Even East Texas, which advertises itself as plaintiff- and troll-friendly, might not tolerate software patents for much longer
Summary: Examining some of the latest software patents that make this week’s headlines and what we can learn from these
SOFTWARE patents are dying in the US, owing largely to § 101 (post-Alice). Patent lawyers, as expected, are in denial about it (misleading customers in order to maintain demand) and there is a new article today/this week about § 101 analysis. Mentioned therein is a “conclusion that the claims at issue fail to meet the standard for patent eligibility under § 101.”
“The significance of this outcome is that once again (as before) we see software patents — once challenged enough, scrutinised properly and reassessed sufficiently — falling short.”The de facto ban on “abstract” software patents (that ought to cover all software patents) does not deter everyone, especially not deep-pocketed companies which simply hoard thousands (if not tens of thousands of patents) and then cross-license or shake down companies in bulk. According to dozens of news reports from yesterday (e.g. [1, 2, 3]), Amazon continues to patent software (this patent for audio surveillance) and today we learn that Disney tries patenting foot surveillance in parks. Talk about lack of ethics… Amazon has pushed software patents as far as Europe in spite of the clear exclusions.
As we mentioned here briefly at the start of this week, VirnetX's software patent attack on Apple is falling short, as does the stock of VirnetX [1, 2, 3, 4, 5, 6]. VirnetX is a patent troll whose existence (or worth) is little more than software patents, so the loss of the case (or at least a $625,000,000 award) was big news yesterday [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15], not just in Apple-centric sites.
The significance of this outcome is that once again (as before) we see software patents — once challenged enough, scrutinised properly and reassessed sufficiently — falling short. Time to leave East Texas for a balanced venue? It’s probably a waste of time (and money) trying to assert these patents in a court of law, especially against large companies that can afford to withstand/endure lots of motions and appeals. That’s why the main victims of software patents (and patent trolls) are small businesses; they would often settle rather than risk the high cost of never-ending legal proceedings. The SCO case has gone on for 13 years because IBM can afford this and SCO, whose only remaining existence is this one case, goes to the grave (well past bankruptcy) in a desperate effort to extract some money (much like VirnetX).█
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Summary: Software patent lawyers and software patent trolls are still active in the United States, even if the climate is unfriendly to them after the Supreme Court’s decision on Alice and § 101
WITH § 101 and Alice (2014), it’s now abundantly apparent that things have changed. It’s rather common for software patents to simply die, either at the courts or at PTAB. As patent trolls rely so heavily on software patents, they too are suffering and now there’s a plan for an “IPO Webinars on Section 101″. To quote a patent maximalism site: “The Intellectual Property Owners Association (IPO) will offer two one-hour webinars entitled “Section 101 – The Way Ahead”. The first webinar, concerning the impact of § 101 on the software industry, is being offered on August 10, 2016 from 2:00 to 3:00 pm (ET). Stephen Durant of Schwegman, Lundberg & Woessner, P.A.; Michelle Macartney of Intellectual Ventures, LLC…”
Well, Steven Lundberg's firm, which we last mentioned in April, is one of the worst offenders and one of the most vocal proponents of software patents. They even have a dedicated blog and lobbying on the matter. The world’s largest patent troll (and Microsoft’s troll) Intellectual Ventures taking part in pro-software patents event is also noteworthy. It really shows what the Intellectual Property Owners Association has been reduced to; it’s like a think tank for lobbyists, parasites and trolls.
“It’s rather common for software patents to simply die, either at the courts or at PTAB.”In writing about Technicolor, the trolls-funded 'news' site IAM did not bother mentioning that MPEG-LA is a parasitic patent troll. The editor, who wrote this article, denies that trolls exist (like people who deny climate change). MPEG-LA and related patent pools (mentioned therein and covered here in the past) pass a massive tax to the public, in the name of software patents even when these patents do not exist (and are not legitimate). Companies that latch onto MPEG-LA to extract revenue from the public are nothing but leeches. They don’t innovate, they just look for a patent troll like MPEG-LA to act as a proxy and bully any company which streams video (or helps stream video) without paying millions of dollars in unjust tax. Even Mozilla became a victim of this. What a waste of money for a FOSS company and a project like Firefox.
