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08.28.18

Instead of Stopping Software Patent Grants the USPTO Actively ‘Advertises’ Such Patents, e.g. Patents on Cryptocurrencies

Posted in America, Patents at 3:48 am by Dr. Roy Schestowitz

The USPTO isn’t being impartial or compliant with respect to SCOTUS

Advertising blockchain patents

Summary: Patent applications on blockchains/cryptocurrencies should be tossed out based on 35 U.S.C. § 101, but the numbers-driven US patent office continues to demonstrate its reluctance to reject such software patents (same at the EPO)

The Patent Trial and Appeal Board (PTAB) definitely needs to step in, possibly joined by courts like the Federal Circuit, and tackle (e.g. by inter partes reviews (IPRs)) the plague of “blockchain”-themed patents that the U.S. Patent and Trademark Office (USPTO) keeps granting and even promoting in spite of 35 U.S.C. § 101/Alice. Cryptocurrencies are gaining a foothold/traction in a lot of places. This poses a threat/risk to today’s large banks and financial institutions because it weakens their monopoly/oligopoly. Bank of America is still trying to trip up its competitors using bogus software patents, as we mentioned on Monday (early morning). All the usual suspects (Intuit, Wells Fargo, IBM, and Bank of America) want their competition terrified of patents even if they’re invalid/bunk abstract/software patents that would be rejected by courts. To quote one new report:

The Bank of America is the succeeding largest United States bank regarding its total assets. The bank has filed a manifest with the U.S. Patent and Trademark Office that published on 23 August. This development is similar to the patents that are awarded, or functioned, by many multinational establishments such as Intuit, Wells Fargo, and IBM.

Bank of America simply wraps patent barbwire around cryptocurrencies [1, 2, 3, 4, 5]. It’s all over the news this week (not just towards the weekend).

“They’re not machinery or chemistry or whatever.”Why are such patents being filed and often granted? Because of hype? Cryptocurrencies are a relatively new concept and the same can be said about blockchain, but they’re still abstract concepts. They’re not machinery or chemistry or whatever.

This problem goes well beyond finance. VoIP-Pal.com v Twitter was mentioned here before (e.g. earlier this month) in relation to venue shifting, which invokes TC Heartland. VoIP-Pal.com has already been going after other companies and it faces legal challenges, e.g. with IPRs filed against its patents. These tactless attempts to drag patent litigation to totally irrelevant (to the defendant) states was mentioned yesterday by Patent Docs. To quote:

Last month, in VoIP-Pal.com, Inc. v. Twitter, Inc., District Judge Richard F. Boulware, II of the U.S. District Court for the District of Nevada issued an Order granting a Motion to Change Venue filed by Defendant Twitter, Inc. The dispute between the parties began when Plaintiff VoIP-Pal.com, Inc. filed suit against Twitter, asserting infringement of U.S. Patent Nos. 8,542,815 and 9,179,005. Following a stay of the case due to pending proceedings before the Patent Trial and Appeal Board, Twitter filed its Motion to Change Venue, VoIP-Pal.com filed a response to Twitter’s Motion, and Twitter filed a Reply to VoIP-Pal.com’s response. Prior to issuing its Order, the District Court held a hearing on the matter and ordered Twitter to file a Supplemental Declaration to address whether it had any physical equipment or leased any space in Nevada, including space for data storage, or other support equipment or hardware.

The District Court began by noting that for the purposes of determining venue under the patent venue statute, the location where a defendant corporation “resides” is limited to the corporation’s State of incorporation, citing TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 1517 (2017). The District Court also noted that in view of TC Heartland, the Federal Circuit addressed the question of where a defendant corporation has a “regular and established place of business” under the patent venue statute in In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017). In Cray, the Federal Circuit set forth three requirements to establish the second prong of the § 1400(b) venue test: “(1) there must be a physical place in the district; (2) it must be a regular and established place of business; and (3) it must be the place of the defendant” (In re Cray, 871 F.3d at 1360), all three of which must be satisfied for venue to be proper.

These abstract software patents would likely be voided by PTAB, but in the meantime we assume that VoIP-Pal.com hopes for a quick settlement (over these dubious patents). Therein lies the great danger associated with the USPTO granting software patents in the first place.

