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05.27.17

Patent Dangers to Linux and Android: Qualcomm, Apple, and Nokia

Posted in Antitrust, Apple, GNU/Linux, Patents, Samsung at 6:24 am by Dr. Roy Schestowitz

Summary: The prevailing problem which is companies with mountains of patents going after OEMs, using a bulk of infringement accusations, and demanding ‘protection’ money

IN the US, Qualcomm has just made a move to stop Apple, which already stopped paying Qualcomm and is leading somewhat of a rebellion against Qualcomm (under trouble in multiple continents).

In Korea, Qualcomm is in troubled waters too. Korean companies like Samsung are also affected, so the actions against Qualcomm are bipartisan from the iOS/Android perspective. Qualcomm upsets everyone.

Days ago, according to this, “Apple had a deadline for responding to Samsung’s mid-March petition for writ of certiorari” (request for Supreme Court review) in the second California Apple v. Samsung case, which had received very significant support from software and Internet companies, non-governmental organizations and law professors.”

Apple’s patent war on Samsung seems to have become a distraction as meanwhile, in the past few years, Huawei became the largest Android OEM. That used to be Nokia, which is now preoccupied with patents and has just settled with Apple again. The Finnish media wrote that “Nokia and Apple settle intellectual property {sic} lawsuits, become partners” (they mean patents). It happened just a few days ago:

Finnish communications giant Nokia and US tech behemoth Apple announced on Tuesday that they have settled all of their litigation and signed a patent license and a business cooperation agreement.

As noted here, “Apple and Nokia announced a settlement today after only about 5 months of litigation. Apple v. Samsung has been going for more than 6 yrs…”

What a waste of time and energy. Only lawyers profit from these battles.

As noted in this article, we don’t know who pays and how much, but we can only guess that Nokia is paid by Apple, for it has more patents in this area and reports were always suggestive of a demand from Nokia (for a number of years):

The companies said today they have settled all outstanding litigation and agreed to a patent license. While exact financial terms are confidential, Apple will be making an up-front cash payment to Nokia, followed by additional payments over the course of the agreement.

Microsoft has already spread Nokia’s patents to patent trolls, scattering these in a way that harms Android. It’s problematic for many reasons and we mostly care about the effect on GNU/Linux.

Colossal Institutional Failure Surrounding the European Patent Office (EPO) and EPO Chickens Out of Debate About It

Posted in Europe, Patents at 5:26 am by Dr. Roy Schestowitz

Summary: Shielded by a network of institutions, governments, and departments that facilitate the EPO’s abuses by inexcusable inaction, Team Battistelli continues to hoard more money and power

I HAVE never come across anything quite as corrupt (and at the same time immune/resistant to scrutiny/above the law) as the EPO. It’s truly astonishing. I thought we live in a society where the Rule of Law applies, but apparently there are some exceptions, for supposedly benevolent purposes.

A couple of days ago EPO critic Thorsten Bausch (from Hoffmann Eitle) covered an event in which Team Battistelli’s ‘Nemesis’, Professor Bross, played a role/part, noting quite correctly that the EPO succumbed to the level of violating the EPO’s own rules and founding document. To quote what is typically a pro-UPC and pro-EPO blog:

The MPI has been courageous enough to invite an eminent speaker to give a lecture on a topic that may sound curious or even somewhat provocative to some – note the question mark, though: “The Patent Granting Practice under the EPC – Erosion of the Rule of Law?” Enter Professor Dr. Siegfried Bross (German spelling: Broß), an extremely cultivated elder gentleman who speaks in a soft voice with this inimitable Swabian accent that non-Germans may remember from interviews with Albert Einstein. Before summarizing his lecture, it may be appropriate to introduce the lecturer to the international readership of this blog. Professor Bross has had a long and splendid career as a German judge; in particular, he spent twelve years (1986-1998) on the Xth Civil Panel [Zivilsenat] of the Federal Court of Justice. This Panel is, among other things, responsible for all patent cases at this court and is thus Germany’s top patent instance. And to top even that, Prof. Bross was then appointed to become one of the sixteen judges of the German Federal Constitutional Court, where he served for another twelve years until he retired in 2010.

