P&A $308 Million Analysis Accepted in Apple Case

We are pleased to announce that a jury accepted our damages analysis in a recent patent infringement case, Personalized Media Communications, LLC (PMC) v. Apple, Inc., that P&A Founder Mike Pellegrino testified in. Just three weeks before trial, Mr. Pellegrino replaced PMC’s damages expert. In preparation, the P&A team analyzed and incorporated nearly 1,000 pages of reports and deposition testimonies to issue a new supplemental report appropriate for trial.

At trial, Mr. Pellegrino provided expert witness testimony against the world’s largest company (Apple) and one of the world’s most prestigious law firms (Kirkland & Ellis), both heavily involved in patent litigation. Despite the defendant’s numerous attempts to thwart Mr. Pellegrino’s testimony and work product, P&A’s efforts survived motions to strike and exclude. The Court ruled that Mr. Pellegrino’s profit split method, as defined in Chapter 11 of Mr. Pellegrino’s BVR’s Guide to IP Valuation, was “sufficiently reasoned, reliable, relevant, and scientific.”

At P&A, we believe our objective approach, proven methods, peer-reviewed sources, and factual underpinnings are a few of the key elements that allow our work efforts to stand up in court. As such, we are honored that the jury in this case validated our analysis to the penny at $308,488,108 and ordered Apple to pay the damages via a running royalty for infringing patents related to digital rights management. To date, the jury verdict is the second highest in 2021.

Artificial Intelligence Patent Explosion

The idea of artificial intelligence dates back to Greek mythology. Through the years, mentions of robots, systems, modes of transportation, and much more operating and thinking on their own appear in novels and movies, especially science fiction where artificial intelligence seems nearly synonymous.

One of the first books to mention artificial intelligence, Frankenstein, was published as far back as 1818 by Mary Shelley. Some other popular artificial intelligence fictions include I, Robot by Isaac Asimov, Robots vs. Fairies by Dominik Parisien and Navah Wolfe, Robopocalypse by Daniel H. Wilson, and Daemon by Daniel Suarz, to name a few.

To visually entice the imagination, many movies based on artificial intelligence theories exist. Some of the top Hollywood artificial intelligence movies are as follows: Metropolis (1927), The Day the Earth Stood Still (1951), 2001: A Space Odyssey (1968), Robocop (1987), The Matrix (1999), Wall-E (2008), and Ex Machina (2014), among many others.

Within many of the movies and books, artificial intelligence is a mere idea. It is an imaginative creation where the authors and producers conjure up scenarios varying from fearing to fighting to controlling to welcoming artificial intelligence. However, newer movies now contain some semblance to artificial intelligence today, making it seem more realistic, more probable, or more potentially viable.

Beginning in the 1950s, artificial intelligence started to become a reality. Twenty years later, computers became commonplace. Since then, artificial intelligence continues to change the world today as we know it. It provides many benefits including better weather predictions, more accurate health diagnoses, self-operating vehicles, and more. And, this is just the beginning!

Unsurprisingly, companies that have the most presence in the artificial intelligence market are high tech companies. According to ipAnalytx, our proprietary patent analytics platform, the following are the top 10 companies with the most patents regarding artificial intelligence:

  • Samsung
  • IBM
  • Microsoft
  • AT&T
  • Intel
  • LG Electronics
  • Avaya
  • Google
  • Qualcomm
  • Amazon
  • As indicated, the artificial intelligence market is dominated by large, high-tech companies with deep pockets. These companies are highly competitive in the market as seen with countless lawsuits suing one another for infringement for various types of innovations, such as smartphones, software, and others. As many of these companies and their products coexist, they aggressively protect their intellectual property.

    According to the USPTO, the number of artificial intelligence patent applications annually rose 100% since 2002! In 2002, the USPTO reported 30,000 patent applications, while the number in 2018 reached more than 60,000. As such, the explosion in artificial intelligence patent applications implies that artificial intelligence is likely to become a way of life. Instead of a fictional depiction of life, it is becoming a reality!

    P&A 2020 Highlights

    It is hard to believe that one month of the New Year is already finished! We are excited for all of the potential opportunities, the new and interesting projects that come our way each year, the new people we get to meet, the new information that we come across, and so much more. We also enjoy working with returning clients and acquaintances we have made in the business. It is always exciting to get each new engagement because it gives us opportunities to help our clients and discover new information about new inventions, what is happening in the market, and so much more. We love what we do and we enjoy learning daily! As such, we would like to highlight our favorite moments of 2020.

