08.19.18

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Patent Trolls Roundup: Conversant Wireless Licensing (Formerly Core Wireless) and Blackbird ‘Technologies’ Still Prey on Real Companies

Posted in America, Patents at 1:01 pm by Dr. Roy Schestowitz

Conversant is armed by Microsoft

Cute adorable rodent

Summary: A quick recap of recent decisions and motions, which serve to show that patent trolls can be beaten, avoided, and sometimes even ‘disarmed’

THE latest from familiar patent trolls may or may not suggest a slowdown. We generally don’t hear about them as much as we used to; litigation numbers have declined and some are exploring China for alternative ‘opportunities’ (to sue). The IAM sponsors, the Microsoft-armed trolls and this whole ‘industry’ of patent blackmail is unable to win many cases in the United States; USPTO-granted abstract patents or patents on essential/industry standards, i.e. things one must implement merely to be in compliance/compatibility with everyone else, have become harder to enforce. Courts are more restrictive and they have become more rational (in lieu with public interest).

“…any presence or involvement in places like Eastern Texas (e.g. a Google datacentre, or even a third party, as recently tested in court) would be a major legal liability.”The pro-trolls (who writes for their Web sites) Mr. Gross is attacking Lemley again (as usual), blaming Google (as they all do nowadays). “Its everywhere,” he wrote, “GOOG’s outside litigation attorney (Lemley) routinely files materials to Congress pretending to be an objective non-partisan “academic” representing the public interest; he signs off/uses his Professorship as a facade…”

This was said in response to this old tweet about the Google Transparency Project only a short time after Lemley wrote that the “Federal Circuit holds that failing to disclose a patent to a standards body may render that patent unenforceable.”

It actually links to this document (PDF embedded in page, regarding Core Wireless Licensing v Apple Inc.). It’s about Google’s rival, Apple, on the receiving end. What we have here is an important Federal Circuit ruling that may mean the demise of a Microsoft-connected troll. What we have not found yet is press coverage about it. It is not so new a case, but it’s still worth exploring the broader ramifications of it.

There is another interesting twist in a lower US court. The Docket Navigator looked at RegenLab USA LLC v. Estar Technologies Ltd. et al and said that the “court denied one defendant’s motion to dismiss for improper venue because defendant had a regular and established place of business through an employee’s home office in the forum.” This is why any presence or involvement in places like Eastern Texas (e.g. a Google datacentre, or even a third party, as recently tested in court) would be a major legal liability. It is a point we keep repeating and stressing, knowing that it’s not often recognised and said in the press. In post-TC Heartland (SCOTUS, 2017) patent litigation this may seem rather trivial/obvious.

Mike Masnick (TechDirt founder) wrote about Bitmovin’s defense from the patent troll Blackbird ‘Technologies’, known more recently (especially last year) for its actions against Internet companies. To quote:

A few years back, e-commerce company Newegg decided to take something of a scorched earth approach to all of the various patent trolls that came after it: it would never settle with a patent troll. While many trolls rely on the fact that it’s cheaper to settle than to fight in court (even if you win), Newegg did the longer term calculation, and recognized that even if it cost more to defeat trolls in court, by being very public with its stance in fighting it would likely scare off trolls from continuing to sue the company. It took a few years, but the strategy mostly worked. Trolls have mostly learned to steer clear of Newegg.

Last year, Cloudflare decided to up the ante a bit on such a strategy. After a patent troll went after it, Cloudflare didn’t just promise to fight back, it promised to effectively burn the patent troll into the ground. It set up a bounty looking for prior art on every patent held by that patent troll (Blackbird Technologies), and also filed ethics complaints against the lawyers who ran the company, arguing that they were pretending not to practice law when they clearly were. That strategy has resulted in an easy win over Blackbird in court while various Blackbird patents are being challenged.

It appears that approach is inspiring other companies as well. Streaming infrastructure company Bitmovin’s General Counsel Ken Carter (who, notably, used to work at Cloudflare) put up a blog post describing just how it dealt with a recent patent troll. After first pointing out that patents can be important, and noting that the company itself holds some patents, the post reminds everyone that it’s possible to abuse the patent system.

Christine Hall wrote: “The takeaway? Don’t settle with patent trolls. Hit ‘em with all ya got..”

Well, if one can afford it. The problem is that trolls (copyright or patent trolls) can pursue those whom they know cannot afford a day in court, extracting from them so-called ‘protection’ money instead; that’s why the ultimate solution would be complete invalidation of such poor, problematic patents.

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