Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio
Speaker 1: the thousands of General issues. The Gunslingers were nights. There's
Speaker 1: want to protect us from the coming of the Dark
Speaker 1: Roland to Shane, the last gun Slinger, a member of
Speaker 1: a nightly order, is locked in an eternal battle with
Speaker 1: the Man in Black in its quest to reach the
Speaker 1: Dark Tower. The tower protects both on walks. If it falls,
Speaker 1: al will be unleashed to Shane is the protagonist of
Speaker 1: Stephen King's Magnum Opus, The Dark Tower series and the movie.
Speaker 1: In seventeen, King was sued by the copyright holder of
Speaker 1: a nineteen seventies comic book, The Rook, for ripping off
Speaker 1: elements of its hero to create his famous Gun Slinger.
Speaker 1: Four years later, the Eleventh Circuit Court of Appeals has
Speaker 1: affirmed the lower court ruling, tossing out the lawsuit. Join
Speaker 1: me as intellectual property litigator Terence ross A partnered caton
Speaker 1: Uten Rosenman. Tell us about the issue here, Terry June.
Speaker 1: The issue revolves around two different literary works built Dubai
Speaker 1: in the late seventies and eighties wrote a comic book
Speaker 1: series called The Rook with a character as the hero
Speaker 1: of those comics by the name of Reston Dane, who
Speaker 1: traveled through time and fought various villain Stephen King published
Speaker 1: a series of novels starting around going into two thousand
Speaker 1: and ten called The Dark Power Series, which featured a
Speaker 1: anti hero by the name of Roland Duchaine, and he
Speaker 1: also time traveled, but as part of a quest to
Speaker 1: find this dark power that is in the title of
Speaker 1: the work and based upon certain broad similarities between the
Speaker 1: two characters. The nephew of the now deceased Bill Dubai,
Speaker 1: author of The Rook, brought a copyright infringement lawsuit again
Speaker 1: Stephen King, his publisher, and various media companies based on
Speaker 1: alleged infringement of this rest and Dame character in The
Speaker 1: Rook by Stephen King and his character Roland to shame.
Speaker 1: Seems like it took a while to bring this lawsuit
Speaker 1: thirty five years exact, and I, certainly, as a long
Speaker 1: time observer of copyright litigation, always wonder when I see
Speaker 1: that sort of lengthy delay in bringing an infringement lawsuit.
Speaker 1: Certainly you would have fought. Given the prominent uh Stephen
Speaker 1: King's works in general and the Dark Power series of novels,
Speaker 1: in particular that Bill Deby, the actual creator of the
Speaker 1: Rook comic book series, would during his lifetime have noticed
Speaker 1: that there were the similarities, and it's only after his
Speaker 1: death when, in effect, his inheritors sort of come up
Speaker 1: with this alleged similarity. The Copyright Act provides, believe it's
Speaker 1: not tony, a three year statute of limitation. Unfortunately, a
Speaker 1: Supreme Court in the Raging Bull case the movie a
Speaker 1: couple of years ago sort of viscerated that three year
Speaker 1: statute of limitations by saying, well, it depends upon when
Speaker 1: the actual discovery the infringement occurs. In various other things
Speaker 1: that sort of thrown the statute of limitations for copyright
Speaker 1: infringement into disarray. So, according to the plaintiffs here, there
Speaker 1: are a lot of similarities between the main characters. They're
Speaker 1: Nightly heritage, traveling back in time to save a boy
Speaker 1: who becomes a gun slinger, birds as companions, interaction with towers,
Speaker 1: western attire, fictionalized Alamo history, and knife wielding. So that
Speaker 1: sounds like a lot when you sort of added up. Yeah,
Speaker 1: sure does on its face. The important thing to remember
Speaker 1: about this case is that the only infringement allegations are
Speaker 1: related to taking the character of Rest and Dane from
Speaker 1: the Rook and essentially creating a substantially similar character called
Speaker 1: Roland of Shame in the Dark Power series novels. So
Speaker 1: it's limited to the issue what we call literary character copyright.
Speaker 1: And in order to obtain a copyright in a literary character,
Speaker 1: you have to go beyond sort of broad images that
Speaker 1: would be typically associated with for example, any World War
Speaker 1: two American hero fighting in Europe, he would be fighting Germans,
Speaker 1: he would be fighting Nazise, you would see swast because, etcetera.
