March 31, 2008
Non-patent entry; pardon my enthusiasm. Zune, the late-entry portable music player from Microsoft, is wonderful. Apple's iTunes software is aggravatingly slow, and has a clunky interface compared to Zune. iPod device controls, particularly volume, are a touch difficult while on the run (literally). Zune software is fabulous, nitpicks aside, and the device (4 or 8GB) pleasantly easy to use, especially volume control. I've committed my music collection to Zune, in lossless format, of course. Zune software is free. Check it out.
The American Antitrust Institute (aai) is a lobbyist corporation backed by undisclosed lucre, doubtlessly large corporations. Their spiritual mentor is Teddy Roosevelt: rough rider, trust buster, who once observed: "Every reform movement has a lunatic fringe."
March 30, 2008
In an interview with C/Net News, USPTO Commissioner Jon Dudas:
What's, in lots of ways, more disturbing is in over half the cases where we say this isn't patentable, people just file again and get back in line. We want to make certain that people can't apply with a very broad patent application, which they know will get rejected. And then they get back in line, and meanwhile, they're looking out and seeing what's happening in the market. Sometimes they see that if they focused that broad claim, it could cover an existing technology... Then, (going by) the date of first filing, they can then say, 'I own that technology'... That's a very real concern. That gets more in line with concerns of troll behavior--someone who is literally watching the technology...so they can rise up out of the bridge and sue people.
An Algorithm Shy
Australia-based Aristocrat threw away money getting gaming machine patent 6,093,102, and then threw away money trying to enforce it. Means-plus-function with no unction. From the CAFC, a crash course in means-plus-function claims for computers: the claimed function is bounded by the specifically disclosed algorithm. Lacking an algorithmic tether, a means-plus-function processor claim is indefinite.
March 29, 2008
Mixed Claim Types
Both the USPTO and the courts proscribe claims mixing statutory claim classes as both unpatentable subject matter under §101 and indefinite under §112 ¶2. But, as is often the case with claim construction, the line may seem fuzzy. Herein a guide.
March 28, 2008
BeavisWeek has a well written story by Michael Orey, Busting a Rogue Blogger, about a dross patent blogger who pulled the wool for a while. "Cisco General Counsel Mark Chandler even cited the blog as a good independent source of information while in Washington lobbying for changes to patent law that would rein in trolls, unaware he was plugging the work of a Cisco employee." It's like the Bush administration churning propaganda to the press about the situation in Iraq before the war, then quoting their published reports from duped papers, such as the New York Times and Washington Post, as corroborating news. Children playing grown-up games.
Every competent manager knows, if you have a morale problem with the troops, step one is simple: ask the troops. Instead, Margaret Peterlin, Deputy Doodah for the USPTO, is tickled pink to ask the kids in a local bidness skool what they think.
Agrizap's 5,949,636 claims an electrocution rat killer. As CAFC Judge Moore rhapsodized:
When the hapless pest makes contact with a high voltage electrode and a reference electrode, its body creates a leakage current that completes an electric circuit and triggers a generator. The generator then produces a voltage and current of sufficiently high magnitude to send the pest towards its demise.
Over the '636 product Rat Zapper, pest control distributor Woodstream and Agrizap dramatized a theatre of irony: Woodstream played the rat, and sent the patent pest to its demise.
Thomas Edison has been credited with inventing sound reproduction, duly granted U.S. patent 200,521 on an 1877 filing. Newly revived is the work of "Édouard-Léon Scott de Martinville, a Parisian typesetter and tinkerer who went to his grave convinced that credit for his breakthroughs had been improperly bestowed on Edison."
In an apparent non-sequitur, Avistar Communications is blaming Microsoft for its woes in having to slash its workforce by 25%. Avistar had hoped to license its patent portfolio to Microsoft. Ever the jester, Microsoft's response was to hoist a USPTO reexamination petard on all 29 of Avistar's patents. Supposedly, the PTO will only take up a reexam request given persuasive invalidity evidence. Avistar mewed it "remains hopeful of reaching a favorable resolution with Microsoft on licensing Avistar's intellectual property in the near future." For anyone with an inkling as to what Microsoft thinks of paying a "patent tax," that's positively psychedelic.
March 27, 2008
After getting the hard word from a Congressman, the ITC has reversed an administrative judge's stay in pursuing Tessera's claims of infringement against Motorola, Freescale Semiconductor, Qualcomm and other DRAM suppliers.
