Bonum Certa Men Certa

Patents Roundup: Proxy Lawsuits, SCOTUS on Software Patents, Reform Agenda, and Lawyers Bypassing Alice

Summary: A look at recent developments in the US patent system and how they relate to software patents in particular

TAKING a break from EPO articles and looking again at the USPTO, here is a roundup of recent developments.



Proxies in Patent Lawsuits



Nearly a decade ago we looked into why and how SCO had received money from Microsoft to sue Linux (or large corporations that rely on GNU/Linux). We also kept a close eye on patent trolls which often operate as proxies against a competitor. See for instance Intellectual Ventures and Acacia. They're suspects.

"We also kept a close eye on patent trolls which often operate as proxies against a competitor."This new article by Joe Mullin shows that litigation by proxy is a problem more widespread than just Microsoft and GNU/Linux, for patent trolls cannot be sued, making them convenient proxies (Intellectual Ventures, which is Microsoft-connected, is estimated to have about 2,000 satellite firms for litigation and Acacia too has many 'branches'). Here is Mullin's new article:

Company wrests $100k payment from patent troll but has no idea who paid



[...]

Lumen View Technology sued several small businesses in 2013 over a patent that described little more than online "matchmaking" before its demands for quick $50,000 payoffs ran into a Santa Barbara startup called Graphiq (formerly FindTheBest).

Graphiq CEO Kevin O'Connor, who had also co-founded online ad giant Doubleclick, pledged to spend his own money to defeat Lumen View—and defeat them he did. O'Connor's battle with the patent-holding company has finally come to an end, with the still-unknown owners of Lumen View agreeing to pay him $100,000.


We remind people that the patent troll problem is more complex than people care to realise. A lot of this tends to be part of a broader anticompetitive picture. See what Microsoft did with Nokia and MOSAID.

"A lot of this tends to be part of a broader anticompetitive picture."Tim Wilson (not my TechBytes co-host) used to write prolifically about the patent troll problem. That was years ago after he was personally hurt by them. Here he is again contributing a new article to IP Watch. The title of his article (and premise) is "Companies Can Inoculate Themselves Against Patent Trolls Through Their Supply Chain," but it's better to just eliminate trolls, which requires eliminating software patents because of the close correlation between the two.

Legislative Remedies for Software Patents



This new article from yesterday covered the SCOTUS stance on software patents as follows:

SUPREME COURT ON SOFTWARE PATENTS: During oral arguments at the Supreme Court on Tuesday, Justice Stephen Breyer said it is "unfortunate" that Congress hasn't created special rules to deal with software patents, which are pervasive in the technology industry.

"Today's patent world is not a steam €­engine world," he said. "We have decided to patent tens of thousands of software products and similar things where hardly anyone knows what the patent's really about."


Related to SCOTUS as well, see "Supreme Court Oral Argument Reviewing Enhanced Damages" -- a subject that many sites tackled yesterday. To quote Patent Docs: "Earlier today, the Supreme Court heard oral arguments in two related cases: Halo Electronics, Inc. v. Pulse Electronics, Inc. (Supreme Court docket number 14-1513) and Stryker Corp. v. Zimmer, Inc. (Supreme Court docket number 14-1520). The issue on appeal in the Halo case was limited to Question 1 presented in the petition..."

"Speaking of SCOTUS, remember that Apple’s war on Android may soon reach SCOTUS level."The mass media covered this too, not just patent maximalists and (patent) law professors. Here is a useful overview from Patently-O):

Today the Supreme Court heard combined oral arguments in the willful infringement cases of:

Halo Electronics, Inc. v. Pulse Electronics, Inc., et al. (14-1513); and Stryker Corporation, et al. v. Zimmer, Inc., et al. (14-1520)


Speaking of SCOTUS, remember that Apple's war on Android may soon reach SCOTUS level. There is some misinformation about it out there. "Patenting company" is what patent maximalists now foolishly call Samsung; it also makes actual products, and it is not a patent aggressor, unlike Apple. These false narratives help distract from the reality of Apple's aggression, which is making 'smart' phones hugely expensive to everyone. To quote this new tweet from the Web Foundation, “1/3rd of the cost of a midrange smartphone is down to patent royalties. Time for reform” (real patent reform).

Patent Reform (Tackling Trolls, Not Patent Scope)



"Patent law firms are just trying to find ways around Alice, in order to patent software despite the new rules."A patent lawyer has just highlighted this article from a GOP-leaning site. It is against patent reform and the patent lawyer said "I agree" (only to be expected, as they profit from litigation).