Speaker 1: It's got to be something far more specifics that earn
Speaker 1: you a copyright and the character. And the other part
Speaker 1: of it is that the courts always say this. In
Speaker 1: this court, the Eleventh Circuits set it here is you've
Speaker 1: got to ignore sort of random similarity. The fact that
Speaker 1: they both carry at night is truly irrelevant. And indeed
Speaker 1: the court's cautions you can't just look at a series
Speaker 1: of individual, perhaps coincidental similarity. You've got to look at
Speaker 1: the overall totality of the elements. See what the overall
Speaker 1: impression or image that's conveyed by each compute character and
Speaker 1: here it seems as if the image and the impression
Speaker 1: conveyed are totally different. To Shane is really a very
Speaker 1: dark character. The Eleventh Circuit went so far as to
Speaker 1: characterize him as an anti hero, which I believe is
Speaker 1: accurate from read many of these works myself. He is
Speaker 1: somebody who's not particularly moral. He is perfectly content sacrificing
Speaker 1: his ally in pursuit of his goals, and he's a
Speaker 1: very introspective character. He worries about how much evil he
Speaker 1: has done. He suffers quite a bit through the series
Speaker 1: of these novels, and the quest to find the Dark Power,
Speaker 1: which is somehow related to the time space continuum, is
Speaker 1: also played out in an interior quest to sort of
Speaker 1: beam himself and become a better person. Now, you contrast
Speaker 1: that with the character in The rook rest In Dame,
Speaker 1: who is almost in parton the pont A comic book
Speaker 1: caricature of a typical hero. He's handsome, he's courageous, he
Speaker 1: always does the right thing. He fights them villains just
Speaker 1: sort of randomly, and yes he does time travel to
Speaker 1: fight them, but it's just sort of a good versus evil.
Speaker 1: It's a very different image the traditional American view of
Speaker 1: a literary hero versus the more modern anti hero image
Speaker 1: that you see in The Dark Power. Now, how important
Speaker 1: was it that King's manuscript for The Dark Tower pre
Speaker 1: dated the Rooks publication and also he started working on
Speaker 1: it apparently in yes, and this is important fact. The
Speaker 1: Rook comic book series I just said the character first
Speaker 1: appeared in a nineteen seventy of It or so, and
Speaker 1: then became a recurring comic book series in the late
Speaker 1: seventies and early eighties, Whereas there was substantial proof that
Speaker 1: Stephen King at least was journaling about his character ruling
Speaker 1: to Shane and what would become the Dark Power series
Speaker 1: of novels as early as nineteen seventies. The court was
Speaker 1: careful not to go off on that issue that was
Speaker 1: not the strict basis of ruling. And there's a good
Speaker 1: reason for that, because that would be an entirely fact
Speaker 1: based determination, and facts have to be determined in better
Speaker 1: court by a jury. And here the district court decided
Speaker 1: the case on summary judgment before it got to a jury.
Speaker 1: And it did that and said it was entitled to
Speaker 1: decide as on summary judgments and not in payama jury
Speaker 1: because as a matter of law, not fact, but as
Speaker 1: a matter of law, King and the other defendants were
Speaker 1: entitled to a judgment simply based on the lack of
Speaker 1: copyright ability of most of this, supposedly in stringing elements
Speaker 1: that were shared by the characters. The court consider some
Speaker 1: of the evidence that Stephen King put in, then I
Speaker 1: think he had some notes from an assistant. So evening,
Speaker 1: the defendants put in a phenomenal amount of evidence in
Speaker 1: support of its summer judgment motion. I think I saw
Speaker 1: at one point with forty four thousand pages. Now, this
Speaker 1: included each of the novels, obviously, and even contents right
Speaker 1: long novels, but it also included a summary of all
Speaker 1: those pages that was prepared by one of his assistants,
Speaker 1: so that the court wouldn't have to read off fourth
Speaker 1: thousand pages. The appellate court said that that was permissible
Speaker 1: under federal rules. Summaries of evidence of complicated evidence, of
Speaker 1: byments evidence are always allowed in federal courts. It's simply
Speaker 1: a way of helping a fact finder or the court
Speaker 1: get way through every thing given their busy docutans. More importantly,
Speaker 1: in what I found very interesting is that King and
Speaker 1: the defendants submitted an expert report by the author of
Speaker 1: the Act the Future Movies, who read all the work
Speaker 1: and you know, as an author himself time traveling characters,
Speaker 1: gave his opinion that the characters weren't similar. I found
Speaker 1: that sort of an interesting approach that is permitted in
Speaker 1: copyright cases. At the summer judgment stage, Terry, what was
Speaker 1: the rationale of the Eleventh Circuit's decision? So, due to
Speaker 1: the principal rationale for the Eleventh Circuits, affirmation of District
Speaker 1: Court was based on a finding that these several similar
Speaker 1: elements between the characters constituted nothing more than scenes off fair.
