03.04.18
Posted in America, Patents at 6:04 pm by Dr. Roy Schestowitz
Extrajudicial action disguised as “settlement” or masked as “protection”
Summary: Charlatans pretending to be inventors (or defending inventors) are still blackmailing software developers using patents which are likely bunk, should never have been granted, would never be upheld by any court, but are still not being challenged due to the high cost of legal battles
AS noted in the previous post, when large companies shell out money for ‘protection’ from trolls they merely give the trolls appetite for more lawsuits (and/or threats of lawsuits). It harms small firms the most. They’re incapable of focusing on patent battles and are thus likely to settle without even challenging the claims/accusations. This problem is a growing problem in Europe (thanks to the EPO being derailed by its management), whereas the US sees many of the trolls migrating to China (the USPTO also tightens patent scope well before patents even reach courts).
For those who wonder why it matters so much, reading this new article by Babak Abrishamchian might help (“Patent Trolls Reportedly Shaking Down Indie Devs”). It’s universally true that patent trolls target those least likely to be able to afford a potent legal defense against patently bogus software patents. From the article:
Playsaurus, the Indie Devs behind Clicker Hero 1 and 2, have announced that a patent troll by the name of GTX Corp, demanding a $35,000 licensing fee in order to continue business. The patent troll threatened legal action against Playsaurus, stating that should they not pay the $35,000 fee within ten days, “costly litigation” would occur. The patent in question involves the use of in-game currencies, which is present in just about every video game with microtransactions ever.
In a statement on Playsaurus’ website, CEO Thomas Wolfley stated the company would fight these legal threats, including the company’s official response to GTX Corp and the patent in question. When discussing the reason Playsaurus is being targeted, Wolfley attributed it to several recent pieces of legislation in American government which have made it easier to fight patent trolls, but only if you have enough money to go to court against them. “What they’re asking for, $35,000, is about half a year of salary for one of our employees,” Wolfley said. “I am concerned that they may be preying on a lot of other small studios, in a final attempt for them to profit off this bogus patent (which only has about 2 years left on it).”
$35,000 may not sound like a lot of money (to large corporations), but for small firms that may be enough to employ someone for a whole year. Such a demand can completely doom a business or eliminate someone’s job. What happens when a dozen such demands are made in one year? Surrendering to demands may simply signal to yet more trolls that the toll booth is welcome. It may never end. Many American businesses (some of which we heard about or from) have fallen for this terrible scam. Paying ‘protection’ money rarely helps and may in fact exacerbate matters. Cost of a legal battle can easily exceed $35,000, especially upon appeals. This system is broken when justice is more expensive than injustice. █
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Posted in America, Asia, Google, Patents, Samsung at 5:19 pm by Dr. Roy Schestowitz
Otherwise more litigation targets (victims) will be found and shaken down
Summary: The culture of patent disputes in the US is changing, but some high-profile patent lawsuits are still happening (even in China) irrespective of the merit of allegations and said patents; software patents should never even show up in a courtroom anymore
EACH time the USPTO grants a patent in error it may result in an erroneous lawsuit/s from which only lawyers will gain. They profit from litigation, no matter the outcome and whose side (defendant or plaintiff). It is grotesque and disturbing to think that such people are actively attempting to steer patent systems and policies. It’s like putting manufacturers of weapons in charge of foreign policy.
“Following dismissal of plaintiff’s invalidity,” this Docket Report said last week, the “plaintiff’s litigation positions and tactics were unreasonable.”
It looks like the accused (defendant) is going to get compensated for the trouble, but either way, law firms on both sides will be victorious (financially):
Following dismissal of plaintiff’s invalidity and unenforceability claims for lack of standing and failure to state a claim, the court granted defendants’ motion for attorney fees under 35 U.S.C. § 285 because plaintiff’s litigation positions and tactics were unreasonable.
Last weekend we wrote about rules which are good for patent trolls because too little burden of proof is on the accuser/claimant. This new post by Peter Keros elaborates on it: “Only a few factual allegations are required to survive a Motion to Dismiss a complaint alleging patent infringement, held the Southern District of Florida in Raptor, LLC. and Concrete Services, LLC. v. Odebrecht Construction, Inc. and Barreiro Construction Corp., NO. 17-21509-CIV-ALTONAGA (S.D. Fla. Feb. 13, 2018).”
Making it earlier to sue isn’t a positive thing.
A Canadian patent troll, WiLAN, is at it again. It targets Android devices:
In a 135-page complaint, WiLAN subsidiary IPA Technologies Inc. said that Google Assistant, the voice-activated personal assistant app, and other programs infringed six patents that it acquired from SRI International Inc. in May 2016.
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IPA launched an initial round of lawsuits against Dell, HP Inc., Toshiba America Inc., Acer Inc., ASUS Computer International in October 2016, about five months after it acquired the patents. All of those suits were settled within weeks of their filing.
Patent trolls’ supporters who really hate Google, the EFF and professors seem rather happy to support the troll. Not too surprisingly.
Huawei, which uses Android, is also suing other Android vendors. Did Huawei make a sensible decision by suing Samsung? It’s usually those two brands which dominate the Android market (depending on country/segment) and still vie for the leadership/crown.