She Lit a Candle and Showed Me the Way
Patent examiners act as gatekeepers between inventors and the pearly entrance to patent glory. With the patent office hell-bent on rejection, achieving salvation can come down to knowing thy gatekeeper. Enter USPTO Examiners, a spanking new website, offering deliverance while boasting "We Examine the Examiners."
Mother hen AIPLA is clucking over the Eastern District of Texas. 28 U.S.C. §1391, the venue statute, grants broad latitude: any district where a "defendant is subject to personal jurisdiction at the time the action is commenced." Not good enough for AIPLA.
March 26, 2008
Memory chip patent holder Rambus saw its stock soar 39% on news that a San Jose jury dismissed charges from competitors Hynix, Micron, and Nanya, that Rambus rigged the playing field by getting patents on the SDRAM memory standard. This is a turnaround from a 2001 jury verdict validating a fraud charge from Infineon, and a 2006 FTC ruling of deception, now on appeal.
March 25, 2008
Killing the Crap Shoot
Over a third of patent cases are reversed and remanded on appeal. Faulty claim construction is the reason half the time. As it is, district court trial resembles a $3-$5 million roll of the dice. Hal Wegner's prescription: "One of the single most important reforms of the patent system is a direction from the legislature that all patent cases should be handled by a pool of patent-experienced trial judges. No reform is more critical, nor glaring in its absence from Leahy S. 1145." What this country needs is a dedicated patent trial circuit, preferably with shortcut arbitration capability.
Protecting IP in China
The USPTO is offering a two-day seminar on protecting intellectual property in China. The program is free and will take place April 2-3 in Houston, TX. So, throw your Chi-pod in your Louis Vuitton knock-off and skip down to the Lone Star State.
Clown Time Is Over
The wrinkle with Frenkel got the heave-ho, snuffing anonymous blogging disco at Cisco. "A few Cisco employees used poor judgment... We believe we have learned a valuable lesson from this regrettable situation." Zorro don't live here no more.
March 24, 2008
The trolls of patent policy are academics. Over-credentialed chowderheads. Charts and graphs depicting meaningless statistics, the meaning sucked out by being out of proper context. Jumping to conclusions like frogs on hot sand, all the while paying lip service to the complexity of reality. Jamming what fits into a theoretical construct, leaving as offal inconvenient contrary facts.
AG Design sued Trainman Lantern for infringing 7,118,245. The west Washington district court judge granted a preliminary injunction on the likelihood of infringement under doctrine of equivalents (DOE), the accused device missing a claimed feature of multiple plug-in ports. The appeals court found fault on a few fronts.
March 23, 2008
WikiPatents and the USPTO-condoned Peer to Patent projects are attempts at solutions looking for a problem. The implicit conjecture is that patent examiners are limited in their search capabilities, and a helping hand is just what they need. Nothing could be further from the truth. By fostering the impression that examiners need such help, a fake Band-Aid is applied in the wrong place. The wound is PTO management.
March 22, 2008
Praise the Dudas
Joff Wild of IAM Magazine praises Jon Dudas for bringing home the bacon: "What the Patent Prospector and other Dudas critics fail to acknowledge is that fee diversion has ended on his watch." Wrong attribution.
March 21, 2008
Computer Docking Station Corp. (CDSC) took Dell, Gateway, and Toshiba to dock for infringing 5,187,645, but bombed out: summary judgment of noninfringement, upheld on appeal. Prosecution estoppel was the death knell: "the patentee disavowed an interpretation of "portable computer" that would encompass a computer with a built-in display or keyboard." All the accused products were laptop computers with built-in display or keyboard.
March 20, 2008
For the Corporations
For most firms, the headache of a patent lawsuit is greater than the benefit of the patents they get and can use against other people... The patent system can't work unless it provides an incentive to innovators. It managed to do that for the average firm in 1984 and for pharmaceutical companies in 1999.
Old & Inexperienced
Marketing Displays Inc. (MDI) has numerous patents on promotional signage, including "menuboards," "used in the fast food restaurant industry to depict a restaurant's menu items and prices." Competitor LSI filed a declaratory judgment action in Eastern Kentucky for noninfringement and invalidity. In response, MDI filed for reexamination, which confirmed patentability of all claims. In the meantime, the suit was stayed. After rekindling the litigation flame, the bamboozled judge ruled noninfringement on summary judgment, based upon a hellacious claim construction dustup. MDI appealed.
