All the defendants in the Paul Allen v. The World patent litigation -- Allen's Interval Licensing is suing AOL, Google, YouTube, Apple, eBay, Facebook, Yahoo!, OfficeMax North America, Netflix, Staples, and Office Depot -- have filed a joint motion asking the court for an order staying the proceedings in this matter pending resolution of petitions for reexamination they've filed with the USPTO regarding the four patents in suit, the '507, '652, '314 and '682 patents.
I gather they don't think much of Mr. Allen's patents. Join the club.
And they'd prefer not to have to argue in court about patents likely, they seem to think, to be tossed out as invalid or at least modified:
03/17/2011 - 198 - Joint
MOTION to Stay by all Defendants filed by Defendant Yahoo! Inc. Oral
Argument Requested. (Attachments: # 1 Proposed Order) Noting Date
4/1/2011, (Walters, Mark) (Entered: 03/17/2011)
03/17/2011 - 199 -
DECLARATION of Mark P. Walters filed by Defendant Yahoo! Inc re 198
Joint MOTION to Stay by all Defendants filed (Attachments: # 1 Exhibit
A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E,
# 6 Exhibit
F, # 7 Exhibit G,
# 8 Exhibit
H - 1, # 9 Exhibit H -
2, # 10 Exhibit H -
3, # 11 Exhibit H -
4, # 12 Exhibit H -
5, # 13 Exhibit
I, # 14 Exhibit
J)(Walters, Mark) (Entered: 03/17/2011)
Defendants have filed requests for reexamination with respect to each
of the Patents-in-Suit, which may substantially simplify or outright
resolve the issues in this case. No matter the outcome of the
reexaminations, substantial economies will be gained from a stay. If the
reexamination results in the PTO rejecting and canceling some or all of
the asserted claims, this litigation will end or at least be narrowed.
If the claims are amended in reexamination, or if Interval makes
arguments during the reexamination process to the PTO in an attempt to
overcome rejections based on the prior art, the prosecution history of
the Patents-in-Suit will have changed and, in the absence of a stay, the
work of the Court and the Parties prior to the
PTO’s final disposition will need to be redone. They list prior art they've found already. The petitions for reexamination are attached to the declaration in support. We aren't repeating the patents, Exhibits A-D, because we have them already, attached as exhibits to the first amended complaint, and I try to spend your contributions wisely.
All but two items of prior art on the list are new prior art, they tell the court, prior art the USPTO didn't have before it when Allen's patents were approved, which means the appeal Microsoft has before the Supreme Court
in the i4i case will matter here regarding the standard of proof.
[Update: The US Department of Justice just filed an amicus brief [PDF] strongly on the i4i side. I gather they'd like it to be as hard as possible to invalidate a patent.]
Amazingly, a lot of the list are patents already issued. Did the Allen side not do any checking? Incidentally, here's a figure for the ages that the group cites:
92% of all ex parte petitions for reexamination and 96% of all inter partes petitions for
reexamination are granted. That alone tells you what a lousy job the USPTO does in issuing patents to begin with. If you had a doctor and every time he gave you a diagnosis and you then went and got a second opinion and 92% of the time, you find out your doctor got it wrong, what would you think of his work?
The defendants cite the figures to persuade the judge that it makes sense to grant a stay:
In the instant case, if this Court grants the Defendants’ request to stay the litigation, the PTO will have time to review the requests for reexamination and the newly-presented prior art that will likely form the basis for cancellation or amendment of the claims. Allen's side will likely argue that the PTO hasn't granted the reexaminations yet, and it's best to slog onward until it does, at a minimum, knowing that once litigation gets going, it's really hard to get it to stop. And the defendants anticipate that and point out that it's better to stay a case in its infancy, so you don't have to do the process twice. If the patents are modified, then discovery might have to be repeated, or worse turn out to be a total waste of resources, and it's a waste of the court's time. Also, Interval Licensing is "a holding company", not a competitor with products out there. So "there is no danger of Interval losing market share or customers" they point out, letting the judge know just what kind of folks these are and what the goal is, namely money, which is just as good later as sooner. There will be oral argument on this motion.
Speaking in general, patent trolls know perfectly well that their patents are stupid, although they talk like they are wrapped in the holy flag, but they like to sue to force folks to pay up rather than endure the incredible expense of patent litigation to prove the invalidity of their stupid patents. Lots do pay under that threat. If you are curious, take a look at the Timeline page for this case, shorthanded as "IV v Google" in the menu, due to space constraints. Notice how much has happened already, before discovery has even begun? Hence the business model. If you call that a business.
So this is a wise move on the part of defendants, but the judge may not wish to grant the motion. The motion lists the three factors you have to establish to get a stay We'll see, but it's definitely a smart move on the part of the defendants, who are probably wondering quite seriously how anybody can be sued over stuff like this.
There's a $5,000 reward being offered if you find prior art, by the way, by an entity called Article One Partners:
Article One Partners today announced that it has launched a new request for research of patent held by Interval Licensing LLC on behalf of operating companies. With its unique crowdsourcing model, Article One Partners' research requests are distributed to three million scientists and technologists worldwide who are conducting research to discover evidence predating the patent claims, widely known as "prior art." That evidence can be used to challenge the validity of a given patent. Article One Partners has conducted similar high profile requests for research, known as Patent Studies, including patents held by NTP Incorporated.... Well, it's a press release, but still. It's hardly "unique". But I thought you'd at least want to know about this. They are looking specifically for prior art not previously known to the USPTO.
Join the Search
Researchers with Article One can earn $5,000 U.S. or more for the Study. In addition, Researchers earn profit sharing points for active participation in the Study and the AOP Community. Read below for details on the Patent Study and what to look for. Then visit www.ArticleOnePartners.com for additional details and to submit responses.
What to Look For
Researchers can review the Interval Licensing Patent Study at http://www.articleonepartners.com/study.php?id=504 and submit relevant prior art. Prior art is evidence of publicly available information predating a patent's invention, which teaches, or renders obvious, the patent claims. Prior art knowledge and evidence may come from published content anywhere in the world and in any language. This includes: previous patents; news or academic publications; non-digitized documents such as textbooks; or any public document provided to others, including conference or academic papers and business materials. Prior art is often found in documents tucked away in a file cabinet years ago, or in the back corner of a library.