Streaming Media has published an article written by industry expert, John Simmons, who reports on the history of video codec Standard Essential Patents (SEPs) licensing and how it relates to video streaming services. Simmons argues that the video streaming’s enormous growth was the result of royalty free licensing of essential streaming technologies and a bargain struck to charge device makers the bulk of the royalties for SEP codec licensing while charging streaming video companies only a low nominal fee for subscription and other paid content. New uncertainty created by outfits like Avanci’s Video pool and others asserting against video streamers will only lead to less consumer choice, technologies, and services.
Litigation Funding Disclosure and Patent Litigation
In an article slated for publication in the Federal Circuit Bar Journal, Sean Keller, J.D. Candidate at Texas A&M University School of Law, and Jonathan Stroud, GC at Unified Patents, have written about the growing policy debate surrounding litigation financing disclosures.
Litigation financing is one of the most significant developments in modern litigation. Since at least the 1990s, litigation financing steadily expanded in the United States and has grown into a multibillion-dollar industry. Litigation funding—providing third-party non-recourse funding contingent upon litigation recovery and outcomes—is a modern phenomenon of relatively recent vintage that nonetheless undergirds huge swaths of U.S. civil litigation today. And one of the biggest recent beneficiaries of litigation financing has been patent litigation.
Modern patent litigation, being high-stakes, arm’s-length, and Federal in nature, is both a high-risk, high-reward prospect for litigation funding. Studies show that up to a third of all modern patent litigation is now funded, making it the highest-growth area in litigation funding; the prevalence of litigation shell companies and other procedural quirks in patent litigation present potential advantages and challenges in employing funding. As it grows into a major feature of the U.S. litigation landscape, several academics, advocacy groups, policymakers, and practitioners have raised concerns about the lack of transparency in litigation financing, given there are comprehensive rules or practices surrounding disclosure of the existence and terms of such arrangements.
Historically, litigation funding regulation in the U.S. had been barred at common law and thereafter has been largely left to the states and their legislatures, resulting in a messy patchwork of disclosure requirements. State courts, legislatures, and judges have offered piecemeal approaches that often conflict. To remedy this in other contexts, the Judicial Conference Advisory Committee on Civil Rules has debated adding disclosure requirements to the Federal Rules of Civil Procedures, resulting years ago in Rule 7.1 and its minimal upfront corporate disclosures, as well as an insurance disclosure requirement into the FRCP. Both debates at the time were akin to the current debate about litigation financing disclosure requirements. Nevertheless, advocates have resisted comparisons between insurance and litigation financing disclosures. We tackle this comparison head-on by deconstructing some of the arguments disclosure opponents have cited to undermine the comparison. We conclude that arguments for enhanced disclosure are sensible, overdue, and inevitable; indeed, in many courts and some agencies, they are already here. Clear, focused Federal disclosure requirements would go a long way to preventing an unenforceable patchwork of state regulations, and would prevent enforcement that is under- or over-inclusive.
The article can be accessed on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4527378
Patent Office Proposals Put the American Economy at Risk
In an op-ed for RealClearPolicy, Unified’s CEO and Founder, Kevin Jakel, explains how the USPTO’s Advance Notice of Proposed Rulemaking (ANPRM) could put the American economy at risk and limit access to government patent review for all. Many ANPRM proposals aim to restrict petitions for review of invalid patents. This would limit the work done by Unified, other third parties, and companies targeted by NPEs, which will lead to small and medium-sized businesses becoming vulnerable to increased NPE threats.
Click HERE to read more on RealClearPolicy's website.
The Economic Impact of Codifying Fintiv
As part of the efforts of Unified Edge, Korok Ray, an Associate Professor at the Mays Business School of Texas A&M University and Research Director of the Mays Innovation Research Center, published a paper on the economic impact of codifying “Fintiv”. Read the abstract below and follow the link to download the paper.
Abstract
The term “Fintiv” refers to a threshold, procedural set of factors the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) currently uses to decide which patents will be reviewed by the PTAB. Based on the Apple v. Fintiv case, the Fintiv factors refer to the PTAB’s ability to launch a review of a patent that is also at issue in a parallel infringement case in a different forum (e.g., federal court or the U.S. International Trade Commission). Under Fintiv, the PTAB can elect not to conduct an inter partes review (IPR) or post-grant review (PGR) of the patent, thereby deferring to the district courts to handle validity of the patent(s)-at-issue instead. Currently, the PTAB is considering whether to make Fintiv permanent. This paper argues and shows that making Fintiv permanent could generate a direct economic cost of at least $283 million. Based on the data used, as explained further below, and because it is difficult to quantify the indirect costs, this estimate is likely an underestimate of the rule’s true economic cost.
Find the complete report HERE.
USPTO’s new Catch-22 targets Unified Patents in standing requirement reforms
In a recent op-ed in IAM, Unified’s General Counsel, Jonathan Stroud, explains the issues with the USPTO’s reform proposal, including how it singles out Unified and proposes restrictions that contradict the AIA and that have been rejected in subsequent failed legislative proposals. In the link below, Mr. Stroud argues that if the agency seeks to single out Unified Patents and bar it from filing IPRs, it must also scrutinize the lack of transparency and conduct of prolific NPEs.