Thank god football is back, where else but NFL week 1 does blind faith reign supreme and delusional face painters make crazy predictions about future outcomes….but enough about Dallas Cowboy fans. Occasionally, in the otherwise mundane world of patent reexamination, a press release is issued that is so self serving one can only conclude the author spends time face painting on Sundays.
As discussed previously, with so many high profile patent litigations subject to concurrent patent reexamination, it is quite common for self serving press releases to be issued by the participating parties. For public companies, SEC oversight and shareholder law suits tend to keep the release very factual and straightforward. Other less accountable organizations, tend to be a bit more aggressive, like my new all time favorite, Mercury Cable.
Not only is Mercury Cable seemingly guaranteeing a win, they also curiously point out that most patent reexaminations result in confirmed claims. USPTO statistics to the contrary be damned!
In their press release of last week, Mercury comments on the pending inter partes patent reexamination of their U.S. Patent 7,705,242 (the ‘242 patent). A First Office Action was issued in this reexamination in August.
In the press release, Mercury states it is:
pleased to announce that based upon an extensive legal review by Mercury’s patent counsel of the reexamination request filed by CTC Cable Corporation (“CTC”) and the initial office action issued by the U.S. Patent and Trademark Office (“USPTO”), it is our opinion that reexamination proceedings will result in the confirmation of the patentability of the claims of U.S. Pat. No. 7,705,242 (the ‘242 patent).
Stating that the USPTO will confirm the claims is more than a bit much. Right now the statistics indicate an 8% likelihood of all claims being confirmed in inter partes patent reexamination. But, I like the trash talk…of course, I am not a member of the public/investor relying on this information.
Mercury then goes on to state:
Not only is the initial Office Action not dispositive, but statistically, the majority of reexamination proceedings conclude with the patent office upholding the patent and issuing a reexamination certificate confirming patentability.
Here Mercury seems to be playing fast and loose with the concept of “confirmation.” I can only assume that to arrive at the “majority” statistic that the inter partes statistics (8% all claims confirmed) and (43% certificates with claim changes) have been combined, to arrive at the 51% majority. But, that combination of statistics is not a reflection of any meaningful “confirmation” as represented in the release. The PTO does not confirm patents, they confirm claims. Once claims are amended, (i.e., claim changes) as much as 6 years of past damages may be lost. So, the 43% statistic is VERY different than the 8% statistic. By presenting a report of the ongoing patent reexamination as nothing to worry about, Mercury may find they have some explaining to do down the road.
Of course if Mercury delivers as predicted, they can just call me up and scream into the phone ….IN YOUR FACE!!