Patent trolls are a tax on innovation. The classic troll model doesn’t include transferring technology to create new products. Rather, trolls identify operating companies and demand payment for what companies are already doing. Data from Unified Patents shows that, for the first half of this year, patent trolls filed 90% of the patent cases against companies in the high-tech sector.
Core Wireless Licensing S.A.R.L. is one of the patent trolls attacking the high-tech sector. Core Wireless is incorporated in Luxemburg, and is a subsidiary of an even larger troll, Canada-based Conversant. It owns a number of patents that were originally filed by Nokia. It has been asserting some of these patents in the Eastern District of Texas. In one case, a jury recently found that Apple did not infringe five of Core Wireless’s patents. In another case, it is asserting eighteen patents against LG. One of its arguments in the LG case came to our attention as an example of what patent trolls think they can get away with.
In patent litigation, patent owners and alleged infringers often disagree about the meaning of words in patent claims and ask the court to resolve the differences (a process known as “claim construction”). In Core Wireless’ case against LG, the majority of the disputes seem like usual ones in terms of patent litigation.
Except for the dispute about “integer.”
You may have learned what an “integer” was in high school. It’s a common concept many teenagers learn about when they take algebra. In Ontario, Canada, for example (where Conversant is based), teachers discuss integers in the 9th and 10th grades. As defined in the Ontario Curriculum, an integer is: “Any one of the numbers . . . , –4, –3, –2, –1, 0, +1, +2, +3, +4, . . . ” Here’s a PBSMathClub video with a helpful explanation:
It’s pretty clear what an “integer” is. Here are a few more definitions from various sources, all confirming the same thing: “integers” are all of the whole numbers, whether positive or negative, including 0.
But Core Wireless, the patent owner, told the court that an “integer” is “a whole number greater than 1.” Core Wireless is saying that not only are negative numbers not integers, neither are 0 or 1.
This is preposterous.
As one mathematician told us:
The integers are the natural numbers (whole numbers greater than zero), their negatives, and the number zero (very important). So saying that the integers are all whole numbers greater than one is a bit like saying that sweet and sour chicken is just sour sauce because you're missing its negative, and the chicken, which is very important. Or that a turducken is just turkey: we all know that the duck and the chicken are essential.
To be clear: the law allows patent applicants to redefine words if they want. But the law also says they have to be clear that they are doing that (and in any event, they shouldn't be able to do it years after the patent issues, in the middle of litigation). In Core Wireless’ patent, there is no indication that it used the word “integer” to mean anything other than what we all learn in high school. (Importantly, the word “integer” doesn’t appear in the patent anywhere other than in the claims.)
It appears that Core Wireless is attempting to redefine a word—a word the patent applicant freely chose—because presumably otherwise its lawsuit will fail. The Supreme Court has long disapproved of this kind of game playing. Back in 1886, it wrote:
Some persons seem to suppose that a claim in a patent is like a nose of wax which may be turned and twisted in any direction, by merely referring to the specification, so as to make it include something more than, or something different from, what its words express.
Just last year, the Supreme Court issued an opinion in a case called Nautilus v. Biosig Instruments emphasizing that patent claims must describe the invention with “reasonable certainty.” Using a word with a well-known and precise definition, like “integer,” and then insisting that this word means something else entirely is the very antithesis of reasonable certainty.
We hope the district court applies long-standing Supreme Court law and doesn’t allow Core Wireless to invent a new meaning for “integer.” Patent claims are supposed to provide notice to public. The public should not be forced to guess what meaning the patent owner might later invent for the claims, on penalty of infringement damages.
Ultimately, this is just one baseless argument in a bigger case. But it reveals a deeper problem with the patent litigation system. A patent owner wouldn’t argue that “integer” doesn’t include the number one unless it thought it might get away with it. The Patent Office and lower courts need to diligently apply the Supreme Court’s requirement that claims be clear. We also need legislative reform to discourage parties from making frivolous arguments because they think they can get away with it. This should include venue reform to prevent trolls from clustering in the troll-friendly Eastern District of Texas.