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October 17, 2007

Willful Wavering

Owing to the Seagate CAFC ruling this past August, essentially scuttling patent infringement willfulness, Southern California U.S. District Judge James Selna mulled a new trial for Qualcomm in its double-damages loss of $39.3 million to Broadcom. "It would be an understatement to say that the Federal Circuit rewrote decades of case law interpreting the requirements for demonstrating willful infringement," Selna penned in his opinion.

Supplemental briefs on the matter are to be submitted by the parties by October 26, with the Judge vowing to issue a ruling a week hence.

Posted by Patent Hawk at October 17, 2007 12:43 PM | Damages


Strange times to be an inventor. Here wilful infringement rules are completely changed. Then KSR makes most inventions obvious. Even if someone does infringe the Ebay ruling means you probably can't get an injunction anyway. And if you try and get a patent now you are restricted on continuations, and the attorney can be disbarred for even filing one if it could have been filed earlier. And the attorney has to read every word of the filing even if in a foreign language.
Talk about shifting the goal posts.

Posted by: MJC at October 17, 2007 5:08 PM

"Strange times" ???

This is a downright attempt to legitimize stealing of patents owned by small entities by large deep-pocketed thiefs (including foreign thiefs - Chinese, Koreans etc. etc. etc.)

This is as if you walk into some official gambling establishment, read the rules of the game written on the wall, sit at the gaming table, put all your money on something, the game starts...
then the dealer announces that the rules of the game have just changed... and by the new rules you are to lose all your money...
What do you do then ?
In the good old times you would reach for your gun and make a mess of the whole f****** monkey house...
Nowdays you can just sit and whine on various blogs and keep writing letters to your senators... as if they care about your little pathetic existence...

Posted by: angry dude at October 18, 2007 10:15 AM

Nonetheless one must go on somehow. Blogs like this are good for telling attorneys how to deal with the new laws, but what should the inventor do? What happens if they spent money on an invention now invalid because of KSR? Or just as important, how does an inventor work out what ideas of his are worth patenting and which are not worth telling anyone about?
The ones he doesn't disclose are simply lost innovation for the economy. If those innovations were obvious then the economy has not been hurt by this. It is one thing though to say those of average skill might think of an invention but quite another to say those of average skill are actually thinking of these inventions and disclosing them to people who build and market them.
If the motivation for some kinds of inventions has been taken away, are those of average skill motivated to take up the slack with their average creativity? In software and business patents I suspect the answer is probably yes. In other fields probably not. But who really knows?

Posted by: MJC at October 21, 2007 12:19 AM