“Huawei may have overplayed its hand in Samsung patent dispute,” according to a post from this morning. Here’s why:
Procedural sophistication is a virtue, especially in cross-jurisdictional litigation. But in the event Judge William H. Orrick grants Samsung the antisuit (technically, just temporary anti-enforcement) injunction it is seeking against Huawei in the Northern District of California (in order to prevent the enforcement of a couple of Chinese patent injunctions), the world-class Chinese Android device maker and experienced patent litigant has no one to blame but itself–for excessive procedural gamesmanship of the kind that is all too obvious to (federal) judges. Should Judge Orrick find Huawei’s attics “vexatious and oppressive,” one of the three Unterweser antisuit injunction factors (a set of factors from the Fifth Circuit that the Ninth Circuit also applies) would be met, and someone who brings claims only to seek an immediate stay of some of them does appear to be suing for the sake of suing.
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While Samsung used to take different positions five years ago (an eternity in this industry) and is doing what any other defendant would do in its situation (seeking to put obstacles in Huawei’s way, such as by firstly requiring an actual liability finding prior to a rate-setting decision, and by requiring country-by-country resolution of liability), Huawei’s opposition appears fundamentally weaker to me than Samsung’s motion. It wouldn’t have been hard for Huawei to avoid a situation in which one can reasonably find its procedural tactics “vexatious and oppressive,” and Huawei could have chosen to keep certain issues out of the U.S. case or at least to file the U.S. case after the Chinese ones. It has made its bed and must now lie in it. I believe Samsung’s motion will succeed–if not in district court, than in the Ninth Circuit.
“Samsung Hit with $4.3M Verdict in Image Editing Patent Suit,” noted another person, who linked to this new decision.
They are very happy because the defendant was a large company. The usual bashing of large technology companies is almost understandable. Watchtroll’s latest instance of it is rather revealing. These lawyers and trolls (and “professional writers” whom they hire) don’t care at all about technology, only how to tax, destroy, and sue over it. The biggest payouts come from large technology companies.
We are not supportive of large technology companies, but we support than a lot more than we’d ever support parasitic law firms and patent trolls. In fact, just because some companies have deep pockets does not necessarily mean we should be happy to see it shelling out money for ‘protection’ from lawsuit; whenever that happens it merely sponsors and strengthens the trolls, who might then be emboldened to shake down smaller and much more vulnerable firms. Ideally, in cases like the above, patents will be challenged and if they are software patents, for instance, then they should be invalidated. All the above certainly sound like software patents (voice recognition, image editing and so on). █
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Posted in America, Patents at 4:09 pm by Dr. Roy Schestowitz
Software patents are being invalidated and even examiners (with feedback from PTAB) increasingly reject these before grant
Summary: The Patent Trial and Appeal Board (PTAB) maintains its good work which reforms the Office and elevates the patent bar (narrowing scope); the USPTO is expected to see a decrease in patents this year, not just a decrease in the number of patent lawsuits
THE USPTO‘s PTAB needs no introduction here. We already wrote hundreds of articles about it and we commended its work, which helps raise the bar for patent examiners and thus improves patent quality in the US, disqualifies frivolous patent lawsuits before they go too far (because of profound financial damage to innocent parties that are merely being accused or threatened), gives businesses some peace of mind, and gives law firms something better to aim for (other than getting a gazillion patents on everything under the Sun).
PTAB is loved. It’s loved by those who actually create something.
PTAB is only (as far as we can see) hated by people who create nothing but lawsuits.
This post will focus on the latter group (the ‘haters’) because we feel the need to correct/rebut them.
Last week there was a decision in Knowles and it was discussed as follows: “Knowles Elecs v Cirrus Logic, FedCir 3/1/18; 2-1 majority affirms PTAB rejections in reexam for anticipation and lack of WD for proposed cls. Panel splits over impact of Circuit’s 2011 MEMS decision construing same term in same patent in ITC proceeding. Newman dissents on this.”
Newman dissents on a lot of stuff (we don’t want to bash her over it) and Dennis Crouch uses her dissent for his typical PTAB bashing because he’s not happy with the outcome (the PDF of this precedential decision was mentioned here). This is what Crouch wrote about PTAB:
The problem, for Judge Newman, is that a decision from the PTAB’s controlling court should control the actions of the PTAB and limit its power. For its part, the PTAB generally refuses to be bound by prior claim construction decisions by District Courts, but this is the first case where the PTAB has disregarded a prior interpretation by the Federal Circuit.
Although I began with Judge Newman’s opinion. Her opinion was in dissent, the Majority (Judges Wallach and Chen) avoided the question of whether the PTAB’s must follow Federal Circuit claim construction decisions. Rather, the majority held that the PTAB construction is in “accord with the definitions adopted in Mems Tech.” Based upon this claim construction, the majority agreed that the claims were anticipated by the proffered prior art.
Why did he begin with Newman’s opinion? That sort of bias is revealing, is it not?
Maybe the patent microcosm can just pretend to itself that only one judge exists and counts. The judge whom they like. The one they always/usually agree with. But that’s not how this court works. Notice the rather misleading/unhelpful title as well: “PTAB Reconstruing Claims: Estoppel?”
Poor outline of the case at hand, no? Maybe if Newman had Mexican heritage, Crouch would use another inane cartoon (or meme) of hers.