Cheryl Wetzstein, "formerly national news reporter at The Washington Times," is speaking to some academics for this article (at least they're not just patent lawyers) and notes that "The recent death of U.S. Supreme Court Associate Justice Antonin Scalia could impact the fate of many bills, including the patent proposals."

Another GOP-leaning site, Fox News, approached this from the "troll" angle and wrote: "A decision to let the ruling stand will further incentivize patent trolls to go after small businesses, a devastating blow to small and minority businesses that are instrumental to U.S. economic growth. Letting the ruling stand will solidify legal precedent that will hinder entrepreneurship and create significant barriers for Hispanic and other minority owned businesses."

Patent Lawyers Prepare to Work Around the Rules



"Usually, following common sense, more litigation means less production because of allocation of financial and human resources."An article by Lewis Roca Rothgerber Christie LLP continues to show a phenomenon which we repeatedly highlight here. Patent law firms are just trying to find ways around Alice, in order to patent software despite the new rules. James Cosgrove, Legal Analyst at Juristat, has just published a piece titled "Defeating Alice with Data". To quote Cosgrove: "While all patent attorneys would like for Alice to be applied with consistency and predictability across all examiners and art units, the application of law is rarely predictable due to the personal experiences and preferences of individual examiners. However, there are tools that patent attorneys can use to at least get a head start on prosecution of software and business methods applications and market their expertise to clients who are looking for it. No strategy is going to guarantee a positive outcome in every prosecution, but patent attorneys can certainly increase their chances of success through careful study of the relevant data available to them."

Litigation Epidemic



Usually, following common sense, more litigation means less production because of allocation of financial and human resources. According to this new analysis, so far in 2016 "the top patent defendants is comprised entirely of tech or e-commerce companies, most with a consumer focus: Expedia, Apple, AT&T Mobility, T-Mobile US, Huawei USA, Samsung, HP, T-Mobile USA, ZTE and Huawei."

"With all these patent disputes no wonder a pair of shoes that costs just a few dollars to manufacture can cost as much as hundreds of dollars at the shops."Clothing companies too are battling over patents, based on this article about CAFC, Nike, and Adidas. To quote the MIP article: "The Federal Circuit provided guidance on motions to amend in inter partes review proceedings in its recent Nike v Adidas decision. PTAB observers are hopeful it is a sign the court will be harder on the Board’s resistance to substitute claims..."

With all these patent disputes no wonder a pair of shoes that costs just a few dollars to manufacture can cost as much as hundreds of dollars at the shops. A society and an industry more cooperative would go a long way in serving the customers (or "consumers" as some call them).

Recent Techrights' Posts

What's Very Vexing to GAFAM, EPO and Others Is That It's Incredibly Hard to Censor Us (and Nobody Ever Successfully Did That Before)
resist, do not capitulate
Receiving SLAPPs and Collecting Them Like Trophies (the SLAPPs Always Fail)
People who file lawsuits bring even more attention to themselves (or to embarrassing statements about them)
Year of GNU/Linux on the Laptop?
It's not happening only in Lenovo
What People Must Understand About the Open Source Initiative (OSI)
some facts about the Open Source Initiative (OSI)
More Copyright Lawsuits Against LLM Slop Providers and Suppliers of LLM Slopfarms Would Benefit Society
It's not just bad for the Web and for society; it's also legally dangerous
In defence of JD Vance, death of Pope Francis
Reprinted with permission from Daniel Pocock
Three Years in Prison for Disney Employee’s ‘Menu Hacking’: The Economic Fallout of Digital Menus
Reprinted with permission from Ryan Farmer
 
