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10.21.18

Funded by the Public to Prey on the Public: The Absurdity of Patent Sales and ‘Enforcement’ by Government

Posted in America, Apple, Law, Patents at 4:34 pm by Dr. Roy Schestowitz

Also seeNASA: Funded by the Public to Feed Patent Trolls

Texas Gov House at Austin

Summary: Government or US Government-funded entities are looking to tax private companies using patents that were actually funded by the public; in practice this helps private firms or insiders (individuals) personally gain from something that the public subsidised and should thus be in the public domain

EVIL patents are patents that harm the very people who sponsor them. We have written a great deal about such patents (e.g. the above-mentioned from NASA) and here they go again: “Even though only 130 of the thousands of technologies spun-off by NASA are included in the website, the breadth of technological development represented by even that small number is pretty remarkable. But how exactly does space exploration research result in the commercialization of items like more nutritious baby formula or precision coffee makers?”

It comes at a cost however. They make licensing agreements, i.e. ask for payments. The common euphemisms are “Technology Transfer” or “Licensing Agreements”, as today’s advertisement of a webiner put it. It’s grotesque because those who were funded by taxpayers take it all private and look to gain privately from patents (funded by the public). Consider the recent example from Wisconsin. It’s about Apple’s dispute with the proxy from Wisconsin. It is academics operating through the Wisconsin Alumni Research Foundation for the purpose of ‘monetising’ patents, never mind who sponsored this work, even if it’s the public, in which case seeking to pursue a private monopoly is quite dubious a practice from an ethical point of view. Mark St. Amour put it as follows: “In Wisconsin Alumni Research Foundation v. Apple, No. 2017-2265 (Fed. Cir. Sept. 20, 2018), the Federal Circuit construed a pair of claim terms under their plain and ordinary meaning in reversing summary judgment that Apple was not entitled to a pre-trial finding of non-infringement of U.S. Patent 5,781,752, while affirming a summary judgment that the ‘752 patent was not anticipated.”

They believe that because Apple is a company with plenty of cash in store it should pay for patents that were likely sponsored by taxpayers. Why? Does that even make sense? Will the Federal Circuit take this into account?

The Eastern District of Texas and Its Patent Trolls Affinity Not a Solved Issue

Posted in America, Apple, Patents at 2:42 pm by Dr. Roy Schestowitz

A computer chained

Summary: The American patent system continues to distribute monopolies on algorithms and some of these cause litigation to reach courts that are notorious for intolerance of 35 U.S.C. § 101, resulting in unnecessary payments to lawyers and patent trolls

IN THE WAKE of TC Heartland (last summer) it was hoped that the courts in the Eastern District of Texas would see little or no more patent lawsuit filings. The effect of TC Heartland was profound, but it didn’t go far enough. When will judges follow the law down there? There are signs that they begrudgingly and only belatedly do so.

Meanwhile, there are new Dallas (the east of Texas) patents granted by the U.S. Patent and Trademark Office (USPTO). Some of these seem to have been wrongly granted based on 35 U.S.C. § 101. Those will possibly lead to frivolous lawsuits or at least shakedowns.

The patent maximalist Matthew Bultman says that the Federal Circuit insists Apple should be on trial in a court that advertises being lax to plaintiffs like patent trolls with abstract patents. Never mind if Apple isn’t based in Texas. In Bultman’s words (that aren’t behind paywall):

The Federal Circuit on Tuesday allowed a lawsuit against Apple Inc. over patents covering a communication system to move forward in the Eastern District of Texas…

Based on the above, it’s likely a software patent and the action may have been initiated by a troll (hard to tell because of the paywall).

Speaking of trolls, they nowadays issue press releases in prominent sites; they try to warp the narrative. The spammy Associated Press (press releases as a section) writes nonsense for a patent troll Avanci (we wrote about it before) or rather publishes lies for it, as did other sites. Lies like these: “The Avanci platform simplifies the way companies share technology by licensing intellectual property from many different patent holders in a single transaction. Avanci’s licenses are offered to all competitors in an industry at the same fair, flat rates that will not increase over the term of the license no matter how many patent owners join the platform.”

