The Retail Litigation Center (RLC) joined several other retailers and industry groups in an amici brief urging the U.S. Supreme Court to establish a pre-trial threshold test for patentability, specifically in regard to computer-implementation, in order to help rein in excessive patent-infringement suits.
Submitted in favor of neither party in Alice Corporation Pty., LTD, v CLS Bank International, the brief argues that under the current system, where defendants must answer the expensive and challenging question of whether a patent is infringed prior to determining if the invention is patentable, retailers and many other end users are unjustly forced into settlements due to the prohibitive costs of long term litigation.
The patents potentially covered by the case include computer-implementation of pre-existing, non-patentable technology, such as catalogue style images of items for sale and other basic functions that are commonly seen on retailers’ websites. The brief highlights that defendants of litigation based on infringement of this type of patent, who are often retailers or other end-users as opposed to developers, are the most likely to settle and that computer-implementation patents are the least likely to be held as patentable upon review. When taken all together, the brief argues, the current system encourages the aggressive behavior of non-practicing entities, otherwise known as “patent trolls,” clogging up the legal system.
“If an invention cannot be patented, it also cannot be infringed upon,” said Deborah White, president, RLC. “That the current system forces retailers to prove the second before asking the first renders such proceedings an exercise in absurdity. The Supreme Court should take this opportunity to institute a rule that would lead to quicker, better and less expensive outcomes to discourage patent trolls from continuing their abuse of the retail community."
From the brief filed with the Supreme Court:
“As a practical matter, delaying a decision on this dispositive issue until at or after trial means that the most basic question of all—does this invention qualify for patent protection?—will rarely, if ever, get answered.”
“Retailers must make a decision whether to litigate or settle without being able to determine whether or not the alleged invention is even patentable until all appeals have been exhausted. The Retailers’ interest in this case is, as a result, intensely practical. They seek a bright–line rule of law concerning patentability.”
“This lack of certainty has serious, real–world consequences. Computer–implemented patents are among the fastest growing category of patents, the patents most likely to be litigated, and the patents least likely to be found valid and infringed if litigated to the bitter end. Further, they are more likely than others to be asserted against companies that use the accused software, such as successful retailers who sell goods over the Internet, and not the companies that wrote the accused source code.”
The full brief can be read HERE and was written by BRANN & ISAACSON attorneys Peter J. Brann, David Swetnam-Berland and Stacy O. Stitham.
The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings which affect the retail industry. The RLC, whose members include some of the country’s largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.###