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03.13.18

Patent Trolls in the United States Increasingly Target Small Businesses Which Cannot Challenge Their Likely-Invalid Software Patents

Posted in America, Apple, Patents at 5:31 am by Dr. Roy Schestowitz

Most of the patent ‘assertion’ (shakedown) activity never becomes visible to the press/public

SXSW on Patent Trolls

Summary: South by Southwest (SXSW Conference/Festivals in Austin, Texas) has a presentation about patent trolls, whose general message may be reaffirmed by recent legal actions in Texas and outside Texas

THE reforms leading to stricter examination at the USPTO (it’s a lot harder to get software patents these days, let alone enforce them) has paid off for large companies. They very often beat trolls in court. That in its own right is a deterrent. But what happens when these trolls manage to avoid the courts and even PTAB altogether?

There’s this new presentation this week (yesterday) that notes the following. Slide 16 says:

A shift in troll activity?

From high-profile cases against large entities with large damage demands…

… to large numbers of low-profile letters and lawsuits against small/medium size companies more likely to settle for nuisance value.

Still within the top three issues for startups.

Why did this new presentation (from a law firm together with Engine presenting some data) titled “The Persistence of Patent Trolls in Tech” get twisted (by patent maximalists) as “Is There Still a Patent Troll Problem”? They continue to attempt to deny that there is a problem because they themselves are connected to patent trolls.

Earlier today we found this new report about fraudulent lawsuits:

A New Jersey sports memorabilia dealer on Friday asked a federal judge for attorneys’ fees as sanctions following the Federal Circuit’s ruling that a payment processor’s suit seeking a declaration it didn’t infringe the dealer’s purported interactive software patents was frivolous.

In a motion, Eric Inselberg and his company, Inselberg Interactive LLC, said payments processor First Data Corp.’s unsuccessful action was filed in bad faith because Inselberg didn’t even own the patents at issue…

It is far from the first time we see this being done; we covered more such examples as recently as a couple of months back. Should it not be considered a crime (such as blackmail) to assert rights that you know you don’t have?

There are other new stories this week, as well as old ones such as Watchtroll covering one week late how InterDigital bought Technicolor's patents on the cheap.

The Texas-based Portal Communications sued Apple in the Eastern District of Texas. Looks like a patent troll to us, having covered it over the weekend, based on an Apple advocacy site. Here’s WIPR‘s coverage, which frames this as a ‘monetisation’ effort (a technical person passing the patents to a litigation front):

The three patents, US numbers 7,376,645; 7,873,654; and 8,150,872, are all called “Multimodal natural language query system and architecture for processing voice and proximity-based queries”.

According to the claim, the patents were developed by inventor Dave Bernard and were assigned to Portal Communications.

Why isn’t Bernard himself suing? It seems to have become so common to just sue through shells, some of which don’t even have an office, just some registration somewhere (typically LLC). There’s another lawsuit against Apple in the headlines, such as ParkerVision, Inc. v Apple Inc. et al in Docket Navigator. Yesterday it wrote about litigation-friendly places/venues (such as the Eastern District of Texas above) being dodged by defendants. After TC Heartland businesses will likely decide to abandon presence in venues that sought to attract patent trolls. As the Docket Report put it:

The court overruled defendant’s objection to the magistrate judge’s recommendation to deny its motion to transfer for improper venue because defendant had a regular and established place of business in the district through its office that closed a few weeks before plaintiff filed suit.

It’s worth noting that the above case isn’t in Texas, which already lost more than half of its 'share' in lawsuits (right after TC Heartland). States that harbour trolls will soon discover that they also repel actual companies which employ locals; more so after TC Heartland. Better fix/amend their state policies?

03.10.18

Judge Koh, Famous for Her Apple/Samsung Rulings, Pours Cold Water on Haptic Technology Patents While China is Sought as Alternative Litigation Venue by Iancu-Connected Immersion

Posted in America, Apple, Asia, Patents, Samsung at 8:11 am by Dr. Roy Schestowitz

Appointed by Arnold Schwarzenegger

Judge Lucy Koh

Summary: Judge Lucy Koh, an American judge with Korean heritage, throws out patent claims on haptic feedback approaches and Samsung, Korea’s largest technology firm, is being dragged to court in China over haptic feedback approaches

THE USPTO is getting tougher on patents. The courts even more so. Just because something had been granted as a patent and was later used in a lawsuit (even successfully) does not mean that PTAB or court judges will blindly accept the claims. They’ll investigate further. Burden of proof is on the applicant/assignee/claimant.

With all the mobile or “smart” hype, which includes haptic techniques, it’s not surprising that few firms look for a ‘jackpot’, knowing that there are billions of devices out there and thus possibly a lot in ‘damages’. If they get lucky…

Andrei IancuDays ago Patently-O wrote about Fitbit’s patent challenge, noting that Immersion’s patents are not that good. We wrote about this case before and noted that Immersion is connected to Microsoft as well as the USPTO’s new Director [1, 2]. Appointing this man who is connected to Trump professionally was a colossal mistake, but it’s too late to change that. Either way, “[o]n 12(b)(6) motion for dismiss, Judge Koh has thrown out some of Immersion’s asserted claims covering various haptic feedback approaches,” Patently-O wrote.

