Patent Tales

July’s stroll through the Wonderful World of Patents was likened to Alice falling down the rabbit hole.  This week’s post is more like Billie Goats Gruff making a run for it over the  troll-dominated Bridge of Willful Patent Infringing.   Audiologists rarely read patents, but eventually they are affected by patent skirmishes and patent law, same as everyone else.  Today’s post is about skirmishes and make-ups in a variety of industries, including the hearing device industry.

Can’t We All Just Get Along?

 

Yes, at least as long as there’s more money to be made by joining forces. That is how Apple, maker of iPhones, ended up partnering with archrival Google, seller of Android operating systems.  In May, the two rivals agreed to dismiss all current patent lawsuits filed directly against each other{{1}}[[1]]The agreement does not cover Apple-Samsung battles, which remain ongoing.[[1]], though they didn’t go so far as to agree to license each other’s technologies.  They also agreed to partner together “in some areas of patent reform,” namely those areas where patent trolls patrol the bridges.  Since 2009, trolls have sued Apple and Google almost 200 times. Apple and Google, respectively, ranked #1 and #3 as top targets for patent lawsuits in 2013.

No doubt, the hearing aid industry is watching the moves of the phone communications companies closely these days, with the advent of hearing aid phone apps and Apple licensing.  Heaven forbid if a patent troll set its sights on some poor little hearing aid app.

Hearing aid manufacturers came up with a remedy years ago when they had the foresight to form their own patent assertion entity (no, we don’t call it a troll).  The Hearing Instrument Manufacturers Patent Partnership (K/S HIMPP) is a Danish company set up in 1996 by Danavox, Oticon, Phonak, Starkey and Widex.  It was  formed following a patent dispute in which GN ReSound bought 3M’s strong patent portfolio.   GN ReSound contributed the portfolio to the HIMPP  hearing instrument patent pool{{3}}[[3]]The earliest patent filing was 8/28/1984).[[3]] At last report (2012), HIMPP has 66 active patents issued.  Other companies can join by paying a membership fee.{{2}}[[2]]For example, IntriCon joined in December 2006 for a purchase price of $1.8M (10 shares), which included 9% equity interest in K/S HIMPP as well as license agreement that grants IntriCon access to over 45 US registered patents.[[2]].

The Gloves Come Off

Sometimes joining forces to save legal time and money pales in comparison to the money to be made by suing for patent infringement.  That’s what Cochlear Ltd. found out in January 2014 when it took a $131M hit (7.5% of royalties) for infringing on two patents held by plaintiff Alfred E. Mann Foundation for Scientific Research et al.  The 11-page verdict form provides a detailed breakdown of the jury’s decisions on infringement of a number claims within the patents. The summary gives a flavor of how complicated, time consuming, and expensive these legal actions can be.

http://iptrolltracker2.wordpress.com/2013/05/09/the-newest-troll-under-the-bridge-is-at-it-already/
Fig

Cochlear’s damages are pocket change compared to what  Marvell Technology Group must pay Carnegie Mellon University for selling billions of semiconductors that infringed the school’s two hard disk drive patents. The jury awarded $1.17 billion, a federal judge upped it to over $1.5 billion.  Although those are huge numbers, neither is even half of what Carnegie Mellon sought in damages.

A Curious, Serious Case

 

A 5/27/2014 US Court of Appeals decision in K/S HIMPP vs Hear-Wear Technologies, LLC{{3}}[[3]] An affiliate of SeboTek Hearing Instruments, LLC) which licensed its RIC patent portfolio (USPTO #5,606,621; 7,016,512; 7,110,562; and 7,139,404) to Siemens in 2008.[[3]]went viral in the  arcane world of patent law, garnering publicity due to changes in legal interpretation of patent law precedent.

Substitute “Show me the plug” for “Show me the money” and I think you have the gist of the case, which went in favor of Hear-Wear.  You can click to read the majority and dissenting opinions, but here are the comments, words and phrases that grabbed my attention, if not my understanding:

Background:  A Hear-Wear patent (7,016,512) describes a hearing aid of three parts: one part behind the ear, one part in the canal, and a third “connector” part between them.  The court appeal concerned only the connector part, specifically content of claims 3 and 9, which K/S HIMPP asserted was “well known.”

In Plain Words:  HIMPP contended that the concept of a “multipronged plug to form a detachable electrical connection” was obvious.  The court “declined to accept obviousness.”

 Not so Plain Words:  The obviousness issue centered on whether the plug in question (but not in evidence) was or was not “evidently and indisputably within the common knowledge of those skilled in the art.”

That’s because a previous court decision clarified “a properly flexible obviousness inquiry to include . . . the background knowledge, creativity, and common sense of the person of ordinary skill.”  

And if that didn’t make it crystal clear, the majority opinion agreed that the presence of a plug in the prior art as of 2001 was a core factual finding related to an important structural limitation that was not obvious (see above for definition of obviousness issue).

Back to Plain Words:  The dissenting judge didn’t mince words.    “This should be an easy case, reversing the quite odd decision of the PTO{{4}}[[4]]United States Patent and Trademark Office.[[4]]that it could not consider whether multipronged electrical connections were well known in the prior art.

Every purchaser of electrical devices in the United States for the past 50 years or more is familiar with multipronged electrical connections.

In Summary:  Most would agree that the case confuses and makes us glad we’re Audiologists and not patent attorneys.  Most Audiologists would likely agree, too, that they know of the multipronged electrical connections that emanate from the audiometers, printers, computers, chargers, and every other piece of equipment in their offices.  Most would also agree that the specialized use of language in patent decisions render them impenetrable to the common sense of people of ordinary skill such as ourselves.

Final Words and Phrases to Avoid

 

 Run for the bridge if you see any of these:  “claims,”  “known willful infringement,”  “common sense,” “prior art,” “knowledge,”  “ordinary skill in the art,” “skilled in the art,” “known in the art,”  “known prior art element, ” “obviousness,” “important structural limitation,” “obviousness,” and “properly flexible obviousness.”

Practice the prior art of declining to accept obviousness by viewing this entertaining video.  Frequent viewing will make you skilled in the art but it won’t help you understand patents.

 http://youtu.be/PZbqAMEwtOE

images courtesy of soda head,  IP troll tracker

About Holly Hosford-Dunn

Holly Hosford-Dunn, PhD, graduated with a BA and MA in Communication Disorders from New Mexico State, completed a PhD in Hearing Sciences at Stanford, and did post-docs at Max Planck Institute (Germany) and Eaton-Peabody Auditory Physiology Lab (Boston). Post-education, she directed the Stanford University Audiology Clinic; developed multi-office private practices in Arizona; authored/edited numerous text books, chapters, journals, and articles; and taught Marketing, Practice Management, Hearing Science, Auditory Electrophysiology, and Amplification in a variety of academic settings.