As I mentioned earlier this week, I recently saw a fascinating article by James Bottomley relating a non-attorneys' view on patent trolls and a specific attack against GNOME, a well-known component of many open source Linux- and Unix-based operating systems.
The GNOME Foundation was sued in the N.D. Cal. by a Rothschild entity (a well-known NPE). The case involved what looks like a pretty typical NPE complaint, alleging infringement of a single patent. His article recounted his experiences and the settlement, and argues that the patent system is broken because of how hard it is to defend against these kinds of suits.
I wanted to take a quick break from our usual deep-in-the-litigation-weeds fare and offer a patent litigator's perspective on what Bottomley said.
This article is written for any non-lawyers who saw Bottomley's article and who may be unfamiliar with patent litigation—I expect our regular readers will already know all of this!
Yes, Patent Troll Behavior Is a Problem
The article is right in its basic description of patent troll / NPE behavior, which matches what we've all seen time and again. In Delaware specifically (currently the nation's busiest patent forum), there have been more of these kinds of cases lately, ever since TC Heartland changed the venue rules and many NPEs started filing here instead of the Eastern District of Texas.
But it's also nothing new. There have been many, many troll cases over the years, and it's part of what drove the passing of the America Invents Act in 2011, which created the IPR procedure Bottomley mentions. And those who practice in the area know that there are techniques for dealing with troll cases.
Targets in the Open Source Community Are Not Defenseless
Bottomley's article makes a few statements and understandable mistakes that make targets seem more defenseless than they really are:
- The presumption of validity: Yes, issued U.S. Patents are presumed valid, but it's just a presumption. In practice, it means little more than a higher burden of proof on validity issues ("clear and convincing" evidence instead of a "preponderance" of the evidence.) Courts and juries still regularly invalidate U.S. patent claims for a variety of reasons.
- Summary judgment is available: Summary judgment is available in most patent cases, and summary judgment of invalidity absolutely does happen. In Delaware, while summary judgment typically happens late in the case, the judges can be open to considering it earlier in the case if you've got the right facts. Something along the lines of "our product was released before the priority date of the patent"—as described in the article—sounds like a pretty good set of facts.
- There are a number of ways to invalidate a patent: Bottomley touches on § 101 and Alice decision, which allow defendants to argue that patents are invalid for claiming an abstract idea. There is also § 102 (anticipation, i.e., the idea already existed), § 103 (the idea was obvious), and § 112, which covers a range of technical deficiencies in patents, such as indefiniteness (where a person cannot be "reasonably certain" what the words in the patent claims mean). There are also other defenses, such as inequitable conduct (e.g., certain misrepresentations before the PTO).
- You don't need to wait for summary judgment to challenge a patent: The article incorrectly implies that early § 101 motions are impossible. While early § 101 motions have become a bit harder since the Federal Circuit's 2018 Berkheimer decision, they are still granted rather frequently. Section 101 definitely increases the risk to patent trolls. And indefiniteness under § 112 is often addressed at claim construction, which usually occurs before summary judgment.
- § 285 fees: As the article rightly notes, § 285 provides the ability to seek fees in exceptional cases. And while NPEs may have few monetary assets, parties have sometimes succeeded in claiming the patent that the NPE holds, potentially ending the threat for everyone. (Note that Bottomley is incorrect in that an award of fees under § 285 does not, by itself, pierce the corporate veil and reach assets beyond those of the NPE).
Section 101 invalidity is especially noteworthy, since most suits relating to open source software are going to be related to, well, software. And unless Congress decides to cut it back (last I heard, that movement has stalled), § 101 remains a powerful tool against a lot of older software patents.
Beyond the above, all of the normal defenses in any patent infringement case are available in cases against tech non-profits, including things like non-infringement (i.e., the accused product doesn't actually practice the claims). Plus, as Bottomley touched on, there are broad initiatives going on to defend open-source software against troll suits generally.
Pro Bono Representation Is Often Available
Bottomley includes a call to action for open source organizations to tell everyone when they are attacked by a patent troll, because "you won’t get . . . pro bono representation . . . unless people know about it."
That's not necessarily true. You don't have to run a P.R. campaign to get pro bono (free) patent representation (although having $150k at the ready certainly increases your options in a case). For non-profits, very small businesses, and other such noble causes, there is help available.
The EFF, for example, maintains an attorney referral list for those seeking pro bono help. I've represented clients pro bono against patent and copyright trolls through referrals from that list and elsewhere, and I know that a number of other attorneys do the same.
Moving to pro bono representation changes the cost calculus for a troll. The target is no longer facing millions of dollars in attorneys' fees, but the NPE still faces the threat of patent invalidation and § 285 attorneys' fees. And courts have regularly permitted the recovery of attorneys fees in pro bono cases, even if the defendant itself was not on the hook for them.
Plus, dedicated patent litigators know the tricks in their districts to help get these cases dealt with as quickly as possible. It doesn't fix everything—as the article notes, patent litigation can be expensive even with free representation. But it definitely helps.