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08.06.18

Jury Trials and Apple’s Latest Bitter Affair With Patents

Posted in Apple, Patents at 1:32 am by Dr. Roy Schestowitz

Apple money for patent trolls

150 meters

Summary: Almost 150 million dollars to WiLAN, Canada’s largest patent troll, owing to another jury trial in California

INSIDERS from the EPO have told us that Apple is being granted bogus European Patents; we also know that the USPTO has been granting Apple a lot of dubious patents. Apple is, after all, a “big customer”. It brings a lot of “business”.

Looking at the past week’s news, we see a granting spree for Apple, including some new keyboard stuff about “virtual” keyboards (likely software-implemented, hence bogus). There’s also this new design patent. Notice how most if not all the celebrations about these patents come from Apple propaganda sites. It doesn’t seem to matter to them that Apple, now valued at a trillion dollars, doesn’t deserve these patents.

“…this isn’t he first time Apple is being ordered to give vast amounts of money to trolls.”These same sites also jump to Apple’s rescue now that an infamous Canadian troll gets a little portion of Apple’s worth. $145,100,000 is a lot of money; the main issue is that it’s a lifeline to a really bad (and struggling) troll, which can later use that money to expand its scope of litigation and do huge damage to much smaller companies with far less money (no cash reserves). Many sites have been covereing this [1, 2], including Canadian ones (patent news only goes mainstream when a company like Apple is involved). As Reuters put it: “A federal jury in California has awarded Canadian patent licensing company WiLan Inc $145.1 million in damages against Apple Inc for patent infringement, according to a court filing on Wednesday.”

It’s another one of those jury trials that we last complained about yesterday. Will this case reach the Federal Circuit? Either way, this isn’t the first time juries presume patents to be valid, even ridiculous design patents. As IAM put it the other day:

After considering competing proposals and a four-factor test formulated during Supreme Court proceedings, a jury at the US District Court for the Northern District of California has ordered Samsung to pay Apple $533 million in damages for infringing three design patents

Those patents are like a joke! Design patents should, in general, be revisited by the SCOTUS (or so we hope). See this new report about patents on cars. They’re at it again with design patents; copyright law and trademark law are for design, including car design. Leave patents out of it.

Either way, a patent troll being awarded as much as $145,100,000 in supposed ‘damages’ is really bad; this isn’t he first time Apple is being ordered to give vast amounts of money to trolls. We’re all worse off for it. Microsoft did the same thing.

08.02.18

Design Patents: When Appearances Rather Than Inventions and Functions Are Oddly Enough Covered by Patents, Not Copyrights or Trademarks

Posted in America, Apple, Patents at 5:38 am by Dr. Roy Schestowitz

Zach Snyder patent

Summary: Design patents, or the false assumption that shapes alone constitute ‘inventions’ (they’re more like art forms), return to headlines and it’s time to debate their very legitimacy

Design patents are incredibly stupid as a concept, yet Patently Apple celebrates these again because Apple habitually uses such patents against rivals like Samsung. Why does the USPTO even grant these? Yesterday Patently-O wrote about another example of such patents. It says that “Advantek’s U.S. Design Patent No. D715,008 covering the above-pictured “pet gazebo” that Advantek also sells as its flagship product. Long-Walk allegedly copied the design in its “pet companion” product. However, the district court dismissed the case on the pleadings — finding that the prosecution history barred any infringement finding. On appeal, however, the Federal Circuit has reversed. This is one of the few cases considering prosecution history of a design patent.”

“…many such patents ought not exist in the first place.”We’re still hoping that SCOTUS — not only the Federal Circuit — will thoroughly explore and revisit this subject. Like we said months ago, many such patents ought not exist in the first place. They’re not even ‘proper’ patents and they’re sometimes referred to as “registered designs” (similar to trademarks or a subset of these). They also exist in the EPO.

07.12.18

The Anti-35 U.S.C. § 101 Lobby Pushes Old News Into the Headlines in an Effort to Resurrect/Protect Software Patents

Posted in America, Apple, Law, Patents at 2:15 am by Dr. Roy Schestowitz

Advanced Voice Recognition Systems, Inc. (“AVRS”) has meanwhile sued Apple with what looks like software patents “in the field of speech recognition and transcription” (according to its own press release)

AVRS history
So the whole ‘company’ is just a pile of patents (since its inception)

Summary: The software patenting proponents (law firms for the most part) are still doing anything they can — stretching even months into the past — in an effort to modify the law in defiance of Supreme Court (SCOTUS) rulings

35 U.S.C. § 101 isn’t too complicated. Based on (or partly inspired by) several SCOTUS decisions, Section 101 limits patent scope and notably eliminates patents on abstract things (or ideas, including algorithms). The USPTO‘s current guidelines ought to assure that no software patents will be granted anymore; nevertheless, there are conflicting interests. That’s why inter partes reviews (IPRs) and court challenges are needed. But, as one might expect, the patent maximalists aren’t happy; they see this as an “attack” (a word they use) on their occupation or an attempt to “kill” (also a word they sparingly use) patents. They nowadays sling their guns and shoot from the hip at IPRs, at judges, and at courts. Some if not many are based in Texas, so the gun-slinging metaphor seems apt; not to mention their obsession with words like “attacks” and “kills”. They call some tribunals “death squads”, evoking a colourful metaphor of genocide.

“They don’t profit from innovation; they make a living from extortion and lawsuits.”Anything that these patent maximalists (some we call “extremists” because they go even further) throw at 35 U.S.C. § 101 is easy to debunk; they just cannot tolerate patent quality, patent justice and so on. They want a culture of protection rackets, not of innovation. They don’t profit from innovation; they make a living from extortion and lawsuits. Their trade involves writing threatening letters, demanding money.

35 U.S.C. § 101 hasn’t been in the headlines lately, partly because of the summer vacation. Some pundits wrote about Mayo, which also helped shape 35 U.S.C. § 101. We wrote about Vanda 3 weeks ago in "The Dangerous Adoption of Patents on Life and Nature" and 3 months ago in "The Federal Circuit's (CAFC) Decisions Are Being Twisted by Patent Propaganda Sites". The case is about Mayo, not about Alice, and it isn’t as “high level” as either of them. In a sense, it’s hardly even a big deal at all. This is very old news, too. Why is Donald Zuhn catching up with it weeks if not months late? Is this the best method for pushing their anti-35 U.S.C. § 101 agenda yet again (as news is slow)?

Earlier this week Zuhn (McDonnell Boehnen Hulbert & Berghoff LLP) wrote:

The memorandum explains that in Vanda, the Federal Circuit determined that the claims at issue are “patent eligible under 35 U.S.C. § 101 because they are not ‘directed to’ a judicial exception” (emphasis in memorandum).

Why is this being brought up in July? Heck, why does Managing IP now cover SAS Institute v Iancu? Its latest issue is summarised as follows (this week): “The issue’s cover story assesses the impact that the US Supreme Court’s SAS Institute v Iancu decision has had– and will have – on the Patent Trial and Appeal Board.”

The Patent Trial and Appeal Board (PTAB) is safe owing to Oil States (the far more important decision). No coverage of the more important decision? Not even in the cover story? Intentional bias? Bias by omission again?

Even Watchtroll’s PTAB bashing has slowed down considerably, knowing that — as per recent events (notably Oil States) — the quality of patents in the US will continue to be scrutinised and PTAB not crushed. This is sadly what we’ve come to expect from media which is literally run by law firms — an epidemic that suffocates real journalism regarding patent matters.

Yesterday Watchtroll resumed its PTAB bashing, cherry-picking an old Apple case. Another patent maximalist has since then brought up a Federal Circuit case, saying that in “Apple v Contentguard (Fed. Cir. 2018); Fed. Cir. Held that Patent Claims for a Copyright Management System Do Not Qualify for CBM Review: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2548.Opinion.7-11-2018.pdf …”

Anything which concerns Apple is, as usual, receiving a lot more attention. In fact, yesterday we saw this new press release from Advanced Voice Recognition Systems, which is a “patent assertion” entity (more or less), as covered in the past weekend's posts. There seem to be no actual (finished) products and they merely list lawsuits and patents in their Web site as though these are their products. From their press release:

Advanced Voice Recognition Systems, Inc. (“AVRS”) (OTC: AVOI) announced today that it has filed a lawsuit in the United States District Court-Northern District for Arizona against Apple, Inc. (“Apple”) for infringement of U.S. Patent No. 7,558,730 entitled “Speech Recognition and Transcription Among Users Having Heterogeneous Protocols” (the “’730 Patent”). The ’730 Patent is the first of AVRS’ family of patents in the field of speech recognition and transcription

Those are software patents. They’re algorithms. Watchtroll is also (on the same day) promoting the HEVC patent trap [1, 2] — a trap which very clearly concerns patented software in large amounts (many patents, probably too many to challenge at scale, as per the MPEG-LA strategy). Watchtroll wrote:

HEVC (also known as H.265) is a video compression standard originally developed to provide high quality video coding using half the bandwidth.

Software patents all over this. All should be considered void under 35 U.S.C. § 101, but there are so many patents that nobody has the funds or will to challenge them all. Certainly not companies like Apple, which actively pariticipate in this “thickening” or “thicketing” (setting up barbwire around industry ‘standards’).

“Mozilla complained about it yesterday, dubbing it “An Invisible Tax”.”The Section 101 conundrum will no doubt continue to occupy the media for a year (if not years) to come. The “thickening” (as in patent thickets) of software standards/APIs, preventing participation by those who lack a large number of patents, is what’s at stake. Mozilla complained about it yesterday, dubbing it “An Invisible Tax”.

07.08.18

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).

06.28.18

Apple Loses Its Patent War Against Android and by Extension Against Linux

Posted in Apple, Courtroom, Google, Patents, Samsung at 3:08 am by Dr. Roy Schestowitz

“We’ve always been shameless about stealing great ideas.”

Steve Jobs

Judge Lucy Koh

Summary: The long battle that Steve Jobs embarked on nearly a decade ago (with his infamous term, going “thermonuclear”) reaches its end and Apple is nowhere near to what the now-deceased Jobs actually wanted because Android dominates the market and these lawsuits are profitable to nobody except law firms

BACK in 2010 we wrote a lot about Apple, particularly about its war on Android, which had begun with a ‘soft’ (vulnerable) target, HTC. Our interest in this case and subsequent cases (e.g. against Samsung) has since then dwindled, but we kept abreast of the more major developments.

“From a legal perspective this case isn’t as interesting as other cases, but the sums (so-called ‘damages’) are higher, so patent extremists were quick to boost it.”Apple and Samsung finally settle, but we weren’t sure if we should bother writing about this because it’s covered very widely already. Like everything “Apple”, when it comes to patents literally all the major papers cover it (while ignoring much more important patent news). That’s not exactly fine, but this is the world we live in and if some headline says “Apple”, then people are more likely to click on it (than a headline that says “§ 101″ or something equally vague to most people).

But really, how can we just ignore such news? The patent maximalists’ sites, e.g. Michael Loney’s, have begun covering it. “Apple and Samsung apparently just settled their patent dispute,” Mark Lemley wrote yesterday and soon thereafter came a lot of media coverage. Sites about patents wrote about it, albeit we can expect a lot more from them in days to come. From a legal perspective this case isn’t as interesting as other cases, but the sums (so-called ‘damages’) are higher, so patent extremists were quick to boost it. They wrote about it last night.

“Just remember that Apple started this dispute and was the bully all along.”So did technology news sites, Android sites, Apple sites, Android-centric news sites like this, corporate media and its “tech” branches (like CBS/CNET). They don’t say anything particularly special or insightful. In fact, the said truce is pretty secretive, so there’s not much that can be said with certainty. A blog post from someone who followed these battles closely for 8 years (Florian Müller) says/concludes with this: “Normally, those companies strike license deals, and when they wind up in court, they typically settle reasonably early. Somehow, it took them a lot longer in this case. And now either one of them has a dispute going that looks like it could become the next long-running one: Apple with Qualcomm, and Samsung with Huawei.”

“Only the lawyers gained from these cases (there was a string of them).”Just remember that Apple started this dispute and was the bully all along. Judge Koh made herself a name out of it. The media loves any case that says “Apple” on it. Müller added that “Judge Koh was quick and presumably overjoyous to grant the DISMISSAL sought by Apple and Samsung post-mediation: ORDER OF DISMISSAL. Signed by Judge Lucy H. Koh on 6/27/18.”

Koh has since then done other commendable things in her court.

For those wishing to read more details, try this article from Bloomberg:

The biggest patent battle of the modern technology world has finally come to an end after seven years.

Apple Inc. and Samsung Electronics Co. told a judge Wednesday they’d resolved the first filed but last remaining of the legal disputes that once spanned four continents. The string of lawsuits started in 2011 after Steve Jobs, Apple’s co-founder who died that year, threatened to go “thermonuclear” on rivals that used the Android operating system. The companies didn’t disclose the terms of the accord.

Only the lawyers gained from these cases (there was a string of them). Why did Samsung and Apple bother? Apple started this! It was an awful and now-notorious strategy of Steve Jobs, who even used words like “thermonuclear”. The supposed brilliance of this ‘genius’ was bad judgment and arrogance. The courts proved it.

06.12.18

Apple v Samsung Not Over, Hearing on a New Design Patent Trial Next Month

Posted in Apple, Patents, Samsung at 12:33 am by Dr. Roy Schestowitz

In Tokyo

Summary: Apple’s legal battles against phones that have Linux inside them simply aren’t ending; meanwhile, there’s more evidence that Apple would be wise to simply push for patent reforms, namely further restrictions on patent scope

APPLE’S legal battles against Android never seem to end. The USPTO granted questionable patents on rather trivial designs, causing a great deal of controversy. Yesterday the patent maximalists rushed to write about “Calculating design patent damages after Apple v Samsung,” but the case is far from over. Or so it seems based on reports like these [1, 2]. The latter says:

It turns out that $539 million is more than Samsung is willing to pay Apple after it was found to have infringed on several patents.

The trial over how much the chaebol was to pay in damages that ended two weeks ago after six years of overlapping litigation may restart in just two weeks. We’re learning through Law360 that Samsung has filed a post-trial motion that reiterated its case for why it should only pay $28 million instead.

The company said that Judge Lucy Koh’s instructions allowed the jury to not identify what the article of manufacture that each of three iPhone-related design patents applied to — for example, did the patent covering a colorful grid of icons apply to just the software component or the whole iPhone when it comes to potential lost sales Apple wants to claim?

[...]

Law360 reports that Apple may respond to the motion by June 21 and a hearing on a new trial will take place July 26.

We quit following these cases (at least closely) a very long time ago because they never seem to end. It has been nearly 8 years since Apple officially began its patent war on Android and nowadays there are newer cases like Zeroclick v Apple — a case which involves GUIs (similar to designs) and has a notorious patent troll watching in the shadows. We wrote about that 9 days ago and it was mentioned again later on (by Watchtroll), then again yesterday. To quote:

Zeroclick, LLC sued Apple Inc. in the U.S. District Court for the Northern District of California, asserting claims 2 and 52 of U.S. Patent No. 7,818,691 and claim 19 of U.S. Patent No. 8,549,443. The district court found the asserted claims invoked means-plus-function by using terms for which the specifications of the patents did not disclose sufficient structure, which rendered the claims indefinite. In a decision authored by Judge Hughes, the Federal Circuit determined the district court failed to undertake the appropriate inquiry and make related factual findings to support its conclusion that the asserted claims recited means-plus function terms. See Zeroclick, LLC v. Apple Inc., No. 2017-1267, 2018 (Fed. Cir. June 1, 2018) (Before Reyna, Taranto, and Hughes, J.) (Opinion for the court, Hughes, J.)

Apple would be wise to join the fight against software patents, but we doubt that’s going to happen. Meanwhile we’ll continue to watch as the above cases unfold.

06.10.18

Everyone Talks About Apple’s Notorious Design Patents But Not About ‘Abstract’ European Patents Used Against Apple and Linux

Posted in Apple, Europe, GNU/Linux, Patents, Samsung at 3:18 am by Dr. Roy Schestowitz

A ‘Battistelli era’ patent

EP2954737

Summary: What corporate media and the ‘mainstream’ speak of in relation to Apple and what more ‘niche’ bloggers pay attention to, serving to highlight a decline in patent quality at the European Patent Office (EPO)

LAST weekend we wrote about Zeroclick, LLC v Apple, Inc. We took note of the relation to a very malicious patent troll, Erich Spangenberg. Days later Watchtrolll wrote about this case as well, adding virtually no new information.

But Apple remains in headlines (about patents) mostly because of its own battles against Android (and by extension Linux). Professor Michael Risch’s analysis of Apple v Samsung is only days old and it speaks of the massive “damages” of ~$533,000,000. Risch’s views:

I’ve done a few interviews about the latest Apple v. Samsung design patent jury verdict, but journalistic space means I only get a couple sentences in. So, I thought I would lay out a couple points I see as important. We’ll see if they hold up as predictions.

There’s been a lot written about the case, so I won’t rehash the epic story. Here’s the short version. The design patent law affords the winning plaintiff all of the profits on the infringing article of manufacture. The Supreme Court ruled (reversing about 100 years of opposite practice) that the article of manufacture could be less than the entire accused device for sale. Because the original jury instructions did not consider this, the Court remanded for a determination of what the infringing article of manufacture was in this case (the design patents covered the shape of the phone and the default screen). The Federal Circuit remanded, and the District Court decided that, yes, in fact, the original jury instructions were defective and ordered a retrial of damages.

The District Court adopted the Solicitor General’s suggested test to determine what the article of manufacture was, determined that under that test it was a disputed fact question, and sent it to the jury. Apple asked for $1 billion. Samsung asked for $28 million. The jury awarded $533 million, which is more than $100 million more than the damages were before the Supreme Court ruled.

Josh Landau (CCIA) too wrote about these design patents, probably for the dozenth time or so. “Comments from Samsung Jurors Drive Home The Flaws In Design Patents,” Landau argued.

Flawed Logic

The logic of the jury’s verdict also requires a different result than profits on the entire device.

Even if we assume, contrary to both good policy and established case law, that profits on the components that produce the icon grid are available, those components still aren’t the whole phone. The cellular hardware, for example, is not involved in producing a display (after all, Apple’s iPod Touch produced a similar display without any cellular functionality), but is still part of Samsung’s total costs and profits. For that matter, the external casing isn’t required in order to produce the grid of icons.

If the article of manufacture is defined by the hardware required to produce the icon grid, then it’s also defined as something other than the entire phone.

Flawed Results

It all comes back to a single problem. The design patent total profits rule produces tests that are incoherent and impossible to apply when design patents are available for small pieces of complex, multi-component products. The total profits rule of § 289 simply doesn’t make sense in these situations.

We’re very disappointed to see Apple stooping to ‘Microsoft levels’ and 7-8 years ago we called for an Apple boycott (this made it into sites like Slashdot at the time). Has much changed since? Other than Steve Jobs’ death?

Well, sometimes we openly support Apple’s patent battles, e.g. against Qualcomm. As we explained before, if Apple wins this dispute, it will be good for phones that have Linux in them as well.

As it turns out, Qualcomm now uses a software patent granted by the EPO. To quote Florian Müller:

In 10 minutes: #Qualcomm v. #Apple #patent infringement trial in Mannheim, Germany. Patent-in-suit: EP2954737 on a „power tracker for multiple transmit signals sent simultaneously“.

He later added:

After Judge Dr. Kircher of the Mannheim Regional Court expressed serious doubts about the validity of #Qualcomm‘s EP2954737, QCOM felt forced to stipulate, with #Apple, to a stay of this case pending the EPO‘s decision (in a year or so) on Apple and #Intel‘s opposition. https://twitter.com/fosspatents/status/1003968003413815298 …

On why it’s a software patent:

Yet another software patent: “the functions described may be implemented in hardware, software, firmware, or any combination thereof. If implemented in software, the functions may be stored on or transmitted over as one or more instructions or code on a readable medium”

Well, software patents like these have plagued the EPO, not just the USPTO. We doubt any of that will change under António Campinos; it’s like the EPO goes in the very opposite direction of the US (where the Federal Circuit and Patent Trial and Appeal Board invalidate software patents en masse).

