Tuesday, June 02, 2015

Discussion of Smartflash patent case from a different perspective

There has been much discussion of the use of the term "patent troll" and of the "patent troll" problem, which pending legislation in the US Congress purports to remedy (e.g., Innovation Act, PATENT Act, STRONG Act). A recent post on HuffingtonPost looks at the situation differently.

From HuffingtonPostUK:

You'd never know from reading the headlines and the one sided reporting, that a real inventor with a legitimate claim for willful patent infringement was behind the case of Smartflash LLC v Apple Inc.

Many readers will be aware of the old adage "never let the truth get in the way of a good story" but in this case the real story and the facts are probably far more interesting than the myth being proffered by Apple.

Patent Troll... screamed the headlines around the world, after we soundly defeated Apple at trial, won a unanimous verdict for willful infringement and a Jury award for $532.9 million.

Immediately following our decisive victory, Apple released the following misleading statement:

"Smartflash makes no products, has no employees, creates no jobs, has no US presence, and is exploiting our patent system to seek royalties for technology Apple invented. We refused to pay off this company for the ideas our employees spent years innovating and unfortunately we have been left with no choice but to take this fight up through the court system. We rely on the patent system to protect real innovation and this case is one more example of why we feel so strongly Congress should enact meaningful patent reform."

Part of the back story:

Sadly, three years later and in the midst of our first product launch, our lead technology partner intentionally pulled the rug from under our feet and simultaneously claimed the technology as their own. The company I founded went into bankruptcy and having lost millions of dollars of my own money along with all of my remaining assets trying to save the business, I was left penniless and in debt.

The Senior Research and Development Director of the company in question left soon after to join Apple as their Senior Director Digital Rights Management and I was forced to sit on the sidelines watching Apple as they released the iPhone, iPod Touch and iPad, soaking up the praise for the technology they claimed to have invented in house. This despite the fact that the original patent application I filed was in 1999, two years before Steve Jobs announced the Ipod, 4 years before Apple launched the Music Store and eight years before they introduced the iPhone.

[IPBiz notes the Smartflash story is relevant to the Feldman/Lemley conjecture about licensing not transferring technology. See also the IPBiz post
Survey evidence of Feldman/Lemley criticized; the story of Copaxone

Of the litigation:

We chose to go to trial in the Eastern District of Texas because their judges are highly experienced in patent law and the juries are fair. Incidentally the win rate for plaintiff's v defendants is now approximately 50% in EDTX.

With reference to the last line of Apple's release and false sense of injustice - I'm all for meaningful patent reform where its required but the America Invents Act that Apple fought for has already given them far more than that. It's the reason why we have been subjected to an ongoing torrent of reexamination proceedings from them.

The real story can be found in the trial transcripts and in the court docket, both of which are fully accessible to any journalist interested in discovering the truth - or you could just take Apple's word for it.

The italicized text taken from This Inventor Is No Patent Troll

Recall the post on IPBiz
Patentees don't do well in court
including the text

One recalls the earlier PriceWaterhouse study. From IPBiz on the study:

Chart 9a suggests that the overall success rate for patentees is only 33%, with only two judicial districts [ED TX and MD FL) giving patentee success rates above 50%.


the IPBiz post
Patentees win only 33% of litigations


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