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06.03.18

IBM and Its Terrible Software Patents, Which Are Disguised as ‘AI’, ‘Cloud’, and More Recently ‘Blockchain’

Posted in America, IBM, Patents at 10:35 am by Dr. Roy Schestowitz

Watchtroll (Quinn) has just published a portrait of his (bottom)

Watchtroll himself (Quinn) angry

Summary: The blockchain hype which facilitates the patenting of many algorithms is being noticed; but what might the courts decide on such questionable patents, which even PTAB is likely to invalidate pretty quickly?

THE EPO favours particular software patenting buzzwords which the USPTO adopted as well. “Blockchain” is one of those, albeit blockchains are mostly hype, much more so than a buzzword per se (there’s a clear technical concept behind blockchains but almost everything with a database can be spun as “blockchain” — same for algorithms as “AI”).

“…blockchains are mostly hype, much more so than a buzzword per se (there’s a clear technical concept behind blockchains but almost everything with a database can be spun as “blockchain” — same for algorithms as “AI”).”Over the past couple of years we’ve composed several dozens of posts about patents that are labeled “blockchain/s” (here’s an overview from January). We thought it would be a passing fad or a temporary bubble; but it still hasn’t burst, not entirely anyway. It certainly will when some of these patents are assessed and rejected, repeatedly even, by lower and higher courts in Europe and the US. For the time being, many of these patents are just ‘harvested’ or ‘stockpiled’, often by notorious patent trolls and giant corporations looking to guard themselves from emerging trends/competition. They don’t want to risk having these patents considered by courts. Earlier this weekend this cryptocurrency-themed Web site wrote about “Blockchain IP [sic] Protection”. Those sites just keep hyping “blockchain/s” and this one said: “Formerly identified as IPCHAIN Database, Vaultitude is an Intellectual Property (IP) management and protection platform that implements blockchain technology. Through its new standards of IP management and protection, the platform provides innovators, artists, inventors, scientists, and companies with an effective tool containing different core features.”

The lawyers’ ‘community’ (or ‘industry’) has long obsessed over “blockchain/s” for two reasons; first, it saw it as an opportunity to ride a wave to patent software and second, in our humble assessment, it has been led to believe that distributed databases — a concept few of these lawyers even understand — would somehow (magically) revolutionise their field/profession. The latter isn’t a justifiable belief and the former is a temporal reality; wait until it blows in their face — or rather — in their clients’ face. Imagine investing millions if not billions in some worthless patents.

“…wait until it blows in their face — or rather — in their clients’ face. Imagine investing millions if not billions in some worthless patents.”As should be widely known by now, IBM is still pursuing worthless, useless software patents. IBM loses its mind over it and now spends a fortune lobbying for software patents (IBM has become a lot worse than Microsoft in that regard). IBM wants us to think that “blockchain/s” patents are worth pursuing while its front group OIN does the same. A few days ago at Bitcoin Exchange Guide we found coverage titled “IBM Continues Distributed Ledger Future Securing 2 Crypto Patents” (don’t worry, these are worthless software patents).

Assuming IBM can use such patents in bulk against some small companies, IBM might be able to dodge a court battle (i.e. no scrutiny for these software patents). To quote:

Blockchain integrity and security is something that is always constantly talked about and hotly discussed. Recently, the technological giant IBM has acquired two crucial and influential patents that will change the marketplace of cryptocurrency security.

[...]

This ultimately allows for a more citable and understandable definition of a checkpoint. Moving forward, many companies will look to this as a key building block for companies wishing to utilize and create blockchain technology. When IBM goes to make any product in the future they will likely rely on this patent because it is at the core of just about all blockchain technology.

It’s pretty obvious that these are software patents. Who is IBM kidding? Hasn’t it been ‘lectured’ by PTAB enough already?

As one PTAB critic (patent attorney) noted the other day: “IBM loses another patent application to 101 at the PTAB: https://anticipat.com/pdf/2018-05-14_12615476_178455.pdf …?”

“It’s pretty obvious that these are software patents. Who is IBM kidding? Hasn’t it been ‘lectured’ by PTAB enough already?”There’s also this nugget of information: “Of 16 IBM Cases with 101 Rejections Decided by the PTAB from May 2017-May 2018, 14 Examiner 101 Rejections Were Affirmed and 2 Examiner 101 Rejections Were Reversed.”

So many of IBM’s patents — not just the “blockchain/s” — are likely worthless. They’re just waiting to be voided (if PTAB gets petitioned to do so).

