05.05.18
Post-Alice, Using Software Patents, Microsoft-Backed Patent Troll Finjan Continues Suing Microsoft’s Competitors
Will Microsoft use this lawsuit too in order to promote “Azure IP Advantage”, i.e. paying Microsoft ‘rents’ which are ‘protection’ money to guard oneself from Microsoft’s own patent trolls?
Summary: Finjan’s warpath of destruction shows no signs of stopping; it’s now suing Check Point, a relatively large company that occasionally exposes issues in Microsoft’s software
EARLIER this year we repeatedly noted that in 2017 the Court of Appeals for the Federal Circuit (CAFC) had rejected software patents pretty much every single time. In early 2018, however, in spite of squashing most USPTO-granted patents of a Microsoft-connected troll, Finjan, one patent endured and it caused a lot of damage. Tens of millions of dollars in so-called ‘damages’.
Finjan has already blackmailed or sued pretty much all of Microsoft’s important rivals in the security space. It’s a grotesque troll whose former staff is disgusted too (some of them protest Finjan’s actions, citing our coverage of these actions). Law.com (ALM Media Properties, a patent maximalist) has just published this advocacy of software patents from Anthony S. Volpe (Volpe and Koenig) and Harry Vartanian. They profit from patent maximalism, so they are attempting to bypass their Supreme Court (notably Alice) and get software/abstract patents in defiance of restrictions, e.g. by fooling the courts, tricking examiners etc. Don’t expect them to mention cases from 2017; they just ignore all these, instead turning to Microsoft cases such as Enfish (going two years back in addition to the recent case of Microsoft’s troll, Finjan). To quote:
The U.S. Supreme Court’s June 2014 landmark decision Alice v. CLS Bank International, 134 S.Ct. 2347 (2014), altered the course and viability of software patents in the United States and continues to cause uncertainty over the eligibility of software for patent protection. Alice announced a multi-step test for analyzing patent eligibility, under which the basic question for any software application is, “does the application satisfy the patent eligibility conductions of 35 U.S.C. Section 101 (Section 101)?” The United States Patent and Trademark Office (USPTO) has established examiner guidelines for software patent applications and patent practitioners have become increasingly skilled at responding to USPTO Section 101 rejections. Since the Alice decision, a number of decisions by the U.S. Court of Appeals for the Federal Circuit, a number of Federal Circuit decisions have had great influence on the examination practice in software, and at least two 2018 decisions by the Federal Circuit in patent infringement appeals have found the asserted software claims to be patent eligible. In both of these patent infringement appeals, the decision hinged on the disclosure or written content of the application’s specification.
[...]
Finjan arose out of a patent infringement action that Finjan brought against Blue Coat Systems alleging infringement of four Finjan patents, including U.S. 6,154,844, that are directed to identifying and protecting against malware. Finjan, at 1302. As a result of the trial in the district court, the jury awarded Finjan $39.5 million as reasonable royalty damages, which included $24 million for Blue Coat Systems’ infringement of the ‘844 patent. In a related bench trial addressing the nonjury legal issues, the district court concluded that satisfied Section 101 the ‘844 patent contained patent-eligible subject matter.
We lack the time to do a point-by-point rebuttal, but Vartanian and Volpe basically cherry-pick a handful among many hundreds of cases. They mention only what suits their marketing agenda. This is typical. We’ll supply some more examples of this tomorrow.
What is worth noting, however, is that Finjan is still drunk on power, eager to sue just about anything that moves until courts (or PTAB) stop it.
This Microsoft-funded patent troll is trolling “big time” again. It has only been weeks since the last time (see correction and press release). What we have here is an Israeli patent troll suing an Israeli technology company, also in the US. NASDAQ wrote about this [1, 2] as follows:
Finjan Holdings Inc. (FNJN) said it has filed a patent infringement lawsuit against Check Point Software Technologies Inc. ( CHKP ) and Check Point software Technologies Ltd.
The Complaint, filed in the U.S. District Court for the Northern District of California on March 3, 2018,, alleged that the Check Point products infringed at least one or more of Finjan patents.
Microsoft must be very pleased to see its patent trolls doing a lot of damage. Microsoft is getting its money’s worth. Maybe Microsoft will use this to encourage people to pay Microsoft Azure ‘rents’ (for ‘protection’). That’s the company’s latest business model: an extortion racket called “Microsoft Azure IP Advantage”. █
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