07.08.18

Gemini version available ♊︎

Apple Has Far More to Lose Than to Gain From Patent Maximalism; Apple Needs to Fight for Patent Sanity

Posted in America, Apple, Patents, Samsung at 2:05 pm by Dr. Roy Schestowitz

Zeroclick, Uniloc, VirnetX, AVRS and many others can cost Apple billions in legal bills and settlements

Apple logo

Summary: It might be time for Apple to rethink its legal strategy; patents are costing the company a great deal of money and have yielded almost nothing for the company’s bottom line (unlike the company’s lawyers, perpetrators of this misguided strategy)

THE SUMMER HOLIDAYS are in full swing and many staff (e.g. EPO and USPTO examiners) likely enjoy a long break right now. In fact, journalists too slowed down; some are away. But it’s never a suitable time for them to stop the Apple hype. Whenever there’s some patent case involving Apple the corporate media suddenly bothers covering patent news (it otherwise doesn’t care because people don’t click on stories unless there’s some famous brand in the headline).

“Whenever there’s some patent case involving Apple the corporate media suddenly bothers covering patent news (it otherwise doesn’t care because people don’t click on stories unless there’s some famous brand in the headline).”This is a short roundup of Apple in patent news. This is far from the first time we point out the exceptional emphasis on Apple; we last mentioned it a few weeks (or 10 days) ago.

Chris Stokel-Walker’s article, “Forget Apple vs Samsung, an even bigger patent war has just begun,” is citing Florian Müller for the most part. Müller is correct and here’s the core thesis:

A tech giant like Samsung, Apple or IBM can register up to 5,000 patents every year – with engineers writing them “at a furious rate”, says Horace Dediu of Asymco, a mobile phone analyst. “IBM does this seriously. They just amass a huge arsenal of patents.” Apple alone has more than 75,000 patents and filed for over 2,200 more since the beginning of 2017. Samsung has filed for more than 10,000 patents in the last 18 months and in total has 1.2 million of them.

“My personal opinion is that this absolutely exorbitant number of patents you find in a phone shows that the hurdle for obtaining a patent is too low,” says Mueller. There should be more substantial investment behind every patent.

Crucially though, patents aren’t just important for protecting people’s inventions: they’re also a money-making tool. “Patents are one of these currencies that is always traded,” explains Dediu – or sold.

They are a tool used against opponents in a highly competitive industry. “If you have a patent, you can stop someone else shipping a product that contains that intellectual property,” says Dediu. “Generally, the rights are entirely held by the patent owner and those rights mean that an infringing product must be withdrawn from the market.”

The malicious use of patents to prevent competition rarely happens, but the sheer scale of the number of patents can stifle innovation. Mueller calls it a “patent thicket”. Companies can develop a new device or a new technology, then find themselves undone. “You inevitably – because there are so many of them – will be found to have infringed a patent,” he says. “That is a real problem for the industry.”

It’s not only Müller who calls it a “patent thicket”; it’s a widely-accepted legal term, albeit with the negative connotation it deserves, just like “patent tax”, “patent troll”, “royalty stacking” and so on. Euphemisms typically contain spurious and misleading words like “fair”, “reasonable” and “nondiscriminatory” (that’s FRAND). Either way, Apple is very aggressive with patents, but nowhere as aggressive as IBM and unlike IBM it also finds itself on the receiving end of a lot of lawsuits, including troll lawsuits (preying on the big ‘wallet’). This is why we habitually encourage Apple to join us in the fight against — not for — software patents. It certainly seems like quite a lot of software patents are being used against Apple, costing it billions of dollars in total.

“It’s not only Müller who calls it a “patent thicket”; it’s a widely-accepted legal term, albeit with the negative connotation it deserves, just like “patent tax”, “patent troll”, “royalty stacking” and so on.”The latest in Uniloc USA, Inc. et al v Apple Inc., as per Docket Navigator, is that “[t]he court granted defendant’s [Apple's] motion to strike plaintiff’s infringement contentions because plaintiff failed to sufficiently identify the accused instrumentalities.”