IBM really hates Alice. IBM nowadays writes rants for Watchtroll — a pretty extremist site — in which it is ranting about PTAB, Section 101 and so on. IBM has, in effect, become a patent radical. Here’s the latest Alice rant from Watchtroll. Sanjeev Mahanta wrote the following just 2 days ago:

In mid-2016 the Federal Circuit issued two decisions, Enfish v. Microsoft (“Enfish”) and Rapid Litigations v. Cellzdirect (“Cellzdirect”), in which it provided additional information and clarification on the inquiry for identifying an abstract idea (Enfish) and a law of nature (Cellzdirect). In these decisions, the court found claims patent eligible based on the determination that they were not directed to a judicial exception in step one of the Mayo/Alice two-step subject matter eligibility test. Analysis under step two was therefore not necessary. The court observed that the formulation by the U.S. Supreme Court of a two-stage inquiry – involving first determining whether the claims at issue are “directed to” a patent ineligible concept – implied that the “directed to” inquiry was a substantive inquiry, and not limited to simply asking if the claims involved a patent-ineligible concept. Enfish at 10. As the Federal Circuit continues to refine the standard for subject matter eligibility, it is of interest to see how these decisions are influencing the outcome of patent eligibility disputes. Vanda Pharmaceuticals, Inc. v. West-Ward Pharmaceuticals (“Vanda”), decided April 13th, 2018, provides an interesting example in this regard.

[...]

Judge Prost next compared the claims to the claims in Mayo to determine how much weight should be given to the recitation of specific dosages of iloperidone. Recall that in Mayo, the claims were directed to a method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder. Id. at 2-3. The method required (a) administering a drug providing 6-thioguanine to a subject having the disorder; and (b) determining the level of 6-thioguanine in the subject. The claim further recited that the level of 6-thioguanine less than about 230 pmol per 8×108 red blood cells indicated a need to increase the amount of the drug subsequently administered to the subject and the level of 6-thioguanine greater than about 400 pmol per 8×108 red blood cells indicated a need to decrease the amount of the drug subsequently administered to the subject.

Watchtroll himself (Quinn) would not be as softly-worded as the above (Mahanta is actually a scientist, unlike Quinn), but watch what Watchtroll wrote about 35 U.S.C. § 101 (Alice) in relation to the recent SAP case (a case which we covered at the time). Watchtroll wrote [via] (and notice the bizarre choice of picture) that “SAP had filed a declaratory judgment action in 2016 alleging, among other things, that the patent claims of U.S. Patent No. 6,349,291, owned by InvesetPic, were are invalid because their subject matter is ineligible for patenting under 35 U.S.C. § 101. Ultimately, the district court determined that the patent claims in question were directed to an abstract idea and lacked an inventive concept necessary to save the invention under 35 U.S.C. § 101.”

“All this “blockchain” nonsense isn’t patent-eligible. It’s abstract; those are software patents.”Mind the nature of this patent. Did they not anticipate such an outcome? Days ago, linking to the Bloomberg "blockchain" hype, this one person wrote: “Staying positive but this is a race to nowhere. Our Courts are hostile and unpredictable to pure software type inventions like blockchain. If you get lucky at the @USPTO the patent can quickly be shot down by a District court judge.”

Well, get used to it. All this “blockchain” nonsense isn’t patent-eligible. It’s abstract; those are software patents.

05.31.18

The Open Invention Network (OIN) is Becoming an Even Greater Part of the Problem, Embracing Software Patents Through Hype

Posted in America, IBM, OIN, Patents at 7:18 am by Dr. Roy Schestowitz

Seeking to maintain a ‘benign’ (its own) patent thicket rather than eliminate it

Broken wall

Summary: Companies led by IBM are shielding only themselves while pretending to be shields for others; in the process they perpetuate the patenting of software, even in the post-Alice era

EARLIER this month we wrote about LOT Network as a semi-pseudo solution to a real problem. LOT Network — like OIN — has no intention of ending software patents, which are being granted by the USPTO when the Patent Trial and Appeal Board (PTAB) isn’t watching. We’ll say more about PTAB in the weekend.

