“Balance and Compromise” at the Intellectual Property Owners Association

U.S. Supreme Court pillars

The top-listed “principle” of the Intellectual Property Owners Association is: “We represent the interests of IP owners.”

So does that mean it necessarily supports what is presumably a desire on the part of all patent owners to sue for infringement whenever they want?

No. It doesn’t.

A case before the U.S. Supreme Court next term will determine whether a laches claim—that a patent owner waited too long to sue – is a defense available to alleged infringers. SCA Hygiene Products AB v. First Quality Baby Prods., LLC, No. 15-927 (U.S., cert. granted May 2, 2016).

The IPO, which fought for the laches defense before the Federal Circuit, is doing so again before the high court in an amicus brief filed July 22.

Bloomberg BNA reached out to current IPO President Kevin H. Rhodes, president of 3M Innovative Properties Co., who said the association’s stances reflect various perspectives on IP.

Because of the diversity of companies and industries represented on the IPO’s board, its “positions on issues of IP law and policy reflect balance and compromise among differing viewpoints of stakeholders in the IP system,” Rhodes said in an e-mail. “The SCA brief is an example.”

Undoubtedly, the viewpoint of some high-tech board members, such as Apple Inc., Cisco Systems Inc., EMC Corp., Google Inc. and Microsoft Corp., is that they get sued more often than they sue. In fact, those companies were defendants in 840 patent cases in the last five years but plaintiffs in just 65 cases, less than one-twelfth as many, according to Bloomberg Law. The operating companies of the group’s 19 high-tech board members have been defendants in over 10 times as many patent infringement cases as they have been plaintiffs.

Even if all 19 supported the IPO’s position here—doubtful—the IPO’s rules required 34 votes of its 50-member board to file the brief. Some votes against total lawsuit flexibility for patent owners must have come from the IPO’s 14 biopharmaceutical members or other traditional firms, including such strong patent owners as Exxon Mobil Corp., Ford Motor Co., GE, Lockheed Martin and P&G.

Seems like the IPO board was looking out for the good of the patent system above that of patent owners.