Uniloc is a major patent troll, just like VirnetX, which also preys on Apple and wants hundreds of millions of dollars.

In a Mac/Apple-oriented site, Joe Rossignol spoke of AVRS, which is not a classic patent troll but mostly software patents without an actual complete product, only litigation and “portfolio” (of patents). To quote Rossignol:

Arizona-based speech recognition technology company AVRS, short for Advanced Voice Recognition Systems, Inc., has filed a lawsuit against Apple this week, accusing the iPhone maker of infringing on one of its patents with its virtual assistant Siri, according to court documents obtained by MacRumors.

Those are software patents and the Patent Trial and Appeal Board (PTAB), if an inter partes review (IPR) was pursued, would likely cause them to perish. A few days ago a new example of this (patents on “Phonetic Symbol System”) was dealt with by the Federal Circuit (CAFC). “In a non-precedential decision,” Patently-O admitted, “the Federal Circuit has rejected George Wang’s pro se appeal — affirming the PTAB judgment that Wang’s claimed phonetic symbol system lacks eligibility under Section 101.”

“It certainly seems like quite a lot of software patents are being used against Apple, costing it billions of dollars in total.”Well, obviously. The patent system has become almost self-satirising and sites of patent maximalists are still cherry-picking slightly older (June) CAFC cases where mere dissent — not eventual judgment — gives hope to these maximalists.

And speaking of maximalists, the case of Zeroclick against Apple was brought up again at the end of last month. Patent Docs‘ patent maximalist Michael Borella belatedly catches up with Zeroclick, LLC v Apple Inc. (we have already mentioned Zeroclick in [1, 2, 3]), noting that “it is not uncommon for software inventions to be claimed as methods” (that’s purely semantics). To quote the details, which deal with § 112 rather than § 101:

Most software inventions are functional in nature. The focus is not on what the invention is so much as what it does. The same physical hardware can be programmed by way of software to carry out an infinite number of different operations. Thus, it is not uncommon for software inventions to be claimed as methods. But when such inventions are claimed from the point of view of hardware carrying out a method, the patentee runs the risk of the claims being interpreted under 35 U.S.C § 112(f) (pre-AIA § 112 paragraph 6) as being in “means-plus-function” form. This, of course, can effectively narrow the scope of the claims to embodiments disclosed in the specification and equivalents thereof. Also, such claims can be found invalid if the specification does not disclose sufficient structure to support the embodiments.

[...]

“First, the mere fact that the disputed limitations incorporate functional language does not automatically convert the words into means for performing such functions.” Notably, many structural components or devices are named after the functions they perform.

“Second, the court’s analysis removed the terms from their context, which otherwise strongly suggests the plain and ordinary meaning of the terms.” Particularly, the terms “program” and “user interface code” were not used in the claim as nonce terms, but instead refer to “conventional graphical user interface programs or code, existing in prior art at the time of the inventions.” And as explained in the specifications, the claimed invention was an improvement to such interfaces and code.

“Third, and relatedly, the district court made no pertinent finding that compels the conclusion that a conventional graphical user interface program or code is used in common parlance as substitute for ‘means.’” The Federal Circuit suggested that use of a broader term, such as “module”, in place of “program” and “user interface code” would have likely have invoked § 112(f).

For these reasons, the Federal Circuit reversed the District Court and remanded the case for further proceedings.

Patents on graphical user interfaces don’t relate to § 101, as we noted earlier this year (on numerous occasions even), but they oughtn’t be granted because copyrights and trademarks already cover appearances. If Apple fought against patent maximalism, many of these nuisance lawsuits would likely stop.

