The U.S. Patent Act provides that an inventor is barred from obtaining patent rights for an invention, and the invention goes into the public domain, when a patent application is not filed within one year of certain activities of the inventor that make the invention available to the public. This is often referred to as the “one year grace period.” Many inventors are unaware of or forget about this time limitation and mistakenly lose rights to their inventions.
Did you know that the pop icon Michael Jackson was an inventor? Michael created a gravity defying dance move often referred to as the “anti-gravity lean,” in which he has both feet on the floor and leans forward nearly 45 degrees in a gravity-defying manner. This lean first appeared in the 1987 music video (see the 7:15 mark) for the song “Smooth Criminal.” The lean again appeared in the 1988 short film (see the 8:20 mark) titled “Moonwalker” during the song Smooth Criminal. Michael first performed the song and the dance move live on stage during the second leg of his 1988-1989 Bad World Tour which began in February 1988.
The anti-gravity lean was performed with wires during the music videos but these wires could not be adequately hidden from view during live performances. To accomplish this dance move on live stage, Michael developed a system where pins were embedded into the stage floor and at the right moment special shoes with ankle support and grooves in the …
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Can a group of defendants refuse to settle with a non-practicing entity (NPE)? Can they collectively refuse to license patents from a “troll”? Or does that refusal subject them to antitrust scrutiny? These are the issues at the heart of a Northern District of California case: Cascades Computer Innovation LLC v. RPX Corp.
Cascades manages a portfolio of patents and filed suit against a number of large technology companies for infringement. Those companies are members of RPX Corporation (RPX), a defensive patent aggregator formed to protect its members from NPEs who file infringement claims. When RPX, on behalf of its members, failed to reach a licensing agreement with Cascade, Cascade sued RPX and its members — including Dell, HTC, LG, Motorola and Samsung — claiming that defendants’ alleged collective refusal to deal with it constituted an antitrust violation.
Not only is this case unique in that an NPE, or “patent troll” in some circles, is striking out at alleged infringers with an antitrust attack, but the case was dismissed with what many thought was no hope of revival. Alas, Cascades’ amended complaint included enough additional facts to allow the case to move forward.…
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In the second of this two part series, we dig a bit deeper on the FTC’s recently proposed study on patent assertion entity (PAE) activity. In Part 1, we covered some background on PAEs and why they are singled out separately from other types of patent holders. Here in part 2, we discuss potential antitrust concerns with PAE activity, what information the FTC is seeking from PAEs and others, and — importantly — what the study means for you.
Potential antitrust issues
To place into context the entire concern with PAEs, as well as to better understand why the Federal Trade Commission is seeking the type of information it is requesting, we delineate briefly the potential antitrust concerns with PAE activity. It must be understood that a valid patent holder unquestionably has the right to exercise his/her patent, or to sit back and sue for infringement should another entity utilize the patent without permission. The mere assertion or enforcement of a PAE patent cannot, without more, constitute an antitrust violation. Nevertheless, a number of different antitrust concerns are implicated with PAE activity, the most prominent of which are presented below.
1. Acquisition and licensing of patents
A patent is an asset and, like any other asset, the more one acquires within a given market, the greater the concern that the acquirer will eventually garner market power and the ability to price its products/services above competitive levels. Or, in the patent context, license the patents above competitive levels. Though not …
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