Speaker 1: Scenes are fair are not allowed to be copyrighted under
Speaker 1: our Copyright Act. They are essentially the sorts of common
Speaker 1: themes or characters or settings that are just indispensable to
Speaker 1: any treatment of a certain time period or type of event. So,
Speaker 1: if you're doing a book about the um the West
Speaker 1: and how the West was run, one, you're going to
Speaker 1: have gunfighters, You're going to have everybody walking around with
Speaker 1: a Colt forty five on their hips, you have people
Speaker 1: wearing cowboy hats. You're gonna have dance all girls. You're
Speaker 1: gonna have saloon and and the fact that it works
Speaker 1: has any of those elements in it, UM does not
Speaker 1: allow for those works to be copyrighted, m for those
Speaker 1: elements to be copyrighted in the work, and and and
Speaker 1: those elements are free to be used by by any
Speaker 1: creator who is doing a piece on the Western frontier
Speaker 1: day and and and the court here do you want
Speaker 1: a circuitstan You know, you look at a lot of
Speaker 1: these purportedly similar elements, and they're just common to what
Speaker 1: you The use of knives, well, lots of people use knives.
Speaker 1: You don't get a monopoly on a character using knives.
Speaker 1: They they they time travel. There are lots of characters
Speaker 1: you time travel. You don't get a man comply through
Speaker 1: copyright law on on time travel. Um. They wear western
Speaker 1: garbsny appropriate that the type of tramp time traveling you're doing,
Speaker 1: you don't get a monopoly on on wearing western garb.
Speaker 1: And so each of the individual elements, and you mentioned this,
Speaker 1: there seemed to be a lot of them, but when
Speaker 1: you actually take them apart, but they are nothing more
Speaker 1: than sort of the common incidents of the scene that
Speaker 1: you would expect to see for these types of work.
Speaker 1: I don't know how many times Stephen King has been
Speaker 1: sued for copyright infringement. I mean, he's the best selling author.
Speaker 1: And after the lower court ruling here, he asked for
Speaker 1: one point seven million dollars for fending off the litigation,
Speaker 1: saying copyright litigation isn't a lottery and he shouldn't be
Speaker 1: treated as a punching bag selling author. And after the
Speaker 1: initial the lower court ruling here, he asked for one
Speaker 1: point seven million dollars for sending off the litigation, saying
Speaker 1: copyright litigation isn't a lottery and he shouldn't be treated
Speaker 1: as a punching bag. It's true, and I have seen
Speaker 1: in other cases not involving Stephen King, attempts to use
Speaker 1: the fact that you've you've been sued for copyright infringement
Speaker 1: in the past, has some sort of evidence that you
Speaker 1: did it in the present UM that ed Shearing case.
Speaker 1: We're seeing that happen UM now in New York courts.
Speaker 1: I think it should be entirely disregarded by course UM.
Speaker 1: The fact that someone has been sued in the past
Speaker 1: and found not libel for infringement should be irrelevant. UM.
Speaker 1: I attribute this in general to the overligigious nature h
Speaker 1: copyright these days, and more specifically to the great success
Speaker 1: than notoriety that Stephen King has up paid UM. You know,
Speaker 1: Jesse James used to say, we rocked banks because that's
Speaker 1: where the money is now. UM. Copyright plainists tend to
Speaker 1: chase after UM authors and songwriters and other creators who
Speaker 1: have been successful UH and who have managed through their
Speaker 1: hard work, innovation and creativity to obtain great amounts of money.
Speaker 1: It makes no sense to go after UH sported and
Speaker 1: pringer who has been unsuccessful and has no money to
Speaker 1: pay a judgment? Right? Do you know what happened to that?
