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09.23.18

A Lot of US Patents Are Entirely Bogus, But Apple Was Willing to Pay for Them

Posted in Apple, Patents at 9:27 pm by Dr. Roy Schestowitz

Steve Jobs gave today’s richest person (whose firm’s valuation is at $1 trillion, just like Apple) $1 million for a bogus patent on ’1-click’ shopping

Jeff Bezos
Photo credit: AP

Summary: Apple’s resistance to Qualcomm’s patent aggression was preceded by very heavy (“thermonuclear” by Steve Jobs’ description/words) patent wars against Android and even legitimisation of clearly bogus software patents from Amazon

W

HEN Qualcomm leveraged its questionable USPTO-granted patents against Apple (Qualcomm is getting desperate and trying the same in Europe now) it didn’t foresee the full impact. As IDG makes clear and San Diego Union-Tribune does too, Qualcomm assumed it would get an injunction; instead it drove away its biggest clients, which effectively ‘ban’ (or boycott) Qualcomm. That’s just the cost of being a patent bully — a fact that Qualcomm underestimated. Qualcomm now buys back its own shares at an incredible rate (to avoid/save the stock from completely collapsing like its attempted — albeit failed — takeover bid).

Qualcomm was also mentioned on Sunday by Watchtroll. It’s about a case from 10 days ago:

The United States Court of Appeals for the Federal Circuit recently issued a ruling discussing the differences between obviousness determinations of apparatus and method claims. According to the Federal Circuit, an apparatus that is “capable of” performing certain functions may be anticipated by or made obvious by the prior art, whereas, a method claim requires a person of ordinary skill to be motivated to operate the apparatus in a manner that would satisfy a limitation. See ParkerVision Inc. v. Qualcomm, Inc., Nos. 17-2012, 2013, 2014, 2074 (Fed. Cir. Sept. 13, 2018) (Before O’Malley, Reyna, and Taranto, Circuit Judges) (Opinion for the court, O’Malley, Circuit Judge).

Qualcomm gradually finds out, for it has started to attack with patents, that many of its patents are bogus. They should never have been granted in the first place. We certainly hope that Apple will challenge all of these patents; failing to do so may mean that Qualcomm would later leverage these against Android/Linux OEMs.

Days ago we also saw creepy new Amazon patents being reported on [1, 2]. These seemed rather shallow, not just creepy, and even the patent microcosm joked about/ridiculed Amazon’s patents (“Amazon one-click patent is no doubt DRT under rationale of SCOTUS case Alice Corp. v. CLS Bank.”), citing this new report titled “Steve Jobs licensed Amazon’s one-click patent for $1 million in one phone call” (about something which happened a long time ago, almost two decades ago). To quote:

In 1999, Amazon—then merely “Earth’s biggest bookstore” rather than a corporate beast that shall soon devour everything in its path—introduced and patented one-click payments. This was in the early days of e-commerce when people were fearful of sending their credit-card details online. One-click processing allowed the startup to keep customers’ billing details on file so that they could make instant purchases.

That feature quickly came to Apple in 2000 in one of the earliest versions of its online store. “Licensing Amazon.com’s 1-Click patent and trademark will allow us to offer our customers an even easier and faster online buying experience,” Steve Jobs said at the time.

[...]

When Apple licensed Amazon’s patent in September 2000, Apple had a market cap of $8.4 billion and Amazon had one of $13.7 billion. Recently, Apple became the first US company to reach $1 trillion—followed soon after by Amazon.

So Apple’s Steve ‘patent blackmail’ Jobs (he used patents against GNU/Linux as well) legitimised bogus software patents. Instead of challenging them he gave them perceived legitimacy. What a ‘genius’!

‘Owning’ Nature, Thanks to Patent Insanity and People Who Profit From That

Posted in America, Intellectual Monopoly, Patents at 7:57 pm by Dr. Roy Schestowitz

Related: Stop Patenting Life, Nature is Not an Invention (you owe nature, you don’t own it)

Some wild poppies

Summary: Questionable patents on things that always existed and are merely being explained or reassembled; those sorts of patents typically serve to merely discredit the patent system and courts too increasingly reject such patents (e.g. SCOTUS on Mayo Collaborative Services and Myriad Genetics, Inc.)

THE subject of patents on life/nature is a hotly-debated one at the EPO; many patents got voided (at least virtually) en masse. The USPTO is a lot more lenient and there are some blogs/sites that proudly promote patents on life (or what they call “patents for life”).

One such site is Patent Docs. Kevin Noonan and Donald Zuhn have just advertised this event which they participate in:

McDonnell Boehnen Hulbert & Berghoff LLP and Patent Docs will be hosting a CLE program on Biopharma Patent Law from 10:00 am to 1:00 pm on October 24, 2018 at the Boston Marriott Cambridge in Cambridge, MA. MBHB attorneys and Patent Docs authors Kevin Noonan and Donald Zuhn…

They had also advertised this event on ‘biosimilar’ patents, set up by patent zealots from the Intellectual Property Owners Association (IPO). “In light of FTC challenges to a series of contemporaneous business deals including patent settlements,” it says, “the future of non-cash forms of compensation” is debated. A few days prior to this Kevin Noonan wrote about a case that we covered before: E. I. du Pont de Nemours & Co. v Synvina C.V.

What made this unique was an invalid patent in the context of chemistry:

The Federal Circuit reversed a finding of non-obviousness in a Patent Trial and Appeal Board decision in an inter partes review, in an opinion handed down Monday in E. I. du Pont de Nemours & Co. v. Synvina C.V.

The patent was directed to methods for oxidizing 5-hydroxymethylfurfural or derivatives thereof under reaction conditions specified by the claims (“temperature, pressure, catalyst, and solvent”), to form 2,5-furan dicarboxylic acid (“FDCA”). FDCA can be produced from sugars and thus is considered by the Department of Energy to be a “green” or environmentally beneficial precursor to other materials.

[...]

(Interestingly, the evidence adduced by DuPont in support of standing establishes their intent to willfully infringe should the panel not decide that the PTAB erred in not finding the ’921 patent to be invalid, although the panel was careful to state in a footnote that “we make no judgment on whether DuPont has infringed or is infringing the ’921 patent.”)

A similar article was produced by Dennis Crouch, who revisited the case by saying: “My prior post on DuPont v. Synvina focused on the obviousness of a claimed range in the context of inter partes review (IPR) proceedings. The decision also raises a question of standing — whether the patent challenger DuPont had standing to appeal the IPR decision favoring the patentee Synvina. [...] With the standing requirement met, the Federal Circuit was able to hear DuPont’s argument and agreed that the claims are obvious.”

So the US patent office granted the patent in error. The effect of such errors can be profound; Acorda was recently brought up by Crouch in relation to this (after its shares had collapsed, following Acorda Therapeutics, Inc. v Roxane Laboratories Inc.). Watchtroll wrote about it three days ago and on the same day it wrote about CRISPR-Cas9 patents (life being ‘owned’ by patents, hence a controversial type of patents). To quote: “The Court affirmed a Patent Trial and Appeal Board (“Board”) decision finding there was no interference-in-fact between UC’s patent application and the claims of twelve patents and one application owned by Institute. See Regents of the Univ. of Cal. v. Broad Inst., Inc., No. 2017-1907, 2018 U.S. App. LEXIS 25535 (Fed. Cir. Sept. 10, 2018) (Before Prost, Schall, and Moore, J.) (Opinion for the court, Moore, J.).”

This case received a lot of media attention [1, 2, 3, 4] and the decision [PDF] from the Federal Circuit is widely cited. The US patent system has truly gone insane if things that aren’t inventions but are naturally-occurring can become a private monopoly. People (design-)patent nature now, too. As Crouch noted a few days ago, there are patents on marble!

A natural phenomenon is not patent eligible — neither is a man-made items that is identical to a naturally occurring. The image below sure looks like a natural stone pattern, but is actually an image of an artificial quartz stone slab patented in U.S. Design Patent No. D825,787 that issued in August 2018.

[...]

As per usual standard operating procedures, the USPTO issued the design patent in a first-action-allowance without rejection and without citing must of relevance.

It is pretty incredible that the USPTO lets this slip in, not through. Opioid addiction, as we noted quite recently, was also exploited by patents; a family of billionaires had created lots of drug addicts in the US (with many fatal consequences) and the USPTO is rewarding them for a crisis of their own making with a monopoly on treatment. As Watchtroll put it on Saturday, there’s a Delaware case (the 'new' Eastern Texas) dealing with this and “[t]he Federal Circuit reversed the District of Delaware’s decision to invalidate Orexo’s opioid treatment patent as obvious because obviousness was not proved by clear and convincing evidence.”

Sure then. Make treatment of deadly drug addiction a monopoly too. Maybe drug addicts will then have to commit lots of crimes just to add up the money to get a cure for their addiction. This is an exercise in self-discreditisation by the USPTO.

Patents Stranger Than Fiction and ‘Protection’ From Fictional Things

Posted in America, Patents at 6:57 pm by Dr. Roy Schestowitz

Are patent examiners reading fiction literature (e.g. SciFi novels) in search of prior art now?

Fiction

Summary: Fictional things are being treated like “inventions” and insurance companies now look to exploit fear of fictional things (man-made concepts), such as ownership of mere ideas or words

Fictional things with patents on them aren’t so new — or shall we say “novel” — a thing. We gave examples of that before and earlier today Patently-O did too, partly joking about references to SciFi novels. To quote Crouch: “I’m looking forward to reading the first office action in this case — pretty cool approach for thinking through how to use a hollowed-out asteroid for a manned interplanetary spaceship. In his IDS, inventor Wayne White includes a set of interesting references — including a citation to the Greg Bear’s 1985 SciFi novel EON that included an alien hollowed-out asteroid.”

Is this what USPTO boils down to now? Science fiction as patents? We aren’t aware of anything similar to it at the EPO; it would serve to merely discredit the premise that patents exist to support existing innovation (applied work, not mere theory).

Selling insurance for fictional things is what we saw in the US earlier this year (in summer) and commented about. As it turns out, almost like a ‘protection’ racket (akin to RPX or Microsoft’s Azure ‘IP’ Advantage [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21]), insurance companies now sell “IP insurance policy”. Months ago we saw it in the US, now (Sunday night or Monday morning over there) we see it in New Zealand, as per the following new article:

A new policy by Delta Insurance may go some way to offering protection against spiralling litigation costs.

[...]

In an interview, Mr Kirk said cover started at $2500, giving up to $250,000 coverage, and rose to up to $100,000 per policy, which would offer cover of $1 million.

Mr Kirk said excesses could be as low as $5000, but were more typically about $10,000.

So they basically exploit an atmosphere of blackmail to make money. Rather than tackle the blackmail itself. The ‘protection’ is also fictional in the sense that it ‘protects’ from fictional things like “intellectual” “property” rather than storms, car accidents, death of a breadwinner and so on. Insurance as a universal tax? Because of things like these man-made problems?

Benoît Battistelli Refuses to Talk to the Media About Bringing Firearms to the EPO

Posted in Europe, Patents at 6:09 pm by Dr. Roy Schestowitz

“Immunity” would probably be invoked even if someone got shot (and investigations suppressed, as usual)

Battistelli's Alexandre Benalla with pistol

Summary: Benoît Battistelli’s highly aggressive approach has attracted the attention of French media; Battistelli has reportedly refused to comment on that matter, knowing that he lacks a defense (same thing happened after he had hauled millions of EPO euros to his other employer)

CORRUPT Benoît Battistelli has a lifelong obsession with bodyguards; it didn’t start at the EPO but at INPI apparently. INPI wants more people inside the EPO and “revolving doors” is what Benjamin Henrion called it. “INPI has been corrupting the process during the swpat [software patents] debate, as any other NPO in other countries,” Henrion added. There are clinical words that describe Battistelli’s chronic paranoia, which has created a deeply toxic atmosphere at the Office and has cost it over a million euros just in ‘bodyguard bills’ (not that these French firms/bodyguards would mind the unchecked money flow).

“Some mainstream French media approached us for further pointers and has apparently asked the Liar in Chief for a comment.”A few days ago we wrote about the firearms aspect (see article/image above), confirmed in light of the Alexandre Benalla scandal. Some mainstream French media approached us for further pointers and has apparently asked the Liar in Chief for a comment. We can’t really read French (not properly), so we rely on occasional translations. Maybe SUEPO will produce and publish some soon.

“Benoît Battistelli,” said one new tweet, “ex President of the European Patent Office EPO did not respond to requests for comment? Why not answer the questions of the journalists? Lack of transparency in the European Patent Office? No answer is an answer, right?”

“EPO corruption lives on, albeit it’s disguised a little better.”Much of the discussion about it is in French, e.g. [1, 2, 3] and very little is in English, e.g. this tweet which says: “From an European perspective, it’s rather interesting to discover that the violent bodyguard Benalla worked as well for Battistelli the President of the European Patent Office.”

He ran the EPO like a Mafia, so why not arm it like a Mafia? Suffice to say, António Campinos will never investigate any of it. He will be a good lapdog to Battistelli, having received his job from Battistelli. EPO corruption lives on, albeit it’s disguised a little better.

Patent Law Firms Have Become More Like Marketing Departments With an Aptitude for Buzzwords

Posted in America, Deception, Europe, Marketing, Patents at 12:06 pm by Dr. Roy Schestowitz

Buzzwords

Summary: What we’re observing, without much reluctance anymore, is that a lot of patent lawyers still push abstract software patents, desperately looking for new trendy terms or adjectives by which to make these seem non-abstract

THE EPO and the USPTO are both relying on buzzwords by which to promote software patents, knowing that software patents in Europe are not quite allowed and SCOTUS — with growing support from the Federal Circuit and endless action via Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) — is frowning/scoffing at such patents (as per Alice/35 U.S.C. § 101 at the U.S. Patent and Trademark Office). We have written literally dozens of articles about this subject and included over a thousand examples over the years. We keep seeing many of the same buzzwords, which need to be named and deconstructed (they usually don’t mean a thing; it’s marketing).

Over the past week (as in every other week) we’ve been tracking activity like software patenting. What makes it a tad tricky is the (mis)use of homonyms and synonyms, along with the above-mentioned buzzwords. The buzzwords change over time, with some of them aging out of existence and new ones being introduced (e.g. so-called ‘fourth industrial revolution’ or “4IR” as the EPO likes to call it). We don’t want to mock or obsess over these buzzwords too much. From what we can gather, EPO examiners are clever enough to spot this nonsense and have a good chuckle over it. This post will, instead, be a rundown of outline or recent articles which demonstrate what we’re talking about.

Several days ago we saw “FogChain Patent Secured Data Access Control”; if this sounds abstract, well… that’s because it is. And the article is just self-promotional junk from Crypto Block Wire, LLC (the publisher). To quote:

FogChain Corp. is a futuristic, highly reputable company offering solutions to software development, testing, and deployment. The company is gratified to announce its most recent decision regarding filing for a new patent. The patent covers secured data access control utilizing localized cryptographic innovation.

Technological advancements in the blockchain industry have empowered secure distribution of digital information using cryptographic techniques. Consequently, secure and quick transactions, including other data adjustments, can take place in a more dynamic and economical manner. In particular, its decentralization endeavors may bring about absolute transparency and immutability of the data.

The patent’s underlying technology covers localized network typologies that are able to grant access control and data management capabilities. The technology can additionally provide particular network architecture models that accommodate and empower such functionalities.

How is that not abstract? It’s so obviously invalid based on Section 101 criteria. But they say “blockchain” and “innovation”, so it must be very, very innovative. “Patent please!”

Remember that all these "blockchain" patents are bunk software patents; we cannot stress this strongly and often enough. This sort of “blockchain” hype is everywhere this year, including in the domain of patents, wherein it’s presented either in the context of patenting or management of patent data (sometimes both, sometimes interleaving to the point of revealing writers’ inability to comprehend what they even write about or get told by law firms). Here is a fairly new article titled “What would a blockchain patent war look like?”

The opening paragraphs go like this:

Blockchain is perhaps the most hyped technology of the past five years. The technology that allows us to create trustless immutable shared ledgers promises to bring transparency and honesty to commerce by disintermediating and decentralizing functions that rely on trusted third parties today. The promise and the potential are almost as big as the hype.

While still the early days, there are several applications that have already launched on blockchains — the first being the Bitcoin cryptocurrency payment protocol. Bitcoin is just a unit of account on blockchain. And more recently, with the implementation of smart contracts, code that is shared across the whole blockchain to execute conditionally with irrefutable results, we have the possibility to tokenize many new financial constructs on blockchains.

It’s all abstract; it’s software.

Another new article, this one titled “Mastercard Eyes Blockchain For B2B,” promoted the misconception that large companies (such as Mastercard) applying for a patent means they intend to implement something rather than simply obstruct competition/disruption. We wrote about this in past years, even in relation to Mastercard. To quote:

Blockchain has been receiving attention well beyond cryptocurrencies, and the focus has shifted in part to patent filings. Though it may seem that China has dominated patent filing activity in recent weeks, a number of firms (not Alibaba) have been making their own way across the patent landscape.

In the latest news germane to intellectual property and blockchain, Mastercard has filed three patent applications with the U.S. Patent and Trademark Office, as reported this week. Amid those patent filings came details that the payments giant has developed a blockchain-based system, which aims to streamline high-volume B2B transactions. The patents are titled “Method and System for Recording Point-to-Point Transaction Processing.”

UseTheBitcoin (blog) then published a rather poorly-researched item that attempts to rank large companies based on “Blockchain Patents”, preceding the list with a logo of Microsoft. From the introduction:

Blockchain technology is one of the most trending topics in 2018. With blockchain becoming one of the most popular buzzwords today, every startup or established company wants to jump on the opportunity. This has led to the abundance of companies filing patent applications, hence triggering a potential blockchain race.

This year alone, several major companies applied for Blockchain-related patents. Like any other patent, a blockchain patent is a strict form of legal protection over an invention and the intellectual base of that invention. It’s a legal means for inventors to prevent others from making use of their invention.

Promotion of totally bogus software patents is likely to do no good, except for law firms; it’s about databases. There are also those that pertain to computer vision (mathematics) and are being promoted in press releases like this one which says: “This report provides insights into the development of facial recognition-related granted patents for automotive applications and offers a snapshot of facial recognition-based technology and application trends in the automotive industry.”

Well, facial recognition is all software. I know this, having reviewed scholarly papers on this (even for leading international journals). Why are such patents still being hailed as worthwhile after Alice? The mind boggles…

Campbell University is meanwhile calling algorithms “AI”, failing to note that these buzzwords won’t make these algorithms any less abstract and thus invalid as per Section 101. Here they are advertising the event. Topics include “Patentable Subject Matter for Computer Related Inventions” and “Protecting AI Software & Protecting Inventions Created with the Help of AI” (two different things, but in both cases boiling down to mere algorithms). Their calendar says they are giving “Continuing Legal Education (CLE) credit from the North Carolina Bar Association” by lying to people about software patents and telling them, even wrongly, that ‘dressing up’ algorithms as “AI” would be worth the time and money. This is a recipe for major disappointment as judges would throw out such patents.

Matt Acosta and Emilio Nicolas (Jackson Walker) have meanwhile published in JD Supra (press releases platform for lawyers) something about surveillance in one’s toothbrush. They are calling abstract things “smart” and “IoT” to make them seem patentable and desirable (they’re neither). With a term like “Internet of Things” preceding/starting the headline, what could possibly go wrong? Putting the “Internet of Things” on just about anything is supposed to make things sound new, amazing and novel.

We have meanwhile also noticed, from South Africa for a change, the International Law Office (not what it sounds like) publishing a nonsensical piece with “fourth industrial revolution” (three buzzwords) and “IP protection” (three propaganda terms) in the headline. Louw Steyn and Dawid Prozesky use misleading propaganda words like “property” and “protection”, conjoined/combined with “4IR” from the EPO, to promote the false perception that software patents have legitimacy (they lack that in courts, even in South Africa). In the body they also namedrop “artificial intelligence” (AI) and “additive manufacturing” (AM), not to mention “smart” (nowadays everything that does mass surveillance gets called “smart”). From the introductory paragraph:

The so-called ‘fourth industrial revolution’ is in full swing. Fields such as artificial intelligence (AI) and additive manufacturing (AM) are no longer a thing of the future, but rather an increasing part of everyday life in the form of smart devices, driverless cars and automated assistants – to name a few examples. This revolution is generally centred on a fusion between physical and digital technologies.

The above is just a big “salad” of buzzwords — something to be expected from a marketing department rather than a law firm. Sadly, however, many law firms have been decimated to just that. They just recite a lot of propaganda terms and trendy words like “smart” or “innovative”. They don’t like using terms like “software patents” anymore, knowing that examiners and judges would be instinctively inclined to reject like a reflex.

Interlude: The Need to Counter Misinformation From the Patent and Litigation ‘Industry’

Posted in Patents, Site News at 10:10 am by Dr. Roy Schestowitz

SEP corrects/corrections officer

Summary: 24,500 posts reached; so we pause and reflect, seeing that many sites/blogs of patent maximalists gradually ebb away

LONG before we even had a wiki (around 2008) we wrote about the USPTO and later about the EPO. The site began as a reaction to patent assaults on Free/Libre Open Source software, dating back to the Microsoft/Novell deal. Our style has always been the same; we try to debunk and challenge misinformation, presenting overlooked and/or suppressed points of views, facts, sometimes leaked material. The site grew pretty rapidly and before the “social media” hype it was able to attract a lot of comments, sometimes over a hundred per day. We used to write about Free/Libre Open Source software, to use the most “inclusive” term. Later we focused almost entirely on patents, seeing that there was a vacuum to fill in the absence of refutations to the patent ‘industry’. Groklaw, a site which used to write a great deal on this matter (from a Free/Libre Open Source software-centric perspective) took a long break around 2010 and then a permanent break a few years later. The advent and growth of so-called ‘social media’ has since then reduced the frequency of blogging online. A lot of blogs that had been active for many years became less active or completely inactive — a trend we continue to see as IAM goes ‘dark’, Watchtroll writes almost half what it did a year ago, various law firms’ blogs going silent, and recently even Docket Report (part of Docket Navigator) going silent. There have been no updates there for one month and one day (last post is dated August 22nd).

Patent Docs has also been slowing down, albeit not as considerably as some other blogs. Patent Docs probably publishes more ads than articles, however, and many are totally off-topic (e.g. posts about fashion and animals, not patents). Today it ‘wrote’ (published ads) about the abomination which is SEPs (Standard Essential Patents) among other things like the PCT (Patent Cooperation Treaty). But those are all ads. They outnumber the actual articles.

Techrights still publishes more or less as often as ever before (we peaked around 2009). Some time soon we’ll reach 25,000 posts (that’s more than 2,000 per year, on average). We never relied on any form of sponsorship, so money plays no role in it. It’s idealogical and the guiding ideology is science, progress, cooperation.

Advocacy of the Unitary Patent System Has Become Almost Identical to the ‘Leave’ (Brexit) Campaign

Posted in Europe, Patents at 9:22 am by Dr. Roy Schestowitz

Distinguishable and wholly detached from underlying facts

António Campinos for UPC
Source

Summary: The charades of Team UPC carry on in Kluwer Patent Blog — a blog which for a very long time served no purpose other than Unified Patent Court (UPC) advocacy

THE EPO barely mentions the UPC anymore. Maybe it’s concerned about still seeming dishonest, even under António Campinos who hasn't mentioned the UPC for more than a couple of months (see photo at the top).

“No UPC sceptics, opposition or even realists allowed. The usual brainwash from those who call people who do not agree with them “idiots” and “trolls”, then delete their comments.”“Kluwer Patent blogger” (typically Bristows) has just published a Team UPC and UPC boosters’ roundtable-style propaganda piece (for their wallets). No UPC sceptics, opposition or even realists allowed. The usual brainwash from those who call people who do not agree with them "idiots" and "trolls", then delete their comments. Campinos can be like that too. There are no comments yet (the blog has generally been in decline lately, just like the UPCA). Reading between the lines, much of what we find there is a lot like the Brexit/Leave campaign. They make false assumptions (e.g. that Brexit will happen for sure or that UPC can happen irrespective of the UK). From the introduction:

The patent world is holding its breath in expectation of the judgment of the German Federal Constitutional Court (BVerfG) on the complaint that was filed last year against ratification of the UPCA.

We find it amusing that what they allude to as “experts” are actually 1) UPC profiteers (like the ‘Brexiter’ MPs looking to gain financially if not already gaining financially from departure from the Union) and 2) “co-author of The Unitary Patent and the Unified Patent Court” (no bias here!).

So basically, this is like getting one’s Brexit ‘news’ from the Express or the Daily Mail, except here we have Kluwer Patent Blog, which presents itself as an objective observer.

Open Invention Network is Rendered Obsolete in the Wake of Alice and It’s Not Even Useful in Combating Microsoft’s Patent Trolls

Posted in America, IBM, Microsoft, OSI, Patents at 2:13 am by Dr. Roy Schestowitz

Microsoft and trolls

Summary: Changes at the US Patent and Trademark Office (USPTO) and in US courts’ outcomes may have already meant that patent trolls rather than software patents in general are a growing threat, including those that Microsoft is backing, funding and arming to put legal pressure on GNU/Linux (and compel people/companies to host GNU/Linux instances on Azure for patent ‘protection’ from these trolls)

THE situation at the USPTO has changed in recent years. AIA introduced the Patent Trial and Appeal Board (PTAB) and inter partes reviews (IPRs) — together with 35 U.S.C. § 101 as relevant law — helped eliminate a lot of software patents which had been granted for a couple of decades.

These changes posed a problem not just for patent trolls and bullies but also law firms and bodies whose sole purpose was to ‘protect’ from these patent trolls and bullies. Some were rendered moot or redundant. See the demise of RPX for example. Well, what about Open Invention Network (OIN)? The terrain is changing and OIN is totally failing to adapt. It’s still stuck in the past.

OIN’s Jaime Siegel and Mirko Boehm reappeared several days ago. Usually its their CEO who appears in the media.

OIN has such a misguided and pointless strategy these days that even the patent trolls’ proponents can support these people. Watchtroll entertains Jaime Siegel, OIN’s Global Director of Licensing (yes, licensing!). It’s a large “cross-license agreement” — one that Oracle did not even seem to obey when it sued Google over Android/Java. Abolish software patents instead, OIN, don’t do this:

As Jaime Siegel, OIN’s Global Director of Licensing, notes, OIN is able to grant free membership to companies joining the consortium thanks to the efforts of eight full-funding member companies which have each funded $20 million to support OIN’s operations through an endowment. These companies include the first six companies to form OIN: Sony, Phillips, IBM, Red Hat, NEC and SUSE; joining those companies are Google and Toyota. OIN’s board consists of representatives from each of these full funding members. Every new member of OIN signs the same licensing agreement as the full-funding members, giving all members in the organization equal standing in terms of the cross-license agreement.

[...]

Siegel said that the only kind of company that wouldn’t benefit from membership in OIN would be a company which was building a patent assertion program to get companies to license Linux core patents. Despite the massive expansion of Linux-based systems across industries, however, Siegel said that there has been virtually no patent litigation around the Linux core. “While OIN won’t take all the credit for it, I think OIN has been a big factor as to why there’s been so little litigation around the Linux core,” Siegel said. “While we are a pro-patent organization, we’re very aggressive about going after assets that are threats to Linux and opposing activities that are targeted against the Linux core.”

“OIN’s Members include Google, IBM, NEC, Philips, Red Hat, Sony” (and others), according to Wikipedia. Sony is one of “the first six companies to form OIN,” according to the above interview. Days ago Sony’s patents made some headlines [1, 2] because Sony is still a patent maximalist, hardly a reformer in any sense of the word. IBM is a major patents-wielding bully, as well, and OIN’s first CEO came from IBM.

OIN’s Mirko Boehm wrote about FRAND in the European Union on the very same day the above got published. Here is what he said:

As part of the research project on “The Interaction between Open Source Software and FRAND licensing in Standardisation”, a workshop was organised by the European Commission, Joint Research Centre (JRC) in collaboration with Directorate General Communications Networks, Content and Technology (CONNECT) to present and discuss the intermediate results to date. The workshop took place in Brussels on September 18, 2018. I presented a set of observations from the research on the case studies performed as part of the project that are outlined below. Other speakers where Catharina Maracke on the issue of legal compliance between Open Source and FRAND licenses, Bruce Perens on “Community Dynamics in Open Source”, and Andy Updegrove on “Dynamics in Standardisation”.

You may ask what the relevance of this debate is for the wider Free and Open Source Software community. The obvious answer is that to distribute software “without restriction”, the user needs all the usage rights associated with the program. While most FOSS contributors assume that this is naturally the central motivation for anybody to contribute in the first place, there is a long history of attempts to maintain some sort of exclusive control over a piece of FOSS code, possibly using other rights than copyright.

Mirko Boehm’s (auto)biography says that he is “Director, Linux System Definition, Open Invention Network.” With people like Andy Updegrove and Bruce Perens involved (in the above) it looks a lot more legitimate than IAM's disgraced event.

Anyway, if the goal is to protect GNU/Linux from patents (rather than protecting software patents from GNU/Linux advocates, as Perens once put it), then OIN must evolve. Microsoft is operating through trolls while offering (selling) ‘protection’ from these [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20]. One example is Microsoft’s patent troll Finjan, which days ago issued a widely-spread and paid-for press release [1, 2, 3] about its laughable software patents that it uses to blackmail Microsoft’s rivals. This spoke of the Federal Circuit‘s stance on the ‘408 patent:

“Finjan is gratified to have the Federal Circuit’s decision affirming the USPTO’s Patent Trial and Appeal Board’s decision rejecting Palo Alto Networks’ challenges to Finjan’s ‘408 Patent,” stated Julie Mar-Spinola, CIPO and VP, Legal Operations for Finjan. “While this allowed Palo Alto Networks to delay Finjan’s day in court for nearly four years, we believe we are due and will seek past and accrued damages for that period until resolution, which is not insignificant.”

There have been similar Federal Circuit challenges to patents from Intellectual Ventures (IV) with its notorious proxies like ‘offspring’ trolls. It’s another Microsoft proxy which goes after Microsoft’s rivals with frivolous lawsuits and threats thereof. Where is OIN in all this? Not interested? Apathetic? Therein lie some of the biggest problems.

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