Don't Feel So Restricted
From MPEP 802.02: Restriction practice is designed to require applicants to "elect a single claimed invention (e.g., a combination or subcombination invention, a product or process invention, a species within a genus) for examination when two or more independent inventions and/or two or more distinct inventions are claimed in an application."
March 19, 2008
Australian patent-holding company QPSX Developments 5 sued Nortel, Juniper Networks, Lucent, Cisco and Alcatel in June 2005 for infringing 5,689,499, in east Texas. All settled but Nortel. Nortel lost.
Fully Funded Again
The Senate last week, by unanimous approval, slipped into its 2009 budget an amendment to condemn diverting funds from the USPTO. The Senate version of the budget is sliced and diced in April, but PTO funds won't be on the plate. That means the USPTO 2009 budget will exceed two billion dollars.
Mr. Shun-Kuo Su of Taiwan gives an across-the-puddle perspective in Forbes of U.S. patent deform in the making:
[T]he bill would eliminate patent-holders' protection against frivolous lawsuits... These and other changes in the proposed legislation would cause inventors' costs to skyrocket. Patent values would erode as their legal stature fall into question. Such a coordinated attack on American patents would be devastating to inventors--and to consumers who rely on their products.
Amgen complained to the ITC about Roche importing a particular hormone as an infringement of Amgen process and product patent claims. Roche got off the hook using 35 U.S.C. §271(e)(1), the "safe harbor" statute, because the importation was allowed for drug development. Amgen appealed, largely unsuccessfully.
Hedge fund Riley Investment Management has gotten uppity about Transmeta giving a $10 million bonus to John O'Hara Horsley, Transmeta general counsel. Calling the bonus "outrageous, illegal and unconscionable," Riley filed a lawsuit accusing Horsely, Transmeta executives, and board members, of gross mismanagement, breach of fiduciary duty, waste of corporate assets, and abuse of control. When asked, Riley demurred on saying how it really felt.
March 18, 2008
Dish Network, formerly EchoStar, remains in denial, now begging the CAFC for a reversal of its upholding a $73.9 million jury damages award for infringing TiVo patents. Dish points to an expert witness they claim was self-contradictory, thus leaving infringement in doubt. What's most in doubt is whether Dish will get anything beyond a deaf ear to its plea.
When failure = success? Patents stimulate new ventures.
"If I had a world of my own, everything would be nonsense. Nothing would be what it is because everything would be what it isn't. And contrary-wise; what it is it wouldn't be, and what it wouldn't be, it would. You see?" - Alice in Wonderland
The PatentlyO posts from Bessen and Meurer are taking a trip to crazy-town. Their post today on "patent failure" focuses on the impact that the patent system has had on publicly traded companies.
Nortel Phones It In
Toronto-based Nortel Networks, known to hammer competitors with patent litigation suits, spent $560,000 lobbying for patent legislation in 2007; a Canadian company paying for the U.S. to foul its patent regime; guess they figure patents are a zero-sum game to them.
March 17, 2008
Professor Dennis Crouch: "Over the past two decades, the number of patents being litigated has risen dramatically." Crouch then shows a graph that's clear as mud: one axis labeled "Patent Count;" the other "Year Complaint Was Filed." One has no way of knowing, either by graph or explanation, whether "patent count" represents number of complaints; or number of litigated patents total, irrespective of number of complaints. Regardless what "patent count" means, most damning is failure to normalize: to take into account the number of patents granted.
USPTO statistics show reexamination to be an effective tool for bringing questionable patent claims to dock: 64% of claims are amended, 10% cancelled; 26% emerge unscathed. S. 1145 eliminates inter partes reexamination (Sec. 5), substituting a terminal one-year open season. Patents are often not enforced in their first year; prior art may take years to surface; the rules of validity change through time (e.g. Obzilla). The post-grant opposition section is exemplary of how ill-considered the 2007 Patent Act is; how little understanding by sponsor Sen. Leahy in drafting the legislation, who appears to be acting as a lapdog for certain special interests in trying to foul one of the primary parts of this country's economic engine.