Avanci is a patent troll that pretends to be “licensing”; we already wrote about its origins. Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) would likely not shield against this troll because the number of patents at hand is too large to handle exhaustively by IPRs.

To properly tackle the issue we probably ought to push harder for all examiners — like most courts and judges — to respect and uphold 35 U.S.C. § 101. A lot of software patents are still being granted and some form the basis of lawsuits, as we shall explain in later posts (later tonight).

MIT and the Prior Art Archive Perpetuate Existing Problems

Posted in America, Apple, GNU/Linux, Google, IBM, Microsoft, OIN, Patents at 11:37 am by Dr. Roy Schestowitz

There’s a reason why similar initiatives perished in the past

Strata Center MIT
Strata Center MIT

Summary: Large companies with many tens of thousands of patents (each) would have us believe that broadening access/reach of prior art (e.g. to patent examiners) would solve the issues; This may very well work for these large companies, but it overlooks the broader picture

COMPANIES like Apple, Microsoft and IBM — large companies that cross-license among themselves — don’t fear the USPTO or even patents in general (not even the EPO where they have a lot patents of their own). The patent system has, with few exceptions, served them well. It protects them. It’s a form of protectionism.

20 years after its foundation Google has already joined this ‘club’; instead of reforming things Google is adapting and so does Red Hat. To companies like these, which use GNU/Linux extensively, OIN and the likes of it represent a solution. Google backs LOT Network, which is similar.

Recently, together with a bunch of other large companies (Cisco, Dell, Intel, AT&T, Amazon, Microsoft, and Salesforce are named below), Google pushed the “Prior Art Archive”; MIT’s self-promotional new piece about it gives a rather foggy idea; it even quotes MIT staff and no critics/sceptics. It doesn't help much when they focus on prior art rather than patent scope and obviousness (among other things). To quote MIT’s own site:

Two years later, a company applies for a patent on your invention. Once the application is granted, the company not only begins profiting from your device, but launches a lawsuit against you, the inventor, for infringing their patent.

This is the danger faced by researchers and developers alike, because the limits of existing content repositories means it is often a struggle for patent examiners to find what they call prior art — evidence that an invention is already known — relating to an application. That means that some applications that should be rejected are wrongly approved.

[...]

Cisco has already uploaded 165,000 documents into the archive, and a number of companies have committed to take part in the initiative, including Dell, Intel, AT&T, Amazon, Microsoft, and Salesforce. Google has also assisted the project with classification technology that will be used in the system.

As we explained earlier this month, this serves to distract from other efforts and put examination efforts in the hands of the public, essentially outsourcing or crowdsourcing the work (for corporate gain). When examiners use the archive they may get a false sense of search exhausion.

10.14.18

Let’s Hope Apple Defeats All the Abstract Patents That Are Leveraged Against It

Posted in America, Apple, Courtroom, Patents at 7:56 am by Dr. Roy Schestowitz

Software patents disguised as “network provisioning” now?

Apple

Summary: Apple can be viewed as a strategic ‘ally’ against patents that threaten Android/Linux if one ignores all the patent battles the company started (and has since then settled) against Android OEMs

THE USPTO still grants patents far too easily, only for courts to repeatedly correct it by invalidating granted patents. Sometimes there’s a lot of money at stake, like Apple’s $234 million patent dispute with a university.

Last weekend we wrote about Apple‘s success in appealing the case [1, 2] for the Federal Circuit to deal with rather than the district court, which tends to be more lenient in terms of patent quality, much like the USPTO even in the post-Alice era. As one writer put it a fortnight ago:

A federal appeals court has ruled in Apple’s favor in a patent dispute with the University of Wisconsin-Madison. The court ruling, initially spotted by Reuters, said that that Apple didn’t infringe on one of the university’s patents, overturning a prior ruling in the university’s favor that had fined Apple $234 million. Another $272 million was later added to that fine to account for Apple’s continued use of the patent, but that will presumably be thrown out now that the underlying judgment has been reversed.