“Just look at IBM’s patenting activity in the space, including the Hyperledger effort it got the Linux Foundation to manage for it (the Linux Foundation too is absolutely worthless when it comes to combating software patents).”PTAB is generally helping the crackdown on software patents far more than all those groups which claim to defend Free/libre Open Source software from patents. PTAB is therefore under many attacks from patent extremists; TechDirt was having a go at Watchtroll less than a day ago, but Watchtroll is an easy target because that site is insane. What about OIN though? Maybe a lot of people still think it is noble and we used to think the same thing about a decade ago. But the Open Invention Network (OIN) continues to support sofrware patents in rather blatant a way (even after Alice), just like IBM. They’ve been reduced to acting like a worthless IBM front. Even their Free software-friendly staff/people recently left.

Case of point? Blockchain hype. Well, this whole hype is software, typically some distributed database, which is many of today’s databases anyway. Kilpatrick Townsend & Stockton LLP (a law firm) basically promotes these software patents that are worthless unless you’re a patent troll going after poor (i.e. defenseless) people/firms. Here is what it wrote this week:

10 Considerations for Blockchain patent applications

[...]

2. Open Source issues? Many blockchain projects are fully open source. Open source allows for quick development as the source code is accessible and editable by everyone. In contrast proprietary code is often developed internally, which may lead to slower code development. It is important to determine not only which part of your blockchain project utilizes open source code, but also the licenses (e.g. GPL, BSD, LGPL, etc.) and/or restrictions (e.g. patents, copyrights, etc.) associated with the open source code. These factors may prevent someone from obtaining a patent or even forcing a granted patent to be freely licensed. In the blockchain arms race it may be beneficial to not patent all or certain aspects of your algorithm in order to take advantage of certain open source benefits. However, patent protection is often still available under most open source licensing schemes.

3. Alice issues. Improvements in the blockchain processing operations are generally directed to how the computers work, and thus should avoid Alice rejections as being abstract. New uses of blockchains may face rejections if the new uses only require a network of standard computers performing standard computer functions without significantly more. Tactics to avoid Alice issues include including in the claims security aspects (e.g. encryption, hashing, digital signatures), networking aspects (e.g. consensus protocols, smart contract protocols), and focusing on any distributed ledger features instead of the transaction features. Limit business and financial terms in the description to avoid going to art unit 3600, which has the highest rate of Alice-based patent eligibility rejections. Argue that the claims solve a problem rooted in computer technology, citing DDR Holdings, LLC v. Hotels.com, 773 F. 3d 124 (Fed. Cir. 2014).

Well, these patents would likely be voided by Section 101/Alice, but only if the accused (or defendant) can afford a court battle or IPR at PTAB.

So does OIN oppose such patents? Not at all. Just look at IBM’s patenting activity in the space, including the Hyperledger effort it got the Linux Foundation to manage for it (the Linux Foundation too is absolutely worthless when it comes to combating software patents). Here’s what Keith Bergelt (OIN CEO) published a couple of days ago (sent to us by a reader yesterday). To quote:

Perhaps the greatest indication of blockchain’s value is the number of firms rushing to file DLT patents. While the core technology is open source and in the public domain, complementary and supplementary technologies are being patented and there has been a “land rush” to develop and secure DLT-related patents.

[...]

While it has experienced nearly exponential growth, the successful adoption and use of open source by banking networks, mobile phone manufacturers, telecom networks, smart cars, cloud computing and blockchain platforms, among numerous others, was not a foregone conclusion. In 2003, there was an IP-based attack on prevalent open source software project Linux.

While the claims underlying the litigation ultimately were found to be without merit in the court proceeding, it was a wake-up call to several IP-savvy companies as to the potential negative impact of patent aggression on the growth of Linux and open source software projects.

IBM, Red Hat and SUSE (then Novell) coordinated an effort with Sony, Philips and NEC to conceptualize and implement a solution designed to create a “patent no-fly zone” around the core of Linux. The entity charged with administering this patent no-fly zone, the Open Invention Network (OIN), utilizes a free license to require participant companies to forebear litigation and cross-license patents in the core of Linux and adjacent open source software. In the 12 years since its formation, the organization has grown into the largest patent non-aggression community in history with an excess of 2,500 participant companies which own upwards of 2 million patents.

So they’re basically defending these patents from the likes of us (our criticism); they continue to hoard such patents instead of antagonising them. Therein lies the core strategy and spirit of OIN. It will never pursue a true, longterm solutions, just a ‘corporate’ version of FOSS, wherein few corporations lead the pack, possess tens of thousands of software patents, and tell the “sole” developers what they can and cannot implement. Some might argue that this was the purpose of patents all along; it’s a mechanism of control over one’s competition and potential new market entrants.

