Again speaking generally, attempting to invalidate a patent is going to cost more than $10k, but $100k should be enough to do an ex partes review petition. If you want to do inter partes review, which is much more involved but may also have a higher chance of success, it's more expensive. The total cost will depend on what attorneys you use and how they go about it (which also impacts the likelihood of success).
I'm an attorney who litigates patents. I also write about IP litigation at https://ipde.com.
A patent can be invalidated by a court during litigation or through procedures at the U.S. Patent Office, such as inter partes review or an ex partes reexamination.
When asking whether an earlier patent renders a later patent invalid, the fact finder will generally look at anticipation and obviousness. Anticipation means that every element of the claims is literally present (explicitly or inherently) in the earlier patent, under 35 U.S.C. § 102. Obviousness means that the claimed invention as a whole would have been obvious to a person of skill in the art, under 35 U.S.C. § 103.
How do you figure that out? You have to look at each claim individually. If the fact finder determines that the earlier patent discloses or renders obvious every element of the claim, then the claim is invalid.
This comparison is easier said than done, because it is going to depend on claim construction, meaning how the claims are interpreted. In theory, they are interpreted according to how a person of skill in the art would read them, but in practice there is an art to claim construction, and it can be difficult for anyone to predict how a Court or the U.S. Patent Office will construe claims (especially since it is often judge- or examiner-dependent).
I won't get further into burdens of proof and legal standards, but both anticipation and obviousness tend to be a high bar.
From a very quick review of the two patents you posted, it looks like claim 1 the second patent claims, for example, "lowering the vertical axis of the bead height of a bead disposed between a bead on either side thereof." From a quick look at the specification, this may refer to staggering the vertical size of the beads themselves in each row.
It looks like the earlier patent discloses staggering the alignment of the columns of beads, but I don't see (from a quick glance) whether or not it discloses staggering the size of the beads. If it doesn't disclose that element of claim 1 (however the court or PTO interprets it), then it can't anticipate that claim of the second patent. Of course, it could still render it obvious if, for example, there is another prior art patent that discloses varying the beads in the claimed way, and if a person of skill in the art would have been motivated to combine them (assuming the combination also meets all of the other elements).
Each claim in the second patent will need to be looked at individually. Even if claim 1 were invalid, for example, other independent claims may not be.
Keep in mind that everything in this post is hypothetical and I am not your attorney. If you want to try to invalidate the patent, you'll need to get your own attorney involved or otherwise get one to take up the cause, including to take a real look at the patents and prior art and to figure out how best to proceed. It is not a small task.
They seemed unsure at the hearing of what exactly they had signed up for.
Certainly, their LLCs could be subject to attorneys fees if the Court awards fees (which it generally only does in exceptional cases) or for sanctions based on attorney behavior.
However, normally, only their LLCs would be liable rather than the owners personally--unless they fail to observe the corporate formalities.
I've been thinking about this a bit since the hearing, and here are some ideas:
- If lawyers for a defendant are going to settle (we generally prefer not to), we often want a portfolio license -- a "go away" license. By splitting up the patents among entities and keeping itself hidden, an entity like MAVEXAR can keep filing serial suits against the same targets and can keep receiving more expensive "global" settlements.
- It dodges liability for attorneys fees, since the entities have little or no money, and may decrease the chances of a fee award generally.
- It means that the entity with the patent has little or no discoverable information, decreasing the cost of suit because there is nothing to produce. Lawyers for that entity can also take stronger discovery positions because there is no concern about about responsive discovery.
I can't tell from the logs that I can see. But the site is all or almost all text from Render with images on AWS, and bandwidth topped out at "220MB" (per hour? Not sure) from Render this morning. It came back up as soon as I enabled scaling, and it only scaled to 3 nodes.
It's also a Python 3 instance running Django/Wagtail/Puput, and all blame goes to me for poor coding. If anyone reading this happens to be a Wagtail & Render expert and wants some short contract work fixing my code, please reach out ([email protected])!
We have readers at the Delaware courthouse and, incredibly, the courthouse network setup blocks the site for Chrome users if I use Cloudflare. I tried for weeks to find a solution other than removing Cloudflare but nothing seemed to work, and I really want people from the courthouse to be able to read the blog!
I'm the author. It's actually kind of hard to say at this stage, and the judge suggested amicus briefing to help the Court figure out what to make of all this.
I am an IP litigator, and I have dealt with patent trolls repeatedly. I have taken these kinds of cases pro bono in the past for small companies (including through the EFF attorney referral list, https://www.eff.org/pages/legal-assistance), and I know that others have as well.
There are definitely low-cost and pro bono (free) options out there for very small businesses. The EFF attorney referral list is a good place to start.