09.16.18
Patent Trolls Are Still Active and Microsoft is Closely Connected to Many of Them
Summary: A roundup of patent trolls’ actions in the United States; Microsoft is connected to a notably high number of these
THE software patents granted by the USPTO often travel or find their way into the hands of trolls such as Intellectual Ventures (IV) with its notorious proxies like ‘offspring’ trolls (for ‘enforcement’ i.e. lawsuits and shakedown). IV isn’t just Microsoft-funded; it’s also funded by Bill Gates, headed by his close friend, and led by former Microsoft executives. It’s everything one needs to know about the ‘new’ Microsoft.
Watchtroll’s post about IV’s latest defeat in court was composed by Robert Schaffer, Joseph Robinson and Dustin Weeks. The case was previously covered by Watchtroll and in Techrights as well. James Korenchan from Patent Docs said this a few days ago:
Last week, in yet another patent case before Judge Rodney Gilstrap of the U.S. District Court for the Eastern District of Texas Marshall Division, the Court ruled that Defendants T Mobile USA, Inc. and T-Mobile US, Inc. (collectively, “T-Mobile”) failed to show that a claim related to packet scheduling is patent ineligible under 35 U.S.C. § 101.
T-Mobile had moved to dismiss claim 109 of U.S. Patent. No. RE46,206 (the ’206 patent) (a reissue of U.S. Patent No. 7,251,218) as directed to ineligible subject matter. In addition, T-Mobile, as well as Defendants Ericsson Inc. and Telefonaktiebolaget LM Ericsson, moved to dismiss all claims of U.S. Patent No. 7,359,971 and claim 1 of the ’206 patent as barred by issue preclusion. The Court carried the motion under issue preclusion grounds but denied the motion as to patent eligibility.
35 U.S.C. § 101 thankfully stepped in, but in the Eastern District of Texas the outcomes aren’t so predictable. Expect this to carry on for some time…
There are many other trolls that are connected to Microsoft. Interval Licensing, for instance, is a patent troll of Microsoft’s co-founder and it recently resurfaced in some headlines. One patent maximalist picked on Judge Plager for this: “There was a funny moment during the oral argument of Interval Licensing, LLC v. AOL, Inc. last December when Judge Plager explained why his law clerk was just an abstract idea…”
Another Microsoft proxy was mentioned by Nasdaq the other day in anticipation of a “Mini-Trial December 10, 2018″ against Juniper Network. Finjan is a patent troll that has Microsoft behind it (as backer and funder). There’s also Cisco, a rival of Juniper Network.
It is just too difficult to ignore the fact that Microsoft is responsible for a feeding frenzy, sending money and patents into the laps of notorious and active patent trolls while offering ‘protection’ from these trolls. This racket has been bundled or lumped into Azure [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20].
Over the past week there have been also troll stories that have nothing to do with Microsoft. Here are software patents in action again… in the US. Note that the target in this case was Azure Farms (not Microsoft):
Farm victim of ‘patent troll’ lawsuit
The vaguely threatening letter over alleged patent infringement that Azure Farms received last year didn’t make much of an impression on David Stelzer.
Stelzer, the company’s founder and CEO, consulted with his information technology employees, who assumed the letter was a scam.
“I didn’t give it a second thought,” he said.
Now, the Oregon company is the defendant in a lawsuit that alleges its online website for selling organic food and other products has violated a patent for automated financial transactions owned by Landmark Technology LLC of San Diego, Calif.
Stelzer said his website isn’t much different from multitudes of others that sell products online, making him think the plaintiff has filed a “nuisance lawsuit” aimed at a quick settlement.
Azure Farms, based in Dufur, Ore., doesn’t have deep pockets to hire expensive attorneys, which is perhaps why the company was targeted, he said.
“I have no clue what they are after,” said Stelzer, who farms nearly 2,000 acres. “They’re basically saying because we have a working website, we have patent violations.”
Another troll lawsuit was covered by Dennis Crouch a few days ago. It’s about Blackbird Tech LLC, which is a malicious patent troll we wrote a great deal about in the past. Having failed with software patents they now try again with fluorescent patents:
Blackbird Tech’s US patent at issue (7,086,747) is directed to an LED light fixture designed to retro-fit to the space of old tubular fluorescent light fixture having a ballast cover. The claims particularly require a “housing having an attachment surface.”
[..]
In the original panel decision, Judge Moore penned the majority decision and was joined by Chief Judge Prost. Judge Reyna filed a dissent — concluding that the “attachment surface” limitation is an element of the claimed retrofit function of the invention and should be attachable to something in the old housing. Judge Reyna writes: “The plain language of claim 12, read in the context of the specification, implicitly requires that the attachment surface be secured to the ballast cover to achieve the retrofit function.”
The basic debate here stems from the reality that the canons of construction conflict with one another. The unfortunate result though is the old-fallback that claims mean what the Federal Circuit says they mean.
Crouch’s complaints (and sometimes rude remarks) about the Federal Circuit is a subject we explored before and will revisit later this weekend. He is particularly upset that the Patent Trial and Appeal Board’s (PTAB) decisions are so often affirmed by the Federal Circuit (after referrals/appeals emanating from inter partes reviews). █
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