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08.25.16

Creative Technology, Now Operating in ‘Patent Troll’ Mode, Shot Down by the ITC; Jawbone Too Shot Down

Posted in America, GNU/Linux, Google, Patents at 12:42 pm by Dr. Roy Schestowitz

Has the U.S. International Trade Commission finally become less trigged-happy when it comes to embargoes?

BLASTING RIVALS WITH PATENTS
By Source (WP:NFCC#4), Fair use of copyrighted material in the context of Sound Blaster

Summary: Some good news from the U.S. International Trade Commission (ITC), which may have put an end to Creative’s new war on Android (using old patents)

OVER THE years we have not had much (or anything) good to say about the ITC. It seemed nationalistic and unreasonable. Based on allegation or suspicion alone it could suspend operations or businesses in the United States, especially when these were foreign (non-US).

Earlier this summer we wrote about Creative Technology, based in Singapore, going after Android OEMs with massive patent demands, having been ‘endorsed’ by Apple payments. Well, it turns out Apple should never have paid them in the first place. Their patents are junk.

“When once-famous brands like Creative and BlackBerry become nothing but a pile of patents there’s a lot of trouble for FOSS such as Android, which is built on top of Linux. ““First spotted by Law360,” an Apple advocacy site wrote, “Administrative Law Judge David Shaw of the U.S. Patent and Trade Office (USPTO) has ruled that Creative Technology’s patent that addresses music library navigation and sorting in the iPod, and now iOS overall, was too abstract to be eligible for a patent.”

It also said: “A patent that Creative Technologies used in the beginning of the century against the iPod forcing a $100 million payout by Apple has been invalidated, saving the rest of the smartphone industry from costly settlements and protracted legal battles.”

According to this, “Apple paid Creative a single license fee of $100 million to use Creative’s software interface patent,” which is certainly a lot of money, probably enough to convince Creative to prey on Android OEMs that can barely afford it (and might prefer to settle out of court). The original report said “U.S. International Trade Commission judge handed smartphone makers a win Friday, ruling that a media player patent that netted a Singapore software company a $100 million settlement with Apple is invalid under Alice, in what appears to be the first time an ITC investigation has been terminated during its early review program.”

This is great news and a huge relief to some Android OEMs. On the face of it, ITC made a determination on another case, as reported by MIP. “In a first for its 100-day pilot programme, the ITC has invalidated a patent involved in a $100m iPod-related settlement a decade ago. In a separate ruling, the commission has ruled that Fitbit did not misappropriate Jawbone’ trade secrets,” says the summary. We wrote a great deal about the latter case too. It’s now a two-way battle. They would both be better off just focusing on development, not bickering over patents. The latter case was also mentioned in corporate media this week (albeit very briefly). To quote CNBC: “A U.S. International Trade Commission ruled Fitbit did not steal rival Jawbone’s trade secrets. Jawbone accused Fitbit of infringing six patents and luring away employees to with confidential data about Jawbone’s business.”

The behaviour of Creative without a doubt was becoming a problem for Android and by extension a threat to Linux, so the former of the two aforementioned cases is important. BlackBerry’s transition into ‘patent troll’ was also mentioned here recently and it’s receiving unwanted media attention from a trolls expert. “BlackBerry’s new round of patent lawsuits targets BLU—and Android,” says the headline. Here is an except:

BlackBerry has filed three patent infringement lawsuits in as many weeks. The struggling phone company’s offensive barrage began with a case filed against IP telephony company Avaya on July 27. Last week, BlackBerry filed two lawsuits against budget cell phone maker BLU’s products, alleging that BLU infringes a whopping 15 patents.

The dual lawsuits against BLU suggest that BlackBerry’s new turn toward patent licensing isn’t going to be a one-off event, but rather a more extended campaign. In a May earnings call, BlackBerry CEO John Chen told investors he’s in a “patent licensing mode” and is hoping to monetize his company’s 38,000 patents.

The new lawsuits also suggest that BlackBerry has patents it believes describe Android features, so don’t be surprised if more Android phones are in the crosshairs soon. One of the two cases filed last week accuses user-interface features that are more about Android than they are about BLU. A small manufacturer like BLU could make for a good “test case” against a maker of Android phones.