Microsoft Isn't on the Map in USSR
To them, it's either Google or Yandex
In Central America Windows Became a Small Force
These are countries where Windows used to have well over 95% of the "market"
Site May be Even Faster Now
It basically takes less than a tenth of a second to serve the page
Many of the Scandals Are Interconnected (Overlapping People and Corporations)
We're only getting started
Links 26/04/2025: General Assassinated in the Town of Balashikha, US Promoting Seafloor Mining
Links for the day
Links 26/04/2025: Facebook Layoffs Again, Remembering What's Real, and Say No to Mass Surveillance
Links for the day
Links 26/04/2025: NOAA Budget Cuts and "Dog Days Ahead"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 25, 2025
IRC logs for Friday, April 25, 2025
Links 25/04/2025: Slop Fatigue and Patent Judges Flocking to Fake, Unconstitutional and Illegal Kangaroo Court (UPC, Captured 'Justice')
Links for the day
Gemini Links 25/04/2025: Night Manager and Devuan in Hosting
Links for the day
Approaching 10,000 Articles/Pages Since Going Static
Trying to silence or derail the site was always a dumb strategy
Windows Falls to New Lows in Nicaragua, Now Below a Quarter (It Used to be Almost 100%)
Another all-time low for Windows
Microsoft is Shedding Off Loads of Staff and That Can be Dangerous Too
Working for Microsoft is a choice; nobody forces you to do it
Richard Stallman and the Unix Philosophy
When asked about systemd people must remember that RMS speaks as an active Board member of the FSF and also the founder of the FSF
The Cost (to Linux) of LLM Slop
Slop 'artists' like Fagioli are far from harmless
Links 25/04/2025: Ubisoft Spyware, Hegseth Fails at Tech on Every Level
Links for the day
Gemini Links 25/04/2025: Food Forest Update and Facebook Destroying the Net
Links for the day
Get Rid of Back Doors, Don't Obsess Over Bounties and Other Corporate PR Stunts (or Needless Reboot Rituals)
Security as a term has mostly lost its meaning due to repeated misuse for many years
Serial Sloppers Are Killing the Web (They Probably Don't Care, Either)
Slop is a disease on the Web
Streaming Apps Are “Investor Fraud” That Kills the Planet
Reprinted with permission from Ryan Farmer
Things Get Increasingly Nasty at Microsoft Ahead of the Fake Results and May's Mass Layoffs Wave
They try to get people to 'resign' so that they won't count as layoffs and the company's 'wellbeing' will seem better
IBM's Debt Ballooned by 8.5 Billion Dollars in Just 3 Months!
Hallmark of a company in a state of disarray, trying to spend its way out of trouble
Big Trouble in GNOME
even GNOME people admit the CoC went wrong
Slopping the Trough: Disney Plus Loses Billions and the Decline of Physical Media in America
Reprinted with permission from Ryan Farmer
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 24, 2025
IRC logs for Thursday, April 24, 2025
Links 24/04/2025: GAFAM Problems and No Peace (or Ceasefire) in Sight
Links for the day
Slopfarms on the Web Almost Always Generate Anti-Linux FUD When They Produce "Linux" Output
Welcome to the dying Web
Richard Stallman's Oxford Talk Has Just Ended, Here Are Some Photos
he might hop over to another European country
Gemini Links 24/04/2025: Birthday and Good Work of Academia in Esotericism
Links for the day
Links 24/04/2025: EU fines Apple and Facebook, Another Microsoft GitHub Security Blunder
Links for the day
New Article Explains How the GPL Came About and WordPress Having Copyleft Obligations
Having been involved in the WordPress development community since almost the beginning, I know why it chose the GPL and how it restricts abuse by Automattic
IBM Gained Almost 6 Billion Dollars in "Goodwill" Value in Just 3 Months, According to IBM
Congrats to the management!
In Belarus, Yandex is Now Measured as 50 Times More 'Popular' (by Usage) Than Microsoft
Yandex continues to gain, whereas Bing cannot even register at 1%. Last month it was registered or measured at a measly 0.65%.
IBM Cannot Lie to Shareholders Anymore
"I would not be surprised if we see a layoff every quarter this year."
Dr Richard Stallman (RMS) Gives Talk in Oxford University in 4 Hours
If you live nearby, go there (it's free as in gratis)
Using a Law Firm's Licence to Exercise Politics Through Frivolous SLAPPs and Nastygrams (to Silence People, Remove Pages, Demand Fake or Forced 'Apologies')
Things must be getting really bad when lawyers act for raving antisemites
We're Working to Make Full-Site Search Available
This site has over 1,000 'wiki' pages, many thousands of documents, several thousands of videos, and about 50,000 blog posts or articles. We need to make them easier to find/navigate.
Links 24/04/2025: IBM Loses Many Contracts, Intel to Lay Off Over 20% (Not Counting Those Who Leave 'Voluntarily')
Links for the day
Richard Stallman Can Explain to Oxford Artificial Intelligence Society Why LLM Slop is Not Artificial Intelligence and Why It Hurts Society
another 'crop' of LLM slop that damages GNU/Linux and facts
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 23, 2025
IRC logs for Wednesday, April 23, 2025