Moving on a bit, PTAB was also mentioned by Gaston Kroub of Kroub, Silbersher & Kolmykov PLLC. It’s not a coincidence that many proponents of software patents are also proponents of patent trolls, FRAND, SEP, the UPC etc. They are also opponents of patent quality control (something like PTAB). That’s just what patent maximalists are like. “It is well-known that patents are more valuable in certain industries than others,” Kroub said. “Whether it is because the eligibility of certain technology for patenting is in constant question — software, meet Alice — or because of the presence of standard-essential patents with their resultant FRAND obligations, in certain industries any given patent may not be very valuable. In contrast, industries like pharmaceuticals and medical devices, where a small set of patents can cover a blockbuster drug or device, are often thought of as having valuable patents. But recent developments have helped call this orthodoxy into question, particularly with respect to drug patents.”
Scroll down a bit for the anti-PTAB screed, for example: “Merck was not the only pharmaceutical giant to face an adverse decision recently. In another long-anticipated ruling, the PTAB found that Allergan’s attempt to end run the IPR process by assigning patents covering its blockbuster eye treatment Restasis to an Indian tribe would not result in the termination of the nearly-final IPRs. While the specifics of the decision are interesting, and raise important questions about the PTAB’s authority to decide issues other than patent validity, there is no doubt that the result is a blow to Allergan’s attempts to shield its Restasis patents from an ultimate invalidity finding — especially since the district court presiding over the corresponding ANDA case involving those patents had already found them invalid. Whether the generic challenger is heartened enough by this latest ruling to launch at-risk (pending Allergan’s inevitable Federal Circuit appeals) is an open question. What is clear, however, is that drug companies like Allergan are willing to try everything to keep their valuable patents alive. Despite those efforts, even the most creative (desperate?) strategies will not go far when the quality of the underlying patents are not commensurate with their purported value.”
We wrote about that case earlier today. PTAB receives plenty of hate for simply doing the right thing.
Doing the right thing seems to require courage these days because a whole bunch of patent law firms then resort to paid-for ‘articles’, racist memes, attacks on judges, endless efforts to cause scandals, and sometimes abusive letters. We’ve documented these over the years.
Crouch, a PTAB-hostile writer, is among those who are stressed to see patent sanity prevailing these days. See this new post which is at least suitably titled “Electronic Medical Records: Not Eligible” (obviously).
It’s about PTAB and an examiner:
IMO’s CEO Frank Naeymi-Rad along with 11 others are listed as inventors of the company’s pending Application No. 13/622,934 – recently rejected on eligibility grounds. The claims are directed to a software system for “implementing a controlled vocabulary” within a longitudinal medical record. The examiner finally rejected all 14 claims for on eligibility grounds (withdrawing the obviousness rejection) — concluding that the claims are directed to the abstract idea of “providing healthcare by generating and processing medical records.”
On appeal, the PTAB sided with the examiner – holding that – at a high level of abstraction, the claims “can be characterized as collecting, storing, and organizing … and transmitting information.” Although the examiner acknowledges that the claims are novel and non-obvious, the PTAB still found no inventive concept.
As we shall show later, examiners now growingly reject software patents and PTAB almost always affirms their decision (to reject). It’s an encouraging new trend. It’s not entirely new, but it’s gaining momentum.
It’s worth noting that attacks on PTAB are running dry. We track these things pretty carefully and closely. All in all, the anti-PTAB lobbying sites have slowed down lately. These anti-PTAB tweets, personal attacks, blog posts and articles may have halved in number (compared to months ago). Watchtroll, which used to attack PTAB almost every day (sometimes more than once a day), has lots of totally off-topic stuff. Watchtroll was bashing PTAB using the recent Arendi case (that was two days ago), but those sorts of articles come out about twice a week now, not twice a day like they used to.
Anticipat, which was trying to sell products/services by badmouthing PTAB, is also changing its tone somewhat. It’s softening.
Christopher Francis, writing for a law firm that loves bashing PTAB, is not happy about IPRs improving patent quality, but he too takes note of examiners’ change of habit:
The Patent Trial & Appeal Board applied In Re: Smith Int’l to limit the broadest reasonable interpretation of claim language in Ex parte David Ben Yair (Appeal 2017-002190, decided Jan. 10, 2018). In this case, the claim is directed toward a composite suit including “an inner suit” and “an outer suit,” and the prior art discloses a single article of clothing including an outer layer and an inner layer. The PTAB agreed with the appellant that, based on the specification of the appealed application, the claims required two pieces of clothing. Based on this interpretation the PTAB reversed the prior art rejection.
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This type of analysis by the PTAB begs the question of whether examiners are now required to identify support in the specification for their interpretation of claim terms. In any case, this decision is an example of a broad application of In re: Smith Int’l that could be useful when working with the examiners on BRI issues and when appealing based on an Examiner’s broad claim interpretation.
PTAB haters are still out there, ranting in ALL CAPS because PTAB cites § 101, but those are a lot more extreme than any of the above. They are connected to literal patent trolls. They are so ‘fringe’ that they even deny that professors are professors (when they do not agree with them). The trolls they are connected to deny that I have a Ph.D. and yet it’s them who most habitually accuse PTAB of not caring about facts. The sheer hypocrisy. █
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Posted in Patents at 3:00 pm by Dr. Roy Schestowitz
Summary: The subject of patents on life is being brought up again by several blogs of patent maximalists; they seem to forget or simply ignore the whole purpose of patents
THE only class of patents we strongly object to other than software patents is life patents (or patents on life). It’s no coincidence that Section 101 in the United States is based on several Supreme Court cases which deal with patents on life and patents on business methods/software (Myriad, Mayo, Alice). Some things do not deserve patents (neither at the EPO nor at the USPTO) because societal benefit of these cannot be proven. Patenting just for the sake of having more patents is misguided; limits need to be imposed/enforced somewhere. Patents actually derive value from scarcity, not from overabundance.