We expect this case to be “DOA”, but at what cost (legal bills)? Meanwhile, the patent troll Uniloc strikes again, still focused on the same target, Apple, after Microsoft paid Uniloc. As a pro-Apple site put it last week, this is a new case:

Apple is again in the crosshairs of Uniloc, with the patent aggregator alleging the process by which iPhone and cellular-connected iPad and Apple Watch models infringes on owned intellectual property.

[...]

The ’616 patent changed hands to Uniloc’s main Luxembourg arm in 2017 and was duly assigned to Uniloc 2017 LLC in May of this year.

Uniloc alleges all iPhone models from iPhone 5 through iPhone XS Max and cellular connected iPads including fourth- and fifth-generation iPad models, all iPad mini versions, iPad Pro, first- and second-generation iPad Air models and Apple Watch Series 1 through 3 infringe on multiple patent claims.

Uniloc seeks unspecified damages, reimbursement of legal fees and other relief deemed fit by the court.

It would be a stretch to call Uniloc a Microsoft proxy because the two entities had lengthy and expensive court battles. The real danger here is that this troll, ‘fattened’ by Microsoft cash, may soon go after Android/Linux players. Unless Apple manages to squash the underlying patents and drive Uniloc to bankruptcy (out of funds). Uniloc isn’t a real company and there’s a reason why it operates through Luxembourg.

10.06.18

Wisconsin Alumni Research Foundation (WARF) is Not Getting Money From Apple and VirnetX Might Not Get Any, Either

Posted in Apple, Patents at 11:04 pm by Dr. Roy Schestowitz

Only the lawyers are receiving money (lots of it!)

German euro coin

Summary: The notorious patent assertion ‘firm’ from Wisconsin and the infamous patent troll that sues in Texas might soon find out that the Court of Appeals for the Federal Circuit (CAFC) isn’t tolerating their patents and their behaviour

TECHRIGHTS is far from a friend of Apple; in fact, we called for boycotts several times in the past, we criticised Apple’s bogus European Patents (which EPO insiders tell us are bogus), and we regularly ridicule some of the patents that the USPTO gives to Apple. To set the record straight, Apple is a very evil company, it is a patent aggressor, and we generally encourage people to never buy anything from Apple (there’s a new scandal with practical reasons to avoid Apple).

“Remember that 35 U.S.C. § 101 at the U.S. Patent and Trademark Office (USPTO), for example, helps squash almost all software patents and Apple sometimes fights back against FRAND, which is inherently incompatible with Free/libre software.”No matter our opinion/views on Apple, merely going after (or against) Apple does not make a company virtuous. We’ve repeatedly explained, for example, why we hope Apple will beat Qualcomm (there’s a new article today about the case, “Apple and manufacturers: Qualcomm can’t demand “billions in royalties” while ducking patent-specific claims“). There are even worse things than Apple and there are situations where Apple winning a legal case can inadvertently be helpful to GNU/Linux. Remember that 35 U.S.C. § 101 at the U.S. Patent and Trademark Office (USPTO), for example, helps squash almost all software patents and Apple sometimes fights back against FRAND, which is inherently incompatible with Free/libre software.

As expected, the Federal Circuit (CAFC) throws aside decisions on patent cases from notorious courts in Texas and elsewhere (a software patent case of a patent troll called VirnetX is in Texas, another one from the Wisconsin Alumni Research Foundation (WARF) comes from elsewhere). As patent maximalists reported a few days ago, “Federal Circuit sets aside $234 jury verdict against Apple” and will decide on its own:

WARF’s 2015 patent damages win, bumped up to $506m by a judge last year, has been vacated by the Federal Circuit because “no reasonable juror could have found infringement based on the evidence presented during the liability phase of trial”

We expect to see this also in Texas, as Apple is expected to appeal (or to have already appealed) the VirnetX verdict.

“Patent maximalists keep cheering for parasites like VirnetX, merely reaffirming the view that they aren’t proponents of technology but only proponents of litigation.”Watchtroll came up with a bizarre headline four days ago: “Apple to pay VirnetX $93.4 million in costs and interest for patent infringement” (no, this is what VirnetX wants, but it doesn’t mean that it will get it).