Speaking of trolls, IBM increasingly acts like one and it relies on software patents for this. Using the words “PTAB Attack” (another negative-sounding term like “killer” or “death squad”) a patent attorney wrote that “IBM’s Online Reservation Patent Survives PTAB Attack: https://dlbjbjzgnk95t.cloudfront.net/0822000/822630/ipr2016-00604_institution_decision_12.pdf”
“Companies that latch onto MPEG-LA to extract revenue from the public are nothing but leeches.”The cited PDF is 25 pages long and in it it’s “ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes review is not instituted for claims 1–8, 11, 12, 14–21, 24, 25, 27–34, 37, 38, 40–45, 47–49, 51–57, and 60–66 of U.S. Patent No. 5,961,601.” The Petitioners are Richard Zembek and Gilbert Greene. The patent owner (or firm representing him/her/them) is Andrew Heinz and/or Kevin McNish.
What we have here is a reminder that PTAB is not always the ultimate remedy. Having said that, there are also the courts to fall back on, so if IBM resorts to lawsuits rather than just saber-rattling, the patent can still die (at very high cost to the defendant though, possibly lasting several years after a number of appeals).
The latest in a high-profile case against Apple suggests that VirnetX‘s patent lawsuit which it won against Apple isn’t the end of it because “TX Ct [Texas court] Vacated VirnetX $625M Award Against Apple; Ordered Two New Trials: https://dlbjbjzgnk95t.cloudfront.net/0823000/823395/https-ecf-txed-uscourts-gov-doc1-17518671566.pdf”
Texas again. It figures.
“What we have here is a reminder that PTAB is not always the ultimate remedy.”In other news, Patently-O wrote last night about Illumina’s battle against Ariosa Diagnostics. It’s one of those controversial patents on genetics (i.e. on life) and Professor Crouch wrote: “The essence of the conflict is whether Illumina’s U.S. Patent No. 7,955,794 is covered by the “Core IP Rights” licensed as part of a 2012 supply agreement. Illumina argues that ‘794 patent was not licensed and, when Ariosa refused to pay a license fee, sued Ariosa for patent infringement. Ariosa’s counterclaim of breach of contract and other covenants stem directly from the infringement allegations.”
Sadly, as seen above, there is a persistent (if not also growing) element of confrontation around software patents and other dubious patents because the USPTO lost touch with patent scope and granted nearly anything that came in — the same mistake that Battistelli now makes at the EPO. █
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“The most dangerous moment for a bad government is when it begins to reform.”
–Alexis de Tocqueville
Summary: Highlighting some of the differences between the US patent system and other patent systems
THE most notable deficiency at the USPTO right now pertains to overly broad patent scope and poor patent quality (the same direction which the EPO takes under Battistelli) and this leads to a lot of litigation by patent trolls. Startups (sometimes known here as SMEs) suffer the most and we rarely hear their stories because they must settle in secret and pay ‘protection money’ to non-practising entities. This clearly does not promote innovation. A lot of this activity, perhaps more than 90% of it (on a global scale), happens in the United States.
“It says a lot about what the USPTO fosters and why the EPO must not follow the same footsteps.”As of days ago, Ericsson’s case (via a patent troll it increasing uses inside Europe) against Apple found momentum at the Court of Appeals for the Federal Circuit (CAFC), home of software patents, according to this short report and BlackBerry has just beaten Mobile Telecommunications LLC, after this apparent troll (whose whole public existence revolves around this lawsuit) started a high-profile patent case in the US (BlackBerry is Canadian, but it can be dragged down south).
Leading Android OEMs are also embroiled in a patent war in the far east (Asia) and there are lots of articles about it [1, 2, 3, 4] (many hundreds in English alone, so they should not be hard to find even several years down the line).
