04.28.18
Posted in Microsoft, Patents at 11:04 am by Dr. Roy Schestowitz
Hublink, LLC, a Dominion Harbor subsidiary, is also based in Texas (Dominion Harbor receives its patents from Microsoft’s patent troll, Intellectual Ventures)
Summary: A look at challenged patents and patent lawsuits that are associated with patent trolls or Microsoft’s distant proxies that are based in Texas
THE FEDERAL GOVERNMENT in Canada is coming to grips with the need to tackle patent trolls, whereas the EPO does anything it can to attract them (e.g. low-quality patents, UPC and expensive appeals). As for the USPTO, things are improving a bit over time. We’re optimistic.
“The general pattern is, PTAB tackles a lot of software patents, which are the trolls’ favourite weapon (for reasons we explained before).”Earlier this week, according to RPX, patent trolls still accounted for too many lawsuits in the US. RPX will probably go out of business some time very soon (good riddance), but these statistics are valuable. “According to RPX Corp.,” United for Patent Reform wrote, “of the 32 patent suits filed yesterday, 27 were filed by patent trolls. That’s 84%.”
A few days later it wrote:
According to RPX Corp., 15 of the 22 patent suits filed yesterday were filed by #patenttrolls. That’s 68%.
That’s relatively low (compared to most dates). Sometimes it’s well over 90%.
Mr. Gross, who writes for patent trolls (including Dominion Harbor), continues to moan about the status quo not because there are too many trolls but not enough of them (according to him). We’re generally rather cynical about his tweets; among the latest, about IBM and PTAB:
IBM invention on customizing messages fails as “abstract idea” bc it does not “improve any technology”? https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017002782-04-23-2018-1 … PTAB also confuses role of claims and spec: “Although it may be a feat…emulating human intelligence, the claimed invention provides no particularity”
Another rant about abstract ideas:
PTAB perverts ALICE 101 test: “The issues of eligible subject matter tum primarily on whether the claims recite more than abstract conceptual advice of what a computer is to provide without implementation details.” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005837-04-20-2018-1 … ALICE silent re: “implementation details”
Then there’s one about Microsoft:
Your dose of daily PTAB insanity: MSFT discovers that “creating an insulator in a host webpage in a browser” is just an “abstract idea” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016008168-04-24-2018-1 … HOW DOES THIS NOT MEET THE DDR TEST???
The general pattern is, PTAB tackles a lot of software patents, which are the trolls’ favourite weapon (for reasons we explained before).
Take for example Uniloc, which Microsoft paid a lot of money about a decade ago. Robert Jain from Unified Patents (an RPX competitor) is causing this patent troll to run away, having petitioned PTAB. In his own words:
On April 25, 2018, the Board granted Uniloc’s request for adverse judgment and cancellation of all challenged claims in IPR2017-01850 filed by Unified Patents. This request comes shortly after the PTAB’s decision to institute trial on US 8,838,976 directed to an online service user authentication system.
Good riddance. “Uniloc abandons patent after Unified [Patents] files IPR,” Jain wrote. Jain also wrote about the large patent troll Dominion Harbor (connected to Microsoft through Intellectual Ventures) and one of its proxies called Hublink, sporting its likely bogus patent.
In his words:
Unified is pleased to announce the PATROLL crowdsourcing contest winner, Raman Deep Singh, who received a cash prize of $2000 for his prior art submission for U.S. Patent 7,239,338, owned by Hublink, LLC, a Dominion Harbor subsidiary and well-known NPE. The ’338 patent, directed towards a video conferencing system, has been asserted against numerous companies in district court litigation. To help the industry fight bad patents, we have published the winning prior art below.
We would also like to thank the dozens of other high-quality submissions that were made on this patent. The ongoing contests are open to anyone, and include tens of thousands of dollars in rewards available for helping the industry to challenge NPE patents of questionable validity by finding and submitting prior art in the contests.
