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On December 13th, Daniel B. Ravicher bound an commodity blue-blooded “Will Credible Appointment Eliminate Vringo’s Appropriate to Approaching Royalties From Google?” that was afterwards arise on Seeking Alpha. The axial altercation of the allotment is that cogent accident exists to the approaching royalties Vringo stands to aggregate from Google for credible infringement: “Google’s advance on I/P Engine’s patents at the PTO could additionally aish any Vringo alms to approaching royalties.”

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The allotment independent a cardinal of opinions, active the area from insinuation, to exaggeration, and all the way up to and including clearly apocryphal statements. I acquire advised the affair of USPTO alteration in the past, admitting with a awfully altered appraisal of the risks complex than Mr. Ravicher’s. This commodity will acknowledge to Mr. Ravicher’s position on the abeyant appulse United States Credible and Trademark Appointment accomplishments may acquire on the acknowledged grappling amid Vringo (VRNG) and Google (NASDAQ:GOOG).

An Introduction

The immense subjectivity that clouds the Vringo case has created a abstract market, and it demands an assay of the arguments made, as able-bodied as the affidavit that individuals accomplish those arguments. As Mr. Ravicher accurately notes, his autograph represents opinion, not banking or acknowledged advice. Mr. Ravicher has been articulate in his action to software patents. In the 2008 Google TechTalk “Protecting Freedom in the Credible System,” he takes the position that patents on software asphyxiate accurate development: “If patents aren’t accretion the amount of accession in an industry, they should get their adenoids out of it. That’s an acute position, I know, but it’s one I authority onto.” As far as non-practicing entities like Vringo: “They’re accomplishing what’s best for them, alike admitting it’s not acceptable for association for bodies to go about air-conditioned conduct and air-conditioned research.” And Mr. Ravicher has accustomed lectures to Google advisers on the accountable of patents at Google TechTalks twice, in 2008 and 2012. He is the Acknowledged Director of the Software Freedom Law Center, a non-profit that Google supports. A Google agent makes this accord absolute at accession Google TechTalk aback he states, “We financially abutment Eben whenever we can and his assignment with the Chargeless Software Foundation as able-bodied as the Software Freedom Law Center” (Eben Moglen and Mr. Ravicher are both Directors of the Software Freedom Law Center). In accession to his position at the Software Freedom Law Center, Mr. Ravicher is a Action Counsel of the Software Freedom Conservancy, an alignment to which Google has “donated substantially.” Mr. Ravicher occupies positions in organizations that acquire a actual banking accord with Google. Although no absolute banking assurance exists amid Google and Mr. Ravicher, it would be ailing to acquire Mr. Ravicher’s opinions afterwards alive his background. One can now anatomize the opinions he choir in his commodity chronologically (emphasis is added to the credibility that will be argued).

I. Google’s Re-Examination Requests

In its action adjoin Google, Vringo asserted two patents, U.S. Patents Nos. 6,314,420 and 6,775,664 (the ‘420 and ‘664 patents, respectively). To be uber technical, I/P Agent asserted alone a scattering of the claims aural anniversary of the two patents, accurately claims 10, 14, 15, 25, 27 and 28 from the ‘420 credible and claims 1, 5, 6, 21, 22, 26, 28 and 38 from the ‘664 patent. The board begin in its adjudication that anniversary of the 6 claims of the ‘420 credible and the 8 claims of the ‘664 credible were abandoned by Google and its co-defendants (customers who use Google’s systems). The board additionally begin anniversary of these claims were not invalid for anticipation. The adjudicator will adjudge whether the claims are invalid for obviousness, although the board did acquisition several basic absolute questions for the adjudicator to accede on that affair in Vringo’s favor.

The accent allocation of the branch is absolutely incorrect. A cardinal has already been handed bottomward by the court, accolade the patents nonobvious. Mr. Ravicher choir this confounding of what has already occurred in the case no beneath than 3 added times in the article.

In the meantime, Google has asked the PTO to reexamine anniversary of the asserted claims in the two patents. First, aback in March, Google filed a appeal for reexamination of the 6 claims of the ‘420 patent. In its request, Google set alternating 11 altered affidavit why the assorted claims were invalid. In July the PTO accepted Google’s request, acquainted that all of the above-mentioned art submitted by Google was new to the PTO (i.e. had not been advised during antecedent assay of the ‘420 patent) and that there did not arise to be a specific acumen accustomed by the aboriginal examiner for allowance of the six claims. This was absolutely an acceptance by the PTO, to say that the Examiner who issued these claims did so afterwards a specific reason. I assumption it was aing abundant for government work.

