Inventor attended meetings of a standards body
If inventors attend meetings of a standards-setting organization, inventors must sign an agreement that any patents they file after the meeting that read on the standard will be available to license by third parties on a fair, reasonable, and non-discriminatory basis which can affect the future value of such patents.

All of these scenarios and situations are issues that can slow down the closure of a patent transaction and may explain for the recent trend that Ms. Kasznik presented in Monday's lecture.

Week 11 Blog #1: Industry Trends to Watch

In her lecture this past Monday, Efrat Kasznik went over a few industry trends to watch in the case of patent monetization in the coming months. Some of these trends to watch were quite encouraging in my opinion, but others were alarming in the sense that we need continued patent law reformation in this nation. Below, I will briefly go over each trend to watch and my opinion on this.

1. The Enforcement Business Model is Under Attack
As Ms. Kasznik went over earlier in her presentation, patent litigation has recently seen a decline for the first time in 5 years as enforcement entities are scaling down. In my opinion, this is a fantastic trend and really has shown that the AIA has been a positive first step in reducing the harm posed by patent trolls. In the video of John Oliver deriding patent trolls in a satirical, but entirely true manner, it was estimated that patent trolls have caused an estimated $1 trillion hit to the U.S. economy. And it was especially disturbing to find out in Ms. Kasznik's presentation that these trolls were targeting companies that generally could be considered small, as at least 66% of patent troll defendants were companies with less than $100 million in annual revenue and at least 55% of unique defendants in patent troll lawsuits make under $10 million per year. This small startups are the lifeblood behind the growth of the modern economy and without them, innovation and business domestically slows down. These trolls have long been harming the foundation of the American economy by primarily attacking these small startups and it is encouraging to find that the government has taken an initiative to combat this trend and the results so far have been positive.

2. Patent Transactions Slowing Down
On the other side of the spectrum, I was discouraged by the fact that patent transactions seem to have slowed down, especially in software patents, and buying has moved to China where mobile and IoT are hot right now. It is now surprising that patent transactions in software has slowed down due to the flexible nature of the software nature. When companies construct different forms of software and patent it, competitors can get around these patents by utilizing the same structure as the originally constructed software, but with a few separate variations that make the patent for this new software valid. The fact though that buying has moved to China is the truly worrisome part as this gives leverage to the large Chinese companies to bring legal pain to some of its competitors, many of whom are U.S. companies. This has the ability to lead to further patent wars such as the ones we saw emerge between Samsung and Apple and could truly confound the patent market further.

3. Focus Shifting to Validity
The enactment of the AIA led to the creation of the Patent Trial and Appeal Board, allowing for patents to be reexamined. This board has been called the "Patent Death Squad" as it has reversed the validity rulings on many patents. I believe there is both good and bad that arises from this situation. The good is the fact that there are now more opinions on whether a patent can truly be considered valid. I believe this strengthens the goals and mission of the USPTO in terms of truly validating patents. Where the negative lies is the fact that the trend has resulted in many patents being ruled invalid, as owners are being consistently challenged and having their patents overturned. Basically, those in the patent office that had originally ruled the validity of a patent are consistently having their opinion and patent decision invalidated by their peers. This rate of turnover is quite concerning and I truly believe it is a situation where the current model needs reform in terms of consistency when it comes to Board decisions.

Week 10 Blog #4: Beth Noveck and "Opening" Up the Government

Beth Noveck's Ted Talk concerned her work as the White House Chief Technology Officer and leading the Obama administration's movement for an "open source" government. I found it quite amazing that when she arrived to the White House, how secretive the government was at the time and how the Obama administration attempted to open up the dialogue the government had with the general public. I found it especially reassuring that she made the claim that this "open government revolution is not about privatizing government, because many cases what it can do when we have the will to do so is to deliver more progressive and better policy than the regulations and the legislation and litigation-oriented strategies by which we make policy today".