Speaker 1: The way this typically works is that the district court
Speaker 1: UM will put off a decision on attorneys seed until
Speaker 1: the issue of liability is settled for once and for all. So,
Speaker 1: knowing that this was going up to the Eleventh Circuit, UM,
Speaker 1: I assume that the district courts that I'm not going
Speaker 1: to do any extra work on this. I'll wait to
Speaker 1: see UH the Eleventh Circuit firms UH, and then the
Speaker 1: UH motion for attorney's fees UM will be considered. The
Speaker 1: Copyright Act does expressly allow for an award of attorney
Speaker 1: spees to a prevailing party UM to the extent that
Speaker 1: the claim of copyright infringement or the manner in which
Speaker 1: the claim was prosecuted litigated in court is somehow unreasonable,
Speaker 1: but it is in the discretion of the district court.
Speaker 1: And my own experience litigating these cases of behalf of
Speaker 1: defendants across the country is that, for whatever reason, district
Speaker 1: court judges tend to be reluctant to award attorneys fees
Speaker 1: in copyright cases unless it is an absolute fraud upon
Speaker 1: the court that's being perpetrated. Now, another point is this
Speaker 1: is the Eleventh Circuit. When we've talked before about copyright cases,
Speaker 1: they're usually in the Second Circuit or the Ninth Circuit.
Speaker 1: How did the Eleventh Circuit get in this, And that's
Speaker 1: a great question. Um. Apparently the nominal plaintiffs, the nephew
Speaker 1: of the author, the rook Eric Dubai, is a resident there. Um.
Speaker 1: Copyright lawsuit can generally be brought most district courts in
Speaker 1: the nation if the work is broadly distributed, and I'm
Speaker 1: sure Stephen King's Dark Power series and the graphic books
Speaker 1: that followed in the movie that followed, or um distributed
Speaker 1: in Florida, and so you get this unusual circumstance um.
Speaker 1: As we've discussed in the past, the nature of the
Speaker 1: industry that the copyright arises out of typically drives the
Speaker 1: locusts bird lawsuit. So you see books and publishing industry
Speaker 1: heavily based in New York City. You see a lot
Speaker 1: of those cases there, country Western Um and motown and
Speaker 1: wrap you see often in the Sixth Circuit because both
Speaker 1: Nashville and Detroit are in that sixth Circuit. And you say,
Speaker 1: see movies and other types of recordings often in southern
Speaker 1: California and the Ninth Circuit because that's where they're loka.
Speaker 1: So this is very unusual. But I will say this,
Speaker 1: the Lemon Circuit have history of copyright cases. It did
Speaker 1: not have to draw heavily upon the Second Circuit or
Speaker 1: Ninth Circuit law um to render this decision, which is
Speaker 1: interesting in and of itself. Thanks Terry. That's Terence Ross
Speaker 1: of Captain Eugen Rosenman. It's been dubbed the patent death
Speaker 1: Squad because it's invalidated more than two thousand patents and
Speaker 1: in a constitutional clash being closely watched by the nation's
Speaker 1: tech companies. At least five of the courts conservative justices
Speaker 1: seemed to indicate they might curb the powers of the
Speaker 1: patent Trial and Appeal Board. Here are justice is Brett
Speaker 1: Kavanaugh and Neil Gore such These are multimillions, sometimes billion
Speaker 1: dollar decisions being made, not by someone who's accountable in
Speaker 1: the usual way that the appointments clause demands. And my
Speaker 1: question was focused on supervision. If the president disagrees with
Speaker 1: the decision, or one of his designees down the chain
Speaker 1: of dependence disagrees with the decision, there's no remedy that
Speaker 1: the president has correct joining me is Susan Decker, Bloomberg
Speaker 1: News patent reporter. Susan start by telling us about the
Speaker 1: patent death squad. So the patent death squad of folks
Speaker 1: who don't like it, call it um. There was a
Speaker 1: sweeping overhaul of patent law back in two thousand and
Speaker 1: eleven that creates the specific adversarial procedure. So to say,
Speaker 1: for instance, you get sued and you think that a
Speaker 1: patent shouldn't have been issued in the first place. You
Speaker 1: can fight in court, but you can also go back
Speaker 1: to the patent office and say, hey, patent office, you
Speaker 1: got it wrong. And some type of procedure has been
Speaker 1: around for many decades, but this is a typically a trial.
