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01.13.18

Patent Troll Finjan Manages to Defend a Patent (on Appeal) and the Trolls’ Lobby is Loving It

Posted in America, Courtroom, Microsoft, Patents at 11:26 am by Dr. Roy Schestowitz

Todd M. HughesSummary: Blue Coat (now owned by Symantec) has attempted — and failed — to invalidate all of Finjan’s patents using Section 101/Alice; those who are in the business of trolling view that as particularly good news because the judgment came from Timothy Dyk and Todd Hughes (much younger and appointed a few years ago)

THE USPTO had granted software patents far too easily before Alice, so in recent years we saw a lot of patent trolling from the likes of Finjan (such trolling is drying up over time, owing to courts’ decisions which repel further action).

The high-profile patent trolls and their supporters were glad to see that, for a change, after a case reached the Court of Appeals for the Federal Circuit (CAFC) the troll got its way. To give one example: “Finjan v Blue Coat Federal Circuit 1/10/18 reverses-in-part because as to 1 of 4 patents, patentee “failed to apportion damages to the infringing functionality”; court also agrees with def that “$8-per-user royalty rate was unsupported by substantial evidence.”

“Just because Alice isn’t applicable in certain cases doesn’t mean much; sometimes that is just the case.”Another one wrote: “The patentable subject matter ruling is interesting, and also because the opinion was authored by Judge Dyk, and joined by Judge Hughes, both of whom have a pronounced history of finding claims ineligible.”

Another proponent of trolls called them “anti-patent jurists” (as if being selective or expecting high quality makes one “anti-patent”). “But didn’t Dyk and Hughes,” he said, “two of the most anti-patent jurists on the Federal Circuit decide that at least some claims were patent eligible under 101?”

“Turns out that this decision is likely to be cited a lot in the future.”They try to personify it… at least they don’t resort to sexual orientation slant like corporate media does [1, 2].

Just because Alice isn’t applicable in certain cases doesn’t mean much; sometimes that is just the case. “Section 101″ isn’t always a winning argument, obviously…

Media of the patent microcosm covered this 3 days ago. It said:

The U.S. Court of Appeals for the Federal Circuit on Wednesday upset a $39.5 million award in long-running patent litigation between Finjan Inc. and Blue Coat Systems Inc., causing a San Jose federal judge to throw the brakes on another ongoing trial between the cybersecurity rivals.

Turns out that this decision is likely to be cited a lot in the future. “Finjan v Blue Coat Syst (Fed. Cir. 2018) PRECEDENTIAL,” said the above person. “Claims Directed to Computer Virus Detection Held Patent Eligible under 101; Other Issues in Decision: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2520.Opinion.1-8-2018.1.PDF …”

“Finjan sued the enabler of the EPO’s police state (surveillance and censorship), but we ought to leave that aspect aside in the context of patents.”We don’t have much sympathy for Blue Coat in particular; what we see here one evil firm against another evil company (the latter at least makes and sells something). Finjan sued the enabler of the EPO's police state (surveillance and censorship), but we ought to leave that aspect aside in the context of patents.

Nicole R. Townes and Daniel Kiang from Knobbe Martens took the time to write about it. “After a bench trial,” they said, “the district court concluded that one of the asserted patents is directed to patent-eligible subject matter under Section 101.”

CAFC did not agree about all 4 patents. This is the key part: “With respect to patent-eligibility, the Federal Circuit affirmed the district court’s finding that the claims were not directed toward an abstract idea for two reasons. First, the claims were drawn to behavior-based virus scanning which analyzes a downloadable’s code and determines whether it performs potentially dangerous or unwanted operations. This was different than the traditional method of code-matching virus scanning. The Federal Circuit determined that this was an improvement in computer functionality. Second, the results of the behavior-based virus scan are attached to a new type of file which enables a computer security system to perform tasks that it could not do before. Also, the claims recited more than a mere result and provided specific steps of generating a security profile that identifies suspicious code and links it to a downloadable.”

That’s just software patents.

There might even be another trial. To quote: “The Federal Circuit found that Finjan failed to present a damages case for one of the asserted patents that could support the jury’s verdict and remanded for a determination of whether Finjan waived its right to establish reasonable royalty damages under a new theory and whether to order a new trial on damages.”

“IBM — like Microsoft — is literally in the business of fueling patent trolls these days.”What is also interesting about this case is that there are ramifications for Symantec (Finjan is suing just about the whole security industry, except Microsoft, as it is deeply connected to Finjan).

The Symantec connection is explained here in relation to another Microsoft-connected troll, Intellectual Ventures.

The year’s first substantive patent-eligibility decision from the Federal Circuit is a rare victory for the patentee. It is also further evidence that the outcome of an eligibility analysis may be more dependent upon how the analysis is carried out than the actual language of the claims under review.

[...]

The Court began by distinguishing Finjan’s claim with those of Intellectual Ventures I LLC v. Symantec Corp., where the Court concluded that “by itself, virus screening is well-known and constitutes an abstract idea.” Particularly, claim 1 (as construed) requires that “the security profile includes details about the suspicious code in the received downloadable, such as . . . all potentially hostile or suspicious code operations that may be attempted by the Downloadable.” Thus, “[t]he security profile must include the information about potentially hostile operations produced by a behavior-based virus scan.” In this light, the claimed invention is distinguishable from traditional virus scans that look for previously identified patterns of suspicious code in executable programs.

Here’s a new report which suggests that the above possibley leads to mistrial:

A California federal judge on Wednesday granted Symantec unit Blue Coat’s request for a mistrial in a cybersecurity patent infringement case brought by Finjan, saying a just-issued Federal Circuit decision striking damages in a related case called for a fresh jury, free from certain impressions about damages and willfulness issues.

The presiding judge said she agreed with concerns expressed by Symantec-acquired Blue Coat Systems that the Federal Circuit’s opinion in the prior case affects many of the issues that have been discussed in the current trial…

As we noted in our previous post, IBM was helping the troll last year. IBM — like Microsoft — is literally in the business of fueling patent trolls these days. When these trolls are indebted to IBM and Microsoft they will sue neither; instead, they’re more likely to sue IBM’s and Microsoft’s competitors. That may be an implicit if not explicit part of their agreement.

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