Earlier this year, online retailer Newegg knocked out a software patent that would reach the heights of infamy only after its death—a patent claiming to own the idea of an online “shopping cart.” Soverain Software had used that patent (and a few others) to score untold tens of millions in royalty payments. Its fully fleshed-out website is an empty husk, with phone numbers and e-mail addresses that do nothing. At trial, the company admitted to never having made a sale. Soverain is a group of lawyers who hold a batch of patents.
Newegg’s victory over Soverain was total; the patents wiped out were key to the troll’s success. Soverain, which was expecting more big payments after defeating Avon and Victoria’s Secret at trial, was now going to come up empty. “Now, nobody has to pay Soverain jack squat for these patents,” Newegg Chief Legal Officer Lee Cheng told Ars after the January ruling.
But Soverain actually had one final trick up its sleeve—a desperate attempt to pull victory from the jaws of defeat that was, in Cheng’s telling, effectively based on a typographical error. The appeals court had invalidated claim 34 of the “shopping cart” patent, not claim 35. Instead of allowing what Newegg said was a mistake to be corrected, Soverain tried to literally make a federal case out of it. The patent company asked for a re-hearing from the panel, as well as from the full “en banc” court, saying that after months and months of arguing with Newegg over the value and validity of claim 34, it was actually claim 35 that should have been considered all along.
This was a desperate, desperate ploy by Soverain, because we basically wiped out their franchise,” said Cheng, now that the last-ditch effort is finally dead. “They were expecting God knows how many hundreds of millions of dollars over time.”
Asked this week whether Soverain might continue its fight, Cheng himself appealed to an even higher power than the courts. “Please God, let Soverain file a petition for cert to the Supreme Court,” said Cheng. “That would be so funny. Please make my day.”