3 days ago we saw Kate Gaudry and Rodney Rothwell writing for Watchtroll (not a good choice of platform). They speak of application acceptance rates in “The Unpredictable Prospects of Patenting Cancer Innovation” (odd title which now speaks of “Patenting Cancer Innovation”; they actually say “Cancer Innovation” as if cancer invents something or people invent cancer).
We urge readers to see this old discussion of patents on cancer treatment and ethical dilemmas. Warren Woessner, a loud proponent of patents on life (his whole site is dedicated to that), now speaks of “Inventive Concept in a Diagnostic Invention” (whatever that means other than those old patent buzzwords, “Inventive” and “Invention”).
All it boils down to is some PTAB bashing from Woessner and others who think society should tolerate patents on life itself. He spoke to the choir:
In a talk I recently gave on the dire fate of diagnostic methods in the hands of the courts and PTAB, I argued that, in view of the columns of selection criteria and statistical analysis required to carry out the claimed diagnosis, that Cleveland Clinic might have “purported” more than they did about the inventive concept(s) required to reach the diagnostic conclusion.
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Since 2014, the walls have been closing in on diagnostic methods. Ariosa adapted the PTO’s implicit finding that the discovery of the significance of a naturally occurring correlation could not provide the inventive concept required by the Mayo/Alice test. At the end of the Mayo decision, Judge Breyer rejected the Government’s argument that “virtually any step beyond a statement of a law of nature itself should transform an unpatentable law of nature into a potentially patentable invention [under 101].”
Kevin Noonan also wrote about Mayo after he had ridiculed Justice Breyer for doing the right thing (judge-bashing seems to be common a tactic among them). These people, whom we deem to be (patent) extremists (Noonan uses the word “overzealous”), are a danger to society’s health. All they care about is money through monopoly (pricing drugs and treatments out of reach owing to that monopoly). To quote Noonan:
This is not the first instance of patent practices being considered overzealous and a threat to the practice of medicine. And a remedy to this concern has been found before, to address patent claims directed to methods for performing eye surgery.
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Should Congress deign to make inclusion of medical diagnostic methods within the scope of the exemption, such an action would comport with Justice Breyer’s invitation at the end of the Mayo opinion (“we must recognize the role of Congress in crafting more finely tailored rules where necessary”). Such a legislative scheme might reduce the temperature of those whose concern over the possibility that patent protection might inhibit medical services delivery has created the greater likelihood that innovation will be harmed by a lack of patent protection (or worse, that disclosure will decline, reducing the pace of innovation).
We’ve long written (since a decade ago) about ethical aspects of all this. Patents in their own right aren’t detrimental provided one studies the collateral effects, both economic and ethical, then applies common sense. Many other sites spoke about the ludicrous concept of granting patent monopoly on several rather fundamental diagnostics techniques (such as identifying chromosomes associated with particular illnesses, syndromes and hereditary issues).
As it turns out, based on this blog, “Oxfirst are hosting another interesting webinar on March 14, 2018 at 15.00 BST and 16.00 CET. The webinar is titled, “Are Important Innovations Rewarded? Evidence from Pharmaceutical Markets.” The presenter is Professor Margaret Kyle.”
That’s a very loaded question. Either way, framing the whole debate in terms of “innovations”, “inventive” and “invention” is rather misleading. What’s a lot more important is whether governments fund such research (which is often the case), whether the public is better served by such monopolies, and whether we care about access to medicine in poorer parts of the world. There’s a moral imperative too. If we ignore it, patents become a cancer to those whom they deny access to. █
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Posted in Patents at 2:18 pm by Dr. Roy Schestowitz
Related: Blockchain Becomes the Target Not Only of Financial Institutions With Software Patents But Also Trolls
Another hype loop
Summary: Blockchain patents, which are just software patents (and thus likely invalid under Alice and EPC), continue to be granted and law firms are totally embracing this hype to encourage more of the same (granting of dubious software patents)
THE EPO grants software patents provided they’re clouded by buzzwords, novelty-sounding hype, and words like “device” or terms like “technical effect”. The USPTO has become stricter than before (more on that later today and tomorrow), so buzzwords or media hype get exploited (“AI” has been a popular one lately).
A few days ago someone explained why Europe does not yet grapple much with blockchain patents (at least the appeal boards do not): “Of course, due to the delay of the publication of patent applications by 18 months, today’s statistics reflect the situation of late August 2016, when the blockchain hype was in its early stages…”
He too uses the word “hype”.
“…buzzwords or media hype get exploited (“AI” has been a popular one lately).”They know what it is. To be clear, blockchains are a real thing and not merely a buzzword like “cloud” or “AI”; blockchains have different implementations and uses. They’re just very hot (maybe too hot) in the media these days. Last week there was this article titled “The blockchain market is hot; here’s how to learn the skills for it” and another one titled “Blockchain: Not just for cryptocurrency” (the above person already suggestion it can be used for patent management).