Well, there will almost certainly be an appeal to CAFC and maybe even higher up (the Supreme Court (SCOTUS) might get involved one day), but facts don’t suit Watchtroll (Steve Brachmann in this case).

Patent maximalists keep cheering for parasites like VirnetX, merely reaffirming the view that they aren’t proponents of technology but only proponents of litigation.

09.25.18

Patent Trolls Roundup: Microsoft’s Patent Troll Collapses, Samsung Fuels Patent Troll Sisvel, and Patent Troll VirnetX Wants Apple’s Cash

Posted in America, Apple, Microsoft, Patents, Samsung at 5:22 am by Dr. Roy Schestowitz

Submerged under the bridge

Submerged

Summary: Microsoft’s largest patent troll continues to experience a mass exodus (in addition to all the layoffs), Sisvel receives armament from Samsung, and VirnetX carries on pretending — to shareholders at least — that it will get a lot of money out of Apple (albeit an appeal will likely prevent that altogether)

SEEING the trend in US patent courts (which unlike the USPTO reject abstract patents en masse), patent trolls are utterly demoralised. Microsoft’s patent troll Intellectual Ventures keeps imploding based on the patent trolls’ lobby (IAM). Here’s the latest:

Cory Van Arsdale, chief revenue office at Intellectual Ventures and one of the driving forces behind its recent monetisation efforts is leaving the giant NPE. He is set to keep some ties to IV advising the business on a consultancy basis for at least the next year, but his departure effectively hands control of the company’s patent sales and licensing to Mathen Ganesan, executive vice president of the Invention Investment Funds.

Van Arsdale joined IV in 2010 from a consulting business which he co-founded and before that did stints at the likes of Microsoft, Apple and Sun Microsystems. He has taken an active role as the company has ramped up its rate of sales in recent years including the disposals of around 4,000 former Kodak patents and almost 1,000 former American Express grants to Dominion Harbor.

The patent trolls’ lobby has also taken note of Sisvel’s latest activity in “More details emerge of Samsung patent transfer to Sisvel,” but it’s behind a payall and the outline says:

Deal between the two came as Korean tech giant agreed to royalty bearing licence to NPE’s Wi-Fi portfolio

This will certainly be used for extortion and blackmail purposes (which is what Sisvel does). Unlike Apple, Samsung does not engage in patent aggression, at least not directly.

The patent troll VirnetX wants money out of nothing in Eastern Texas, where Apple became its latest high-profile target. It issued the following press release yesterday:

VirnetX™ Holding Corporation (NYSE:VHC), an Internet security software and technology company, announced today that on September 20, 2018, pursuant to a Court’s order, attorneys from VirnetX and Apple have conferred and agree without dispute amounts for Bill of Costs and Prejudgment Interest totaling $93,351,141 to be added to the $502,567,709 jury verdict for VirnetX in the ongoing patent infringement action between VirnetX Inc. (“VirnetX”) and Apple Inc (“Apple”).

“Apple’s versus VirnetX patent infringement case payment balloons to $595.9M,” AppleInsider‘s headline said and there’s also
“VirnetX Holding Corporation: VirnetX Files Notice Regarding Agreed Bill of Costs and Prejudgment Interest of $93.3 Million in Apple Suit” in last night’s headlines.

But this decision will almost certainly be appealed and reach the Federal Circuit, which has a rather different track record than courts in Eastern Texas.

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’!

09.22.18

Bogus Patents Which Oughtn’t Have Been Granted Make Products Deliberately Worse, Reducing Innovation and Worsening Customers’ Experience

Posted in Apple, Europe, Patents, RAND at 12:07 pm by Dr. Roy Schestowitz

Marco Cassia patent
EP2460270 by Marco Cassia (warning: epo.org link)

Summary: How shallow patents — or patent applications that no patent office should be accepting — turn out to be at the core of multi-billion-dollar cases/lawsuits, with potentially a billion people impacted (their products made worse to work around such questionable patents)

IN OUR previous post we mentioned how the EPO had begun feeding patent trolls in the same way the USPTO did for a number of decades. Qualcomm is a poorly-managed aging company in a state of decadence, so it nowadays resorts to patents more than anything, even dubious European Patents (EPs), granted by the EPO.