Speaker 1: It was supposed to be an alternative to a trial,
Speaker 1: so it's much more formal. It's basically old re examination
Speaker 1: as they called it on Steroid. There's an initial review
Speaker 1: saying yeah, we think we might have gotten something wrong.
Speaker 1: Then they have to do a trial and issue a
Speaker 1: decision within one year. So it's very very fast tracked procedure.
Speaker 1: And because it's kind of self selecting, they do have
Speaker 1: a very high what they referred to as a kill rate,
Speaker 1: meaning a patent are part of a patent is deemed invalid.
Speaker 1: Have this case involving the patent death Squad get to
Speaker 1: the Supreme Court. So in this case, what happened was
Speaker 1: our Threax, which is a patent owner of a long
Speaker 1: standing battle with Smith and nephew over medical devices, had
Speaker 1: one of its patents invalidated at the PTAB that it's
Speaker 1: called patent trial on the field board. And they went
Speaker 1: to the Federal Circuit, the nation's top patent court, and
Speaker 1: they said, these people shouldn't have even been hearing these cases.
Speaker 1: If they're going to be judges that are tossing out
Speaker 1: already issued patents, then they should be presidentially appointed officers.
Speaker 1: They shouldn't be, you know, the Path and Office director
Speaker 1: of pointing over two hundred judges and them having the
Speaker 1: final say on these patents that we thought were already
Speaker 1: good to go. So the question is are those judges
Speaker 1: constitutionally appointed, Are they in fact inferior officers, meaning that
Speaker 1: they work for the director and their subject to his rules,
Speaker 1: or are they so independent they have so much authority
Speaker 1: to invalidate patents that there are people that have to
Speaker 1: go through this Senate confirmation process, which of course is
Speaker 1: very lengthy, and there's over two hundreds so it would
Speaker 1: take a long time. So during the oral arguments, what
Speaker 1: kind of concerns or questions did you hear from the justices. Well,
Speaker 1: one of the things that seemed that they were kind
Speaker 1: of angling towards yes, in fact, these are principal officers
Speaker 1: that they should be presidentially appointed. But several of the
Speaker 1: justices that seem to be leaning towards saying that this
Speaker 1: is unconstitutional seem to also say, well, they don't set policy,
Speaker 1: and in fact, if you have their decisions reviewable by
Speaker 1: the Patent Office Director, then that would solve the problem
Speaker 1: that normally these judges would be considered inferior officers except
Speaker 1: for this one role that they have on invalidating patents.
Speaker 1: And if you have the Patent Office director having the
Speaker 1: authority to overturn them, which he doesn't have right now,
Speaker 1: that that would solve the problem. So could they come
Speaker 1: up with a very narrow finding that would rule in
Speaker 1: fact that these judges were unconstitutional, but provide a remedy
Speaker 1: that doesn't cause disruption? So was there any Q and
Speaker 1: a any exchange between a justice and a lawyer that
Speaker 1: struck you? Well, they did seem to be to spend
Speaker 1: a lot more time on an administrative law, and they
Speaker 1: seem to be kind of concerned about what are the
Speaker 1: implications for this, What would happen? Could they rule one
Speaker 1: way and just throw havoc all over the place, or
Speaker 1: could come up with a very narrow finding that would
Speaker 1: rule in fact that these judges were on constitutional, but
Speaker 1: provide a remedy that doesn't cause disruption. And so there's
Speaker 1: a lot of discussion about what can we do, what
Speaker 1: can't we do differentiating the patent review judges from some
Speaker 1: roles and other agencies, and and concern about if they
Speaker 1: rule something very narrow for the patent Office would that
Speaker 1: kind of cause havoc with other agencies as well? There
Speaker 1: was a wide ranging hearing um. They were trying to
Speaker 1: give it kind of at a ten thousand foot view
Speaker 1: of what does it mean to be a principal officer
Speaker 1: versus an interior officer? And then on a more narrow side,
Speaker 1: what doesn't mean about the Patent Office because they have
Speaker 1: some kind of unique rules and unique policies that have
Speaker 1: been around for even predating the creation of the Patent
Speaker 1: Trial on Appeal board. How did the Federal Circuit, which
Speaker 1: handles rule on this. The Federal Circuit had ruled that
Speaker 1: they were unconstitutionally appointed, but said that the way of
Speaker 1: dealing with this issue is merely to take away some
Speaker 1: of the civil service rights of these judges to essentially
Speaker 1: make them out well employees that are more easily fired
Speaker 1: by the director instead of civil service rules. It didn't
Speaker 1: appear that the Supreme Court justices really were willing to
Speaker 1: go along with it. And of course we know that
Speaker 1: the Supreme Court only takes Federal Circuit cases when they