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Here, Mr Ravicher makes a absolute case, but mischaracterizes the agency’s acceding of Google’s ex parte appeal for alteration as a cogent and apocalyptic event. Requests like Google’s are accepted a amazing 92% of the time, according to the USPTO. In fact, Mr. Ravicher is acquainted of this accomplishment – he cites it in his 2012 TechTalk. Accustomed this, Vringo’s position that Google’s appeal for alteration is “a accepted and archetypal tactic acclimated by defendants in credible action cases” illustrates the actuality that this was not “quite an acceptance by the PTO” at all, as Mr. Ravicher afield calls it.

In September the PTO issued an Appointment Action abnegation all 6 of the claims beneath ysis and adopting anniversary of the 11 altered arguments Google fabricated as to why the claims are invalid. The Appointment Action is declared “Non-Final” by law, as patentees like I/P Agent charge be accustomed an befalling to acknowledge to any rejections fabricated by the PTO afore the PTO can accomplish those rejections “Final.” However, that does not beggarly the rejections are not serious. The PTO could acquire absitively in its Appointment Action to advocate some or all of the claims and/or it could acquire alone adopted some of the arguments Google made. It did not do so. It alone every affirmation and adopted every Google argument.

Vringo responded to the PTO’s Appointment Action in backward November, and now the amount is aback afore the PTO to adjudge whether to advance some or all of its rejections. I acquisition it actual absurd that the PTO will do a 100% about face and carelessness all of the 11 rejections it fabricated of the ‘420 patent’s claims. Instead, I apprehend the PTO to angle by at atomic some of its rejections and affair a Final Appointment Action in the a approaching advertence that it intends to aish all of the 6 challenged claims.

The columnist afresh states the facts correctly, but draws an abstract conclusion. Five ytical affidavit discredit this conclusion.

1. Empirically, of the 9090 re-examinations conducted from 1981-2012, 22% of patents are absolutely upheld, 67% acquire some claims modified, and alone 11% are absolutely cancelled. What Mr. Ravicher expects will appear has alone happened 1 in 10 times historically.

2. The acknowledgment on the authority of the Lang patents to this date runs adjoin Mr. Ravicher’s opinion. Of all patents, alone 1-2% are litigated. Mr. Ravicher, in his 2008 TechTalk Powerpoint, calls these the “most valuable” of the credible pool. of those 1-2%, alone 10% accomplish it to trial, and an alike abate allotment of the patents are accountable to favorable board verdict. Of that abate subset, 30% of them are begin to be invalid, and 40% are begin to be obvious. The board and Adjudicator Raymond Jackson begin none of these problems in commendations to the Lang patents. They are patents of aerial caliber, authoritative up beneath than 0.1% of all patents that the USPTO grants.

3. Non-final absolutely does beggarly non-final. Mr. Ravicher has claimed acquaintance with how generally the USPTO reverses its non-final rulings. In his 2008 TechTalk, he mentions his organization’s achievement in abandoning Microsoft’s FAT patent, and alike shows a Powerpoint accelerate of the 2004 CNET article, “Microsoft Fat Credible Avalanche Flat” as a attestation to the success of the re-examination. Fast advanced 2 years to 2006 and the USPTO antipodal itself and upheld the patent. Non-final appointment accomplishments acquire basal predictive ability in the administration of final rulings, and actual abstracts on the accepted bearings lies absolutely in favor of Vringo.

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4. Vringo’s acknowledgment to the alteration is strong. Mr. Ravicher takes every befalling to abridge Google’s arguments, yet mentions Vringo’s responses as blips that heed none of his attention.

5. The appellation “near future” is afield used. In the nut aloft it took added than 2 years for the USPTO to ability a final decision. On average, the absolute action from filing takes 25.4 months, and can aftermost up to 10 years. Google requested alteration in March of this year. Alike if every distinct agenda avalanche absolutely as Mr. Ravicher wants it to, Vringo has the appropriate to royalties until the USPTO issues a final cardinal on both the ‘420 and ‘664 patents.

In accession to the reexamination of the ‘620 credible that is absolutely activity in Google’s favor, Google aloof a few weeks ago filed a appeal for reexamination of the 8 claims of the ‘664 patent. In that request, Google fabricated 8 abstracted arguments why the claims were invalid. The PTO is now because whether to admission Google’s reexamination request, which usually takes them about two months to do. I absolutely apprehend the PTO will admission Google’s appeal to reexamine all 8 asserted claims of the ‘664 credible and again afterwards affair an Appointment Action abnegation those claims for at atomic some, if not all, of the affidavit accustomed by Google in its request.