It’s worth remembering that we deal here with several levels of ‘proxies’. Hublink is controlled by Dominion Harbor, which is being armed by Intellectual Ventures, which is being sponsored by Microsoft. All these indirections don’t quite fool us as we’ve been tracking and writing about these trolls for almost 12 years. According to this, “Hublink, LLC filed as a Domestic Limited Liability Company (LLC) in the State of Texas on Tuesday, June 27, 2017 and is approximately one year old, according to public records filed with Texas Secretary of State.”
Texas again, just like its creator, Dominion Harbor.
Marshall Phelps, the man who turned IBM and Microsoft into de facto patent trolls, is still up to no good, urging for aggression again, this time in the context of Uber. Days ago he wrote this:
Everybody knows that strong patents help decide the winners and losers of business competition — which is why companies applied for roughly 600,000 of them in the U.S. last year (though only half that number were granted). But there’s another, little-known way for companies to acquire the patents they need: they can simply buy them.
Patent sales usually involve a smaller company buying patents from a larger one, with the transfers benefiting both buyer and seller alike. This is especially true for startups, which can use patent purchases to leverage the vast R&D resources of major technology firms.
Take Uber. As is often the case with startup companies, it would have taken Uber many years to internally develop a patent portfolio capable of protecting its innovations and ensuring freedom of action in the marketplace. This is a perennial problem faced by startups historically, from Google to Facebook more recently, especially as they prepare to go public, which along with generating cash also paints a giant patent bullseye on the newly-public company’s back.
Well, Mr. Phelps has not changed. Everything he touches turns into a patent bully/aggressor/troll. That’s just his career’s legacy in a nutshell.
Staying on the subject of Microsoft, which is not only a patent extortionist but also patent trolls feeder, Microsoft gets sued in the Eastern District of Texas. As reported several days ago by WIPR:
Microsoft is facing a legal battle over the alleged infringement of patents relating to video game lighting technology.
In a complaint, filed at the US District Court for the Eastern District of Texas, video game developers Infernal Technologies and Terminal Reality accused Microsoft of infringing its patents for in-game lighting and shadows with various game engines.
A game engine is a software development environment that allows developers to create video games. Game engines have a variety of functions, including a rendering engine, which allows developers to perform deferred rendering, deferred shading and deferred lighting, all of which affect the visual aspect of a scene in a video game.
A Microsoft advocacy site called it a “patent troll” and named the patent, which is a software patent:
Patent trolls are common in the technology industry and it seems like “Terminal Reality and Infernal Technologies” is targeting Microsoft this time. You might remember the name from a complaint involving EA from 2015. While that case was settled around October 2017, it seems like the company has a new target. Developer Terminal Reality closed in 2013, and since then it seems like its affiliate Infernal Technologies has been suing game developers.
According to post by IGN, Terminal Reality and Infernal Technologies has accused Microsoft of “egregious and wilful” patent infringement of Patent 6,362,822 and Patent 7,061,488 relating to game lighting and shadows. The plaintiff claims that it developed the “Infernal Engine” which it then licensed to other studios. The company also says that games like Halo 5: Guardians, numerous Forza titles, Sea of Thieves, and even PlayerUnknown’s Battlegrounds infringe upon its patents.
In the Eastern District of Texas they might actually tolerate such abstract patents, but can CAFC or PTAB get involved? 4 days ago the Docket Navigator wrote about Sandoz, Inc. et al v Duke University et al, which is another case in the Eastern District of Texas. It is the patent trolls’ favourite venue, but possibly an “improper venue” (after TC Heartland many of these things changed):
The court granted defendants’ motion to dismiss plaintiffs’ second-filed declaratory relief action under the first-to-file rule even though the defendants’ first-filed action was filed in an improper venue.
