When all else fails, throw patents at the competition (through trolls so as to avert counteraction)?
Image from BusinessKorea
Summary: With billions of dollars at stake (maybe over a trillion in the long run), the attempt to claw revenue using patents rather than actual sales has become complicated because of plurality of intermediaries, which Apple is trying to tackle with a new antitrust complaint
“In a major antitrust lawsuit Apple charged that Acacia is illegally breaking terms of patents acquired from Nokia,” according to The Street. This is pretty major news and definitely something that warrants a 2 AM article. Florian Müller has already produced a long blog post about it, accompanied by or coupled with the relevant documents.
“Readers can find details like a detailed history in our Wiki page about Acacia, including the hiring (by Acacia) of people from Microsoft and this troll’s repeated attacks on GNU/Linux.”As a reminder to our readers, Acacia is a Microsoft-connected troll. Readers can find details like a detailed history in our Wiki page about Acacia, including the hiring (by Acacia) of people from Microsoft and this troll’s repeated attacks on GNU/Linux.
“For a long time,” Müller wrote today, “I had hoped someone would finally do this. Last year I called out Nokia and others on their privateering ways, and it turned out that Nokia had industrialized the concept of privateering to a far greater extent than anyone else. My list of PAEs fed by Nokia contained all of the defendants in Apple’s antitrust suit–Acacia and Conversant (technically, Apple is also suing particular subsidiaries of those)–and more. That post prompted attempts by Ericsson and Nokia to explain away their privateering ways.”
Nokia‘s patents have also been passed to another anti-Linux/anti-Google troll called MOSAID (renamed “Conversant” since). These were, for a fact, passed at Microsoft’s instructions, as reported in the mainstream media at the time. There’s more on that in the Korean media. When it comes to patents, Nokia is still enslaved by or subservient to Microsoft.
“What does the future of dying mobile giants have in store then?”The full story isn’t just Apple hitting back at Nokia. “Breaking news,” Müller wrote later, “Nokia sues Apple in US and Europe over alleged patent infringement […] Venues: Eastern District of Texas, three German courts: Düsseldorf Mannheim Munich…”
Europe is a growing and increasingly attractive hub for patent parasites already, I’ve told Müller (who probably agreed). Germany and sometimes the UK (London) are favoured among those parasites (see Ericsson's troll choosing London for legal attacks — quite unprecedented a move for such an entity). “For the troll that Nokia is now,” Müller noted, “suing Apple in the ED of Texas is very appropriate. […] When Nokia was still making mobile devices, it had a predilection for the District of Delaware. Now: Eastern District of Texas. Times change…”
I told him that BlackBerry does the same thing now, having lost the market (to which Müller nodded with a retweet). We wrote about this earlier this week and earlier this year.
What does the future of dying mobile giants have in store then? Passage to trolls (the PAE type) that will tax everyone, everywhere? “Something big always seems to happen at Christmas in the patent market,” IAM wrote. “Remember the RPX Rockstar patents purchase a couple of years ago?”
Remember that IAM is partly funded by MOSAID/Conversant, i.e. part of the same ‘gang’. As for Rockstar, we wrote quite a few articles about it, e.g. [1, 2]. It’s like a front for Microsoft (Rockstar Consortium is a patent troll owned by Microsoft, Apple, BlackBerry, Ericsson, and Sony). As for RPX, it’s also a patent troll, with Microsoft having joined it 6 years ago.
“My list of PAEs fed by Nokia contained all of the defendants in Apple’s antitrust suit–Acacia and Conversant (technically, Apple is also suing particular subsidiaries of those)–and more.”
–Florian MüllerNina Milanov, an occasional EPO sceptic, told Müller, “I hope Apple sees it through. Every time you settle, to some extent the troll has won.”
“Last time Nokia sued Apple in Germany,” Müller responded, “it was extremely lucky. Key patents have expired. Will be more interesting this time around.”
If Apple gets to the bottom of all these satellite proxies that are patent trolls, it will be a good service not just to Apple but also to Android/Linux. iOS and Android command the market and all that the losers can do right now is attempt to tax those two. Even Oracle is trying to accomplish that. █
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Scare tactics and vengefulness from the Patent Maximalists’ Lobby
Summary: The growing embrace of “China” as the convenient bogeyman for those who oppose patent reform and wish to see a resurgence of patent chaos, from which they personally profit at victims’ expense
THE USPTO may be in self-perpetuating denial about it, but software patents are a dying breed in the US as courts don’t tolerate them. The EPO, in the mean time, moves in the opposite direction, but we’ll leave the EPO out of this post’s scope.
Unhappy With Insufficient Number of Lawsuits and Collateral Damage
Paul Morinville, a prominent opposer of patent reform in the US (and part of Watchtroll’s ilk), whines that “PTAB procedures are now invalidating nearly 90% of all patents they evaluate.” Yes, so what? Alice and other cases are pretty clear about it and PTAB, unlike patent examiners, is not being pressured to just bless every patent in the name of “production” or “success” (again, a growing problem at today’s EPO).