Here, Mr. Ravicher extrapolates his antecedent cessation on the ‘420 credible to the ‘664 patent. Yet the USPTO has not alike accepted a re-examination. It has not alike taken antecedent Appointment Action. And it absolutely has not fabricated a final ruling. The affirmation is credible at best. Best importantly, the board begin that Google abandoned on every distinct affirmation of both patents. The board did not aspect amercement and the advancing ability to accurate claims or one patent, but rather to the infringement. Mr. Ravicher himself makes this altercation in his commodity on VirnetX (NYSEMKT:VHC). He states, “In absoluteness for VirnetX to ‘lose’ agency that every distinct credible affirmation it is asserting charge be begin to either be invalid, unenforceable or not infringed. So continued as one affirmation from one of VirnetX’s seven currently asserted patents is begin to be valid, acknowledged and abandoned by defendants’ products, VirnetX wins, and is advantaged to seek both budgetary amercement for accomplished contravention and an admonition to prohibit approaching infringement.” Vringo anchored a adjudication on 2 patents and 13 alone claims. Adapt Mr. Ravicher’s point apropos VirnetX’s bearings as you wish.

II. PTO Can Aish Patents Alike if Jury/Judge Acquisition Patents Valid

Although I predicted the board would acquisition the Vringo patents valid, I accept the PTO will acceptable aish (i.e. invalidate) all of I/P Engine’s asserted credible claims from both patents now beneath review, or at atomic crave they be afflicted to a narrower anatomy afore acknowledging them. This may assume as admitting I’ve afflicted my assessment on the affair of whether the patents are accurate or not, but I haven’t. The credible aberration in my assessment after-effects from two important differences amid reexaminations at the PTO and authority challenges in court.

First, credible claims beneath ysis at the PTO are accustomed their broadest reasonable construction, admitting in Cloister credible claims are accustomed the architecture that the Adjudicator thinks is best correct, whether that be ample or narrow. In fact, District Courts in some affairs aresupposed to adapt patents almost so as to bottle their validity. A broader credible affirmation is added calmly invalidated, as it is added acceptable to appropriate aloft the above-mentioned art, that would appropriately invalidate it. So, the actuality that patents beneath reexamination are interpreted broadly agency they’re added acceptable to be begin invalid. The Court’s affirmation architecture in the Vringo v Google case did not accept the broadest reasonable estimation of the claims, and accordingly it was narrower than how those aforementioned claims will now be advised by the PTO. This agency it is added acceptable the PTO will acquisition those claims invalid.

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The acumen Mr. Ravicher draws amid the broader estimation of the USPTO and the narrower ambit of the administrative action is able-bodied made. Yet he somehow alcove for the allegation that this aberration agency a college apprehension that the USPTO will acquisition the claims absolutely invalid. The imminently ytic cessation of his point is artlessly that the broader attributes of the claims will be begin invalid, and the credible claims will be adapted into a added attenuated construction. This happens added than two-thirds of the time historically. If this is absolutely the case, it does not aftereffect the aftereffect in court, because as Mr. Ravicher notes, the cloister already interpreted the patents in a attenuated appearance and the board begin that this attenuated appearance was both accurate and abandoned aloft by Google.

The additional badly important aberration amid reexamination of patents at the PTO and authority challenges in cloister is that the accountability of affidavit to appearance affliction is abundant lower at the PTO, area alone a advantage of the affirmation has to appearance that the credible affirmation is invalid, admitting in cloister the affirmation charge be bright and acceptable that the claims are invalid. This aberration in accountability of affidavit has already acquired situations area the exact aforementioned credible was upheld in cloister but afterwards begin invalid through reexamination at the PTO. This aftereffect may assume strange, but it is absolutely in accordance with the law. Aloof this October, the Cloister of Appeals for the Federal Circuit, which is the absolute Cloister of Appeals for all credible cases, said in the case of In re Baxter International: “The majority actuality concludes-rightly in my view-that a above-mentioned cloister accommodation in which a affair has bootless to prove a credible invalid does not bar the Credible and Trademark Appointment from afterwards reexamining that aforementioned patent. And, it concludes that, admitting a final cloister acumen extensive a adverse cessation as amid the credible holder and one declared infringer, the PTO is chargeless to achieve that the credible is, indeed, invalid. That hypothesis is an accustomed one.” So, aloof because the board upheld the I/P Agent patents as accurate beneath anticipation, and alike d the adjudicator does not about-face that accommodation or acquisition the patents invalid beneath obviousness, that does not beggarly the PTO will necessarily do the same. The PTO can — and I apprehend will — acquisition I/P Engine’s asserted credible claims invalid and appropriately either aish them or crave I/P agent to change them. If and aback the PTO cancels the claims, they can no best be abandoned and Google would accordingly not be appropriate to pay any added royalties from that point forward. However, to abstain any confusion, a abandoning or alteration of the patents by the PTO would not crave a acquittance of any monies paid by Google to Vringo above-mentioned to that time.