I think this is a fabulous effort made by the American government to open up about the rationale and decision-making about executive decisions that will be made concerning not just the average citizen, but by the country as a whole. I especially appreciate how the government has divided this into two separate phases: one in which gathering information is imperative and the second is to continue the search for data through the mining of information through hackathons to allow for people to engage and participate. I thought Ms. Noveck's argument was progressive in the sense that it allows for us citizens to understand the rationale behind the decisions that the government makes and why it feels to go that way.

In a world where data has become increasingly accessible to everyone, I think Ms. Noveck highlights the role the government is playing to reinforce the ideal that the federal government is looking out for our best interests. We need to continue this open-source policy to allow for a direct and clear line of communication between the public and those serving the interests of the public. I strongly support the measures that the federal government has taken under Ms. Noveck and I hope they continue to publicize their effort in attempting to pass through policy that the general American public understands.

Week 10 Blog #3: Ellen Hoen and the Ethical Nature of Pooling Medical Patents

Ellen Hoen in her Ted Talk brilliantly brings up the need for companies to participate in the Medicines Patent Pool, where pharmaceutical patent holders voluntarily make their patents available to the Medicines Patent Pool which then license those out to whoever needs access to those patents. She brings up the example of anti retroviral medicines (ARVs) for AIDS treatment in the early 2000s when ARVs cost about $12,000 per patient per year. The patents on those drugs were held by a number of Western pharmaceutical companies that were not willing to make those patents available, causing patent wars to break out and an overall drug prices crisis to take place. Luckily, countries that didn't recognize pharmaceutical product patents product generic versions of these ARVs, dramatically lowering prices from $10,000 per patient per year to $350 to the current price of $60.

However, rules have changed where all countries are obliged to provide patents for pharmaceuticals that last at least 20 years and as new drugs are invented, a drug price crisis approaches closer once again. That is why the Medicines Patent Pool for HIV created by UNITAID in 2010 is critical to prevent cases where swaths of the world unable to afford high-priced patented medication are forced to suffer. The risk of this pool is the voluntary nature of it: these pharmaceutical companies are not obliged to participate within this pool and while the pool has been working so far, I believe it needs to be expanded. It shouldn't be just for HIV, but should be for a variety of diseases that afflict this world.

I believe the Medicines Patent Pool for HIV has been a great first step in addressing this issue, but I don't know the feasibility for its voluntary nature to continue to work in the long-run. I believe as new drugs for other diseases are produced and their value and need increases, these companies will be more so motivated in profits rather than contributing to the greater good. I believe in the long-run what we will need to do is to expand this pool and make it mandatory for pharmaceutical companies to throw their patents into. It is the only way to prevent these profit-seeking organizations from withholding medicine from those who need it the most.

Week 10 Blog #2: Kirby Ferguson and Separating Property from Remixes

In his Ted Talk, Kirby Ferguson notes the inability of the American patent system to understand the ideology of the term "remix". Remixing involves three techniques according to Mr. Ferguson: Copy, transform, and combine. He demonstrates this in music with the example of Bob Dylan, who some argued simply stole other individuals' songs. But copying and remixing are two separate actions. Bob Dylan, as Mr. Ferguson notes, copied melodies, but then transformed them and combined them with new lyrics which were frequently their own concoction of previous stuff. That is remixing, building upon the work of old to produce something new and possibly, better overall.

I agree with Mr. Ferguson's argument that the American patent system runs counter to this notion of building on the work of others. The idea of property fits well in the case of land because you have to defend it from squatters and such, but the idea of "property" when it pertains to intellectual products and ideas runs into a grey area. Yes, it is important to make sure that ideas aren't simply stolen and taken credit for by individuals who did not originally come up with the idea or product. That is a necessary defense in the system that is built in place to promote innovation and continually building products. But the issue that comes up is those that have built themselves up through recreation and consistently mixing and matching with prior inventions now seeking to defend themselves from those looking to build on their ideas.