What’s worth noting here is that in Asia, where a lot of the world’s phones are actually being made, patent trolls are hardly even a topic, whereas in the US patent trolls have become an epidemic. They are sometimes proxies of large companies such as Ericsson. In the case of Nokia, Microsoft has already created or armed trolls using its patents.
It is important to realise the difference between two manufacturing Android giants like Samsung (Kroea’s domain leader) and Huawei (China’s domain leader) having patent disputes and some random LLC du jour trying to tax large companies as well as small ones (these latter cases rarely make any headlines). It says a lot about what the USPTO fosters and why the EPO must not follow the same footsteps. █
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An atmosphere that encourages paranoia and extreme caution does not offer an incentive to move forward
Summary: A quick review or overview of today’s patent news, or supposed news as presented by patent law firms that strive to attract more demand for their services
“While the Supreme Court has not definitively ruled on it,” says this new ‘analysis’ from a patent law firm. “the majority of federal courts have found that a company’s unilateral refusal to license its patents does not violate Section 2 of the Sherman Act.” This so-called ‘analysis’, i.e. shameless self-promotion or marketing, is titled “Unilateral Refusals to License Intellectual Property”. They are actually talking about patents, not “Intellectual Property” [sic] which is a vague term that lumps together trademarks, copyrights, patents and sometimes trade secrets.
Imagine a world where there are millions of “live” (still valid, not expired) patents in many countries which enable cross-border actions through collaborations (Patent Prosecution Highway, Unitary Patent etc.), then picture some small businesses which can barely afford going to court to defend themselves from even a single infringement charge/allegation. What kind of world would that be? Certainly a good world for patent litigators. Patents would, therein, be tools of corporate destruction (small companies are extremely vulnerable) or raiding of large companies by settlement. Patent trolls face no risk (of being sued) as they have virtually no products. Large companies often use trolls as satellites for this reason. Apple, having quite recently lost to patent troll that got a lot of money from Apple (and prior to that from Microsoft), just lost another case, this time to Network-1 Technologies, not VirnetX. As MIP put today, “Apple will pay Network-1 Technologies $25 million to settle subsidiary Mirror World Technologies’ patent litigation in the Eastern District of Texas” (capital of patent trolls). The patent trolls-funded IAM ‘magazine’ bemoans this verdict where a troll/parasite received ‘only’ 25 million dollars. Apparently a settlement for as much as 25 million dollars means “depressed patent licensing market,” at least if one trusts IAM, which is funded by nasty actors like MOSAID (Microsoft troll and satellite).
“There is still a major battle over patent policy and the perception of patents’ value.”On the brighter side of things, the demise of software patents means that a lot of patent trolls are not longer capable of blackmailing companies (it’s riskier against large companies which can afford going to court, whereupon the asserted patent/s would be invalidated). Some don’t even bother trying anymore. “Buyer beware,” says a new article from Forbes today (titled “Yahoo’s Patents Are a Pile of Junk, Report Says”). “Little has gone right for Yahoo, which is one reason the flailing tech giant decided this spring to sell off the bulk of its patent portfolio.” We saw similar reports last week and last month. After Alice, a landmark 2014 decision, Yahoo’s patents (a lot of business methods and software) would no longer have any value.
Also see “Companies Considering Purchase of Yahoo! Excalibur Patent Portfolio Face Major Risk, According to TurboPatent” and “Nearly Half Of Yahoo Excalibur Patent Portfolio Likely Invalid, Unenforceable, Data Suggests”. In Twitter, one person told me that “most software patents are piles of junk. Worked on decommissioning 1 Y! [Yahoo] product based on a patent.”
Speaking of buyouts, IAM, which now bemoans China's patent bias (as if the West does not have the same kind of bias), points to this press release from Thomson Reuters and says it “point[s] to Asia’s rising IP star”, whatever that means (they’re trying to encourage more patent activity in east Asia, as usual).