[...]

Let us now turn to the message ofF’s lecture. His key thesis was that the basic framework of the EPC is not sustainable under the principles of the rule of law (“das Grundgerüst ist nicht tragfähig nach rechtsstaatlichen Grundsätzen”), and that the recent EPO reforms with regard to the Boards of Appeal are “ohne rechtsstaatliche Substanz” [without any substance in regard to the rule of law]. Boom.

Prof. Bross’ main criticism of the EPC framework was that it does not sufficiently respect the necessary separation of powers and does not sufficiently observe democratic rules and responsibilities. He argued that the Administrative Council and the EPO management negotiate structures without any parliamentary discussion, contrary to the established jurisprudence of the German constitutional court. He reminded the audience that the EPO legal order is not an integral part of the EU legal order nor is it identical to or even harmonized with it, even though many Member States of the EPO are also EU Member States. And he criticized the EPO Member States for having established an almost omnipotent executive with no proper checks and balances by an independent judiciary.

Quoting further fragments, highlighted by EPO insiders: “The MPI organizers of this afternoon session had hoped that Prof. Bross’s lecture would be followed by a lively discussion among a panel [] that included, inter alia, a representative from the EPO and one from the German Ministry of Justice. [] It is regrettable that this was not to be, since these two representatives did not show up. [] Prof. Bross encouraged all institutions and stakeholders to get into regular discussions with each other, [] but acknowledged that little can be done if institutions refuse to enter into such a dialogue. So much for that.”

Here is the ‘money quote’: “States are not allowed to unite in such a way that humans become objects”

Not only states have allowed this to happen; even the ILO’s Administrative Tribunal (ILOAT) enabled this by passivity, procrastination, and unwillingness to properly enforce the law. Covering what’s wrong with the European Patent Office has thus far helped expose rot and dysfunction also in the EPO’s AC, ILOAT, DKPTO, EC and so on. With few exceptions here and there, they’re all in this together. The German Ministry of Justice is also one of the big culprits; by turning a blind eye to abuses, just like Dutch authorities that look for excuses, it becomes somewhat complicit.

A few days ago SUEPO was openly complaining about ILOAT. Institutional failure after nearly a century? Here is the original complaint [PDF], published several days ago with the following concluding words:

The ILO-AT is one of the oldest and one of the largest Administrative Tribunals. It now serves more than 65 international organisations with more than 58.000 employees. If its size is a measure, ILO-AT is uncontestably a success. But the Tribunal risks to become a victim of that success if it does not find a way
to deal with its increasing workload while meeting modern standards of justice.

SUEPO believes that there are a number of fundamental weaknesses in the way the Tribunal is organized and presently operates, many originating from the past. These weaknesses must be addressed if the Tribunal is to live up to the purpose for which it was originally created, namely to be a judicial tribunal that ensures to officials of its member organisations “the firm conviction of safety and security emanating from justice, provide a judge for every dispute, and preclude the possibility of one of the parties being a judge in his own causei.”

In 10 years the Tribunal will celebrate its 100 years anniversary. We encourage the Tribunal to reflect on what it wants to stand for, and how it wants to be seen in 10 years’ time: as a modern Tribunal that, through fair and transparent procedures, provides for the necessary balance of power between international civil servants and their organisations, or as a relic of the past that is seen by many as
complicit with rogue administrations, not least the EPO?

To live up to their reputation as global defenders of peace and justice, International Organisations must themselves set the example and provide their staff with a justice system that operates, and is seen to operate, to the highest standards of transparency and fair play. This imposes on the Organisations that are Members of the Tribunal, first and foremost among these the ILO itself, to support the Tribunal in modernizing its practice.

The Central Staff Committee, not to be mistaken for SUEPO in spite of overlaps, also earned some press coverage from The Register a few days ago. It speaks of Battistelli’s continued pursuit of absolute power, in defiance of everything the EPC stands for:

The central staff committee of the European Patent Office has sent a letter to the organization’s board warning it of proposed changes that would further undermine their rights.

The letter to the board of the EPO’s Administrative Council comes one day before its preparatory meeting for the larger council meeting next month. That meeting is expected to center – yet again – on the breakdown of relations between staff and management.