Docket Navigator also wrote about Elbit Systems Land and C4I Ltd. et al v Hughes Network Systems LLC et al. In the Eastern District of Texas, the patent trolls’ breeding ground, the “defendant’s litigation conduct was [deemed] exceptional” after Elbit (from Israel) had acted like a troll. Being Texas, one can expect a plaintiff-friendly ruling:
Following a jury verdict of $21 million, the court granted plaintiffs’ motion for attorney fees under 35 U.S.C. § 285 because defendant’s litigation conduct was exceptional.
Why have they put a jury in charge of a verdict on technical matters?! Appeal to CAFC perhaps?
Speaking of misconduct, watch the latest on this Gilead case, in which the “patents are unenforceable due to Merck’s “unclean hands” involving both business and litigation misconduct.”
To quote Patently-O:
The district court rejected a $200 million jury verdict against Gilead’s infringing Hep-C sofosbufir drugs. Rather than enforcing the jury verdict, the district court held instead that the patents are unenforceable due to Merck’s “unclean hands” involving both business and litigation misconduct.
There’s another case involving Gilead (Teva v Gilead) and it involves SPCs. As one site framed it the other day:
Advocate General Wathelet has rejected the UK court’s suggestion that “core inventive advance” is a relevant consideration in determining whether a basic patent protects an active ingredient within the meaning of Article 3(a)
Advocate General Wathelet has provided an opinion in the Teva v Gilead case in which a UK court referred a question regarding supplementary certificates (SPCs) to the CJEU.
Notice the role of the CJEU (European) in SPCs in the UK — something that Team UPC lobbies very hard for. They hope to make life a lot easier for trolls and massive pharmaceutical companies looking to shut down rivals (like generics), even by raids and embargoes. They are trying to turn Europe into another Eastern District of Texas. █
Permalink
Send this to a friend
Posted in America, Patents at 9:42 am by Dr. Roy Schestowitz
Problem if not epidemic
Summary: Productivity in Canada suffers from a growing abundance/prevalence of patent trolls and to improve productivity the Canadian government seems eager to crack down on this nuisance
THE country north of the United States is very large, but its population is not so large and there aren’t many technology firms there (compared to some other countries). Those which are based in Canada, usually in the big cities, are pursuing patents at the USPTO, not CIPO (Canadian Intellectual Property Office), and as many Canadian companies operate in the neighbouring country, the United States, the ramifications of lawsuits are very real. We’re not unfamiliar with it. We’ve covered plenty of examples over the years.
“It can start with WiLAN (mentioned here earlier this year and even about 8 years ago), not to mention BlackBerry.”Canada’s government is beginning to recognise the issue. It can start with WiLAN (mentioned here earlier this year and even about 8 years ago), not to mention BlackBerry.
Canada, according to the mainstream media, will “announce [a] ‘patent troll’ crackdown as part of national IP [sic] strategy” (that’s their headline).
For subscribers only at the time of publication, it’s now open access and it says:
The federal government plans to clamp down on “patent trolls” and help train Canadian innovators to compete more effectively against global tech giants as part of its intellectual-property (IP) strategy to be unveiled Thursday.
The strategy, details of which have been obtained by The Globe and Mail, will be announced at an event in Ottawa to commemorate World Intellectual Property Day.
It is already being hailed as a success by former Research In Motion chairman and co-chief executive Jim Balsillie, Canada’s most vocal and persistent advocate for government to step up efforts to equip Canadians with the tools necessary to operate in a global economy increasingly shaped by patented technological advances.
“This is a first step towards an innovation strategy,” said Mr. Balsillie, whose former company settled a lawsuit filed against it by patent holding company NTP Inc. in 2006 by paying NTP US$612.5-million.
The Globe and Mail’s report seems rather unique as we did not find similar reports at the time. Like Australia, which has some commonalities with Canada (except the weather), Canada seems to be adopting a saner patent strategy. Productivity should be paramount and trolls clearly and patently reduce productivity.
“Like Australia, which has some commonalities with Canada (except the weather), Canada seems to be adopting a saner patent strategy.”Over the past week we’ve found many news stories about patent activity in Canada — a lot more than usual in fact.
