Three cheers for Judge Lucy Koh of the US district court for the
Northern District of California!
GPNE is suing a plethora of defendants in Judge Koh’s court for
alleged infringement of US 7555267. The list of defendants includes Amazon, Apple, Barnes and Noble, Garmin, Nokia,
Pantech, Research in Motion, Sharp and Sony Ericsson. A copy of the complaint can be found here.
The reason for cheering is that Judge Koh issued a pre-trial order
which forbids counsel for the alleged infringers from using the expressions “patent
troll’; “pirate”; “bounty hunter”; “privateer”; “bandit”; “paper patent”;
“stick up”; “shakedown” ; “playing the lawsuit lottery”; “corporate shell game”
or “corporate shell” to characterize the patentee.
In the interest of fairness the judge has indicated that counsel for
the alleged infringers may use the phrases “non-practicing entity”; “patent
assertion entity”; “licensing entity”;
or “company that doesn’t sell anything” to characterize the patentee.
The only thing that doesn’t quite make sense is that the reported reason for allowing these terms is that they are “…relevant to the calculation
of reasonable royalties and to secondary considerations of non-obviousness”.
It is not at all clear how the fact that GPNE is not producing
anything is relevant to a calculation of reasonable royalties. That calculation
should be based mainly upon what licensing deals in similar technology areas
have set as a “standard”. In this technology area there should be numerous
deals to compare to, some of which may even involve the defendants.
It is also not clear how a company like GPNE (which has no product of
its own) could demonstrate any of the secondary considerations of
non-obviousness (criticality or unexpected results, commercial success, long-felt
but unsolved needs, failure of others, skepticism of experts).
Perhaps most puzzling is that there is no apparent mention of the fact
that GPNE, as a non-practicing entity, is not entitled to request any lost
revenues.
For those of you that are interested, claim 1 of the patent at issue
reads:
A first node in a data network, the data network including a
plurality of nodes including a first node, the first node comprising: at least
one processor; a memory providing code to the least one processor; and an
interface controlled by the least one processor to: transmit a random access
request signal in a first slot, the random access request signal including
information that allows determination that the first node requires an
allocation of resources to transmit a reserve access request signal; receive a
first grant signal subsequent to transmission of the random access request
signal, said first grant signal including information relating to an allocation
of a second slot to the first node for transmitting the reserve access request
signal for transmitting first data packets containing a message; transmit the
reserve access request signal in the second slot in response to the first grant
signal; receive a second grant signal subsequent to transmission of the reserve
access request signal, said second grant signal including information relating
to an allocation of additional resources for transmitting the first data
packets; and transmit the first data packets in response to the second grant
signal, wherein the first data packets can be transmitted during transmission
of a request signal by a second node into a third slot assigned to the second
node.
The patent at issue was granted on June 30, 2009 but has a chain of
priority that goes back to June 24, 1994 through a series of continuation and
divisional applications. The title of the earliest application in the chain of priority is
“PAGING METHOD AND APPARATUS”. Among the allegedly infringing devices are
APPLE’s iPAD.
Let us all hope that Judge Koh’s position shapes the attitude of the
Executive and Legislative branches of the Federal government.
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