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05.14.17

The US Supreme Court Consults USPTO Director Michelle Lee Regarding the Patent Trial and Appeal Board (PTAB) Which is Invalidating Software Patents With CAFC’s Approval

Posted in America, Patents at 5:05 pm by Dr. Roy Schestowitz

The Court of Appeals for the Federal Circuit (CAFC) continues to concur with PTAB about 80% of the time and sometimes goes even further by invaliding patents that PTAB deemed acceptable

Punch

Summary: Software patents continue to get knocked out by the Leahy-Smith America Invents Act (AIA) whose introduction of PTAB gave a helping hand to companies that are susceptible to abusive litigation (with bogus patents)

THE “AIA” reform, passed by Obama half a decade ago, has been good. It gave us the the Patent Trial and Appeal Board (PTAB). PTAB invalidates a lot of software patents (thousands of them), sending out the message or signaling the demise of such patents in general, owing to Alice from the US Supreme Court.

“PTAB invalidates a lot of software patents (thousands of them), sending out the message or signaling the demise of such patents in general, owing to Alice from the US Supreme Court.”As one can imagine and even expect, the patent microcosm is up in arms over this. It is trying hard to decapitate the USPTO and to shame the Court of Appeals for the Federal Circuit (CAFC) into slowing PTAB down (shame on Patently-O).

The other day, writing about AIA in this post, Patently-O took note of the US “PTO’s low-quality examination of software and business methods in the late 1990s and early 2000s.”

“The problem was, all along, the granting of any patents on software and business methods, irrespective of so-called ‘quality’ (whatever that means, it’s a distraction often used by proponents of software patents who look for excuses).”No, the problem isn’t low-quality “examination of software and business methods.” The problem was, all along, the granting of any patents on software and business methods, irrespective of so-called ‘quality’ (whatever that means, it’s a distraction often used by proponents of software patents who look for excuses).

Based on another post from Patently-O, Michelle Lee is still in charge of the USPTO (don’t believe villainous rumours and insults), which means that AIA/PTAB/reform is defended. Here is the relevant part:

After receiving party briefs in this case, the Supreme Court requested a responsive brief from the Michelle Lee in her role as PTO Director on the constitutionality of the AIA trial system. That brief has now been by the new acting Solicitor General Jeff Wall who handled a number of patent cases in private practice.

We certainly hope that the highest US court recognises that practicing companies love AIA (and Lee), whereas it’s the parasites who attack everything. We’ve looked around for news about PTAB just before the weekend and all we found was stuff about IPRs, CAFC, and Alice:

There happens to be a new CAFC case (nonprecedential) which Patently-O covered by stating: “In its final written decision, the PTAB sided with the patentee – holding that IPR-challenged claims were not obvious. U.S. Patent No. 6,945,013 claims 18-20 (aseptic bottling at > 100 bottles per minute). On appeal, Nestle has successfully argued that Board incorrectly construed the claim term “aseptic.””

“We certainly hope that the highest US court recognises that practicing companies love AIA (and Lee), whereas it’s the parasites who attack everything.”Patently-O tends to cherry-pick cases that help the patent maximalists, but that’s nothing new. By contrast, Patently-O covered this case where CAFC was going further than even PTAB, invalidating patents on software in spite of PTAB tolerating these.

Here is the Cisco petition:

After the PTO initiated an inter partes reexamination, the patentee (Cirrex) dropped the original claims (1-34) and added new claims (35-124) of its ‘082 patent.[1] In its final decision, the PTAB affirmed the examiner’s decision that most of the added claims were invalid as lacking written description support. The Board did, however, find five of the claims patentable. On appeal, the Federal Circuit partially reversed – finding all of the claims invalid as lacking written description support.

PTAB, based on another such example, helps fend off patent trolls that go after a patent trolls feeder, Ericsson. “In a non-precedential decision,” Patently-O showed, “the Federal Circuit has rejected IV’s procedural due process claim against the PTAB – holding that the PTAB is free to construe claims in ways that differ from any party proposal and without first providing notice of its off-book construction.”

“If Lee was replaced by someone like Battistelli, they would be doomed for ‘daring’ to reduce the number of patents (or so-called ‘production’).”Notice the role of Microsoft’s patent troll here (IV).

Software patents are generally dropping like flies as at PTAB, for instance, the “first quarter of this year saw the most inter partes reviews (IPRs) filed on record,” IAM admits, citing data from Lex Machina again. Here is the relevant part:

But which law firms lead the way in terms of their performance at the PTAB? Some data providers, such as Lex Machina, provide fairly comprehensive breakdowns of how many reviews a firm has filed and how they have fared for their clients, by tracking things like the numbers of cases they have had instituted, the number that have been denied and the number that have settled.

We certainly hope that PTAB (similar to the appeal boards at the EPO) will see a growing number of petitions. If Lee was replaced by someone like Battistelli, they would be doomed for 'daring' to reduce the number of patents (or so-called 'production').

IBM and Its Revolving Doors Lobby Are Plotting to Undermine Supreme Court Rulings to Restore Patentability of Software

Posted in IBM, Law, Patents at 4:22 pm by Dr. Roy Schestowitz

Truly malicious company that seeks to thwart democracy

IBM and the Holocaust
Yes, it’s a real book based on a true story

Summary: IBM has become so evil that it is now trying to steal democracy, label programmers “thieves”, and basically attack the rule of law by extra-judicially overturning a Supreme Court decision

THE previous post reinforced the trend of software patents dying in the US, irrespective of what the USPTO does (because the courts have the final word and the highest court said “no” to software patents in Alice).

“It is widely known that when large corporations want to accomplish something in politics they can just bribe (or “hire”) some politicians, e.g. to change the law.”A few days ago we became aware of a new push to pressure politicians into undoing Alice. It is widely known that when large corporations want to accomplish something in politics they can just bribe (or “hire”) some politicians, e.g. to change the law. As usual, IBM, Microsoft etc. (acting via their front groups) are trying to rob us all and undermine patent progress. There were some tweets about it, which triggered a flurry of communications with us about 4 days ago. It quickly started to become clear what was happening around that time.

“Apparently,” wrote a patent reformer (whom we respect), “it is already being heavily lobbied even though there is no bill yet. A successful bill would have to focus on bio, not software…”

This is “not a good sign,” Benjamin Henrion responded. “The big guys have already written the bill.”

Yes, this is how they operate. They did this in other countries too, e.g. in New Zealand. We wrote about that at the time.

“They did this in other countries too, e.g. in New Zealand.”So basically, a bunch of patent parasites and patent trolls want to maximise their damage to the industry and in order to achieve this they are trying hard to change the law. Looking for some earlier context we found this: “Congressional staffers at Stanford PAE conference: patentable subject matter reform will be the first patent bill introduced this Congress…”

Amazing? Yes. Surprising? No. We saw that coming.

Henrion responded, “the great return of a software patent bill written by the patent industry?”

Not if we raise awareness of this and fight back.

“Amazing? Yes. Surprising? No. We saw that coming.”Then came the “Swamp” friends of Watchtroll and his ilk, with tweets like this: “@USinventors proposal on subject matter eligibility is also shaping the Congressional discussion. Depends on TC Heartland & non judiciary” (TC Heartland is due soon).

Someone asked: “Any discussion about proposed legislation (i.e., what might be the definition of patent eligible matter)?”

“If IBM uses radical sites like Watchtroll (which mocks judges) to lobby for software patents while paying former officials to ‘buy’ the law, then IBM certainly turned us into its enemy (we used to be a friend).”Well, it didn’t take long for Watchtroll to advertise this, with IBM taking the lead, as usual. In fact, for IBM to associate with such people says a lot about IBM. If IBM uses radical sites like Watchtroll (which mocks judges) to lobby for software patents while paying former officials to ‘buy’ the law, then IBM certainly turned us into its enemy (we used to be a friend).