When once-famous brands like Creative and BlackBerry become nothing but a pile of patents there’s a lot of trouble for FOSS such as Android, which is built on top of Linux. Software patents need to end and patent sanity assured. Customers only lose when products are intentionally made more primitive due to fear of litigation. A lot of them are incredibly overpriced, too.

08.23.16

The Linux Foundation Gives Microsoft (Paid-for) Keynote Position While Microsoft Extorts (With Patents) Lenovo and Motorola Over Linux Use

Posted in GNU/Linux, Google, Microsoft, Patents at 4:45 am by Dr. Roy Schestowitz

Another outrageous patent settlement that requires Microsoft bundling, but the Linux Foundation is too bribed by Microsoft to actually antagonise it any longer

“I’ve killed at least two Mac conferences. [...] by injecting Microsoft content into the conference, the conference got shut down. The guy who ran it said, why am I doing this?”

Microsoft's chief evangelist

Summary: This morning’s reminder that Nadella is just another Ballmer (with a different face); Motorola and Lenovo surrender to Microsoft’s patent demands and will soon put Microsoft spyware/malware on their Linux-powered products to avert costly legal battles

MICROSOFT is not a friend. It’s a predator. It just changed the logo, the PR, and the CEO. It also started paying more and more money to its critics, including Linux OEMs, to keep them quiet. “Microsoft Keynoting LinuxCon,” said a headline from Phoronix yesterday. What it failed to say is that Microsoft actually pays the Linux Foundation to infiltrate it. This has gone on for a while. Earlier this month the Linux Foundation posted a Microsoft puff piece paid for by Microsoft. We mentioned it this worrisome development the other day (to their credit, the Linux Foundation did add a disclosure to this). The payment was made under the pretense of supporting a conference (i.e. interjecting Microsoft stuff into it).

Is Microsoft becoming more open? No, it’s spying more and more. All the core products are proprietary. What is PowerShell all about? Openwashing. “Embrace and extend” of wget and curl (soon to have Mono as well) while claiming to be “opening up” a part of Windows, which is proprietary spyware that defies law (and had Microsoft lose cases in court).

But never mind all the above. Has Microsoft actually made peace with GNU/Linux? Hardly. Au contraire. Microsoft is still attacking GNU/Linux. If “Microsoft loves Linux,” then it sure shows it like an abusive spouse that beats up the wife (to borrow the analogy from Simon Phipps). Microsoft extorts Linux again, but it has bamboozled the media like it first did when it attacked Acer. It did this several times more thereafter and we covered it earlier this year, e.g. in:

Remember what happened to Samsung when it said “No!”

Microsoft took it to court and Samsung later settled with bundling (early 2015). That’s like racketeering, but Microsoft is far too politically-connected to face charges under the RICO Act.

In the past, Microsoft was offering payments for bundling; right now, instead, it’s a patent settlement. A patent settlement over what? Linux. The media is calling it all sorts of things other than patent settlement (after threats), which is what it really is. Here is the coverage we see right now (misleading):

The following two articles suggest that Motorola too (already sued by Microsoft over patents) is a victim of this strategy:

All that Microsoft is trying to achieve here is control over Linux-powered mobile (or Android) users, e.g. using Skype malware. People who actually think that Microsoft has changed need to reassess their trust in corporate media (much of the above is Microsoft-connected media and Microsoft advocacy sites that help mislead other media).

08.22.16

Apple’s Patent Wars Against Android/Linux Make Patent Trolls Stronger

Posted in Apple, Courtroom, GNU/Linux, Google, Patents, Samsung at 6:53 am by Dr. Roy Schestowitz

Rounded corners? Apple’s invention!

UK power socket

Summary: Apple’s insistence that designs should be patentable could prove to be collectively expensive, as patent trolls would then use a possible SCOTUS nod to launch litigation campaigns

TROLLS, or patent sharks, typically use software patents, but what if they also had design patents at their disposal?

Apple‘s war on Android, which manifested itself in a now-settled case against HTC and later in a long patent war against Samsung, may prove to be counterproductive now that Apple attracts patent trolls like VirnetX, to which it might be forced to pay billions of dollars. A pro-software patents site now says that “Apple will also be an even richer target for the new breed of design patent trolls” if it wins its case against Samsung/Android (over design patents). To quote this new article:

On October 11, 2016, the Supreme Court will hear Samsung’s appeal of the Federal Circuit’s affirmation of the jury’s damage award to Apple of Samsung’s “total profits” on sales of the infringing smartphones even though it had only infringed Apple’s design of the iPhone’s outer shell. In upholding the “total profits” award, the Federal Circuit determined that it was bound to uphold the jury’s award by the “explicit” and “clear” statutory language relating to design patent infringement damages.

[...]

The importance of the Supreme Court’s ultimate ruling here is underscored by the numerous amicus curiae briefs filed (27 at last count). With over 205 billion in cash reserves at last count, Apple certainly doesn’t “need” the full nine-figure damage award. And, given the far reaching implications of this case, Apple may live to regret its aggressive pursuit of “total profits” for design patent infringement by finding itself battling design patent holders seeking to recover Apple’s total device profits for infringement of even a minor design feature. Apple will also be an even richer target for the new breed of design patent trolls already surfacing based, at least in part, on Apple’s success in this case. Clearly it is time for Congress to step in and amend Section 289 to add apportionment language.

No wonder technology companies are overwhelmingly supportive of Samsung in this case — a high-profile case over design patents.

In other news, Vera Ranieri from the EFF has this new update about one of their high-profile cases against patent trolls. Ranieri writes:

There has been significant activity relating to cases and patent infringement claims made by Shipping & Transit, LLC, formerly known as ArrivalStar. Shipping & Transit, who we’ve written about on numerous occasions, is currently one of the most prolific patent trolls in the country. Lex Machina data indicates that, since January 1, 2016, Shipping & Transit has been named in almost 100 cases. This post provides an update on some of the most important developments in these cases.

In many Shipping & Transit cases, Shipping & Transit has alleged that retailers allowing their customers to track packages sent by USPS infringe various claims of patents owned by Shipping & Transit, despite previously suing (and settling with) USPS. EFF represents a company that Shipping & Transit accused of infringing four patents.

The above is a timely and good example. It demonstrates not just of the harms of patent trolls but also the harms of software patents, which in the large majority of cases rely on them. If Apple made design patents stronger, with affirmation from the Supreme Court (SCOTUS), the damage would be enormous.

Apple is on the wrong side of history.

08.12.16

In Its War Against Android/Linux, Apple Supported by Non-Producing/Non-Practicing Parasites, Whereas Technology Companies Support the Android OEM

Posted in Apple, GNU/Linux, Google, Samsung at 5:45 pm by Dr. Roy Schestowitz

Summary: Apple’s frivolous lawsuits against Android OEMs win the support not of technology companies (these actually oppose Apple’s actions) but of some “non-tech companies, high-profile designers and intellectual property associations”

A few days ago we mentioned Florian Müller‘s latest article on Samsung v Apple (or vice versa) — an article which he later corrected for errors (amici overlooked or simply not yet listed at the time). It turns out that Müller wasn’t far from the truth, however, as technology companies pretty much reject Apple’s position. Müller has since then continued to highlight Samsung matters such as this likely new IPO or Google’s antitrust worries in Korea [1, 2], the home of Samsung. “The South Korean government has delayed a decision on whether it will accept Google’s request to export South Korea’s detailed map data,” one of those articles says. “Less than 2 months to go until the Samsung v. Apple Supreme Court hearing on design patent damages,” he wrote about the case which involves patents granted by the USPTO in spite of their low quality (the EPO made similar mistakes under Battistelli).

“It turns out that Müller wasn’t far from the truth, however, as technology companies pretty much reject Apple’s position.”Not too long afterwards MIP published this article that says: “Ahead of a showdown over design patents at the Supreme Court in October, Samsung has received more support from US technology companies whereas Apple has received the backing of non-tech companies, high-profile designers and intellectual property associations” (i.e. not quite producing companies). Patently-O wrote about this as well, noting that Apple’s “visual design is critically important in the sales of complex products.” That’s just branding and hype (or compelling marketing), i.e. the bread and butter of Apple. Patent-granting should be a scientific process, entirely disconnected from hype or brand recognition.