“AI”, “Blockchain” and all that malarkey which makes old staff sound novel and cutting-edge (sickening retreat to buzz and hype) is a subject we wrote about many times before. We hope that examiners at least know what’s going on because perhaps more often than not when confronted with such terms inside applications the intent is to mislead and confuse (to make things sound more complicated than they really are, making examiners feel misinformed/foolish). See this new article titled “What IP Attys Need To Know About Blockchain” because it articulates what we have been saying for a long time. These people are just looking to exploit hype to patent software (the EPO creates hype around “fourth industrial revolution” and “Industry 4.0″ for this purpose).
Always remember that blockchain is software (typically Free/libre Open Source software), so patents don’t really belong in this domain, albeit many still get granted (in the US at least).
“”AI”, “Blockchain” and all that malarkey which makes old staff sound novel and cutting-edge (sickening retreat to buzz and hype) is a subject we wrote about many times before.”Herein we see Paul Haughey, Brian Olion and Thomas Franklin hyping up mass patenting of different aspects of blockchain (just because “blockchain!”) and others in the ‘industry’ they call ‘IP’ suggesting the same for copyrights (“Managing Copyrights on a Blockchain: How Close Are We and What Does It Mean?”).
It’s like a fashion. We’re supposed to think that blockchain is so revolutionary and any patent applications pertaining to blockchain should thus be granted for their novelty unless proven otherwise (there’s no prior art with this particular word, “blockchain”, but many of the concepts are just old things with the term or concept of “blockchain” added to them, much like “on the Internet” or “on a computer/phone/car”).
Here’s Managing IP where Ellie Mertens published “How blockchain will change intellectual property – trade marks and brands” several days ago. This isn’t about applications but about use of blockchains for organising data:
Managing IP is publishing a series of articles that looks at how blockchain technology is changing each area of IP. Here, in the first article, Ellie Mertens analyses its implications for trade marks including improving supply chains, being an alternative source of registration and helping IP offices become more efficient
“Blockchain For Patents – Patents For Blockchain” is another article — this one touching both aspects (managing patents using blockchains and patenting concepts associated with blockchains).
Much has been written and discussed about how blockchain technology would bring about fundamental changes to the financial industry which could actually threaten the very existence of banks as intermediary trust centers. At the latest after the major central banks met about a year ago in Washington at a three-day event, hosted by the World Bank, the International Monetary Fund and the US Federal Reserve, to discuss blockchain and crypto currencies, it probably dawned on a wider public that the hype around blockchain must be more than just that.
In a recent in-depth analysis report, the European Parliamentary Research Service investigated how blockchain technology could change our lives. Indeed, blockchain has potential for application way beyond Fintech – so the current hype may actually be understated.
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The application of blockchain is and will not be limited to the financial and legal sectors. With the advent of Internet of Things and cloud-based data processing and their propagation to virtually all kinds of technologies and industries comes a need for logging and registering events and values with critical requirements of reliability, security, and verifiability, qualities which are inherent to blockchain. The application of blockchain in technical fields will spur innovation and with it patent applications. The current numbers of published patent applications related to blockchain are still low, worldwide in the range of about two hundred patent families, primarily from the financial sector. Although there is a blind spot of a year and a half, because patent applications are published as late as eighteen months after their filing, it is evident that the numbers are growing rapidly. In just the last three months, the number of published US patent applications increased from 123 to 225. Worldwide, this rapid growth is indicated by an increase of patent families from 175 to 250, with published patent applications growing from 284 to 425 in the same short period. This tremendous activity is further evidenced by the appearance of new applicants, with top ranking numbers of applications, and a broadening of relevant fields from finances to information and communications technology.
Here’s a new article about the blockchain patent gold rush in China:
Several top-tier public universities in China are stepping up efforts to patent blockchain applications developed on campus.
New data published on Feb. 16 and Feb. 23 by China State Intellectual Property Office (SIPO) highlights the efforts by institutions such as Zhejiang University, Shenzhen University and Chinese Academy of Sciences to obtain patents related to the tech. The efforts are a tangible sign of the growing interest – and investment of resources – from China’s government-funded academic institutions in the area of blockchain research and development.
Last but not least, Aaron Van Wirdum and Andrew Nelson wrote about the Defensive Patent License (DPL) in relation to bitcoin patents (naturally, this relates to blockchain):
Bitcoin is considered by many to be the culmination of the decades-old cypherpunk movement, rallied around predominantly anarchist and libertarian ideals regarding freedom of information. The original Bitcoin software, therefore, was released as free and open-source software (FOSS), and operates today under the MIT License known for its permissive nature. Many would agree that its open, permissionless ethos has helped make Bitcoin the success it is today.
Much of this ethos is in stark contrast with international patent law. Where FOSS is fundamentally about free distribution, patents grant individuals or companies exclusive property rights or ownership of an invention. Through the Patent Cooperation Treaty (PCT), the patent holder holds those same rights over a patented invention in up to 152 countries (with non-signatories to the treaty being countries with low global economic standing or those with a history of systemic intellectual piracy).
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There have been several attempts to resolve the problems that patents pose to the Bitcoin industry. Coinbase, for example, signed a patent pledge. Although not legally binding, this pledge indicates that the company publicly renounces the aggressive use of software patents on startups.