Don’t forget the role played by David Kappos, the former Director of the USPTO. David Kappos is now selling influence/access, thus disgracing the USPTO which he came from (he had come from IBM before that).

“David Kappos is now selling influence/access, thus disgracing the USPTO which he came from (he had come from IBM before that).”It’s not too expensive buying policy in the US. Corporations such as IBM, together with an IPO “task force” (that’s what they call it) do this right now. David Kappos — now bankrolled by IBM, Microsoft etc. — tries to make software patents legally enforceable again, using old euphemisms such as “clarity” (to make it seem like they don’t steal democracy and stomp on the Justices).

It didn’t take long for this to be promoted by IBM

As Henrion told the IBM manager, “it would show that Congress members are lackeys of large corporations, but that’s not new.”

“IBM is very, very evil now.”IBM is now aided by a lobbyist (revolving doors in USPTO, also paid by IBM before and after his time at the USPTO). It is purchasing (or at least trying to purchase) new laws so as to override the highest court.

What does that tell us about IBM? Has it ever gotten more benign than it was back in the days of extreme patent aggression, notorious help to the Nazi regime, and so much more? IBM is very, very evil now. IBM links to this puff piece from Patently-O, which said this: “According to at least one hearsay report, members of Congress are working toward a new patent reform bill on subject matter eligibility – likely partially following the models prepared by the IPO and pushed by Dave Kappos (among others). There is some chance that it will be introduced this month.”

Yes, “Dave Kappos”… he refers to him as though it’s a close friend. Dave…

“To IBM, it stops nowhere. They’re bullies. They have become huge parasites again.”IBM continues advocating software patents, saying just a short while ago: “If one can #patent a process implemented in circuits, the same should be true for a process implemented in #software”

No ambiguity here. IBM is an enemy of Free/Open Source software.

Henrion responded with, “then if it is implemented in software, mental acts should also be patentable. Where does it stop?”

To IBM, it stops nowhere. They're bullies. They have become huge parasites again.

“They once again hijack the word “fix” to mean break. They want to undo the fix.”Watchtroll, who has been working alongside IBM for a while, says: “Read (and sign) the U.S. Inventor petition to Congress to fix the U.S. patent system. http://www.usinventor.org/petition/”

So they already have a site up and Henrion says that “patent madness it means.”

They once again hijack the word “fix” to mean break. They want to undo the fix. We have noted this deceptive pattern for over a year. How misleading a hijack of words.

“Software patent bill [are] being written by IBM coming to Congress,” Henrion keeps warning this weekend. “Every programmer engaging in some form of logic for a living,” he writes, “needs to think about buying patent insurance…”

“It probably won’t take long for Microsoft to publicly join IBM in pushing for this “fix” [sic], which means making Patent Trolls Great Again.”Henrion has already been the victim. He is a programmer like myself.

We are deeply and utterly disgusted to see a sort of alliance between Watchtroll, IBM, and Patently-O too, promoting the attack on software developers. The other day Patently-O once again promoted old myths about patents, which are neither a right nor property. Using their misleading words, they keep calling those whom they rob “thieves”, alleging that people who write their own code are “stealing” (as opposed to trolls who shake them down for ‘protection’ money).

It probably won’t take long for Microsoft to publicly join IBM in pushing for this “fix” [sic], which means making Patent Trolls Great Again. Keep an eye on “MicrosoftIP” in Twitter (in the coming days, maybe even as early as tomorrow).

3 Years After the Alice Case at the Supreme Court the Plague of Software Patents is Easier to Cope With

Posted in America, Courtroom, Patents at 3:18 pm by Dr. Roy Schestowitz

YOU DON'T PURSUE SOFTWARE PATENTS WHEN THE COURTS KEEP REJECTING THEM

Summary: Litigation figures are down, rejection rates of software patents remain high, and only spin (e.g. cherry-picking) or constant lobbying can save those who used to profit from software patents

THE USPTO had granted a lot of software patents before Alice (it happened almost exactly 3 years ago) and it also continues to grant some. But courts are not tolerating these and this impacts the confidence level of companies that pondered suing with such patents. Later tonight we will focus on anti-Alice motions, but first, in the interests of chronology, let’s look at some recent developments related to software patents.

“Patents on MP3 Format Due to Expire” said a headline today. Actually, that mischaracterises somewhat what has just happened (we wrote about it several times this month). Still, it could be worse! We’ve just seen literally dozens of articles like these [1, 2, 3, 4] (on a Sunday!), claiming very wrongly that MP3 is “dead”… simply because patents expired. Fact-checking not needed anymore? It’s obvious that only the patents are dead (expired); that does not mean the format is dead. If anything, it’s now legally safer to use and it might spread more broadly as a result. We can’t help but wonder if dozens of headlines today (we saw a similar one about a week ago) claiming that MP3 now “dead” are part of a plan (or PR strategy) to move us all to newer, PATENTED formats (evergreening). “Vinyl has outlived the MP3″ says one headline, but who said MP3 is dead? It’s not. To quote the better among these otherwise-terrible articles:

MP3 took off in the late 90s as the digital music format. It then proceeded to slaughter the CD, and launch the file sharing revolution as well. It’s a proud format that has roots stretching all the way back to the early 1980s, when the possibility of sending music over ISDN lines was first considered. Now the patents on it are beginning to expire and its licencing program has been terminated.

[...]

However, now that more of the relevant patents are expiring, you can now expect MP3 support to be baked into more software. It may be more than a little late, with more advanced audio formats beginning to take over, but it’s great to know that Fedora, for one, is starting to include MP3 support with their releases.

Yes, so if anything, MP3 might now spread even further and faster. It’s not dead. What’s dead are the horrible software patent which harmed the adoption of MP3. One has to wonder if at least some of these patents could be invalidated using Alice. We’ll never know now, will we?

Pressing on, watch IAM using the “IoT” hype as an excuse for creating new patent thickets with software patents in them (same tricks are used elsewhere, by patenting software as “AI”, “cloud” etc.) and here are the participants:

Qualcomm is also in second place on quantity – though its 2,880 assets lag far behind the Samsung total. LG, Huawei and Intel round out the top five in a top 20 list that also features some of the world’s other largest patent owners, such as ZTE, Ericsson, Philips, IBM and Microsoft.

So here we have yet another thicket of patents, most of which are likely not eligible under Alice (or Section 101). But good luck asking PTAB to review thousands of patents in one fell swoop!

We are disappointed but not surprised to see the patent microcosm virtually ignoring RecogniCorp LLC v Nintendoa precedential CAFC decision that can invalidate a lot of software patents. Ten days later Watchtroll finally mentioned it by stating:

RecogniCorp, LLC v. Nintendo Co., (Fed. Cir. Apr. 28, 2017) (Before Lourie, Reyna, and Stoll, J.) (Opinion for the court, Reyna, J.) The Federal Circuit affirmed the district court’s decision that RecogniCorp’s patent claims are directed to an abstract idea, and do not contain an inventive concept sufficient to make them patent-eligible under 35 U.S.C. § 101.

Why has so much of the patent microcosm ignored it or brushed it under the rug? Obviously they just hope that this precedential decision will simply go away.

It is looking very grim for software patents, as even vocal proponents of software patents admit. See this new article which states:

Functional language often cannot be avoided in software patent claims. But there is functional claiming and then there is simply claiming functionality. This claim was written well before the 2010 Bilski decision –who knew then that claiming purely functionality was likely to be a problem, as long as the claimed functionality was novel and non-obvious? Well, today we have a reminder that, as much as possible draft your claims to recite not just the “what” of the invention, but the “how.”

No matter how they formulate their patents, even trying to bypass Alice, their software patents remain pretty worthless.

