1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio 2 00:00:13,080 --> 00:00:18,320 Speaker 1: the thousands of General issues. The Gunslingers were nights. There's 3 00:00:18,360 --> 00:00:20,360 Speaker 1: want to protect us from the coming of the Dark 4 00:00:21,920 --> 00:00:24,759 Speaker 1: Roland to Shane, the last gun Slinger, a member of 5 00:00:24,760 --> 00:00:27,800 Speaker 1: a nightly order, is locked in an eternal battle with 6 00:00:27,880 --> 00:00:30,080 Speaker 1: the Man in Black in its quest to reach the 7 00:00:30,160 --> 00:00:34,760 Speaker 1: Dark Tower. The tower protects both on walks. If it falls, 8 00:00:35,120 --> 00:00:38,800 Speaker 1: al will be unleashed to Shane is the protagonist of 9 00:00:38,840 --> 00:00:42,560 Speaker 1: Stephen King's Magnum Opus, The Dark Tower series and the movie. 10 00:00:42,880 --> 00:00:46,320 Speaker 1: In seventeen, King was sued by the copyright holder of 11 00:00:46,320 --> 00:00:49,800 Speaker 1: a nineteen seventies comic book, The Rook, for ripping off 12 00:00:49,840 --> 00:00:53,040 Speaker 1: elements of its hero to create his famous Gun Slinger. 13 00:00:53,360 --> 00:00:56,240 Speaker 1: Four years later, the Eleventh Circuit Court of Appeals has 14 00:00:56,280 --> 00:00:59,880 Speaker 1: affirmed the lower court ruling, tossing out the lawsuit. Join 15 00:01:00,040 --> 00:01:03,800 Speaker 1: me as intellectual property litigator Terence ross A partnered caton 16 00:01:03,920 --> 00:01:07,360 Speaker 1: Uten Rosenman. Tell us about the issue here, Terry June. 17 00:01:07,400 --> 00:01:12,240 Speaker 1: The issue revolves around two different literary works built Dubai 18 00:01:12,520 --> 00:01:15,000 Speaker 1: in the late seventies and eighties wrote a comic book 19 00:01:15,040 --> 00:01:19,039 Speaker 1: series called The Rook with a character as the hero 20 00:01:19,360 --> 00:01:22,640 Speaker 1: of those comics by the name of Reston Dane, who 21 00:01:22,720 --> 00:01:27,000 Speaker 1: traveled through time and fought various villain Stephen King published 22 00:01:27,000 --> 00:01:31,520 Speaker 1: a series of novels starting around going into two thousand 23 00:01:31,480 --> 00:01:36,480 Speaker 1: and ten called The Dark Power Series, which featured a 24 00:01:36,480 --> 00:01:40,200 Speaker 1: anti hero by the name of Roland Duchaine, and he 25 00:01:40,319 --> 00:01:43,840 Speaker 1: also time traveled, but as part of a quest to 26 00:01:44,080 --> 00:01:46,880 Speaker 1: find this dark power that is in the title of 27 00:01:46,880 --> 00:01:52,560 Speaker 1: the work and based upon certain broad similarities between the 28 00:01:52,600 --> 00:01:56,960 Speaker 1: two characters. The nephew of the now deceased Bill Dubai, 29 00:01:57,400 --> 00:02:01,080 Speaker 1: author of The Rook, brought a copyright infringement lawsuit again 30 00:02:01,160 --> 00:02:05,080 Speaker 1: Stephen King, his publisher, and various media companies based on 31 00:02:05,160 --> 00:02:08,880 Speaker 1: alleged infringement of this rest and Dame character in The 32 00:02:08,960 --> 00:02:12,840 Speaker 1: Rook by Stephen King and his character Roland to shame. 33 00:02:13,320 --> 00:02:16,279 Speaker 1: Seems like it took a while to bring this lawsuit 34 00:02:16,960 --> 00:02:23,400 Speaker 1: thirty five years exact, and I, certainly, as a long 35 00:02:23,520 --> 00:02:29,280 Speaker 1: time observer of copyright litigation, always wonder when I see 36 00:02:29,720 --> 00:02:34,760 Speaker 1: that sort of lengthy delay in bringing an infringement lawsuit. 37 00:02:35,280 --> 00:02:40,280 Speaker 1: Certainly you would have fought. Given the prominent uh Stephen 38 00:02:40,400 --> 00:02:43,960 Speaker 1: King's works in general and the Dark Power series of novels, 39 00:02:44,000 --> 00:02:49,440 Speaker 1: in particular that Bill Deby, the actual creator of the 40 00:02:49,520 --> 00:02:53,359 Speaker 1: Rook comic book series, would during his lifetime have noticed 41 00:02:53,680 --> 00:02:57,120 Speaker 1: that there were the similarities, and it's only after his 42 00:02:57,200 --> 00:03:00,680 Speaker 1: death when, in effect, his inheritors sort of come up 43 00:03:00,720 --> 00:03:05,560 Speaker 1: with this alleged similarity. The Copyright Act provides, believe it's 44 00:03:05,560 --> 00:03:09,799 Speaker 1: not tony, a three year statute of limitation. Unfortunately, a 45 00:03:09,880 --> 00:03:12,959 Speaker 1: Supreme Court in the Raging Bull case the movie a 46 00:03:13,000 --> 00:03:16,200 Speaker 1: couple of years ago sort of viscerated that three year 47 00:03:16,200 --> 00:03:20,400 Speaker 1: statute of limitations by saying, well, it depends upon when 48 00:03:20,880 --> 00:03:24,800 Speaker 1: the actual discovery the infringement occurs. In various other things 49 00:03:24,800 --> 00:03:28,359 Speaker 1: that sort of thrown the statute of limitations for copyright 50 00:03:28,360 --> 00:03:33,640 Speaker 1: infringement into disarray. So, according to the plaintiffs here, there 51 00:03:33,639 --> 00:03:36,720 Speaker 1: are a lot of similarities between the main characters. They're 52 00:03:36,840 --> 00:03:40,320 Speaker 1: Nightly heritage, traveling back in time to save a boy 53 00:03:40,320 --> 00:03:45,880 Speaker 1: who becomes a gun slinger, birds as companions, interaction with towers, 54 00:03:45,960 --> 00:03:51,160 Speaker 1: western attire, fictionalized Alamo history, and knife wielding. So that 55 00:03:51,280 --> 00:03:54,640 Speaker 1: sounds like a lot when you sort of added up. Yeah, 56 00:03:54,720 --> 00:03:58,400 Speaker 1: sure does on its face. The important thing to remember 57 00:03:58,440 --> 00:04:03,000 Speaker 1: about this case is that the only infringement allegations are 58 00:04:03,000 --> 00:04:07,600 Speaker 1: related to taking the character of Rest and Dane from 59 00:04:07,640 --> 00:04:12,119 Speaker 1: the Rook and essentially creating a substantially similar character called 60 00:04:12,200 --> 00:04:14,920 Speaker 1: Roland of Shame in the Dark Power series novels. So 61 00:04:14,960 --> 00:04:19,320 Speaker 1: it's limited to the issue what we call literary character copyright. 