By Sheila Pursglove
Legal News
Bird diapers, a toilet seat that mounts into a trailer hitch for camping, a device for patting one’s own back, devices for signaling from the grave in the event of being buried alive, and asbestos cigarettes (back when asbestos was considered a wonderful material) – all weird and wonderful patent ideas from the past.
“One of my old partners introduced me to the idea of collecting funny patents – which helps round out the wonder of invention, in addition to real and serious and amazing inventions, ” says Andrew “Jake” Grove, an intellectual property attorney with Howard & Howard in Royal Oak.
Considering himself lucky to work in patent law, Grove is grateful to the people who helped him learn it. “It’s ever exciting and new because people are always creating new things,” he says. “Patent law is challenging because of the legal concepts, and also because of the science and technology, so it’s not always easy to resolve problems people have in this area – but it’s very rewarding when we do.”
While all his cases are interesting, patent cases have a particular appeal. “They all involve an effort to understand what a patent actually covers, which fascinates me,” he says. “Patent attorneys have the tough job of defining the invention with words in a way that covers the invention in all its possible variations and embodiments, but in such a way that it does not cover what has been done before.”
If the definition covers what has been done before, it’s invalid, he explains. “Sometimes the patent attorney doesn’t know all of what had been done before. Sometimes the attorney drafts a claim that’s invalid.
Sometimes the Patent Office makes the attorney narrow the definition of the invention before it will allow a patent,” he says.
“In nearly every case I’ve dealt with, the inventor or company that owns the patent has an imperfect idea of what the patent actually covers. So there’s often a disconnect between what the inventor or company expects the patent covers and what it actually covers. This is usually where people like me get involved – to help sort out what the patent actually covers, if anything.”
Grove is currently trying to convince a company that their patent does not cover what his client is doing. “This involves poring over the patent and the record of the patent application, and comparing it with what our client does,” he says. “We also work with the client and opposing counsel to understand how much money is really at stake. Most patent cases are like this.”
Patent law has undergone quite an evolution since Grove got his start in the late 1980s, when the Court of Appeals for the Federal Circuit was created in 1982 by Congress to promote uniformity in patent decisions.
“Whether or not it did this, it started a new era in patent litigation where there was suddenly a whole lot of it,” he says. “There were some pro-patent decisions and eye-popping judgments. People got the idea that patents were strong and powerful – and so there was a good deal of fighting about patents in the 1980s and beyond.
“But in recent years I sense some maturing and changing in the way people look at patent litigation. In-house counsel are more tuned to the costs, and they weigh these more carefully against the perceived benefits.”
In the early days, patent litigation was usually handled by attorneys with science and technology backgrounds, but there are now many more patent litigators who are not scientists or engineers.
“I’ve seen this be a good thing, because sometimes scientists and engineers do a bad job at making the case accessible for the judge or jury,” he says. “They also seem to fight more about every little issue, because they are trained to think there is a right and a wrong answer – and opposing counsel must be wrong if they have an answer different from yours. But I’ve also seen cases go wrong when a party does not have scientists or engineers on their legal team, because they don’t understand the invention and so they can’t help resolve disputes about it.”
Grove has also seen the rise of patent trolls and other non-practicing entities – companies that buy patents and enforce them against whole classes of people.
For example, trolls bought automotive patents and enforced them against many of the car companies – and Grove has handled a few cases defending GM.
“Sometimes these cases have merit, but more often they are a stick-up – where the troll knows the case has no merit, but will take a settlement in exchange for dropping the case,” he says. “If the troll gets enough settlements for five or six figures, that can be good money for them. Congress is trying to crack down on this now, and it has done a number of things that could help. One thing is to make it easier, faster, and cheaper to challenge bad patents in the Patent Office after the patents have been issued.”
Grove also does litigation over software, where the issue may be something other than patent protection. “Sometimes it’s copyright, sometimes it’s trade secret, and sometimes it’s something else,” he says.
There are some surprising things about software litigation that most people don’t know, he notes. “For example, most software is not sold – it’s licensed, and the license has all kinds of terms and conditions that most people never read,” he says. “If you use the software for a purpose other than the intended purpose – like studying it for reverse engineering – that use is forbidden. So if you do that – and lots of competitors do that – you’re not only breaching the license agreement, you’re also infringing the copyright because you’re making a copy of the software, by loading it from storage into RAM, without permission.”
“People also don’t know that you can’t bring a lawsuit until you register your copyrights with the Copyright Office, and often this is tricky,” he adds. “People don’t know how to register the right parts of the software – especially when there are multiple versions and zillions of pages of code.”
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