&ldquoRegardless, in almost all instances, a defendant accused of patent infringement contends that the patent is invalid,&rdquo says Donovan. &ldquoCompanies certainly have the right to protect their patents and secure compensation from infringers and those who wish to use patented technology. On the other hand, a defendant who believes a patent should not have been granted certainly has the right to try to invalidate the patent. But, until that happens, and until a court holds the patent invalid, the patent will be presumed valid.&rdquo
Time to Go All-in
As the new suits and counter suits began to fly in 2002, many individual companies were settling out of court. Those getting to court, such as Clorox, were settling pretty quickly once they got a good look at what they were up against. According to industry reports Lilly, Chevron, General Dynamics, Lexmark, Shell and Kellogg settled between September and November 2002.
Up until that time, it appeared companies weren&rsquot aligning themselves with others to support a real challenge to the patent. However, throughout 2003, companies began to band together and it finally started to look like there would be enough legal resources to bring this thing to a head and decide, once and for all, if &rsquo318&rsquos broad claims are truly valid.
But Solaia&rsquos legal campaign to support its legal rights continued and in June 2004, Solaia Tech LLC v. GE Fanuc Automation, was filed in U.S. District Court for the Northern District of Illinois. This suit was one of the first infringement claims against a deep-pockets automation vendor. But instead of fighting it, GE Fanuc and Solaia settled early in 2005 (see GE Fanuc Settles With Solaia). However, in spite of what some might consider as GE Fanuc&rsquos capitulation, more than 16 individual companies united their legal effort and now have patent infringement cases pending with Solaia LLC in Illinois and Minnesota courts.
Furthermore, according to Rockwell Automation&rsquos 10-K in its 2004 Annual Report &ldquoIn a suit filed by Solaia on July 2, 2002 in Chicago, Solaia Technology LLC v. ArvinMeritor, Inc., et al, (02-C-4704, N.D. Ill.) (Chicago patent suit), Solaia accused sixteen companies of infringing the &rsquo318 patent. We made arrangements with ArvinMeritor, which now owns and operates our former automotive business, to undertake ArvinMeritor&rsquos defense of Solaia&rsquos patent claims to seek to assure that Solaia&rsquos infringement claim against ArvinMeritor could be finally and actually adjudicated in the Chicago patent suit. In that case, Solaia responded on May 12, 2003 by suing us directly for patent infringement, demanding material monetary damages.&rdquo
In the Minnesota case, which seeks a declaratory judgment against Solaia, the judge recently ruled against Solaia&rsquos motion to dismiss. Essentially that means the judge found that the 16-company group (accused of infringement by Solaia) have a strong enough case against Solaia to continue its litigation and prove baseless the infringement claims and invalidate the &rsquo318 patent.
According to Rockwell&rsquos in-house intellectual property counsel John Miller, discovery is complete and dispositive summary judgment motions are pending on the key, critical elements of the suit, among them, primarily, that ArvinMeritor, Rockwell and its customers do not infringe on the &rsquo318 patent. According to Miller all appropriate and germane documentation supporting the motions has been filed and summary judgement is imminent. In fact, as you read this, judgments may already have been handed down, finally bringing the curtain down on this sordid tale of industrial intrigue and legal slight-of-hand.
GE Fanuc Settles With Solaia
On March 9, GE Fanuc Automation Americas, Inc., a unit of GE Infrastructure, announced it had signed an agreement with Chicago-based Solaia Technology LLC, &ldquowhich provides broad rights to GE Fanuc Automation, GE, FANUC Ltd of Japan, and their customers under the Solaia 5,038,318 patent.&rdquo
According to the announcement, Solaia releases any potential claims on the &rsquo318 patent against customers for the purchase or use of products, software, services, equipment or devices made or supplied by GE Fanuc Automation, GE or FANUC LTD. &ldquoFurthermore,&rdquo says the announcement, &ldquoany system that was substantially integrated by a GE entity is released, regardless of which company manufactured the individual system components.
&ldquoGE Fanuc reached this important agreement with Solaia in order to assure our customers that they have no potential risk for litigation under the &rsquo318 patent,&rdquo said Jeff Garwood, president and CEO, GE Fanuc Automation. &ldquoAt this critical time in our global economy, manufacturers need to concentrate on improving productivity, reducing costs and achieving peak performance, and we are committed to helping our customers do just that with best-in-class automation solutions and the worldwide support of GE.&rdquo
Technocrats Take the '318 Patent to Task
Considering the highly developed nature of patent law these days, most of the patents granted are likely to be truly legitimate. But with so many patents being granted (according to U.S. Dept. of Justice, Bureau of Justice Statistics, the number of patents granted has increased 197% from 62,000 annually in 1983 to 184,000 in 2001) for things not envisioned when the laws were devised (internet commerce and bio-engineered organisms to cite two examples) it&rsquos equally likely that there will be some that truly aren&rsquot, and that shouldn&rsquot have been granted in the first place. Many agree that this is true for Solaia&rsquos Patent 318.