Former SG Ruffled by Troll Tag

Former SG Ruffled by Troll Tag Diego M. Radzinschi / NLJ Paul Clement, Bancroft partner

SAN FRANCISCO — Paul Clement does not appreciate his client being called a “patent troll.”

The Bancroft partner and former solicitor general let his adversaries at Orrick, Herrington & Sutcliffe—and the U.S. Supreme Court—know it Tuesday as only Paul Clement can.

He dismissed Orrick’s attack on Lighting Ballast Control, a subsidiary of IP monetization company Acacia Research Corp., as a “high-handed peroration on the ‘equities’” that “merits little comment beyond correcting the more egregious distortions.”

Clement is petitioning the court to grant certiorari in Lighting Ballast Control v. Universal Lighting Technologies, a case the U.S. Court of Appeals for the Federal Circuit took en banc last year to decide the standard of review for claim construction decisions. Lighting Ballast lost by a 6-4 vote at the Federal Circuit, but the Supreme Court granted review on a similar issue a month later and Clement wants the high court to at least hold Lighting Ballast in abeyance while that case is decided.

Orrick partner Steven Routh’s response to Lighting Ballast’s petitions features the T-word in the first paragraph. “Petitioner Lighting Ballast Control LLC (‘LBC’) is a patent assertion entity—sometimes referred to as a ‘patent troll’—and a subsidiary of Acacia Research Corporation (‘Acacia’), a California company that owns and controls over 200 such entities.” While other companies settled Lighting Ballast’s suits to avoid “the expense and burden of protracted litigation,” his client “stood firm and defended.”

The troll debate has grown especially heated over the last few years. The White House has used the phrase “patent troll,” as Routh noted in his brief, and so has the former chief judge of the Federal Circuit.

There have been a few signs of backlash recently. The Supreme Court took steps to rein in abusive patent litigation last spring, but refused to target patent assertion entities explicitly, as many amici curiae had urged. Federal Circuit Judge Jimmie Reyna told attorneys during an argument this spring involving another Acacia entity to avoid “labels and name-calling,” adding, “I don’t see the word ‘trolls’ in our statutes.” Michelle Lee, deputy director of the U.S. Patent and Trademark Office, in June urged that “we cut through the fog of harsh and unproductive language” while continuing to pursue reform.

Clement kept things civil Tuesday while pushing back on Routh for complaining that Lighting Ballast ran up costs by seeking “reconsideration or rehearing at every level whenever rulings did not go its way.”

Actually, Clement pointed out, it’s Lighting Ballast that won a $4.5 million judgment in the case. “All proceedings since August 2011 have been at the appellate level, triggered by [Universal Lighting]‘s appeal of a judgment that ‘did not go its way,’” Clement wrote.

As for the troll label, Clement wrote that the inventor of the ballast application at issue personally complained to Universal Lighting that it was infringing his patent “and received a dismissive response.” He then contacted Acacia for assistance in bringing his suit.

“Respondent may prefer a world in which the only patent owners realistically capable of prosecuting infringement claims are large corporations. But individuals own patents, too,” Clement wrote. “And if a small inventor/manufacturer lacks the resources to defend his property rights against well-financed companies infringing upon them, he may well seek the assistance of a partner whose experience and expertise can help vindicate those rights. Doing so is no basis for ad hominem attacks.”

Contact the reporter at sgraham@alm.com.

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