24 Claims of Lodsys '565 Patent Rejected

Note that this is a Non-Final action - which I believe means that Lodsys has not had a chance to respond. In general reexaminations take a long time...

"Based on our calculations, it takes more than 3 ½ years (43.5 months) for the average case to proceed through the basic reexam process to a final conclusion... A 95% confidence interval suggests an average pendency for appealed cases (again, assuming no rework) is between 5 and 8 years" http://271patent.blogspot.com/2008/05/another-critical-study...

This is to the point where I'm not sure the courts take reexaminations seriously as a defense. In the handful of patent cases I've paid attention to, the fact that a patent was initially rejected in a reexamination had little impact on how the court proceeded with a case. While it's possible the USPTO will fast track this particular case, if I was a developer currently being sued I would not have any confidence that the USPTO will bring any relief before I was due in court.

The actual court case will drag on forever I'm sure. But their ability to force a settlement seems pretty badly hurt. It's much easier for a corporate legal department to take a wait-and-see approach, waiting for a resolution here. The perceived risk is lower.

> I'm not sure the courts take reexaminations seriously as a defense.

That generally depends in part on how far along the court case is when the reexamination request is filed.

On one hand, federal judges want to keep their cases moving; they themselves are judged by the peers (reputationally only; they have life tenure) in part by their average time to final disposition. If an accused infringer files a reexamination request in the USPTO just as its infringement case is about to go to trial, the chances are the judge might order the trial to proceed anyway.

On the other hand, a reexamination proceeding could make a case go away, or even just narrow the triable issues significantly. That would free up the judge and his or her law clerks to work on other cases.

And random factors can make a difference. I once had a judge fast-track a patent case about programmable thermostats. He did so because one of his law clerks that year had his undergraduate degree in electrical engineering. The judge wanted to finish the case while that law clerk was still around to help him. The law clerk informed me and the other side of this at the first case management conference; he also noted for the record that my law firm had turned him down the previous year when he applied for a job with us; ouch .... (The case settled soon afterwards for unrelated reasons.)