In the past few days alone the loudest proponents of software patents took note of newer cases where software patents dropped like flies.

  • “FDC loses §101 at PTAB bc all electronic financial transaction innovations r just “fundamental economic practices”” (link to decision here)
  • “IBM takes hit-another random “new grounds” 101 rejection at PTAB: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017002605-05-09-2017-1 … bc humans can mentally compute confidence vals” (link to decision here)
  • “typical PTAB nonsense: IBM overcomes Examiner error on prior art, but told § 101 bars eligibility https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2015003358-05-08-2017-1 …” (link to decision here)

Sensing anger and frustration? It’s not “random” (the above), it is very much consistent with the ruling of the Supreme Court. Funny how they refuse to acknowledge this…

“101 is the first filter,” Benjamin Henrion reponded to the above. “No need to go further.”

Watch this new IAM headline: “Alice blow means Asian university’s pioneering US patent enforcement drive may be over just months after it began”

No, Alice is not a “blow” but a blessing. But IAM’s bias (servitude to patent trolls) is showing again. Here is the relevant part:

A Northern California district court has granted a motion to dismiss a patent infringement case brought by an affiliate of Seoul-based Sungkyunkwan University after finding one of the asserted claims invalid. The court’s decision represents a significant setback for Sungkyunkwan’s maiden assertion campaign – one of two launched in the US by Korean universities in recent months.

Sungkyunkwan University, Research & Business Foundation filed suits against Canadian 3D imaging product developer LMI Technologies and German optics company Carl Zeiss in early December last year, alleging infringement of its US patent 7,957,639 (‘Method and system for determining optimal exposure of structured light based 3D camera’). It followed up with further lawsuits using the same patent later in the month, targeting US-based Hexagon Metrology, Quebec City-based Creaform 3D, Luxembourg’s Artec Group, and China’s Hangzhou Shining 3D and its distributor MakerTree 3D.

However, the assertions appear to have been dealt what may well be a mortal blow, just months since Sungkyunkwan set off on its groundbreaking campaign. According to court documents viewed by IAM using Lex Machina, in late March counsel for LMI filed for a motion to dismiss the university’s case on the basis that the first claim of the patent-in-suit – the only claim being asserted – “fails to recite eligible subject matter” and therefore should be considered invalid.

So they put a lot of their eggs in the software patents basket and gambled their future on a pile of rubbish. It happens…

Here is another new ‘gem’ from IAM, regarding patent hoarders which produce nothing but lawsuits:

The recent announcement of a massive new IP investment fund launched by the IP Office of Singapore confirms that there is still significant interest in the business model, and ID Ventures can claim to be one of the first to implement it in this region. With ID’s core patent business sailing into potentially controversial waters, it is a nice auxiliary to have.

Maybe they should focus on creating things, not just writing patents.

The other day we saw this new request for participation in a survey about patents on business methods, almost siblings of sofwtare patents. Asking the patent microcosm (the site’s audience), however, will give them highly warped results. To quote: “The Covered Business Method Review program is a transitional program that sunsets in 2020. These AIA trails have been extremely effective at knocking-out patents that qualify for review. The question of the day is whether Congress should extend and possibly expand the program beyond the 2020 deadline and beyond the non-technological financial services limitations.”

Whatever comes out of this survey will be somewhat of a joke because almost every person who takes part in the survey is a dyed-in-the-wool patent maximalist. What is the purpose of this survey? The usual lobbying? Disguised as an ‘academic’ ‘study’ from Professor Crouch and his ilk?

Either way, the good news is that no matter the spin, the numbers (from the USPTO and the courts) tend to speak for themselves. Lex Machina, which is run by pro-reform academics, keeps track of such numbers. These numbers show that the patent maximalists are losing their grip on the system. As MIP put it the other day, “ANDA patent litigation fell 32.5% in 2016″. To quote what’s not behind a paywall:

A report from Lex Machina reveals Hatch-Waxman/ANDA case filing dropped last year. It also revealed the busiest pharmaceutical companies and law firms for ANDA litigation

No joke would be complete, however, without something from IAM, a site where up is down, down is up, extortion is “agreement”, and Alice is a “blow” (see above). Watch how IAM, the think tank of patent trolls, tries to spin the above decline (in lawsuits collateral) as an increase. This is the hilarious part:

Damages in patent infringement lawsuits fell in 2016 compared with the year before according to the 2017 edition of PwC’s annual Patent Litigation Study. This may indicate that if conditions are improving for patent owners in the US, court awards are yet to reflect this.

But they are demonstrably not improving. Why is IAM in such deep denial about this? Someone, please, call the nut house warden…

The Attacks of Patent Trolls as Outlined in the Media This Past Week

Posted in America, Asia, Europe, Patents at 2:13 pm by Dr. Roy Schestowitz

When a fossil of an ‘industry’ demands ‘protection’ money…

Organisms

Summary: An outline of some of the latest troll cases to be aware of and their consequences too (e.g. software patents being used to literally shut down entire programs)

THERE is no lack of stories about patent trolls. I spoke to one likely victim on the phone today for almost an hour. Patent trolls are not a US-only problem, but they often exploit patents granted by the USPTO because a lot of businesses operate in (if not based in) the US.

Today’s outline will be split for easier digestion. We probably won’t be covering EPO issues for a few days to come due to travel, but some time in the near future we are going to show that EPs too facilitate patent trolls, more so over time. Patent trolls are a growing problem in Germany, for instance, and definitely (in a very big way) in China.

Cloudflare

I often protest against Cloudflare, which I unfortunately have to depend on at work (many clients use it). Cloudflare and I are no friends, but now that Cloudflare is a victim of patent trolls it’s difficult to not have some sympathy or empathy. Yes, Cloudflare too — like many companies of its size — has become a victim of patent trolls with software patents of the “Internet” variant (like old ideas “over the Internet”). Found via this tweet was an article about it, showing that Blackbird is once again trying to destroy legitimate companies (we wrote about Blackbird before):

Cloudflare says it will go above and beyond to destroy what it claims is a uniquely dangerous patent troll.

The troll in question is Blackbird Technologies LLC, a law firm based in Boston, US. It has accused Cloudflare of ripping off a patent it owns on internet communications.

Crucially, Cloudflare CEO Matthew Prince said the battle between his company and Blackbird is over more than just one infringement claim: Blackbird’s approach to poses a serious threat to other tech companies, and, we’re told, it must be stopped.

“They are a very dangerous new breed of patent troll different from what we have seen before,” Prince, himself a former lawyer, told The Register. “This is a perfect innovation killing machine.”

The original from Cloudflare says that “[o]n March 20th, Cloudflare received our first patent infringement claim: Blackbird Tech LLC v. Cloudflare, Inc. Today we’re filing our Answer to that claim in a federal court in Delaware. We have very strong arguments we will present in the litigation, mostly because the patent asserted against us does not have anything to do with our technology.”

We’ve long written about Blackbird; it’s a nasty, horrible patent troll. It needs to be purged. “Worse still,” Cloudflare explains, “Blackbird is a new, especially dangerous breed of patent troll. Like the dinosaur in the latest Jurassic Park movie, a synthetic combination of Tyrannosaurs and Velociraptor, Blackbird combines both a law firm and intellectual property {sic} rights holder into a single entity. In doing so, they remove legal fees from their cost structure and can bring lawsuits of potentially dubious merit without having to bear any meaningful cost. In other words, Blackbird’s new breed of entity is specifically designed to add leverage and amplify the already widely maligned problem of patent trolling.”

Good luck to Cloudflare and let’s hope that they invalidate this patent, which would otherwise be used against other innocent victims. Cloudflare might need to spend some money on this (it already fights against various sorts of censorship in court) and if it wins the case, the PR karma can help offset the losses (legal bills).

