EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

05.28.18

Microsoft and Its Patent Trolls Face an Uphill Battle in a Patent System Which is Increasingly Hostile Towards Software Patents

Posted in GNU/Linux, Microsoft, Patents at 10:17 am by Dr. Roy Schestowitz

An unusual dumper

Summary: The huge number of shells (trolls) that are connected directly and indirectly to Microsoft are struggling in the age of PTAB and 35 U.S.C. § 101; but that does not mean that we should take our eyes off them (and their proponents)

Microsoft, the company which “loves Linux” so much that it sees the need to create cheesy memes about it and then paste them like a million times all around the World Wide Web, relies on patents granted by the USPTO to sue companies which distribute GNU/Linux. Apple does the same thing. Microsoft typically does this through patent trolls, some of which are based in the Eastern District of Texas, the capital of patent trolls. Some are based elsewhere, e.g. Acacia, and they have a cluster of shell entities (making it incredibly hard to keep track of, just as they intended).

Having spent about a dozen years researching these trolls and their connections, we’re a little harder (than most) to fool. 5 days ago Unified Patents wrote about its petition against Acacia, a Microsoft-connected patent troll (which attacks GNU/Linux vendors). Remember that Acacia had hired for its management from Microsoft just before it sued companies like Red Hat and Novell. Here is what Unified Patents wrote:

On May 23, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 8,902,770 owned and asserted by Cellular Communications Equipment, an Acacia subsidiary and well-known NPE. The ’770 patent, directed to a method for “explicit signaling between a network and the user equipment,” has been asserted in district litigation against such companies as Apple, ZTE, AT&T, Verizon, Sprint, Boost Mobile, and T-Mobile.

Acacia is still around unfortunately; it’s also active. The above names one of its many shells, “Cellular Communications Equipment” (it would be hard to know this connection without some research). Watch out for another shell called “PanOptis” because “Sony transfers over 100 US patents to NPE PanOptis,” IAM notes, linking to its article which in turn links PanOptis to other trolls, such as Avanci (mentioned here more recently again). To quote: “Recent USPTO records show that Sony has transferred a portfolio of over one hundred US patents to an affiliate of NPE PanOptis, a part of the Marconi Group. The Japanese company already participates in the Avanci and Velos patent pools, and its link-up with PanOptis underlines Marconi’s diverse offering. Sony assigned 135 US patent rights to Plano-based Wi-Fi One LLC on 26th January, but the transaction was not recorded until last month. Wi-Fi One is just one of the vehicles controlled by PanOptis, the NPE founded by Leslie Ware which became part of the Marconi Group in February 2017.”

Wi-Fi One is another patent troll which we wrote many articles about (in recent months). Notice the trend; large companies like Sony, which shares investments with Microsoft in several patent cartels (e.g. Rockstar Consortium and Intellectual Ventures), spread patents to trolls. As for Avanci (Ericsson-connected, also part of Rockstar Consortium, along with Apple and BlackBerry), IAM says that its “auto royalty fee [on many Linux-powered systems] will be $3 to $15 per vehicle no matter how many patent owners sign up to our auto platform, the firm confirms to IAM.”

The underlying article (not behind paywall for a change) says more:

There will be no changes to the $3 to $15 per car royalty fees licensees are asked to pay to access the patents that form the Avanci auto patent platform, the firm has told IAM. “As we add new patent owners to the Avanci platform, the price the licensees pay for a licence will not increase,” Luke McLeroy, vice president of business development, said. “In fact, after publishing our rates in December of 2017, Avanci added four patent owners to the platform and the price didn’t increase. This is the case even if all standard essential patent owners join the platform.”

[...]

Each of the manufacturers that Avanci is talking to, said McLeroy, “is on its own journey in determining how wireless can be implemented within their respective products”. He continued: “Within this journey, there are different stages of understanding on how the licensing process works in the telecommunications space vs the automotive industry and it takes time to find that common ground where a licence can be taken.”

These patents are all rather dodgy, but put together in a pool (like that of MPEG-LA) it’s far too expensive to challenge them all. A combination of many dubious patents in large numbers (quantity) is how Microsoft typically blackmails Android and GNU/Linux/ChromeOS OEMs. Sometimes it’s not even Microsoft doing the blackmail (not directly anyway). Microsoft can always rely on its special patent troll, Intellectual Ventures, to do the lawsuit or pass patents to one of its thousands of shells to do that. It’s one heck of a racket!