Speaker 1: want to overturn the Federal Circuit. It's not like you have,
Speaker 1: you know, conflict between the circuits. It's just the Federal
Speaker 1: Circuit right, and they have a very bad record before
Speaker 1: the Supreme Court. They do they do, so we assume
Speaker 1: that they're going to somehow, let's say that the Federal
Speaker 1: Circuit got it wrong. But are they going to say
Speaker 1: that the Federal Circuit got it wrong in determining that
Speaker 1: they were principal officers or are they going to say
Speaker 1: that the Federal Circuit got it wrong in terms of
Speaker 1: the remedy And it seemed like they were leaning towards
Speaker 1: the Federal Circuit got it wrong on the remedy and
Speaker 1: we have a different remedy that would solve the problem. Apple, Intel, Cisco, Microsoft, Oracle, Samsung,
Speaker 1: who are they backing? All of the tech companies are
Speaker 1: saying that these are inferior officers as they say that
Speaker 1: these guys are totally on the up and up, that
Speaker 1: their rules are appropriate and do not disturb the p
Speaker 1: TAP because of the fact that they're within the Patent
Speaker 1: Office and they're saying, did we get it right or
Speaker 1: did we get it wrong? And that's the role that
Speaker 1: they have, and that there's nothing wrong with the Patent
Speaker 1: Office doing that. That the director sets the policy and
Speaker 1: they're following the policy. But they are looking at what
Speaker 1: the agency does. They point out that in fact, there
Speaker 1: have been procedures to review issued patents that have been
Speaker 1: going on forever and nobody's ever complained until now, mainly
Speaker 1: because this is such a fast track proceedings that does
Speaker 1: have a relatively high rate of invalidation. Now, where does
Speaker 1: the Biden administration stand. Well, the Lustener General has come
Speaker 1: down on the idea that they too are worried about
Speaker 1: disturbing this procedure and disturbing this board that has been
Speaker 1: around since two thousands twelve that was specifically set up
Speaker 1: because there were concerns that the Patent Office had been
Speaker 1: issuing too many bad patents, that they had been basically
Speaker 1: too easy on some of these applications. So they are
Speaker 1: two are very concerned of what's going to happen if
Speaker 1: the if the Supreme Court says no, these are unconstitutionally
Speaker 1: appointed officers and they have to go through principle, who
Speaker 1: have to go through Senate confirmation, and it's gonna just
Speaker 1: disrupt the whole system. And they do not want that
Speaker 1: system disrupted if they just rule that, you know, these
Speaker 1: judges are principal officers. They need presidential appointment and Senate confirmation.
Speaker 1: Would that shut down the whole thing? Well, it's certainly
Speaker 1: what a lot of patent owners would like, UM, and
Speaker 1: it does seem that they would. It would shut it
Speaker 1: down at least tempor early. There's there was one a
Speaker 1: note that there was like seven and fifty cases pending
Speaker 1: before the the board right now. Um. But it would
Speaker 1: shut it down. But but many people point out that
Speaker 1: it would merely take one sentence from Congress to change
Speaker 1: it in light of you know, similar to what they
Speaker 1: did in December with the trademark law, and just merely
Speaker 1: saying that the director has the authority to reconsider, modify,
Speaker 1: or set aside these decisions. And and so if they
Speaker 1: were to do that, that that would solve the problem. Um,
Speaker 1: As one of the lawyers that I spoke to um
Speaker 1: about this case pointed out, So it's much easier to
Speaker 1: change trademark law. Once you start, as you phrased it,
Speaker 1: tinkering under the hood of patent law, then people start
Speaker 1: coming out of the woodwork. So the question is whether
Speaker 1: the Supreme Court would say, well, we're going to kind
Speaker 1: of follow what the Congress did with the trademark law,
Speaker 1: giving the director greater authority to review these decisions. Um,
Speaker 1: or are they going to say, Congress, you have to
Speaker 1: take that action which would cause more disruption, and just
Speaker 1: tell us what happened the last time there was a
Speaker 1: challenge at the Supreme Court. I'm sure other people keep
Speaker 1: track of these cases much better than I have. But
Speaker 1: there are just been constant, constant, constant chance challenges of
Speaker 1: the p TAB and how it rules and how it's
Speaker 1: set up. So basically the Supreme Court has upheld the
Speaker 1: proceedings the ability for the Patent Office to review its
Speaker 1: own decisions. In other cases, UM, it has said it's
Speaker 1: kind of tinkered at the at the rules. For instance,
Speaker 1: there was one decision that said, oh, if a if
Speaker 1: a challenger petitions to challenge five claims of a patent,
Speaker 1: you don't have the authority to say we're only going
Speaker 1: to look at one of those claims. You have to
Speaker 1: look at all five of them. Um. They've had other
Speaker 1: rules that say, well you know that you can't. Um.