62 00:04:19,880 --> 00:04:24,679 Speaker 1: And in order to obtain a copyright in a literary character, 63 00:04:25,240 --> 00:04:29,400 Speaker 1: you have to go beyond sort of broad images that 64 00:04:29,440 --> 00:04:32,720 Speaker 1: would be typically associated with for example, any World War 65 00:04:32,760 --> 00:04:36,160 Speaker 1: two American hero fighting in Europe, he would be fighting Germans, 66 00:04:36,160 --> 00:04:39,200 Speaker 1: he would be fighting Nazise, you would see swast because, etcetera. 67 00:04:39,480 --> 00:04:42,520 Speaker 1: It's got to be something far more specifics that earn 68 00:04:42,640 --> 00:04:45,760 Speaker 1: you a copyright and the character. And the other part 69 00:04:45,760 --> 00:04:47,479 Speaker 1: of it is that the courts always say this. In 70 00:04:47,520 --> 00:04:49,840 Speaker 1: this court, the Eleventh Circuits set it here is you've 71 00:04:49,880 --> 00:04:53,120 Speaker 1: got to ignore sort of random similarity. The fact that 72 00:04:53,160 --> 00:04:56,799 Speaker 1: they both carry at night is truly irrelevant. And indeed 73 00:04:56,920 --> 00:05:00,440 Speaker 1: the court's cautions you can't just look at a series 74 00:05:00,480 --> 00:05:04,240 Speaker 1: of individual, perhaps coincidental similarity. You've got to look at 75 00:05:04,279 --> 00:05:08,920 Speaker 1: the overall totality of the elements. See what the overall 76 00:05:09,040 --> 00:05:13,560 Speaker 1: impression or image that's conveyed by each compute character and 77 00:05:13,600 --> 00:05:16,440 Speaker 1: here it seems as if the image and the impression 78 00:05:16,520 --> 00:05:21,000 Speaker 1: conveyed are totally different. To Shane is really a very 79 00:05:21,080 --> 00:05:25,240 Speaker 1: dark character. The Eleventh Circuit went so far as to 80 00:05:25,560 --> 00:05:28,680 Speaker 1: characterize him as an anti hero, which I believe is 81 00:05:28,720 --> 00:05:32,479 Speaker 1: accurate from read many of these works myself. He is 82 00:05:32,520 --> 00:05:37,640 Speaker 1: somebody who's not particularly moral. He is perfectly content sacrificing 83 00:05:37,720 --> 00:05:40,920 Speaker 1: his ally in pursuit of his goals, and he's a 84 00:05:41,040 --> 00:05:45,880 Speaker 1: very introspective character. He worries about how much evil he 85 00:05:45,920 --> 00:05:48,800 Speaker 1: has done. He suffers quite a bit through the series 86 00:05:48,960 --> 00:05:52,920 Speaker 1: of these novels, and the quest to find the Dark Power, 87 00:05:53,320 --> 00:05:56,960 Speaker 1: which is somehow related to the time space continuum, is 88 00:05:57,000 --> 00:06:00,040 Speaker 1: also played out in an interior quest to sort of 89 00:06:00,120 --> 00:06:02,799 Speaker 1: beam himself and become a better person. Now, you contrast 90 00:06:02,880 --> 00:06:06,200 Speaker 1: that with the character in The rook rest In Dame, 91 00:06:06,520 --> 00:06:09,719 Speaker 1: who is almost in parton the pont A comic book 92 00:06:09,800 --> 00:06:15,520 Speaker 1: caricature of a typical hero. He's handsome, he's courageous, he 93 00:06:15,839 --> 00:06:19,120 Speaker 1: always does the right thing. He fights them villains just 94 00:06:19,200 --> 00:06:21,440 Speaker 1: sort of randomly, and yes he does time travel to 95 00:06:21,520 --> 00:06:23,880 Speaker 1: fight them, but it's just sort of a good versus evil. 96 00:06:24,120 --> 00:06:28,440 Speaker 1: It's a very different image the traditional American view of 97 00:06:28,480 --> 00:06:33,840 Speaker 1: a literary hero versus the more modern anti hero image 98 00:06:34,120 --> 00:06:37,159 Speaker 1: that you see in The Dark Power. Now, how important 99 00:06:37,320 --> 00:06:41,680 Speaker 1: was it that King's manuscript for The Dark Tower pre 100 00:06:41,839 --> 00:06:46,760 Speaker 1: dated the Rooks publication and also he started working on 101 00:06:46,839 --> 00:06:53,159 Speaker 1: it apparently in yes, and this is important fact. The 102 00:06:53,279 --> 00:06:57,080 Speaker 1: Rook comic book series I just said the character first 103 00:06:57,120 --> 00:07:01,159 Speaker 1: appeared in a nineteen seventy of It or so, and 104 00:07:01,200 --> 00:07:04,760 Speaker 1: then became a recurring comic book series in the late 105 00:07:04,839 --> 00:07:09,360 Speaker 1: seventies and early eighties, Whereas there was substantial proof that 106 00:07:09,440 --> 00:07:13,640 Speaker 1: Stephen King at least was journaling about his character ruling 107 00:07:13,720 --> 00:07:16,360 Speaker 1: to Shane and what would become the Dark Power series 108 00:07:16,400 --> 00:07:20,000 Speaker 1: of novels as early as nineteen seventies. The court was 109 00:07:20,120 --> 00:07:24,040 Speaker 1: careful not to go off on that issue that was 110 00:07:24,080 --> 00:07:26,400 Speaker 1: not the strict basis of ruling. And there's a good 111 00:07:26,440 --> 00:07:29,240 Speaker 1: reason for that, because that would be an entirely fact 112 00:07:29,360 --> 00:07:33,200 Speaker 1: based determination, and facts have to be determined in better 113 00:07:33,280 --> 00:07:36,520 Speaker 1: court by a jury. And here the district court decided 114 00:07:36,560 --> 00:07:40,040 Speaker 1: the case on summary judgment before it got to a jury. 115 00:07:40,360 --> 00:07:42,240 Speaker 1: And it did that and said it was entitled to 116 00:07:42,280 --> 00:07:45,160 Speaker 1: decide as on summary judgments and not in payama jury 117 00:07:45,360 --> 00:07:48,360 Speaker 1: because as a matter of law, not fact, but as 118 00:07:48,400 --> 00:07:51,560 Speaker 1: a matter of law, King and the other defendants were 119 00:07:51,720 --> 00:07:55,600 Speaker 1: entitled to a judgment simply based on the lack of 120 00:07:55,720 --> 00:08:01,240 Speaker 1: copyright ability of most of this, supposedly in stringing elements 121 00:08:01,240 --> 00:08:04,560 