Archive for the ‘Xenia P. Kobylarz’ Category

Congress Gets Patent-Training Bill for Judges

May 19, 2006

Late Thursday, Republican Congressman Darrell Issa finally introduced his long-rumored legislation that would create specialized patent courts around the country. H.R. 5418, co-authored by Democratic Congressman Adam Schiff, proposes to establish “pilot programs” in at least five U.S. district courts where judges handle the highest volume of patent cases.

The bill is designed to widen the pool of experienced patent judges by proposing to fund “educational and professional” development programs for designated judges. The bill would provide $5 million annually over the next 10 years to train judges in the intricacies of patent prosecution and patent law. It will also pay salaries of new law clerks with expertise in patent law or with technical background.

Citing the Federal Circuit U.S. Court of Appeals' 40 percent reversal rate of all patent cases decided by district courts, Issa said in a statement that the bill is designed to “help courts reduce errors that lead to appeals.”

Issa, who has patented several inventions himself, said he’s been involved in a number of patent cases during his time as CEO of a car alarm company and he was not impressed by the quality of adjudication at all.

“I was often struck by the fact that many district court judges either knew little of the applicable law, or were bored by the subject matter involved,” Issa said. “Patent litigation often costs litigants over $10 million and can inject crippling uncertainty into a business. This legislation will help courts and help businesses and individual inventors who patent ideas.”

George Mason University School of Law professor Kimberly Moore, who may soon be appointed to the CAFC bench, was the first to propose designating certain judges in each judicial district to handle patent cases. In her testimony before Congress last year, Moore recommended that the judge appointed must be technically educated or trained and/or have a patent background. She told lawmakers that the experience and expertise gained by the judges will “increase predictability, reduce litigation, improve patent case adjudication and enhance the integrity of the legal process.”

Xenia P. Kobylarz



Now You Can Be a A Patent Examiner!

May 9, 2006

The U.S. Patent and Trademark Office is trying something innovative to tackle the growing problem of poor quality patents being issued. On May 12, the office will unveil a pilot project that would let the public review pending patent applications online and submit relevant prior art.

The so-called patent peer review project seeks to ensure that patent examiners will have improved access to all available prior art during the patent examination process. It’ll also help the massively overworked examiners by putting applications in front of a lot more eyes.

The project grew out of a paper published by New York Law School’s Beth Simone Noveck. IBM and other tech companies are supporting the initiative by sponsoring community workshops to teach the public about the new system and to gather input. The pilot will only cover patents in the tech industry, and applications will only be reviewed after receiving the patent applicant’s permission.

Commissioner for Patents John Doll will kick off the pilot on Friday during a public briefing from 9:00 a.m. to noon at the agency’s Madison Building in Alexandria, Va. The briefing will provide more information on how the system works and a tutorial on what constitutes prior art. The agency will take public comments and will launch the full magilla in early 2007.

Veteran patent attorney David Ritchie, a partner at Thelen Reid & Priest, calls it an interesting idea but says he suspects that the vast majority of patent applications will still go unnoted by the public.

“With most applications, only the applicants will care,” he wrote in an e-mail. “But for some of the more high-profile patent applications (e.g. the Amazon One-Click Patent) everyone will have an opinion and many will attempt to provide that opinion directly to the examiner.”

“I doubt that even ten applications per year will rise to that level of common public interest, so it shouldn’t have a big effect in the larger picture, but it might keep some mistakes from happening,” he added.

Xenia Kobylarz

Another Patent Suit for RIM

May 2, 2006

Maybe it’s time to switch to a new wireless e-mail provider. Blackberry maker Research in Motion has been hauled into court once again for patent infringement. This time the accuser is no mere patent-holding company. Redwood Shores’ Visto Inc. makes wireless e-mail software for handheld devices such as PDAs, smart phones and cellular phones. The 10-year-old venture-backed company sued RIM on Friday, the same day it won a $3.6 million jury verdict in Marshall, Texas against rival Seven Networks of Redwood City for infringing three Visto patents.