Mr. Gross has this new update about the Patent Trial and Appeal Board’s (PTAB) ruling on litigation ‘ventures’ of Intellectual Ventures: “have no idea what IV patent attys were thinking appealing this patent case to PTAB; subject matter (“selling insurance policies,””funding at least one of purchase…””inducing water temperature changes”) just invites a beating with 101 stick over head: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005828-05-07-2018-1 …”

He’s referring to Section 101 (Alice). It always gets them. Here’s one of Microsoft’s: “MSFT wins rare [Section] 101 case at PTAB for utterance clustering based on Mcro: “process performed by human animators is not the same as that as the rules-based process recited in the claimed automation, as the human process is driven by subjective determinations” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017010766-05-08-2018-1 …”

Another PTAB case, Hakkani-Tur, speaks of “rejection of all twenty pending claims in U.S. Application No. 14/846,486, for which the real party in interest is Microsoft. [...] The claims had been rejected under 35 U.S.C. § 101…”

Here’s the relevant bunch of passages:

In a decision issued earlier this month, the U.S. Patent and Trademark Office Patent Trial and Appeal Board reversed the final rejection of all twenty pending claims in U.S. Application No. 14/846,486, for which the real party in interest is Microsoft. The claims at issue are directed to a system that trains a spoken language understanding (SLU) classifier based on user intent gleaned from user utterances (i.e., spoken natural language sentences and phrases, such as “send Mom an email”). In particular, the claimed invention involves collecting a variety of user utterances and semantically parsing the utterances (i.e., mapping the utterances into machine-understandable representations of their respective meanings) to generate a single graph that represents all the utterances in the form of nodes. The claimed invention then involves clustering (i.e., grouping) the utterances by similar user intent, and using the resulting groups to train the SLU classifier.

[...]

But the Board disagreed with the Examiner on all three points. The Board was quick to note that, although the portions of App. No. 14/846,486 cited by the Examiner might describe mathematical calculations, they do not discuss an SLU classifier, but rather discuss a method of developing the graph used to train the SLU classifier. In addition, the Board stated that the last two steps of claim 1 are more than just field of use limitations.

Does this mean that PTAB can impact Microsoft’s (patent) war on GNU/Linux?

Mr. Gross goes on and on with Section 101. He wrote: “PTAB says Bilski ONLY applies to process claims: MOT test “applies to claimed processes-a category of subject matter under § 101 that is distinct from the dynamic messaging system recited in claim 1 that falls within the apparatus category in that statute” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017002826-05-07-2018-1 …” and then this:

PTAB invents new standard for §101 implying that “something more than the abstract idea” Alice part 2 test cat be met UNLESS there is an improvement to “the technical field of computers, communications, networking, or otherwise.” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017002116-05-14-2018-1 … NO SUCH PRECEDENT EXISTS!

Mr. Gross has long attacked PTAB and wrote for Web sites of patent trolls. An online buddy of his said: “The PTAB Reversed the Examiner’s 101/Mayo and 103 Rejections of Claims in a Medtronic Patent Application Directed to Improving Bladder Function: https://anticipat.com/pdf/2018-05-01_13764911_178530.pdf …”

This is very rare a thing. This is why it’s being pointed out. It’s like all those times the patent maximalists name-drop Berkheimer as if it’s the only court decision that matters. Berkheimer was overhyped nonsense from the patent microcosm, which merely hoped that by 'pulling a Berkheimer' 24/7 there would be renewed interest in software patents. Here goes Mr. Gross again: “PTAB already skirting most of CAFC Berkheimer ruling: “Appellants’ Specification teaches …that the processes, and steps of the invention, may be realized” using hardware that “may include a general purpose computer and/or dedicated computing device” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016004156-05-01-2018-1 …”

They’re leaving Berkheimer behind, unlike Mr. Iancu.

Lawrence Ashery of Caesar, Rivise, Bernstein, Cohen & Pokotilow has meanwhile published this long piece in support of software patents, relying solely on Berkheimer and a muchly-mesmerised (by it) Iancu. Media of law firms basically pretends that the goal should be to allow software patenting and it also overplays Berkheimer, as expected (marketing, lobbying, not advice). To quote some bits:

Then, an interesting court opinion was published in February (Berkheimer v. HP, 17-1437 (Fed. Cir. 2018)). Steven Berkheimer had sued Hewlett-Packard (HP) for infringing his patent for digitally processing and archiving files. The district court ruled that Berkheimer’s patent was invalid, because it was directed to patent-ineligible subject matter. Specifically, the court stated that Berkheimer’s inventive concept failed the second step of the Alice test because his invention related to “steps that employ only well understood, routine, and conventional computer functions.” On appeal, Berkheimer argued that whether an invention is “well understood, routine and conventional is an underlying fact question for which HP offered no evidence.” The U.S. Court of Appeals for the Federal Circuit agreed with Berkheimer, and remanded the case to the district court so that the necessary factual determination could be made.