Blockstream went a step further; besides committing to a patent pledge, it also became part of the Defensive Patent License (DPL). By signing the DPL, the blockchain development company promised to share all its patents with other license holders, on condition that those companies share their patents as well.
However, none of these measures are specifically designed for Bitcoin or blockchain technology. Importantly, these agreements have loopholes that could be abused, as a new initiative contends. This new initiative, the Blockchain Defensive Patent License (BDPL), represents an updated version of the DPL.
So they now have something which they call Blockchain Defensive Patent License (BDPL).
“…the only cause for excitement here seems to involve lawyers who found a new buzzword/hype to justify software patents.”We don’t really know how much longer this ‘fashion’ will last, but blockchains aren’t that exciting and the only cause for excitement here seems to involve lawyers who found a new buzzword/hype to justify software patents. They sometimes even brag about it. Alice laughs back at them. █
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Posted in Antitrust, GNU/Linux, Microsoft, Patents at 11:59 am by Dr. Roy Schestowitz
Elaborate plot to tax Linux/Android/ChromeOS will continue unabated
Summary: While it seems unlikely that renewed antitrust action will be invoked against Microsoft, there’s ample evidence that Microsoft continues to feed patent trolls while offering ‘protection’ from them (e.g. in the form of “Azure IP Advantage,” which echoes the Microsoft/Novell strategy for collecting what they called “patent royalties” one decade ago)
THE CHANCES of regulation under Trump seem slim. There are many reasons for this, but we would rather focus on patents rather than pure politics.
Makan Delrahim is a lobbyist, yet he is in charge of antitrust now. It’s almost unthinkable, but with Trump in power anything is possible, e.g. people governing or regulating industries which they themselves came from and may go back to (revolving doors). Dennis Crouch’s thoughts on Delrahim were mentioned some days ago in a blog of patent maximalists. To quote a portion:
Makan Delrahim, the leader of the Antitrust Division of the U.S. Department of Justice of the Trump Administration, has made several interesting comments concerning patents and the antitrust interface. In a recent post on the Patently Obvious Blog, Professor Dennis Crouch discusses some debate concerning Mr. Delrahim’s positions as to when patent holders may create antitrust issues: “[Delrahim] explained that the DOJ’s historic approach has been a “one-sided focus on the hold-up issue” in ways that create a “serious threat to the innovative process.”” Professor Crouch includes links to documents concerning Delrahim’s positions as well as some responses.
Readers of ours have long called for government scrutiny over Microsoft’s patent aggression (and dirty games which often rely on intermediaries). We still see such calls occasionally (they contact the Justice Department).
Remember Intellectual Ventures? The troll Microsoft pretty much created and continues to fund? The troll that passed thousands of patents to another patent troll called Dominion Harbor. Apparently, based on this update from Unified Patents, Dominion Harbor now uses proxies to engage in blackmail. Many of these patents may be worthless, as Unified Patents explained some days ago: “On February 28, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial in an IPR filed by Unified against U.S. Patent 8,082,213 owned and asserted by Smart Authentication IP, LLC. Smart Authentication, a Dominion Harbor subsidiary and a well-known NPE, declined to file a preliminary response in opposition to Unified’s petition. The ’213 patent, directed to a user authentication system, has been asserted against such companies as MongoDB, Slack Technologies, Evernote, Etsy, Discover and USAA.”
We have meanwhile learned from this tweet that Intellectual Ventures (IV) passed some patents to Google. “According to USPTO assignment records,” IAM wrote, “Google has picked up a couple of patents from IV. After recent RPX deal shows growing band of buyers looking at IV assets…”
This patent troll, Intellectual Ventures, attacks Federal Express in the “Rocket Docket” of trolls (EDTX, Judge Gilstrap), based on this new Docket Report about a lawyer falling ill. “The court deferred ruling on defendants’ motion to substitute one of its experts and appointed a special liaison to help determine whether the expert would be able to proceed at trial,” Docket Navigator wrote. What looks like another patent troll now sues Huawei in Texas (the “Rocket Docket”, EDTX again), based on this other new Docket Report:
The court granted defendant’s motion to strike portions of the report of plaintiff’s infringement expert regarding previously undisclosed secondary considerations of nonobviousness.
Another Microsoft-backed troll, Finjan, was mentioned the other day. “News of a big settlement between Finjan and Symantec including a $65m payout to the NPE and a possible additional payment of $45m,” IAM wrote.
Symantec is a Microsoft competitor, one of many that are being targeted by this troll. Does Microsoft expect nobody to notice Finjan's track record? While it’s selling 'protection' from such trolls?
Glyn Moody at Linux Journal has in fact reminded readers what Microsot did a decade ago in an effort to target every GNU/Linux distributor out there. To quote:
Its general strategy was to spread FUD (fear, uncertainty and doubt). At every turn, it sought to question the capability and viability of open source. It even tried to convince the world that we no longer needed to talk about free software and open source—anyone remember “mixed source”?
Alongside general mud-flinging, Microsoft’s weapon of choice to undermine and thwart open source was a claim of massive patent infringement across the entire ecosystem. The company asserted that the Linux kernel violated 42 of its patents; free software graphical interfaces another 65; the OpenOffice.org suite of programs, 45; and assorted other free software 83 more. The strategy was two-fold: first to squeeze licensing fees from companies that were using open source, and second, perhaps even more important, to paint open source as little more than a pale imitation of Microsoft’s original and brilliant ideas.