“Based on Visto’s sweeping victory in court against Seven Networks on Friday, RIM must understand there is no place in the mobile e-mail space for this sort of behavior,” Visto CEO Brian Bogosian said in a statement. “Under the law, which protects consumers from products that contain infringing technology, RIM should not be able to sell the Blackberry system.”

Visto is asserting four of its patents against RIM. The company is seeking an injunction and unspecified monetary damages. It’s been reported that NTP Inc., the patent-holding company that won a $612.5 million settlement from RIM, has invested in the company.

Visto spokeswoman Suzanne Panoplos, however, said NTP owns only a “tiny percentage” of the company. The company has also recently sued Microsoft Corp. and Good Technology over the some of the same wireless e-mail patents.

The company has filed all of its patent suits in the Eastern District Court of Texas, which has earned a reputation for being patentee-friendly.

Prior to its foray into patent enforcement, the company has happily sold its products to some of the biggest names in the wireless phone industry, such as AT&T Wireless, Nextel Communications, and Vodafone Global. Panoplos said the company has 25 issued patents and 57 pending applications, but has not licensed its technology in the past.

Manatt, Phelps & Phillips’ litigation partners Ronald S. Katz and Robert D. Becker are representing Visto in the case.

Xenia P. Kobylarz

Patent Litigators Punditize for News Network

April 3, 2006

Is the world ready for patent litigators on live TV? Well, apparently, yes. Scott Baker, a partner at Reed Smith, and Edward Reines, a partner at Weil, Gotshal & Manges, have both recently appeared on CNBC to talk about patent cases. Yes, patent cases.

With the U.S. Supreme Court hearing five patent cases this term and the BlackBerry patent dispute hogging headlines day after day, patent attorneys have achieved celebrity status.

Baker appeared as a guest commentator on CNBC’s “On the Money” to talk about Research in Motion’s $612.5 million patent settlement with NTP Inc., and plagiarism allegations against “Da Vinci Code” author Dan Brown. Reines appeared twice on CNBC’s “Squawkbox,” an early morning financial talk show, to discuss important patent cases before the U.S. Supreme Court. Both attorneys are veteran patent litigators used to performing before a jury, but television is not quite the same, they said.

“I was a raw rookie and definitely nervous until my spot actually started — then it was fun,” said Baker. “I had some help in preparation from our internal PR people and from the CNBC producer for ‘On the Money’ as to the general topics. But no one told me the specific questions and I didn't know the point of view of the other commentator, so the show itself was pretty free-wheeling.”

Reines, who had to be ready by 3 a.m. to appear on the 6 a.m. show, had a similar experience.

“It was unbelievable, because there was a lot of potential for things to go wrong and I was a bit concerned, but it went really well,” Reines said. “My wife was surprised at how well I did, and my mom thought I looked great. I also got calls from long lost friends who saw me on TV.”

Baker said his wife was also surprised at how well he performed on camera. But the funniest line he heard came from one of his firm’s internal PR folks. “He told me I was so box office,” Baker said. “"I'm not sure if the world is ready for patent litigators on live TV, but I'm moving to Hollywood.”

— Xenia P. Kobylarz

Immigration Bill Spooks Patent Bar

March 23, 2006

Members of the patent bar have joined the immigration reform debate. A bill being debated by the Senate Judiciary Committee that would transfer jurisdiction over appeals of deportation orders from the regional court of appeals to the Federal Circuit U.S. Court of Appeals has ignited cries of protests from patent lawyers.

The Comprehensive Immigration Reform Act of 2006, sponsored by Sen. Arlen Specter, R-Penn., affects many aspects of immigration policy and security in addition to changes in H-1B and green-card laws. But what alarms many patent attorneys is the provision in the 300-page bill that would shift the burden of reviewing thousands of deportation appeals to the CAFC, which has nationwide jurisdiction over patent appeals.