There is still a major battle over patent policy and the perception of patents’ value. The more patents come into existence, the lesser the value of each pertinent patent. The battle is fought between those who profit from patent maximalism and those who are victims of such maximalism. Guess whose side IAM stands for… follow the money. █
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Summary: Some of the past week’s patent stories grouped together for easier absorption (sans the patent lawyers’ bias)
IAM ‘magazine’, which glorifies patent stockpiling and litigation (follow the money), basically continued to promote stockpiling of patents earlier this week. It’s about USPTO registration, which IAM uses to reinforce the notion of patents as “ownership” and innovation. Nicola from IP Kat, who is often sceptical of patent maximalists (she’s one of their best writers on such topics), linked to this paper and said: “The key finding is that, “55% of triadic patents are commercialized. We also find that 17% of all triadic patents are not commercialized but are at least partially for preemption, though only 3% of all triadic patents are purely preemptive patents.” Preemption is patenting for strategic purposes, rather than commercial. (You could argue the two are one and the same, but the paper focuses on preemptive non-use, as in strategic patenting with no intention to use the patent.) The paper goes into much more detail, but the punchline is that nearly half of triadic patents are not used, but ‘strategic’ patenting may be less prevalent than popular discourse would have you believe.”
“Patenting without boundaries devalues pertinent patents and harms confidence in patents.”What we appreciate about Nicola is that in spite of backlash in the comments (probably from patent lawyers) she continues to insist that when it comes to patents, more is not necessarily merrier. Patenting without boundaries devalues pertinent patents and harms confidence in patents. That’s just overpatenting. This is particularly true when it comes to software patents, which often correspond to very old ideas being implemented on a computer, on a device, over the Internet and so on. According to this new puff piece, for example, “Viridity Energy secures patent for transport-based energy storage software,” which probably corresponds quite loosely to something like the first software patent ever to be granted in the US (granted to Martin Goetz using the guise of “transport”). Software in general isn’t adequately protectable by patents but by copyright and there is no single patent that covers an entire computer program (there is no one-to-one correspondence and a single program can potentially infringe on thousands of software patents these days). We sure hope that the EPO won’t be gullible enough to believe otherwise.
Moving on a little, GoPro, which Microsoft extorted using patents earlier this year, becomes aggressive with patents of its own. As Digital Trends put it: “After Polaroid manufacturer C&A Marketing Inc. sued GoPro for copying the Cube’s design last year, GoPro is turning the tables, saying that it’s the Cube that is using GoPro’s patented technology. In a lawsuit filed Tuesday in the U.S. District Court in the Northern District of California, GoPro alleges that the Polaroid Cube copies two patents owned by the action-cam giant.”
“…when Apple wants to remotely control your phone, microphone, cameras etc. (or allow others to gain such control) it’s OK “because copyrights!””GoPro may be aggressive with patents, but no company these days is nearly as aggressive as Apple, which sees its empire devoured by Google with Android. Apple is now pursuing patents on censorship, as quite a few sites correctly note. Rick Falkvinge (Pirate Party founder) correctly went with the headline “Apple patents technology enabling police to prevent iPhones from filming police abuse”. One article had the headline “Apple gets patent for remotely disabling iPhone cameras, raising censorship fears”, but many of the other articles about it (literally hundreds if not thousands of them) were so terrible that they repeated Apple’s talking points. Poor reporting took Apple’s word (at face value) on how cameras being hijack would be used; when Apple wants to remotely control your phone, microphone, cameras etc. (or allow others to gain such control) it’s OK “because copyrights!” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72]. How misleading. These lies dominated the media and made Apple’s patent look like “protecting artists” rather than censoring photographers (who are themselves artists). See the article “The New iPhone Might Shut Off Next Time You Try to Film the Police in Public” for better perspective, unlike advocacy sites of Apple patents. This one said: “The U.S. Patent and Trademark Office officially published a series of 44 newly granted patents for Apple Inc. today. In this particular report we cover an Apple invention that pointed to the coming indoor GPS trend that is about to come to market first with the Lenovo-Google Tango smartphone this fall. In our report covering the Lenovo phone we pointed to a feature that will be introducing augmented reality. To a certain degree this is covered in today’s granted patent. Apple’s technology discusses working with venues like a museum that could provide visitors with guided tours and beyond on a future iPhone. In 2014 we posted a report titled “Apple and Google Headed for an Indoor Location Services War,” and indeed they are with Lenovo-Google taking the first shot. The second aspect of today’s granted invention caused a massive roar from techies who were upset with the camera being able to block smartphone video recording at concerts.”