Florian Müller has been keeping a close eye on legal filings from Qualcomm, especially earlier this year. He more or less understands the underlying issues, having spoken to some of the people involved and also glanced at the underlying patents. “Very long (by local standards) Qualcomm v. Apple patent trial just finished,” he wrote some days ago. “Stuff for more than one blog post: infringement, validity, antitrust, licenses to contract manufacturers… By far their most interesting court fight to date.”

The CCIA‘s (Computer & Communications Industry Association) Joshua Landau weighed in by saying: “The FRAND obligation means you negotiate a license with *anyone* who asks, not “anyone but your competitors.” This shouldn’t be controversial-even Qualcomm has argued that when they were in the position of wanting a license.”

“Qualcomm [is] presently asserting 13 patents against Apple in Germany,” Müller noted. “Until today‘s trial, „only“ 10 were known, including the one the court in Munich told me about yesterday.”

Müller, Landau said, “beat me to it (and beat our press release as well), but yeah, FRAND means FRAND – you have to be willing to license anyone who asks for a license. Qualcomm even agrees with this principle—when they’re the ones who want a license.”

Müller already wrote a number of posts about it — ones that we took stock of last week. He separately took note of another FRAND case: “Huawei v. Samsung: no deal. Minute Entry for proceedings held before Magistrate Judge Kandis A. Westmore: Case did not settle. Settlement Conference held on 9/17/2018. Total Time in Court: 4 hours 17 minutes…”

But focusing on the main case in question (one which impacts Android/Linux as well), Müller said that “[i]ndustry bodies @actonline and @ccianet support @FTC’s motion to require #Qualcomm to license SEPs to rival chipset makers,” basically citing a disgraced Microsoft front group which pretends to represent small businesses. He wrote a blog post about it and assured me that “I never said they represented me. I just agree selectively…”

Here’s what’s happening in a nutshell:

It’s a busy September on the FRAND front…

As I reported on the first of the month, the Federal Trade Commission brought a motion for partial summary judgment that may open up the wireless chipset market–by reminding Qualcomm of its self-imposed obligation to license rival chipset makers–even prior to the big antitrust trial in the Northern District of California.

It’s odd that a mere reminder would be a potential game-changer, but that’s the way it is because of Qualcomm’s refusal to live up to the FRAND promise.

Disturbing it was to then see CCIA liaising with a Microsoft AstroTurfing group:

Yesterday, CCIA and ACT filed an amicus brief in the FTC’s case against Qualcomm in the Northern District of California. As explained in the brief, the FRAND obligation which patent owners voluntarily agree to when they participate in the development of a standard requires the owners of standard-essential patents to license their patents on “fair, reasonable, and non-discriminatory terms.” And the “non-discriminatory” portion of that obligation means precisely what it states—that the patent owner may not discriminate amongst willing licensees, but has to license anyone who wants a license.

Why would CCIA wish to associate with ACT? We could expect this perhaps 7 years ago when CCIA did all sorts of questionable things, but why now? Why again?

“Trolling with junk patents works best in Germany,” Müller wrote later. “With respect to injunctions, worse than the Eastern District of Texas.”

Something like the UPC would put that ‘on steroids’ if it was ever to materialise, further broadening scope of injunctions. The patent maximalists deny that a problem even exists in that regard.

As it turns out, the European Patent in question may in fact be bunk: [via]

Yesterday’s Qualcomm v. Apple trial took twice as long as the average Mannheim patent trial. In fact, the ventilation system was switched off in the late afternoon, so for the last hour, two doors had to be kept open. The courtrooms at the Mannheim Regional Court, Europe’s leading venue for wireless patents, are famously windowless.

Presiding Judge Dr. Holger Kircher forthcomingly stated at the outset that this case was, in my words, too close to call (unlike the one that Qualcomm agreed to stay in June), thus the court had to elaborate on all our of Apple’s defenses: non-infringement, invalidity (which German district courts don’t determine, but they can and often do stay cases pending a parallel nullity or revocation proceeding in another forum), abusive conduct (antitrust), and licensing (through one or more contract manufacturers). I’ll address the first two–the traditional defenses to patent infringement–in this post, and the affirmative defenses (the remaining two) in a subsequent post since there’s an abundance of interesting things to report and comment on.