The bill calls for increasing the number of judgeships on the Federal Circuit from 12 to 15 to accommodate the additional workload, but patent attorneys say the three more judges would not be enough to handle the arrival of 12,000 immigration appeals now clogging appeals court dockets around the country.

“The infrastructure of the Federal Circuit is not equipped to handle such a large influx of additional appeals,” said Edward Reines, a patent litigation partner at Weil, Gotshal & Manges and vice president of the Federal Circuit Bar Association. “There is a real risk that the adjudication of patent appeals will be adversely affected if the Federal Circuit is forced to resolve all immigration appeals.”


Did They Type Up The Deal With Their Thumbs?

March 13, 2006

So-called patent experts who want to comment on the recently concluded $612.5 million BlackBerry patent litigation settlement are too many to count. But those who may actually have something edifying to say about the deal are not talking. Or would love to talk but can’t. Marty Glick falls under the latter category. The head of Howard Rice Nemerovski Canady Falk & Rabkin’s litigation department negotiated the deal for RIM alongside the company’s prominent Canadian counsel Barry Sookman, a partner at Toronto-based McCarthy Tétrault.

Glick and fellow partner Ron Star spent three days in New York holed up in a room somewhere at Citibank’s corporate headquarters in Manhattan ironing out an acceptable settlement deal with NTP’s attorney Jim Wallace, partner at Wiley Reine & Fielding, and one of the company’s owners, Don Stout.

Glick refused to comment on how the parties came up with the $612.5 million figure and didn’t want to say anything relating to the deal. He did say there were no raised voices during what appears to be an intense negotiation that began on Wednesday morning at 10:30 a.m. and ended on a Friday at 4:45 p.m.

He does spill one detail. At one point during the negotiation, he said, both parties had to go to separate rooms to confer with each other and they were assigned to different floors. Since it was late at night and the building security does not allow people from traveling from one floor to the other without a special security code the parties had to communicate via their BlackBerries to signal to each other that they were ready to meet again.

“We all thought it was amusing,? Glick said.

Xenia P. Kobylarz

No Predicting Outcome on BlackBerry Patents?

February 2, 2006

Wednesday’s news that the United States Patent and Trademark Office invalidated several claims of a key patent that NTP Inc. had successfully enforced in court against Research In Motion Ltd. had at least one patent attorney musing about the insanity of it all. Responding from his BlackBerry to a request for comment, patent litigator Erik Puknys, a Palo Alto-based partner with Washington, D.C.’s Finnegan Henderson Farabow Garrett & Dunner, said he doubts any attorney not involved in the case could predict its outcome. Puknys said he can’t believe any patent lawyer would devote the time necessary to really understand all the possible outcomes.

“Our clients are keeping us too busy with paying work, and none of us is so nerdy that we’ll spend that much leisure time reviewing all the pleadings,? he wrote. With regard to the patent re-examination, he said, not even patent attorneys would have the time or the interest to review the five patents involved in the case.

“There are five patents involved and at least one patent has more than 650 claims and two others have more than 200,? he said. “That’s an enormous burden on the PTO. And while you’ll never hear me criticize the PTO, no one can reasonably predict the outcome of such a complex reexamination.? But if journalists can’t rely on outside observers to educate them on the issues, should they trust the parties involved to do it? Puknys doesn’t think so either.

“Both sides are spinning the case hard right now,? he said. “NTP’s injunction threatens to kill the goose that lays NTP’s golden eggs and RIM has announced it has a redesign in the works, but it’s got to be quite expensive or problematic redesign — otherwise they’d roll it out, right?? Still, Puknys can’t resist placing his own bet: “I will not lose my BlackBerry — the parties will settle somewhere north of $500 million or the PTO will drive a stake through the patents. If I’m wrong, however, NTP’s going to have to pry my BlackBerry from my cold, dead hands.?

Xenia P. Kobylarz