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06.28.13

Extortion Using Patents Increasingly Recognised as an Issue, Even by the FTC and SCOTUS

Posted in Antitrust, Microsoft, Patents at 4:15 am by Dr. Roy Schestowitz

Gavel in silk

Summary: The Supreme Court, unlike CAFC, gives new hope that Microsoft’s racketeering tactics will be dealt with as an antitrust matter

The CAFC may be very misguided on the issue of software patents (for which it is responsible in the first place) and this concurs with the trend we always see, having just seen the CAFC legitimising software patents again (specifically the ultramercial patent [1, 2, 3, 4]), striking a blow to the SCOTUS.

“The SCOTUS will give consideration to the notion of extortion with patents and avoidance of testing a patent’s validity.”Judge Rader, one who often defends software patenting and redefines “patent troll”, is being named in a post which says: “The majority opinion, written by Judge Rader, initially noted that it should be “rare” to dismiss a patent case at the pleading stage based on patent eligibility given the many factual issues that such an invalidity defense entails. The majority then reviewed patent eligibility jurisprudence, concluding that Section 101 defined broad categories of patent subject matter, that the definition of “process” itself was intended to be broad, and that judicially-created exceptions (laws of nature, physical phenomena, and abstract ideas) must be narrowly applied. The majority further stated that patent ineligibility must be proven under the high clear and convincing evidence standard.”

Another article about it says: “The Electronic Frontier Foundation started fighting against the Ultramercial patent in 2011, filing a brief with the appeals court stating that “[m]erely filing a patent application covering an idea that takes place on the Internet (especially without explaining any of the programming steps) does not somehow make an abstract idea (which is unpatentable) somehow not abstract (so it is patentable).”

“Microsoft, for instance, seemingly bribed B&N to avoid challenging of its patents).”“In its reaction to the ruling Friday, the EFF said, “It’s time for the Supreme Court to step in and tell the Federal Circuit once and for all that abstract ideas—such as a process for viewing ads before accessing copyrighted content—are unpatentable.””

The SCOTUS will give consideration to the notion of extortion with patents and avoidance of testing a patent’s validity. Microsoft, for instance, seemingly bribed B&N to avoid challenging of its patents). Will Hill shows B&N collapsing as he adds:

B&N is losing hundreds of millions of dollars after making a deal to settle Microsoft’s software patent extortion. So much for Nook, a tablet that showed a lot of promise.

“In a 5-3 Decision authored by Justice Breyer, the US Supreme Court has held that a rule-of-reason analysis applies to determine whether a reverse-payment patent settlement violates federal antitrust laws,” says the aforementioned article. “The FTC had asked the court to go further and rule that reverse payments are presumptively unlawful. A major factual question going forward in patent-settlement antitrust cases will be whether the patentee settled its lawsuit in order to avoid testing a patent’s weakness. Without additional pro-competitive benefits, such a settlement can be deemed anticompetitive under a rule-of-reason.”

This is good. We shall be haring more about it for sure.

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