Summary: Various strands of news about patents, focused on issues raised in the latter half of last week
WE habitually publish outlines of news about patent injustice. While we’re not inherently against patents, there are some domains that oughtn’t have patents in them because collective goals are being impeded rather than advanced by them.
Patents on Marijuana Plants
We start this roundup with the eye-catching article about patents on marijuana. To quote Vice: “On August 4, 2015, US officials quietly made history by approving the first-ever patent for a plant containing significant amounts of THC, the main psychoactive ingredient in marijuana, according to the patent’s holders, their lawyers, and outside experts in intellectual property law.
“One has to wonder how this relates to already-controversial patents on plants, putting aside the controversy surrounding legalisation of cannabis.”“Patent No. 9095554, issued to a group of breeders in California, “relates to specialty cannabis plants, compositions and methods for making and using said cannabis plants and compositions derived thereof,” according to the 145-page document, which is filled with charts, graphs, and reams of scientific jargon describing a range of hybrid strains with distinctive ratios of cannabinoids.”
One has to wonder how this relates to already-controversial patents on plants, putting aside the controversy surrounding legalisation of cannabis.
An article by Terry Ludlow, CEO at Chipworks, recently referred to patents as something one “develops” (rather than applies for after actually developing something), which probably highlights a common misconception about what patents actually are (many conflate them with physical objects — things that have had patents applied to them).
“Johnson’s assertion that maintaining high patent quality is important should be commended.”
Hewlett Packard (HP), as showed here in past years, promoted software patents even outside the US and MIP has this new interview with HP’s IP litigation counsel. “The California-based counsel shares her views on the state of the IP environment in the US and how professionals can contribute to improvements, particularly in the patent field,” wrote MIP. One part of the interview said this: ‘Johnson adds that “creating and maintaining a balanced patent system that promotes innovation and good, valid patents, while also ensuring that bad, low quality patents are not used to abuse the system and ultimately undermine its effectiveness” is one of the biggest challenges in patent law. She says: “There are three main US venues that address patent disputes – the ITC, PTO, and federal courts. IP litigation counsel in my position have to stay vigilant about understanding trends and the discourse around all three of these venues.”’
We don’t generally regard HP to be so bad on the patent front, either because it doesn’t attack companies using patents all that often or because it doesn’t lobby for software patents as often as companies like GE, Intel, Microsoft, and IBM (comparable in terms of scale). Johnson’s assertion that maintaining high patent quality is important should be commended. Later today we are going to show that Microsoft and IBM push in the opposite direction.
Marathon Patent Group and Satellite Strategies
“It’s important to understand that what we have here is a patent company (or troll) acting as a satellite for another — an increasingly-common loophole to ensure no reactionary lawsuits.”Regarding a case which was mentioned here recently, MIP writes a decent article and so does IP Kat, which said late on Friday: “Dynamic Advances parent company, Marathon Patent Group (a patent licensing company) , stated in its SEC filing that under the terms of the settlement Apple will be granted a licence for the patent and a 3-year covenant not to sue. In exchange, Apple will pay $24.9 million under the agreement, with $5 million of that sum payable upon dismissal of the litigation.”
It’s important to understand that what we have here is a patent company (or troll) acting as a satellite for another — an increasingly-common loophole to ensure no reactionary lawsuits. It’s an anti-deterrence tactic. This discredits the theory of “defensive” patents; how can patents be used defensively against entities which have no products at all? As the headline of this article from a trolls expert put it, “Apple pays $25M to a university—and the patent troll it cut a deal with” (summarised accurately and succinctly).
“So one can see that Marathon Patent Group is nothing but a new (ish) kind of troll.”“Apple has agreed to pay $24.9 million to a “patent troll”,” it says, in order “to end a lawsuit over its Siri voice system, according to documents filed yesterday with the Securities and Exchange Commission. Publicly traded Marathon Patent Group, whose business is focused on patent licensing and lawsuits, will split the settlement cash with Rensselaer Polytechnic Institute (RPI), the New York technical university that provided the patents.”
So one can see that Marathon Patent Group is nothing but a new (ish) kind of troll.
‘Killing’ Patent Trolls
The Week has published a new article titled “How to kill patent trolls once and for all”. Composed by Pascal-Emmanuel Gobry, who describes himself as “a writer and fellow at the Ethics and Public Policy Center,” the article starts with some useful background: “Why are patent trolls so deleterious? Well, these companies exist for no other reason than to gobble up patents and then file frivolous lawsuits over semantic patent violations against any target they can find, with the hope of cashing in with a big settlement. Needless to say, this can wreck the finances of startup companies. (If you want more details, listen to this brilliant This American Life investigation of patent trolls from 2011.)”