The patent battle rumbled on for years. And although it did generate considerable revenues for the company, it failed dismally in its aim to discredit free software.
Why was Microsoft never subjected to any antitrust scrutiny over it? Right now Microsoft does pretty much the same things, albeit indirectly. Recall the never-heard-of-before Provenance Asset Group (Microsoft may be in the shadows, as we explained before [1, 2]). It is now distributing/scattering patents from Nokia, whose patents Microsoft already instructed Nokia to pass to patent trolls in the past. “Provenance Asset Group has published details of several lots of Nokia/Alcatel-Lucent patents it’s selling,” wrote a former IAM writer (link to the relevant page). Belatedly, this strange little entity names Dan McCurdy, Timothy Lynch, Linda Biel, and Laura Quatela as staff. Some have background in Alcatel-Lucent. RPX is mentioned there also. Microsoft too was a member of RPX until recently. █
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Posted in America, Europe, Patents at 10:49 am by Dr. Roy Schestowitz
Technicolor lets a professional (publicly-traded) troll do the ‘enforcement’, i.e. trolling
Summary: InterDigital takes 21,000 Technicolor patents (or applications) for just $150m cash upfront; this quite likely means that InterDigital will get a lot more aggressive, whereas Technicolor will belatedly distance itself from its recently-more-apparent trolling tactics
THE litigation ‘climate’ in the US is negative to those whose make their livelihood out of litigation alone. Even more so if they rely on software patents. Their USPTO-granted patents often turn out to be worthless (when asserted in court), resulting in devaluation of their so-called ‘portfolio’. We have given many examples lately. Some patent trolls lost so much value that they turned from actual companies into penny stocks with no products at all. Good riddance. Dumpsters.
“Some patent trolls lost so much value that they turned from actual companies into penny stocks with no products at all.”Just as rumoured (credit to IAM for this), InterDigital is attempting to remains relevant by absorbing patents from a company-turned-troll, Technicolor.
“Still hearing that deal between InterDigital and Technicolor involving the latter’s patent licensing biz is happening,” someone from IAM wrote some days ago. “Will be very interesting to see the price tag and how much is paid upfront…”
Here (later) came the numbers: “InterDigital gets: • 21,000 patents & applications • Technicolor’s licensing & patent staff Technicolor gets: • $150m cash upfront • 42.5% of future licensing cash receipts • Perpetual licence to transacted patents” (based on this press release from the first of the month). Sounds like an awfully low price, akin to a garden sale.
“InterDigital attempts to become more vicious by taking more shoddy patents under its wing.”IAM was then bragging about the ‘scoop’: “You heard it here first, of course!!”
Yes, credit deserved. As we explained several times before, we don’t agree with IAM on a lot of things, but they do tend to get information earlier than most (from sources/contacts they have).
InterDigital attempts to become more vicious by taking more shoddy patents under its wing. We wrote a lot of articles about InterDigital over the years. Remember that French companies and the French patent office aren’t exactly renowned for quality of patents. The latter (INPI) does not even bother with examination.
There’s press coverage about this transaction (but not much). Reuters wrote:
French media and entertainment company Technicolor (TCH.PA) said on Thursday it has agreed to sell its patent licensing business to U.S. wireless technology provider InterDigital (IDCC.O) in a deal valuing the unit at $475 million.
Technicolor, which makes video devices, modems, routers and other products, put the business up for sale in December as it sought to concentrate on its operating business after issuing four profit warnings last year when it was hit by rising memory chip prices.
[...]
“The agreement also covers Technicolor’s interest in the joint-licensing program with Sony (6758.T) in the fields of digital TVs and computer display monitors, as well as certain royalty-bearing contracts.”
Mr. Ellis (Former IAM) said: “Technicolor sells (as expected) its patent portfolio & monetization biz to InterDigital for $475m. That’s one of the biggest patent deals in a long time…”
“We expect InterDigital to threaten many companies now; if these threats result in actual lawsuits, then (and only then) the threats will become visible.”“InterDigital’s acquisition of Technicolor’s licensing business gives its patent portfolio a huge boost,” IAM said. The term “portfolio” when used in reference to a troll can be misleading; they’re just stockpiling weapons, much like Intellectual Ventures. IAM soon wrote a blog post about it, in which it stated:
InterDigital confirmed last night that it was buying Technicolor’s licensing business in a transaction valued at $475 million. Once completed the deal will draw a line under the French company’s licensing operation which has long been one of the most prominent in the IP value creation market.
Last year we wrote the following about Technicolor:
It can be said that one troll ‘portfolio’ collapsing onto another isn’t quite as menacing as an actual corporation’s (or university’s) ‘portfolio’ being offloaded for trolls to ‘monetise’.