Speaking of Apple, IAM insinuates that iPhone sales ban in China is a bad thing (suddenly IAM thinks patent assertion is bad, probably because China isn’t paying IAM) and MIP says “Apple’s latest China setback could encourage patent trolls”. “The Beijing IP Court has ruled that the iPhone 6 and 6 Plus infringe the design patent of a Chinese-made smartphone, in a case that one IP lawyer believes could provide inspiration to patent trolls,” MIP writes. Well, if they are so supportive of patents, why is this bad when China uses patents? A bit of hypocrisy here, no? On the other hand, IAM published “Fujifilm’s Chinese pharma patent licensing deal marks a milestone in its IP-driven transformation” and “Qualcomm’s licensing model will be “destroyed” if it can’t win key China case, says its ex-Asian patent director” (also about china). So a monopoly abuser wishes to conquer China with patents that China doesn’t care for and IAM takes the side of the monopolist. How predictable. Moving further east to Japan, watch how IAM promotes/grooms Intellectual Ventures, the world’s largest patent troll (which came from Microsoft originally). IAM wrote: “Earlier this month, we learned that Intellectual Ventures (IV) is spinning out its Invention Development Fund (IDF) into a separate entity. The news was confirmed by Paul Levins, who has been head of IV’s Australia and New Zealand operations and is the Asia and Europe programme director for IDF, while speaking on a panel at IPBC Global 2016 in Barcelona. As I understand it, this process has been underway for a few months and is still ongoing – but this has not stopped IDF from doing deals.”
“We see more of the same bias coming from patent lawyers’ (supposedly ‘news’) sites, which prefer to treat all patents as necessary and those that sue companies as “doing the right thing” (irrespective of merit or benefit to science, technology, and society).”The word troll isn’t even mentioned in this article (nor is it mentioned in this new article about the patent troll of Ericsson, which now goes to Asia for some shakedown, extortion, blackmail or whatever). WatchTroll only puts the word troll in scare quotes, reflecting the same kind of bias. We see more of the same bias coming from patent lawyers’ (supposedly ‘news’) sites, which prefer to treat all patents as necessary and those that sue companies as “doing the right thing” (irrespective of merit or benefit to science, technology, and society). “Amicus Briefs Due Soon in Supreme Court Copyright and Patent Cases,” one such site said after it suggested how to destroy small companies using patents. “A tactic sometimes used by a well-established competitor against a startup is to accuse the startup of patent infringement,” the article said. “Unless the startup has deep pockets, it cannot really afford to defend a patent lawsuit…”
This is why patent trolls are particularly problematic for small companies. Sometimes patent trolls are just proxies/satellites of large companies. If only more patent lawyers’ sites cared to cover the subject… █
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A weak and/or incompetent EPO would harm everyone in the world
Summary: A short story about how and why we ended up writing so much about the European Patent Office (EPO) and the impact beyond Europe
THE EPO has become a subject of considerable debate and focus here. It started around 2014 after we had primarily focused on the US patent system, the USPTO.
For those who have not been reading the site since its inception, here is a short introduction.
I had been a GNU/Linux advocate well before this site existed and an opponent of software patents (not patents as a whole) for a little longer than that. People who have themselves developed software don’t find it difficult to understand why copyrights, not patents, are suitable protection for one’s work (protection from plagiarism, misuse, misattribution, and so on).
The earliest goal of the site, back almost 10 years ago, was to end the software patents assault by Microsoft against GNU/Linux and Free software in general — an assault which began if not publicly culminated with the Microsoft/Novell patent deal. Novell took several years to decline after this deal and ultimately, unsurprisingly, Microsoft grabbed Novell’s own software patents, in a joint takeover along with Apple, Oracle, etc. These companies do not want Linux and Android to succeed, not without them being heavily taxed by the proprietary software oligopoly (Microsoft, Apple and Oracle still have ongoing patent/copyright fights against Android).
Apple’s attack on Linux (through Android) officially began in 2010, whereupon we wrote a great deal about Apple and shortly afterwards Oracle joined this war. It had already shown some hostility towards Red Hat, just shortly before the Microsoft/Novell deal in 2006.
For those who are not yet seeing a pattern, let it be spelled out clearly; the rise of Free software and GNU/Linux gave power to new actors such as Google, which made proper use of Free software in order to build back- and front-end stacks (databases, operating systems, AI, Web servers and so on). This meant that gadgets-selling giants, database giants, operating systems giants/monopolies etc. that were and still are proprietary (e.g. iOS, Mac OS X, Oracle, Windows) needed to either crash/crush emergent forces or tax them, using either patents or copyrights (this goes back to 2003 with the Microsoft-backed SCO assault on Linux).
Right now, in 2016, the aforementioned issues are unresolved. Microsoft is still attacking Linux (but more cleverly, with shrewdly-worded announcements that brand/frame patent settlements as bundling deals), Apple still has several patent cases against Android OEMs, and Oracle refuses to give up even after 6 years in the courtroom (against Android through Google). The cause of utmost importance here deals not only with software patents anymore but also with some design patents (Apple v Samsung) and copyright on APIs (Oracle v Google).
About 8 years ago we expressed concerns about software patents in Europe due to FRAND lobbying (from companies like Microsoft) and Brimelow’s loophole “as such”. We thereafter didn’t keep a close eye on the EPO for quite some time. Not much seemed to happen, but new kinds of abuses started to emerge and these seemed to be related to the resurrection of the “EU patent” or “community patent”, this time under a new kind of name and marketing (equating maximalism with union, unity, universality etc.) accompanied by/with repression of staff and suppression of critics. Even the staff union of the EPO, which had existed for several decades, came under unprecedented (even outside the EPO) attacks.
The reason we now focus a great deal on the EPO is that we have reasonably good understanding of the matters involved. We also have many articles on the subject, which helps us create a cohesive story with a lot of cross-referencing. Our goal now is to help other people (EPO insiders as well as politicians who are outsiders) gain an equally good understanding of why the EPO’s management must be chopped laterally and replaced en masse. It is the only way to save the EPO right now. Delegates that make up the Administrative Council probably have a good grip on the current situation, but they are afraid (or tied up by Battistelli’s hand on the budget), so they are not likely to do anything. The EPO needs somewhat of a revolution and strikes/demonstrations are steps towards that.
In the coming days we shall have a lot to write about the EPO and we will devote plenty of time and resources to ensure this historic period in the EPO is properly documented. We welcome feedback from readers and we hope that new material will continue to flow in. Now that everyone in the UK (and increasingly beyond) talks about “Brexit” it looks like Battistelli will definitely fail to deliver on his promises. He will be remembered not as a pioneer manager who compromised the rule of law for some ‘necessary’ reform but as a ruthless tyrant that shattered the EPO’s reputation for many years if not decades to come.
The EPO will outlive Battistelli and it is everyone’s job, especially at the EPO, to fight for patent quality (i.e. defy Battistelli’s ‘productivity’ obsession or lunacy). Remember that patent offices live or die (or make or break if not perish) based on the value or perceived value of their granted patents, i.e. examination that increases certainty in a court of law. Being an ENA graduate, Battistelli perhaps hopes that his predecessor will be left to deal with the aftermath of his atrocious policies (brain drain, low patent quality, reputation problems). Then the blame might be misplaced. A retired Battistelli would have little or nothing to worry about, but what about patent examiners who are far from retirement? How about retired examiners whose pension will be at risk? Given some upcoming Battistelli ‘reforms’, many people’s pensions are already at risk. This is just bad for Europe’s competitiveness across many sectors (medicine, chemistry, physics, telecommunication and many more). As patents get granted and assigned not just to European applicants (only the employees of the EPO are European), this may also means innovation will happen in the courts (lawyers’ strategies with patent trolls) rather than in the laboratories. Patent monopolies that are granted for the sake of being granted (artificially elevating some measure of EPO ‘output’) rather than to promote innovation can retard human progress as a whole. █
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Samsung has the power to put an end to a controversial type of patents that are similar to software patents
Slide to unlock: novel or medieval?
Summary: A couple of new developments in Apple’s dispute about the ‘design’ of Samsung’s Android phones, which emulate extremely old concepts in digital form
WE are definitely not friends of Samsung (never have been), but some of its patent cases in recent years (especially against Microsoft and Apple) have had profound implications/impact.
“How on Earth were such patents granted in the first place?”Here is Professor Mark Lemley sharing his “brief for 50 IP professors on design patent damages in the Samsung v. Apple Supreme Court case” (local copy to ensure it endures the test of time). This is one of several such cases that involve Apple and Samsung. Florian Müller wrote that this is about as absurd as Microsoft’s patent bullying “over tiny arrow”. To quote the relevant part: “This is one of the patents Microsoft is presently asserting against Corel. Last summer I reported on Corel drawing first blood by suing Microsoft over a bunch of preview-related patents. A few months later, Microsoft retaliated with the assertion of six utility patents and four design patents. The Electronic Frontier Foundation named one of Microsoft’s design patents-in-suit the “stupid patent of the month” of December 2015 because it merely covered the design of a slider. But that patent isn’t nearly as bad as U.S. Design Patent No. D550,237, which practically just covers a tiny arrow positioned in the lower right corner of a rectangle. If you look at the drawings, particularly this one, note that the dotted lines mark the parts that aren’t claimed. What’s really claimed is just a rectangle with another rectangle inside and that tiny graphical arrow in the bottom right corner.”
“This sounds good on the surface, but unless the SCOTUS Justices rule on this, the perceived legitimacy of design patents may persist.”How on Earth were such patents granted in the first place? It’s not surprising that USPTO patent quality has declined so badly and so quickly and there are new patent quality studies regarding the USPTO. Will any similar studies look closely at EPO patent quality as well?
According to an Apple advocacy site, patents on design might not reach SCOTUS after all. This is bad news to all who hoped that SCOTUS would put en end to design patents once and for all.”Samsung Electronics welcomes support for overturning U.S. court ruling in Apple case,” said this new article, which along with others said “Justice Department Urges High Court Overturn Award to Apple Over Samsung Smartphones”. This sounds good on the surface, but unless the SCOTUS Justices rule on this, the perceived legitimacy of design patents may persist. As Müller put it: “Reading all amicus briefs in Samsung v. Apple (design patent damages). Momentum behind call for reasonableness is very impressive.” It looks very likely that if the SCOTUS rules on this, it will help demolish many design patents by extension, in the same way that Alice at SCOTUS put an end to many software patents in the United States. “A federal appeals court awarded about $500 million in damages to Apple for design patent infringement,” recalled one article, demonstrating just how much money can be at stake due to one single patent. “Design patent owners shouldn’t get 100% of the profits when only 1% of the product infringes, EFF tells court,” according to the EFF’s Twitter account and accompanying blog post that says: “The Electronic Frontier Foundation (EFF) asked the U.S. Supreme Court today to reverse a ruling that required Samsung to pay Apple all the profits it earned from smartphones that infringed three basic design patents owned by the iPhone maker.
“Apple is the aggressor, whereas Samsung — like Google — is hardly ever initiating patent lawsuits.”“The $399-million damage award against Samsung, upheld by the United States Court of Appeals for the Federal Circuit in the Apple v. Samsung patent lawsuit, should be thrown out, EFF told the court in an amicus brief filed today with Public Knowledge and The R Street Institute. Forcing defendants to give up 100% of their profits for infringing designs that may only marginally contribute to a product’s overall look and functionality will encourage frivolous lawsuits and lead to excessive damage awards that will raise prices for consumers and deter innovation.”