Morinville picks on Google (large company as his latest scapegoat) and some of his online friends already heckle me for pointing that out. To quote his article: “Over the next decade, the Supreme Court would eliminate injunctive relief and then for all intents and purposes, invalidate their patents first under Bilski and then under Alice. The courts also changed the way claims were written, thus invalidating thousands of patents retroactively. The America Invents Act’s PTAB procedures are now invalidating nearly 90% of all patents they evaluate. The courts also radically reduced damages for patent infringement.”
That’s good. But wait until Morinville brings up the bogeyman again — the same bogeyman that David Kappos has been summoning recently.
Let’s Envy China
“With China strengthening its patent system,” Morinville says, in probably the most ludicrous part of the whole article. China is actually weakening patents by granting almost everything that comes through SIPO’s doors, causing a patent hyper-inflation and an epidemic of trolling. How is that desirable to anyone but the patent microcosm? These anti-AIA think tanks and lobbyists (like Morinville), who want more lawsuits and more litigation, continue to infest the Web and a lot of them congregate around Watchtroll these days. This pattern of China-blaming or China-shaming mirrors what the Democratic Party in the US has been doing with Russia as of late.
Watchtroll wants the USPTO and the courts to start another race to the bottom and give/approve patents on everything, just like SIPO in China. One might call it “the litigation lobby” — for all it want is more and more lawsuits (which the lobby profits from). Watch another new Watchtroll article, this time by Steve Brachmann, the henchman of Quinn. So people who don’t even develop anything insist that “China” is the threat and that “Chinese patent guidelines” are a threat to the US rather than to China itself.
What kind of post-truth nonsense have we sunk to here?
Watchtroll, in another new article, says “Keep it Cordial” while Quinn attacks everyone who does not agree with him, even judges (see the image at the top).
What a nasty Web site this is. For IBM’s patent chief to occasionally link to it probably takes some guts because it says a lot about IBM, which has gone rogue (even IBM employees now protest/object to the management over that infamous Trump fawning).
China’s Growing Trolls Epidemic
China’s situation with regards to patents is not good. As we have been pointing out since the summer, SIPO grants far too many patents, including software patents. “This is especially true for software patents where the scope of patent protection is rather vague,” says this new article from China, which also mentions Xiaomi, a company that got trolled through India, as we noted before. To quote the relevant part:
As Chinese smartphone brands work to carve out a spot in the major-league global smartphone industry, they are increasingly being dragged into an international patent war with foreign tech firms.
The latest case saw San Francisco-based audio tech firm Dolby Laboratories lodge a lawsuit against Chinese smartphone companies Oppo and Vivo in India, accusing them of infringing on its patented technology. Back in 2014, Chinese tech firm Xiaomi was barred from selling phones in India after Sweden-based Ericsson filed a complaint with an India court alleging patent infringement.
The Ericsson-Microsoft patent trolls strategy (using trolls as proxies) was mentioned here twice this month [1, 2] and Xiaomi is again being mentioned by the Microsoft Windows-powered IAM (with other Microsoft connections). It is again embellishing Microsoft's patent extortion against Linux as follows:
The May agreement between Microsoft and Xiaomi was undoubtedly the IP deal of the year and it was also an excellent example of how patents can play a role in broader commercial agreements. Under the terms of the deal, Xiaomi undertook to pre-load Microsoft products on to more of its mobile devices, the two sides agreed to a cross-licence and the US software giant transferred 1,500 patent assets to the Chinese company. The transaction provides an excellent foundation for Xiaomi as it looks to grow its business in the US and for Microsoft as it continues its penetration of the Chinese market.
This is misleading. All we have here is patent extortion by Microsoft against Linux, even in China where the government of China took a strong stance against it (even leaking a list of Microsoft patents that are secretly being sued to blackmail Chinese companies like ZTE). We believe that Huawei, the world’s leading Android OEM these days, is still able to resist Microsoft’s Mafia-like tactics. Microsoft repeatedly failed to sign a patent deal.
The bottom line is, China has become a dangerous place patents-wise. Is that desirable to anyone but the patent microcosm? Of course not. █
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A ‘master’ troll, Boris Teksler
Credit: Japanese media
Summary: Leadership shuffled in ever-changing (morphing) patent satellites that typically prey on Linux/Android
EARLIER THIS MONTH we wrote about patent trolls of Microsoft and Ericsson “trying to tax everything, especially Linux devices.”
Watch who’s in the news again after a rename, which is a common practice among notorious patent trolls that are a front for someone else (usually a large company). It’s Ericsson’s patent troll that already operates in Europe (London) as well, thanks to the EPO which repeats the USPTO‘s errors.
IAM is writing about this patent troll that paid IAM (without disclosure in the article). This is the second time in about a month (without disclosure) and the latest blog post says that “former boss of Unwired Planet, Boris Teksler, has been appointed the new CEO of Conversant, in a move that sees the Candian NPE’s current head John Lindgren step down after more than nine years in charge.”
Conversant is the new name of MOSAID, which Microsoft passed many of Nokia‘s patents to. We also wrote a great deal about Unwired Planet, back when it was known as Openwave. “Openwave has changed its name to Unwired Planet,” as Wikipedia puts it.
Speaking of Linux-hostile trolls, IAM writes about more of them today. To quote one relevant part:
Whether it’s Microsoft’s link-up with Xiaomi or Huawei’s surprising partnership with InterDigital, licensing deals with value-added components were the major theme of 2016.
InterDigital is an anti-Android troll (we have many articles about that) and Xiaomi did not have a “link-up” with Microsoft. It was more like patent extortion, as we explained at the time.
The shell game of patent trolls is extremely important to keep abreast of. Names keep changing; the same goes for Microsoft front groups that lobby on patent law, e.g. Association for Competitive Technology, which goes (and went) by several other names (ATL or stuff with “App” and “FRAND” in it). █
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Summary: An outline of one week’s news regarding software patents in the United States, with special emphasis placed on key foes and allies of GNU/Linux
The Lobby for Software Patents
THE USPTO can no longer grant software patents as routinely as it used to and some people are upset about it. These people, however, do not develop software.
“Sen Chris Coons,” according to this tweet, says that “Eroding patent protections for software and medical advances imperils American R&D, learning, health, and innovation,” but this coming from guy who never wrote a single line of code in his entire life does not mean much. Maybe he’s just funded by some large company that is pursuing software patents (like IBM and Microsoft). Moreover, with Watchtroll branding on the podium (see the photo), we assume that Chris Coons came there to serve patent maximalists, who have grown quite loud recently. Benjamin Henrion responded by saying that “software patents shifts R&D budgets to P&L.” (patents and litigation)
We are troubled to see the voices of the patent microcosm growing even louder in the wake of Trump’s election win. They want change and they want this change to harm software developers so that they can profit from (or tax) actual producers. IBM, we might add, is a growing part of the problem. Does IBM even realise to what degree it alienates the Free software development community by advocating software patents all the time? Does IBM truly realise that it aligns itself with patent extremists that insult judges and push for software patents based on self-serving lies? Does it care? Does IBM realise that by paying the former Director of the USPTO it participates in institutional corruption? And again, does it care? By lobbying to annul the Supreme Court’s decision and elevate less than a handful of Appeals Court (CAFC) decisions these people reveal their true face and selfish interests, which happen to harm every software developer around the world. It harms developers of both proprietary and Free/Open Source software.
CAFC on Software Patenting
Speaking of the Appeals Court, also published (albeit behind paywall) is this article titled “Appeals Court Casts Doubts on Smartflash’s Patent Win Over Apple” (we mentioned this before). “Two judges signaled the patents claim ineligible subject matter under Section 101 of the Patent Act,” says the summary. This article is mirrored here (also behind paywall). Section 101 certainly gets taken into account by CAFC, but patent law firms like Finnegan continue pushing the envelop on lies that software patents still have teeth in the US. It’s that usual cherry-picking of CAFC cases. Baker Botts LLP has just done the same thing. Don’t fall for it. In the vast majority of cases, including in 2016, CAFC rules against software patents and Section 101 remains very strong an argument against software patents. Watch this new docket report that says:
The court denied defendant’s motion for summary judgment of invalidity on the ground that plaintiffs’ call center telecommunications patents encompassed unpatentable subject matter because the motion obscured patents’ complexity with reductionist simplicity.
The recurring theme here was covered in almost a hundred Techrights articles. It definitely seems as though software patents aren’t coming back any time soon (if ever), but the patent microcosm sure is trying to accomplish that.
IBM and Conservative Think Tanks
Adam Mossoff, who works for a Conservative think tank and has a history of rather aggressive patent views (we covered these in [1, 2, 3]), is trying to shame Congress into pushing for reinstatement of software patents, based on misinformation. “Today,” he summarised it, “Congress should save software again by expressly confirming that it is a patentable technological invention.”
If anything, software patents caused a lot of damage. But then again, judging by Mossoff’s paymaster, reliance on facts is almost a sin. Look where they stand on issues such as climate change.
“But this essential technology in our modern innovation economy is at risk,” Henrion quotes him as saying, responding with “yeah copyright replaced by patent trolls…”
Another person responded with “and look at the Patent Troll mess Software Patents has left us in…”
Exactly. Mossoff, as we pointed out here in the past, became a voice of patent trolls and the patent microcosm. He’s not a software developer and he merely ‘hijacks’ the voice of those who are with a nonsensical headline like “Congress Saved Software in 1980, and It Should Do It Again Today” (in a neo-Conservative Web site, of course).
This article seems to be one among several. The patent microcosm wants software patents back, unlike actual developers. Watchtroll is pressuring Congress on this subject also, most recently with yesterday’s headline (yes, a Sunday!) “Congress Can Save Software Patents by Repeating One of Its Successes”.
It’s just a bunch of mumbo-jumbo urging Congress to reinstate software patents and some of this mumbo-jumbo is promoted by IBM’s patent chief. Patent trolls proponents like Adam Mossoff are intentionally conflating software with software patents (one destroys the other) and then some IBM lawyers deems it cite-worthy? How stupid does IBM want to look here? It’s only going to harm the company’s relations with developers.
Google Against Software Patents, Unlike Microsoft
Contrast this with the following new article from Allen Lo, who is deputy general counsel for patents at Google. He published “Protecting Alice protects patent quality and technological innovation” and said in it:
The goal of the patent system, as set forth in the Constitution, is to promote the progress of the “useful arts,” which has always been understood to mean technological progress. Here at Google, we are proud of the many ground-breaking software inventions by our engineers that have allowed us to file a growing number of high-quality patents and establish a strong and valuable portfolio.
While Google and many other tech companies invest many billions of dollars in research and development (R&D) to make these inventions – and these patents – possible, not all software patents issued by the Patent and Trademark Office (PTO) are of high quality. A series of roundtables recently convened by the PTO in Alexandria, Va.; Stanford University; and other locations around the country explored one of the most important tools for improving the quality of software patents and ensuring that only worthy patents are approved.
That tool arises from the unanimous 2014 Supreme Court decision in Alice Corp. v. CLS Bank International, which established that software patent claims that recite a financial arrangement or broadly describe a function performed “on a computer” or “on the internet” are not eligible to be patented. Before Alice, applicants were obtaining patents from the PTO that were not based on any technical contribution or innovation, often not even providing an explanation of how they expected to achieve a result beyond stating that it would be done “on a computer.” Case law and PTO practices had swung too far toward allowing these low-quality claims to remain unchallenged, and a course correction was needed.
So we’ve covered IBM, Google, and what about Microsoft? Well, Microsoft is in the same boat as IBM when it comes to software patents and its patents have just survived CAFC’s scrutiny, based on this new report that says:
Microsoft has survived an appeal against a lower court decision that it didn’t infringe patents belonging to Impulse Technology.
Yesterday, December 8, the US Court of Appeals for the Federal Circuit affirmed the ruling of the US District Court for the District of Delaware, granting Microsoft’s motion for summary judgment.
In 2011, Impulse sued Microsoft, alleging infringement of 15 claims of the asserted patents: US patent numbers 6,308,565; 6,430,997; 6,765,726; 6,876,496; 7,359,121; and 7,791,808.
Inverting the Narrative
Truth be said, large companies don’t mind the patent mess because they can afford to pay the legal fees and this whole mess harms small companies the most. Here is a 15-page PDF of a paper by Professor Lemley et al in which it’s said (by Patently-O) that “patent litigation outcomes vary according to the identity of the patentee” or to quote Patently-O‘s summary: “The sales market for patent rights continues to vex analysts – especially in terms of valuation. In their Patently-O Patent Law Journal article, Professor Mark Lemley teams up with the Richardson Oliver Group to provide some amount of further guidance.”
It’s no secret that there is gross discrimination in patent systems, even in the EPO.
Part of the patent microcosm, or pushers for software patents (Bilski Blog), chose to distort the narrative of software patents (for large businesses, in bulk) and instead went with this narrative which would have us read about the “little guys”:
From the beginning my application was rejected, and continues to be rejected, under Section 101, even though we have recently overcome all of the prior art rejections. As a result, I have become something of an accidental student of patent eligibility and as such was very interested in attending the USPTO’s Patent Subject Matter Eligibility Roundtable I on November 14, 2016. Prior to the roundtable, I had assumed that my application was something of an outlier, that there was something wrong with it and that was why it had been rejected. At the roundtable I learned that “it’s not me, it’s you” applies not just to exes but to the patent system as well.
The few speakers at the roundtable who did advocate on behalf of us “little guys” often mentioned how the “direct costs” negatively impacted micro-entities, focusing on the need for examiners to avoid using “blanket statements,” to be specific in their responses, and carefully ensure the law is being properly interpreted and applied on a case by case basis. As a solo entrepreneur, I couldn’t agree more with the need to “get it right the first time,” as this would substantially reduce direct costs for us. My impression is that the examiner’s first instinct is often to reject without any substantive reason, hoping we’ll simply abandon the process altogether, or better yet, pay the ever increasing, exorbitant fees (for me) involved in requests for continued examinations and the appeals process.
This thing which the USPTO called “roundtable” was just an echo chamber. See our article about it and then see this article from Scott Graham of The Recorder (behind paywall). To quote the outline: “A discussion Monday at Stanford University was an opportunity for big tech companies, entrepreneurs, bar associations and academics to hash out the impact of ‘Alice’ and other developments in patent eligibilty.”
This was cited by IBM’s Manny Schecter (IBM is still dissatisfied because there is no software patents certainty and IBM attacks small companies using software patents). There was “no software developer around the table,” Henrion told IBM’s Manny Schecter, “how broken is that?”
Well, this whole “roundtable” was nonsense, or an exercise in fake transparency, giving the illusion of public participation in decision-making while excluding the main stakeholders (who actually produce something).
“If you write code,” I told Manny in relation to this tweet of his, “maybe you’ll understand it’s mumbo-jumbo buzzwords” (he wrote “Abstract? Technological? Concrete? Practical application? Exactly. From #patent perspective these simply cannot be defined precisely.”)
Henrion added, “Tangible?”
All those silly words are so often used by non-developers who try to convince us developers that software patents are desirable.
The Trolls’ Lobby
Witness how Watchtroll’s site wants to crush patent reform and harm actual producers of software etc. The title says “Advice for the Trump Administration and New Congress: Protect Bayh-Dole and Restore the Patent System” and it’s more like the above pattern of lobbying, which we are seeing more of these days.
Not too long ago Watchtroll called reformers “Patent infringer lobby”, leading people in the patent microcosm to saying stuff like: “Patent infringer lobby pushes Trump to aggressively pursue “patent reform” https://lnkd.in/fasm8pZ Time to call out deliberate infringers.”
Well, time to call out Watchtroll who didn’t write any code, doesn’t know how programs work, yet lobbies for software patents.
“Nice bullshit spin on the issue,” wrote a technical person (Raphaël Jacquot) about the above. Henrion wrote, “restore software patents and patent trolling.”
Good for the patent microcosm after all, and we know at whose expense…
Speaking of trolls, Blumberg who used to work for for the world’s largest patent troll, Microsoft’s patent troll that’s connected to Ray Niro (who is now dead), is quoted by IAM as saying: “In our view, Germany is the new Eastern District of Texas. That’s the venue that gives us the most concern.”
Blumberg is now working in Lenovo, which is believed to have colluded with Microsoft to block GNU/Linux (they denied this after actually admitting this).
Concerns about Germany becoming another/new Eastern District of Texas are real because of the UPC ambitions, which will thankfully never reach London. Alexander Esslinger (a.k.a. Patently German) wrote about the above quote: “Really ? At least of owners of SEP’s it is not so easy to get an injunction in Germany based on interpretation of ECJ Huawei-ZTE…”
“Is that a bad thing,” I asked him. He later responded to that, but one must remember whose side he is on. He’s not interested in a sane patent system but a system from which he profits more. Like Bastian Best, who spreads misinformation (biased by omission; fails to mention those ~80% of CAFC cases that send software patents down the sewer), he wants more patent litigation in Germany so that he can profit from that. IAM is on the same side as them and it’s eager for everyone to celebrate patent trolling that’s coming from the Far East. Here is the latest example of that: “Barely a week after KAIST sued several major tech companies in what appeared to be the first ever patent infringement action initiated by an Asian university in the United States, another Korean educational institution has launched its own assertion campaign in the Northern Districty of California.”
Remember that these are non-producing entities that are funded by public money.
Citing Microsoft and its massive patent troll (Intellectual Ventures), IAM also pretends that lowering patent quality is a good thing:
Perhaps the most striking thing was how quickly some of China’s major tech companies have become sophisticated IP players. Xiaomi’s progress in particular has been remarkable and with former IV IP executive Paul Lin on board, the company has one of the most experienced operators in the local monetisation market.
Xiaomi’s deal with Microsoft, announced in May this year, was in the spotlight on day 1 as Lin joined the software giant’s Micky Minhas to dissect one of the leading IP-driven transactions of 2016. As part of that agreement Microsoft sold the Chinese company 1,500 patents, giving Xiaomi a much-needed boost to its portfolio as it weighs up expansion into the US. For all that conditions are widely seen to have deteriorated for many patent owners in the US, the deal shows that American assets will always remain a crucial part of any company’s IP strategy be it focused on freedom to operate or monetisation.
Xiaomi’s patent settlement with Microsoft was an attack on Linux and on Free software, as we explained at the time. Given China’s approach towards software patents (the opposite of what the US is doing), we’re not too shocked to see this happening, but that does not mean we have given up, either. █
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Summary: A $399 million judgment against Android devices from Samsung, with potential implications for other Android OEMs, is rejected by SCOTUS
Excellent news came through AP several hours ago: “Supreme Court throws out $399 million judgment against Samsung in company’s patent dispute with Apple over iPhone design.”
There will certainly be plenty of coverage about this, including quite a lot of rants from Apple advocacy sites. Apple lost a design/UI patent case. It has actually lost quite a few cases against Samsung by now. Many other patents in this domain will be generally lost too, by means of precedence (how many patents out there are no longer valid?).
Here is what Professor Crouch, who followed this case pretty closely, had to say:
In a unanimous opinion authored by Justice Sotomayor, the Supreme Court has reversed the Federal Circuit in this important design patent damages case. Although the case offers hope for Samsung and others adjudged of infringing design patents, it offers no clarity as to the rule of law.
There is also this bit of news that’s covered a week late and says:
Apple v. Ameranth: Federal Circuit Partially Reverses PTAB and Finds All Claims for Electronic Menus Unpatentable
On November 29, 2016, in Apple Inc. v. Ameranth, Inc. 15-1703, the Federal Circuit affirmed the Patent Trial and Appeal Board (PTAB) findings of unpatentable independent claims in a Covered Business Method (CBM) review and reversed findings of patentable dependent claims under 35 U.S.C. § 101. On appeal, the Federal Circuit agreed with Apple that there was sufficient evidence to support the finding that dependent claims 3, 6-9, 11 and 13-16 of Ameranth’s U.S. Patent No. 6,982,733 (‘733 patent) were unpatentable as describing insignificant post-solution activities. Despite Ameranth arguing for a substantial evidence standard of review, the Federal Circuit applied a de novo review standard in its reversal of the PTAB’s decision.
Things don’t look too promising for Apple in this CAFC case and another CAFC case, Ameranth, Inc. v. Agilsys, Inc., now gets covered in another site (it’s about PTAB). █
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“Agreements” mean patent settlements
Summary: A quick look at the past week’s news and clues about Microsoft’s (and its broad army of patent trolls) strategy for taxing Linux, or imposing bundling at zero cost (to Microsoft)
THE STATE of patent trolling in the US is pretty bad and to make matters worse China is now emulating the US system by patenting almost everything and harbouring patent trolls that use rubbish patents (not even with their own name on these).
One aggregator of patents (lots of rubbish in one big pool) that we wrote about before is RPX. It’s like a massive patent troll whose members include Microsoft. According to this blog post from IAM, changes are afoot as a Senior Vice-President jumps ship:
Dan McCurdy, senior vice-president at RPX with responsibility for data and technology solutions, is to leave the defensive patent aggregator to become a partner with strategic IP consultancy Quatela Lynch. He will join on 1st January 2017, when its name will also change to Quatela Lynch McCurdy. The move comes just weeks after Laura Quatela, who founded the firm with former Kodak chief IP officer Tim Lynch in 2014, was named as the new chief legal officer of Lenovo, sitting on the executive committee and reporting directly to its CEO. Quatela will remain the majority shareholder of Quatela Lynch McCurdy and will act as a special adviser to the firm on non-conflicting projects.
It is meanwhile worth reminding readers that Intellectual Ventures, Microsoft’s biggest patent troll (with thousands of satellite firms of its own), is imploding, however this extortion and gate-keeping tool, which habitually attacks Linux, still plays a role of in the operations of Linux-based devices (which it taxes).
See this new article that says “a new intellectual property agreement gives Netflix the opportunity to license TiVo’s patent portfolios, as well as patents for over-the-top (OTT) offerings, which are held by Intellectual Ventures.”
How much of that money flows into the pockets of Microsoft and Bill Gates (a stakeholder in the troll at a personal capacity)? It’s hard to tell, but as we noted here before, Microsoft loves Linux patent tax. With China going crazy over patents, Microsoft recently managed to blackmail Xiaomi over its Linux products (we believe that only Huawei remains untainted by this Microsoft tax) and looking into Microsoft’s patent settlement with Xiaomi (they don’t call it a “settlement”, but it is one), IAM writes:
In the opening plenary of the day, featuring Xiaomi’s Paul Lin and Microsoft’s Micky Minhas, the ground-breaking deal announced in May between the two companies was, not surprisingly, the first topic for discussion. IP was a major driver of the agreement, as the Chinese smartphone maker acquired 1,500 patents from the software giant; but the transaction was premised on a much broader collaboration between the pair, with Microsoft applications now set to be included on Xiaomi mobile devices. Minhas, recently appointed as Microsoft’s head of licensing, revealed that the deal had taken a year to unfold after a senior Xiaomi executive had expressed the Chinese’s company’s desire to grow its IP portfolio. He added that one of the key drivers in making it all happen was the relationship between some of the key executives involved in the negotiations. Minhas, Microsoft head of business development Peggy Johnson and Xiaomi’s head of strategic cooperation Wang Xiang, all previously worked at Qualcomm, so there was a level of familiarity; while a face to face meeting between the respective company CEOs in March 2016 largely resolved outstanding issues and advanced the negotiation to the point where it became a matter of getting the contractual terms refined. But what really mattered more than anything, it seems, is that both companies had taken the time to understand each other’s perspectives and needs, and that both were fully focused on finding a win-win outcome. Goodwill, rather than good friendships, are the key to successful IP deal-making. Though, of course, it also helps to get along.
The part about “Microsoft applications now set to be included on Xiaomi mobile devices,” as we explained early in the year, is where patent extortion against Linux comes into play. The ‘new’ Microsoft just tries hard to hide what it does, either attacking Linux through trolls or compelling OEMs to ‘pay’ Microsoft for Linux/Android by shoving Microsoft malware into them (sucking up user data and sending it to Microsoft, never mind vendor lock-in through proprietary formats and code).
Don’t believe Microsoft’s claims that it has changed or that it “loves Linux”. It’s still the same old malicious company. It just learned how to lie/mislead better.
Quite a few GNU/Linux firms and even the Linux Foundation are now being paid by Microsoft (like silence money), so don’t expect them to speak out against this injustice. █
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Summary: Microsoft’s continued fascination with and participation in the effort to undermine Alice so as to make software patents, which the company uses to blackmail GNU/Linux vendors, widely acceptable and applicable again
OUR longest article yesterday focused on poor advice — either deliberately bad advice or simply influenced by the echo chamber — regarding software patents. The patent microcosm is in growing denial over US courts invalidating software patents granted by the USPTO using Alice, or even patents invalided by PTAB (in much larger numbers).
Some days ago we saw this report from the 2016 International Women’s Leadership Forum, courtesy of patent maximalists.
As can be expected, it was somewhat of an echo chamber not in the gender sense but in the agenda sense. Microsoft was there too and here is the relevant part:
The first practical step, said Julie Kane Akhter of Microsoft, is to learn from cases where the patent has been upheld, such as Enfish, Bascom and Planet Blue.
“In the Enfish patent, for example, they were actually improving the operation of the computer itself,” she stressed. Lessons from the Enfish decision included: the specification was really important; consider identifying the technical problem in the specification; and avoid being too high level in the claims.
She said Enfish provides several practical strategies for applicants: utilise the interview; talk about the technical improvement; and cite Enfish! Lessons from Bascom are: consider discussing prior solutions and their drawbacks; highlight lack of preemption; and keep drafting software applications! And tips from Planet Blue are: argue the examiner has determined the idea in the claims at too high a level; argue the claim is specific enough and improves the technology; and draft claims with realistic scope and technical effect.
For those who forgot or have not been paying attention, Enfish ended up as a pro-software patents caselaw and Microsoft pays David Kappos, former Director of the USPTO, to lobby along those lines. He keeps trying to eliminate Alice (a Supreme Court case) as caselaw. Various patent law firms too still lick their lips over software patents and try to undermine Alice, hoping to ‘rewrite’ it with lower-level cases such as Enfish or Bascom.
On November 30th Dennis Crouch wrote about Microsoft v Enfish (not the other way around), nothing that it “Turns Out the Claims Are Obvious”. This is a PTAB case:
After instituting review, the Patent Trial and Appeal Board found some of the patent claims invalid as anticipated/obvious. On appeal, PTAB factual findings are generally given deference but legal conclusions are reviewed without deference. After reviewing the claim construction and rejections, the Federal Circuit affirmed in a non-precedential decision.
It’s no secret that Microsoft’s software patents are rubbish; their low quality was the subject of many old articles here. Moreover, the company’s selective and hypocritical views on software patents were noted here way back in the i4i days. In another new article by Dennis Crouch he says that “PTAB judges are so well trained in the complexity of technology and patent law,” which is probably something that most patent courts lack.
“It’s no secret that Microsoft’s software patents are rubbish; their low quality was the subject of many old articles here.”Microsoft is still promoting software patents and in the words of MIP: “Great first panel at #ipwomen Forum discussing practical steps for software patents post-Alice & overcoming S101 objections @MicrosoftIP pic.twitter.com/cGWe9qrGPh” (Microsoft hates Linux too, except when it taxes it with patents, in which case it’s more tolerable to “MicrosoftIP”, the troll entity of the corporation). The people who covertly extort and blackmail Linux on behalf of Microsoft — all this while shaping patent law for the company’s bottom line — are also mentioned here. To quote: “It’s the @MicrosoftIP networking break at the #ipwomen Forum. Time to make some new contacts! pic.twitter.com/YwajQuWadV”
To be fair, Microsoft is part of a broader movement here. But it’s role is notable. Microsoft is a key player in this.
The following crossposted article [1, 2], for instance, tries to leave Alice behind. Another crossposted article [1, 2], this one titled “No Abstract Idea Where Invention Cannot be “Practiced in the Abstract”,” is also composed by the patent microcosm and the aim is similar. All the above entities generally wish to restore the patentability of software in the US. Also see the new article titled “The Current State of Computer Software Patentability” (behind paywall). What they all have in common is dissatisfaction with the new status quo — one wherein software is barely patent-eligible, or at least barely defensible in the patent sense in the courts. Patent lawyers pretend to care for inventors, but they just want to undermine Alice to patent software without barriers. See this article of one law firm; what they mean by “weather” does not take into account the risk of one getting sued but the chance of one to obtain a patent. Very one-sided a take, as usual. Software developers should stop patenting software as it’s a waste of time/money, even if such patents can sometimes be granted (only to be lost after a long and expensive legal battles). New PTAB cases on patents, such as this one [1, 2] (on reasonable diligence), remind us that sometimes patents will be invalidated even before they reach the court, i.e. even without the patent holders choosing to assert these offensively. Is is worth the risk? Patent lawyers can brag about “privilege” all they want (see new examples [1, 2]), but all they are after is a universal tax on software, extracted from patents nobody needs or wants. In the case of Free software such as Linux, this tax prevents redistribution, so it is inherently incompatible and antithetical.