“Canadian toy maker files patent suit against Mattel in US district court,” one report in the Canadian media said. The gist of it:
Canadian toy maker Spin Master Corp. is suing industry giant Mattel, Inc. in California in the next stage of a high-stakes battle to defend its rights to a patented mechanism used in its Bakugan transforming robots.
Canadian news such as this may have become rather common.
Bogus software patents (of Canadian companies) have again shown up in the media. This firm seems to act more like patent trolls, having chosen a big target:
A small Canadian software company on Thursday lost a bid to revive a U.S. patent infringement lawsuit seeking $65 million in damages from remote computing giant Citrix Systems Inc.
The U.S. Court of Appeals for the Federal Circuit affirmed a decision denying a motion for a new trial 01 Communique Laboratory Inc made after a jury found Citrix did not infringe one of its patents, rejecting 01 Communique’s claim that it was prejudiced by the trial judge’s evidentiary rulings.
So CAFC generally and categorically rejected these patents. Software is not patentable. These patents are worthless.
Regarding Toronto-Dominion Bank, see what Canadian media said only yesterday. It is specifically about software patents:
The large number of software patents that TD Bank has made over the past few years leads me to believe that TD Bank is treating the tectonic shift the industry is about to face as an opportunity to get the leg-up on its peers through patented technological applications that will give the company a durable competitive edge over peers that will be inclined to follow suit.
Given the immense disruption that technology is going to have on the financial services industry, TD Bank realizes that to protect its business from disruption, it’s going to need to double-down on tech, whether it’s through filing patents to protect innovative new tech applications or through the acquisition of smaller FinTech firms for their talent pools.
Canadian companies, as we have shown in past years, are already suing in Texas. Very far from the Canadian border; probably as far as one can get from it! Now watch this news about Jim Banowsky from Microsoft becoming General Counsel of AmpThink, which has offices in Dallas (Texas) and Toronto. He has “12 years at Microsoft where he was a Senior Patent Attorney,” says the press release. “Jim’s patent work includes extensive experience with software patents…”
“Whatever or whichever side one might take, it’s pretty clear that Canada has become fertile ground for hostile sorts of actors, including some of the world’s very large patent trolls.”Yes, those patents that are worthless and Microsoft uses to extort Linux companies. Microsoft is a criminal enterprise when it comes to patents because it blackmails a lot of companies — a subject we’ll cover in our next post. But remember that Microsoft was sued by the Canadian firm called i4i. So sometimes it’s also on the receiving end of so-called ‘trolls’.
Whatever or whichever side one might take, it’s pretty clear that Canada has become fertile ground for hostile sorts of actors, including some of the world’s very large patent trolls. They are not beneficial to Canada and they tarnish their national image. █
Permalink
Send this to a friend
Posted in Asia, Australia, Patents at 8:09 am by Dr. Roy Schestowitz
Summary: In lesser talked-about patent offices, such as India’s and New Zealand’s, software patents remain infeasible to enforce (let alone get) but patent law firms and maximalists keep trying to change that
OUR focus on the EPO and USPTO often distracts us from smaller patent offices, such as IPONZ, which still denies software patents in New Zealand (NZ), loopholes notwithstanding, just like in India and in Europe before Battistelli (who opened the floodgates).
The NZ “proposed bill was seeking to include software patents,” says Sarah Putt (Computerworld/IDG in New Zealand). She has just helped show that patent zealots and profiteers in NZ never really quit trying to introduce software patents down there. She said:
A private members bill introduced by National Party spokesperson for Science and Innovation Parmjeet Parmar, which proposes a second-tier patent system, has raised fears that the issue of ‘software patents’ is back on the agenda.
The Patents (Advancement Patents) Amendment Bill seeks to introduce a second tier system to make patents easier and less costly to obtain and “require a lesser advancement in order to be granted than the inventive step required for other kinds of patents”. It would also provide a shorter term of protection – the proposal being 10 years instead of 20 years.