GoDaddy

GoDaddy has become a rather large Internet company and like most Internet companies GoDaddy is an attractive target for trolls. Yes, GoDaddy too is coming under software patent attacks from patent trolls. It was covered by The Register (same as above), which said:

Domain registrar and host GoDaddy has won its battle with a patent-holding company that had accused it of violating a handful of claims related to basic email functions.

Let’s hope GoDaddy fights back against this, even if this requires going to higher courts (more expensive).

Netflix

Netflix, like GoDaddy and Cloudflare, is a company that I strongly dislike for several different reasons, but now that it’s attacked by patent trolls I feel compelled to take its side. With software patents disguised as “cloud”, as is commonly the case these days, Netflix is vulnerable to such a lawsuit.

As this article put it, “using cloud computing to do business may get you sued by patent trolls in the District Court for the Eastern District of Texas.” [via]

Notice the pattern. All the above are software patents. That’s just what patent trolls so habitually use.

Moom

Leaving aside those large companies that have reasonably deep pockets, watch what happens to the Moom developers. They don’t have deep pockets, so a lawsuit (or threat thereof) immediately kills the software. We have covered many such examples in the past, ranging from plugins and code samples to complete applications. Software patents can often doom an entire application. Sometimes the developers are not even allowed to speak about what happened (for fear of being sued for breaking the silence).

“We just had to remove Moom from sale due to a broad software patent,” wrote the developer. “Pissed doesn’t begin to describe my mood.”

The number of comments has increased considerably since we first saw it. “Software patents,” one person emphasised, are the culprit here. “Moneymakers for non creating people. Good luck! Hope it will be fixed soon!”

Here is the corresponding blog post about it:

Tonight we received notice that Moom is in violation of US patent number 8434019, Apparatus and method for positioning windows on a display. Yes, someone has patented positioning windows on a screen via a grid. Given we’ve been notified of a patent violation, we have no choice but to remove Moom from sale, effective immediately.

Honestly, we have no idea how to proceed here—the notice arrived at 8pm on a Friday evening, meaning it will be a few days until we can even speak to an attorney about our options, if any. We’re not a big company by any stretch, and certainly don’t have the resources for a patent fight.

Facebook

Facebook is a very malicious company, including on the patent front. But that does not mean that we should celebrate when patent trolls want to enrich themselves using Facebook, having already enriched themselves because Apple and Microsoft paid. As Reuters have just put it, “Patent firm Mirror Worlds targets Facebook in latest lawsuit” and here is a key part:

Patent licensing firm Mirror Worlds Technologies LLC on Tuesday sued Facebook Inc for infringing software patents Apple Inc and Microsoft Corp have already paid a combined $30 million to license.

The more money they receive, the hungrier they get.

Microsoft

Microsoft, in the mean time, patents creepy stuff [1, 2
3, 4] which reveals plans to spy on one’s meal, not just people. Incredible! Incredibly spooky. Maybe such patents will one day be passed to trolls; Microsoft loves passing patents to trolls.

Statistics

Numbers associated with trolls continue to be alarming. As this tweet put it the other day: “Of the 29 patent suits filed yesterday, 25 were filed by patent trolls — that’s 86%. It’s time to #FixPatents”

This is pretty normal. The proportion of patent lawsuits that are filed by trolls is very high.

What will it take to weed out the trolls? There is no secret formula.

When patent law firms dump patent trolls (which happens) there is this interesting situation which Patently-O remarked on a few days ago. It said: “I’ve discussed a few times this fight over whether a patent assertion entity should be required to pay full hourly fees, or anything, to a firm that dumped it after losing the case on summary judgment, when the client hired another firm, got the case reversed on appeal by paying hourly rates to the new firm, and later settled the case for significant money.”

The problem is, each time a law firm rejects such business (it does happen) the troll will turn to less ethical and potentially nastier firms.

See this new article from Mobile Mag. “Eighty percent of patents litigated by PAE’s are acquired from operating companies through bankruptcies,” it says. Here are some of the interesting figures:

The PAE or patent assertion entity problem is big and growing, posing a threat to startups and established companies alike, costing companies millions in defensive litigation fees and diverting money that would be better spent on innovation. However, unlike big companies with money to spend on litigation, PAE’s or “patent trolls” greatly affects startups and small entrepreneurs due to patents with supposedly questionable quality. More than 10,000 companies have been sued at least once by a patent trolls, and these PAE trolls file 84 percent of high-tech patent lawsuits a year. Over the past decade, there has been a 500% growth in patent troll lawsuits, and research from the Boston University School of Law found that PAE litigation results in $80 billion in lost wealth annually.

[...]

It’s also a reactive course of action. It protects the defendant company, but it is not the only way to combat the patent troll problem as a whole. Eighty percent of patents litigated by PAE’s are acquired from operating companies through bankruptcies, special funds, or even through a direct sale if a company is looking to boost its revenue. Companies, because of financial pressure or to recoup expenses upon folding, might sell off their patents or license the assertion rights to a PAE for a percentage of any money extracted. Cutting off this supply is one way to go about fighting PAE’s.

How can one defend oneself? It certainly has become rather hard.

“More than 10,000 companies” have experienced lawsuits from patent troll/s, according to another new report which says: [via]

More than 10,000 companies have been sued at least once by a patent troll, and patent trolls file 84 percent of high-tech patent lawsuits a year. Over the past decade, there has been a 500 percent growth in patent troll lawsuits, and research from the Boston University School of Law found that PAE litigation results in $80 billion in lost wealth annually.

See where the money goes and comes from? What is the use of that?

China Replaces US as Trolls’ Hub

We have recently been writing many articles about SIPO’s misguided policies, which are guaranteed to tax the whole Chinese industry for the sake of trolls and law firms. Yes, patent maximalism in China is now killing startups and companies in China, just as we predicted last year. Even IAM, which promotes this, cares to admit that by stating that “YouOn was a relatively late entrant to China’s billion dollar bike sharing market, but it hoped to be the first such company to go public. Now, the Jiangsu-based firm’s share float is on hold after an individual inventor’s patent suit and complaint to regulators caused a minor media storm. Bringing patent suits against companies about to go public is certainly not a new strategy, but the environment in China could make it a particularly effective one there.”

Thankfully, the political momentum in the US right now (and media framing) seems to be curbing or at least slowing down trolls. See this new article from lobbyists’ press. [via]

For a change, it gives a platform not to some lobbyists (it often spews out patent propaganda from patent politicians) but to “Austin Meyer is the owner and developer of X-Plane, a flight simulator based in South Carolina. Michael Skelps is the General Manager of Capstone Photography based in Connecticut. Eric Rosebrock is the developer of iDrumTech and other apps, and is based in Florida.”

To quote some portions:

As three entrepreneurs from South Carolina, Connecticut and Florida working in different lines of business, we have encountered a variety of stumbling blocks in starting our own companies. But one barrier in particular has challenged our abilities to thrive: abusive litigation from patent trolls.

We have seen firsthand how our broken patent system incentivizes patent trolls to target small businesses with frivolous and onerous litigation. Unlike entrepreneurs who strive to bring their innovations to better consumers’ lives – bringing jobs and other benefits to their local communities in the process – patent trolls do not contribute anything of value to society. Instead, they simply buy up vague, low-quality patents – many of which never should have been granted in the first place – and use them to launch patent infringement litigation against innovative businesses.

[...]

It’s time for Congress to once and for all close the loopholes that patent trolls exploit to target American businesses and to preserve our ability to challenge the low-quality patents wielded against us. By supporting the important gains that the courts and the U.S. Patent and Trademark Office have started to make in cleaning up our broken system, as well as legislative reform efforts, members of Congress can have a real impact on the strength and vitality of the small businesses in their districts, states and around the country. Patent trolls impose a tax on innovation; remove this burden, and watch Main Street businesses thrive.