08.09.16

The Problem With Overpatenting: The Google Example

Posted in Apple, Google, Oracle, Patents at 11:31 am by Dr. Roy Schestowitz

Summary: Patents, especially software patents, continue to pose a threat to progress where innovation is a lot faster than in most scientific domains

SEVERAL years ago I developed software designed to help cars navigate. It was a research project funded by the EU. I did not pursue patents, nor did I look up any. In the USPTO — unlike in the EPO — ‘pure’ software patents exist (for now at least) and there are software patents on driving, not just on miniature computing systems that distract from the task of actually driving (the buzzword these days is “infotainment”).

“In our daily links we’ve recently included many news items about the dangers associated with autonomous cars (bugs, back doors, lack of human judgment and no communication — verbal or body gestures — with other drivers).”According to this news, “Google Self-Driving Car Director Chris Urmson Hits Exit Ramp To Pursue Other Projects,” which says a lot about market prospects. In our daily links we’ve recently included many news items about the dangers associated with autonomous cars (bugs, back doors, lack of human judgment and no communication — verbal or body gestures — with other drivers). If Google is having issues with this endeavor (as does Tesla reportedly), who would pursue moving from theory (or even from patents) to reality/practice? My project’s supervisor at the time worked part time for Google (primarily a university professor) and he too wasn’t optimistic about the work. It’s just a very hard task, not just because of lack of patents or anything like this. For similar reasons, voting should not be done by machines (there is extensive literature about the drawbacks) and patent examination cannot be done by machines (no matter what Battistelli and his clueless circle believe or hear from the opportunistic private sector looking for outsourcing).

According to a pro-software patents author, patents on “infotainment” are being pursued not so much by Google and Apple but by automakers. To quote one bit:

According to market research reports, the market for in-car infotainment systems is expected to rise from $14.4 billion in 2016 up to $35.2 billion in 2020.

Putting aside the fact that drivers should focus on driving rather than phonecalls and Internet browsing, it’s not entirely accurate to say that Google stays out of it because Google is pursing a lot of patents on things inside the car, including the driver (which Google hopes to replace with a machine). Cars that are entirely autonomous may be a distant dream, but partial mechanisation — like vocal/visual assistance while parking — is already here and there is nothing innovative about it (it’s actually extremely simple to implement).

“Cars that are entirely autonomous may be a distant dream, but partial mechanisation — like vocal/visual assistance while parking — is already here and there is nothing innovative about it (it’s actually extremely simple to implement).”Speaking of Google, in this new article Florian Müller says that “Google’s integration of Android into Chrome makes a third Android-Java copyright trial 100% inevitable,” even though APIs are not copyrightable (there was a ruling on that a few months back, but there were also patents thrown into the mix). He told me “[i]t’s not about ARC but about the full integration of the Android Marshmallow APIs into Chrome.” Well, as long as there is no copyright on APIs (as the latest judgment acknowledged), Oracle would just be wasting its money and become even less popular.

Regarding Apple-Android/Google (or Samsung being one OEM of several) disputes, Müller didn’t imagine that “Apple would entirely fail to garner support from companies” in its patent wars using design patents, but he later corrected his article and said: “An earlier version of this post was based on the (false) assumption that last week’s widely-reported amicus brief by 111 designers and design educators was the only amicus brief supporting Apple. This misperception was due to the delay with which both the court’s own website and the SCOTUSblog get updated. Actually, a total of 10 briefs were filed in support of Apple. Furthermore, the first version of this post noted an “artsy font” used on the title page of the designers’ brief. However, that font was only used in the version published on Apple’s website.” (links in the article)

These petty patent wars between Apple and Android OEMs are clearly far from over. Apple is losing market share to Android pretty rapidly, so it hopes to simply tax Android rather than beat it (artificially raising the price of Android, henceforth becoming a little more competitive). Well, such is the legacy of dumb patents on every stupid thing. Battistelli has proven to be totally clueless about Apple's patents at the EPO (these were found invalid in the courts after they had been granted by the Office).

07.26.16

Microsoft Says It Loves Linux, But Its Anti-Linux Patent Trolls Are Still Around and Active

Posted in GNU/Linux, Google, Microsoft, Patents at 3:26 pm by Dr. Roy Schestowitz

Rockstar Consortium

Summary: Highlighting just two of the many entities that Microsoft (and partners) use in order to induce additional costs on Free (as in freedom) software

AN article from exactly 5 years ago spoke about Intellectual Ventures, Microsoft’s largest patent troll. To quote the outline from BoingBoing: “NPR’s Planet Money looks at Intellectual Ventures, the patent-exploitation firm started by former Microsoft CTO Nathan Myhrvold. Intellectual Ventures presents itself as a firm that goes to bat for inventors, buying up their patents with the intention of getting big guys who abuse them to pay up. But the reality discovered by Planet Money is very different: Intellectual Ventures doesn’t put up very many compelling reference customers for their “protecting and enriching inventors” mandate, but there are examples of patents being sold on again to out-and-out trolls who make nothing but lawsuits, using shaky patents to attack big and small firms and extract rent from them. It appears there’s even a town in Texas where empty office buildings house the “headquarters” of shell companies who buy poor-quality patents from distressed companies and get big judgements from a sympathetic local court. Overall, Planet Money paints a picture of software patent aggregators like IV as parasitic bullies who use their enormous patent portfolios to intimidate other firms into paying fees that end up being incorporated into the prices that you and I pay when we buy goods and services.”

Well, Intellectual Ventures is still being treated so favourably by IAM, which receives money from patent trolls and sets up events for them. Today it said that “a slowdown in buying activity at Intellectual Ventures (IV) has been highlighted as having had a substantial impact on Transpacific’s income.”

Layoffs at Intellectual Ventures have been mentioned over the past couple of years, but as Intellectual Ventures is not Microsoft’s only weapon we can look further into another new IAM article which says: “Recently published research has shed new light on the strategies employed by the world’s three leading sovereign patent funds (SPFs) – while discussion about the creation of similar entities in other countries appears to be picking up.”

Towards the end it says that “$4.5 billion eventually paid for it by the Rockstar consortium,” which is a Microsoft-connected patent troll we wrote about in past years. This is the troll which already targets Android/Linux with lawsuits [1, 2, 3, 4], just as Intellectual Ventures did (albeit less directly).

07.17.16

Microsoft and Its Patent Minions at Nokia Still Have Patent Stacking Ambitions Against Android/Linux OEMs

Posted in Free/Libre Software, GNU/Linux, Google, Microsoft, Patents, RAND at 12:35 pm by Dr. Roy Schestowitz

The role of Ericsson and the EPO’s PR agency is mentioned as well

Calculator for tax

Summary: Weaponisation of European companies for the sake of artificial elevation of prices (patent taxes) a growing issue for Free/Open Source software (FOSS) and those behind it are circulating money among themselves not for betterment of products but for the crippling of FOSS contenders

THE long if not endless war waged by Microsoft against GNU/Linux is far from over. This past week, e.g. in our daily links, we gave several examples of the latest assaults by Microsoft (Android antitrust, Linux booting restrictions, lobbying against freedom-respecting policies and more), aside from the patent angle. Microsoft sure knows what it’s doing and if Microsoft succeeds, Linux-powered products will lose their broad appeal due to removed (thanks to legal threats) features and artificially-elevated prices. In this post we shall focus on the patent aspects alone, as we so typically do in order to keep things simpler.