March 16, 2008
Patent holders have been hit hard the past couple of years. Declaratory judgment motions may now be filed at the drop of a hat, obliterating licensing negotiation without first suing, thus rendering litigation de rigueur. Obzilla is still wrecking havoc in combo-Tokyo, whilst Thomas Jefferson spins in his grave. Willfulness isn't just willful anymore, it's "objectively reckless": a drunken rampage of infringement is required, or we was just boys being boys, ya' know. Now, the obscenely ironically-named Coalition for Patent Fairness (CPF) is howling at the moon about nearly completing its purchase of our rent-to-own Congress.
March 15, 2008
35 U.S.C. §284 sets patent award "damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer." Georgia-Pacific v. United States Plywood enumerated 15 factors upon which royalty determination may be made, and has become the bedrock of damages case law. A reasonable royalty is judicially defined as that amount which would have been set based upon a hypothetical negotiation between willing parties. How would such a negotiation be conducted between an infringer and a purely economic patentee (PEP), a patent holder that is not practicing the infringed invention?
Contrary to propaganda, patent damages are not burgeoning; rather, remaining fairly constant. On average, awarded damages in software cases are less than for mining patents, and almost a third less than telecom patent cases. Juries award larger damages, but that may be a statistical anomaly for the types of cases tried before jury rather than at the bench. As purely economic patentees (PEPs) participate more in the patent market in this decade, reasonable royalties becomes more the basis for awards than lost profits.
March 14, 2008
What litigators already know: rocket dockets are the best bet; jury trials trump bench trials for awards; being plaintiff is advantageous. East Virginia and Western Wisconsin have the fastest rockets in their dockets, but offer only an average 50-50 chance of success. Mid-Florida and East Texas report the highest patent holder success rate, 67% & 55% respectively. Overall, East Virginia rates the top jurisdiction.
Patents, Property, and Corporations: a Historical and Economic Reminder
Economists Bessen and Meurer have published a book, Patent Failure, detailing the results of their study of the economic benefits of the patent system. In their own words, a central theme in the conclusions from their study is that "patents often fail to perform effectively as property rights." One legitimate answer to this claim is, "So what? Patents aren't exactly property rights anyway." But what are patents then? The purpose of this post is to explain how historically and economically patents can also be analogized to corporations. Thus, the criticisms that Bessen and Meurer make against the patent system tell only part of the story.
March 13, 2008
James Bessen and Michael Meurer take a swing at the U.S. patent system in their new book, Patent Failure: "Innovators have grown frustrated with the failings of the American patent system." The book is fiction, based on fallacious premises and sophistic analyses.
Gibson, the electric guitar maker, owns 5,990,405, claiming a system for simulating user participation in a pre-recorded musical performance, much like Activision's "Guitar Hero" game, a billion-dollar hit in North America alone, selling 16 million copies. Activision got a letter from Gibson in January, which had it hip-hop a DJ in LA. That's cool jive for filing a declaratory judgment motion in the Central District of California, seeking to invalidate the patent.
Nobody puts patents in a corner!
"Many of life's failures are people who did not realize how close they were to success when they gave up." -Thomas Edison
As regular readers know, the author is aware of imperfections in the current patent system in the United States. In that regard, he was very pleased to read about what looks like some good work done by a couple of economists on the patent system. In particular, these economists have studied and offered many insights into the ways in which the patent system is not functioning perfectly as a system of property rights.
Davids Against Goliaths
Digital media, digital imaging, and wireless communications are the patented technologies owned by three small inventors who have recently filed lawsuits against major corporations.
March 12, 2008
Inequitable Conduct Policy
Former USPTO Commissioner Harry Manbeck, now with Rothwell, Figg, Ernst & Manbeck, has written the Senate Judiciary Committee with a wise perspective on one ill-considered decimation proposed in the folly codified as S. 1145: "I believe that it would be a mistake to eviscerate the [inequitable conduct] doctrine as it now stands."
Down & Outed
Rick Frenkel had a juvenile impulse to blog anonymously. The juvenility was not so much anonymity per se, it was blogging as he did - trying to out others while staying masked. The inevitable occurred - Frenkel pissed off attorneys, including the legendary Ray Niro, who put a bounty out for Frenkel's identity after Niro took umbrage. Frenkel outed himself just before being outed. Niro wasn't the only one displeased.
March 11, 2008
WARF is a patent holding company for the University of Wisconsin scientific community. Three WARF stem cell patents that had validity aspersions cast by "public interest" busybody Dan Ravicher of PUBPAT have survived USPTO reexamination, albeit with some amendment.