    Our projects last year covered a number of topics, including spirits, cloud analysis, online auto parts, family-based prevention programs, concrete, autonomous vehicles, plastic recycling, hyperspectral imaging, paper recycling, telematics, auto insurance, pork, LED lighting, DNA sequencing, point-of-care diagnostics, hybrid engines, welding gas, graphene, Internet of things, energy harvesting, thermal conductivity, refueling techniques, gaming, tobacco, and more. As you can see, we get to enjoy a variety of different topics, which keeps our jobs exciting at all times. We learn something new every day! We also get to teach others about our work, assist clients in the courtroom, provide valuable analytics, and so much more.

    While the pandemic limited travel in 2020, we were still able to attend webinars, offering our knowledge, experience, and skills on various IP valuation topics. For instance, we worked with UK-based law firm Lewis Silkin on a webinar series titled “IP Valuation – A Primer.” P&A gave an introduction to the valuation of various IP forms based on topics in headlines and our professional valuation experiences. In this presentation, we highlighted credible approaches for building IP valuations for a variety of purposes. We also worked with the ASA on its Fair Value Virtual Conference regarding the “Impact of Recent Cases on the Fair Value of Technology.”

    Although we did not get to enjoy our regular team outings, we were able to come together safely at the end of the year to celebrate our team. We were treated to a gourmet meal prepared by our talented company president. After a year of global uncertainty, we were happy to connect and express our appreciation for the company, the team, and the work that we do.

    While 2020 was certainly not a typical year for anyone, we are proud about our ability to adapt well and continue to provide excellent services. We can’t wait to see what 2021 brings!

    5 Reasons for Trademark Denials During Pandemics

    As promised in our last newsletter, we discuss in this article five reasons the USPTO denies trademarks related to pandemics. Pandemics create many emotions, drive, and perceived opportunities, causing people and organizations to apply for trademarks. However, many reasons exist as to why they do not work out. Click “Read More” to discover five reasons for denied trademarks.

    The COVID-19 pandemic, along with other unprecedented events in 2020, affected people worldwide. As such, the USPTO experienced heightened trademark applications, especially regarding the pandemic. While many people envisioned monetary benefits with the potential approval of a granted trademark, the USPTO will likely deny or has already denied trademarks associated with the global pandemic. The following lists five common reasons the USPTO denies trademark applications regarding universal events, such as pandemics:

    • It is offensive: One of the reasons so many people rush to file for trademarks of a new term, even the name of a pandemic, is because there is much hype surrounding it. However, pandemics cause fear and an overall negative connotation. Nobody wants to be reminded of a terrible and fearful time, especially one that causes human loss. COVID has affected hundreds of thousands of people worldwide, causing death, hardship, and so much more. Therefore, it is likely that a trademark application pertaining to a pandemic will be denied based on ethical reasons.
    • It is not tied to a specific product or service: Trademarks are meant to help consumers differentiate products and cut down on search costs. As such, many of the trademarks applied for regarding the pandemic do not promote a specific product that helps consumers differentiate said product from others. Rather, people want to use words associated with the pandemic to place on items such as hats, cups, shirts, and the like. But, the words do not make the products a unique, distinctive brand because they are commonplace.
    • Misconception exists that the first to file “wins”: Many people rush to file a trademark associated with global events before they even know what they will use it for or without the intent to use it because they think that the first to file will win the trademark. However, in the United States, the first to use wins the trademark, as long as certain criteria is met. Therefore, without the intent to use or prove use, the USPTO will certainly deny the trademark application.
    • Pandemics do not last forever: As with everything in life, nothing lasts forever, including a pandemic. As such, the hype eventually dies down and the event becomes an afterthought before long. People move on to other events, concerns, and changes in life. Therefore, terms associated with big events such as a pandemic begin to wan and fewer people talk about them. People get bored eventually and the words don’t hold as much significance once the shock factor dies down and the fear subsides. Even if the USPTO were to approve a trademark, the pandemic could well be over. Many people who file for trademarks during a pandemic plan to use those terms for marketing purposes only during the pandemic. However, the purpose of a trademark is to stand the test of time, not just a certain timeframe. A trademark is distinctive.
    • The term is too common or generic: It is difficult to trademark words and phrases associated with a pandemic because trademarks are meant to differentiate products or services. It is especially difficult when such events are global affairs because everyone uses the terms, making it impossible to tie those terms to a specific product or service. Rather, people think about the actual pandemic from which those terms originated. As such, anytime people see, speak, or hear the terms, they think about the events behind them, not a product or service. Therefore, they become generic and commonplace terms, which cannot be trademarked.

    The trademark process takes effort, time, and money. Essentially, it is risky to file for something that is likely not to grant. Pandemics involve negative connotations including death, fear, financial hardships, and even changes in livelihood. Therefore, on a social and moral level, applying for trademarks to capitalize on a deadly pandemic is likely a waste of time.