SAN JOSE, Calif. An in-your-face advertising campaign has stirred debate over the legal process for challenging patents, an issue now being debated in the U.S. Senate. The "Patent Assassins" Web site promotes legal services that use a review process at the U.S. Patent Office to kill patents or tie them up in lengthy proceedings.
The Web site and ads were deliberately calculated to drum up business for its creator, the SoCal IP Law Group LLP (Westlake Village, Calif.). They talk about tactics such as creating "a simulated swell of opposition to the patent" or generating a legal traffic jam "that can keep a problem patent in re-exam for a long, long time.
"You can argue against paying royalties until the re-exam is complete or for lower rates until the uncertainty ends," the ad says.
"We started the patent-assassins campaign a year ago, and to be honest it hasn't been particularly successful," said Steven C. Sereboff, a partner at SoCal IP Law Group. "It generated a couple clients, but not the business we had hoped," he said.
Sereboff, a practicing attorney for 18 years, said he respects the patent system and generally thinks the post-exam review process is a good one. Although the ad campaign is deliberately edgy, Sereboff said he has never invalidated a patent he felt was a good one or done anything unethical.
"If there are wrinkles in the rules created by Congress or the patent office, we have every right to use them," he said. "Similarly, if I am a tax consultant, I want to help clients make use of every loophole that's out there," he added.
His clients range from startups to multibillion dollar multinationals. Often they come to him because they are concerned an existing patent reads on a product they developed independently and are about to launch, he said.
The ad "will be distributed widely in Congress, and I think all hell is going to break loose," said Pat Choate, an economist and author who often represents the views of small patent owners. "Ultimately, however, they are doing what many other law firms are doing, but [others are] being a bit more discrete [about it]," he added.
Many of the concerns about post-grant reviews center around a so-called inter partes review process created in 2001. It lets "third parties be involved in whole process, and that creates more opportunity to slow things down or trip things up," said Sereboff.
The inter partes process typically only allows one challenge and prohibits future court cases. A separate ex parte process involves a challenge to a patent that is resolved solely by the patent office and the patent owner. It is typically faster and cheaper, but leaves the door open to future legal challenges.