How does Apple feel about it now? Immersion does nothing but patent lawsuits these days; what does that make it?

So guess what Immersion is doing. It’s suing Samsung in China as well as at the Eastern District of Texas:

A US technology company has said Samsung’s touchscreen products including the Galaxy S8 infringe patents related to haptic (touch interaction) technology.

Immersion announced its lawsuits against the South Korean electronics company yesterday, March 8. They were filed at the US District Court for the Eastern District of Texas Marshall Division and the Fuzhou Intermediate Court in China.

Considering the fate of Immersion’s patent aggression, one might think this new lawsuit in the US will go pretty much nowhere:

Leap Motion Hit with Patent Infringement Lawsuit from Same Company Suing Meta

[...]

Patent holder Genedics, LLC has filed a legal complaint alleging that hand-tracking startup Leap Motion is infringing on its intellectual property.

As its name suggests, it’s little more than a parasite looking for a buck. It does not even have a Web site, just a bunch of lawsuits with its name on them.

03.08.18

Japanese and Korean Companies Don’t Pursue Patent Litigation and They’re Doing a Lot Better Than China

Posted in America, Apple, Asia, Deception at 11:13 am by Dr. Roy Schestowitz

China as a nation does not demonstrate the value of patent maximalism (unless you’re a lawyer looking for a quick buck/yuan)

Wiring
Quantity alone is a rather poor measure of value

Summary: China and its neighbours to the east are far from friends (contrary to shallow beliefs that are ubiquitous in the West) and their different patent policies serve to show that, if anything, patent restraint pays off

THE Japanese market and JPO made the news quite a few times recently, initially because of SEP policy and then some Japanese companies. IAM, the patent trolls’ lobby, did everything it could to spin what had happened (we wrote some rebuttals) and right now it downplays — yet again — the patent trolls (IAM still calls them “NPEs”) problem by looking at a country which barely has any. Earlier this week IAM wrote:

In their heyday, NPEs often saw companies from Japan with big product businesses as easy prey: they were conservative, defensive and did not like confrontation; so accuse them of patent infringement and the likelihood is that they would pay to make the threat of litigation go away. That’s why Japanese businesses were always towards the top of the rankings as defendants in NPE suits.

Japan and Korea are mostly victims of trolls from abroad, not domestic trolls. It’s hard to even think of any famous trolls from Japan and Korea.

“Japan and Korea are mostly victims of trolls from abroad, not domestic trolls.”Last week Canon made the news because it had become aggressive with patents in the US (which is rare), only a few months after Canon had joined OIN, which is incidentally a bullies’ club (some of its largest members are aggressive with patents). The total number of lawsuits/defendants was revealed by IAM when it wrote that “Canon’s big US patent attack last week is unlikely to represent a new licensing strategy, but other recent suits filed by Japanese companies State-side may well indicate changing views.”

From the blog post it turns out that the approximated number, 50, was pretty close:

In all, 48 firms are named in an ITC complaint Canon filed on 28th February – 14 of these are corporations domiciled in China, Hong Kong or Macau. According to a representative patent complaint, the defendants import replacement toner cartridges which are compatible with Canon and HP brand laser printers. In turn, Canon has asserted at least seven cartridge-related US patents against each respondent at a range of district courts, in states including Delaware, California, Arizona and Texas. It is very unlikely that Canon has any desire to grant these types of entities a revenue-bearing licence. Instead, the chances are that it would rather see them shut out of this particular sector to protect its cartridge business.

A few days ago in a press release [1, 2] they called themselves “Canon U.S.A.” in order to sound American (they’re Japanese). They should rename/rebrand as “Canon Litigation”, for that’s what they’re reduced to now.

Meanwhile in China, where there’s a patent trolls epidemic (nobody would deny it at this point), blame is being put by US patent maximalists. Everything they dislike is being blamed in China (by default) as if only China competes with the US. In reality, it’s similar to the constant Russia-blaming tactics (in defense, not economic aspects). And it’s getting boring. It has gotten so boring in fact that we stopped tracking particular patent maximalists whose output is constant China blaming, China envy etc. Here’s one of them stating: “If the next generation of American children want to be engineers or scientists, they will have to learn Mandarin” (complete nonsense!).

This sort of alarmist propaganda has become very commonplace among patent maximalists. Their agenda is pretty obvious to see. They basically say, “hey, look at China rising; that must mean that its lenient patent system is behind all that and therefore we must undo all the reforms and grant patents by the millions!”