When asked by Computerworld if her proposed bill was seeking to include software patents, Parmar replied: “The advancement patent is proposed to apply to the same subject matter permissible for a standard patent. Section 11 of the Patents Act which applies to Computer Programs is amended to insert “or advancement’ in there which actually clarifies that the Section is applicable to advancement patents too.”
[...]
ITP objects to software patents because it claims that the time frame is too long (even if this was reduced from 20 to 10 years) in the tech industry when innovation moves so fast. Matthews points out that 20 years ago Netflix was a small-time DVD mail order company and Google hadn’t been invented (until September this year).
This is definitely something to keep an eye on and keep vigilant about (we shall inform some contacts we have in NZ).
In other news, there’s this new article By Sudip K. Mitra and Alain Villeneuve (Vedder Price) explaining to patent aggressors how to dodge the Supreme Court’s decision and enforce software patents that are bogus in defiance of Alice. They pushed this nonsense in more than one site [1, 2], possibly in exchange for payments, and they also push for litigation (implicitly):
In 2014, the United States Supreme Court in a landmark decision in the field of Patent Law (Alice Corp. v. CLS Int’l)1 invalidated software patents related to mitigating settlement risk. Relying on the now-infamous Section 1012, the Court held that use of an intermediary to mitigate settlement risk in a financial exchange is a fundamental economic practice directed to a patent-ineligible abstract idea.
Well, the US has fallen in line with the rest of the world, except China. In fact, after Alice it’s even harder to get (or enforce) software patents in the US than it is in Europe (EPs/EPO).
Vaish Associates Advocates, in the meantime, pushes the illusion that software patents are possible and worth pursuing both in India and the US (both are hostile towards these in court). There are virtually no software patents in India. To quote their article:
Software Patenting In India And USA
[..]
In this paper, we would be discussing the various case laws which have determined the conditions for patentability of software in Indian subcontinent and USA.
So, what is software patent? It is a patent on any performance of a computer realized by means of a computer program. India was the first country in the world to provide statutory protection to the software through the Copyright Act, but from then, the journey has been quite slow as in this era of internet, there is a need for more protection to the software, and we are still an old-school regarding the same. The effect of ‘Make in India Campaign, hackathons, software innovations and the youth participation is severely mitigated as India is not able to provide protection, software deserves. About 60% of all make in India is happening through the software. IBM registered 8088 patents in a year, and 30% of which were filed in the name of Indian inventors. The need of the hour is dire and extreme to recognize the software not merely a literary work but as something which is invented on a routine basis.
If they are trying to insinuate that software patents are worth pursuing both in India and the US, then they are liars, not lawyers. Maybe that’s just what they are. █
Permalink
Send this to a friend
Posted in Europe, Patents at 2:18 am by Dr. Roy Schestowitz
“Even if the UPC does gets [sic] passed, it is still going to take years and significant effort to repair the damage done by Battistelli.”
Summary: In the face of Brexit, which shows no signs of abandonment (not yet anyway), UPC is being pushed by the British Minister for Intellectual Property, Sam Gyimah, raising all sorts of legitimate and awkward questions
IT didn’t take long for real journalists rather than stenographers of law firms and the EPO to write about this latest absurdity.
Well, published by Kieren McCarthy in The Register on Friday night (around 8PM when many people are already offline) was this article titled “That Brexit in action: UK signs pact to let Euro court judge its patents” and it’s similar to what we have said in our two articles about it [1, 2] (so far, there’s likely much more on the way).
To quote a couple of portions:
Britain has finally signed up to Europe’s unified patent court (UPC) – a long-planned simplification of the continent’s patent system – but big questions still remain thanks to Brexit and a federal court challenge in Germany.
“The Minister for Intellectual Property, Sam Gyimah MP, has today confirmed that the UK has ratified the Unified Patent Court Agreement (UPCA),” the UK government said in a formal announcement.