Müller later put it together in a blog post [via], having watched this dispute for quite some time. To quote:

Four months back, Qualcomm’s lead counsel in the German Qualcomm v. Apple cases, Quinn Emanuel’s Dr. Marcus Grosch, hoped to obtain a Germany-wide patent injunction against Apple this summer. The related case (one of various patent infringement claims Qualcomm has brought against Apple in Germany) went to trial this afternoon, and it’s unlikely that anything, if ever, will happen in that particular matter before the summer of 2019.

The patent-in-suit, EP2954737 on a “power tracker for multiple transmit signals sent simultaneously,” is under massive pressure because of Apple and Intel’s opposition to its recent grant. Of the four prior art references cited, Alcatel Lucent’s European patent application EP2442440A1 poses the greatest–though not the only–threat to Qualcomm’s patent.

Why did the EPO foolishly grant such a patent? In the US, in the meantime, software patents are being invalidated and yesterday Müller gave a new example:

Yesterday the United States Patent and Trademark Office had bad news for a particularly broad member of Twitter’s key patent family, U.S. Patent No. 9,088,532 on a “device[-]independent message disribution platform.” As I reported in March, the ’532 patent is being reexamined based on a patent application by independent Indian inventor Yogesh Rathod as well as a couple of other prior art references. The reexamination requested related to claims 1-3, 8, 9, 13-15, 17, 20, and 21, all of which are being reexamined. In a (first) Office communication since opening the reexamination proceedings, the USPTO has held all of the reexamined claims invalid, challenging Twitter to persuade the examiner that its patent claims should be upheld.

Prior art rather than Section 101 (or similar) was cited here, but still… it’s a testament or evidence of the fact that the US improves patent quality, whereas Europe moves in the opposite direction under Battistelli’s crooked leadership.

06.03.18

Patent Troll Erich Spangenberg Gets Brought up in Relation to a Troll’s Case Against Apple

Posted in Apple, Courtroom, Patents at 1:13 am by Dr. Roy Schestowitz

Zeroclick, LLC

Erich Spangenberg

Summary: The U.S. ‘high court’ for patents (Federal Circuit) enables a lawsuit against Apple to go on and Erich Spangenberg’s name is mentioned

Spangenberg is no ordinary patent troll; he was allegedly trying to pocket RPX, he has been stockpiling software patents (since last year at least) and he sends me nasty death wishes to my E-mail.

Patent trolls aren’t ordinary (nor pleasant) people; they make a living out of constantly threatening people. And last night, in relation to this news about Apple, guess whose name got brought up?

Our report noted that “A Patent troll by the name of Zeroclick, LLC, legally acquired two very interesting patents from inventor Dr. Nes Irvine, a medical doctor who, according to the court filing, “possessed the prescient vision” to develop touch-only user interface technologies that would enable significant benefits to his medical work and any field where users interacted with graphical user interfaces. Dr. Irvine claims to have “faxed” a letter to Apple’s then Director of Software Development, Avie Tevanian back in 2002. Apple never formally replied.

Although the case references several Apple patents, the case interestingly makes a big deal out of the “Slide-to-Unlock” patent infringing their Zeroclick patents. When reviewing the case’s “Certification of Interested Entities or Persons” filing with the court it was revealed that two other patent trolls were involved in the case: Granicus IP, LLC and Erich Spangenberg.

Whether either of these listed entities has any connection to Samsung in any capacity is unknown. It was also interesting to learn in Zeroclick’s filing that Dr. Irvine also sent a letter directly to Judge Koh regarding Apple’s alleged infringement of his touch related patents.

We shall keep an eye on this. Zeroclick isn’t a patent troll we’ve come across before; it will be interesting to know who’s behind it. Its only online presence seems to be this lawsuit. Quoting Paul Stewart: “Zeroclick sued Apple for patent infringement of claims directed to a method of operating a graphical user interface. In response, Apple asserted invalidity of those claims. The district court held that the challenged claims were invalid for indefiniteness, reasoning that the claim terms “program” and “user interface code” are means-plus-function limitations that fail to disclose sufficient structure. Zeroclick appealed.”

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