We expect InterDigital to threaten many companies now; if these threats result in actual lawsuits, then (and only then) the threats will become visible. InterDigital will prey on the weak (those unable to afford legal defense and thus likely to fold quickly and easily). InterDigital is a blood-sucking leech which makes nothing at all, it only negotiates like a Mafia. We have given examples over the years, especially when threats culminated in actual lawsuits. █
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Posted in America, Courtroom, Patents at 9:47 am by Dr. Roy Schestowitz
They hate PTAB enough to love a “scam” and a “sham”
Summary: The patent “scammers” (as many have been calling them for months) are appealing the PTAB’s decision and various people, such as Greg Ablavsky (above), unwittingly help those who are attempting to ‘scandalise’ PTAB
TECHRIGHTS has published a lot of articles about the misuse of tribal sovereign immunity to dodge PTAB’s scrutiny. Here’s the latest one. It’s one heck of a “sham” (a Federal judge called it that) if not a “scam” (many people call it that) for a lot of reasons, including the splitting of owner, holder, inventor etc. Can one exploit the special privileges of a tribe while actually operating as a massive, multi-national company? A lot of US politicians have been getting involved. They’re not happy. It also makes tribes in general look bad because in this particular case they’re willing participants in exchange for a “tribe bribe”.
“It also makes tribes in general look bad because in this particular case they’re willing participants in exchange for a “tribe bribe”.”Michael Risch (not the Michael who set up this whole scam) has just given a platform to Professor Greg Ablavsky from Stanford Law School. Ablavsky almost supports a patent scam (by discrediting the decision) that clearly misuses tribal sovereign immunity. In his own words:
Per Lisa’s request, I have returned to offer some thoughts on the PTAB’s tribal sovereign immunity decision (you can find my earlier post here and some additional musings coauthored with Lisa here). I had thought I had retired my role of masquerading as an (entirely unqualified) intellectual property lawyer, but, as the PTAB judges clearly haven’t relinquished their pretensions to be experts in federal Indian law, here we are.
The upshot is that I find the PTAB’s decision highly unpersuasive, for the reasons that follow, and I hope to convince you that, however you feel about the result, the PTAB’s purported rationales should give pause. I should stress at the outset that I have no expertise to assess the PTAB’s conclusion that Allergan is the “true owner” of the patent, which may well be correct. But the fact that this conclusion could have served as entirely independent basis for the judgment makes the slipshod reasoning in the first part of the decision on tribal immunity all the more egregious.
We are actually rather surprised to see any people with self respect publicly supporting this scam, which neither politicians nor judges have been supportive/tolerant of. But the above academic may be the exception; not many academics would wish to associate with this scam. PTAB’s reasoning may seem weak to him; but the resultant decision seems correct. It’s common sense. Later this year in Oil States we expect to see Justices supporting PTAB, maybe unanimously.
Christopher Walker, who recently wrote a paper with Melissa Wasserman (about PTAB; Wasserman recently wrote about the USPTO as well, so she’s an emergent name to keep up with and perhaps the next big influencer), has this new paper about Oil States. Walker called this a short @YaleJREG post on my new paper.
“We are actually rather surprised to see any people with self respect publicly supporting this scam, which neither politicians nor judges have been supportive/tolerant of.”From what we can gather, scholars generally support PTAB, with the typical exceptions (Crouch and few others who revel in the crowd of rabid patent maximalists) and Koch-funded think tanks. Here we have the PTAB-hostile Kevin Noonan (another patent maximalist) who the other day commented on the latest twist when he wrote: “The Tribe and Allergan (and the PTAB) remain under the specter of the rule for completing an IPR within twelve months of institution, which in this case is March 31, 2018. This date is already delayed due to the Board’s decision to consolidate IPRs from different parties and use the consolidation decision date as the date from which the deadline was calculated. The Board has the discretion to extend this date by an addition six months under appropriate circumstances, however. And in many ways it would be appropriate in this case (inter alia, being as the PTAB asserted in its denial decision a question of first impression regarding whether tribal sovereign immunity applies to IPR proceedings). Should the PTAB deign to abide by the March 31st deadline, this Notice could be moot. On the other hand, the Federal Circuit could order the Board to stay proceedings on the merits while it considers this appeal.”
Dugie Standeford from IP Watch (known for his good coverage of EPO scandals) wrote about the panel thwarting the Mohwak patent ploy/scam, calling it a “first-of-its-kind case.”
Native American tribes’ sovereign immunity can’t be used to avoid inter partes review (IPR) of patent validity, the US Patent and Trademark Office Patent and Appeal Board (PTAB) has ruled in a first-of-its-kind case.
We particularly liked the reaction of patent maximalists because they unwittingly reveal themselves as detached from ethics.
“Native American tribe to appeal PTAB ruling against use of sovereign immunity to avoid IPRs,” one of them wrote (Notice of Appeal mentioned as well, along with a link to the PDF), echoing this headline from IAM. IAM waited long enough for a spin/slant on the Mohawk-Allergan patent scam and now it just says they will appeal the decision. Does IAM really want to be seen as supporting a scam? Well, it’s not like there’s a reputation left to lose; they front for trolls.
“Wait and watch how the Federal Circuit, quite frankly as usual, agrees with PTAB and throws this scam out the window.”IAM then added: “St Regis claims PTAB ruling “contradicts other PTAB panels’ decisions from last year holding state sovereigns do enjoy such immunity, as well as longstanding Circuit Court and Supreme Court precedents holding that sovereign immunity does apply to these exact types of proceedings”…”
Lloyd, the author, said: “This is going to be a real humdinger at the Fed Circuit…”
Wait and watch how the Federal Circuit, quite frankly as usual, agrees with PTAB and throws this scam out the window. A Federal judge already called it a “sham” and did exactly that; we wrote about it at the time. To put it crudely, the scammers are just “pissing in the wind” at this point. █
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