Berkheimer v HP was also brought up by the PTAB-hostile Anticipat 5 days ago. “Expect the Berkheimer-driven patent-eligibility pendulum to swing at the PTAB,” said the headline, but no, not really. Months down the line nothing has really changed. Here is what Anticipat wrote:

The past few months have seen huge developments in patent-eligibility at the USPTO. In three and a half years after Alice, the most effective way to argue against patent-eligibility for software applications was to focus on Step 1–that the claims are not directed to an abstract idea. But based on these recent developments, Step 2–that additional elements of the claims transform the judicial exception into something more–looks to be the more powerful way. The only problem is that the PTAB has not yet caught on. It will.

These huge developments have taken place in the form of Federal Circuit decisions deciding patent-eligibility favorably to the patentee, especially Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018). Such a clear articulation of the need for factual findings for Step 2 should usher in big change in how the Alice/Mayo framework is applied.

Anticipat uses the phrase “huge developments” twice, but Berkheimer was hardly that. Oil States was. Then again, what can be expected from a firm whose sole goal and business model is PTAB-bashing?

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. The EPO Has Sadly Taken a Side and It's the Patent Trolls' Side

    Abandoning the whole rationale behind patents, the Office now led for almost a year by António Campinos prioritises neither science nor technology; it's all about granting as many patents (European monopolies) as possible for legal activity (applications, litigation and so on)



  2. Where the USPTO Stands on the Subject of Abstract Software Patents

    Not much is changing as we approach Easter and software patents are still fool's gold in the United States, no matter if they get granted or not



  3. Links 19/3/2019: Jetson/JetBot, Linux 5.0.3, Kodi Foundation Joins The Linux Foundation, and Firefox 66

    Links for the day



  4. Links 18/3/2019: Solus 4, Linux 5.1 RC1, Mesa 18.3.5, OSI Individual Member Election Won by Microsoft

    Links for the day



  5. Microsoft and Its Patent Trolls Continue Their Patent War, Including the War on Linux

    Microsoft is still preying on GNU/Linux using patents, notably software patents; it wants billions of dollars served on a silver platter in spite of claims that it reached a “truce” by joining the Open Invention Network and joining the LOT Network



  6. Director Iancu Generally Viewed as a Lapdog of Patent Trolls

    As Director of the Office, Mr. Iancu, a Trump appointee, not only fails to curb patent trolls; he actively defends them and he lowers barriers in order to better equip them with bogus patents that courts would reject (if the targets of extortion could afford a day in court)



  7. Links 17/3/2019: Google Console and IBM-Red Hat Merger Delay?

    Links for the day



  8. To Team UPC the Unified Patent Court (UPC) Has Become a Joke and the European Patent Office (EPO) Never Mentions It Anymore

    The EPO's frantic rally to the very bottom of patent quality may be celebrated by obedient media and patent law firms; to people who actually produce innovative things, however, this should be a worrisome trend and thankfully courts are getting in the way of this nefarious agenda; one of these courts is the FCC in Germany



  9. Links 16/3/2019: Knoppix Release and SUSE Independence

    Links for the day



  10. Stopping António Campinos and His Software Patents Agenda (Not Legal in Europe) Would Require Independent Courts

    Software patents continue to be granted (new tricks, loopholes and buzzwords) and judges who can put an end to that are being actively assaulted by those who aren't supposed to have any authority whatsoever over them (for decisions to be impartially delivered)



  11. The Linux Foundation Needs to Speak Out Against Microsoft's Ongoing (Continued) Patent Shakedown of OEMs That Ship Linux

    Zemlin actively thanks Microsoft while taking Microsoft money; he meanwhile ignores how Microsoft viciously attacks Linux using patents, revealing the degree to which his foundation, the “Linux Foundation” (not about Linux anymore, better described as Zemlin’s PAC), has been compromised



