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Local attorney defends infringement claim; says reform needed

Using a unique strategy, San Diego attorney Joe Leventhal helped his client, FindTheBest.com, prevail in a patent infringement case that he said shows that reform is still needed at the patent office.

FindTheBest.com, a website that allows users to research, filter and compare products and services, was accused of patent infringement by Lumen View Technology LLC, a nonpracticing entity that owns a variety of patents.

In a rare maneuver to pre-emptively fight the lawsuit, Leventhal filed a motion for judgment on the pleadings, asking the court to assess the validity of the disputed patent before claim construction or discovery.

The strategy paid off as a U.S. district court judge in New York granted FindTheBest.com's motion, invalidating the patent, which claimed a process of matching the preferences of one party with the preferences of a second party.

"We took a bit of strategic risk," Leventhal said. "We asked the judge to just look at the patent and make a determination."

U.S. District Court Judge Denise Cote found that the patent Lumen View Technology accused FindTheBest of infringing lacked any inventive ideas and failed to claim patent-eligible subject matter.

“It is evident by clear and convincing evidence that the patent is invalid. … Having two or more parties input preference data is not inventive," Cote wrote in her ruling. "Matchmakers have been doing this for millennia.”

Leventhal, founder of Leventhal Law, said the ruling is another example of why reform is still required at the U.S. Patent & Trademark Office.

"Although this ruling is a victory, the USPTO should never have forced FindTheBest to pay hundreds of thousands of dollars to correct the USPTO’s mistake,” he said.

The veteran litigator said only defendants who are willing to pay for an expensive court battle will fight a patent infringement suit.

"It's been more economical (for defendants) to pay the opening (settlement) demand, and frankly, Lumen View realizes that and it's why they make the initial demands," Leventhal said.

He said one way to reform the process is to allow the prevailing party in a patent infringement case to recover attorney's fees. Right now, that is only allowed in "exceptional cases."

"It is a disincentive for a defendant to fight a meritless case if they have to pay their own attorney's fees even if they win," he said.

Leventhal said the patent at the heart of the FindTheBest-Lumen View dispute involved a basic and common way to compare and contrast preferences, and that it can be done on paper.

"It's a process that's been going on for centuries," he said.

In May 2013, Lumen View Technology sent FindTheBest a letter demanding that it pay a licensing fee or face “full-scale litigation” and “protracted discovery,” according to Leventhal.

Leventhal said he recognized that the patent at issue claimed questionable subject matter under the patent statute.

“We are very pleased we found the right partner for this battle," said FindTheBest.com's CEO Kevin O’Connor. "The attorneys at Leventhal Law had creative and persuasive arguments that ultimately won this case."

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1 UserComments
Tom Mullen 7:06pm December 26, 2013

Not to mention that the America Invents Act is "patently" unfair and causes astronomical costs on well-intentioned inventors who eschew litigation tactics