INTELLECTUALLY SPEAKING®

Finally, Congress signals it might move PERA, but it might already be too late this term.

Big Tech’s playbook is to outlast you….

“The Federal Circuit took a step towards limiting the use of ‘nuisance value” in mCom IP, LLC v. City National Bank of Florida”

Patent enforcement is a specialized field that operates by rules most inventors never learn until they have already broken them. By the time a small inventor discovers infringement and decides to act, the most consequential decisions about the case have often already been made, usually by acciden...

“The Federal Circuit’s Opinion in mCom IP, LLC v. City Nat’l Bank of Fla. Provides useful guidance on § 285.”

The United States patent system is at an inflection point. For over a decade, patent eligibility doctrine under 35 U.S.C. §101 has drifted into uncertainty, producing inconsistent judicial outcomes and eroding the reliability of patent rights in critical areas of innovation. The Patent Eligibilit...

“Ortiz v. Vizio does not alter Wine Railway’s core holding that a non-practicing entity does not need to patent mark.”

“The proposed amendments to disclosures would severely burden patent plaintiffs and provide a playbook for deep pocket Big Tech in patent infringement litigation.”

The existence of a patent settlement license cannot mean there is a patent marking requirement without more. It is the intention of the parties to the settlement license as expressed through the terms of the settlement license that control. But Ortiz v. Vizio also underscores that an NPE must aff...

Have a read if you are concerned about the increasingly narrow public narrative surrounding patent enforcement and its impact on innovation. #LegalLift    LINK TO ARTICLE 

Courts should stop using the term “nuisance value” in patent cases.  If courts are serious about preserving petitioning rights, encouraging settlement, and keeping § 285 tethered to law rather than intuition, they should retire the term “nuisance value” entirely. The only coherent line is the sham‑litigation line....

This article explores the Supreme Court's requirement that a case must be both objectively baseless and subjectively baseless before a court may consider the content of a settlement offer in supporting any further sanction or award......

The Supreme Court limits the use of settlement communications to establish a sham litigation to cases where both objective and subjective bad faith is found.  This article explores why the same requirement of both objective and subjective bad faith is necessary before a settlement demand can be u...

Now is the time for Congress to pass the Patent Eligibility Restoration Act.  In the world of intellectual property law, striking a balance between encouraging innovation and safeguarding inventors' rights is essential. However, this balance has been thrown off in recent years, especially after t...

With Senator Tillis in the final days of his term as a Senator, two panels testified on October 7, 2025, for the Senate Subcommittee on Intellectual Property. Both Senator Tillis and Coons promised to do what they can to advance the bill out of committee. Of the eight witnesses that testified, si...

In the world of intellectual property, the term "patent troll" often invokes a negative image of entities that seemingly stifle innovation. However, there's a compelling argument that these entities can actually play a significant role in fostering innovation and enhancing market efficiency. Let'...

I have written a lot about the high costs of IP litigation and how I see these high costs as depriving the majority of IP owners their First Amendment right to seek redress for patent infringement.  It seems these costs are set to get higher before they get any lower.  So, what are some tools you...

The American innovation landscape is at a crossroads. The Supreme Court refuses to clarify its Alice and Mayo decisions. This isn't just another missed opportunity - it's a warning sign that our patent system is broken. The mess we're in stems from years of confusing court decisions, especially ...

Is Cost of Defense an Appropriate Consideration for an Exceptional Case Determination? When a patent plaintiff does nothing to increase the costs of defense beyond what is to be expected for normal litigation, is the cost of defense a proper consideration?  The Federal Circuit has spoken clearly...

Let's face it - patent litigation has become unaffordable for most patent owners. That means that most patent owners are denied access to the courts to enforce their patents, denied their First Amendment Right to seek redress for patent infringement. A few years back, the AIPLA Economic Survey p...

In a significant shift for the patent world, USPTO Acting Director Stewart's recent decision in Ecto World v. RAI Strategic Holdings has turned heads. The ruling reshapes how the PTAB handles Inter Partes Reviews by giving what many would consider appropriate weight to Information Disclosure Stat...

Love them or hate them, patent trolls have become major players in the tech world. These companies (officially called non-practicing entities or NPEs) don't make anything themselves - they just buy up patents and make money through licensing deals and lawsuits. While they're often seen as the vil...

Introduction The concept of litigation funding has gained significant traction, particularly as third-party funders become more prevalent. However, an often-overlooked aspect of litigation funding is the role played by law firms themselves when they engage in contingency fee arrangements with cl...

Introduction Litigation funding has emerged as a significant financial tool for plaintiffs in various types of legal disputes, including patent litigation. This practice involves third-party funders providing financial support to plaintiffs in exchange for a share of the settlement or judgment. ...

“The Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act was reintroduced by U.S. Senators Chris Coons (D-Del.), Thom Tillis (R-N.C.), Dick Durbin (D-Ill.), and Mazie Hirono (D-Hawaii). If enacted, PREVAIL should curb some of the abuses patent owners experienc...