Again, Mr. Ravicher is actual in his arbitrary of the acumen in accountability of affidavit amid the balloon and USPTO re-examination. However, he pieces calm facts into what amounts to be a actual ablaze web.

1. Alike admitting the accepted of affidavit is lower, the empiric statistics apropos USPTO alteration comprise the argument. Alike with a lower accountability of proof, alone about 1 in 10 patents are absolutely invalidated.

2. Ex parte alteration gives the advantage to the credible holder. What Mr. Ravicher does not acknowledgment is that Google could appeal alteration for either credible alone through the ex parte approach because the Lang patents were filed afore 1999. Yet the ex parte action gives a apparent advantage to the credible holder. As David O’Dell and David McCombs of Haynes and Boone LLP write, “as for ex parte reexamination, it is generally admired as bereft because afterwards a reexamination is ordered, the third party’s accord is bound to one approved acknowledgment above-mentioned to the assay process, which may alone be filed if the credible own files a pre-examination alternative statement.” Google no best has any added ascribe into the alteration action of either patent. Vringo does, including Lang’s acknowledgment that was submitted in backward November as able-bodied as abeyant appeals in the future. Vringo controls the approaching administration of the alteration as able-bodied as its pace. And alone a final cardinal on both patents that absolutely invalidates every distinct one of the thirteen abandoned claims would accord Google an absolution from approaching royalties. Mr. Ravicher begin this out the adamantine way in his accident adjoin Microsoft in the USPTO alteration process. As he lamented, “Microsoft has won a agitation area they were the alone affair accustomed to speak, in that the credible alteration action confined the accessible from agitation arguments fabricated by Microsoft.”

3. Alike if the USPTO finds the Lang patents invalid, the court’s acumen of accomplished amercement and advancing royalties will best apparently angle beneath the assumption of res judicata. Mr. Ravicher provides an acutely bank arbitrary of the Baxter International case which he cites as abutment for his opinion. Although he is actual that the cloister begin that the USPTO can invalidate credible claims that a cloister has already disqualified on, the board acclaimed that “these abstracts do not mean, however, that aback the PTO does act in the ambience of a reexamination proceeding, its abstracts can adapt the bounden aftereffect of a above-mentioned acumen in a administrative proceeding” (In re Baxter International, Inc.) In the case, the credible appointment itself acclaimed that “if a federal cloister awards abatement to a credible holder adjoin an infringer, a consecutive reexamination accommodation that the credible is invalid does not afflict the acumen of the cloister or adapt its bounden aftereffect on the parties.” In the alien instance that the USPTO invalidates every affirmation of both patents by 2014 or 2015, Vringo’s accomplished amercement accolade and advancing royalties to that point will be safe. In addition, the affairs of the balloon in catechism are awfully altered – the board had absolutely disqualified that the credible claims were invalid and obvious, a adjudication which was afterwards chaotic by the Judge. Finally, the appeals court’s cardinal in Baxter did not dness the affair permanently. The assessment independent dissent, and altered board on the Appeals Cloister may aphorism abnormally in Vringo’s abundant stronger case.

Conclusion

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After a axiological ysis of Mr. Ravicher’s position on the USPTO’s alteration of the ‘420 and ‘664 patents, it is axiomatic that alone a baby allotment of the adventure is told. Yet the altercation on the accountable is additionally a acumen that both abandon abide in the marketplace. And Mr. Ravicher’s alertness to booty a contrarian position should be commended. Vringo charcoal a abstract advance abounding with accepted and alien risk. It is of the absolute accent for every broker to assay the risks that beleaguer the aggregation from as abounding perspectives as possible.

Disclosure: I am continued VRNG. I wrote this commodity myself, and it expresses my own opinions. I am not accepting advantage for it (other than from Seeking Alpha). I acquire no business accord with any aggregation whose b is mentioned in this article.

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