Speaker 1: that were shared by the characters. The court consider some 122 00:08:04,720 --> 00:08:08,360 Speaker 1: of the evidence that Stephen King put in, then I 123 00:08:08,360 --> 00:08:12,520 Speaker 1: think he had some notes from an assistant. So evening, 124 00:08:12,520 --> 00:08:16,760 Speaker 1: the defendants put in a phenomenal amount of evidence in 125 00:08:16,920 --> 00:08:19,360 Speaker 1: support of its summer judgment motion. I think I saw 126 00:08:19,400 --> 00:08:22,520 Speaker 1: at one point with forty four thousand pages. Now, this 127 00:08:22,640 --> 00:08:26,600 Speaker 1: included each of the novels, obviously, and even contents right 128 00:08:26,720 --> 00:08:30,320 Speaker 1: long novels, but it also included a summary of all 129 00:08:30,320 --> 00:08:33,679 Speaker 1: those pages that was prepared by one of his assistants, 130 00:08:34,040 --> 00:08:36,120 Speaker 1: so that the court wouldn't have to read off fourth 131 00:08:36,120 --> 00:08:39,480 Speaker 1: thousand pages. The appellate court said that that was permissible 132 00:08:39,559 --> 00:08:42,599 Speaker 1: under federal rules. Summaries of evidence of complicated evidence, of 133 00:08:42,679 --> 00:08:45,560 Speaker 1: byments evidence are always allowed in federal courts. It's simply 134 00:08:45,600 --> 00:08:47,760 Speaker 1: a way of helping a fact finder or the court 135 00:08:48,320 --> 00:08:51,520 Speaker 1: get way through every thing given their busy docutans. More importantly, 136 00:08:51,520 --> 00:08:54,480 Speaker 1: in what I found very interesting is that King and 137 00:08:54,520 --> 00:08:58,679 Speaker 1: the defendants submitted an expert report by the author of 138 00:08:58,720 --> 00:09:02,600 Speaker 1: the Act the Future Movies, who read all the work 139 00:09:03,240 --> 00:09:08,080 Speaker 1: and you know, as an author himself time traveling characters, 140 00:09:08,240 --> 00:09:11,520 Speaker 1: gave his opinion that the characters weren't similar. I found 141 00:09:11,559 --> 00:09:14,720 Speaker 1: that sort of an interesting approach that is permitted in 142 00:09:14,800 --> 00:09:18,520 Speaker 1: copyright cases. At the summer judgment stage, Terry, what was 143 00:09:18,559 --> 00:09:22,960 Speaker 1: the rationale of the Eleventh Circuit's decision? So, due to 144 00:09:23,000 --> 00:09:28,640 Speaker 1: the principal rationale for the Eleventh Circuits, affirmation of District 145 00:09:28,679 --> 00:09:32,080 Speaker 1: Court was based on a finding that these several similar 146 00:09:32,080 --> 00:09:36,520 Speaker 1: elements between the characters constituted nothing more than scenes off fair. 147 00:09:36,880 --> 00:09:40,240 Speaker 1: Scenes are fair are not allowed to be copyrighted under 148 00:09:40,240 --> 00:09:43,720 Speaker 1: our Copyright Act. They are essentially the sorts of common 149 00:09:43,840 --> 00:09:47,920 Speaker 1: themes or characters or settings that are just indispensable to 150 00:09:48,360 --> 00:09:54,520 Speaker 1: any treatment of a certain time period or type of event. So, 151 00:09:54,640 --> 00:10:00,319 Speaker 1: if you're doing a book about the um the West 152 00:10:01,160 --> 00:10:03,599 Speaker 1: and how the West was run, one, you're going to 153 00:10:03,720 --> 00:10:06,720 Speaker 1: have gunfighters, You're going to have everybody walking around with 154 00:10:06,760 --> 00:10:09,640 Speaker 1: a Colt forty five on their hips, you have people 155 00:10:09,640 --> 00:10:12,680 Speaker 1: wearing cowboy hats. You're gonna have dance all girls. You're 156 00:10:12,679 --> 00:10:16,000 Speaker 1: gonna have saloon and and the fact that it works 157 00:10:16,360 --> 00:10:19,600 Speaker 1: has any of those elements in it, UM does not 158 00:10:19,679 --> 00:10:22,600 Speaker 1: allow for those works to be copyrighted, m for those 159 00:10:22,800 --> 00:10:25,680 Speaker 1: elements to be copyrighted in the work, and and and 160 00:10:26,120 --> 00:10:29,040 Speaker 1: those elements are free to be used by by any 161 00:10:29,679 --> 00:10:34,280 Speaker 1: creator who is doing a piece on the Western frontier 162 00:10:34,400 --> 00:10:37,760 Speaker 1: day and and and the court here do you want 163 00:10:37,760 --> 00:10:40,360 Speaker 1: a circuitstan You know, you look at a lot of 164 00:10:40,400 --> 00:10:45,839 Speaker 1: these purportedly similar elements, and they're just common to what 165 00:10:45,880 --> 00:10:49,400 Speaker 1: you The use of knives, well, lots of people use knives. 166 00:10:49,920 --> 00:10:53,319 Speaker 1: You don't get a monopoly on a character using knives. 167 00:10:54,040 --> 00:10:57,959 Speaker 1: They they they time travel. There are lots of characters 168 00:10:57,960 --> 00:11:01,080 Speaker 1: you time travel. You don't get a man comply through 169 00:11:01,120 --> 00:11:05,320 Speaker 1: copyright law on on time travel. Um. They wear western 170 00:11:05,400 --> 00:11:11,360 Speaker 1: garbsny appropriate that the type of tramp time traveling you're doing, 171 00:11:11,520 --> 00:11:14,920 Speaker 1: you don't get a monopoly on on wearing western garb. 172 00:11:15,440 --> 00:11:18,520 Speaker 1: And so each of the individual elements, and you mentioned this, 173 00:11:18,640 --> 00:11:20,080 Speaker 1: there seemed to be a lot of them, but when 174 00:11:20,120 --> 00:11:23,640 Speaker 1: you actually take them apart, but they are nothing more 175 00:11:23,720 --> 00:11:27,199 Speaker 1: than sort of the common incidents of the scene that 176 00:11:27,280 --> 00:11:30,040 Speaker 1: you would expect to see for these types of work. 177 00:11:31,120 --> 00:11:34,040 Speaker 1: I don't know how many times Stephen King has been 178 00:11:34,080 --> 00:11:37,720 Speaker 1: sued for copyright infringement. I mean, he's the best selling author. 