05.15.18

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

Alice/Section 101 is Fine Because Copyrights Already Cover Software and Patents Are Inadequate for Code

Posted in IBM, Law, Patents at 1:48 am by Dr. Roy Schestowitz

But IBM, Watchtroll et al continue to set up lobbying events against Section 101 (not to mention jurist-bashing tactics)

Patent Lawyers' Tears

Summary: The world has moved away from (or beyond) software patenting and companies/firms that rely on such patents try to sabotage progress, sometimes by bashing courts

THE world generally rejects software patents. Sure, the EPO and USPTO make it possible to overcome restrictions using buzzwords and semantic tricks; but courts and appeal boards (BoA/PTAB) aren’t quite falling for it.

“…Bangladesh should reject software patents like the rest of the world (bar China) does.”Hours ago we saw this new article from the Dhaka Tribune. It’s titled “Minister urges for immediate measures to reform IP laws for ICT” (the term “ICT” is one of those notorious buzzwords that the EPO likes to use). But Bangladesh should reject software patents like the rest of the world (bar China) does. Here’s the core paragraph:

Thanking Tina Jabeen for her passionate efforts to secure proper sustenance for the budding startups in the country, Mustafa Jabbar took a trip down the memory lane to elaborate the upward transition of the ICT sector in Bangladesh. “Back in our time there was no procedure to register a software, but when there is a will, there’s way and I kept applying for the patent of my product despite repeated rejections. When I applied for the patent in 1992, there was not a single person in the responsible department who could examine the product,” he told the audience about his struggle to patent the iconic software Bijoy. “Fortunately for me, an official came to my rescue and took the responsibility to inspect. It was in 2004 when I reapplied and it took four full years for me to finally get the patent. However, things have drastically changed and the procedures are way simpler now,” he added.

This almost perpetuates the false assumption that one patent covers an entire program, potentially conflating copyrights with patents. He speaks of a “procedure to register a software” as if patent applications are a registration process.

“He speaks of a “procedure to register a software” as if patent applications are a registration process.”Mythology about patents has become widespread. Patent maximalists like to ‘name-drop’ “innovation”, “protection” and so on. They typically admit that they never even wrote a computer program. They don’t understand programming.

The other day, writing about Tesla's latest legal ordeal, Josh Landau (CCIA) said that “Nikola got it all wrong.”

The “Cult Of Patents” has basically created an untenable situation where stuff covered by copyrights is now being patented too: designs!

To quote Landau:

Last week, Nikola sued Tesla over advanced technology trucks. But it isn’t about the technology. It’s not AC vs. DC or Edison vs. Tesla. It isn’t even about electric vehicles (or hydrogen-electric trucks, Nikola’s chosen technology).

It’s about the shapes of windshields and doors. It’s about design patents.

And Nikola got it all wrong.

[...]

Different curvatures, a gentler rounding at the bottom right corner and a sharper one at the top. The Tesla windshield also exhibits a significantly larger difference between tallest and shortest portions, extending much further down the nose of the truck.

And that’s just the infringement argument. If you want to claim that your wrap windshield patent covers all wrap windshields, I think that Italian automaker Lancia (among many, many others) might have had something to say about that around 40 years ago.

How does one get a patent on mere curves? What would Bézier say? Why are windshield patented? Who’s responsible for such a patent grant?

Unfortunately, among patent maximalists at least, this is considered to be “normal”. They don’t care about patent quality and if they actually do care, it is because they hate patent quality. They actively combat improvement in quality.

“They don’t care about patent quality and if they actually do care, it is because they hate patent quality. They actively combat improvement in quality.”Consider Watchtroll’s tweet from a few days ago: “Matt Troyer from Anaqua predicts Patent No. 10,000,000 will issue on June 18, 2018, and it will be issued to Qualcomm on Application 13/666670.”

This “Cult Of Patents” (Watchtroll/Anaqua in this case) is obsessing over mere numbers rather than substance. They’re diluting and reducing the value of pertinent patents — a dime a dozen at this pace!

The corresponding article is titled “Predicting Patent Number 10,000,000″ and it was composed by Matt Troyer from Anaqua, basically a bunch patent maximlists who profit from an abundance of patents (that’s what their product is for). The greater the number of patents, the more messy the repository of US patents will become. So they sell “solutions”. Now they obsess over the 10,000,000 mark (as laughable as it is; there aren’t 10,000,000 inventions). As readers may recall, they did this some months back and we wrote several rebuttals to their nonsense. It’s not as though the sheer quantity is what’s worth celebrating; they should speak about quality.

