Chief Judge of the CAFC, Randall R. Rader, dropped a gem when he characterized, the GRASSHOPPER, as, “the entity that is quick to steal the ‘inventor-ant’s’ work and research investment because he did no work himself and the winter of competition approaches. We can recognize the grasshopper because he refuses to pay any license fee until his legs and claws are held to the proverbial litigation fire.”
This fine characterization provides balance to the TROLL that is so quickly applied to any inventor who tries to monetize his invention. The new icon, GRASSHOPPER, provides a powerful mnemonic that will embed into the minds of young patent attorneys faced with the impossible task of upholding the patents they write in the face of the “could’a, would’a, should’a” of the patent invalidators. It is the maker ant that converts imagination to material reality. Make no mistake about this
Yes, this is the golden age of patents. The next world belongs to the copyright holders. How else to “protect” all those app submitters to Apple? The paradigm is changing.
What we see in Rader’s recent address on The State of Patent Litigation is a plea for rational thinking. The billion dollar case must be handled differently than the thousand dollar case. In addition, we see that there will be a drift toward apportionment of damages, as is the case in much of tort liability. Google has a point, that one can’t make a phone without potentially infringing thousands of patent claims. There clearly needs to be established a Royalty Board that can determine “fair royalty” in a particular technology, an devise a fair means of dividing up that “fair royalty” among the legitimate claimants.
But to return to the case of Apple v. Samsung, much of Apple’s case seems to be centered on the “look and feel” of the respective products. Apple has even been accused of Photoshopping some of Samsung’s products to suggest a closer appearance that would confuse buyers, than is actually the case.
It could be suggested that both parties are trading on old technology, ironically offered to both, but instead mutually manufactured as the game changing iTouch and iPhone products. Perhaps, a relook at the rectangular handheld in the lapsed Patent No. 5,452,468 might refresh institutional memories. Aside from the recess to the screen, which was to allow for cut-out templates for the blind, the configuration of the touchscreen handheld in the ‘468 patent is remarkably similar to the design in controversy.
In reality, aside from a few neat new features, nothing much has really changed since the 1980’s with the user interface wars between Apple and Microsoft. Xerox Parc was pretty forward thinking.
Richard Stallman, GNU founder, once complained, there should never be any software patents, because unlike apparatus inventions, there is no library of prior art. Patents at least expire within 20 years from the date of filing. Copyrights, seem to last forever. I guess Stallman is having the last laugh, as the new age belongs to the registrant.