We predict that in the coming years the overall number as well as proportion of patent troll lawsuits in the US will decline, whereas in China everything will go up. Up litigation-wise! That’s not a desirable thing, unless one works in the patent ‘industry’ (a predator).

Links 14/5/2017: Linux 4.12 RC1 and KDE Frameworks 5.34.0

Posted in News Roundup at 1:11 pm by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

Free Software/Open Source

  • Insomnia Is Now Open Source

    Today, I’m happy to announce that the Insomnia desktop app is now open source software under the GPLv3 license! The source code is hosted on GitHub for your viewing pleasure.

  • Bookmarks for Nextcloud 0.10.0 released

    I am happy to announce the availability of Bookmarks for Nextcloud 0.10.0! Bookmarks is a simple way to manage the remarkable websites and pages you come across on the Internet. Bookmarks 0.10.0 provides API methods to create, read, update and delete your bookmarks as well as compatibility with upcoming Nextcloud 12, next to smaller improvements and fixes.

  • Coreboot Ported To Another Core 2 Era Motherboard: G41C-GS

    If you happen to have an ASRock G41C-GS still in use or tucked away in your closet, this older motherboard for Intel Core 2 CPUs now has support for Coreboot to free the proprietary BIOS of the motherboard. Or if you don’t but still have other parts available, this motherboard is still available from a few online shops.

  • Events

  • Web Browsers

    • Mozilla

      • Firefox 57: new Photon design screenshots

        The following article gives you a glimpse of the upcoming Photon design of the Firefox web browser which will come out later this year.

        Mozilla plans to make Firefox 57 a milestone release. It is the version of Firefox in which the cut is made that leaves legacy add-ons behind, and also the Firefox version that will feature a design update.

        This design update is called Photon, and we talked about this previously already here on Ghacks Technology News.

      • Firefox vs Chrome & Other Browsers

        Not too many years ago, Firefox was king of the jungle. Sadly, this is no longer the case. Is Chrome the browser to beat in 2017 on the Linux desktop? Can Firefox or other alternatives possibly make a dent in Chrome’s reign? I examine this matter closely.

      • Firefox vs Chrome & Other Browsers | Feedback Hangouts Video
  • Databases

  • OnlyOffice/LibreOffice

  • BSD

    • pfSense 2.5 and AES-NI

      We’re starting the process toward pfSense software release 2.3.4. pfSense software release 2.4 is close as well, and will bring a number of improvements: UEFI, translations to at least five lanuguages, ZFS, FreeBSD 11 base, new login page, OpenVPN 2.4 and more. pfSense version 2.4 requires a 64-bit Intel or AMD CPU, and nanobsd images are no longer a part of pfSense as of version 2.4.

  • FSF/FSFE/GNU/SFLC

  • Licensing/Legal

    • Machine learning for lawyers

      Machine learning is a technique that has taken the computing world by storm over the last few years. As Luis Villa discussed in his 2017 Free Software Legal and Licensing Workshop (LLW) talk, there are legal implications that need to be considered, especially with regard to the data sets that are used by machine-learning systems. The talk, which was not under the Chatham House Rule default for the workshop, also provided a simplified introduction to machine learning geared toward a legal audience.

  • Openness/Sharing/Collaboration

    • Open Hardware/Modding

      • Hackaday Prize Entry: Open Source Electrospinning

        Electrospinning is the process of dispensing a polymer solution from a nozzle, then applying a very high voltage potential between the nozzle and a collector screen. The result is a very, very fine fiber that is stretched and elongated down to nanometers. Why would anyone want this? These fibers make great filters because of their large surface area. Electrospinning has been cited as an enabling technology for the future of textiles. The reality, though, is that no one really knows how electrospinning is going to become a standard industrial process because it’s so rare. Not many labs are researching electrospinning, to say nothing of industry.

  • Programming/Development

    • Oracle crushed in defeat as Java world votes ‘No’ to modular overhaul

      The database goliath has lost a Java Community public-review ballot by 13 to 10 that was to have approved its Java Platform Module System (JPMS) specification as a final draft. Executive Committee members ignored dire warnings from Oracle spec lead Mark Reinhold in an open letter where he claimed that a “no” vote would not only delay Java 9 but also be a “vote against the Java Community Process itself”.

      The JSR, number 376, needed a two-thirds majority to pass.

      In that bluntly worded letter, Oracle’s Java platform chief also chastised IBM and Red Hat for suggesting that they might vote against JPMS.

Leftovers

  • Science

    • Toddlers’ screen time linked to speech delays and lost sleep, but questions remain

      It turns out that about 1 in 5 of the toddlers used handheld screens, and those kids had an average daily usage of about a half hour. Handheld screen time was associated with potential delays in expressive language, the team found. For every half hour of mobile media use, a child’s risk of language delay increased by about 50 percent.

  • Health/Nutrition

  • Security

    • Major cyber attack hits companies, hospitals, schools worldwide

      Private security firms identified the ransomware as a new variant of “WannaCry” that had the ability to automatically spread across large networks by exploiting a known bug in Microsoft’s Windows operating system.

    • Massive cyberattack hits several hospitals across England
    • Rejection Letter

      We start with a shadowy US government agency, the NSA, systematically analyzing the software of the biggest American computer companies in search of vulnerabilities. So far, so plausible: this is one of the jobs of an intelligence and counter-espionage agency focussed on information technology. However, instead of helping Microsoft fix them, we are supposed to believe that the NSA hoard their knowledge of weaknesses in Microsoft Windows, a vitally important piece of their own nation’s infrastructure, in case they’ll come in handy againt some hypothetical future enemy. (I’m sorry, but this just won’t wash; surely the good guys would prioritize protecting their own corporate infrastructure? But this is just the first of the many logical inconsistencies which riddle the back story and plot of “Zero Day”.)

    • SambaXP 2017: John Hixson’s Reflection

      The next talk was given by Jeremy Allison on the recent symlink CVE. Jeremy explained how it was discovered and the measures that were taken to fix it.

    • Microsoft issues ‘highly unusual’ Windows XP patch to prevent massive ransomware attack
    • Is it prudent to ask if Britain’s nuke subs, which also run Windows XP, have also been hit by ransomware?

      Let’s reword this to drive the point home. How likely is it that the United States NSA, through its persistent interest in keeping us unsafe, has managed to hand control of Britain’s nuclear weapons platforms to unknown ransomware authors, perhaps in Russia or Uzbekistan?

    • Current wave of ransomware not written by ordinary criminals, but by the NSA

      The lesson here is that the NSA’s mission, keeping a country safe, is in direct conflict with its methods of collecting a catalog of vulnerabilities in critical systems and constructing weapons to use against those systems, weapons that will always leak, instead of fixing the discovered weaknesses and vulnerabilities that make us unsafe.

    • Wana Decrypt0r Ransomware Outbreak Temporarily Stopped By “Accidental Hero”

      A security researcher that goes online by the nickname of MalwareTech is the hero of the day, albeit an accidental one, after having saved countless of computers worldwide from a virulent form of ransomware called Wana Decrypt0r (also referenced as WCry, WannaCry, WannaCrypt, and WanaCrypt0r).

    • DDOS attacks in Q1 2017

      In Q1 2017, the geography of DDoS attacks narrowed to 72 countries, with China accounting for 55.11% (21.9 p.p. less than the previous quarter). South Korea (22.41% vs. 7.04% in Q4 2016) and the US (11.37% vs. 7.30%) were second and third respectively.

      The Top 10 most targeted countries accounted for 95.5% of all attacks. The UK (0.8%) appeared in the ranking, replacing Japan. Vietnam (0.8%, + 0.2 p.p.) moved up from seventh to sixth, while Canada (0.7%) dropped to eighth.