179 00:11:38,240 --> 00:11:41,600 Speaker 1: And after the lower court ruling here, he asked for 180 00:11:41,800 --> 00:11:45,359 Speaker 1: one point seven million dollars for fending off the litigation, 181 00:11:45,920 --> 00:11:49,720 Speaker 1: saying copyright litigation isn't a lottery and he shouldn't be 182 00:11:49,760 --> 00:11:54,400 Speaker 1: treated as a punching bag selling author. And after the 183 00:11:54,440 --> 00:11:58,440 Speaker 1: initial the lower court ruling here, he asked for one 184 00:11:58,480 --> 00:12:03,920 Speaker 1: point seven million dollars for sending off the litigation, saying 185 00:12:03,960 --> 00:12:08,240 Speaker 1: copyright litigation isn't a lottery and he shouldn't be treated 186 00:12:08,280 --> 00:12:12,640 Speaker 1: as a punching bag. It's true, and I have seen 187 00:12:13,000 --> 00:12:19,120 Speaker 1: in other cases not involving Stephen King, attempts to use 188 00:12:19,160 --> 00:12:22,280 Speaker 1: the fact that you've you've been sued for copyright infringement 189 00:12:22,280 --> 00:12:24,720 Speaker 1: in the past, has some sort of evidence that you 190 00:12:24,800 --> 00:12:27,560 Speaker 1: did it in the present UM that ed Shearing case. 191 00:12:27,640 --> 00:12:31,400 Speaker 1: We're seeing that happen UM now in New York courts. 192 00:12:33,080 --> 00:12:37,520 Speaker 1: I think it should be entirely disregarded by course UM. 193 00:12:37,679 --> 00:12:40,040 Speaker 1: The fact that someone has been sued in the past 194 00:12:40,160 --> 00:12:45,880 Speaker 1: and found not libel for infringement should be irrelevant. UM. 195 00:12:46,559 --> 00:12:51,880 Speaker 1: I attribute this in general to the overligigious nature h 196 00:12:52,200 --> 00:12:56,439 Speaker 1: copyright these days, and more specifically to the great success 197 00:12:56,480 --> 00:13:00,920 Speaker 1: than notoriety that Stephen King has up paid UM. You know, 198 00:13:01,120 --> 00:13:03,840 Speaker 1: Jesse James used to say, we rocked banks because that's 199 00:13:03,840 --> 00:13:08,680 Speaker 1: where the money is now. UM. Copyright plainists tend to 200 00:13:08,800 --> 00:13:14,360 Speaker 1: chase after UM authors and songwriters and other creators who 201 00:13:14,360 --> 00:13:18,680 Speaker 1: have been successful UH and who have managed through their 202 00:13:18,720 --> 00:13:24,080 Speaker 1: hard work, innovation and creativity to obtain great amounts of money. 203 00:13:25,520 --> 00:13:29,079 Speaker 1: It makes no sense to go after UH sported and 204 00:13:29,160 --> 00:13:32,520 Speaker 1: pringer who has been unsuccessful and has no money to 205 00:13:32,520 --> 00:13:35,800 Speaker 1: pay a judgment? Right? Do you know what happened to that? 206 00:13:36,640 --> 00:13:40,559 Speaker 1: The way this typically works is that the district court 207 00:13:41,559 --> 00:13:46,400 Speaker 1: UM will put off a decision on attorneys seed until 208 00:13:46,880 --> 00:13:51,000 Speaker 1: the issue of liability is settled for once and for all. So, 209 00:13:51,120 --> 00:13:54,720 Speaker 1: knowing that this was going up to the Eleventh Circuit, UM, 210 00:13:55,440 --> 00:13:57,400 Speaker 1: I assume that the district courts that I'm not going 211 00:13:57,440 --> 00:13:59,120 Speaker 1: to do any extra work on this. I'll wait to 212 00:13:59,160 --> 00:14:04,080 Speaker 1: see UH the Eleventh Circuit firms UH, and then the 213 00:14:03,760 --> 00:14:08,120 Speaker 1: UH motion for attorney's fees UM will be considered. The 214 00:14:08,160 --> 00:14:13,120 Speaker 1: Copyright Act does expressly allow for an award of attorney 215 00:14:13,200 --> 00:14:19,200 Speaker 1: spees to a prevailing party UM to the extent that 216 00:14:19,600 --> 00:14:24,040 Speaker 1: the claim of copyright infringement or the manner in which 217 00:14:24,160 --> 00:14:29,120 Speaker 1: the claim was prosecuted litigated in court is somehow unreasonable, 218 00:14:29,600 --> 00:14:32,080 Speaker 1: but it is in the discretion of the district court. 219 00:14:32,640 --> 00:14:36,160 Speaker 1: And my own experience litigating these cases of behalf of 220 00:14:36,200 --> 00:14:39,960 Speaker 1: defendants across the country is that, for whatever reason, district 221 00:14:40,000 --> 00:14:44,360 Speaker 1: court judges tend to be reluctant to award attorneys fees 222 00:14:44,680 --> 00:14:49,160 Speaker 1: in copyright cases unless it is an absolute fraud upon 223 00:14:49,160 --> 00:14:53,080 Speaker 1: the court that's being perpetrated. Now, another point is this 224 00:14:53,160 --> 00:14:57,480 Speaker 1: is the Eleventh Circuit. When we've talked before about copyright cases, 225 00:14:57,520 --> 00:15:00,440 Speaker 1: they're usually in the Second Circuit or the Ninth Circuit. 226 00:15:01,080 --> 00:15:04,360 Speaker 1: How did the Eleventh Circuit get in this, And that's 227 00:15:04,360 --> 00:15:11,280 Speaker 1: a great question. Um. Apparently the nominal plaintiffs, the nephew 228 00:15:12,000 --> 00:15:19,480 Speaker 1: of the author, the rook Eric Dubai, is a resident there. Um. 229 00:15:19,680 --> 00:15:27,480 Speaker 1: Copyright lawsuit can generally be brought most district courts in 230 00:15:27,520 --> 00:15:31,880 Speaker 1: the nation if the work is broadly distributed, and I'm 231 00:15:31,920 --> 00:15:38,000 Speaker 1: sure Stephen King's Dark Power series and the graphic books 232 00:15:38,040 --> 00:15:41,840 Speaker 1: that followed in the movie that followed, or um distributed 233 00:15:41,880 --> 00:15:46,880 Speaker 1: in Florida, and so you get this unusual circumstance um. 234 00:15:47,120 --> 00:15:51,520 Speaker 1: As we've discussed in the past, the nature of the 235 00:15:51,560 --> 00:15:55,520 Speaker 1: industry that the copyright arises out of typically drives the 236 00:15:55,600 --> 00:15:59,600 Speaker 1: locusts bird lawsuit. So you see books and publishing industry 237 00:15:59,640 --> 00:16:02,040 Speaker 1: heavily based in New York City. You see a lot 238 00:16:02,040 --> 00:16:07,160 Speaker 1: of those cases there, country Western Um and motown and 239 00:16:07,440 --> 00:16:10,040 Speaker 1: wrap you see often in the Sixth Circuit because both 240 00:16:10,120 --> 00:16:12,960 Speaker 1: Nashville and Detroit are in that sixth Circuit. And you say, 241 00:16:13,040 --> 00:16:17,920 Speaker 1: see movies and other types of recordings often in southern 242 00:16:18,000 --> 00:16:20,480 Speaker 1: California and the Ninth Circuit because that's where they're loka. 243 00:16:20,680 --> 00:16:23,040 Speaker 1: So this is very unusual. But I will say this, 244 00:16:23,120 --> 00:16:26,520 Speaker 1: the Lemon Circuit have history of copyright cases. It did 245 00:16:26,560 --> 00:16:29,400 Speaker 1: not have to draw heavily upon the Second Circuit or 246 00:16:29,480 --> 00:16:32,560 Speaker 1: Ninth Circuit law um to render this decision, which is 247 00:16:32,600 --> 00:16:36,040 Speaker 1: interesting in and of itself. Thanks Terry. That's Terence Ross 248 00:16:36,080 --> 00:16:40,760 Speaker 1: of Captain Eugen Rosenman. It's been dubbed the patent death 249 00:16:40,800 --> 00:16:44,920 Speaker 1: Squad because it's invalidated more than two thousand patents and 250 00:16:45,000 --> 00:16:48,720 Speaker 1: in a constitutional clash being closely watched by the nation's 251 00:16:48,760 --> 00:16:52,840 Speaker 1: tech companies. At least five of the courts conservative justices 252 00:16:53,120 --> 00:16:55,720 Speaker 1: seemed to indicate they might curb the powers of the 253 00:16:55,760 --> 00:16:58,920 Speaker 1: patent Trial and Appeal Board. Here are justice is Brett 254 00:16:59,000 --> 00:17:03,640 Speaker 1: Kavanaugh and Neil Gore such These are multimillions, sometimes billion 255 00:17:03,680 --> 00:17:08,280 Speaker 1: dollar decisions being made, not by someone who's accountable in 256 00:17:08,280 --> 00:17:12,800 Speaker 1: the usual way that the appointments clause demands. And my 257 00:17:12,880 --> 00:17:15,960 Speaker 1: question was focused on supervision. If the president disagrees with 258 00:17:16,000 --> 00:17:19,880 Speaker 1: the decision, or one of his designees down the chain 259 00:17:19,960 --> 00:17:23,800 Speaker 1: of dependence disagrees with the decision, there's no remedy that 260 00:17:24,200 --> 00:17:27,760 Speaker 1: the president has correct joining me is Susan Decker, Bloomberg 261 00:17:27,760 --> 00:17:31,119 Speaker 1: News patent reporter. Susan start by telling us about the 262 00:17:31,160 --> 00:17:34,919 Speaker 1: patent death squad. So the patent death squad of folks 263 00:17:34,960 --> 00:17:36,880 Speaker 1: who don't like it, call it um. There was a 264 00:17:36,880 --> 00:17:40,119 Speaker 1: sweeping overhaul of patent law back in two thousand and 265 00:17:40,160 --> 00:17:45,080 Speaker 1: eleven that creates the specific adversarial procedure. So to say, 266 00:17:45,119 --> 00:17:47,560 Speaker 1: for instance, you get sued and you think that a 267 00:17:47,640 --> 00:17:50,240 Speaker 1: patent shouldn't have been issued in the first place. You 268 00:17:50,280 --> 00:17:52,080 Speaker 1: can fight in court, but you can also go back 269 00:17:52,080 --> 00:17:54,240 Speaker 1: to the patent office and say, hey, patent office, you 270 00:17:54,320 --> 00:17:57,239 Speaker 1: got it wrong. And some type of procedure has been 271 00:17:57,280 --> 00:18:01,120 Speaker 1: around for many decades, but this is a typically a trial. 272 00:18:01,200 --> 00:18:03,159 Speaker 1: It was supposed to be an alternative to a trial, 273 00:18:03,200 --> 00:18:07,040 Speaker 1: so it's much more formal. It's basically old re examination 274 00:18:07,080 --> 00:18:09,760 Speaker 1: as they called it on Steroid. There's an initial review 275 00:18:09,880 --> 00:18:12,080 Speaker 1: saying yeah, we think we might have gotten something wrong. 276 00:18:12,280 --> 00:18:14,320 Speaker 1: Then they have to do a trial and issue a 277 00:18:14,320 --> 00:18:17,679 Speaker 1: decision within one year. So it's very very fast tracked procedure. 278 00:18:18,280 --> 00:18:21,159 Speaker 1: And because it's kind of self selecting, they do have 279 00:18:21,200 --> 00:18:23,760 Speaker 1: a very high what they referred to as a kill rate, 280 00:18:24,119 --> 00:18:26,800 Speaker 1: meaning a patent are part of a patent is deemed invalid. 281 00:18:27,280 --> 00:18:30,520 Speaker 1: Have this case involving the patent death Squad get to 282 00:18:30,560 --> 00:18:33,399 Speaker 1: the Supreme Court. So in this case, what happened was 283 00:18:33,520 --> 00:18:36,120 Speaker 1: our Threax, which is a patent owner of a long 284 00:18:36,200 --> 00:18:39,600 Speaker 1: standing battle with Smith and nephew over medical devices, had 285 00:18:39,760 --> 00:18:43,080 Speaker 1: one of its patents invalidated at the PTAB that it's 286 00:18:43,080 --> 00:18:45,560 Speaker 1: called patent trial on the field board. And they went 287 00:18:45,600 --> 00:18:48,119 Speaker 1: to the Federal Circuit, the nation's top patent court, and 288 00:18:48,119 --> 00:18:51,479 Speaker 1: they said, these people shouldn't have even been hearing these cases. 289 00:18:51,600 --> 00:18:53,600 Speaker 1: If they're going to be judges that are tossing out 290 00:18:53,640 --> 00:18:58,159 Speaker 1: already issued patents, then they should be presidentially appointed officers. 