Monday, January 24, 2011

Why Is the WSJ Being So Fair to Patent Marking Bounty Hunters? And How Did They Know What Qui Tam Means?

I'll answer the second question first -- the WSJ Law Blog author, Ashby Jones, is a fellow University of Michigan law grad and therefore is awesomely smart and knows his latin.

The first question is more interesting. Plaintiffs have increasingly taken advantage of the Federal Circuit's 2009 decision in Forest Group v. Bon Tool, which changed the law to make the $500 penalty for false patent marking apply to each falsely marked product sold (a recovery which is split 50/50 with the government). As the WSJ notes, such suits have, in fact, "picked up steam." And such suits would, in fact, be a big threat to the banking industry if the case referenced in the article actually gets anywhere.

However, I thought, given the danger to the WSJ's prime readership, there would have been more coverage of the efforts to cut these cases down to size. In addition to the legislative effort he mentions, the present Congress' attempt to pass "patent reform" (a bipartisan effort that has, nonetheless failed in the last three Congresses) would give standing to bring a false marking case only to those who have suffered a "competitive injury" by the false marking -- i.e., nobody.

Given there is really no special interest other than a few law firms interested in the viability of false marking cases, I think this provision would have a more than decent shot at passage. So Ashby, throw us a line over here!

Kodak Loses its ITC Action Against Apple and RIM -- Having a Bad "Kodak Moment"

Kodak, who has been surviving on its IP portfolio since the film business crashed and burned (Paul Simon, where are your product placement songs now?) suffered a big loss today as an administrative law judge at the International Trade Commission held that the patent it had asserted against Apple and RIM -- for previewing a low-resolution image -- was held invalid and not infringed. Although the same patent had been upheld by a different ALJ in Kodak's previous ITC action against LG and Samsung, enabling Kodak to reach agreements totaling $864 million, the market certainly recognized, driving Kodak stock down almost 9% that, even when you've got 1000 digital camera patents, that IP litigation for profit is a risky business.