Some time ago, we wrote about developments in the International Trade Commission (I.T.C.) (see "New Opportunities Or How To Circumvent e-Bay"). Specifically, we commented on the newly relaxed requirements for standing to bring an action in the I.T.C. The Commission has determined that the “domestic industry requirement” can now be satisfied by “licensing” activities. After reading the decision in the Saxon Innovations case, we opined that, while the “licensing” standard might now be met by the dreaded “non-practicing entity” (“patent trolls”), they would have to show some licensing success BEFORE appearing at the I.T.C.’s door.
Well, apparently we are not alone in our interest in this matter. Corporate Counsel Magazine has – somewhat belatedly in our view – also published a brief article addressing the new standard for admission to the I.T.C.’s hallowed halls. Do they agree with our conclusion? Yep! “The only type of patent-holder that can still expect to be barred from the ITC? An NPE that hasn’t managed to secure a single license.”
Personally, I thought we said it much more cleverly. Nevertheless, the article did include an interesting quotation from a letter to the Commission jointly written by counsel for Cisco, Google and Verizon, “[m]erely suing others who are already practicing the patent is a way of trying to stop or tax the activity, not to spread it. Such suits, accordingly, are on their face the antithesis of trying to encourage the adoption of the technology.” So, if you’re an N.P.E., it seems plain that big corporate America does not like you – as if you didn’t already know that.
THE LESSON TO BE LEARNED: Get critical analysis of pressing issues first HERE.
The ITC"s expansion of the domestic industry requirement offers yet another indication that the NPEs offer a business model that looks likely to grow in popularity and acceptance in the near future. Now, not only are large corporations only limiting their anti-NPE efforts to simply minimizing their losses; but some even appear even to be getting into the NPE game themselves, and trying to figure out how they can get a piece of the pie.