Speaker 1: There's limitations on who can file appeals and who can
Speaker 1: petition to have these patents challenge. So they've tinkered at
Speaker 1: the edges a little bit. But bottom line is they
Speaker 1: have previously on the very high levels said that, yes,
Speaker 1: the Patent Office has the authority to review these issued patents.
Speaker 1: Give us a little bit of background on the board
Speaker 1: and how it came to be known as the patent
Speaker 1: death squad. When the patent filing people were first started,
Speaker 1: they were kind of operating on the policy or under
Speaker 1: the assumption that Congress wanted them to invalidate more patents,
Speaker 1: that that was their role, and so there was a
Speaker 1: very very high rate some of times that they would
Speaker 1: invalidate the patent. Former Chief Judge of the Federal Circuit
Speaker 1: Randall later was the one who coined the term death
Speaker 1: squad because he said, you know, this is unfair to
Speaker 1: patent owners. The Patent Office kind of took that to heart.
Speaker 1: The judges took that to heart. So the invalidation rate
Speaker 1: is much lower than it used to be, and it
Speaker 1: and it is kind of one of those you know,
Speaker 1: depending on how you cut the numbers, is what the
Speaker 1: what the numbers look like. But they have been they
Speaker 1: have established a number of rules that kind of give
Speaker 1: patent owners a little bit more of a fair shake.
Speaker 1: But still the overall because the Patent Office is looking
Speaker 1: at basically grading its own work, and you know what
Speaker 1: it's like when you go back and you see what
Speaker 1: you did a year ago hindsight and say, oh, I
Speaker 1: missed this. I missed that. There is still a very
Speaker 1: high rate of invalidation. So patent owners really hate it.
Speaker 1: They're like, we got this issued patent, we know that
Speaker 1: the examiners have expertise. Patents are presumed to be valid
Speaker 1: when they go to court, and that right has been
Speaker 1: taken away for us. And that's because there's no presumption
Speaker 1: of validity at the p TAB. The tech companies in
Speaker 1: particular really liked p TAB basically for the same reasons,
Speaker 1: but they are the ones that are more likely to
Speaker 1: be sued. And Apple has been more aggressive than any other.
Speaker 1: They said that they've invalidated um than two hundred patents,
Speaker 1: but they've also filed more than a thousand petitions. I mean,
Speaker 1: they are the single most most user. Samsung, Google, into
Speaker 1: all of these companies very very aggressive in challenging these patents,
Speaker 1: and if if there's any way that they can reduce
Speaker 1: the litigation costs, they want to do it because they
Speaker 1: get sued an awful lot. So that's why they like
Speaker 1: the pizza. Thanks for being on the show, Sue. That's
Speaker 1: Susan Decker, Bloomberg News Patent reporter. And that's it for
Speaker 1: this edition of The Bloomberg Law Show. Remember you can
Speaker 1: always at the latest legal news on our Bloomberg Law Podcast.
Speaker 1: You can find them on Apple Podcasts, Spotify, and at
Speaker 1: www dot Bloomberg dot com slash podcast slash Law. I'm
Speaker 1: Judan Grosso. Thanks so much for joining us, and please
Speaker 1: tune into The Bloomberg Law Show every week night at
Speaker 1: ten pm. Easter, try to hear your moo Brook Radio