Did Bayh-Dole end Corporate R&D?
Thirty-years ago, many large corporations had entire in-house divisions devoted to R&D. Think of IBM's Watson and ARC Labs, AT&T Bell Labs, and Xerox PARC. Since that time, these R&D labs have greatly diminished in size or disappeared altogether. At the same time, the pace of innovation in the United States has not been slowed. Assuming that R&D is necessary for innovation, it's very important for us to ask what happened. Where did the R&D go? The Bayh-Dole Act is a prime suspect.
Appeallusion - Part II
As previously reported, the current affirmance rate of the USPTO Board of Patent Appeals and Interferences (BPAI) yields the illusion of high-quality examination at the PTO. Let's glance at rates that better demonstrate the unfortunate reality.
March 10, 2008
They Call This Reportage?
Mareen Farrell gives a garbled account of the patent scene in Forbes: "They Call This Intellectual Property?" Farrell surmises the source of pendency: "Blame part of the pile-up on pesky filers of overly obvious patents." With no sense of perspective, Farrell mentions KSR, but then rails about silly patents issued before the PTO made patent grants as scarce as hen's teeth. News for prosecutors: "To get a patent approved, inventors must establish, among other things, that their invention or idea is not clearly manifest." Crystal ball in hand, Farrell on patent reform: "The Senate is expected to vote... in the coming months." No year for the "coming months" was given.
Reaction to Reaction
Last week, in reaction to the 2007 Patent Deform Act being stalled, the Coalition for Patent Fairness (CPF) signaled false compromise. Now, defenders of patent sensibility react. From the Coalition for 21st Century Patent Reform -
"This proposed language from the Coalition for Patent Fairness does nothing to move patent reform closer to adoption. CPF's proposed damages language is merely a restatement of the "prior art subtraction" language that the Senate Judiciary Committee report has already recognized as deficient. As with the earlier language, it would result in a wholesale reduction in the value of damages awarded to inventors whose patents are infringed. This language would give a green light to would-be copyists, especially those in low labor cost countries, who will quickly realize that that they can knock off patented American technology with little or no fear of retribution. The end result of this proposal is that the incentive for innovation is dramatically reduced at the cost of thousands of American jobs and the loss of our leadership in life saving research and ingenuity."
March 9, 2008
Physicists are realizing that dark energy holds the universe together. It's old feed for wranglers at the corporate software corral that dark energy keeps the cattle in the pen. So, Novell Vice President Miguel de Icaza last week whining that Novell striking a patent licensing deal with Microsoft was like bedding the dark-side beast sounded less than intriguing; in fact, it sounded just like whining. In yet another case of childhood reversion, de Icaza wished he stayed to play in the sandbox of open source.
The Coalition for Patent Fairness and Financial Services Roundtable last week wrote Senators Leahy, Hatch, and Specter, tweaking a smidge their insistence on damages apportionment as a sure means to clog the courts, maximize litigation cost, and eviscerate patent enforcement. Modification to current language in the Senate bill for damages apportionment is copasetic, as long as "the law makes clear the inventor must prove the inclusion of the invention in a product is what predominantly causes consumers to purchase the product." In other words, a plaintiff would have to prove that the product is purchased for its infringing value.
March 8, 2008
A patent discloses an invention that is useful, valuable, and innovative; a patent that protects invention with the broadest possible claims, but still novel and non-obvious over the prior art; claims applicable under the doctrine of equivalents, untainted by prosecution estoppel; a patent that cites the most relevant prior art. This is the gold-standard patent that prosecutors strive toward.
March 7, 2008
CIP Not A Divisional
Teva's ANDA for a generic version of Pfizer's Celebrex, an arthritis treatment, predictably met with infringement assertion: 5,466,823; 5,563,165; and 5,760,068. Teva lost, and appealed, whereupon the CAFC found double patenting in the '068. Safe harbor for divisionals under 35 U.S.C. § 121 applies only to divisionals, not CIPs, which '068 was.
March 6, 2008
A mob of more than 180 German police and customs officials goose-stepped into Europe's largest gadget uber-fair, and hauled off 68 cartons of booty alleged to be patent infringing. While "innocent until proven guilty" is the lip service, guilty until proven innocent is the reality worldwide; the raid was instigated by "criminal complaints by the holders of patent rights in the run-up to CeBit."
