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09.04.18

Marking One’s ‘Territory’ Using Software Patents

Posted in GNU/Linux, Google, Microsoft, Patents at 11:15 am by Dr. Roy Schestowitz

Puzzle missing

Summary: A maze or a complex puzzle of patents helps large companies guard their monopolies from competitors; it doesn’t seem to matter if all or at least the vast majority of these patents are bogus (it’s expensive to prove this and have these patents invalidated)

“Banks Hate Cryptocurrency, But Are Filing Patents Anyway,” Knobbe Martens (patent lawyers) wrote in a new headline. We recently wrote about how the USPTO had actively promoted such nonsensical, abstract patents. Such patents oughtn’t even exist!

A common hypothesis is that they try to destroy cryptocurrency firms (or the concept/movement as a whole) by threatening them with software patent lawsuits. We wrote about that several times in the past. It’s still more of a theory, but we’re already seeing notorious patent trolls (notably Erich Spangenberg) amassing these patents from filers. They basically use patents to ‘barbwire’ their ‘turf’ and scare anyone who ‘dares’ to compete/participate/grow.

“They basically use patents to ‘barbwire’ their ‘turf’ and scare anyone who ‘dares’ to compete/participate/grow.”Thugs and Mafiosos from Microsoft — i.e. those who constantly use patents for blackmail purposes — carry on pursuing a monopoly by targeting an Android-dominated sector with patent lawsuits (or threats thereof). Patently Apple again seems happy to celebrate these patents (it has been doing that a lot lately), perhaps knowing that Apple too sues OEMs in this Android- or Linux-led sector (using highly dubious patents on things like shapes).

Does Android and by extension Google deserve sympathy? Not really. Google has already gone rogue when it comes to software patents; Yesterday MyBroadband (South Africa) ended up reposting the EFF’s post from last week and IPPro Patents then wrote an article about it as well:

EFF to Google: stop trying to patent ANS

The Electronic Frontier Foundation (EFF) has called on Google to abandon its attempts to patent a data compression algorithm for video compression.

A recent patent filed by for a data compression algorithm called asymmetric numeral systems (ANS) for video compression was rejected by the US Patent and Trademark Office.

The examiner rejected all of the claims for lack of clarity and for claiming functions that are not described with sufficient detail.

The examiner also rejected the patent due to a third-party submission by Jarek Duda, who had been developing ANS for seven years and believed that Google’s patent application merely applied ANS to a standard video compression pipeline.

Why does Google even feel like it needs such a ridiculous patent? Prior art aside, it’s void as per Section 101/Alice. Does Google deliberately try to make itself look evil as well as dishonest? Does it want to challenge Microsoft to this title?

06.10.18

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

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

A ‘Battistelli era’ patent

EP2954737

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

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

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

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

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

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

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

Flawed Logic

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

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

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

Flawed Results

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

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

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

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

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

He later added:

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

On why it’s a software patent:

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

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

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

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

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

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

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

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

06.05.18

Microsoft’s Patent Trolls Continue to Attack Microsoft’s Rivals, Including These Companies’ Use of Free/Open Source Software

Posted in Deception, Free/Libre Software, GNU/Linux, Microsoft, Patents at 4:28 am by Dr. Roy Schestowitz

While Microsoft sells ‘protection’ (euphemistically named “Azure IP Advantage”) from itself and its patent trolls [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18]

Microsoft and trolls

Summary: While the media keeps obsessing over delusions like a ‘new’ Microsoft or “Microsoft loves Linux” the company carries on propping up patent trolls (which it then provides ‘protection’ from, but only if one chooses Azure) and threatening GNU/Linux OEMs, opting for the use the patents for bundling their ‘apps’ (an exchange along the lines of, “put our apps in Android or we’ll sue you”)

DO NOT for a single moment be misled by Microsoft’s latest charm offensive, which seems to have been timed so as to distract from Apple’s big announcements in an annual event. It would be spurious to tell our readers that Microsoft is not a friend of Free/Open Source software (FOSS). We spent about a decade writing about that; it’s a subject which we covered in literally thousands of posts. It’s worth noting that the new chief of GitHub will be the same person who infiltrated GNU/Linux through Novell with Mono, so these are entryism experts (he had moved between Microsoft and FOSS — jobs-wise — several times, along the lines of’a revolving doors’ model). Microsoft used Xamarin (which he was the chief of) to literally obliterate ‘dangerous’ (to Microsoft) FOSS projects like RoboVM before Microsoft ‘compensated’ them for the trouble (in the form of a takeover, i.e. money and cushy jobs/salaries). But this post isn’t about GitHub. Instead, let’s focus on patent news that’s connected to Microsoft. The TomTom lawsuit backfired in the media (even Jim Zemlin berated them for it) and ever since then Microsoft chose indirection. It’s hiding behind proxies such as SCO (but for patents, not copyrights).

“A lot of the money has been put into this patent troll by Microsoft and Bill Gates (at a personal capacity, too). They were willing to lose hundreds of millions of dollars just to prop up this troll.”A few days ago professor James Bessen (a patent trolls expert), via Brian J. Love (another scholar who is sceptical of the current patent law), highlighted this new article from the exceptionally Bill Gates-friendly Forbes. It’s about Intellectual Ventures (IV), Microsoft’s biggest patent troll which we’ve been tracking and reporting on for over a decade. “Self-proclaimed a new way of invention, patent troll IV has been a loser for its investors (& targets too),” Bessen remarked. A lot of the money has been put into this patent troll by Microsoft and Bill Gates (at a personal capacity, too). They were willing to lose hundreds of millions of dollars just to prop up this troll. It’s no ordinary troll but a massive network thereof. “After 10 Years,” notes Forbes, “Nathan Myhrvold’s $3 Billion Of Private Equity Funds Show Big Losses” (that’s the headline). Here are some excerpts:

Some 10 years ago, Nathan Myhrvold, the former chief technology officer of Microsoft, raised nearly $3 billion for two private equity funds from financial investors and tech companies. These were not your typical funds. They were designed to invest in patents and innovations, not companies or their securities, over a lifespan of 20 years, as opposed to the usual 10 to 13 years. Halfway through their run, the funds are deep in the red.