    • Applied Physical Attacks and Hardware Pentesting

      This week, I had the opportunity to take Joe Fitzpatrick’s class “Applied Physical Attacks and Hardware Pentesting”. This was a preview of the course he’s offering at Black Hat this summer, and so it was in a bit of an unpolished state, but I actually enjoyed the fact that it was that way. I’ve taken a class with Joe before, back when he and Stephen Ridley of Xipiter taught “Software Exploitation via Hardware Exploitation”, and I’ve watched a number of his talks at various conferences, so I had high expectations of the course, and he didn’t disappoint.

    • Intel’s zero-day problem
    • Reverse-engineering the Intel Management Engine’s ROMP module

      Last month, while I was waiting for hardware to arrive and undergo troubleshooting, I had some spare time to begin some Intel ME reverse engineering work.

      First, I need to give some shout out to Igor Skochinsky, a Hex-Rays developer, who had been working on reverse engineering the Intel ME for a while, and who has been very generous in sharing his notes and research on the ME with us, which is going to be a huge help and cut down months of reverse engineering and guesswork. Igor was very helpful in getting me to understand the bits that didn’t make sense to me.

    • Intel AMT on wireless networks

      More details about Intel’s AMT vulnerablity have been released – it’s about the worst case scenario, in that it’s a total authentication bypass that appears to exist independent of whether the AMT is being used in Small Business or Enterprise modes (more background in my previous post here). One thing I claimed was that even though this was pretty bad it probably wasn’t super bad, since Shodan indicated that there were only a small number of thousand machines on the public internet and accessible via AMT. Most deployments were probably behind corporate firewalls, which meant that it was plausibly a vector for spreading within a company but probably wasn’t a likely initial vector.

      [...]

      Case 2 is the scary one. If you have a laptop that supports AMT, and if AMT has been provisioned, and if AMT has had wireless support turned on, and if you’re running Windows, then connecting your laptop to a public wireless network means that AMT is accessible to anyone else on that network[1]. If it hasn’t received a firmware update, they’ll be able to do so without needing any valid credentials.

    • Intel declared war on general purpose computing and lost, so now all our computers are broken

      It’s been a year since we warned that Intel’s Management Engine — a separate computer within your own computer, intended to verify and supervise the main system — presented a terrifying, unauditable security risk that could lead to devastating, unstoppable attacks. Guess what happened next?

      For the past week, the IT press has been full of news about the AMT module in the Management Engine making millions of systems vulnerable to local and remote attacks, with a firmware update to disable the module as the only really comprehensive solution. But AMT is only one of the many components of ME, and every one of them could have a vulnerability as grave as this one — and Intel is not offering any way to turn off ME altogether, meaning that there’s a lot of this in our future.

      ME is a brilliant example of why declaring war on general-purpose computing is a terrible idea. There are lots of reasons to want a computer that can only run some programs (instead of every program): preventing poisoned operating systems and other malware, preventing game cheating, enforcing copyright restrictions (DRM), etc… Every one of them is presented as a use-case for ME.

    • OSS-Fuzz: Five months later, and rewarding projects
    • USN-3285-1: LightDM vulnerability
    • generic kde LPE
    • QSB #30: Critical Xen bugs related to PV memory virtualization (XSA-213, XSA-214)
    • Europe is living under Microsoft’s digital killswitch

      All across Europe, from Finland to Portugal, Ireland to Greece, governments rely on Microsoft software. As their digital systems grow in size and importance, countries are becoming increasingly dependent on this single American corporation. But what consequences does this “lock-in” have? What risks does it pose for the security of European data? And what can governments do to counter it?

      It’s estimated that Microsoft makes around two billion euros in Europe every year, just from its business with the public sector. In 2012 the European Commission released a report that stated that 1.1 billion euros were unnecessarily lost by the European public sector due to being locked-in in business with IT system providers.

  • Defence/Aggression

  • Finance

    • Kevin McKenna: Giving huge IT deal to foreign firm is a betrayal of Scotland [Ed: Microsoft...]

      CGI was at the centre of the massive IT catastrophe which left around 20,000 farmers without their farm subsidy payments, driving many to the edge of ruin. Audit Scotland, which produced a report into the shambles, warned that the incomplete £178m system, designed to process common agricultural policy payments of £688m a year, was at risk of running out of money before it had met the European Commission deadline.

    • The Windows Store is looking a lot like the future of Windows

      Oh, and there are some big benefits for Microsoft if it can pull this off, too, given that the company gets a nice 30 percent cut of app purchases.

  • AstroTurf/Lobbying/Politics

  • Censorship/Free Speech

  • Privacy/Surveillance

    • This Is the Secret Court Order That Forced the NSA to Delete the Data It Collected About You

      A newly released court opinion from the secretive Foreign Intelligence Surveillance Court (FISC) shows that for years the NSA improperly and perhaps illegally surveilled Americans. The court order triggered the surprise announcement two weeks ago that the agency would be severely scaling back its domestic surveillance and destroying previously collected data on Americans.

    • Their View: NSA stops one abuse, but many remain

      The National Security Agency has decided to halt a controversial surveillance program, but this was just the tip of an iceberg of government abuses of privacy and due process.

    • Report: NSA Analysts Frequently Broke Rules on Intelligence Collection

      When searching intelligence data, analysts from the National Security Agency failed to follow the rules “with much greater frequency” than was previously disclosed, documents published by the Office of the Director of National Intelligence show.

      The secretive Foreign Intelligence Surveillance Court accused the NSA of a “lack of candor” when reporting those failures, which are a serious concern for the Fourth Amendment.

      During a preliminary review of just a few months in 2015, analysts running searches on emails and other digital communications vacuumed up from undersea internet cables frequently violated Americans’ privacy—albeit unintentionally.

    • Met Police use of Indian hackers probed by watchdog

      Undercover counter-extremism officers used hackers in India to access the emails of journalists and environmental activists, it has been claimed.

    • How to escape the online spies [iophk: "block Facebook at the firewall"]

      And that’s just the start of it. Experts warn that, in the future, your online activity could be taken into consideration when you apply for a loan – or for a job.

    • Young children unconcerned about digital tracking by strangers [iophk: "*cough*facebook*cough*"]

      In contrast, the children did not express such negativity, overall. The youngest children (4-7 years) were positive about someone tracking others’ possessions. In fact, children were more negative about someone merely placing a mobile GPS device on an object and not tracking it than about someone placing the device in order to track the object, Gelman said.

    • NHS cyber attack: Edward Snowden says NSA should have prevented cyber attack

      Edward Snowden has blamed the National Security Council for not preventing a cyber attack which infiltrated the computer systems of organisations in 74 countries around the world.

      In a tweet, the National Security Council (NSA) whistleblower said: “Despite warnings, @NSAGov built dangerous attack tools that could target Western software. Today we see the cost.”

  • Civil Rights/Policing

    • [Old] Raif Badawi

      First detained on apostasy charges in 2008, Mr. Badawi was released after a day of questioning. He was arrested on June 17, 2012, on a charge of insulting Islam through electronic channels and brought to court on several charges including apostasy, a conviction which carries an automatic death sentence. Human Rights Watch stated that Badawi’s website had hosted material criticizing “senior religious figures.” Mr. Badawi had also suggested that Imam Muhammad ibn Saud Islamic University had become “a den for terrorists.”

    • ‘We’ll not be safe with Indonesia,’ says West Papua’s Benny Wenda

      In its rush to claim former Dutch colonies in the Asia-Pacific region following West Papua’s self-declared independence from the Netherlands in late 1961, Indonesia has subjected West Papua to continued human rights violations.

      [...]