The patent trolls’ lobby, IAM, expectedly worries that Qualcomm might lose key patents. And why? Because Apple does in fact reach out to PTAB, reaffirming the idea that technology companies need and support PTAB. IAM said that “the Apple v Qualcomm battle royale took on a new front in June as the iPhone giant turned to the Patent Trial and Appeal Board (PTAB) to try to invalidate several of its rival’s patents. It is the first time that Qualcomm, widely seen to have one of the more valuable patent portfolios in the mobile and semiconductor sectors, has seen its grants challenged at the PTAB and should Apple start successfully knocking out some of its adversary’s patent claims it would give the tech giant some helpful leverage in a dispute…”

“If Apple fought against patent maximalism, many of these nuisance lawsuits would likely stop.”Similar things have happened in Europe, as we covered here earlier this year. Will patent maximalists soon start demonising Apple too, calling it “anti-patent”? Well, the PTAB-bashing Watchtroll again covers news from 3 weeks ago, adding nothing new except its pro-patent trolls slant (“Apple Brings Patent Battle Against Qualcomm to PTAB With Six IPR Petitions on Four Patents”), having covered another Apple story with this propaganda headline. The said case showed that only lawyers win in patent disputes, but here they go saying that 7 years of fighting is actually “Proving Patent Litigation Doesn’t Hinder Consumer Access” (the term “consumer” is an insulting word for customer and features were actually removed from these phones as a result of the fighting, directly harming customers). Had Steve Jobs never declared a patent war on Android, Apple would likely be in the same position that it’s in right now, albeit with fewer lawyers, not many legal bills, and without negative press coverage (berating it for patent aggression).

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Austria's Right-Wing Politicians Displaying Their Arrogance to EPO Examiners

    The EPO‘s current regime seems to be serving a money-hungry lobby of corrupt officials and pathological liars; tonight we focus on Austria



  2. [Meme] Friedrich Rödler's Increasingly Incomprehensible Debt Quagmire, Years Before EPO Money Was Trafficked Into the Stock Market

    As it turns out, numerous members of the Administrative Council of the EPO are abundantly corrupt and greedy; They falsely claim or selfishly pretend there’s a financial crisis and then moan about a "gap" that does not exist (unless one counts the illegal gambling, notably EPOTIF, which they approved), in turn recruiting or resorting to scabs that help improve ‘profit margins’



  3. The EPO’s Overseer/Overseen Collusion — Part XV: Et Tu Felix Austria…

    Prior to the Benoît Battistelli and António Campinos regime the EPO‘s hard-working staff was slandered by a corrupt Austrian official, Mr. Rödler



  4. Links 17/10/2021: Blender 2.93.5, Microsoft Bailouts

    Links for the day



  5. Links 17/10/2021: GhostBSD 21.10.16 and Mattermost 6.0

    Links for the day



  6. IRC Proceedings: Saturday, October 16, 2021

    IRC logs for Saturday, October 16, 2021



  7. [Meme] First Illegally Banning Strikes, Then Illegally Taking Over Courts

    The vision of Team Battistelli/Campinos is a hostile takeover of the entire patent system, not just patent offices like the EPO; they’d stop at nothing to get there



  8. Portuguese Network of Enablers

    Instead of serving Portuguese people or serving thousands of EPO workers (including many who are Portuguese) the delegation from Portugal served the network of Campinos



  9. In Picture: After Billions Spent on Marketing, With Vista 11 Hype and Vapourware, No Real Gains for Windows

    The very latest figures from Web usage show that it’s hardly even a blip on the radar; Windows continues bleeding to death, not only in servers



  10. [Meme] [Teaser] Double-Dipping Friedrich Rödler

    As we shall see tomorrow night, the EPO regime was supported by a fair share of corrupt officials inside the Administrative Council



  11. The EPO’s Overseer/Overseen Collusion — Part XIV: Battistelli's Iberian Facilitators - Portugal

    How illegal “Strike Regulations” and regressive ‘reforms’ at the EPO, empowering Benoît Battistelli to the detriment of the Rule of Law, were ushered in by António Campinos and by Portugal 5 years before Campinos took Battistelli’s seat (and power he had given himself)