The patent-in-suit, EP2460270 on a “switch with improved biasing” (“biasing” in this context basically meaning that one voltage gets to control another), is not standard-essential. Essentiality hasn’t been alleged by any party to the German Qualcomm v. Apple cases that have been heard so far. Nor is it related to wireless baseband processors: it’s a general circuity patent covering a type of switch. It was mentioned during yesterday’s trial that the chip allegedly infringing on the patent is supplied to Apple by Avago/Broadcom. But all of the accused devices come with an Intel baseband chip, a fact that will be relevant to the antitrust part of the next post.

Another sore eye for patent quality at the EPO? As Landau put it: “An Expert Opinion from the Swedish Patent Office says that Qualcomm’s Patent used to Sue Apple Should be Invalidated…”

It cites an Apple proponents’ site, which in turn cites Müller and says: “Yesterday’s Qualcomm v. Apple trial took place in the Mannheim Regional Court, Europe’s leading venue for wireless patents. The trial took twice as long as the average Mannheim patent trial, reports Florian Mueller. Mueller described the Apple v. Qualcomm case the commercially biggest patent-related dispute ever and could be truly seen as the World Series of IP cases. Apple is trying to invalidate Qualcomm’s patent titled “Switch with Improved Biasing” in this Mannheim case based on an expert opinion from Sweden.”

Apple too has been granted bogus European Patents, based on reliable sources of ours. It’s somewhat of a crisis. Another new post from Müller says: [via]

This is my second post on the Qualcomm v. Apple patent infringement trial held by the Mannheim Regional Court yesterday. In the previous post I reported on the alleged (non-)infringement and (in)validity of the patent-in-suit, EP2460270 on a “switch with improved biasing”. While the case is too close to call, this patent assertion may fail on the merits just like the first one that went to trial in Mannheim. But the court might also, contrary to what the non-asserted independent claim 16 implies for claim construction purposes and despite a finding by the Swedish patent office that the patent lacks a sufficient inventive step over prior art presented by Apple, hold Apple liable for infringement and decline to stay the case pending a parallel nullity action. In that case, Apple’s affirmative defenses–antitrust and licensing–will be outcome-determinative at least with respect to the availability of injunctive relief.

For a long time, it was hard to fend off even standard-essential patent injunctions in Germany on antitrust grounds (with or without a FRAND commitment, which German courts wouldn’t deem enforceable by third-party beneficiaries anyway). It was arguably hardest in Presiding Judge Dr. Kircher’s court. The situation improved after the Court of Justice of the EU ruling in Huawei v. ZTE; in a way, it already got a little bit better after the European Commission took action against Samsung and Motorola. But very regrettably, the thinking of German patent judges is still, by and large, that antitrust defenses are just part of a throw-in-the-kitchen-sink tactic of infringers.

The patents Qualcomm is asserting in Germany–at least the ones that have been discussed in hearings or trials–aren’t standard-essential, which ups the ante for Apple’s antitrust defense. However, the fact that Qualcomm’s conduct has been deemed anticompetitive by competition enforcers in multiple jurisdictions (“Antitrust Grand Slam”).

Last but not least is this post about Apple’s workaround (around the patents):

Yesterday the Munich I Regional Court held a six-hour (including breaks, though) trial on Qualcomm’s eight lawsuits asserting four different search user interface patents against Apple’s Spotlight search, with two lawsuits per patents targeting a total of three different Apple entities. A first hearing had been held in early May.

That part of the wide-ranging, earth-spanning, multifaceted Apple-Qualcomm dispute is, however, strategically so unimportant that it’s not worth multiple posts or anything. That set of eight cases is a total waste of court and party resources–sort of a tempest in a teacup–as these Munich Spotlight cases have been defanged in three important ways…

This is no doubt useful for patent law firms, especially German or Germany-based ones, but who else does that serve? All these ruinous lawsuits already contribute to deliberate exacerbations in product development. And based on what? Bogus patents that should never have been granted in the first place?

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