Don’t fall for the corporate media’s narrative of Apple as the victim even when software patents are to blame. Apple is the aggressor, whereas Samsung — like Google — is hardly ever initiating patent lawsuits. We hope that Samsung will take this all the way up to the Supreme Court (more expensive to Samsung but collectively beneficial to all) and eventually win. The net effect might be the end of many design patents in the US. Those patents so often threaten GNU/Linux or Android products, as we have repeatedly shown here over the years. Will Samsung do a public service here? █
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Summary: A look at some of Samsung’s ongoing high-profile patent cases which involve Apple
“The Samsung case [one of several ongoing cases] is particularly interesting,” said Standard Law the other day, “because it turns on the “non-discrimination” prong of RAND. Little case law on what ND means.”
RAND (or FRAND) is an anti-Free software (FOSS) loophole. It’s how proprietary software giants like Apple and Microsoft every so often try to exclude FOSS while calling this reasonable, non-discriminatory and fair (i.e. a series of euphemisms, one longer than the other). In practice, RAND is means UnReasonable and Discriminatory, sometimes UnFair too (FRAND). It’s typically about software patents.
“RAND (or FRAND) is an anti-Free software (FOSS) loophole.”“In a statement to Patently-O,” it has just been said, “Samsung argued that “If the current ruling is left to stand, it would value a single design patent over the hundreds of thousands of groundbreaking technology patents, leading to vastly overvalued design patents.” The itself brief cites Professor Rantanen’s 2015 essay for the proposition that the high damage is likely result in an “explosion of design patent assertions and lawsuits.””
In the mean time, another (new) article by Jason Rantanen explores CAFC appeals — a stage that Samsung has already been through. It will soon reach the Supreme Court (the design patent case at least).
Sharing Samsung’s Supreme Court brief, one said a few days ago that we now have access to “Samsung’s Supreme Court brief addressing the question of whether section 289 of the Patent Act requires the disgorgement of the defendant’s total profit from sales of design patent infringing products, or only the profit attributable to the infringing component.”
“For all we know, not a single case at SCOTUS will present the chance/opportunity to challenge software patents, or override Alice as a precedent.”Patently-O still keeps track of new Supreme Court patent cases and there is a new short article by Dennis Crouch which zooms in on one particular case. He wrote: “On remand from the Supreme Court vacatur, the Federal Circuit has reaffirmed its prior NuVasive decision and – in the process limited the reach of the Supreme Court’s 2015 decision of Commil USA, LLC v. Cisco Systems, Inc., 135 S. Ct. 1920 (2015).”
For all we know, not a single case at SCOTUS will present the chance/opportunity to challenge software patents, or override Alice as a precedent. The case of Samsung is about design patents and one new article says that “in the next five years the chances are this isn’t going to go away anytime soon. So what has this continuing battle demonstrated about patent law?”
“It’s going to be interesting to see which companies will oppose Apple’s ludicrous design patents (probably Google and Facebook, judging by what happened before).”The deadline for amici curiae has passed and Samsung can now wait and prepare for this important case that will hopefully determine design patents are out of line. As a bit of background on this: “More than two months ago, the Supreme Court of the United States granted Samsung’s petition for writ of certiorari (request for top-court review) regarding design patent damages, which was supported by Google, Facebook and other tech giants. Tomorrow [last week actually], Samsung has to file its opening brief. At this level of proceeding the parties’ positions, theories and arguments are largely known, but it will be very interesting to see what priorities they set, what case law they can find in support of their positions, and which amici curiae (“friends of the court”) will support them.”
We are still not aware of any information related to this, maybe because the amicis have not yet been published. It’s going to be interesting to see which companies will oppose Apple’s ludicrous design patents (probably Google and Facebook, judging by what happened before).
Speaking of certiorari, Patently-O reports that “Hospira explained that both the district court weighed the secondary indicia of non-obviousness and found them “not sufficiently strong to overcome the showing of obviousness arising from an analysis of the prior art.” To Hospira, the petition was basically a request that the Supreme Court conduct its own factual analysis.”
The very fact that the Supreme Court is not revisiting any software patents cases (so far) may serve to suggest confidence in the Alice case, much to the chagrin of Big Business lobbyists. █
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