“Has CCIA flipped sides again, as it previously did after Microsoft had paid it millions of dollars?”Much to our surprise, Matt Levy (CCIA) has decided to give articles to pro-software patents sites — a departure from his usual tune. He gives false hope to software patents hopefuls like Watchtroll readers and also IAM readers. Has CCIA flipped sides again, as it previously did after Microsoft had paid it millions of dollars? █
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Summary: An update on Intellectual Ventures and Unwired Planet, whose operations pose a growing problem for Free software and Linux-based products (e.g. Android)
Patent trolls, as we noted in the previous post, are a growing problem in China and UPC in Europe can also make them a growing problem in Europe, basically emulating the mistakes of the USPTO.
“”Working with” as IAM refers to it basically means agreeing to cooperate with an extortionist.”IP Watch, speaking to LOT Network’s Ken Seddon, mentioned the problems associated with trolls on the first of the month, taking stock of the type of trolls that FTC spoke about (against) a couple of months ago. To quote: “Patent assertion entity (PAE) activity has skyrocketed in the past decade and much discussion has occurred around what to do in response to patent holders whose strategy is more focused on legal battles than innovating. One notable group has risen up to bring together global companies to address the PAE issue with a novel sharing approach. In an interview with Intellectual Property Watch, Ken Seddon, CEO and President of LOT Network, talks about the group’s rapid growth, what’s coming next, and how not to bring a squirt gun to a nuclear fight. ”
In our previous post we showed that Intellectual Ventures had expanded in China. Well, IAM continues to groom this troll, the world’s largest patent troll, which is Microsoft’s patent troll. See this promotional article and another new article which euphemistically calls patent extortion “NPEs” “monetisation”. “Working with” as IAM refers to it basically means agreeing to cooperate with an extortionist. IAM makes patent trolls look so benign that it’s appalling if not disgusting. That’s what happens when the patent trolls pay IAM…
“IAM makes patent trolls look so benign that it’s appalling if not disgusting. That’s what happens when the patent trolls pay IAM…”In other news, a network of sites published an article titled “How Big Law and Big Banks Took the Fight to Intellectual Ventures” [1,2], reminding us that Intellectual Ventures is very malicious and parasitic.
Speaking of Microsoft’s biggest patent troll, watch what Microsoft does with Nokia‘s patents other than extorting Android OEMs and passing patents to patent trolls like those that fund IAM. To quote the new article: “Under the terms of the agreement, HMD got exclusive rights to use the Nokia brand on mobile phones and tablets globally (except Japan) for the next 10 years, standard essential cellular patent licenses, software for feature phones…”
Those “standard essential cellular patent licenses” are among the reasons Microsoft ‘stole’ Nokia and now taxes a lot of the mobile industry using patents, even without selling any phones of its own. Not only Nokia’s patents serve to accomplish this goal. Ericsson’s patents too have been weaponised and Ericsson essentially created patent trolls that even operate in Europe (London).
“Ericsson’s patents too have been weaponised and Ericsson essentially created patent trolls that even operate in Europe (London).”Recently, Ericsson’s most prominent patent troll (Unwired Planet) did some damage even to PTAB, which has been responsible for intercepting a great number of software patents in the US. We wrote quite a lot about it last weekend and for those who don’t remember, the Court of Appeals for the Federal Circuit (CAFC) ruled to weaken PTAB. More coverage on CAFC coming out in favour of this patent troll of Ericsson — and indirectly against PTAB scope of operation — came from legal-centric sites [1, 2] at the beginning of last week.
Here in Europe, there may be some good news as Florian Müller, who used to promote/defend FRAND back in the days (it’s similar or related to standard essential patents), says that Germany pushes back against FRAND, citing antitrust reasons. To quote:
There was a time when I spent most Fridays–and occasionally also a Tuesday–in Mannheim (and on trains from Munich to Mannheim and back) to watch numerous smartphone patent trials. After coming to terms with a prohibition on making Internet connections from the courtroom (which prevented me from live-tweeting about the proceedings), I generally enjoyed my visits. I admired the depth of the judges’ technical understanding and their effective trial management (authoritative, but not authoritarian; highly facts-focused, but with a great sense of humor that I know other trial watchers also appreciated). There are, however, two notable exceptions from my fond memories: the incredibly dry air in the courtrooms and, more than anything else, the Mannheim judges’ take on what the obligation to license standard-essential patents on FRAND terms should mean for patent infringement remedies.
We certainly hope that these congregations of trolls, including those that try to tax every phone running Android, will be pushed back by courts. What we have here is a network of few large companies operating through patent trolls (i.e. resistant to lawsuits themselves), hoping to tax everything and everyone. Nobody benefits, except few rich people at the top. █
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