  12. Links 15/3/2019: Linux 5.0.2, Sublime Text 3.2

    Links for the day



  13. The EPO and the USPTO Are Granting Fake Patents on Software, Knowing That Courts Would Reject These

    Office management encourages applicants to send over patent applications that are laughable while depriving examiners the freedom and the time they need to reject these; it means that loads of bogus patents are being granted, enshrined as weapons that trolls can use to extort small companies outside the courtroom



  14. CommunityBridge is a Cynical Microsoft-Funded Effort to Show Zemlin Works for 'Community', Not Microsoft

    After disbanding community participation in the Board (but there are Microsoft staff on the Board now) the "Linux Foundation" (or Zemlin PAC) continues to take Microsoft money and polishes or launders that as "community"



  15. Links 14/3/2019: GNOME 3.32 and Mesa 19.0.0 Released

    Links for the day



  16. EPO 'Results' Are, As Usual, Not Measured Correctly

    The supranational monopoly, a monopoly-granting authority, is being used by António Campinos to grant an insane amount of monopolies whose merit is dubious and whose impact on Europe will be a net negative



  17. Good News Everyone! UPC Ready to Go... in 2015!

    Benoît Battistelli is no longer in Office and his fantasy (patent lawyers' fantasy) is as elusive as ever; Team UPC is trying to associate opposition to UPC with the far right (AfD) once again



  18. Links 13/3/2019: Plasma 5.15.3,Chrome 73 and Many LF Press Releases

    Links for the day



  19. In the Age of Trumpism EFF Needs to Repeatedly Remind Director Iancu That He is Not a Judge and He Cannot Ignore the Courts

    The nonchalance and carelessness seen in Iancu's decision to just cherry-pick decisions/outcomes (basically ignoring caselaw) concerns technologists, who rightly view him as a 'mole' of the litigation 'industry' (which he came from)



  20. Links 12/3/2019: Sway 1.0 Released, Debian Feuds Carry On

    Links for the day



  21. Microsoft is Complaining About Android and Chrome OS (GNU/Linux) Vendor Not Paying for Microsoft Patents (Updated)

    Microsoft, which nowadays does the patent shakedown against GNU/Linux by proxy, is still moaning about companies that don’t pay ‘protection’ money (grounds for antitrust action or racketeering investigation)



  22. Watchtroll Has Redefined "Trolls" to Mean Those Who Oppose Software Patents (and Oppose Trolls), Not Those Who Leverage These for Blackmail Alone

    The controversial change to 35 U.S.C. § 101 guidance is being opposed by the public (US citizens who oppose American software patents), so patent maximalists like Janal Kalis (“PatentBuddy”) and extremists like Gene Quinn (Watchtroll) want us to believe that the public is just “EFF” and cannot think for itself



  23. EPO's Latest 'Results' Show That António Campinos Has Already Given Up on Patent Quality and is Just Another Battistelli

    The patent-granting machine that the EPO has become reports granting growth of unrealistic scale (unless no proper examination is actually carried out)



  24. Links 11/3/2019: Linux 5.0.1, Audacity 2.3.1, GNU Coreutils 8.31

    Links for the day



  25. US Patent Law Currently Not Changing Much and Software Patents Are Still in Limbo

    Surveying the news, as we still meticulously do (even if we don't write about it), it seems clear that American courts hardly tolerate software patents and proponents of such patents are losing their voice (or morale)



  26. EPO Examiner: “I Have Been Against Software Patents and Eventually 3/4 of My Job is Examining Software Patent Applications.”

    Overworked examiners aren't being given the time, the tools and the freedom to reject patents, based on prior art, patent scope and so on; it is beginning to resemble a rubber-stamping operation, not an examining authority



  27. Europe Will Pay a High Price for Software Patents Advocacy by António Campinos in Europe's Patent-Granting Authority

    EPO President António Campinos — like Iancu at the U.S. Patent and Trademark Office (USPTO) — is still promoting software patents in Europe even though such patents are clearly detrimental to Europe’s interests



  28. António Campinos -- Like His Father -- Lacks Support From Colleagues, Endorsed Only From the Top

    History lessons from Wikileaks



  29. Links 10/3/2019: GNU and GNOME Releases

    Links for the day



  30. Koch Brothers' Oil Money is Poisoning Academia and Distorting Scholarly Work/Research on Patents

    Meddling in patent law by the Kochs, the oil tycoons who can be seen everywhere Conservative think tanks are, shows no signs of abatement


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts