Group to U.S. SC: Crack down on patent trolls

By Jessica M. Karmasek | Mar 5, 2014

WASHINGTON (Legal Newsline) -- A San Francisco-based digital watchdog group is urging the U.S. Supreme Court to crack down on so-called "patent trolls."

The Electronic Frontier Foundation, a donor-funded nonprofit, filed two amicus briefs with the nation's high court Monday.

The foundation also implored the court in its briefs -- filed in Nautilus v. Biosig Instruments and Limelight Networks v. Akamai Technologies -- to curb those overly broad patents.

"Patent trolls and their payoff demands depend on a flawed U.S. patent system," EFF Senior Staff Attorney Julie Samuels said. "The cases the Supreme Court is tackling this term are prime examples of patent lawsuits gone awry.

"We're asking the justices today to enforce the law and protect new businesses, new gadgets and the customers who use these products and services by providing clear rules that crack down on patent trolls."

Generally speaking, a patent troll, or non-practicing entity or patent assertion entity, purchases groups of patents without an intent to market or develop a product.

In some cases, but not all, the entity then targets other businesses with lawsuits alleging infringement of the patents it bought.

In Nautilus, the Supreme Court could curtail vague and ambiguous patents that are currently allowed by the U.S. Court of Appeals for the Federal Circuit.

Under that standard, patent claims can stand even if "reasonable people can disagree" over the patent's meaning, and no matter "however difficult that task may be" to understand it.

EFF argues that it has sparked a "rash" of vague patents, and is urging the justices to restore the Patent Act's requirement that patent claims be clear.

"Certainly patents differ in many respects from real property, but clarity in the boundaries should not be one such difference," the foundation wrote in its 30-page amicus. "The claims of a patent serve a public notice function, informing others of what may and may not be done.

"But the Federal Circuit's 'insolubly ambiguous' test for indefiniteness of patent claims abrogates this public notice function, permits the proliferation of indeterminate claims, invites abuse by clever patent drafters, and contributes to a general and widespread sense that patents are unclear and uninformative documents."

Staff Attorney Daniel Nazer said vague patents are even more prevalent in software, and are a favorite tool of patent trolls.

"If you can cleverly craft an ambiguous patent, you can stretch the claims later to cover all sorts of things you hadn't thought of at the time," he said.

"Clarifying the law here and requiring definite claims is a straightforward, substantial way to improve patent quality and reduce shake-down patent litigation."

Limelight involves a patent question over the company's content-distribution network, which allows for server-side storage of web content.

Limelight's customers perform one of the steps of the patent at issue -- tagging the remote content -- but Akamai wants to enforce its patent anyway.

In its brief, EFF argues that Akamai's legal strategy could create a new category of patent defendants: end-users who unknowingly performed one of the steps.

"Opening up third parties to that unacceptable risk could have drastic effects on innovation and experimentation," the foundation wrote in its 20-page amicus.

Samuels explained further, "Imagine what would happen if using a piece of software or other service sold to you legally could result in a major patent infringement case.

"Luckily, courts thus far have instituted a common sense rule protecting end-users and consumers, and we're hopeful the Supreme Court will keep up this trend."

So far this term, the foundation has filed four amicus briefs with the high court on patent and patent troll issues.

From Legal Newsline: Reach Jessica Karmasek by email at

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