Tessera stock shot up 16% after it sank in to the motley fools commonly called "investors" that the non-final rejection in Tessera's patent exam was not equivalent to falling off a cliff. As Scot Griffin, general counsel for Tessera, reminded: "Claims of a patent can not be invalidated in reexamination until the process is fully complete, including all appeals."
March 5, 2008
The current affirmance rate of the USPTO Board of Patent Appeals and Interferences (BPAI) yields the illusion that examiners deserve a pat on the back for a job well done, but behind every illusion lies reality. Let's peek at the man behind the curtain.
Bayer tried to take Barr down for its aspirant generic version of oral contraceptive Yasmin®; using 6,787,531 as the preventive pill. Following trial, springing from the bushes of a 96-page opinion, Obzilla claims another victim.
The power of patents to stock punters was apparent on Tuesday as Tessera Technologies shares were battered in the wake of a non-final office action in a patent reexamination; the price ravaged 39%, losing $8.99, closing at $14.07. Like a kindergarten "time out," share trading was halted mid-day after a free-fall of 52%; trading in massive volume. Tessera's patent gravy train has reaped $250 million in licenses so far.
March 4, 2008
Bang for Bucks
Senators Leahy & Hatch keep pounding their old tom-toms for the Patent Deform Act, but it's just to pacify their patrons; the dancers have moved to another tune.
A Patent Prospector confidential source reports:
The latest from Washington is that (Senate Majority leader) Reid has said the bill won't come to the floor before April. The consensus is that if it doesn't pass then, it's lost in the election meat grinder. Leahy has said he won't bring up patent reform again next year, although that may be a hammer to get people to compromise because Reid doesn't want to devote floor time to anything that's not going to sail through. The lobbyists tell me that if Leahy had the 60 votes to break a filibuster, he would have brought it to the floor by now.
March 3, 2008
End Software Patents
A fantasy propaganda site called End Software Patents (ESP) seeks an end to what doesn't exist: software patents.Continue reading "End Software Patents"
A week before trial, Microsoft has settled with Visto assertion of three Visto data sync patents; terms undisclosed, of course. In 2006, Visto won $7.7 million in damages against Seven Networks for the same patents. Meanwhile, Canadian chowderhead Research in Motion (RIM), aiming to pay as much as possible, goes to trial in July against four Visto patents.
Grasp by Analogy
On the Supreme Court, Justice Antonin Scalia can't resist indulging in sarcasm as modus operandi. Contrast that with the poised maturity of persnickety Justice Ruth Bader Ginsberg, who revels in the devils in the details. Justice Stephen Breyer: "The point is to try to focus on a matter that is worrying me. Sometimes it's easier to do that with an example."
March 2, 2008
Practice Makes Perfect?
Statistics is a craft; running the numbers is the easy part. The tough bit comes down to data quality: how reliable is the base of data employed? Heterogeneity is the bane of statistical reliability: comparing apples to oranges tells you nothing about either apples or oranges.
By definition, every patent is supposedly novel. So, statistically comparing patent litigations inherently prances into a minefield. Only prudence, that numbers can lie, but that the smell test of sensibility grants good guidance, makes numbers truly meaningful.
Straight faced, Dave Schwartz concluded: "data do not reveal any evidence that district court judges learn from prior appeals of their rulings. There is no suggestion of a significant relationship between experience and performance." Schwartz, by example, empirically reminds that statistically inclined and logically challenged are stochastically independent.
While not to date considered a rocket docket, the patent litigation rulebook crafted in the Northern District of California has been an inspiration for other districts: the Eastern District of Texas and Southern District of New York included. Effective March 1, 2008, North California has a revised rulebook in play. The change is focus on groundwork early in litigation, into claim construction.
March 1, 2008
WARF, son of Mogh, has again evaded death at the hands of Romulans: this episode, one posing as a USPTO patent examiner. 7,029,913, claiming in vitro culturing of Klingon stem cells, passed reexamination.
John Osborne at Morgan & Finnegan argues for reversal in his article: "Justice Breyer's Bicycle and the Ignored Elephant of Patent Exhaustion: An Avoidable Collision in Quanta v. LGE "-
The parties and amici in Quanta v. LGE have proposed either (1) eliminating any ability to restrict downstream use of a product made under a patent (Petitioners) or (2) allowing an essentially unfettered right to restrict a purchaser's use rights by contract (Respondent). Both approaches ignore the actual rights granted to a patentee by statute.