      With foreign media all but denied access to West Papua – despite apparent lifting of restrictions by President Joko Widodo in 2015 – much of Indonesia’s atrocities remain secret, hidden.

    • How one obscure court case could decide the future of internet business

      In August, the U.S. Court of Appeals for the 9th Circuit dealt the Federal Trade Commission a major blow by calling into question one of the consumer protection agency’s most important powers. The court said the FTC should be banned from regulating a company if even a small part of that firm’s business is regulated by the Federal Communications Commission as a telecom service, otherwise known as a “common carrier.”

  • DRM

    • Anti-DRM artists march on the World Wide Web Consortium today

      Today, activists will gather in Cambridge, Mass to march to the offices of W3C Director Tim Berners-Lee to urge him to keep DRM out of the standards for the open web.

      The controversial project to standardize DRM for streaming video on the web started in 2013 and culminated last month with a poll by W3C members whose results are confidential (though the W3C has chosen to publish the outcomes of previous polls and may yet do so for this one).

      Many of the members who voted in that poll endorsed a compromise advanced by the EFF: to go ahead with DRM, but only if members sign an amendment to the current membership agreement, promising not to use DRM laws to attack people engaged in legitimate activity like adapting the standard for people with disabilities, investigating security and privacy defects, and adding lawful features to video tools.

  • Intellectual Monopolies

    • Copyrights

      • The rise of copyright trolls

        At the 2017 Free Software Legal and Licensing Workshop (LLW), which was held April 26-28 in Barcelona, Spain, more information about the GPL enforcement efforts by Patrick McHardy emerged. The workshop is organized by the Free Software Foundation Europe (FSFE) and its legal network. A panel discussion on the final day of the workshop discussed McHardy’s methodology and outlined why those efforts are actually far from the worst-case scenario of a copyright troll. While the Q&A portion of the discussion was under Chatham House Rule (which was the default for the workshop), the discussion between the three participants was not—it provided much more detail about McHardy’s efforts, and copyright trolling in general, than has been previously available publicly.

      • ISP Bombarded With 82,000+ Demands to Reveal Alleged Pirates

        Scandinavian telecoms operator Telia has revealed how rightsholders are bombarding the company with demands to identify alleged pirates. During the past year alone, Telia has been ordered to hand over personal details relating to more than 82,000 IP addresses, a large proportion of which will go to known copyright trolls.

      • How Amanda Palmer gave the music industry the finger with crowdfunding

        “I’ve had to continually re-educate myself that this isn’t about selling music. It’s about making music.”

      • Anglophiles: Hang up your VPN; iPlayer isn’t for you anymore

        BBC collects IP address, location, e-mail address in fight against online cheats.

      • Texas Court Orders Temporary ‘Pre-Piracy’ Shutdown of Sports Streaming Sites

        A Federal Court in Texas has issued a broad preliminary injunction ordering several Internet services to disconnect a list of pirate sports streaming domains. While domain name seizures are not an entirely new phenomenon in the US, this order targets “anticipated” infringements and only applies temporarily. It ends after the Indian Premier League cricket tournament.

Industry Giants Challenge Qualcomm’s Patent Practices While the Federal Trade Commission (FTC) Closely Examines Such Behavior

Posted in America, Antitrust, Apple, Hardware, Patents, Samsung at 3:10 am by Dr. Roy Schestowitz

Qualcomm doesn’t do much but collect patent royalties

Qualcomm building
Photo credit: Coolcaesar

Summary: Scrutiny of Qualcomm’s patent aggression and coercion — scrutiny that can profoundly change the way software patents, SEPs and FRAND are viewed — as seen in various amicus briefs (amici) from industry giants that are affected

THE many patents granted primarily by the USPTO to Qualcomm continue to represent a threat to the productive industry, as we noted earlier this year [1, 2, 3, 4].

“Remember that it was a Samsung foe, Apple, which played a big role in this battle and has in fact stopped paying Qualcomm (which sent the stock nosediving).”Belatedly, companies are complaining and regulators take a closer look at Qualcomm’s behaviour. Even a Microsoft AstroTurfing/front group, Association for Competitive Technology (ACT), is going to intervene, based on Florian Müller, who wrote a couple of new posts late on a Friday [1, 2], having just scrutinised new documents.

“Intel’s brief in FTC v. Qualcomm is pretty good,” he wrote. “It was just too late for me to still comment on it yesterday. Will do so next week.”

He quotes from the brief: “For years Qualcomm has maintained an interlocking web of abusive patent & commercial practices that subverts competition on merits” (hypocritical for Intel to state that).

Here is what Samsung had to say. “Samsung just filed an amicus brief supporting the FTC against Qualcomm,” Müller noted, “explaining how it’s being harmed by QCOM’s conduct in two biz areas.”

From his post about it:

In today’s opposition to a Qualcomm motion to dismiss the FTC’s antitrust complaint, the FTC says “[o]ther chipmakers may not wish to sue Qualcomm for a number of reasons, including fear of countersuit for infringement, escalation, litigation fees, disrupted relationships with OEMs [...].” While all of that can affect a chipmaker’s calculus, the situation is far worse for device makers: they have to fear massive disruption should Qualcomm cease to supply its chipsets to them. Also, Qualcomm’s rebate deals (that effectively result in some patent royalties being paid back) appear to be tied to total abstention from any kind of antitrust action against Qualcomm. All in all, it’s like a strangehold on an entire industry.

Remember that it was a Samsung foe, Apple, which played a big role in this battle and has in fact stopped paying Qualcomm (which sent the stock nosediving). Here is some of the latest:

The Federal Trade Commission (FTC) has just responded to Qualcomm’s motion to dismiss its antitrust complaint in the Northern District of California….

We have studied some of the above and it certainly seems like most of the industry, not just the FTC, is eager to put an end to Qualcomm’s exploitation of software patents to make money out of nothing but “licensing”.

Professor Lisa Larrimore Ouellette Questions Whether Patents Work When Patent Scope is Too Broad

Posted in America, Patents at 3:08 am by Dr. Roy Schestowitz

Patent systems don’t exist in a vacuum…

Lisa Larrimore Ouellette

Summary: Citing MIT economist (and MacArthur “genius”) Heidi Williams, Professor Lisa Larrimore Ouellette from Stanford challenges old myths and quotes: “we still have essentially no credible empirical evidence on the seemingly simple question of whether stronger patent rights—either longer patent terms or broader patent rights—encourage research investments.”

TODAY we intend to publish a lot of articles about the USPTO and some of these will be relatively long. As usual, we are going to focus on software patents. After that, for at least a fortnight, I’ll be away on holiday and won’t be able to cover much.

“In the case of software, for instance, pace of innovation is high, code can count as prior art, code can be modified, forked, reused etc. and there are many programming languages with copyright assigned to underlying implementations.”Last week an article titled “Do Patents Work?” was published by Lisa Larrimore Ouellette, Assistant Professor of Law at Stanford. Our position is that patents work, but not when everything under the sun is patentable. One must not lose sight of the collaterals/externalities; Always check economic impact in said domains. In the case of software, for instance, pace of innovation is high, code can count as prior art, code can be modified, forked, reused etc. and there are many programming languages with copyright assigned to underlying implementations. There is thus not much evidence that patents on software “work” or are even needed in the first place.

Here is what this Yale Law School graduate wrote in her analysis, which focuses on pharmaceutical and chemical industries:

As everyone who has taken a patent law course knows, the reason we have patents is to increase private incentives for knowledge production. But do patents actually work? Based on her review of the existing evidence, MIT economist (and MacArthur “genius”) Heidi Williams isn’t sure; she concludes that “we still have essentially no credible empirical evidence on the seemingly simple question of whether stronger patent rights—either longer patent terms or broader patent rights—encourage research investments.”