Take the case of Steve Jobs. Mr. Ferguson showed the video of Jobs in 1996, claiming that Apple sought to take prior inventions and build upon it to create their own machines, or as he would quote from Picasso, "Good artists copy. Great artists steal". By 2010, Jobs wanted to "destroy Android because it's a stolen product" and proceeded to patent the "slide-to-unlock" technology in iPhones.

The question that arises here is how are we allowed to progress in this system? When one takes a few steps in innovation, that individual becomes the target of various organizations for infringing on their "intellectual property". Every invention that comes about is built upon the ideas and products of those that have come before it, but in the system we live in today, it seems inventors and organizations want to reject this "remix" ideal. We are dependent on one another and Mr. Ferguson showcases this brilliantly. That is how innovation can take root and really change the world we live in.

Week 10 Blog #1: Analyzing the Case of Drew Curtis and Patent Trolls

Drew Curtis, the founder of Fark.com, gave a Ted Talk on his process in challenging and defeating a patent troll that claimed that his company was infringing on their patent for the creation and distribution of news releases via email. Naturally, I found this story quite amusing and certain points really stuck out to me during his presentation.

1. Sticking with the case rather than settling.
Along with his company, Mr. Curtis noted that other large organizations such as Yahoo, MSN, TechCrunch, and others were also accused of infringement by Gooseberry, but rather than defend themselves, these companies choose to settle in hopes of avoiding the high costs that are associated with patent infringement lawsuits. The irony behind this that caught my attention was the inability of Gooseberry to defend its own lawsuit when Mr. Curtis did not give in to their settlement demands. Gooseberry couldn't even provide screenshots of Fark where the infringement of their patent was occurring. To further compound the hilarity of this situation, they pressed Fark further into settling. In my belief, if this doesn't go to show you the pathetic nature of these trolls and the need for the justice system to take action against these companies, I don't know what further proof you need to highlight the systemic damage these trolls cause on innovation. As the accuser, they cannot even come up with the evidence against the defendant, making it blatantly obvious that their existence solely is to manipulate the patent system for money rather than defending any intellectual property.

2. Lessons learned.
I thought Mr. Curtis brought up some unique defenses in how to combat these trolls. Fighting the infringement, not the patent is definitely a safer route of action to take against these trolls. It's easier to force their hand into showing what aspect you are infringing rather than going up against their patent, which is traditionally difficult to overturn. Making it clear to the troll that you have no money or you would rather spend money fighting the troll rather than giving them any money is another good option as the troll becomes fearful of not recovering any money. And in general, making the entire process extremely difficult and painful for them, simply frustrates them and pushes them into making poor decisions and weakening their allegations. I feel that this way mentally "trolls the troll" as their arguments become weaker and the evidence they draw up against companies really isn't as strong as they thought it would be.

3. Trolls are terrorists.
It's a bit of an extreme statement, but when you consider the fact that trolls have done more damage to the U.S. economy than any domestic or foreign terrorist organization in history every year, it shows you how much harm they cause to the economic environment we exist in. I don't argue with the principles of the free-market economy and capitalism because I believe they have proven to be the most efficient market systems in the world historically, but you cannot possibly defend those who manipulate and hold the markets hostage in such manners. If we have taken such a priority to defend our nation against terrorists both domestically and abroad, shouldn't we take the initiative to defend our economy against those manipulating it? Their has been nothing good coming from the existence of trolls and it's about time we take back our rights of innovation and creation.

Week 9 Silly Patent #4: Beerbrella

Title: Beerbrella
United States Patent 6637447

Abstract: The present invention provides a small umbrella ("Beerbrella") which may be removably attached to a beverage container in order to shade the beverage container from the direct rays of the sun. The apparatus comprises a small umbrella approximately five to seven inches in diameter, although other appropriate sizes may be used within the spirit and scope of the present invention. Suitable advertising and/or logos may be applied to the umbrella surface for promotional purposes. The umbrella may be attached to the beverage container by any one of a number of means, including clip, strap, cub, foam insulator, or as a coaster or the like. The umbrella shaft may be provided with a pivot to allow the umbrella to be suitably angled to shield the sun or for aesthetic purposes. In one embodiment, a pivot joint and counterweight may be provided to allow the umbrella to pivot out of the way when the user drinks from the container.

