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.
Patent Trolls Will Prey on SMEs if USPTO Proposals Proceed
Blog post originally published on August 30, 2023, by Patent Progress, written by Unified’s Co-Founder & COO, Shawn Ambwani.
USPTO’s proposed restrictions on validity review would hurt SMEs by limiting independent third parties interested in deterring patent trolls’ use of invalid patents. Unified's Shawn Ambwani provides third-party examples that have successfully challenged especially egregious patent trolls which would no longer be allowed if ANPRM proposals or the PREVAIL Act are enacted. Patent trolls will be more aggressive, more profitable, and more rampant, imposing what amounts to a legal tax on economic growth and innovation, especially against SMEs who do not have the financial resources to fight.
Continue reading this blog piece published on Patent Progress HERE.
Proposed USPTO Rules and Legislation Would Increase Government Costs
Recently proposed rulemaking and legislation would increase discretionary denial of institution of inter partes review (IPR) matters based on the criteria set forth in the Apple, Inc. v Fintiv, Inc. (Fintiv) matter and similar provisions. The Fintiv guidelines and related restrictions can make it difficult for claims to be fully considered even in cases where there is a substantial probability of success for the petitioner. If the proposed guidelines were implemented, the result would be a reduction in IPR proceedings even for cases that are otherwise meritorious. As a consequence, the economic efficiency benefits associated with the IPR process would be substantially diminished.
An additional issue with reducing IPR is that it will lead to higher costs of procurement for the US government. The Perryman Group estimates that the direct increased costs to the federal government associated with federal spending over the 2023-32 period would be -$106.4 million.
When summed with the estimated tax effects previously described, the total cost to the federal government was found to be almost -$202.9 million.
For more details please refer to the full report.
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.