Over at Watchtroll several days ago (Sunday) there were two articles about patents, one in which Paul Morinville continued the China obsession (as if the US only has patents and nothing else) and David Kline bemoaned the price of patents: (they’re pretty cheap in China, which devalues the very concept of a patent)

Making the patent system inexpensive invited everyone’s participation. In the words of Englishman John Standfield, quoted in an 1880 issue of Scientific American: “The cheap patent law of the United States has been and still is the secret of the great success of that country.”

This leads to China-style saturation of patents and ultimately devaluation thereof. Do we really want that? Scarcity of patents is what makes them worth pursuing and keeping. Abundance of patents may be China’s ‘hack’ for discrediting accusations that it is “stealing”, “ripping off”, “pirating”, “knocking off” and so on. China just floods the market with patents, irrespective of the long-term consequences.

The same author (as above) later defended patent trolls, so we pretty much know where he comes from and where he chooses to post (Watchtroll is just about the most extremist site in the patents domain). As we shall show in a few days, Watchtroll is back to attacking judges. It’s getting pretty ugly again.

Last but not least, consider where Yahoo’s founder (Yang) came from. He was born in Taiwan as Yang Chih-Yuan and he created a massive US corporation with hard work and technical edge. Microsoft destroyed his company (which he attempted to save amid Microsoft’s sabotage) and now the patents are up for sale. As it turns out, Samsung has just wasted money on a pile of software patents that are likely not valid after Alice. As IAM put it earlier today:

Altaba, the holding company that was formed to sell off former Yahoo! assets, has transferred a patent portfolio to Samsung Electronics, in what looks to be its second small-scale disposal.

USPTO records show that the transfer was made in late February. The assignment includes nine US patents and two applications. If there are any foreign counterparts involved, they’re not mentioned in the documentation. A brief review of the titles suggest that they cover inventions related to augmented reality (AR) technologies (“Reconfiguring reality using a reality overlay device”; “Virtual notes in a reality overlay”).

The move is the first made by Altaba since it brought in former RPX executive Paul Reidy to lead its patent monetisation effort last December. It comes five months after Altaba’s first patent disposal in September, which saw Eureka Database Solutions, an affiliate of Dominion Harbor Group, pick up 25 patent assets related to search. It is unclear whether that deal was brokered by Houlihan Lokey, the firm originally appointed to find a buyer for the whole portfolio

Samsung is generally not aggressive with patents, so we’re assuming that it pursues patent peace or cross-licensing with the above acquisition. With the exception of China and perhaps also Singapore, east/southeast Asia isn’t renowned for patent aggression. Considering the financial prosperity in Japan and South Korea (China is low on a per capita basis), that ought to give the US something to think about. Is patent maximalism desirable at all?

02.17.18

Apple Discovers That Its Patent Disputes Are a Losing Battle Which Only Lawyers Win (Profit From)

Posted in Apple, Patents, Samsung at 11:40 am by Dr. Roy Schestowitz

Playing cardsRelated: In Apple/Samsung Patent Lawsuits Over Android/Linux, Only Patent Lawyers Are Winning (Again)

Summary: By pouring a lot of money and energy into the ‘litigation card’ Apple lost focus and it’s also losing some key cases, as its patents are simply not strong enough

THE USPTO can grant however many patents it wants, but judges are under no obligation to honour these patents. As scholars recently noted, many patents are granted erroneously in order to inflate patent numbers (this became a problem at the EPO as well in recent years).

Yesterday we stumbled upon this new report from a reliable news site which said:

A federal judge handed a minor but significant legal defeat to Apple in its long-simmering patent dispute with Samsung on Thursday evening.

U.S. District Judge Lucy Koh agreed with Samsung that the South Korea smartphone manufacturer owes Apple about $6.4 million, but not the ongoing royalties to which Apple claimed it was entitled.

The order only settles a sliver of the overall patent fight, parts of which have climbed all the way to the U.S. Supreme Court.

This is about software patents and the award is without a shadow of a doubt exceeded by the legal bills; things become a lot more expensive when these cases reach the US Supreme Court — something which may happen for design patents [1, 2]. As explained here yesterday, “patent experts [are] concerned about legal uncertainty surrounding design patent damages” in Apple v Samsung. Matt Levy, who used to write for CCIA, shows up again:

An Apple v. Samsung–far from the first, to put it that way–will be held in three months. The Engine panel discussion was not exactly a trial preview. The perspective was very high-level, including an outlook (by Matt Levy) as to what might happen after the trial. Mr. Levy believes the Federal Circuit will again take an exceedingly patentee-friendly position, and the Supreme Court will have to correct it again.

Nobody on the panel appeared to believe that the 19th-century unapportioned-disgorgement rule in 35 U.S.C. § 289 is appropriate with respect to today’s multifaceted technology products. However, the focus of the panel wasn’t on advocating new legislation, though the subject did come up. It was more about the high degree of uncertainty surrounding not just the Apple v. Samsung re-retrial but presenting an issue to the industry at large.

[...]

Mr. Duan explained that design patent litigation isn’t nearly as widespread as software patent litigation, but depending on what happens in Apple v. Samsung and other design patent damages cases, design patents could give rise to many lawsuits by patent trolls in the not too distant future.

Without a doubt, industry groups are concerned about the lack of legal certainty. One of the questions from the audience (toward the end of the YouTube video) came from the Software & Information Industry Association (SIIA).

As we pointed out earlier this month, SIIA supports PTAB. The above people are interested in improved patent quality.

01.15.18

Litigation Roundup: Nintendo, TiVo, Apple, Samsung, Huawei, Philips, UMC

Posted in America, Apple, Asia, Patents, Samsung at 2:32 am by Dr. Roy Schestowitz

…And more legal actions are now being filed in China

The fortunes told

Summary: The latest high-profile legal battles, spanning a growing number of nations and increasingly representing a political shift as well

THE effort to keep abreast of litigation, except nuisance litigation from trolls, carries on. Yesterday we found this report about Nintendo using its sometimes notorious patents to sue a small company, Colopl. A popular gaming site wrote about it:

Nintendo is suing Japanese mobile games developer Colopl for allegedly infringing on five of the publisher’s patents.

This lawsuit could be interesting for indie developers worried about patent issues in their own work as well. As Siliconera reports, one of the patent complaints from Nintendo include “the special technology used to operate a joystick over a touch panel” which is featured in Colopl’s mobile title White Cat Project. The patent was supposedly originally filed in 2006 with regard to the Nintendo DS wrist strap.

The most media attention has been given to cases that involve one large company suing another. There were several such examples last week. TiVo is now bullying rivals (not a new thing) using patents; what’s noteworthy is that it’s done via subsidiaries. Averting/reducing risk of counteraction? See “Boston-based TiVo subsidiary sues Comcast for patent infringement”, “TiVo Hits Comcast With More Lawsuits Targeting X1″, “TiVo Sues Comcast Again, Alleging Operator’s X1 Infringes Eight Patents” and “TiVo Sues Comcast Again, Alleging Operator’s X1 Infringes Eight Patents”. Here are some details:

TiVo has launched a new legal attack on Comcast aimed a pushing the cable giant to reach a settlement to license TiVo-owned patents.

TiVo’s Rovi subsidiary on Wednesday filed two lawsuits in federal district courts, alleging Comcast’s X1 platform infringes eight TiVo-owned patents. That includes technology covering pausing and resuming shows on different devices; restarting live programming in progress; certain advanced DVR recording features; and advanced search and voice functionality.

One can only guess (it’s not hard) why the lawsuit comes from X1 and not from TiVo (directly).

There’s another patent lawsuit against another media company. Philips has just reminded us of its capacity as a patent bully (it has done this for decades). As Reuters put it:

A patent licensing company on Monday accused music-streaming service Spotify of infringing three patents originally granted to Dutch technology giant Philips.

Sisvel, an Italian intellectual property management firm, sued Spotify in U.S. District Court in Delaware, alleging infringement of three patents relating to methods of making music recommendations based on a user’s listening habits.

We wrote quite a lot about Sisvel. We have covered its actions, sometimes at the behest of Philips, for nearly a decade now. Sisvel is still around and it’s still vicious. They’re behaving like the Mafia at times. What’s interesting is that they’re European and there aren’t many trolls in Europe. There are some, but not many. We hope to keep it that way. There are many activists here who oppose the UPC because they correctly perceive it as an open door to patent trolls. One of those activists is mentioned in this new article about his new game for iPhone. “Florian has fought for the open source movement and small software companies against software patents,” it says. That alludes to Florian Müller, who spent years of his busy life covering Apple/Samsung patent disputes. Here is the latest on that:

Apple, Samsung Continue Ongoing War Over Royalties

Another battle in Apple and Samsung’s seemingly ceaseless smartphone patent wars played out in front of a federal judge on Thursday, this one pertaining to Samsung’s redesigns following a jury verdict for Apple in 2014.

The patent, U.S. Patent No. 5,946,647, relates to the operation of quicklinks – a software program that allows users to prompt hyperlinks that can take them to a webpage, a different application platform or perform a function within an operating system.

“Each redesign consisted of only one or two minor changes,” Apple attorney Mark Selwyn told U.S. District Judge Lucy Koh during the prolonged hearing that featured several back-and-forths between the two lawyers.

Speaking of Samsung, there was a lot of press coverage last week regarding Huawei winning a patent infringement lawsuit against it, e.g. [1, 2, 3, 4, 5]. Many articles focused on political tensions associated with Huawei (e.g. [1, 2], but nearly all the major sites which cover patent matters focused on Huawei versus Samsung in China. What will be the ramifications for the Korean giant in China and elsewhere? As IAM put it the other day: “Big news out of China – Shenzhen court awards Huawei country’s first-ever injunction based on an “international SEP” in suit against Samsung [...] For China to become a major patent litigation venue, foreign plaintiffs will need to feel that the opposite – ie a Samsung injunction awarded against Huawei – would be equally as possible.”

“China may view this as a short-term competitive advantage, but sooner or later firms like Samsung may take their production out of mainland China (if not to avoid sanctions then purely as a form of economic retaliation). What would China be left with if manufacturing goes elsewhere? A pile of worthless patents and lots of law firms?”Well, “injunction” is a euphemism for embargo, either temporary or longterm/permanent. Who benefits from such sanctions? The same goes for the US, which has begun a sort of trade war with China over Huawei devices (cannot be bought from or even stocked by some of the largest carriers). Meanwhile in China, “UMC Files Patent Infringement Lawsuit against Micron,” based on a press release from the weekend.

As we’ve argued before, China seems to be emulating Texas and we don’t think that’s a good thing at all. China may view this as a short-term competitive advantage, but sooner or later firms like Samsung may take their production out of mainland China (if not to avoid sanctions then purely as a form of economic retaliation). What would China be left with if manufacturing goes elsewhere? A pile of worthless patents and lots of law firms? What made China attractive for many firms (for manufacturing at least) isn’t strong patent “protection” but perhaps the very opposite of that.

01.14.18

PTAB is Being Demeaned, But Only by the Very Entities One Ought to Expect (Because They Hate Patent Justice/Quality)

Posted in America, Apple, Patents at 5:56 pm by Dr. Roy Schestowitz

The ‘natural enemies’ of a high-quality patent system keep weeping

Sad boy

Summary: The latest rants/scorn against PTAB — leaning on cases such as Wi-Fi One v Broadcom or entities like Saint Regis Mohawk Tribe, Apple etc. — are all coming from firms and people who profit from low-quality patents

THE excellent work of the patent appeal board in the US (at the USPTO it’s referred to as PTAB, similar but not analogous to BoA at the EPO) has attracted the wrath of patent maximalists. They cannot tolerate the concept of quality control or reassessment of patents they (or more typically their clients) were granted in the past. This is expected. The harder they resist, the more they’ve been hurt. And the goal ought to be decimating their role in this system because they tend to contribute nothing but feuds and FUD.

How about this from Adam Mossoff? His attacks on PTAB are a good sign because he is notorious for promoting everything that’s wrong in the patent system. He’s just working for a Conservative think tank serving patent trolls and the litigation ‘industry’. As this tweet put it, Mossoff says that the “@uspto’s #patent review board is denying basic rights to American innovators.”

What basic rights? Patents? They’re not rights. Drop this myth. They typically try to call patents “property” (which they're not) and then allude to “property rights” or whatever. Intellectually-dishonest garbage that Koch-funded ‘academics’ would say…

Let’s see who else it’s moaning about PTAB because that’s just pretty revealing. One site of the patent microcosm complained about PTAB’s inter partes reviews (IPRs) a few days ago. “Like many inter partes reviews,” it said, a “dispute started in district court. Multiple IPRs from the defendants followed: this petition against claim 1 of U.S. Patent No. 8,155,298, from Bright House Networks, WideOpen West Finance, Knology of Florida, and Birch Communications; another by the same parties against claim 20; a third by YMax against claims 1 and 20; and two more against related patents.”

And guess what happened. It’s gone! Good riddance. At low cost. This is what makes PTAB so important.

By contrast, IP Watch‘s Steven Seidenberg wrote about Oil States (a case about IPRs, indirectly affecting the Kochs). “The upcoming decision in Oil States Energy Services v. Greene’s Energy Group could have major ramifications for patents, copyrights, trademarks, and the USPTO,” he said. This is the main reason for lobbying from the likes of IAM and Watchtroll. They hope to change the outcome to stop or slow down PTAB. They want not only to weaken PTAB but to obliterate it. Earlier today Watchtroll wrote: “The Supreme Court had a lot to chew on last year, in part because so many issues were percolating at the Federal Circuit. In addition, the Supreme Court tends to reach consensus (or something closer to consensus) in patent cases, making them great issues for the court to consider when it sat with a vacancy last year. But based on our look at what’s sitting before the Federal Circuit now, there simply aren’t as many “big picture” issues warranting high court attention. And so, despite the high reversal rate, we doubt that the Supreme Court will show too strong an interest in taking patent cases for the following term.”

And then starts the PTAB bashing, which has become a daily routine at Watchtroll. One does not even need to look far back. Here’s Watchtroll’s attack on PTAB from 4 days ago, 3 days ago, and another one earlier today (second in a day and it’s a Sunday!) — already cited by some of the most extreme people (those who support trolls). Obviously, Watchtroll will attack PTAB again almost every day this month; Patently-O too used to do that for a while. Why? Because to these people, who make money from patent disputes, patent quality is the enemy.

One of the latest strategies for discrediting PTAB is latching onto the Native American tribes or even Apple. Some extremists keep linking to Law.com, which published two pieces about it before the weekend [1, 2]. It looks like Apple bashes a PTAB panel when the outcome does not suit Apple, so cherry-pickers now use that as ‘proof’ that PTAB must be corrupt. Law.com said: “Apple claims that its opponent contacted senior administration officials and the judges presiding over the case, swaying the outcome of an inter partes review proceeding.”

Would a site of the patent microcosm add an attack on PTAB? Of course it would. They all do. “IPRs Are the Best—Except When They’re Biased, Prejudiced and Violate Due Process,” says a sensationalist headline. The EFF’s Vera Ranieri responded by saying: “What’s clear from this PTAB story and the one with the Tribe is that the PTAB needs clearer rules and more transparency as to how it operates. Conspiracies will breed where facts are kept hidden.”

She was alluding to another case that is mentioned spuriously and that we already covered last weekend. IAM keeps kicking this dead horse by writing about it:

The company, which bills itself as a “global leader in cost-efficient technology that enables high-volume text, voice and digital multi-media communications”, has accused Apple of infringing its IP in a district court action and has demanded $2.8 billion in damages. It has been on a remarkable run at the PTAB as it has looked to defend its rights, fighting off eight reviews brought not only by Apple, but also the likes of Unified Patents and AT&T. According to Lex Machina, of the eight IPRs that have been filed against Voip-Pal’s patents, six were denied institution while two (including the one in question here) had all of their claims upheld following institution.

That’s a record which suggests that the company has some very good quality grants; but the latest motion from the Cupertino-based tech giant shows the degree to which it, arguably more than any other defendant, is prepared to fight its corner in infringement disputes.

Citing Watchtroll, as usual, other defenders of patent trolls try to scandalise PTAB (using Voip-Pal for instance). Their ultimate goal it to lower patent quality, help trolls, and enrich themselves. Such patent zealots would still (never mind the tribe) come up with conspiracy theories (from which the tribes feed), so there’s a cyclic flow here or a loop. Sites like Watchtroll accuse PTAB of corruption, tribe lawyers then repeat that, and in turn sites like Watchtroll repeat what the lawyers say.

Regarding these lawyers, Michael Loney wrote about it in short form a few days ago. The St. Regis Mohawk Tribe has become a laughing stock for participating in a patent scam — a scam which is still being defended by the patent microcosm. Here’s one new example:

As previously reported, the St. Regis Mohawk Tribe filed a request for oral hearing that included a “request for discovery into the identity and impartiality of the merits panel assigned to this case.” The paper was replete with justifications for its request and specific discovery it was seeking, all premised on its apprehension that the Patent Trial and Appeal Board (PTAB) might deprive the Tribe of due process by, inter alia, empaneling an expanded panel of Board members (including specifically Chief Administrative Patent Judge David Ruschke) that would not be impartial in deciding whether the Tribe’s sovereign immunity precluded the Board from deciding on the validity of the patents (U.S. Patent Nos. 8,629,111; 8,633,162; 8,642,556; 8,648,048; 8,685,930; and 9,248,191) involved in the consolidated IPRs.

They just want to be exempted from the law and let a private company ‘borrow’ this immunity in exchange for money. How is that not a scam?

The scam is not PTAB but those who try hard to destroy or avoid it.

Saurabh Vishnubhakat recently wrote about Wi-Fi One v Broadcom (a case which concerns PTAB). This too mentioned another form of immunity: “The decision in Wi-Fi One v. Broadcom is the first real test, following Cuozzo, of the broad view that the Patent Office has taken of its immunity from judicial review in PTAB institutions. Going forward, it will likely be the dialogue between the Federal Circuit and the Supreme Court that defines the full contours of the agency’s discretion.”

Well, the Supreme Court will rule on IPRs within several months. No doubt the outcome can be swayed by online dialog and sites of private companies like this one will meddle as much as they can. Here they are saying that “Patent Office employees are creatures of incentives.”

Well, calling them creatures and all that shows how parent microcosm views them. Here’s the portion with its entire context:

Patent Office employees are creatures of incentives. It is well-known that patent examiners earn various counts for use in the USPTO’s internal quota system. PTAB judges are also measured by a count-based system, which is based on the number of decisions they author. It is no secret that Examiners and PTAB judges at times get creative with policies and practices to most easily meet their quotas. Here, we look at a recent decision that shows a practice of PTAB judges deciding only one ground of rejection without looking to the remaining pending ground on appeal.

USPTO examiners are incentivised to grant as much as possible, so what’s wrong with PTAB working in an opposite fashion to balance or negate that? For the patent microcosm, for obvious reasons, it’s only granting — not rejections — that brings a lot of money. If the goal of the US patent system is just to blindly grant as many patents as possible, then PTAB is harmful; but if the US patent system seriously strives for quality and justice, then PTAB isn’t just desirable but essential.

It’s not hard to see why PTAB faces resistance. The question is, who from?

01.08.18

Outsourcing and Offshoring Patents for Extortion and Tax Evasion

Posted in Antitrust, Apple, Microsoft, Patents at 12:45 am by Dr. Roy Schestowitz

Offshoring

Summary: Some of the latest examples of patent mischief and antitrust issues; the darker side of patents explored

THE most grotesque elements of both the European and north American patent systems would have to do with bypassing the law. Racketeering and tax evasion are apparently OK as long as patents are used to achieve these.

Apple, for example, is fast becoming like BlackBerry, which is trying to not look like a patent troll and is thus delegating the blackmail to another entity. This new report calls it outsourcing and notes that that “BlackBerry’s exit from the device-manufacturing business was part of a broader turnaround strategy as the company worked to streamline its operations to focus on the more promising software and services market.”

The patent extortion is now done from an external entity. Microsoft does the same thing.

As for Apple? It still does all the litigation directly, albeit it uses patents for ‘legalised’ tax evasion. They just make up the law. Widely used tricks of billionaires like Tim Cook are being used routinely. This is how an Apple advocacy site put it:

Reuters notes that Apple could be caught out by one provision in the bill. The bill introduces a minimum tax of around 13% on income from patents held overseas, and this could put an end to one method Apple has used to reduce its tax bill.

The original says:

The U.S. Republican tax overhaul passed by Congress this week will allow Apple Inc (AAPL.O) to bring back its $252.3 billion foreign cash pile without a major tax hit – a long-standing company goal.

Other provisions of the bill, namely the cut in the corporate tax rate from 35 percent to 21 percent, are also a big boon for Apple.

But not everything went the company’s way. A critical difference between the Senate version of the bill and the final version could actually raise the amount of cash taxes that Apple pays on profits from patents held abroad, tax experts said.

We already wrote a great deal about this (patents ‘boxes’ as a tool of corporate tax evasion in Ireland and elsewhere in Europe). There is even a new article about it in the Irish press.

What about those Apple fines in Europe? Or the notorious tax avoidance that Florian Müller wrote about last year? Will Apple ever pay? Will it just lobby like Microsoft did?

Qualcomm’s fight with Apple was recalled by Müller at the start of the year when he wrote about the status of the case in the United States, Europe and Asia. To quote:

Ever since I can remember, no information and communications technology company has ever faced as many simultaneous and earth-spanning antitrust problems as Qualcomm: unilateral-conduct investigations by competition authoritities in the United States, Europe and Asia; thorough merger reviews of Qualcomm’s proposed acquisition of NXP; and antitrust lawsuits brought by Apple in multiple jurisdictions. Then there’s at least one other company (analysts believe it’s Huawei) that stopped paying license fees. Some early-stage decisions made by federal judges in the Northern and Southern Districts of California didn’t work out well for Qualcomm. It’s losing the most momumental multi-front war any company in this industry has ever been embroiled in.

From the outside it’s always easy to say: they should settle, especially since they can’t realistically win. It’s never a bad idea to promote peace, and here it’s just impossible to imagine that all those regulators and judges and private parties are wrong and Qualcomm (plus Maureen Ohlhausen, the last woman standing in Qualcomm’s corner) are right. But let’s be realistic: there is so much at stake here that Qualcomm will most likely still be the first item on my list for next year’s first blog post, too.

There’s a legitimate antitrust element to it — one that we covered here before.

It would be a shame if patents became famous for trolling, extortion, and anti-competitive practices. That is not what the patent system should be about.

12.23.17

Ericsson and Microsoft-Led Nokia Crush Companies That Make Phones With Linux, BlackBerry Becomes Litigation Firm

Posted in Apple, Asia, Courtroom, GNU/Linux, Google, Microsoft, Patents at 2:20 pm by Dr. Roy Schestowitz

Nokia used to make phones, now it’s just doing Microsoft's 'Jihad' in the dark (back room)

Nokia light

Summary: With an abundance of software patents which target ‘apps’ or designs of phones, companies that no longer make phones (or barely sell any) go preying on those who do, Huawei being one of the latest victims (it will hereon pay Nokia ‘protection’ money)

THE MOBILE industry is no fun. It’s not fun anymore. Not for developers anyway. Too many patents, too many lawsuits, too many threats of lawsuits. Over the years we wrote about ‘censorship’ of many so-called ‘apps’ using mere threats of patent litigation; some software developers just pack up and run away. They stop distributing their software due to software patents and aggressive entities (not always patent trolls). A lot of these stories are untold because telling them out in public can lead to retaliation; it’s no secret that patent extortion is often accompanied by/laced with some kind of ‘gag orders’; the same goes for NDAs as it goes for ‘silence money’. Sometimes one party is forced to congratulate the extortionist with a press release (as part of the settlement). It ain’t pretty. I heard stories. Some people phone me. I can’t quite tell all the stories I’ve heard; not without omitting names (people’s and firms’), which would render articles pretty vague and thus worthless.

“Sometimes one party is forced to congratulate the extortionist with a press release (as part of the settlement).”A few days ago the FFII’s President caught this couple of tweets [1, 2] from Matt Larson‏, who is quite knowledgeable in this area. The article is restricted in terms of access, but the gist goes like this: “Judge Selna’s TCL-Ericsson FRAND patent licensing decision is out. Slashes Ericsson’s offered rates, awards $16M for TCL unlicensed sales from 2007-2015. Notes available on @TheTerminal [...] Decision covers Ericsson’s portfolio of patents deemed essential to 2G, 3G, 4G standards. Wild divergence from last week’s $75 million jury verdict for TCL’s infringement of a single Ericsson patent.”

You read that tight. One single patent, $75,000,000 in a jury verdict. There’s also no way around such patents (in standards). One must pay to ‘play’. Where does that leave small and vulnerable companies?

As we have shown here many times before, Ericsson and its various proxies worldwide (it uses several trolls) are running after a lot of companies, demanding ‘protection’ money from several directions at once. It’s patent stacking and it has even come to London. Now that Microsoft has turned Nokia into a patent troll (which typically preys on Linux and Android), we are seeing similar strategies from Nokia. So one ends up paying lots of money to a Swedish company and a Finnish company which barely make any phones anymore. Ain’t that just lovely?

“Mind the date on the press release. Nokia did it last Christmas as well (against Apple); it does the trolling just before or during Christmas in order to dodge negative publicity.”“Nokia-planP is happening,” the FFII’s President wrote the other day, “they have morphed in a patent troll going after Huawei now…”

“PlanP” is a domain name he once registered (it was part of an Internet-wide joke at the time) and the P stands for “patents”. What he (Benjamin Henrion of Belgium) is alluding to is this press release nobody bothers writing about. Mind the date on the press release. Nokia did it last Christmas as well (against Apple); it does the trolling just before or during Christmas in order to dodge negative publicity. Nokia’s press release (control of narrative, as part of the settlement) says this:

While details of the license agreement remain confidential, Nokia will follow its existing practices for disclosing patent licensing revenue in its quarterly financial reports and expects that revenue for the agreement will begin to be recognized in the fourth quarter of 2017, including an element of non-recurring catch-up revenue, with additional revenues expected during the term of the agreement.

From the above it’s implied that Huawei, one of the world’s largest Android OEMs (and also one of China’s largest companies), will pay Nokia ‘protection’ money. Microsoft long pursued this kind of ‘protection’ money from Huawei, but it never quite got it. The media wrote about several years ago. Huawei was one of the very few companies that stood up to Microsoft, but a Microsoft-infiltrated Nokia has just managed to put a ‘tax’ on Android at Huawei. Bad day for Linux enthusiasts (the few who actually noticed this).

Expect Microsoft and its proxies to never rest until they tax all Android OEMs, extracting billions of dollars from them (per annum) without lifting a finger! It will be done from numerous directions simultaneously, hence patent stacking. It’s a legal term, but it’s a potentially illegal practice.

“Expect Microsoft and its proxies to never rest until they tax all Android OEMs, extracting billions of dollars from them (per annum) without lifting a finger!”According to some other news, including this Interview with George Brostoff (SensibleVision), more legal action may be on the way. “OnePlus Could Be Sued For Face Unlock Patent Infringement,” said this headline this weekend and days prior to it there was a lot more coverage [1, 2, 3]. Since then (Thursday/Friday) more reports like these have emerged (almost a dozen, primarily in Android or Indian sites) and it certainly looks like SensibleVision will be choking/trolling Linux/Android. Where does this end? These are software patents. A “face unlock feature” is so basic a concept (pertaining to computer vision, which is software too) that courts are likely to reject a patent on it. So who does SensibleVision want to go after? Little OnePlus. Not a large company like Huawei…

“BlackBerry’s strategy is to shake down real companies that really sell something. It’s a shakedown (some would say “trolling”) strategy. Just like Microsoft, Nokia, and Ericsson.”Speaking of large companies, BlackBerry was a large player before it turned into somewhat of a patent troll. According to Indian media (still active around Christmas time), BlackBerry made $50,000,000 from threatening to sue companies. “Revenue from intellectual property and licensing surged 67 percent to $50 million,” it says. “A jump in that category had provided an unexpected boost to second-quarter earnings…”

BlackBerry used to have a turnover of tens of billions, so how much of a ‘victory’ is this? Does BlackBerry envision itself as a litigation firm? As Forbes put it 2 days ago (in the headline) “IP Licensing Drive BlackBerry’s Q3″.

So they too are a parasite now. BlackBerry’s strategy is to shake down real companies that really sell something. It’s a shakedown (some would say “trolling”) strategy. Just like Microsoft, Nokia, and Ericsson.

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