Vonage sees hope in Supreme Court patent crackdown
posted May 2nd 2007 9:56AM
Still consumed in a bitter fight for its very survival, embattled VoIP provider Vonage -- recently granted an eleventh-hour pardon from that permanent injunction -- has announced that it will attempt to leverage Monday's landmark Supreme Court decision in seeking a completely new trial. In what is widely seen as both a blow to patent trolls as well as a tough new barrier in the patent application process, the Court ruled that one auto parts manufacturer had not infringed upon another's intellectual property in designing a new gas pedal, because the original pedal was merely an improvement on older models and should not have been granted a patent in the first place. Under this new, looser definition of "obviousness," argues Vonage, the Verizon patents in question would also be deemed upgrades of existing technology at the time they were issued -- and therefore invalid. It remains to be seen whether the appeals court will agree, grant the recently-reorganized company a new trial, and prolong this soap opera for several months or more, but what is clear from recent Court activity (including a Microsoft victory over AT&T) is that the days of a rubber-stamping patent office may be numbered, and that the NTP's and OPTi's of the world had better find a new way to pay the bills.
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I hate to break it to you guys, but the patent office was never a rubber stamp.
What the new ruling does is raise the accepted standard for non-obviousness. That is, they changed the rules of the game, but probably not as much as Vonage hopes.
There's going to be some upheaval in the short term adjusting to the new ruling (KSR), but in the end, it won't change things too much.
The MS decision is a little of an oddity dealing with US patent protection beyond the bounds of the US. Because MS only sent one copy of the software overseas (and it was then copied there), they were considered to NOT be actively manufacturing and exporting the product from the US. It just says that you need to get patent protection for an invention in every country that you're worried about. That is, the US patent doesn't protect you everywhere against a US firm in the same way it doesn't protect you from a purely foreign firm.
The patent office is sometimes a rubber stamp. It is also sometimes a full blitz defense. Most of the time, it's just a stupid comment and delay generator.
The Federal Circuit, bitch-slapped in KSR, tries their hardest to provide clear rules and to introduce certainty. However, with the number of flakes and hacks on board, they usually bring fundamentally insensible certainty. Often, there are three or four varieties of certainty, depending on the panel.
The Supreme Court, on the other hand, is a somebody else's problem generator. While KSR has stolen some reasonable thinking about why a different obviousness standard is probably a good idea, it doesn't help us get to one and basically is going to create 5-10 years of random trial and appeal decisions, patent office confusion, and general gibberish.
The bottom line will be, as usual, not the quality of the patent, but the quality of the representation.