“Militarisation of the world’s patent systems isn’t new; a lot of weapons manufacturers want a monopoly on ‘innovative’ new ways to kill people.”A commonly-cited (but controversial) study is then cited: “Patent trolls cost defendant firms $29 billion per year in out-of-pocket costs, according to one study. But the drag on innovation is much bigger than that. Think of all the fledgling companies that miss crucial time-to-market opportunities, and whose products don’t reach their full potential, because they have to fight patent trolls. Some would-be entrepreneurs are surely so frightened of patent trolls that they don’t even bother trying.”
The concluding words are these: “Always, always stand up to the bully. It’s the right thing to do, and it also happens to be the smart thing to do.”
That’s what NewEgg has been doing. It can at least afford to.
Militarisation of the world’s patent systems isn’t new; a lot of weapons manufacturers want a monopoly on ‘innovative’ new ways to kill people. A new article, “The Pentagon Turns to Intellectual Property to Protect U.S. Military Dominance”, wants us to believe that there’s something to be cheered for because ‘we’ (readers), supposedly as US citizens, are ‘protected’ by the patent system, which keeps ‘our’ military strong, as if rival armies (like China’s or Russia’s) will bow to some patent offices abroad and pay patent royalties to corporations that try to nuke their nation (if it wasn’t for mutually-assured destruction and other forms of deterrence).
“The excesses/abundance/saturations reduce productivity, waste resources, generally slow down development in various fields, and ultimately help nobody but patent lawyers and their largest clients (usually global monopolists).”
It’s not so unusual to find patent lawyers in the media. They keep spewing out their pro-war/feud (in the patent sense) propaganda and they try to ‘sell’ patents (applications, lawsuits and other such ‘products’), in the same way arms manufacturers do. An article which misses the point that not all patents are equal and similar, e.g. software patents, was published in the Canadian press a couple of days ago. “Patents are no barrier to innovation, despite the myths,” says the headline. Well, ask software engineers about it and see what they say. The author wrote that “Canadian entrepreneurs should be vigilant to protest against measures that would cripple our patent system to the disadvantage of innovators. This vigilance should extend to monitoring changes that may be proposed to our laws pursuant to international treaty negotiations.”
Well, actually, some patents may be good (we don’t deny this), but their breadth and number made them so shallow and impractical to keep track of. The excesses/abundance/saturations reduce productivity, waste resources, generally slow down development in various fields, and ultimately help nobody but patent lawyers and their largest clients (usually global monopolists). A Web site of lawyers in Indiana has just said “Indiana patent law delaying demand letters” and an Australian law firm celebrates “Growth, Growth & More Growth” in so-called ‘IP’ (growth for patent lawyers, not for the economy). The Australian, a paper owned by News Corp. (‘Conservative’), plays along with this type of agenda, having just published “Innovators miss the bus on filing home patents”. The Financial Express, in the mean time, calls “a market-oriented approach (corporate-leaning) to patent box regime. Because hey, who cares what the general public thinks, right?
“WIPO doesn’t care about development. It doesn’t care about people. It doesn’t even care about its own staff, which it sometimes drives to suicide.”In contrast to this, based on this report from Africa, there is some resistance from a minister. “A South African cabinet minister speaking at an international conference on intellectual property has challenged the view that protecting the rights of creators and inventors leads to innovation,” says this report. “Rob Davies, the country’s trade minister, raised eyebrows recently when he told the World Intellectual Property Organization (WIPO) – the global HQ of patents – that the role of patent protection in promoting innovation has been controversial.”
WIPO doesn’t care about development. It doesn’t care about people. It doesn't even care about its own staff, which it sometimes drives to suicide. It’s Gurry’s way or the highway, just like at the EPO where Battistelli (previously competed with Gurry for the WIPO position) believes he is a king, so no opposition — however minute — can be tolerated. █
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Billionaires and their think tanks too get involved
IBM pushing for software patents not just via lobbyists like former IBMer, David Kappos (on IBM’s payroll for lobbying now), but also IBM’s Manny Schecter (above). Photo credit: Esteban Minero
Summary: The law surrounding patents in the United States continues to be manipulated or at least lobbied on by large corporations such as IBM and Microsoft, as well as by think tanks such as CATO Institute
THE PAST few weeks were spent looking at the front group led by David Kappos, who is paid by software firms such as IBM, Microsoft, and more recently Apple, which evidently has a lot at stake (it has just settled a patent lawsuit and here are ten of the earliest reports we were able to find about this [1, 2, 3, 4, 5, 6, 7, 8, 9, 10]). Kappos is trying to diminish if not demolish the impact of Alice so that software patents continue to do their damage (recall the lawsuits from Microsoft against Linux, Apple against Android, and IBM against various Internet companies as of late).
“Kappos is trying to diminish if not demolish the impact of Alice so that software patents continue to do their damage (recall the lawsuits from Microsoft against Linux, Apple against Android, and IBM against various Internet companies as of late).”IAM ‘magazine’, a proponent of this Kappos lobbying agenda (openly so), has just said: “As this blog and others have reported, there has been a general increase in patent activity in the auto sector in recent years, which has brought with it a rise in new infringement lawsuits and activity at the Patent Trial and Appeal Board (PTAB). However according to data recently released by Unified Patents, the number of lawsuits in the sector dropped last year, despite a rise in the overall number of new patent cases in the US. There were 126 new cases filed in 2015 involving carmakers and their suppliers. That was down from 154 in 2014 and 160 the year before.”
Drop in litigation is a good thing, unless one runs a litigious company that is suing rivals or threatening rivals in order to extract ‘protection money’ (settlement). Recent statistics suggest that a vast proportion of patent lawsuits are now being filed by patent trolls, who typically use software patents. According to the above, which refers to trolls using common euphemisms, patent trolls “still account for the lion’s share of new cases with 88 suits filed last year.”
“Drop in litigation is a good thing, unless one runs a litigious company that is suing rivals or threatening rivals in order to extract ‘protection money’ (settlement).”One patent propagandist offers support to his buddy at IBM, which is increasingly a patent aggressor/bully. He previously interviewed him. “IBM’s Manny Schecter,” he wrote, “giving keynote @Innography #Insights2016 today @ 11am CT on “What should we do about Alice?” A very good question!”
One approach embraced by Manny (so far) is rather simple; pay David Kappos, a former IBM employee, to lobby the system. It’s sort of weird that the question is, “What should we do about Alice?”
“One approach embraced by Manny (so far) is rather simple; pay David Kappos, a former IBM employee, to lobby the system.”That’s like asking, “what should we do about the Supreme Court?” IBM seems arrogant enough to attack or discredit the highest court via Kappos (IBM).
The same kind of quote comes from this tweet, which says “IBM Chief Patent Counsel @MannySchecter @Innography Insights – What Should We Do About Alice?” (to his pleasure, based on his response).
“Don’t let IBM, Microsoft, Apple etc. effectively buy the law by ‘buying’ former officials like Kappos.”The one good thing about David Kappos, Manny Schecter and various other proponents of software patents (or boosters of IBM’s patent aggression) is that they help demonstrate/highlight how corrupt the patent system is. One conspiring to shape one’s system by lobbying is not illegal, but to put one’s staff in key positions and to pay to change law may be. Don’t let IBM, Microsoft, Apple etc. effectively buy the law by ‘buying’ former officials like Kappos. It’s a mockery of a system that’s supposed to be shaped by public interests. Ask Manny Schecter how much money, other than lots of salaries, IBM has just paid Kappos to legalise/promote software patents in the US. Generally speaking, try to find out who’s paying to change the law and how much. Yesterday we became aware of a ‘Conservative’ (corporatist) think tank of the Koch Brothers (CATO) publishing a paper on patents (spring edition), downplaying the severity of the patent system’s problems [1, 2, 3, 4, 5, 6, 7, 8, 9] to essentially defend patent trolls, which mostly come from (or to) Texas. This paper, based on the feedback, is widely liked by patent lawyers from Texas. █
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Article as ODF
Publicadoen America, Apple, Google, IBM, Law, Microsoft, Patentes at 8:40 am por el Dr. Roy Schestowitz
David Kappos demuestra que las leyes están a la venta en los EE.UU. Incluso las leyes de patentes
Fuente: : David Kappos 2013 interview
Kappos a la cabeza de un grupo financiado por grandes corpóraciones pero conveniéntemente no fue llamada Partnership of Megacorporations
Sumario: Las patentes de software no van a desaparecer todavía simplemente porque compañías como las integrantes de la Sagrada Familia: Microsoft, Apple and IBM (de donde Kappos proviene) usan su dinero para cabildeo, esenciálmente comprando la legislación
EL otro día escribimos acerca depatentes sobre conducir, siendo el contexto (enparte)la iniciativa de Google, que hizo noticias la semana pasada, e.g. [1, 2, 3, 4]. Google está tratando de patentar el conducir [1, 2], lo que trae un montón de preguntas acerca de la esfera de patentes y arte previo, los seres humanos ya manejan carros y lo han hecho por muchos años). Sin dudar estas son patentes de software. Ellas afectan el área de mi investigación, la que es computer vision/machine vision (puramente software/mathematics), no señal de procesamiénto (hardware connotación en ello).
“Si a Kappos le queda algo de dignidad, va a tener que esconderse debajo de una roca y no reforzar la percepción de que el sistema de patentes por el que trabajaba está profundamente corrupto.”
De acuerdo a otras noticias (“Microsoft patents end-to-end encryption”), lala NSA es un pionero en vigilancia másivaquiere un monopolio en encryption [1, 2, 3, 4], en relación a un sistema operativo que es la antithesis de encryption (vigilancia másiva en tiempo real).
Mientras tanto, también nos enteramos que, un agresor de patentesconectado a Microsoft, continúaenjuiciando a Symantec. Como un defensor patentes de software lo puso: “Finjan Holdings, Inc. (NASDAQ: FNJN), padre de la filial de Finjan, Inc., anunció hace unas semanas que la prueba de Patentes y Junta de Apelación (PTAB) de los Estados Unidos de patentes y Marcas (USPTO) emitió la resolución final de los intentos de los de Symantec Corporation (NASDAQ: SYMC) para invalidar las patentes de 8 Finjan diferentes a través de la revisión de interpartes (IPR).
Por lo tanto, en este caso particular, la PTAB no eliminó las patentes de software, para variar. Motivo de celebración entre los abogados de patentes, pero ¿qué quiere decir de todos los demás? La agresión de patentes de Apple con las patentes de software sigue siendo, de acuerdo a esta noticia, una “cosa” ya que “esta última patente es más orientada a programas.” Muchas de las patentes de Apple ha estado usando para atacar a Linux (o Android) han sido las patentes de software o patentes de diseño, que son inherentemente similar a (o) un tipo de patentes de software.
Ahora que las patentes de software están generalmente bajo ataque y se enfrentan a una amenaza existencial en los EE.UU. (SCOTUS ya ha matado a muchos de ellas con Alice y pronto se podría hacer lo mismo con las patentes de diseño debido a la agresión de Apple) el ex Director de la USPTO, David Kappos, asoma su fea pelada cabeza de nuevo. Ahora trabaja como un grupo de presión para la Sagrada Familia: IBM, Microsoft, Apple, etc., y deshonra a la USPTO ya que actualmente recibe el dinero para cambiar las leyes a favor de susamos/clientes (que es una forma de “puertas giratorias” para la corrupción, girando/moviéndose de acuerdo a su influencias/conexiones con dinero). Como sitio este sitio de abogados acaba de ponerlo“El ex director de la Oficina de Patentes y Marcas de EE.UU., pidió el lunes por la abolición de la Sección 101 de la Ley de Patentes, que establece los límites de la materia patentable-elegibles, diciendo que decisiones como Alice en el tema son un” verdadero desastre “y amenazan la protección de patentes para las industrias clave de Estados Unidos. “lo que quiere decir con” verdadero desastre “es que crea incertidumbre para sus clientes/amos, como IBM, Microsoft y Apple (los que le sueltán la marmaja de dinero). Esto es una continuacion de algo que notamos aquí con anterioridad. Si a Kappos le queda algo de dignidad, va a tener que esconderse debajo de una roca y no reforzar la percepción de que el sistema de patentes por el que trabajaba está profundamente corrupto.
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Microsoft is an EPO V.I.P. (a marriage made in Hell)
Summary: Yet more examples of preferential treatment for Microsoft at the EPO, which merely helps a foreign company, Microsoft, make sales, e.g. of Windows (even spyware!), and launch lawsuits against GNU/Linux in Europe, having enjoyed a fast lane and outrageous tolerance of software patents (Microsoft even bragged about this)
LAST month we wrote about the worrisome technical relationship between the EPO and Microsoft [1, 2], setting aside preferential treatment for Microsoft as a patent applicant (which does a lot of patent aggression against European companies that ‘dare’ to distribute Linux). The EPO has become just as abusive as Microsoft if not a lot worse and moreover, just like Microsoft, it somehow believes that it is above the law and that it can get away with virtually anything, even mass surveillance without consent.
At 34 minutes past midnight (less than two hours ago) the EPO announced this new release. Well, looking at the download page (warning:
epo.org link), we find this:
These self-explanatory screenshots suggest either that the EPO dumped support for any platform other than Windows or it deliberately leaves these ‘bad’ platforms behind, despite Java being cross-platform. Microsoft must be very, very pleased and happy with its lapdogs at the EPO. To quote the page: “BiSSAP version 1.3.6, currently available only for Windows users. Mac OS and Linux versions will not be updated to be compatible with Java 8.” Whose office is this? █
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David Kappos demonstrates that laws are up for sale in the US, even patent laws
Source: David Kappos 2013 interview
Kappos-led group, funded by large corporations but conveniently not named Partnership of Megacorporations
Summary: Software patents are not going away just yet because companies such as Microsoft, Apple and IBM (which Kappos came from) use their money for lobbying, essentially buying legislation
THE other day we wrote about patents on driving, the context being (in part) Google’s initiative, which made the news this past week, e.g. [1, 2, 3, 4]. Google is trying to patent driving [1, 2], which brings up all sorts of legitimate questions about patent scope and prior art (humans already drive cars and have driven cars for many years). These are undoubtedly software patents. They affect my area of research, which is computer vision/machine vision (purely software/mathematics), not signal processing (hardware slant to it).
“If Kappos has any dignity left, he will go hide under a rock and not reinforce the perception that the patent system he worked for is deeply corrupt.”According to other news (“Microsoft patents end-to-end encryption”), the NSA surveillance pioneer wants a monopoly on encryption [1, 2, 3, 4], in relation to an operating system that’s the antithesis of encryption (mass surveillance in real time).
Meanwhile we also learn that Finjan, a Microsoft-connected patent aggressor, carries on suing Symantec. As a software patents proponent put it: “Finjan Holdings, Inc. (NASDAQ: FNJN), the parent of wholly-owned subsidiary Finjan, Inc., announced several weeks ago that the Patent Trial and Appeal Board (PTAB) of the United States Patent & Trademark Office (USPTO) issued the final rulings on attempts by Symantec Corporation’s (NASDAQ: SYMC) to invalidate 8 different Finjan’s patents through inter partes review (“IPR”).”
So, in this particular case, PTAB did not eliminate software patents, for a change. Cause for celebration among patent lawyers, but what does it mean to everybody else? Apple patent aggression with software patents is still, according to this news, a ‘thing’ as “this latest patent is more software orientated.” A lot of the patents Apple has been using to attack Linux (or Android) have been software patents or design patents, which are inherently similar to (or a type of) software patents.
Now that software patents are generally under attack and face an existential threat in the US (SCOTUS already killed many of them with Alice and it might soon do the same to design patents because of Apple’s aggression) the former USPTO Director, David Kappos, rears his ugly head again. He now works as a lobbyist for IBM, Microsoft, Apple etc. and disgraces the USPTO as he currently receives money to change laws in favour of these clients (that’s a form of “revolving doors” corruption, turning/converting his influence/connections into money). As this lawyers’ site has just put it: “The former director of the U.S. Patent and Trademark Office on Monday called for the abolition of Section 101 of the Patent Act, which sets limits on patent-eligible subject matter, saying decisions like Alice on the issue are a “real mess” and threaten patent protection for key U.S. industries.” What he means by “real mess” is that it creates uncertainty for clients of his, such as IBM, Microsoft, and Apple. This is a continuation of something that we noted here before. If Kappos has any dignity left, he will go hide under a rock and not reinforce the perception that the patent system he worked for is deeply corrupt. █
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Still sticking its dirty fingers in many patent pies
Summary: An all-encompassing (based on our admittedly limited breadth or scope of research) roundup of patent news pertaining to software in the US
THIS article is a summary of recent USPTO news. It’s as comprehensive as possible and it focuses, as usual, on software patents. Those are just most relevant to us.
“Anyone can probably see that USPTO greed (for both power and money) is going way too far.”
Quality Control Out the Window
Patently-O, a decent source of information on the subject of patents (albeit a little subjective at times, which is understandable given the audience it reaches), looked at recent changes related to infringement and invalidity of patents. The latter article said that “the district court rejected the plea for vacatur — finding that the PTO decision does not “displace a district court judgment” and that it would be “against the public interest” to allow a patentee to overcome an invalidity judgment simply by “amending its invalid claims.” [...] What is unclear here is the level of claim & issue preclusion that will apply going forward when Cardpool asserts the patent against some third party.”
“What we deal with here is a patent troll that claims it ‘owns’ scanning activity.”Watch what the USPTO is up to. Basically, as usual, having seen the courts invalidating many of its bogus patents (minimal quality control is to blame here), it now looks to bolster/improve its business by making a mockery of the course of justice. What is this, a third world country? Anyone can probably see that USPTO greed (for both power and money) is going way too far. The USPTO is very plaintiff-friendly because plaintiffs are its ‘clients’ (applicants). The USPTO must be kept out of the legal process altogether. The same goes for the EPO (increasingly abusive in that regard under Battistelli’s regime). Some people are now bombarding the patent system with more automated tools/robots (like DMCA requests that are bogus and served by algorithms, or trading activity in stock markets, also using algorithms). See this new press release about a “Proprietary Patent Application Software”. These help exhaust, fool, mislead examiners. They even say “proprietary” as if it’s some kind of marketing term. “Every bloody unit will be using proprietary software components jealously guarded by patents,” said this article from 2 days ago.
“Patently-O noted that in some particular cases even antitrust laws creep in.”In other new blog posts from Patently-O the MPHJ patent troll is revisited (it can come to Europe with UPC hooks perhaps, suing everyone who uses a scanner if all goes as Battistelli foresees). “HP challenged claim 13 on both obviousness and anticipation grounds,” noted Patently-O, after MPHJ had already sued so many people who habitually use a scanner at a business (and often retrieved ‘protection money’ without as much as a legal challenge). What we deal with here is a patent troll that claims it ‘owns’ scanning activity. It’s really about as bad as it sounds. No exaggeration is needed, hence it resulted in plenty of press coverage over the years.
Institutional Corruption in the US Patent System
Another new Patently-O article deals with a patent “case involving both plaintiffs and defendants presenting false expert testimony.”
“When a nation’s patent system mostly serves to protect one’s giant (and often taxpayers-funded) monopoly the perception of corruption will inevitably increase.”Yes, nice to have ‘justice’… whoever has the deeper pockets (or less to lose) tends to win. Who benefits from all this chaos? Patently-O noted that in some particular cases even antitrust laws creep in. To quote this new post about GlaxoSmithKline (GSK): “The question in the case, now pending before the U.S. Supreme Court is whether that license structure can raise a plausible antitrust claim under F.T.C. v. Actavis, Inc., 133 S. Ct. 2223 (2013).”
When a nation’s patent system mostly serves to protect one’s giant (and often taxpayers-funded) monopoly the perception of corruption will inevitably increase. Who’s being served here? The public that will consequently be overcharged and have few (or none at all) alternatives? Going back to the false testimony, Patently-O wrote: “On cross-examination, Rembrand’s technical expert witness Dr. Thomas Beebe “drastically” changed his testimony regarding his methodology for testing whether the accused contact lenses were “soft.” After being called-out by the defense’s expert Dr. Christopher Bielawski, a jury found no-infringement. Post-trial, the district court doubled-down by also granting J&Js motion for JMOL of non-infringement. Bielawski’s testimony may have been particularly damaging – with his statement: “You should not trust Dr. Beebe, and you should throw out his testimony, not in part, but in whole. You should not trust Dr. Beebe.””
“A patent system of secrecy defeats the very purpose (original goal) of the patent system.”Judging any case at all based on written/oral testimony is dangerous and misguided. It’s like using the words of cops or some errand bystanders as evidence in criminal trials. Any such ‘evidence’ is the weakest form of evidence because there is no way to ascertain/verify claims. Moreover, people are often corruptible and when there’s much at stake in a trial (not just prison but a lot of money) there’s plenty of room for abuse, such as bribery. Remember those infamous cases of Apple with jury foreman Hogan? Probably trial misconduct. Don’t forget Court of Appeals for the Federal Circuit (CAFC) corruption either.
Pressing on, the EFF celebrates progress in a patent case it intervened in one year ago. It says it “has put significant time and effort into getting this one document in one case unsealed. Unfortunately, it is just one of countless documents that are routinely sealed without good reason in patent cases around the country. Just last week we asked the court in a different patent case to unseal documents that almost surely should not have been completely hidden from public view.”
“It is worth adding that while the number of lawsuits did provably decline it does not tell the full story for more than a single reason and we should generally take with great degree of caution any conclusions that accompany this, e.g. that things are improving on their own, hence no intervention is needed at all.”
Overlooking Patent Trolls in Post-Alice Era
A patent system of secrecy defeats the very purpose (original goal) of the patent system. This kind of secrecy gave rise to shady, secretive operations such as Intellectual Ventures, which boasts thousands of shell companies. This whole kind of system (unaccountable and unregulated) is ripe for abuse by trolls.
“US patent case filing in district courts dropped in the first quarter,” MIP wrote, “down 39% on the fourth quarter and 34% on the first quarter last year, according to Unified Patents. An analysis of Eastern District of Texas filing reveals a disproportionately large drop in the district” (that’s the summary of a paywalled article from MIP).
This echoes several other Web sites which reference the same data and conclude that it’s all about trolls and the Eastern District of Texas. This is a somewhat simplistic view because in reality, as we pointed out the day before yesterday, there are also settlements outside the courts and it might be worth looking at what proportion among these patent lawsuits involved some kind of software patents, hence identifying a correlation between scale of litigation and patent scope rather than lawsuit venue, a plaintiff’s business model and so on. In reality, some of these surveys are politically or commercially motivated, or are set up by academics (or lobbyists) to suit a particular narrative and then push for some particular kind of reform (e.g. a ‘reform’ for more certainty around software patents in the US — something which Kappos lobbies for with money from patent aggressors such as IBM, Microsoft, and now Apple as well).
It is worth adding that while the number of lawsuits did provably decline it does not tell the full story for more than a single reason and we should generally take with great degree of caution any conclusions that accompany this, e.g. that things are improving on their own, hence no intervention is needed at all.
As we found out only earlier this year, one verdict in favour of a patent troll such as VirnetX can cost a great deal of money. VirnetX, according to CCIA’s Matt Levy, now denies that it’s a patent troll, which is of course somewhat laughable a thing to do. “A patent troll is,” Levy explains, “essentially, a company that makes its money by suing companies that it claims are using patents that it has acquired. (For comparison, the FTC said that “The business model of [patent assertion entities] focuses on purchasing and asserting patents against manufacturers already using the technology, rather than developing and transferring technology.” Brian Kahin describes patent trolls as companies whose business is being infringed and whose product is litigation.)”
If one asks IAM ‘magazine’, no such thing even exists and it hardly surprises us that several trolls are paying IAM.
Speaking of payments, Oracle had paid Florian Müller, so it’s not too shocking that he took Oracle’s side in his latest article about Oracle’s war on Android. Müller spent a lot of his life campaigning against software patents and we hope this will precede the desire to make cash with so-called ‘consulting’ contracts.
“On March 22, 2016,” said this new article, the U.S. District Court for the District of Delaware issued a Memorandum Opinion in a case captioned Treehouse Avatar LLC v. Valve Corp., in which software patent claims survived a patent eligibility challenge.”
Alice does not always kill software patents, but it does most of the time. Another new article speaks of the Mayo/Alice Rule (both SCOTUS decisions). Now that there’s no Scalia at SCOTUS some people wonder what will happen regarding patent cases. Will the “T” word (trolls) come up again in transcripts or even formal rulings/determinations? Those who argue against reform regarding trolls are quoted in this new article which says: “Jessica Sebeok, associate vice president for policy at the Association of American Universities, believes universities will suffer unintended consequences if President Barack Obama succeeds in making it tougher for patent holders to defend their intellectual property.”
“And some people keep telling the world that Microsoft has changed or that there’s a ‘new’, gentler Microsoft…”Well, universities that essentially behave like patent trolls or feed trolls with their patents (we gave many examples here before) might suffer. And if so, that’s a good thing. The article later says: “Business coalition United for Patent Reform – whose membership includes influential allies of the Obama Administration like Google, Amazon and General Motors – and other supporters of HR 9 seek to stop patent trolling by making it riskier to file patent infringement suits and imposing additional costs of plaintiffs, but AAU argues this would put undue pressure on legitimate patent holders.”
Microsoft Licensing Still an Active Patent Troll
In the above, neither side speaks about patent scope. To them it’s just a so-called ‘Turf War’ between producing and non-producing (e.g. universities) entities. A company like Microsoft is both because while one company produces things another one, called “Microsoft Licensing”, is effectively a patent troll and based on this new page, Microsoft not only funds front groups for software patents and conferences that promote software patents, it now also puts its finger in the “2016 Hispanic National Bar Association/Microsoft IP Law Institute” pie, where Microsoft is the sole program supporter.
And some people keep telling the world that Microsoft has changed or that there’s a ‘new’, gentler Microsoft… █
‘“Other than Bill Gates, I don’t know of any high tech CEO that sits down to review the company’s IP portfolio” —Marshall Phelps
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Defensive, offensive, or just outright dumb and unnecessary? Hypocritical for sure.
Summary: Dumb patents on very dumb/trivial ideas (like gate-locking, or slide to unlock) still a subject which the higher US courts deem worthy of Supreme intervention (while Samsung itself joins the problem with new patent filings)
KOREAN giant Samsung, the market leader in the Android space, is an attractive target for patent lawsuits, even though conventionally Korean companies aren’t combative patent aggressors themselves (they don’t deserve the pricey defendant’s treatment). There’s no escaping the aggressors for Samsung, which even got attacked using EPO patents on software and designs (Samsung won as the EPO patents turned out to be bogus, i.e. erroneously granted).
“There’s no escaping the aggressors for Samsung, which even got attacked using EPO patents on software and designs (Samsung won as the EPO patents turned out to be bogus, i.e. erroneously granted).”Samsung is pursuing design patents of its own now, based on the latest news, e.g. [1, 2, 3] (we found more than a dozen articles about this one) and Apple’s attack on Samsung using design patents is still a subject of discussion, even 2.5 weeks after it was news. This one new blog post says: “Oral argument has not yet been scheduled, but I imagine it will be held sometime in October or November after the Court returns from its summer recess. For now, at least, it seems likely that the Court will still consist of only eight, not the full complement of nine, justices.”
By extension, a lot of design patents will be considered/assessed by SCOTUS, but why were they being granted in the first place? Designs are often covered by laws other than patent law. In the context of patents it’s common for callback functions, i.e. software (behaviour), to be incorporated into the static (visual i.e. plottable) design.
“In the context of patents it’s common for callback functions, i.e. software (behaviour), to be incorporated into the static (visual i.e. plottable) design.”As we pointed out here a long time ago, design patents are in many cases just a subclass of software patents, hence they both need to go away. MIP does not quite agree and in a very recent post about “design rights” (not quite the same as design patents) it said: “After attending the recent INTA/AIPPI conference on “Designs: Into the Future”, James Nurton summarises what there is to love about designs – and also a few reasons not to love them. On the following pages, we also look in depth at the recent Trunki decision in the UK and the pending Apple v Samsung case in the United States”
The Trunki case has been mentioned many times in our daily links. It’s truly dumb and some might call it outrageous. But it’s not about patents. There is hardly a connection/parable here. Either way, to conflate or interject it into the Apple v Samsung would only mislead. █
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Summary: A roundup of recent news about patents and stories about patent trolls that use software patents against large companies
TECHRIGHTS is not against patents; it is against particular patents, or put another way, there are types of patents that are exceptionally problematic (because of other protections) and scientific fields (or domains) that should not have patents on them because these are inadequate for technical and economic reasons (technical because they retard development or innovation and economic because there’s insufficient evidence that they bring about overall prosperity or increase/improve competitiveness).
“Samsung fights on because Apple too infringes/steps on a lot of Samsung patents (many of them on software).”Dr. Glyn Moody bemoans patents on genes today (he wrote a whole book on the subject), IAM writes about patents on drones today, and an interesting new article by Joe Mullin speaks about a patent troll, SimpleAir, which attacked Google and wanted $85 million for a stupid software patent. He notes that “a SimpleAir expert said that Microsoft had likely paid $5 million to license the ’914 patent.” (to be fair, it’s not just a Microsoft thing because, to quote Mullin, “SimpleAir used its “push notification” patents to file waves of lawsuits in 2008 and 2013 against companies like CBS, eBay, Amazon, Apple, Yahoo, Microsoft, and MySpace.”)
“It really ought to be widely accepted (it’s increasingly realised in industry) that a lot of the problems stem from software patenting, not just trolls.”Now consider VirnetX‘s case against Apple, which sees Samsung on the same side as Apple, in spite of the Supreme Court level Apple lawsuit against Samsung and other such cases (the EPO‘s clueless President doesn't seem to know what Apple does in European courts). What we deal with here is a software patent used by a troll to amass money at the expense of companies which actually create something. A new article titled “How the Samsung vs Apple Supreme Court battle affects Android” says that “Apple successfully sued Samsung for iPhone patent infringement in 2012, but now the real battle has begun. Despite Apple’s pleadings, the Supreme Court – the highest court in the United States – is reviewing the case. As this is the first patent case taken up by the court in more than 120 years, the outcome would have a massive effect on smartphone design in the future – the Galaxy S8 included.”
When it comes to Apple and Samsung, both companies have a lot of patents. If Apple was purely a patent troll (or relied on trolls as satellites), then for Samsung to retaliate would be virtually impossible and settlement money would be coughed out faster. Samsung fights on because Apple too infringes/steps on a lot of Samsung patents (many of them on software).
It really ought to be widely accepted (it’s increasingly realised in industry) that a lot of the problems stem from software patenting, not just trolls. █
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