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Archive for December, 2008

Thinking about the possible future issues with regard to larger companies entering the “patent pooling” / patent enforcing business model, I believe a future issue might be the concept of “tying,” (a concept I learned about during my time in China) where a company is approached to take a license for patents relating to one or more of their products, and as a condition to accepting a license [in lieu of a threat to be sued for patent infringement], that company is forced to take licenses on patents that are only remotely relevant (or not relevant at all) to the subject matter in which their products cover. In other words, it seems to me that this could lead to an abuse of the patent system where companies would be forced to take licenses to practice patents they have no intention of practicing just to get the license that is forced upon them regarding the patent they are actually being accused of infringing. It obviously goes the other way too, namely, that companies seeking licenses for patents which they wish to practice might be forced to take licenses which they really don’t need just to get the license they are seeking. With companies having so much muscle these days, I see this as becoming a real threat that can cause some damage within the patent law system.

For example, see the articles, IEEE joins move to patent pools by Rick Merritt @ EE Times, and IEEE to get into the patent pool business? by Lawrence Ebert, to which I posted the comment below:

The prospect of another company (or organization) entering the “patent pooling” business is not unexpected. The patent pooling business model in my opinion is quite effective, profitable, and certainly poses more of a threat to infringing companies who would otherwise be hesitant to take a license where they were clearly infringing certain patents.

One topic I foresee as a future issue which I would enjoy reading in one of your future blogs is the idea of “tying” in regard to companies being coerced to take licenses to patents they don’t need and wouldn’t want. I would say that is a possible and realistic outcome of these big companies with litigation and licensing muscle entering the patent world.


Robert Z. Cashman is a patent litigation attorney / patent attorney in Houston, TX.  He has started an informative website using the name Cashman IP which will be a resource for those who wish to obtain a patent or for those who would like to find out how to prevent companies from stealing their inventions. Services include help with entering into IP Agreements & Licensing options, IP Enforcement and Litigation, and Strategic Counseling.

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I was reading this morning’s post on the Patently-O Patent Law Blog about the Biomedical Patent Management Corp. (BPMC) v. California Department of Health Services (on petition for certiorari) brief by the Solicitor General.

In short, I feel that the Court is spending too much time looking for the perfect case to justify the ruling (a.k.a. law) they are looking to implement. However, I believe that injustice is being done because bad law is being pushed on the lower courts because the Court is not hearing these poorly-decided cases. I feel this is bad practice, and I implore the courts to stop this practice. Their job at their level is not to “legislate from the bench,” but to resolve issues where the lower courts have made errors. My comments to the Patently-O article is below:

TJ, I think the problem is that the SG is looking to pick and choose the best cases to create the law they’re looking to implement. Metabolite v. Labcorp was a good candidate to take on the “thinking step” patentability issue, but nothing significant happened, thus no material change to the patent law system. Now, we have a case where the Cali gov’t is enforcing their patents, but hiding under 11th Amendment immunities. Again, the SG claimed this was not the right case to create this kind of law, noting that the issue is really a problem. I can think of a few more examples of this off the top of my head.

Pardon the baseball analogy, but it’s unfortunate that the courts are looking for a slow pitch down the middle to assert the law they wish to implement. Perfect cases only come once in a while, and we are racking up issues that need to be addressed, and the courts keep going silent. This is not justice — not for the litigants, not for the patent law system, and not for the country. Stop looking for the perfect cases, and make the wronged litigants whole by hearing cases where there has been an injustice done at the lower courts, because by being SILENT, you are creating precedent and BAD LAW. Just stop it.

The Court needs to put a stop to looking for the “perfect” cases so that they can “legislate from the bench” and must return to adjudicating cases to right a wrong when the lower courts have gone awry.


Robert Z. Cashman is a patent litigation attorney / patent attorney in Houston, TX.  He has started an informative website using the name Cashman IP which will be a resource for those who wish to obtain a patent or for those who would like to find out how to prevent companies from stealing their inventions. Services include help with entering into IP Agreements & Licensing options, IP Enforcement and Litigation, and Strategic Counseling.

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