291 00:18:58,200 --> 00:19:01,240 Speaker 1: They shouldn't be, you know, the Path and Office director 292 00:19:01,320 --> 00:19:04,520 Speaker 1: of pointing over two hundred judges and them having the 293 00:19:04,600 --> 00:19:08,440 Speaker 1: final say on these patents that we thought were already 294 00:19:08,480 --> 00:19:11,680 Speaker 1: good to go. So the question is are those judges 295 00:19:12,280 --> 00:19:17,080 Speaker 1: constitutionally appointed, Are they in fact inferior officers, meaning that 296 00:19:17,160 --> 00:19:20,600 Speaker 1: they work for the director and their subject to his rules, 297 00:19:20,960 --> 00:19:23,680 Speaker 1: or are they so independent they have so much authority 298 00:19:23,720 --> 00:19:26,119 Speaker 1: to invalidate patents that there are people that have to 299 00:19:26,160 --> 00:19:29,119 Speaker 1: go through this Senate confirmation process, which of course is 300 00:19:29,200 --> 00:19:31,560 Speaker 1: very lengthy, and there's over two hundreds so it would 301 00:19:31,560 --> 00:19:35,080 Speaker 1: take a long time. So during the oral arguments, what 302 00:19:35,280 --> 00:19:40,560 Speaker 1: kind of concerns or questions did you hear from the justices. Well, 303 00:19:40,600 --> 00:19:42,640 Speaker 1: one of the things that seemed that they were kind 304 00:19:42,680 --> 00:19:47,480 Speaker 1: of angling towards yes, in fact, these are principal officers 305 00:19:47,480 --> 00:19:50,879 Speaker 1: that they should be presidentially appointed. But several of the 306 00:19:50,960 --> 00:19:54,080 Speaker 1: justices that seem to be leaning towards saying that this 307 00:19:54,160 --> 00:20:00,160 Speaker 1: is unconstitutional seem to also say, well, they don't set policy, 308 00:20:00,160 --> 00:20:04,360 Speaker 1: and in fact, if you have their decisions reviewable by 309 00:20:04,400 --> 00:20:07,640 Speaker 1: the Patent Office Director, then that would solve the problem 310 00:20:07,720 --> 00:20:11,879 Speaker 1: that normally these judges would be considered inferior officers except 311 00:20:11,960 --> 00:20:15,920 Speaker 1: for this one role that they have on invalidating patents. 312 00:20:15,960 --> 00:20:18,720 Speaker 1: And if you have the Patent Office director having the 313 00:20:18,760 --> 00:20:21,960 Speaker 1: authority to overturn them, which he doesn't have right now, 314 00:20:22,400 --> 00:20:25,400 Speaker 1: that that would solve the problem. So could they come 315 00:20:25,480 --> 00:20:28,600 Speaker 1: up with a very narrow finding that would rule in 316 00:20:28,680 --> 00:20:32,560 Speaker 1: fact that these judges were unconstitutional, but provide a remedy 317 00:20:32,680 --> 00:20:36,560 Speaker 1: that doesn't cause disruption? So was there any Q and 318 00:20:36,640 --> 00:20:40,320 Speaker 1: a any exchange between a justice and a lawyer that 319 00:20:40,440 --> 00:20:44,920 Speaker 1: struck you? Well, they did seem to be to spend 320 00:20:44,920 --> 00:20:47,920 Speaker 1: a lot more time on an administrative law, and they 321 00:20:47,920 --> 00:20:51,159 Speaker 1: seem to be kind of concerned about what are the 322 00:20:51,240 --> 00:20:55,880 Speaker 1: implications for this, What would happen? Could they rule one 323 00:20:55,920 --> 00:20:59,320 Speaker 1: way and just throw havoc all over the place, or 324 00:20:59,640 --> 00:21:03,240 Speaker 1: could come up with a very narrow finding that would 325 00:21:03,320 --> 00:21:06,879 Speaker 1: rule in fact that these judges were on constitutional, but 326 00:21:07,200 --> 00:21:11,320 Speaker 1: provide a remedy that doesn't cause disruption. And so there's 327 00:21:11,359 --> 00:21:13,960 Speaker 1: a lot of discussion about what can we do, what 328 00:21:14,080 --> 00:21:19,520 Speaker 1: can't we do differentiating the patent review judges from some 329 00:21:20,240 --> 00:21:23,920 Speaker 1: roles and other agencies, and and concern about if they 330 00:21:24,000 --> 00:21:27,639 Speaker 1: rule something very narrow for the patent Office would that 331 00:21:27,800 --> 00:21:30,679 Speaker 1: kind of cause havoc with other agencies as well? There 332 00:21:30,760 --> 00:21:35,480 Speaker 1: was a wide ranging hearing um. They were trying to 333 00:21:35,480 --> 00:21:38,560 Speaker 1: give it kind of at a ten thousand foot view 334 00:21:38,720 --> 00:21:41,280 Speaker 1: of what does it mean to be a principal officer 335 00:21:41,440 --> 00:21:45,000 Speaker 1: versus an interior officer? And then on a more narrow side, 336 00:21:45,480 --> 00:21:48,159 Speaker 1: what doesn't mean about the Patent Office because they have 337 00:21:48,880 --> 00:21:52,760 Speaker 1: some kind of unique rules and unique policies that have 338 00:21:52,920 --> 00:21:56,440 Speaker 1: been around for even predating the creation of the Patent 339 00:21:56,440 --> 00:21:59,400 Speaker 1: Trial on Appeal board. How did the Federal Circuit, which 340 00:21:59,440 --> 00:22:03,520 Speaker 1: handles rule on this. The Federal Circuit had ruled that 341 00:22:03,600 --> 00:22:07,680 Speaker 1: they were unconstitutionally appointed, but said that the way of 342 00:22:07,760 --> 00:22:10,879 Speaker 1: dealing with this issue is merely to take away some 343 00:22:11,000 --> 00:22:13,480 Speaker 1: of the civil service rights of these judges to essentially 344 00:22:13,480 --> 00:22:17,320 Speaker 1: make them out well employees that are more easily fired 345 00:22:17,359 --> 00:22:20,520 Speaker 1: by the director instead of civil service rules. It didn't 346 00:22:20,560 --> 00:22:24,960 Speaker 1: appear that the Supreme Court justices really were willing to 347 00:22:25,000 --> 00:22:27,239 Speaker 1: go along with it. And of course we know that 348 00:22:27,240 --> 00:22:29,840 Speaker 1: the Supreme Court only takes Federal Circuit cases when they 349 00:22:29,840 --> 00:22:32,560 Speaker 1: want to overturn the Federal Circuit. It's not like you have, 350 00:22:32,760 --> 00:22:35,159 Speaker 1: you know, conflict between the circuits. It's just the Federal 351 00:22:35,160 --> 00:22:37,400 Speaker 1: Circuit right, and they have a very bad record before 352 00:22:37,480 --> 00:22:41,199 Speaker 1: the Supreme Court. They do they do, so we assume 353 00:22:41,280 --> 00:22:43,919 Speaker 1: that they're going to somehow, let's say that the Federal 354 00:22:43,960 --> 00:22:46,600 Speaker 1: Circuit got it wrong. But are they going to say 355 00:22:46,600 --> 00:22:48,840 Speaker 1: that the Federal Circuit got it wrong in determining that 356 00:22:48,880 --> 00:22:51,640 Speaker 1: they were principal officers or are they going to say 357 00:22:51,840 --> 00:22:53,800 Speaker 1: that the Federal Circuit got it wrong in terms of 358 00:22:53,800 --> 00:22:58,160 Speaker 1: the remedy And it seemed like they were leaning towards 359 00:22:58,560 --> 00:23:00,919 Speaker 1: the Federal