“Microsoft sure knows what it’s doing and if Microsoft succeeds, Linux-powered products will lose their broad appeal due to removed (thanks to legal threats) features and artificially-elevated prices.”Let’s start with the Microsoft-friendly advocacy site, IAM ‘magazine’. IAM’s innuendo-filled focus on China’s patent activity as of late [1, 2] finally culminates in China’s “misuse of competition law for protectionist policies,” as if the West never ever does this (it’s certainly the norm at the USPTO and ITC). IAM wants to make China’s system (patents, courts etc.) look unfair and unjust, as it did the other day too. China is apparently very mean because there’s bias there that’s hardly unique to China. Huawei is the one major Android OEM that Microsoft never managed to blackmail using patents (it reportedly did try over the years) and IAM now says that “Huawei attracts flak from Nokia, while adversary Samsung signs major deal with the Finnish company” (good cop, bad cop). It is obviously a loaded headline and IAM does not tell readers that Nokia’s patent troll, MOSAID (now Conversant), is paying IAM. What a farce of a ‘news’ site. MOSAID (fed with Nokia patents at Microsoft’s instruction) can be viewed as somewhat of an extension of these entities and after Microsoft effectively hijacked Nokia it’s taxing Google/Android (hence Linux) in a royalty stacking fashion. This happens right now not only in the Western world but also in Asia, albeit Huawei has been one of the very few exceptions (the Chinese government, which is connected to it, seems to have protected it). “Here’s Why Nokia Is About To Get More Money Out Of Its Patents” is a new article from Fortune (writing a lot about patents so far this month) which reminds us that Microsoft essentially turned Nokia into a patent aggressor. Put another way, Microsoft made Nokia yet another one of its (many) patent trolls that are openly against Android and Linux. “I booked http://nokiaplanp.com,” wrote Benjamin Henrion, but that was “years ago, I was right.” The P stands for Patents and it happened around the time people were making jokes about Nokia’s plans under Microsoft’s mole, Elop (there were nearly a dozen such plans with a different alphabetic letter for each).

People are kindly asked to remember what Microsoft did to Nokia as revisionism about it is quite routine nowadays. Not only Nokia engages in such behaviour; Ericsson does this too and it goes as far as south Asia, e.g. India. European patent trolls come to India even if there are no software patents in India and virtually no patent trolls either, as we mentioned here before. Well, Micromax was last mentioned here a couple of months ago in relation to patent trolls, primarily Ericsson’s (the equivalent of MOSAID/Conversant to Nokia) and here is a new blog post about it:

Ericsson has been going all out to enforce its Standard Essentials Patents (SEP) against several mobile phone companies, such as Micromax, Intex and Lava, among others, who are primarily selling mobile phones in India. The outcome of these law suits will no doubt play a significant role in defining the future of licensing and enforcement of SEP in India.

The latest in these law suits is an interim judgement by The High Court of Delhi in the matter between TELEFONKTIEBOLAGET LM ERICSSON (Ericsson) and LAVA INTERNATIONAL LTD (Lava). The interim judgement is in favour of Ericsson. More importantly, the judgement deals with various aspects of licensing and enforcement of SEP.

Ericsson keeps 'hiding' behind proxies that are patent trolls in order to shake down practicing companies. It’s hardly even covert like Microsoft’s scheme. Everyone knows that Ericsson is doing this. Standard-essential patents (SEPs) are used here (Nokia has many of these too) and speaking of which, the Kat who is the most pro-software patents (based on years of posting history) wrote about the EPO's PR firm the other day, noting its take on SEP holders. “The final speaker was Mark Bezant from FTI consulting,” she wrote. “He mentioned that he is amongst the FRAND experts in the pending UK case of Unwired Planet v Samsung and Huawei [last reported by IPKat here]. He noted the two key issues in FRAND disputes: (a) the obligations placed on the SEP holders, and (b) the appropriate level of royalty rates. After reminding the audience of some of the methods discussed by Garreth Wong, he mentioned particular issues that arise in practice, such as having to rely on outdated licences or inherently complicated agreements. With respect to the incremental method of calculating royalties, he noted the difficulty in understanding the exact value a single patent has added to a standard. The most common approach, he explained, is looking at established comparable rates and matching them to the situation at hand. Mr Bezant concluded that one must establish a number of factors before assessing whether a licence is FRAND, such as the validity of the patents, the number of declared essential patents, the number of essential patents confirmed by a court, and the qualitative assessment performed by experts on the patents.”

“Remember that there are practically no workarounds for SEPs (by definition) and FRAND is not compatible with FOSS.”It’s rather curious to see Battistelli’s PR firm (at the expense of the EPO) promoting a software patents loophole and patent aggression. Then again, they also promote the UPC and pay IAM, which incidentally gets paid by patent trolls also. It is a hostile world out there and it makes life hard for FOSS proponents. Remember that there are practically no workarounds for SEPs (by definition) and FRAND is not compatible with FOSS.

06.12.16

Samsung’s Patent Cases Matter to Design Patents (Scope), to Android, and by Extension to GNU/Linux

Posted in Apple, Corel, GNU/Linux, Google, Microsoft, Patents, Samsung at 5:56 pm by Dr. Roy Schestowitz

Samsung has the power to put an end to a controversial type of patents that are similar to software patents

Gates
Slide to unlock: novel or medieval?

