Obviously I wasn't referring to you when mentioned to being hated. Last time the company even sent a lawyer after me in the forum and later by email. So I came to the impression that I'm not always popular :)
Today is the last day of the arbitration, it will be very telling if the share price goes to some direction today or tomorrow. People participating in the event could well guess the outcome after today.
I respect anyone who does their DD and shows respect in return. Although investorpatent and I agree to disagree, I would never bash him/her for being short, even though I'm a long.
investorpatent to your earlier comment about being the most hated poster, I disagree. A number of people have appreciated your comments and continue to value your input. Those of us who take a position in the stock hope we are right, but of course we are often wrong. I'm simply hoping this isn't one of those times for me. Please continue to share your views.
Given the growing popularity of the re-examination process at the USPTO, these findings will surely be a cause for concern not only among patent owners, but at the office itself. Patent owners need certainty for all kinds of reasons. The re-examination process, it turns out, is just one more example of them not getting it in the US. Says the report:
Although the re-examination statute in the US may have been intended to provide an alternative to litigation, the actual use of re-examination appears to be an augmentation of litigation strategy rather than an alternative. In many cases, patent litigation in US courts and 337 actions at the International Trade Commission (investigations of unfair trade practices related to IP infringement) run simultaneously with re-examination at the Patent Office. Simultaneous litigation and re-examination raise serious questions for US courts about whether to wait for the results of a pending re-examination or continue with their court proceedings.
The conclusions so far have been mixed. In some cases, patent litigation has been stayed pending the results of re-exam, while in others, the cases have continued. Many people will remember for example that Judge Spencer who presided over the contentious patent battle between NTP and RIM over the "Blackberry patents" famously refused to stay the litigation proceedings despite the fact that the PTO had issued an initial rejection of the claims at issue.
These difficult and often critical decisions by circuit court judges and administrative law judges depend heavily on their understanding and expectations of what will happen in the re-examination process at the PTO. How reliable are initial office actions as a predictor of final results in a re-examination? How long will the process take? How often are the patent examiner's finding upheld on appeal? For judges, these questions are critical in determining whether a request for a stay should be granted. For litigants, these questions can strongly influence litigation strategy.
As if it the USPTO did not already have enough problems to deal with, this looks like being another one. It also makes you wonder how the office would cope should a post-grant opposition process, as envisioned by the Patent Reform Act, ever come into being. There could well be many more oppositions than there are currently re-examinations – so the delays could be horrific.
New research lifts lid on "highly misleading" USPTO re-examination stats
Patent re-examination at the USPTO is supposed to be a quick and relatively cheap alternative to litigating validity issues before the US courts. However, research done by the recently-established Institute for Progress indicates that, in reality, in most cases the patents involved in inter partes re-exams are also litigated at some stage, while delays mean that the average inter partes case takes over three and a half years to complete, if there is no appeal.
Disturbingly, the research finds that statistics provided by the USPTO, which state that the average pendency in an inter partes case is 28.5 months, may be "mathematically accurate" but are also "highly misleading". In a report that accompanies the research, the institute states: "An appropriate reading of the statistic is that the Patent Office takes two years to dispose of a patent through inter partes re-exam if the patent holder doesn't care to defend its rights. It takes significantly longer to get to a resolution if the patent holder participates in the process."
Among the findings highlighted by the report that will, I imagine, surprise (and alarm) quite a few people in the States, are the following:
• Inter partes re-examinations requests are rising rapidly – a 6X increase between 2003 and 2007 (from 24 to 142).
• Reexamination, particularly inter partes re-examination, is not simply used as an alternative to litigation, but an integral part of litigation strategy – more than half (52%) of patents in inter partes re-exams are known to be in litigation during their re-examination.
• Virtually all requests (95%) for inter partes re-examination are granted, and this statistic may actually understate the effective grant rate.
• To date, there has never been a single inter partes re-examination that has gone through the entire re-examination process (including appeal) and made it to completion. Only three have ever received a decision by the Board of Patent Appeals and Interferences.
• Despite a mandate for "special dispatch", the time required to complete an inter partes re-examination is much longer than commonly believed.
• Without appeal, the average pendency period for inter partes re-exam is 43.5 months, much longer than the 28.5 months reported by the USPTO – a 95% confidence interval would put the pendency between 34 and 53 months.
• Although no inter partes re-exam has ever been completed after being appealed, the average pendency for appealed inter partes reexams is 78.4 months (assuming no rework by the patent office or secondary appeal) – a 95% confidence interval would put the pendency between 5 and 8 years.
investorpatent, please answer a few questions for me. First, if this is an arbitration case, how do you know which patents are at issue, which were originally licensed, and which were infringed? Is there a public filing somewhere that allows you to view the complaint? Second - since Amkor was an existing licensee, and the case went to arbitration, there was obviously a clause that provided for binding arbitration as opposed to a new litigation action for patent infringement, is this correct? Third - even the patents you outlined have been deemed enforceable during ongoing litigation, so why would an arb panel consider the re-exam results on enforceable patents that have not been rejected by the patent office?
I wonder if you have you seen the articles that have been posted here re the PTO re-exam process? Interesting reading that implies a rejection of certain claims doesn't mean anything and the majority of the time the rejected claims are overturned, and that the entire process only distorts the process by slowing down legal actions and accomplishing very little (paraphrasing of course). I always respected your views and insights on the legal process but your current posts seem skewed toward your short position rather than objective discussion on the arbitration results.
I've always respected your view too.
I've read a list of involved patents either at ITC or PTO yesterday, I'll try to locate the file and come back.
Second question: we don't know, nobody has seen the actual contract, our life would be much easier knowing all these details.
Third question: I think this is the most important question, I agree with you that the patents are enforcable until the final rejection. We haven't seen a final rejection yet but it's obvious that TSRA is delaying the process and the final rejection is just a matter of time. For some patents it could be in a matter of month only.
You can also notice the level of desperation when instead of arguing the patent's claims they send a statement into a PTO detailing what was said during a lunch with SLIP. Next time we will see full details of their evening programs in a sworn statement. :)
In my view TSRA licensed something that it has never owned. The arbitration panel will see through all these non-sense appeals at the PTO and decide in favor of Amkor.
It's not my view what is skewed because I'm short. I have this view and that's why I decided to short. :)
It's an arbitration panel, I think they can decide in June.
Settlement is an option but I think the situation on the patent front looks too good for Amkor to settle. On the other hand Tessera could not afford to settle on a lower amount, what message would that be for existing clients? There would be no incentive to continue paying.