Circuit got it wrong on the remedy and 360 00:23:01,000 --> 00:23:07,440 Speaker 1: we have a different remedy that would solve the problem. Apple, Intel, Cisco, Microsoft, Oracle, Samsung, 361 00:23:08,040 --> 00:23:10,920 Speaker 1: who are they backing? All of the tech companies are 362 00:23:11,000 --> 00:23:14,040 Speaker 1: saying that these are inferior officers as they say that 363 00:23:14,160 --> 00:23:16,800 Speaker 1: these guys are totally on the up and up, that 364 00:23:16,920 --> 00:23:20,800 Speaker 1: their rules are appropriate and do not disturb the p 365 00:23:20,960 --> 00:23:23,359 Speaker 1: TAP because of the fact that they're within the Patent 366 00:23:23,400 --> 00:23:25,879 Speaker 1: Office and they're saying, did we get it right or 367 00:23:25,920 --> 00:23:28,520 Speaker 1: did we get it wrong? And that's the role that 368 00:23:28,560 --> 00:23:30,800 Speaker 1: they have, and that there's nothing wrong with the Patent 369 00:23:30,800 --> 00:23:35,199 Speaker 1: Office doing that. That the director sets the policy and 370 00:23:35,240 --> 00:23:38,560 Speaker 1: they're following the policy. But they are looking at what 371 00:23:38,720 --> 00:23:41,800 Speaker 1: the agency does. They point out that in fact, there 372 00:23:41,840 --> 00:23:44,920 Speaker 1: have been procedures to review issued patents that have been 373 00:23:44,920 --> 00:23:49,400 Speaker 1: going on forever and nobody's ever complained until now, mainly 374 00:23:49,480 --> 00:23:53,040 Speaker 1: because this is such a fast track proceedings that does 375 00:23:53,560 --> 00:23:58,120 Speaker 1: have a relatively high rate of invalidation. Now, where does 376 00:23:58,160 --> 00:24:02,320 Speaker 1: the Biden administration stand. Well, the Lustener General has come 377 00:24:02,359 --> 00:24:05,320 Speaker 1: down on the idea that they too are worried about 378 00:24:05,400 --> 00:24:09,000 Speaker 1: disturbing this procedure and disturbing this board that has been 379 00:24:09,000 --> 00:24:12,240 Speaker 1: around since two thousands twelve that was specifically set up 380 00:24:12,600 --> 00:24:15,200 Speaker 1: because there were concerns that the Patent Office had been 381 00:24:15,200 --> 00:24:19,480 Speaker 1: issuing too many bad patents, that they had been basically 382 00:24:19,520 --> 00:24:22,320 Speaker 1: too easy on some of these applications. So they are 383 00:24:22,400 --> 00:24:25,359 Speaker 1: two are very concerned of what's going to happen if 384 00:24:25,400 --> 00:24:28,960 Speaker 1: the if the Supreme Court says no, these are unconstitutionally 385 00:24:29,000 --> 00:24:32,240 Speaker 1: appointed officers and they have to go through principle, who 386 00:24:32,280 --> 00:24:34,679 Speaker 1: have to go through Senate confirmation, and it's gonna just 387 00:24:35,040 --> 00:24:36,960 Speaker 1: disrupt the whole system. And they do not want that 388 00:24:37,000 --> 00:24:40,440 Speaker 1: system disrupted if they just rule that, you know, these 389 00:24:40,520 --> 00:24:45,440 Speaker 1: judges are principal officers. They need presidential appointment and Senate confirmation. 390 00:24:45,720 --> 00:24:48,639 Speaker 1: Would that shut down the whole thing? Well, it's certainly 391 00:24:48,680 --> 00:24:51,560 Speaker 1: what a lot of patent owners would like, UM, and 392 00:24:51,760 --> 00:24:53,560 Speaker 1: it does seem that they would. It would shut it 393 00:24:53,600 --> 00:24:56,399 Speaker 1: down at least tempor early. There's there was one a 394 00:24:56,480 --> 00:24:59,040 Speaker 1: note that there was like seven and fifty cases pending 395 00:24:59,080 --> 00:25:02,080 Speaker 1: before the the board right now. Um. But it would 396 00:25:02,080 --> 00:25:04,880 Speaker 1: shut it down. But but many people point out that 397 00:25:05,200 --> 00:25:08,840 Speaker 1: it would merely take one sentence from Congress to change 398 00:25:08,840 --> 00:25:11,679 Speaker 1: it in light of you know, similar to what they 399 00:25:11,720 --> 00:25:15,159 Speaker 1: did in December with the trademark law, and just merely 400 00:25:15,240 --> 00:25:18,760 Speaker 1: saying that the director has the authority to reconsider, modify, 401 00:25:18,840 --> 00:25:22,159 Speaker 1: or set aside these decisions. And and so if they 402 00:25:22,200 --> 00:25:25,240 Speaker 1: were to do that, that that would solve the problem. Um, 403 00:25:25,280 --> 00:25:28,320 Speaker 1: As one of the lawyers that I spoke to um 404 00:25:28,359 --> 00:25:31,719 Speaker 1: about this case pointed out, So it's much easier to 405 00:25:31,800 --> 00:25:34,960 Speaker 1: change trademark law. Once you start, as you phrased it, 406 00:25:35,080 --> 00:25:38,400 Speaker 1: tinkering under the hood of patent law, then people start 407 00:25:38,760 --> 00:25:41,879 Speaker 1: coming out of the woodwork. So the question is whether 408 00:25:41,920 --> 00:25:45,360 Speaker 1: the Supreme Court would say, well, we're going to kind 409 00:25:45,359 --> 00:25:47,720 Speaker 1: of follow what the Congress did with the trademark law, 410 00:25:48,480 --> 00:25:52,680 Speaker 1: giving the director greater authority to review these decisions. Um, 411 00:25:52,880 --> 00:25:54,520 Speaker 1: or are they going to say, Congress, you have to 412 00:25:54,560 --> 00:25:57,679 Speaker 1: take that action which would cause more disruption, and just 413 00:25:57,920 --> 00:26:01,040 Speaker 1: tell us what happened the last time there was a 414 00:26:01,160 --> 00:26:04,960 Speaker 1: challenge at the Supreme Court. I'm sure other people keep 415 00:26:05,000 --> 00:26:07,119 Speaker 1: track of these cases much better than I have. But 416 00:26:07,240 --> 00:26:11,760 Speaker 1: there are just been constant, constant, constant chance challenges of 417 00:26:11,840 --> 00:26:13,919 Speaker 1: the p TAB and how it rules and how it's 418 00:26:13,920 --> 00:26:17,760 Speaker 1: set up. So basically the Supreme Court has upheld the 419 00:26:17,880 --> 00:26:21,080 Speaker 1: proceedings the ability for the Patent Office to review its 420 00:26:21,080 --> 00:26:25,120 Speaker 1: own decisions. In other cases, UM, it has said it's 421 00:26:25,160 --> 00:26:27,600 Speaker 1: kind of tinkered at the at the rules. For instance, 422 00:26:27,600 --> 00:26:31,880 Speaker 1: there was one decision that said, oh, if a if 423 00:26:32,000 --> 00:26:35,800 Speaker 1: a challenger petitions to challenge five claims of a patent, 424 00:26:36,440 --> 00:26:38,080 Speaker 1: you don't have the authority to say we're only going 425 00:26:38,119 --> 00:26:39,800 Speaker 1: to look at one of those claims. You have to 426 00:26:39,840 --> 00:26:42,440 Speaker 1: look at all five of them. Um. They've had other 427 00:26:42,720 --> 00:26:45,760 Speaker 1: rules that say, well you know that you can't. Um. 428 00:26:45,800 --> 00:26:49,920 Speaker 1: There's limitations on who can file appeals and who can 429 00:26:50,240 --> 00:26:54,080 Speaker 1: petition to have these patents challenge. So they've tinkered at 430 00:26:54,119 --> 00:26:56,760 Speaker 1: the edges a little bit. But bottom line is they 431 00:26:56,760 --> 00:27:00,680 Speaker 1: have previously on the very high levels said that, yes, 432 00:27:00,800 --> 00:27:04,480 Speaker 1: the Patent Office has the authority to review these issued patents. 433 00:27:04,640 --> 00:27:07,240 Speaker 1: Give us a little bit of background on the board 434 00:27:07,440 --> 00:27:10,040 Speaker 1: and how it came to be known as the patent 435 00:27:10,320 --> 00:27:14,080 Speaker 1: death squad. When the patent filing people were first started, 436 00:27:14,560 --> 00:27:18,560 Speaker 1: they were kind of operating on the policy or under 437 00:27:18,560 --> 00:27:22,160 Speaker 1: the assumption that Congress wanted them to invalidate more patents, 438 00:27:22,160 --> 00:27:24,560 Speaker 1: that that was their role, and so there was a 439 00:27:24,760 --> 00:27:30,000 Speaker 1: very very high rate some of times that they would 440 00:27:30,040 --> 00:27:33,919 Speaker 1: invalidate the patent. Former Chief Judge of the Federal Circuit 441 00:27:34,040 --> 00:27:36,640 Speaker 1: Randall later was the one who coined the term death 442 00:27:36,680 --> 00:27:39,480 Speaker 1: squad because he said, you know, this is unfair to 443 00:27:39,560 --> 00:27:42,760 Speaker 1: patent owners. The Patent Office kind of took that to heart. 444 00:27:42,880 --> 00:27:46,000 Speaker 1: The judges took that to heart. So the invalidation rate 445 00:27:46,400 --> 00:27:48,399 Speaker 1: is much lower than it used to be, and it 446 00:27:48,680 --> 00:27:50,080 Speaker 1: and it is kind of one of those you know, 447 00:27:50,480 --> 00:27:52,440 Speaker 1: depending on how you cut the numbers, is what the 448 00:27:52,560 --> 00:27:55,639 Speaker 1: what the numbers look like. But they have been they 449 00:27:55,760 --> 00:27:58,600 Speaker 1: have established a number of rules that kind of give 450 00:27:58,680 --> 00:28:00,760 Speaker 1: patent owners a little bit more of a fair shake. 451 00:28:01,240 --> 00:28:05,479 Speaker 1: But still the overall because the Patent Office is looking 452 00:28:05,520 --> 00:28:09,159 Speaker 1: at basically grading its own work, and you know what 453 00:28:09,200 --> 00:28:10,800 Speaker 1: it's like when you go back and you see what 454 00:28:10,880 --> 00:28:12,919 Speaker 1: you did a year ago hindsight and say, oh, I 455 00:28:12,960 --> 00:28:15,280 Speaker 1: missed this. I missed that. There is still a very 456 00:28:15,359 --> 00:28:19,760 Speaker 1: high rate of invalidation. So patent owners really hate it. 457 00:28:19,840 --> 00:28:23,240 Speaker 1: They're like, we got this issued patent, we know that 458 00:28:23,320 --> 00:28:27,440 Speaker 1: the examiners have expertise. Patents are presumed to be valid 459 00:28:27,520 --> 00:28:30,560 Speaker 1: when they go to court, and that right has been 460 00:28:30,560 --> 00:28:33,240 Speaker 1: taken away for us. And that's because there's no presumption 461 00:28:33,280 --> 00:28:36,159 Speaker 1: of validity at the p TAB. The tech companies in 462 00:28:36,240 --> 00:28:41,040 Speaker 1: particular really liked p TAB basically for the same reasons, 463 00:28:41,400 --> 00:28:43,400 Speaker 1: but they are the ones that are more likely to 464 00:28:43,440 --> 00:28:47,400 Speaker 1: be sued. And Apple has been more aggressive than any other. 465 00:28:47,440 --> 00:28:51,440 Speaker 1: They said that they've invalidated um than two hundred patents, 466 00:28:51,480 --> 00:28:54,200 Speaker 1: but they've also filed more than a thousand petitions. I mean, 467 00:28:54,200 --> 00:28:59,680 Speaker 1: they are the single most most user. Samsung, Google, into 468 00:29:00,000 --> 00:29:03,720 Speaker 1: all of these companies very very aggressive in challenging these patents, 469 00:29:04,200 --> 00:29:06,880 Speaker 1: and if if there's any way that they can reduce 470 00:29:06,920 --> 00:29:09,200 Speaker 1: the litigation costs, they want to do it because they 471 00:29:09,200 --> 00:29:11,440 Speaker 1: get sued an awful lot. So that's why they like 472 00:29:11,560 --> 00:29:14,320 Speaker 1: the pizza. Thanks for being on the show, Sue. That's 473 00:29:14,320 --> 00:29:17,840 Speaker 1: Susan Decker, Bloomberg News Patent reporter. And that's it for 474 00:29:17,880 --> 00:29:20,520 Speaker 1: this edition of The Bloomberg Law Show. Remember you can 475 00:29:20,520 --> 00:29:23,320 Speaker 1: always at the latest legal news on our Bloomberg Law Podcast. 476 00:29:23,640 --> 00:29:26,560 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 477 00:29:26,720 --> 00:29:31,840 Speaker 1: www dot Bloomberg dot com slash podcast slash Law. I'm 478 00:29:31,920 --> 00:29:34,680 Speaker 1: Judan Grosso. Thanks so much for joining us, and please 479 00:29:34,720 --> 00:29:36,920 Speaker 1: tune into The Bloomberg Law Show every week night at 480 00:29:37,000 --> 00:29:39,640 Speaker 1: ten pm. Easter, try to hear your moo Brook Radio