This bottom line will not be a surprise to those who have followed the empirical literature, but Williams’s careful identification and modeling of the relevant empirical parameters and her discussion of the most relevant evidence on each point makes her review a must-read for anyone interested in patent policy.

[...]

On the second question, the ex ante incentive effect of stronger patent rights, there is again survey evidence, though it is useful primarily for indicating that the pharmaceutical and chemical industries value patent protection much more than other industries. To empirically estimate the relationship between patent strength and research investments, some researchers have looked at the impact of national patent law changes and found little effect. But one would expect such studies to understate patents’ impact: increasing protection in a small economy will not noticeably increase innovation in that economy if domestic firms were already innovating for the global market.

[...]

In the biomedical context, evidence from survey results and some clever instrumental variables studies of patent applications on human genes and patents invalidated in court have suggested that upstream patents have little effective (positive or negative) on the quantity of downstream innovation. But invalidation of patents in fields such as computing and electronics appears to increase the number of innovators subsequently citing that patent.

[...]

The bottom line is that despite the vast number of empirical patent studies—Williams notes the 3000 citations to a foundational patent-citation paper—very few studies have convincingly tackled the causal link between patent policy and research investments.

That point about “research investments” is often being exploited by pharmaceutical giants that ‘invest’ (funnel) massive profits not in research but instead give that money to shareholders. They just tell the public (and public officials) that those massive profits somehow “save lives”, by latching onto the “R&D” mythology.

“They just tell the public (and public officials) that those massive profits somehow “save lives”, by latching onto the “R&D” mythology.”What we are seeing in the news this month is the ITC weaponising patents for embargo, e.g. of drugs that are about to save lives. See this news report which says “practitioners suggest that pharmaceutical companies are beginning to look to the International Trade Commission (ITC) as an appealing alternate venue for patent litigation.”

People and firms go to the ITC when they want embargo (or injunction).

“Firms that stand to profit from the UPC are not credible when commenting on the prospects of the UPC.”Injunctions, incidentally, are what makes the UPC very dangerous to Europe. The UPC is largely backed by pharmaceutical giants; this has long been known.

Barker Brettell LLP, already mentioned here in relation to the UPC earlier this year and last year, wrote another article about the UPC (actually promotional piece in its corporate Web site) and it is noted as saying: “Irrespective of Brexit, the unitary patent (UP) agreement may come into force by early next year” (not a statement that the general public agrees with). Firms that stand to profit from the UPC are not credible when commenting on the prospects of the UPC. They just try to attract business. We certainly hope that more people now understand that patent maximalism is quite a disease; believing that the more patents we grant the better off we will be is misguided, especially when more radical measures such as embargoes are introduced. Later today we are going to show examples of software patents utilised for software embargoes (impacting small companies in Europe).

OIN is Still a Distraction Unless We Want GNU/Linux to Coexist With Software Patents (Rather Than Eliminate Those)

Posted in Free/Libre Software, GNU/Linux, IBM, OIN, Patents at 2:50 am by Dr. Roy Schestowitz

Open Invention Network (OIN): the ‘solution’ of companies that love (to exploit) GNU/Linux and also love software patents

Animals

Summary: Another wave of media coverage by/for the Open Invention Network (OIN) necessitates a reminder of what OIN stands for and why it is not tackling the biggest problems which Free/Open Source software (FOSS) faces

THE notion that OIN can “protect” GNU/Linux from software patents may be a convenient one, but OIN never opposed software patents and it rarely offered any substantiative protection. With the USPTO de-emphasising patents on software (in no way owing to OIN) we might find some reprieve. With PTAB eliminating many such patents (already granted by the USPTO) we might feel safer.

“OIN is, in our assessment, somewhat of a distraction.”The latest OIN PR, however, has managed to entice at least a couple of GNU/Linux-centric writers. OIN is, in our assessment, somewhat of a distraction. It’s not at all useful against patent trolls and it never opposes software patents. It’s actually supportive of FOSS and software patents at same time, as contradictory as that concept can be (FOSS and software patents are inherently incompatible). SJVN wrote ‘for’ OIN that “everyone and their uncle — yes, even Microsoft– use Linux and open-source. A decade ago, Linux was under attack by SCO for imaginary copyright violations, and then Microsoft CEO Steve Ballmer was claiming that Linux violated more than 200 of Microsoft’s patents. So Open Invention Network (OIN) patent consortium was formed to defend Linux against intellectual property (IP) attacks. The stakes may not be so high today, but Linux and open-source software is still under attack from patent trolls and other attackers. That’s where the Open Invention Network (OIN) steps up by expanding its patent non-aggression coverage through an update to its definition of the Linux System.”

Well, notice that they never even mention GNU. It’s not a coincidence, it’s intentional. They certainly know all about GNU, but the brand “Linux” represents a friendlier (to them) philosophy. Published around the same time by Christine Hall was the following article, suggestive of a media outreach by OIN. It says: [via]

On Thursday, the Linux System got a lot larger. This is good news, and means that anyone using Linux and other other software often used with it, can sleep better nights, knowing that the Open Invention Network (OIN) is now watching their back on the patent front more than ever.

That’s what OIN does. It seeks to protect enterprise Linux and open source users against patent infringement claims, which is seen as open source’s greatest intellectual property vulnerability. It does so primarily with an ever growing portfolio of patents it offers to license free-of-charge to any person or organization that agrees to not enforce its own patents against core components of Linux and other key open source projects, which it calls the “Linux System.” It’s a carrot and stick approach, using a lot of carrot and going easy with the stick.

OIN is well-meaning (in its own mind), but it won’t tackle software patents and patent trolls that use them. As Benjamin Henrion put it, it’s “useless against trolls. But that’s not in the PR.” (press release).

“It claims to be trying to thwart sales of patents that would later be used to sue GNU/Linux vendors, but rarely have we seen a real example of that (they claimed this only once, more than half a decade ago).”We, ourselves, stopped engaging with OIN. It proved to be a waste of time, especially when we spent a long time communicating online with patent trolls who had approached us, then trying to get OIN involved (it was toothless and uninterested).

Right now, just to use a new example, the Microsoft-connected Acacia (Microsoft connections and history of suing GNU/Linux vendors) gets mentioned for former executives netting ZTE patents. “ZTE [is] revealed as vendor of Chinese patents sold to NPE set up by ex-Acacia executives,” says the headline and here is the relevant part from IAM (trolls’ proponent):

Longhorn – founded last year by former Acacia Research executives Christian Dubuc and Khaled Fekih-Romdhane – announced back in February that its Ox Mobile subsidiary had acquired “assets related to 4G/LTE with worldwide coverage, as well as Chinese assets related to smartphone implementation” from an unnamed Chinese company.

What could OIN possibly do here? Nothing. It claims to be trying to thwart sales of patents that would later be used to sue GNU/Linux vendors, but rarely have we seen a real example of that (they claimed this only once, more than half a decade ago). OIN can, at times, look like a placebo. It gives an illusion of safety and thus false comfort.

“It’s the ‘solution’ as envisioned by companies like IBM, which (as we shall show later today) spearhead a big push for software patents everywhere.”To clarify, OIN are not the “bad guys”; far from it…

OIN just isn’t the solution to our problems. It’s the ‘solution’ as envisioned by companies like IBM, which (as we shall show later today) spearhead a big push for software patents everywhere. If OIN took some concrete action, e.g. submitting an amicus brief against software patents or sending a letter against IBM’s latest plot — a ludicrous concept as OIN virtually came from IBM — we would possibly change our minds and reconsider this position.

Having just visited the front page of OIN’s Web site, it now seems abundantly clear that they collaborate with IAM (even pay IAM), proponents of software patents, patent trolls, and patent maximalism. If OIN tries to make itself look even worse, then it’s certainly doing a fine job.

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