On the agenda is reform of the EPO’s disciplinary and investigative rules as well as its appeal process – something that has been pushed by critics of the EPO’s current president Benoit Battistelli.

[...]

The exact same process of tinkering with internal policies in order to award greater powers to the president’s office has happened repeatedly at all levels of the EPO, and have led to him being dubbed “King Battistelli.”

The situation has grown so dire that the staff has even taken the EPO to the European Court of Human Rights in an effort to impose some rules over their treatment (EPO management claims immunity from national laws due to its status as an international organization).

Ironically, reform to the disciplinary proceedings and appeals process has been championed by one of Battistelli’s fiercest critics – Dutch secretary of state for Economic Affairs, Martijn van Dam – as an example of how concerned member states are imposing some kind of accountability on a president run amok.

The EPO is a truly rogue institution, but those who guard its immunity and impunity are part of the problem, so we intend to dedicate more time and energy to exposing them too. Readers are encouraged to send us information and material that can help us pursue justice in Europe.

The United States Has Already Tackled Both Software Patents and Patent Trolls

Posted in America, Courtroom, Patents at 4:54 am by Dr. Roy Schestowitz

There is also a correlation between those two

Summary: An outline of some notable responses to TC Heartland and where we go from here

INCREASINGLY, in the past few years, the US improved a lot of things in its patent system, first with AIA (which soon thereafter brought PTAB), then Alice (which further empowered PTAB against software patents), and now TC Heartland, which is going to force many patent trolls out of software patents-friendly courts.

Having written on the subject since my early twenties, I am personally gratified to see what happened in the US over the past half a decade, especially the past 3 years (since Alice). Maybe the same will happen in Europe. One can hope…

The patent microcosm is in a state of despair and disrepair. It clings onto rare exceptions in a desperate effort to entice clients. Here is one of them, who typically moans about PTAB, writing: “Encouraging some PTAB panels find eligibility under 101: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017002637-05-15-2017-1 … “we do not agree ..claim directed to abstract idea”” (Section 101).

But how often does that happen? Rarely. TC Heartland aside, or even Alice aside, courts are going to get tougher on patents. There will likely be even a lower incentive to sue. As for PTAB, the smaller the number of lawsuits, the lower the incentive to petition it (IPRs).

What does the future hold? Probably a lot less lawsuits, especially software patent lawsuits. As for patent trolls, some of them might as well disband now. Gone are the golden days of Texas…

Even Andy Updegrove, who rarely writes blog posts these days, covered this case/outcome (TC Heartland). James Bessen, who published many academic papers about patent trolls, linked to this new press report which says:

Patent trolls can’t go judge shopping anymore.

The tech world is delighted.

On Monday, The U.S. Supreme Court on Monday put strict limits on where patent infringement lawsuits can be filed.

“Patent trolls take it on the chin,” read a headline at TechCrunch. “Supreme Court Messes With Texas ‘Patent Troll’ Hotbed in Win for Tech Industry,” wrote Fortune. “Life much harder for patent trolls,” concluded The Verge.

Patent trolls are shell companies that buy up patents and force businesses to pay license fees or face expensive litigation even if the outfits filing the suits make no useful product of their own. Those are called non-practicing entities by the courts, patent trolls by critics.

“Red Hat hails defeat of ‘patent trolls’ at Supreme Court,” says another new headline about the biggest GNU/Linux company. To quote: “The Supreme Court is making it easier for companies to defend themselves against patent infringement lawsuits in a case hailed by North Carolina’s attorney general. Red Hat and SAS are among firms that have waged a long legal battle against so-called “patent trolls.”

“Red Hat, which had filed a brief in the case, welcomed the decision.”

The mainstream media did not neglect to cover this, more or less properly (we have not yet seen what patent maximalists are saying).

