Trolls Are A Nightmare Dressed Like A…Nightmare

Timing, as they say, is everything.  Following the CBM (covered business methods) challenge between Versata and SAP and their trial verdict is like watching Memento.  Did this happen?  Will it have happened?  Did it going to happen?  Man, my head’s spinning and it’s not even cocktail hour.

IPTT - Casamigos Tequila

Best tequila ever, no matter what you mix it with. Disclaimer: Will not make you look like Rande Gerber, Cindy Crawford, George Clooney, or Amal Alamuddin. Sorry.

Basically what we have here is a patent having been found infringed and then subsequently having been found lacking validity on a few claims.  But because of the order of operations, the infringement verdict stuck.

Let’s bust out the crayons and draw a picture, shall we?


If we take that PTAB challenge and move it back a bit, we are probably golden.


Now, I would argue that if you take the challenge back even further to, say, when you receive a demand letter, you’ll have even more success.  This is the stick I’ve been saying we should beat trolls with for almost four years now.  While they will never tell you what claims you’re infringing, you can do some homework on the patent work and towards IPR or a petition for a covered business method review.  Kill the patent before they come after you in earnest.

The Versata v. SAP case is being compared to another case where the infringement judgment was put aside because the patent was found invalid.  (I’m over simplifying, but that’s the gist of it.)  The issue was the timing and here’s the key takeaway:

For patent litigation where the district court does not stay the case in favor of an AIA trial, the Versata and Fresenius decisions may mean that depending on the speed of the litigation and the ultimate entry of judgment, a finding of unpatentability in an AIA trial may or may not trump a district court’s finding of patent validity.

(Emphasis mine.)

There’s your way around the PTAB/CBMR:  Judges, who are sometimes partial to trolls, rush the cases through and enter the judgement.   Then it doesn’t matter if the patent is subsequently invalidated, the judgment will stick.

Future litigation with the patent is moot, but that suddenly no longer matters when you’re sitting on $391 Million, now does it?



{Incredibly delicious looking Casamigos tequila cocktail, which I’ve been drinking for months now and still don’t look like Cindy Crawford, dammit,   found here.}