Invention Investment Fund II was the bigger fund that Myhrvold’s firm, Intellectual Ventures, raised in 2008. It has generated a -15.44% internal rate of return, according to data provided by the University of Texas Investment Management Co., one of Intellectual Ventures’ investors.

[...]

Nevertheless, Myhrvold has washed his hands of Invention Development Fund. It is now being managed by a new firm, Allied Inventors Management, which was set up solely to run Invention Development Fund outside of Intellectual Ventures. The fund has been renamed Allied Investors Fund. “The terms of the arrangement are subject to confidentiality agreement,” said DG Kim, Allied’s chief financial officer. “As far as internal fund matters, I am bound and can’t say anything really.”

We recently wrote about it because Microsoft had unintentionally revealed something. Filings showed that it was by far the biggest investor in this troll. It even lost a lot of money just trying to prop it up again (with another round of major investment). Richard Lloyd, who mentioned it at the time (Irish media actually broke the story), now has this new article stating that IV is “among the leading sellers of patents in first quarter” (IV sells patents to ‘satellite’ trolls that take many legal actions; the Wall Street Journal estimated about 9 years ago that IV had already created thousands of such ‘satellites’).

So what we have here is Microsoft’s patent troll (still led by Microsoft’s former CTO and heavily funded by Microsoft) distributing patents to patent trolls that are suing Microsoft’s rivals (including Linux companies, as we noted over the years). To quote:

IAM has teamed up with Allied Security Trust (AST) to provide quarterly updates on the secondary market for patents to determine who’s buying, who’s selling and what sort of assets are changing hands. As well as the data, AST has provided some additional information on the principal deals and the defensive aggregator’s CEO Russell Binns has added some commentary on the main trends. This analysis covers the first three months of 2018 and shows how Intellectual Ventures continues to dominate the market on the sell-side, while the NPEs Dominion Harbor and Uniloc are the leading buyers.

It’s also worth noting that IAM now works with the Allied Security Trust (AST), which is — as we last noted some weeks ago — like a patent ‘cartel’. IAM took note of another such ‘cartel’, IP Bridge, on the same day, writing:

Mobile network operator NTT Docomo has become the latest Japanese firm to partner with IP Bridge, the patent fund run by CEO Shigeharu Yoshii. A wireless-focused subsidiary of NTT, the world’s fourth largest telco by revenue, Docomo has previously made only limited patent transactions with third parties.

We wrote about IP Bridge. It’s almost like the ‘IV of Japan’, albeit much gentler. All these entities are basically participating in a large-scale ‘cartel’ whose de facto function is keeping small companies out of the market. They’re monopoly enablers.

“Microsoft did the same thing 3 years later at Nokia (Nokia’s patents will only ever bother Apple and Android OEMs, but never Microsoft).”That brings us back to Microsoft. And this time it’s about Yahoo’s trove of software patents. Well, just as many people worried at the time (10 years ago, the time of Microsoft’s hijack of Yahoo), USPTO-granted patents of Yahoo show up in lawsuits/dockets. Critics like ourselves predicted that these patents would get scattered to trolls that target Microsoft’s main competitors on the Internet while Microsoft gets to shield itself by wielding leverage over Yahoo. Microsoft did the same thing 3 years later at Nokia (Nokia’s patents will only ever bother Apple and Android OEMs, but never Microsoft).

According to the EFF’s Daniel Nazer: “Old @Yahoo patents now in the hands of trolls. Prolific patent troll IP Edge has sued @Twitter claiming it infringes this software patent: https://patents.google.com/patent/US8352854 …”

We wrote about IP Edge several times earlier this year, e.g. [1, 2, 3, 4; like IV, it typically operates through ‘satellites’ which file the lawsuits. This makes it incredibly hard to keep track of these things; it’s hard to know who’s behind which lawsuit/s.

Daniel Nazer has just published this new article titled “EFF Fights for Public Access To Patent Disputes” because even the EFF struggles to gain access to such crucial information. To quote:

The public can’t judge if courts are fair if the public is locked out. The parties generally don’t care if the proceedings are hidden (indeed, they may want them hidden). This means that, at times, groups like EFF and press organizations have had to stand up for public access. Unfortunately, while the First Amendment protects the right of access, courts sometimes fail to protect this right.

In patent litigation, we’ve seen routine over-sealing by busy district courts. EFF has twice moved to unseal records in patent cases in the Eastern District of Texas, and both times the court unsealed material that should have been public.

Now EFF is taking action to push for transparency in two critical venues for hearing patent disputes. We’re protesting against the Federal Circuit’s practice of delaying the public from reading filed briefs, and the Patent Trial and Appeal Board’s use of secret docket entries.

[...]

The Patent Trial and Appeal Board (PTAB) overseas a variety of important procedures within the Patent Office, including inter partes review (IPR) and administrative appeals. The IPR proceedings, in particular, are now one of the most important methods for challenging bad patents.

Recently, we filed an amicus brief at the PTAB in a case considering whether a patent owner can avoid review by claiming sovereign immunity. As part of our work in that case, we discovered that when documents are filed under seal at the PTAB there is no public docket entry. So, not only does the public not get to see the sealed document, it doesn’t even know that one has been filed.

We sent a FOIA request to the Patent Office that, in effect, asked for all non-public docket entries in post-grant proceedings at the PTAB. We did not request the filings themselves but only the docket entries. After some back-and-forth, the Patent Office produced a list [PDF] of 16,773 docket entries (we thank the FOIA Officer who helped with this process). In other words, there have thousands of filings before the PTAB that the public had no record of.

Meanwhile, as Nazer noted in Twitter yesterday:

U.S. Patent No. 10,000,000 will likely issue some time this month. To make sure the publicity is good, the USPTO will hand-pick this patent (it won’t be the patent that randomly would have gotten that number).

Far too many ‘inventions’ so you just know that the vast majority simply aren’t inventions and are basically bogus patents waiting to be exploited en masse by patent trolls. Many such trolls are connected to Microsoft, either directly or through IV (which has literally thousands of them). How large a scale does this network of trolling have? It’s hard to tell unless the EFF can compel/press for better public access to information. Many patent disputes happen secretly, with conditional settlements that include “no disclosure” agreements (NDAs). Secrecy shelters serial bullies from regulators/scrutiny/challenge (such as IPRs at the Patent Trial and Appeal Board).

05.28.18

Microsoft and Its Patent Trolls Face an Uphill Battle in a Patent System Which is Increasingly Hostile Towards Software Patents

Posted in GNU/Linux, Microsoft, Patents at 10:17 am by Dr. Roy Schestowitz

An unusual dumper

Summary: The huge number of shells (trolls) that are connected directly and indirectly to Microsoft are struggling in the age of PTAB and 35 U.S.C. § 101; but that does not mean that we should take our eyes off them (and their proponents)

Microsoft, the company which “loves Linux” so much that it sees the need to create cheesy memes about it and then paste them like a million times all around the World Wide Web, relies on patents granted by the USPTO to sue companies which distribute GNU/Linux. Apple does the same thing. Microsoft typically does this through patent trolls, some of which are based in the Eastern District of Texas, the capital of patent trolls. Some are based elsewhere, e.g. Acacia, and they have a cluster of shell entities (making it incredibly hard to keep track of, just as they intended).

Having spent about a dozen years researching these trolls and their connections, we’re a little harder (than most) to fool. 5 days ago Unified Patents wrote about its petition against Acacia, a Microsoft-connected patent troll (which attacks GNU/Linux vendors). Remember that Acacia had hired for its management from Microsoft just before it sued companies like Red Hat and Novell. Here is what Unified Patents wrote:

On May 23, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 8,902,770 owned and asserted by Cellular Communications Equipment, an Acacia subsidiary and well-known NPE. The ’770 patent, directed to a method for “explicit signaling between a network and the user equipment,” has been asserted in district litigation against such companies as Apple, ZTE, AT&T, Verizon, Sprint, Boost Mobile, and T-Mobile.

Acacia is still around unfortunately; it’s also active. The above names one of its many shells, “Cellular Communications Equipment” (it would be hard to know this connection without some research). Watch out for another shell called “PanOptis” because “Sony transfers over 100 US patents to NPE PanOptis,” IAM notes, linking to its article which in turn links PanOptis to other trolls, such as Avanci (mentioned here more recently again). To quote: “Recent USPTO records show that Sony has transferred a portfolio of over one hundred US patents to an affiliate of NPE PanOptis, a part of the Marconi Group. The Japanese company already participates in the Avanci and Velos patent pools, and its link-up with PanOptis underlines Marconi’s diverse offering. Sony assigned 135 US patent rights to Plano-based Wi-Fi One LLC on 26th January, but the transaction was not recorded until last month. Wi-Fi One is just one of the vehicles controlled by PanOptis, the NPE founded by Leslie Ware which became part of the Marconi Group in February 2017.”

Wi-Fi One is another patent troll which we wrote many articles about (in recent months). Notice the trend; large companies like Sony, which shares investments with Microsoft in several patent cartels (e.g. Rockstar Consortium and Intellectual Ventures), spread patents to trolls. As for Avanci (Ericsson-connected, also part of Rockstar Consortium, along with Apple and BlackBerry), IAM says that its “auto royalty fee [on many Linux-powered systems] will be $3 to $15 per vehicle no matter how many patent owners sign up to our auto platform, the firm confirms to IAM.”

The underlying article (not behind paywall for a change) says more:

There will be no changes to the $3 to $15 per car royalty fees licensees are asked to pay to access the patents that form the Avanci auto patent platform, the firm has told IAM. “As we add new patent owners to the Avanci platform, the price the licensees pay for a licence will not increase,” Luke McLeroy, vice president of business development, said. “In fact, after publishing our rates in December of 2017, Avanci added four patent owners to the platform and the price didn’t increase. This is the case even if all standard essential patent owners join the platform.”

[...]

Each of the manufacturers that Avanci is talking to, said McLeroy, “is on its own journey in determining how wireless can be implemented within their respective products”. He continued: “Within this journey, there are different stages of understanding on how the licensing process works in the telecommunications space vs the automotive industry and it takes time to find that common ground where a licence can be taken.”

These patents are all rather dodgy, but put together in a pool (like that of MPEG-LA) it’s far too expensive to challenge them all. A combination of many dubious patents in large numbers (quantity) is how Microsoft typically blackmails Android and GNU/Linux/ChromeOS OEMs. Sometimes it’s not even Microsoft doing the blackmail (not directly anyway). Microsoft can always rely on its special patent troll, Intellectual Ventures, to do the lawsuit or pass patents to one of its thousands of shells to do that. It’s one heck of a racket!

Mr. Gross has this new update about the Patent Trial and Appeal Board’s (PTAB) ruling on litigation ‘ventures’ of Intellectual Ventures: “have no idea what IV patent attys were thinking appealing this patent case to PTAB; subject matter (“selling insurance policies,””funding at least one of purchase…””inducing water temperature changes”) just invites a beating with 101 stick over head: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005828-05-07-2018-1 …”

He’s referring to Section 101 (Alice). It always gets them. Here’s one of Microsoft’s: “MSFT wins rare [Section] 101 case at PTAB for utterance clustering based on Mcro: “process performed by human animators is not the same as that as the rules-based process recited in the claimed automation, as the human process is driven by subjective determinations” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017010766-05-08-2018-1 …”

Another PTAB case, Hakkani-Tur, speaks of “rejection of all twenty pending claims in U.S. Application No. 14/846,486, for which the real party in interest is Microsoft. [...] The claims had been rejected under 35 U.S.C. § 101…”

Here’s the relevant bunch of passages:

In a decision issued earlier this month, the U.S. Patent and Trademark Office Patent Trial and Appeal Board reversed the final rejection of all twenty pending claims in U.S. Application No. 14/846,486, for which the real party in interest is Microsoft. The claims at issue are directed to a system that trains a spoken language understanding (SLU) classifier based on user intent gleaned from user utterances (i.e., spoken natural language sentences and phrases, such as “send Mom an email”). In particular, the claimed invention involves collecting a variety of user utterances and semantically parsing the utterances (i.e., mapping the utterances into machine-understandable representations of their respective meanings) to generate a single graph that represents all the utterances in the form of nodes. The claimed invention then involves clustering (i.e., grouping) the utterances by similar user intent, and using the resulting groups to train the SLU classifier.

[...]

But the Board disagreed with the Examiner on all three points. The Board was quick to note that, although the portions of App. No. 14/846,486 cited by the Examiner might describe mathematical calculations, they do not discuss an SLU classifier, but rather discuss a method of developing the graph used to train the SLU classifier. In addition, the Board stated that the last two steps of claim 1 are more than just field of use limitations.

Does this mean that PTAB can impact Microsoft’s (patent) war on GNU/Linux?

Mr. Gross goes on and on with Section 101. He wrote: “PTAB says Bilski ONLY applies to process claims: MOT test “applies to claimed processes-a category of subject matter under § 101 that is distinct from the dynamic messaging system recited in claim 1 that falls within the apparatus category in that statute” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017002826-05-07-2018-1 …” and then this:

PTAB invents new standard for §101 implying that “something more than the abstract idea” Alice part 2 test cat be met UNLESS there is an improvement to “the technical field of computers, communications, networking, or otherwise.” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017002116-05-14-2018-1 … NO SUCH PRECEDENT EXISTS!

Mr. Gross has long attacked PTAB and wrote for Web sites of patent trolls. An online buddy of his said: “The PTAB Reversed the Examiner’s 101/Mayo and 103 Rejections of Claims in a Medtronic Patent Application Directed to Improving Bladder Function: https://anticipat.com/pdf/2018-05-01_13764911_178530.pdf …”

This is very rare a thing. This is why it’s being pointed out. It’s like all those times the patent maximalists name-drop Berkheimer as if it’s the only court decision that matters. Berkheimer was overhyped nonsense from the patent microcosm, which merely hoped that by 'pulling a Berkheimer' 24/7 there would be renewed interest in software patents. Here goes Mr. Gross again: “PTAB already skirting most of CAFC Berkheimer ruling: “Appellants’ Specification teaches …that the processes, and steps of the invention, may be realized” using hardware that “may include a general purpose computer and/or dedicated computing device” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016004156-05-01-2018-1 …”

They’re leaving Berkheimer behind, unlike Mr. Iancu.

Lawrence Ashery of Caesar, Rivise, Bernstein, Cohen & Pokotilow has meanwhile published this long piece in support of software patents, relying solely on Berkheimer and a muchly-mesmerised (by it) Iancu. Media of law firms basically pretends that the goal should be to allow software patenting and it also overplays Berkheimer, as expected (marketing, lobbying, not advice). To quote some bits:

Then, an interesting court opinion was published in February (Berkheimer v. HP, 17-1437 (Fed. Cir. 2018)). Steven Berkheimer had sued Hewlett-Packard (HP) for infringing his patent for digitally processing and archiving files. The district court ruled that Berkheimer’s patent was invalid, because it was directed to patent-ineligible subject matter. Specifically, the court stated that Berkheimer’s inventive concept failed the second step of the Alice test because his invention related to “steps that employ only well understood, routine, and conventional computer functions.” On appeal, Berkheimer argued that whether an invention is “well understood, routine and conventional is an underlying fact question for which HP offered no evidence.” The U.S. Court of Appeals for the Federal Circuit agreed with Berkheimer, and remanded the case to the district court so that the necessary factual determination could be made.

Berkheimer v HP was also brought up by the PTAB-hostile Anticipat 5 days ago. “Expect the Berkheimer-driven patent-eligibility pendulum to swing at the PTAB,” said the headline, but no, not really. Months down the line nothing has really changed. Here is what Anticipat wrote:

The past few months have seen huge developments in patent-eligibility at the USPTO. In three and a half years after Alice, the most effective way to argue against patent-eligibility for software applications was to focus on Step 1–that the claims are not directed to an abstract idea. But based on these recent developments, Step 2–that additional elements of the claims transform the judicial exception into something more–looks to be the more powerful way. The only problem is that the PTAB has not yet caught on. It will.

These huge developments have taken place in the form of Federal Circuit decisions deciding patent-eligibility favorably to the patentee, especially Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018). Such a clear articulation of the need for factual findings for Step 2 should usher in big change in how the Alice/Mayo framework is applied.

Anticipat uses the phrase “huge developments” twice, but Berkheimer was hardly that. Oil States was. Then again, what can be expected from a firm whose sole goal and business model is PTAB-bashing?

05.15.18

Apple and Microsoft Are Still Suing Companies — Using Patents of Course — Which ‘Dare’ Compete (by Leveraging GNU/Linux)

Posted in Apple, GNU/Linux, Microsoft, Patents at 6:45 pm by Dr. Roy Schestowitz

“Steve Jobs threatened to sue me, too. [and also] Bill Gates and Steve Ballmer. They’d flown in over a weekend to meet with Scott McNealy. [...] Bill skipped the small talk, and went straight to the point, “Microsoft owns the office productivity market, and our patents read all over OpenOffice.” [...] Bill was delivering a slightly more sophisticated variant of the threat Steve had made, but he had a different solution in mind. “We’re happy to get you under license.” That was code for “We’ll go away if you pay us a royalty for every download” – the digital version of a protection racket.”

Jonathan I. Schwartz, Sun

Summary: The vanity of proprietary software giants — as the latest news serves to reveal — targeting companies with patent lawsuits, both directly and indirectly

E

ARLIER today we wrote about Apple v Samsung because there’s an important ongoing case right now. It’s in the United States. For the second time this week Josh Landau (CCIA) wrote about this patent trial:

Opening arguments in Apple v. Samsung started this morning. While round six of the long-running case deals with smartphone patents, the potential impacts range much further. As I noted in my post yesterday, a rule of design patent damages that allows patentees to receive the total profits on the entire product even though the design is only applied to a small component of that product could have potentially negative impacts almost everywhere.

Let’s start with one area that impacts nearly everyone—the auto industry.

Parts Of A Much Larger Whole

Before becoming a lawyer, I worked for a Tier 1 supplier as an automotive engineer. Tier 1 suppliers primarily sell integrated components directly to auto manufacturers like Ford or Daimler, and their products typically include components from smaller suppliers (so-called Tier 2 and Tier 3 suppliers).

A typical car might include more than 15,000 parts, made by more than 20 different Tier 1 suppliers, which each source components from dozens of Tier 2 and Tier 3 suppliers. Even your cup holder might be composed of multiple molded plastic pieces and some metal to attach it to the vehicle structure. Most of those components have little to nothing, individually, to do with the decision to buy the car. A cup holder, however pretty, just isn’t worth buying a car for.

But each and every one of those thousands of components ultimately winds up in a vehicle selling for tens of thousands of dollars.

Apple now wants an extraordinary amount of money for a stupid design patent or a few — things whose level of sophistication may match the mental level of a person with single-figure age [1, 2]. To think that patents were granted on such things isn’t just laughable but outright insane.

Similarly, in Microsoft Corporation v Corel Corporation, the dispute was about some stupid designs and lawyers got paid possibly millions of dollars arguing over it. Microsoft just uses patents, exploiting deep pockets to sue its much poorer rivals, trying to bankrupt them still (so much for ‘new’ Microsoft). Here’s the latest on that, as covered some hours ago:

Following a jury trial, the court denied defendant’s renewed motion for judgment as a matter of law that plaintiff was not entitled to disgorgement damages under 35 U.S.C. § 289 for infringement of its design patents because plaintiff’s software qualified as an article of manufacture.

It’s not only Microsoft that’s suing for Microsoft (directly). There’s also Intellectual Ventures, the Microsoft patent troll which hoards patents and sues Microsoft’s rivals by proxy. It also passes patents by the thousands to other trolls, such as Dominion Harbor which was recalled some hours ago by IAM:

Since Intellectual Ventures started ramping up its rate of sales early last year, it has been clear that the secondary market for patents has a new and particularly deep well of assets shaping it. Among the large disposals, the firm has transferred a portfolio of almost 4,000 former Kodak patents and two big portfolios of legacy American Express and NEC rights, all to Dominion Harbor. Throughout its existence IV has always sold assets – and let others expire – but not at the rate of the last 12 to 18 months

Here we are in 2018 and Apple is still suing Android OEMs while Microsoft passes huge sums of money to patents trolls that attack/target GNU/Linux product producers. To pretend there’s some sort of “patent standstill” (as Red Hat prefers to put it) is to simply lie to oneself.

A Google-Centric and Google-Led Patent Pool Won’t Protect GNU/Linux But Merely ‘Normalise’ Software Patents

Posted in GNU/Linux, Google, IBM, OIN, Patents, Red Hat at 8:22 am by Dr. Roy Schestowitz

LOT Network: A WHOLE LOT OF SOFTWARE PATENTS

Summary: Patent pools, which are basically the wrong solution to a very clear problem, continue to expand and promote themselves; the real solution, however, is elimination of abstract patents, notably software patents

OIN is no longer the only ‘game’ in town. IBM is the foremost player in OIN and OIN is not against software patents (same as IBM). A key staff from OIN recently left to join the Conservancy, which is strongly against software patents.

“…perhaps, to use OIN’s explanation, it’s trying to prevent such patents from ending on the laps of patent trolls. Just perhaps… in which case, wouldn’t it be better to work toward these patents’ elimination (using Section 101)?”The Google-led, Red Hat-backed LOT Network is in some headlines these days. It’s described as “defensive”, as usual. It’s not new, it’s just making another ‘charm offensive’, this time with Lenovo in the mix. Engine recommends LOT Network, which was mentioned in the puff piece from Bloomberg (copied a lot by Indian media) the other day. Some more Indian media has licensed and published it since. What was it all about? Did the author liaise with LOT Network for a puff piece, knowing that she would soon see further coverage like this? We now see two sites that habitually write about EPO scandals perpetuating the myth of “free patents and membership”. There’s no such thing as “free” patents because patents are something being taken away to begin with, it’s not a “charity” to give it ‘back’. It’s a PR stunt of large firms with many patents which they refuse to bury. To quote WIPR:

Non-profit LOT Network has announced two new programmes to “enrich and protect the global start-up community”, in efforts to incentivise innovation and encourage responsible patent use.

LOT, which lists Google, Canon, and Dropbox as its members, announced its new programmes on Thursday, May 10.

Mike Lee, head of patents at Google, said: “We think the protections afforded by LOT should be available to established and start-up companies alike, and do not want cost to be a barrier to participation.”

The first scheme is the Patent Transfer Program, which will allow qualifying start-ups to receive three free patents from LOT. The second is the organisation’s plan to expand free membership to LOT to any operating company which has up to $25 million in annual revenue.

Here’s the other new article about it:

The LOT Network, a Google-led patent initiative that aims to combat so-called ‘patent trolls’, has announced a new extended free membership, available to any company having up to $25 million in annual revenue.

Alongside the new membership, the LOT Network is granting qualifying startups three free patents, provided they have a membership in the LOT Network.

The group said it believes that “startups fuel innovation” and has “committed to share patents provided by its members with startups to promote and fuel further innovation and encourage these startups to join the LOT Network.

The first 200 operating companies in the LOT Network with $500,000 to $25 million in annual revenue or $500,000 to $25 million in financing over the past 18 months are eligible to receive patent assets at no cost.

The problem is that rather than work towards elimination of software patents they sort of ‘normalise’ them. Meanwhile, as IAM noted yesterday, RPX hoards more such patents:

RPX has acquired a small portfolio of patents from former search behemoth Lycos, according to an assignment recorded late last week with the USPTO. In total, the defensive aggregator picked up 24 assets from the tech company which grew rapidly during the 1990s dotcom bubble before quickly being eclipsed by the likes of Google and seeing a massive fall in value. The deal assignment was executed last November but has only just shown up on the PTO assignment database.

Those Lycos patents are likely software patents which are about to expire (almost 20 years since the dotcom bubble burst). What will RPX do with these? It did not buy these just for vanity; perhaps, to use OIN’s explanation, it’s trying to prevent such patents from ending on the laps of patent trolls. Just perhaps… in which case, wouldn’t it be better to work toward these patents’ elimination (using Section 101)?

Companies like Red Hat and Google try to “add value” by compiling a patent “portfolio”; if or when they die or get sold to another company those patents can be used offensively; see Sun and Oracle. Patents are never defensive; that’s just not how patents work. To call them “defensive” is part of the PR stunt, which IBM did a lot of a decade or more ago.

05.13.18

Debunking the Usual Omission of GNU

Posted in GNU/Linux at 12:56 am by Dr. Roy Schestowitz

Pack of gnu in the wild

Summary: Debunking the Usual Omission of GNU — a reader’s debunking of a new article from Linux Journal

THIS guest post from “figosdev” is case insensitive — a choice of style. But it’s the arguments that count.


I know, it’s never going to change.
And it doesn’t really have to.
A tired rebuttal to a tired old farce.
Because why not?
If this gets more time, might as well respond…

Debunking yet another tired “let’s just call it Linux” article that makes a lot out of agreeing with itself

 

Some may remember that the Linux naming convention was a controversy that raged from the late 1990s until about the end of the first decade of the 21st century. Back then, if you called it “Linux”, the GNU/Linux crowd was sure to start a flame war with accusations that the GNU Project wasn’t being given due credit for its contribution to the OS. And if you called it “GNU/Linux”, accusations were made about political correctness, although operating systems are pretty much apolitical by nature as far as I can tell.

a controversy that raged from the late 1990s until about the end of the first decade of the 21st century.

the controversy was probably mostly people saying “you should call it gnu/linux, because we have called it gnu for years and you added a kernel and called the whole thing ‘linux’”

the GNU/Linux crowd was sure to start a flame war with accusations that the GNU Project wasn’t being given due credit

if it was a company with a monopoly, they probably just would have filed a lawsuit. but instead they had an ongoing debate. lets make this debate sound as unreasonable as possible, because then we win by ad hom.

The brouhaha got started in the mid-1990s when Richard Stallman, among other things the founder of the Free Software Movement who penned the General Public License, began insisting on using the term “GNU/Linux” in recognition of the importance of the GNU Project to the OS. GNU was started by Stallman as an effort to build a free-in-every-way operating system based on the still-not-ready-for-prime-time Hurd microkernel.

GNU was started by Stallman as an effort to build a free-in-every-way operating system based on the still-not-ready-for-prime-time Hurd microkernel.

 

the emphasis on the hurd kernel is entirely on the part of the linux crowd. the purpose of the gnu project is and was to make users free. linux doesnt care about that, but its a very good kernel, so stallman suggested sharing credit. and he kept suggesting it– for years, as linux grew and continued to accept all the credit.

According to this take, Linux was merely the kernel, and GNU software was the sauce that made Linux work.

to the gnu project, hurd is just a kernel. and linux is just a kernel. it makes no sense to gnu developers to use the entire project and name it after the kernel–

the cpu is a very core part of the computer, but if you took a laptop designed to make the user free and changed the intel processor to an amd one, you wouldnt call the laptop “an amd” would you? that would be silly. if you said you got an amd people would say “what did you put it in?” “oh, its a dell.” because an amd just does nothing without the rest of the laptop.

Noting that the issue seems to have died down in recent years, and mindful of Shakespeare’s observation on roses, names and smells, I wondered if anyone really cares anymore what Linux is called. So, I put the issue to a number of movers and shakers in Linux and open-source circles by asking the simple question, “Is it GNU/Linux or just plain Linux?”

oh come on, you did not… this article is a rehash of so many like that open source fanboys do from year to year to year. you didnt really wonder at all.

So, I put the issue to a number of movers and shakers in Linux and open-source circles

 

ha! you asked “linux circles” if you call it linux? we already know what “open-source” calls it. your bias is built right into your sources. this is a farce.

“This has been one of the more ridiculous debates in the FOSS realm, far outdistancing the Emacs-vi rift”, said Larry Cafiero, a longtime Linux advocate and FOSS writer who pulls publicity duties at the Southern California Linux Expo. “It’s akin to the Chevrolet-Chevy moniker. Technically the car produced by GM is a Chevrolet, but rarely does anyone trot out all three syllables. It’s a Chevy. Same with the shorthand for GNU/Linux being Linux. The shorthand version—the Chevy version—is Linux. If you insist in calling it a Chevrolet, it’s GNU/Linux.”

This has been one of the more ridiculous debates in the FOSS realm

 

yes, its ridiculous because not only does open source insist on eclipsing free software, it wants to do it in every possible way– from co-opting a social movement to changing the name of everything, to denying credit for anything accomplished over the past 15 years (“well that was then, but…”) even to pretending that the debate is over “and we won!” (but thats how the article leaves it. we arent there yet.)

Next up was Steven J. Vaughan Nichols, who’s “been covering Unix since before Linux was a grad student”. He didn’t mince any words.

yes, hes a complete shill for zdnet.

“Enough already”, he said. “RMS tried, and failed, to create an operating system: Hurd. He and the Free Software Foundation’s endless attempts to plaster his GNU name to the work of Linus Torvalds and the other Linux kernel developers is disingenuous and an insult to their work. RMS gets credit for EMACS, GPL, and GCC. Linux? No.”

Enough already”, he said. “RMS tried, and failed, to create an operating system:

 

wow. i used to think he was sort of in-the-middle as shills went.

steve: take windows– an entire “operating system,” and replace ntkernel, and call it yours. let me know what you still own when theyre done.

 

RMS gets credit for EMACS, GPL, and GCC. Linux? No.”

steve, what the heck does this even mean???

youre the ones suggesting it be called linux/linux. youre talking like stallman wants to call it gnu/gnu.

 

He and the Free Software Foundation’s endless attempts to plaster his GNU name to the work of Linus Torvalds and the other Linux kernel

uh, no? torvalds plastered the linux name onto the gnu operating system. heres how you know– the gnu operating system already existed.

and from what you said, youd think that the gnu team took linux and added it to the gnu os and called the linux kernel “gnu.” but again, they call what other people took and added linux to– and call it gnu/linux.

someone is plastering a name onto everything, but the name theyre plastering is onto it is linux.

if we can call everything linux, theres no reason that calling it “gnu/linux” is specious.

To be fair, the use of GNU-related monikers didn’t start with Stallman. An early distribution, Yggdrasil, used the term “Linux/GNU/X” in 1992, and shortly thereafter the terms “GNU/Linux” and “GNU+Linux” began showing up in Usenet and mailing-list discussions. Debian, which early on was sponsored by the Free Software Foundation, starting using the term “GNU/Linux” in 1994, which it continues to use to this day. Stallman began publicly advocating its use in 1996.

yes, to be fair.

id like gnu/steve (his argument was we are trying to plaster gnu onto everything, so this isnt any different) or as steve is known in the linux world: “linux” (the l-man, steve the kernel, linsteve 2.0) to go tell debian developers “plastering the GNU name to the work of Linus Torvalds and the other Linux kernel developers is disingenuous and an insult to their work!” and find out how that goes. go ahead, l-man, do it…

But Stallman’s advocacy always put a bad taste in some people’s mouths.

yes, but to be fair, there are people who react negatively to just about any idea.

“For me it’s always, always, always, always Linux,” said Alan Zeichick, an analyst at Camden Associates who frequently speaks, consults and writes about open-source projects for the enterprise. “One hundred percent. Never GNU/Linux. I follow industry norms.”

Well, somebody has to defend orthodoxy.

For me it’s always, always, always, always Linux,” said Alan Zeichick, an analyst at Camden Associates

 

ive heard about gnu and linux about a million times in over a decade. as of today ive heard of alan zeichick once, and camden associates (what do they even do?) once. im just going to call them linux, its the more popular term.

 

“I follow industry norms.”

so you use windows and apple mostly– ok.

Gaël Duval, founder of the once uber-popular Mandrake/Mandriva distro who’s now developing eelo, a privacy-respecting Android clone, pointed out that insisting on GNU/Linux might open the door wider than originally intended. “I understand people who support the idea to call it GNU/Linux”, he said. “On the other hand, I do not see why in this case we wouldn’t use “GNU/X11/KDE/Gnome/Whatever/Linux” for desktop systems, because graphical environments and apps are very significant in such systems.

insisting on GNU/Linux might open the door wider than originally intended. “I understand people who support the idea to call it GNU/Linux”, he said.

 

– yes, to keep the original project from being eclipsed. technically gnu eclipses unix, but a. it cant legally be called unix and b. thats what the u cleverly stands for: “gnus not unix.”

i would be perfectly happy with the name linug instead of gnu/linux, and it could stand for “linug is never undermining gnu.” i truly believe stallman would accept this.

“Personally, I’m comfortable with both Linux and GNU/Linux”, he added, “but I use simply Linux, because adding complexity in communication and marketing is generally not efficient.”

adding complexity in communication and marketing is generally not efficient.”

the message that you really want to convey after all, is that linus torvalds wrote an entire operating system.

Richi Jennings, an independent industry analyst who pens a weekly security column on TechBeacon, expressed a similar sentiment. “Look, it’s totally fair to give the GNU project its due”, he said. “On the other hand, if that fairness needs to be expressed in a naming convention, why stop at GNU? Why not also recognize BSD, XINU, PBM, OpenSSL, Samba and countless other FLOSS projects that need to be included to form a workable distro?

Why not also recognize BSD, XINU, PBM, OpenSSL, Samba and countless other FLOSS projects that need to be included to form a workable distro?

because this is a completely specious argument by their own percentage standards. even with the bsd part… though that was the best example.

note the percentage argument is entirely a thing that the linux crowd made up, and it misses the point a bit like everything else theyve said to justify co-opting free software.

“The bottom line is that ‘Linux’ is what the vast majority of people call it. So that’s what it should be called, because that’s how language works.”

The bottom line is that ‘Linux’ is what the vast majority of people call it. So that’s what it should be called,

 

by this ridiculous argument, internet explorer should be called “windows” and firefox should be called “facebook.”

Self-professed “ace Linux guru” and Linux writer Carla Schroder said, “I’ve never called it GNU/Linux. GNU coreutils, tar, make, gcc, wget, bash and so on are still fundamental tools for a lot of Linux users. Certain people can’t let any Linux discussion pass without insisting that ‘Linux’ is only the kernel. Linux distros include a majority of non-GNU software, and I’m fine with ‘Linux’ as an umbrella term for the whole works. It’s simple and it’s widely recognized.”

“Certain people can’t let any Linux discussion pass without insisting that ‘Linux’ is only the kernel.”

guess why? because linux is the kernel.

“I’m fine with ‘Linux’ as an umbrella term for the whole works. “

and the whole rewriting history part is fine too.

Tallying the votes, it looks as if the “ayes” have it, and you can call Linux what you want. If anybody gives you any grief, tell them what Schroder told me: “Arguing is fun, but I suggest that contributing financially or in other ways to GNU/Linux/FOSS projects is more helpful.”

Tallying the votes

if polling people and counting the ones who agree with your stance is what you call voting, theres got to be a place near central america you can run for office.

Arguing is fun, but I suggest that contributing financially or in other ways to GNU/Linux/FOSS projects is more helpful.”

i would say that when youre not doing that, a few arguments against rewriting history are possibly worth your time.

also, i think it helps if people call it gnu/linux.

Or, we could argue about whether it’s FOSS or FLOSS.

Or, we could argue about whether it’s FOSS or FLOSS.

its both. have a cookie.

 

there are a few stupid things about this article worth mentioning:

gnu/linux is about precedence, not percentage. that whole percentage red herring is bunk city.

creating an operating system to make users free is a loftier goal than writing a kernel to avoid a hike through the snow, and suggesting “gnu/linux” as a compromise is both generous and smart– since linux insists on taking all the credit.

gnu and also the free software movement were co-opted by linux and open source. even open source initiative co-founder bruce perens admits this, though it wasnt intentional on his part. gnu/linux was proposed as a way to give back some of the credit, after too much was taken away. it was a gracious move, and no matter how many times this “lets just agree on linux” argument is made (year after year after year) the fact is– the gnu/linux name serves a purpose regardless.

if people call it “linux” they are letting you know that they are willing to co-opt a very important work and possibly rewrite history.

if people call it “gnu/linux” they are letting you know that marketing isnt more important to them than due credit– and that they care about your freedom and what the gnu name stands for.

you dont have to care what the gnu name stands for, but it does stand for a bit more than the name “linux” does. the gnu name (while it really is just a name) indicates things to users that “linux” barely implies at times (or in practice.)

whats funny is that by poking at the name “linux,” the project to make users free continues to promote a worthier goal than just a practical piece of software– so what if it does it the way ricky gervais in extras tries to inch his way into the scene. the somewhat disingenuously-eclipsed project to make people free doesnt have to seem like its cool, it only has to do whats right.

while the industry doesnt have to do whats right, it only has to seem like its cool.

and if this kind of bs is what passes for “cool” these days, maybe these people need to get out more.

the one thing i meant to add is, ‘no matter how many times these arguments are trotted out, using the gnu name is still a reliable way to convey that you care about freedom– while calling it linux is an increasingly UNreliable way to do do that.

you have the choice, and it says where your priorities are. theres something about ‘gnu/linux’ thats hard to co-opt– those who would misuse it, would probably never use it. perhaps this is stallmans unintended genius, but i wish id thought of it.

04.19.18

Microsoft’s Lobbying for FRAND Pays Off as Microsoft-Connected Patent Troll Conversant (Formerly MOSAID) Goes After Android OEMs in Europe

Posted in Europe, GNU/Linux, Google, Microsoft, Patents, RAND, Samsung at 4:38 am by Dr. Roy Schestowitz

Royalty stacking until free/libre platforms become very expensive

Coin stacking

Summary: The FRAND (or SEP) lobby seems to have caused a lot of monopolistic patent lawsuits; this mostly affects Linux-powered platforms such as Android, Tizen and webOS and there are new legal actions from Microsoft-connected patent trolls

EARLIER THIS week we wrote a couple of short articles that alluded to Samsung’s small victory over Huawei. For those who don’t know, Huawei is a highly government (or regime) connected entity, more so than a corporation as is known in Western democracies. Huawei nowadays uses patents in an effort to embargo the competition, but that hasn’t been particularly successful outside China (where government connections help). The Asian giants almost always use Android; this includes Huawei and Samsung, which also has the Linux-based Tizen (LG has the Linux-based webOS). As one site put it yesterday:

Back in January, we updated you on the Huawei vs. Samsung patent infringement lawsuit. The big news was that a Chinese court found in favor of Huawei in that dispute.

The patent infringement had to do with Samsung using Huawei’s cellular technology and software patents in various Samsung devices, without paying Huawei the necessary licensing fees. Samsung denied any wrongdoing (as usual), but the court said that Huawei’s patents were indeed infringed upon, and Samsung would have to pay a fine and halt Chinese production and sales of the infringing devices.

Docket Navigator also wrote about Huawei Technologies Co., Ltd. et al v Samsung Electronics Co., Ltd. et al, showing that the US patent system/law suddenly becomes friendlier (to engineers, not lawyers) than China’s. To quote:

The court granted defendant Samsung’s motion for an antisuit injunction prohibiting plaintiff Huawei from enforcing injunction orders issued by a Chinese court and found that the Chinese injunction orders would frustrate domestic policies.

Boasting a new Samsung patent that we criticised the other day, this one new article says, “Samsung May Use Top Notch in Their Future Phones, New Patent Spotted in China” (so Samsung remains in China in the long run).

LG has already been driven out of China, or least partially. Patent lawsuits accomplished that.

As for Samsung, as we said and showed some days ago, it’s a top target for patent trolls. PACid, for example, is a patent troll whose latest action (against Samsung) belatedly got the attention of Watchtroll.

What we’ve only just noticed (this morning) is this update about MOSAID (now known as “Conversant”) with its litigation campaign in Europe. This Microsoft-connected (and Microsoft-armed) patent troll is still actively harassing companies with litigation in London. It’s nowadays going after Huawei and ZTE. To quote:

Does the English Court have jurisdiction to grant relief in the form of a global FRAND licence in relation to a claim for infringement of UK patents, where UK sales account for only 1% or less of worldwide sales on which royalties are claimed? This was the subject of the decision of Carr J. in the Patents Court on Monday in Conversant Wireless Licensing S.A.R.L v Huawei Technologies Co. Ltd, ZTE Corporation and Ors [2018] EWHC 808 (Pat). The answer – on the facts of this case as explained below – was “yes”.

[...]

Conversant commenced proceedings in July 2017, claiming that the Defendants were infringing 4 EP(UK) patents, and sought a determination of FRAND terms for its global SEP portfolio. Conversant’s global portfolio of patents includes SEPS in over 40 countries.

[...]

It was common ground that Art 24(4) (validity of IP rights) and 27 (court first seised) of the Recast Brussels Regulation would require the English Court to declare of its own motion that it had no jurisdiction to adjudicate upon cases concerning the validity of (non-UK) European patents. The Court also assumed that the English Court had no jurisdiction to adjudicate upon cases in which the dispute concerned validity of non-European patents. The Defendants however maintained that Conversant’s claims are in substance claims for infringement of foreign patents – which therefore depend on the validity of foreign patents, which the English Court has no jurisdiction over.

Although Huawei did not formally challenge jurisdiction in Unwired Planet [2017] EWHC 711 (Pat), it did rely upon some jurisdictional arguments to support its argument that a global licence was not FRAND, including that a worldwide FRAND determination in the English Court would undermine existing infringement and validity proceedings in Germany. Carr J. referred to the “simple” and “compelling” analysis of the judge in that case, where it was held that the Brussels Regulation and CJEU case law has nothing to do with what the terms of a FRAND licence should be.

What’s noteworthy about the case is: 1) it’s happening in Europe and 2) there’s a Microsoft connection. Microsoft was never able to blackmail Huawei over its Linux use, but later it managed to do this through Nokia, which also passed (at Microsoft’s instructions) patents to MOSAID (the same troll as above, owing to a rename/rebrand).

Microsoft might think it’s pretty clever by telling us that it “loves Linux” or “uses Linux”. But we’re not stupid enough to not see where patents come from.

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