Soon after, the ratification appeared on the European Union’s treaty webpage, confirming that it is a done deal.
But despite the UK government noting that “our ratification brings the international court one step closer to reality,” the truth is that thanks to the UK’s planned exit from the European Union, things are much messier than they appear.
While the UK is signing the treaty as a member of the European Union, by the time the UPC is up and running, it will almost certainly not be a member of said union, if Brexit is allowed to run its course. In other words, the UK has backed a court system that, come next year, may or may not have any jurisdiction over the country.
On one level, the UK – in pursuing its efforts to break free from European laws – has just agreed to abide by European laws: the patent court’s decision will have the European Court of Justice as its ultimate decider.
[...]
Thankfully for the EPO, Battistelli will be leaving later this year but his determined drive to get more patents approved each year has led to a complete breakdown in communication between EPO staff and examiners and its management, a drop in patent quality, and earned him numerous rebukes from international organizations and European politicians.
Even if the UPC does gets passed, it is still going to take years and significant effort to repair the damage done by Battistelli.
As usual, comments on such articles are dominated by the anti-EU crowd rather than patent professionals, one of whom wrote: “The contradiction #Brexit <-> UPC cannot be kept under the radar forever. #UPC means: A Danish / … chamber, with a majority of Danish / … judges, on the basis of proceedings in Danish / …, under the surveillance of the #ECJ, can stop production in the UK.”
Yes, exactly. This also makes UPC as a whole unconstitutional. How can one be subjected to rulings in languages one does not even comprehend? This among other things is grounds for the Constitutional complaint in Germany (FCC). █
Permalink
Send this to a friend
Posted in Europe, Patents at 1:21 am by Dr. Roy Schestowitz
From the latest Gazette (referring to software patents as “CII” whilst alluding to "4IR")
Summary: The decline in patent quality at the EPO is becoming a liability to Europe, in effect passing tremendous costs to European businesses and the European public while the EPO’s Chief Economist (another Frenchman with connections to Battistelli) does not seem to care
THE EPO is fast becoming worse than the USPTO when it comes to patent quality. It also targets software patents from the US now that over 50% of EP applications are software-related, by the EPO’s own admission. Yesterday a US-based site published a gender-oriented piece that’s the latest Battistelli puff piece (it’s an ongoing and very expensive PR campaign). To quote:
European Patent Office President Benoit Battistelli praised Sans Takeuchi’s battery work for benefitting millions of patients – and said her advances rank her among history’s top American innovators.
European Inventor Award. Patent award/s. Even to Americans who are literal frauds whose “millions of patients” fell for a scam that EPO management made a European Inventor Award finalist.
It sure sounds as though the EPO grants software patents that are then already used for large-scale litigation campaigns. From yesterday’s press release:
IDnow, Europe’s leading provider of online identity verification solutions for the financial services, mobility, telecommunications and many other sectors, has taken another step in protecting key elements of its innovative online identity platform as the European Patent Office in Munich found its amended patent EP 2 948 891 to be valid.
The patent, which was applied for in January 2014 and was granted by the EPO on May 18, 2016, was contested by the Deutsche Post and another competitor. With 2 minor amendments suggested by IDnow, the EPO maintained the patent.
[...]
The involved parties may appeal this decision, but this will not affect the parallel patent infringement proceedings where there will be a hearing in the Dusseldorf Higher Regional Court in June 2018 to decide whether another competitor of IDnow has violated this patent.
So they now serially go after a whole bunch of companies, over an “online identity platform” patent which is clearly a software patent. Remember that a recent study showed patent trolling in Europe soaring. Maybe Battistelli’s Chief Economist deems/considers that to be a feature, not a bug. Battistelli’s agenda is toxic and highly dangerous not just to the EPO but to everywhere in Europe. █
Permalink
Send this to a friend
Content is available under CC-BY-SA