  12. Links 16/10/2021: SparkyLinux Turns 10 and Sculpt OS 21.10

    Links for the day



  13. “Facebook Whistleblowers” Aside, It Has Been a Dying Platform for Years, and It's Mentally Perverting the Older Generation

    Guest post by Ryan, reprinted with permission



  14. [Meme] Microsoft Has Always Been About Control Over Others

    Hosting by Microsoft means subjugation or a slavery-like relationship; contrary to the current media narrative, Microsoft has long been censoring LinkedIn for China’s autocratic regime; and over at GitHub, as we shall show for months to come, there’s a war on information, a war on women, and gross violations of the law



  15. EFF Pushes for Users to Install DuckDuckGo Software After Being Paid to Kill HTTPS Everywhere

    Guest post by Ryan, reprinted with permission



  16. The Reign in Spain

    Discussion about the role of Spain in the EPO‘s autocratic regime which violates the rights of EPO staff, including Spanish workers



  17. [Meme] Spanish Inquisition

    Let it be widely known that Spain played a role in crushing the basic rights of all EPO workers, including hundreds of Spaniards



  18. Why You Shouldn’t Use SteamOS, a Really Incompetent GNU/Linux Distribution With Security Pitfalls (Lutris is a Great Alternative)

    Guest post by Ryan, reprinted with permission



  19. IRC Proceedings: Friday, October 15, 2021

    IRC logs for Friday, October 15, 2021



  20. Links 16/10/2021: Xubuntu 21.10 and DearPyGui 1.0.0

    Links for the day



  21. DuckDuckGo’s HQ is Smaller Than My Apartment

    Guest post by Ryan, reprinted with permission



  22. Post About Whether Vivaldi is a GPL violation Was Quietly Knifed by the Mods of /r/uBlockOrigin in Reddit

    Guest post by Ryan, reprinted with permission



  23. The EPO’s Overseer/Overseen Collusion — Part XIII: Battistelli's Iberian Facilitators - Spain

    The EPO‘s António Campinos is an ‘Academy’ of overt nepotism; what Benoît Battistelli did mostly in France Campinos does in Spain and Portugal, severely harming the international image of these countries



  24. From Competitive (Top-Level, High-Calibre, Well-Paid) Jobs to 2,000 Euros a Month -- How the EPO is Becoming a Sweatshop by Patent Examiners' Standards

    A longish video about the dreadful situation at the EPO, where staff is being ‘robbed’ and EPO funds get funnelled into some dodgy stock market investments (a clear violation of the institution’s charter)



  25. [Meme] Protecting European Patent Courts From EPO 'Mafia'

    With flagrant disregard for court rulings (or workarounds to dodge actual compliance) it seems clear that today's EPO management is allergic to justice and to judges; European Patents perish at unprecedented levels in national European courts and it should be kept that way



  26. Links 15/10/2021: Pine64's New PinePhone Pro and Ubuntu 22.04 LTS Codename

    Links for the day



  27. [Meme] GitHub Isn't Free Hosting, It's All About Control by Microsoft

    Deleting GitHub isn’t a political statement but a pragmatic decision, seeing how Microsoft routinely misuses its control over GitHub to manipulate the market



  28. With EPO 'Strike Regulations' Belatedly Ruled Unlawful, EPO Management May be Lowering the Salary Even Further by Introducing Outside 'Temps' or Casual Workers

    Institutional capture by an 'IP' (litigation) Mafia is nearly complete; with illegal so-called (anti) 'Strike Regulations' out the door, they're quickly moving on to another plan, or so it seems on the surface



  29. Links 15/10/2021: 95% of Ransomware Targets Windows

    Links for the day



  30. IRC Proceedings: Thursday, October 14, 2021

    IRC logs for Thursday, October 14, 2021


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

Recent Posts