Analysis: Basically, the purpose of this invention is provide an umbrella covering the contents of a beer bottle while the user either drinks it or puts it down for a period of time. This isn't the same as insulating sleeves in the sense that the umbrella doesn't actually keep the beer cold, but rather simply provides a cover for the beer from the sun. This is what separates this invention from its prior art: the purpose and functionality is completely different from any prior inventions. Since this device is specifically for beer bottles, it's a tad easier to defend the novelty of this invention as there doesn't exist an invention quite similar to this and while its purpose is difficult to ascertain, it is undoubtedly non-obvious. What benefit this invention actually provides to the user is the only question behind its existence.

Week 9 Silly Patent #3: Dog Nose Art

Title: Dog Nose Art
United States Patent 20090188617

Abstract: A kit and method that converts dog nose smudges deposited on a first surface into a form of dog nose art on a second surface.

Analysis: When reading the background of the invention, the inventor holds the belief that "there is a need for kits or methods that enable dog owners to remember and/or celebrate their dogs in a decorative and artistic way". Essentially, due to the relatively short nature of a dog's life in comparison to human years, the purpose behind this invention is to take dog nose smudges found on separate surfaces onto a solid base surface to create a form of "dog nose art". What makes this entire process non-obvious is the utilization of multiple surfaces to collect the residue from this smudge and apply it to a separate transparent layer that essentially collects these smudges as "art". While the prior art for this invention describes inventions that relate to the collection of these types of imprints, the novelty behind this invention is that the purpose behind this is for the collection of dog nose smudges. As ridiculous as it may sound to collect these smudges and have an entire procedure behind the collection of it, the process is nonetheless valid in the sense that it is a non-traditional method for a non-traditional purpose that has not been utilized before in the prior art.

Week 9 Silly Patent #2: The Chin Putter

Title: Linear Putter Device of a Golf Club
United States Patent 6659880

Abstract: A linear putter device of a golf club includes a lower connecting rod, an upper connecting rod, a bearing unit, a locking member, an upright rod, and a movable member. Thus, the golf club is moved in a linear manner, so that the golf club can hit the golf ball in a linear manner. In addition, the distance between the movable member and the upright rod can be adjusted arbitrarily so as to fit the user's stature and height, so that length of the golf club can fit the user's stature and height.

Analysis: The purpose of this device essentially is for the user to hold an upright rod underneath their chin and the lower half of this rod is connected to another rod that functions as a putter. Basically, this invention allows you to maintain a linear stroke when striking a golf ball. In terms of obviousness, this invention separates itself from the prior art, which is a traditional golf putter, in the sense that this connect multiple components for the golf club to swing. Thus, it is clear that this invention is quite novel even though its purpose is quite ridiculous in the sense that this invention simply complicates the ability for a user to actually strike the golf ball in the sense that only one hand will be used to generate power to hit the ball since the other hand must hold the rod underneath the user's chin.

Week 9 Silly Patent #1: Light Bulb Changer

Title: Light Bulb Changer
United States Patent 6826983

Abstract: A light bulb changer method and apparatus that contains components that allows for instantly detecting a burned out light with a replacement bulb. The changer operates without human intervention, and can be assembled from a kit having a light fixture, detecting sensor, removing and replacement hardware. The kit can allow a consumer to assemble the changer for use as a novelty item, and/or also to be used as a working light fixture, such as a table lamp, and the like. The changer can also be used as a retrofit for existing light fixtures so that the existing light fixtures can be modified.

Analysis: In essence, the purpose behind this invention is to provide an automatic sensor and apparatus in terms of detecting and replacing burned out light bulbs. And in terms of validity, it cannot be argued against that this is a lack of invention or this lacks novelty. Quite frankly, this machine is revolutionary in the sense that it provides users the capability to have their light bulbs replaced automatically. This machine is undoubtedly non-obvious in terms of providing a service that the prior art for this does not account for, making this quite an original invention. What makes this patent silly is the fact that this contraption is so complex to complete such a simple task that its purpose is nonsensical.

Week 8 Blog #2: Motorola vs Intellectual Ventures

Motorola Mobility was found by a US jury to have ripped off an Intellectual Ventures-owned technology patent although they were fortunate to have a second infringement claim against them dropped.

The panel of peers ruled that a range of Moto smartphones in 2011 infringed US patent 7,810,144, which describes a process in which files are uploaded, authenticated by a third party to check the identity of the sender, and then passed on to other devices, but did not infringe US patent 7,409,540, which describes a TCP/IP packet-centric wireless point-to-multi-point transmission system architecture. Intellectual Ventures, known in the industry for its patent-hoarding methods, accused Motorola Mobility of using the technology in a dozen handset models without permission as part of its ongoing war against Lenovo-owned Moto.

It was the second time the two companies faced off in court after the first round ended in February 2014 due to mistrial after jurors could not agree on a verdict. Intellectual Ventures recently scored a $17 million win against Symantec and while it licenses its portfolio out to companies such as HTC and Samsung, it has recently become more well known for suing tech companies who might be infringing on its intellectual property. Intellectual Ventures argues that what separates them from patent trolls is that the company does not file frivolous lawsuits. Nonetheless, Intellectual Ventures shows the clear signs of a company that burdens innovation by using patents they buy to pursue lawsuits instead of building any products.

Week 8 Blog #1: Advice on How to Beat a Patent Troll

Chris Hulls, the chief executive officer of the family networking and communication service, Life360, and a UC Berkeley alumni, recently posted a piece on TechCrunch recounting his tale with dealing with a lawsuit brought forward against his company by Advanced Ground Information Systems Inc. for patent infringement. Under their interpretation of the patents, any company that showed a location marker on a map or connects a group of people using location-sharing capabilities on smartphones could be infringing. Refusing to settle, Mr. Hulls took AGIS to federal court, where a jury returned a verdict of non-infringement against Hulls and Life360. In the article, Mr. Hulls provides three non-traditional methods his company undertook against the troll.

1. Go Nuclear
Trolls expect companies to listen to their lawyers, stay quiet, and pay them to go away. By publicizing the role of trolls in a case through various mediums, trolls and their law firms become fearful for their own reputation and hesitate about proceeding further with a case or possibly launching future lawsuits.

2. Share Information and Resources
To help other companies facing AGIS, Hulls open-sourced all of the prior art collected with the tech community and announced free legal support for other startups with less than $25 million in funding facing AGIS. These forms of action draw attention to a case and the claims brought forward by trolls such as AGIS while also sending a message to trolls that the players within any industry is committed to sticking together rather than fighting independently.

3. Go With Your Gut and Commit To It
While some advisors will encourage companies to settle, this short term view will only weaken the long term stance of the company. You are far less likely to become a target if you have a prior record of making it difficult for the troll versus paying up each time.

While litigation is expensive, these hardline measures send a message to trolls and keep them at bay.

Week 7 Blog #4: Recent Trends in NPE Litigation

In a recent report published in the July 2012 version of The Lawyers, Thomas Fisher and Tomoyoshi Furukawa published five defining trends they've seen emerging in NPE litigation. These trends have shown that in recent years, the typical NPE strategy of forcing defendants into settlements may become more difficult in a continually hostile environment towards NPEs. These trends include:

1. Difficulty in Obtaining a Permanent Injunction
NPEs will often seek a permanent injunction against defendants in addition to money damages as the equitable relief in the form of a permanent injunction provides an NPE with additional negotiating leverage in settlement negotiations with defendants.

In eBay Inc. vs MercExchange, L.L.C., the US Supreme Court made it clear that prior to granting a permanent injunction, a four factor test must be applied as the plaintiff must show (1) that plaintiff has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be dis-served by a permanent injunction. Since it is difficult for NPEs to satisfy factors (1) or (2), permanent injunction have been hard to come by for NPEs post-eBay.

2. Venue
NPEs have historically favored the US District Court for the Eastern District of Texas ("EDTX") as a venue as EDTX has a reputation for being a patent-friendly venue, and for its juries having a willingness to grant large damages awards. In 2011 however, three EDTX judges retired leaving to be seen if EDTX's patent-friendly reputation will be sustained through the years.

3. Limitation of Joinder of Accused Infringers
Before the America Invents Act became effective in 2011, it was typical for NPEs to sue many defendants in a single lawsuit, even if the defendants were not related to each other. However, under the provisions of the AIA, this strategy is no longer valid. NPEs may only assert a patent against multiple defendants where: (1) defendants are jointly and severally liable or infringement arises out of the same transaction, occurrence, or series of transactions or occurrences relating to the making, using, offering for sale, selling or importing into the US and (2) there are questions of fact common to all defendants. Thus the opportunity to include multiple organizations in a lawsuit brought forward by an NPE has been significantly reduced by the specificities needed to bring those organizations together.

4. Reduce the Defendant's Burden of E-Discovery
Defendants typically bear a heavy burden of extensive discovery in NPE patent litigation while an NPE's burden of discovery is much less since it doesn't make any patented products. The demands of electronic discovery have increased the burden of discovery causing courts to start making new rules regarding e-discovery to reduce the parties' burden of discovery. Examples include the 2011 Model E-Discovery Order that provides that requests for production of e-mail must identify specific issues, and the requesting party must identify (i) custodians, (ii) search terms, and (iii) a search period. Thus, the limits placed on e-discovery in accordance with the Model Order substantially decrease a party's burden of discovery.

5. Attorneys' Fee Award
Recently, the Federal Circuit has held that a case in which the NPE's strategy is to sue many defendants with the goal of securing settlements is an "exceptional case" and has required the NPE to compensate defendants for their attorneys' fees where the NPE does not prevail. This serves as a warning to NPEs who file baseless suits with the simple objective of seeking early settlements.

Week 7 Blog #3: Factors that Encourage NPE Activity

There are various factors in a patent system that might influence or encourage activity by a NPE. Peter Arrowsmith, a patent attorney and partner at London based firm Cleveland IP put together a comprehensive list of possible factors and comparing the strength of these factors in both Europe and the US.

     1. Low cost risk in litigation

In the US, NPEs can initiate infringement proceedings without incurring a significant cost risk as the losing side does not typically pay the winner’s legal costs and NPEs can often find a law firm willing to take the case on a conditional fee basis. In Europe, the losing side is typically required to pay at least a portion of the winner’s legal costs and conditional fee arrangements are also less common.

           2.  Uncertainty

A NPE is likely to benefit in a patent system where the outcome of a case is difficult to predict, especially if this is coupled with high costs in litigation. This is likely to encourage a NPE to bring more cases on the basis they are statistically likely to register wins which will increase the pressure to settle before trial. Europe may be considered more predictable than the US simply because decisions are made by experienced patent judges, rather than lay juries.

            3.   Size of Market

A NPE is likely to benefit if their patent has a wide geographical scope in an important market because a single adverse decision could have a large economic impact on the other side. In the US a single decision can be effective across the entire country, whereas in Europe it is necessary to enforce patents country-by-country.

            4.  Bifurcation

A system in which the issues of infringement and validity are considered separately are also likely to favor a NPE because the NPE can obtain a favorable decision on infringement before validity is even considered. Europe is considered more attractive to NPEs in this comparison as certain countries permit bifurcation.

            5.  Speed

A fast system can allow a NPE to exert pressure on the other side, which can encourage early settlement, as these systems are likely to favor NPEs. In this comparison, there is little to choose between Europe and the US, since fast or slow decisions are possible in both systems.

Overall, it seems that the US patent system is more attractive than Europe for NPEs. However, the European system is still viable for NPEs, although they may need to be more selective about the cases and targets they pursue.