“Costs of defending patent litigation will be reduced,” the New York Times wrote, “and the costs of patent trolling activity will be increased…”

A wish come true? Certainly for the trolls guru Joe Mullin, who used to run a blog dedicated to this topic and now writes about it for Ars Technica. “Supreme Court makes it much harder for patent trolls to sue in East Texas,” said his headline. A reader sent us the following excerpt from his article:

In a unanimous decision, the justices held that the US Court of Appeals for the Federal Circuit, which handles all patent appeals, has been using the wrong standard to decide where a patent lawsuit can be brought. Today’s Supreme Court ruling in TC Heartland v. Kraft Foods enforces a more strict standard for where cases can be filed. It overturns a looser rule that the Federal Circuit has used since 1990.

Here is the original: Supreme Court of the United States: TC Heartland LLC v . Kraft Foods Group Brands LLC [warning for PDF]

We wrote about the decision just hours after it came out (we had been looking forward to it for many months, correctly predicting this outcome).

Here is what the EFF wrote: “Today the Supreme Court issued a decision that will have a massive impact on patent troll litigation. In TC Heartland v. Kraft Foods, the court ruled that patent owners can sue corporate defendants only in districts where the defendant is incorporated or has committed acts of infringement and has a regular and established place of business. This means that patent trolls can no longer drag companies to distant and inconvenient forums that favor patent owners but have little connection to the dispute. Most significantly, it will be much harder for trolls to sue in the Eastern District of Texas.”

Watch this response to the EFF that says: “They’re called “patent owners.” If they can’t sue in Texas, they’ll just sue somewhere else, no?”

Well, the villainous Bristows (UPC propagandists) wrote about this. Their employee who ‘took over’ IP Kat — the one who is habitually celebrating patent trolls in Europe (like that infamous troll case in London earlier this spring) — went with the title “US Supreme Court ruling has potential to attract patent litigation to Europe”. There is a real danger is that if UPC ever happens, that will make Europe the ‘new Texas’, or the new Western hub for patent trolls. We cannot let this happen and therefore our focus on Europe will persist if not intensify.

Cloudflare Wants to Completely Squash the Patent Troll Blackbird Technologies by Squashing the Only Thing It Has

Posted in America, Courtroom, Patents at 4:08 am by Dr. Roy Schestowitz

Cloudflare dark logo

Summary: Putting more of its money to good use, for a change, Cloudflare goes for the kill against Blackbird Technologies, which has no technologies, just patents and lawsuits

INTERNET access may be limited here (and Cloudflare greylists IP addresses here), but the other day we wrote about Cloudflare in a positive way, for a change.

The good work by Cloudflare, at least on the patent front (Cloudflare’s negative impact on other fronts notwithstanding), now resembles Newegg’s. They fight back against patent trolls, having belatedly realised just how much of a nuisance these can be. Newegg already neutralised some of the most notorious trolls and it seems as though Cloudflare realised the potential for positive publicly, so now it’s going for the kill. The company would be wise to invest its money in squashing all trolls and all software patents (something which can be done after Alice), but Cloudflare prioritises its own battles and now ups the ante, forcing the troll to either walk away or face destruction of so-called ‘assets’, namely patents. The latest bounty is this:

Blackbird sued Cloudflare in March, claiming infringement of US Patent No. 6,453,335. Two weeks ago, Cloudflare explained the strategy it would use to fight back. The company pledged to not only seek to invalidate the ’335 patent, but it will spend $50,000 on a "bounty" seeking to gather prior art and knock out all Blackbird-owned patents.

As TechDirt put it the other day, “Cloudflare Ups The Ante In Search Of Prior Art To Invalidate ALL Patents From Patent Troll Blackbird Tech” (they don’t have many patents).

A few weeks ago, we wrote about Cloudflare’s decision to punch back hard against a patent troll, Blackbird Technologies, that had sued the company over a questionable patent (US Patent 6,453,335). Beyond just challenging the claim of infringement, the company also filed ethics complaints against the lawyers who run Blackbird, noting that the company appeared to be a law firm masquerading as a company, and breaking a number of local rules about law firms and “buying” a proprietary interest in a lawsuit. At the same time, Cloudflare set up a $50,000 fund to offer prizes to people who could find prior art not just to invalidate the patent that Cloudflare was sued over but also every other patent held by Blackbird Technologies.

Let’s hope that Cloudflare fights this to the end and renders Blackbird as defunct as IPNav (IP Navigation Group, LLC). These are truly malicious and very harmful trolls.

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