Pen One Acquisition Group is a Patent Troll Indirectly Connected to Microsoft and There’s No Simple Solution to Such Problems

Posted in Microsoft, Patents at 2:54 am by Dr. Roy Schestowitz

Dominion Harbor too is connected to Microsoft and it’s hiding behind lots of shells in Texas

Hublink, LLC, a Dominion Harbor subsidiary

Summary: The latest example of patent trolls that receive their patents from Microsoft’s troll, Intellectual Ventures, and the urgent need for a permanent solution which isn’t just Microsoft’s ‘protection’ racket [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20]

THE USPTO has facilitated patent trolling by saturating the ‘market’ with lots of low-quality patents — something which the EPO too is nowadays doing. Cleaning up this mess can take decades. Some trolls have as many as thousands of proxies, e.g. Intellectual Ventures. These proxies, in turn, use their own proxies too, e.g. Dominion Harbor. It’s far from trivial tracking who controls who because they register a lot of shells so as to obscure things (see the above diagram which relates to Dominion Harbor’s ‘enforcers’).

“Limiting patent scope (a la Alice) and actively voiding patents accordingly would be ideal.”A patent troll tackled by a Patent Trial and Appeal Board (PTAB) inter partes review (IPR) is called “Pen One Acquisition Group,” which according to Robert Jain (Unified Patents) is merely a ‘proxy’ of Equitable, which is led by Dean Becker and remains closely connected to Intellectual Ventures (in turn heavily connected to Microsoft). Here is what Jain wrote this week about something which had happened on Friday:

On August 24, 2018, Unified Patents and Pen One Acquisition Group (an Equitable IP subsidiary and NPE) filed a joint motion to terminate the previously instituted IPR2017-02167 pursuant to settlement. U.S. Patent 7,281,135, the subject of the IPR petition, is directed to an identity verification system.

Sounds like a software patent.

Meanwhile, LOT Network’s Seddon was speaking to Watchtroll (he had spoken to IP Watch a couple of years ago). It’s what we dubbed “a Wolf in Sheep’s Clothing” back in May because it’s “in effect a reinforcer of the status quo.” They market themselves as the answer/solution to trolling and now they claim to have enlisted almost 300 members. From yesterday’s article:

Ken Seddon, the CEO and president of LOT Network, told IPWatchdog that members sign the exact same 10-page agreement, which attaches a non-exclusive conditional license to that company’s patents. This license protects other members in the event that one of the patents to which the license is attached ever becomes owned by a patent assertion entity (PAE), thereby preventing the PAE from asserting the patent against LOT Network members.

As we explained at the start of the summer, LOT Network is not the solution to the problem (the same can be said about OIN); the trolls need to actually lose their patents and PTAB is one way for achieving this. Having said that, there are far too many patents out there which trolls actively (but covertly) use for blackmail. Limiting patent scope (a la Alice) and actively voiding patents accordingly would be ideal.

Patents on Steroids: ITC is Rushing Embargoes Before the Facts Are Even Known

Posted in America, Asia, Patents at 1:18 am by Dr. Roy Schestowitz

Hytera (company from Shenzhen, China) is barred — using patents — by a US company with six times as many employees (and a lot more US patents)

Hytera

Summary: When patents are put ahead of justice itself there’s greater risk that wrongly-granted patents and inappropriate allegations of patent infringement would result not only in lawsuits but also fast injunctions/embargo orders

WE have long argued that ITC helps US-based firms embargo foreign competition. It does this with prejudice and it’s almost always deciding against non-US companies. It’s doing it again.

“It does this with prejudice and it’s almost always deciding against non-US companies.”This time the ITC decided (“Notice of Initial Determination”) before the facts were even known; it’s like the EPO‘s “Early Certainty” (except for actual sanctions/embargo) and in the case of the USPTO the quality of patents is questionable and merits a review at the Patent Trial and Appeal Board (PTAB), perhaps with an appeal to the Federal Circuit. To quote one of three reports published about that yesterday [1, 2, 3]:

The US International Trade Commission has released its Notice of Initial Determination, regarding Motorola’s patent infringement case with Hytera. The intial determination was first unveiled in July, in favour of Motorola. ITC will now conduct a mandatory review of the initial determination and come out with a final one by 6 November.

Is this really justice or just a “mob lynch” like the nationalist trade wars of the Trump administration? Only yesterday we saw a front group of patent zealots (AEI) publishing “Chinese intellectual property theft” and IAM, the patent trolls’ think tank, saying that “Huawei [of China] transferred hundreds of patents to Qualcomm in months after NDRC settlement” (Qualcomm‘s patent aggression is widely documented).

“This is the sort of vision laid out by UPC proponents in Europe.”This isn’t about whether China or Hytera is infringing; it’s about whether ITC offers proper due process or just shoots first, asking questions later. We have already seen the ITC even ignoring PTAB rulings and causing financial damage/ruin. This is the sort of vision laid out by UPC proponents in Europe.

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