Summary: A couple of new developments in Apple’s dispute about the ‘design’ of Samsung’s Android phones, which emulate extremely old concepts in digital form

WE are definitely not friends of Samsung (never have been), but some of its patent cases in recent years (especially against Microsoft and Apple) have had profound implications/impact.

“How on Earth were such patents granted in the first place?”Here is Professor Mark Lemley sharing his “brief for 50 IP professors on design patent damages in the Samsung v. Apple Supreme Court case” (local copy to ensure it endures the test of time). This is one of several such cases that involve Apple and Samsung. Florian Müller wrote that this is about as absurd as Microsoft’s patent bullying “over tiny arrow”. To quote the relevant part: “This is one of the patents Microsoft is presently asserting against Corel. Last summer I reported on Corel drawing first blood by suing Microsoft over a bunch of preview-related patents. A few months later, Microsoft retaliated with the assertion of six utility patents and four design patents. The Electronic Frontier Foundation named one of Microsoft’s design patents-in-suit the “stupid patent of the month” of December 2015 because it merely covered the design of a slider. But that patent isn’t nearly as bad as U.S. Design Patent No. D550,237, which practically just covers a tiny arrow positioned in the lower right corner of a rectangle. If you look at the drawings, particularly this one, note that the dotted lines mark the parts that aren’t claimed. What’s really claimed is just a rectangle with another rectangle inside and that tiny graphical arrow in the bottom right corner.”

“This sounds good on the surface, but unless the SCOTUS Justices rule on this, the perceived legitimacy of design patents may persist.”How on Earth were such patents granted in the first place? It’s not surprising that USPTO patent quality has declined so badly and so quickly and there are new patent quality studies regarding the USPTO. Will any similar studies look closely at EPO patent quality as well?

According to an Apple advocacy site, patents on design might not reach SCOTUS after all. This is bad news to all who hoped that SCOTUS would put en end to design patents once and for all.”Samsung Electronics welcomes support for overturning U.S. court ruling in Apple case,” said this new article, which along with others said “Justice Department Urges High Court Overturn Award to Apple Over Samsung Smartphones”. This sounds good on the surface, but unless the SCOTUS Justices rule on this, the perceived legitimacy of design patents may persist. As Müller put it: “Reading all amicus briefs in Samsung v. Apple (design patent damages). Momentum behind call for reasonableness is very impressive.” It looks very likely that if the SCOTUS rules on this, it will help demolish many design patents by extension, in the same way that Alice at SCOTUS put an end to many software patents in the United States. “A federal appeals court awarded about $500 million in damages to Apple for design patent infringement,” recalled one article, demonstrating just how much money can be at stake due to one single patent. “Design patent owners shouldn’t get 100% of the profits when only 1% of the product infringes, EFF tells court,” according to the EFF’s Twitter account and accompanying blog post that says: “The Electronic Frontier Foundation (EFF) asked the U.S. Supreme Court today to reverse a ruling that required Samsung to pay Apple all the profits it earned from smartphones that infringed three basic design patents owned by the iPhone maker.

“Apple is the aggressor, whereas Samsung — like Google — is hardly ever initiating patent lawsuits.”“The $399-million damage award against Samsung, upheld by the United States Court of Appeals for the Federal Circuit in the Apple v. Samsung patent lawsuit, should be thrown out, EFF told the court in an amicus brief filed today with Public Knowledge and The R Street Institute. Forcing defendants to give up 100% of their profits for infringing designs that may only marginally contribute to a product’s overall look and functionality will encourage frivolous lawsuits and lead to excessive damage awards that will raise prices for consumers and deter innovation.”

Don’t fall for the corporate media’s narrative of Apple as the victim even when software patents are to blame. Apple is the aggressor, whereas Samsung — like Google — is hardly ever initiating patent lawsuits. We hope that Samsung will take this all the way up to the Supreme Court (more expensive to Samsung but collectively beneficial to all) and eventually win. The net effect might be the end of many design patents in the US. Those patents so often threaten GNU/Linux or Android products, as we have repeatedly shown here over the years. Will Samsung do a public service here?

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