Definition - "Patent Troll"

"PATENT TROLL" - Any party that intentionally misconstrues the claims of their patent to assert it against another. A patent troll does not have to be a non-practicing entity (NPE) or in any particular industry, all that is required is an intentional misconstruing of the claims in an attempt to extort money from another.


Disclaimer - All information and postings in this blog are provided for educational purposes only. Nothing in this blog constitutes legal advice and you should not rely on any information herein as such. If you do not have a signed engagement agreement with me, then you are not represented by me and you should retain your own attorney for any legal issues you are having.

Friday, June 3, 2011

More analysis and claims charts of Lodsys patent

Another firm, M-Cam, which is not associated with me in any way, has also done a good analysis, prior art search, and claim charts concerning the Lodsys '078 Patent.  See here.

The prior art focused on for the '078 Patent are:

US 4,634,845 - Portable personal terminal for use in a system for handling transactions

US 5,535,407 - Data processing system for locally updating customer data distributed by a host computer to a remote facility and for returning the updated customer data to the host computer

Their report is detailed and includes even more prior art for people to consider.

UPDATE (6/5): I have spent a little more time reviewing the M-Cam document.  While I am glad to see other organizations out there trying to help invalidate Lodsys's patents, their analysis, in my opinion, ignores some basic issues:

1) They state "Apple maintains that developers are legally covered under their license, citing the legal doctrines of patent exhaustion and first sale".  While I acknowledge that many non-attorney commentators are making similar statements, that is not exactly accurate from a legal standpoint of what Apple's letter stated.  Any good patent attorney should be able to dissect the Apple letter to really get at the heart of what they were saying.  For example:
 "Sewell recognizes that it is Apple, not the developer, that provides most of the claim elements in any reasonable mapping of the claim, and asserts that Apple is licensed to practice the inventions.  He says developers are protected by Apple's license, not that developers are fully licensed."  See igoeIP Apple Patent Blog.

In essence, this is all about divided infringement and non-infringement by the application developers.  The rest of Apple's letter is smoke and mirrors and any good patent attorney can tease out the true legal arguments.  Also see IP Watchdog.  I expect someone trying to produce a document such as M-Cam should understand and explain these legal distinctions.

2) Seems like they used "M∙CAM DOORS™ analytic platform", which I would guess is some sort of automated claim analyzer.  While such systems can be powerful and useful to point a prior art search in the right direction, analysis of claims need to be done by an attorney, which they do not say has occurred.

3) They compare claims of the '078 patent to claims of the prior art references.  This seems very odd to me, because an invalidity argument is not based on the claims of the prior art, but what the prior art teaches as a whole.  Thus, a patent attorney would not likely make such a chart for an invalidity argument using just the claims of a prior art system, they would include analysis from the rest of the reference.

4)  They completely ignore one of the major issues of the claims, what a "user perception of the commodity" is and whether their prior art addresses such.  A patent attorney should never write such a document while omitting any analysis of such an important claim element.

My conclusion: the art M-Cam cited is relevant, but they are far from having a high quality invalidity claim chart.  To be clear, M-Cam never asserted or labeled their claim chart as an invalidity claim chart, they label it as "similarities in innovation in this technology space", though I am not sure what the point is other than trying to establish invalidity.

I have not had a chance to review  their long list of other references, if anyone else does, please let me know.


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