“This “Cult Of Patents” (Watchtroll/Anaqua in this case) is obsessing over mere numbers rather than substance. They’re diluting and reducing the value of pertinent patents — a dime a dozen at this pace!”It has, in the meantime, emerged that IBM implicitly attacks the US Supreme Court for doing the right thing about patents (namely improving patent quality) and it also uses former USPTO and IBM staff to lobby on it. We see that the Koch-funded think tankers, people who are paid to attack PTAB, are really boosting David Kappos this month. It’s about IIPCC (US IP & Innovation Policy). Kevin Madigan wrote: “Former @uspto Director Dave Kappos: the US #patent system has been degraded by standard setting organizations that are stacked against innovators [] Qualcomm’s Laurie Self: with the onset of 5G, the patent system must help protect the massive amount of investment in R&D that has revolutionized cellular technology…”

Well, guess who’s behind this event: the former employer of Kappos (IBM), Qualcomm and so on. This whole event is like another think tank — mere scaremongering from IBM, Kappos and others. Watchtroll has just boosted it. Watchtroll plays a major role in this propaganda. They’re perpetuating the lie about “uncertainty” (“uncertainty created by the Supreme Court”) and just prior to it Watchtroll had this article from Manny Schecter (IBM) in which he again attacked Section 101 and the Supreme Court. IBM continues to associate with and write for judge-bashing maniacs who promote patent Armageddon. This, to us, shows that IBM not only promotes software patents but deserves bankruptcy. It’s an enemy of software developers.

“Well, guess who’s behind this event: the former employer of Kappos (IBM), Qualcomm and so on. This whole event is like another think tank — mere scaremongering from IBM, Kappos and others.”Schecter’s concluding words: “And now, as we embark into the unknown with nearly limitless computing power in the fields of quantum computing, artificial intelligence, cyber security, medical diagnostics, and biotechnology, and in fields that have not even been thought of yet, do we really want to continue with a weakened patent system that throughout our history played such a key role in promoting “the Progress of Science and useful Arts” to bring us to this technologically-advanced state?”

It didn’t take long for Watchtroll’s Gene Quinn to attack the courts again. The following day he published an article titled “Is the Supreme Court anti-patent?”

This is the latest court-bashing or judge-bashing article from Watchtroll. That’s all they have left. Attack the person/s. Just because of Alice.

Speaking of Alice, it was mentioned on the same day as Schecter’s article:

What kinds of trends are you seeing in patent law? The one that’s kind of a little bit of an old story right now is the Supreme Court’s 2014 Alice decision, which says you cannot patent an abstract concept.

That includes software/algorithms.

“This is the latest court-bashing or judge-bashing article from Watchtroll. That’s all they have left. Attack the person/s. Just because of Alice.”Meanwhile, in another public forum (think tank), IAM reported/quoted: “MacKenzie – i might be in a minority but i like where Alice [101] is right now. if you have to read a claim 10 times and you still have no idea what it’s claiming then that’s bad…”

When one has a crooked boss like Battistelli (at the EPO) this means that the examiner gets all confused, grants a patent anyway. Later this weekend we’ll show some of the latest buzzwords and tricks being employed. Scholars Michael Frakes and Melissa Wasserman recently wrote about this phenomenon in relation to the USPTO.

04.23.18

Patent Trolls Watch: Red River Innovations, Bradium Technologies/General Patent, and Wordlogic

Posted in America, IBM, Patents at 11:05 pm by Dr. Roy Schestowitz

Eye watching

Summary: A quick look at some patent trolls that made the news this Monday; we are still seeing a powerful response to such trolls, whose momentum is slipping owing to the good work of the Patent Trial and Appeal Board (PTAB)

IT is no secret that the USPTO bred a generation of patent trolls and the causes are no mystery. Decades of shoddy patents on algorithms lead to that.

“Between 1990 and 2000,” the patent trolls’ lobby* (IAM) wrote on Monday, “a sophisticated IP strategy boosted annual patent licensing royalties at IBM by 3,300%. Learn the importance of IP strategy at our webinar with @PatSnap this Monday, April 25.”

I responded with: “IBM — the company that lays off all the ‘expensive’ staff and is lobbying for software patents like no other company — becoming like a patent troll over time…”

“Unified Patents is already fighting back against this troll by targeting its patents. That’s all one can do about trolls, which cannot really be sued (no products to sue over).”Remember that IBM is nowadays feeding its patents to patent trolls like Finjan. IBM literally makes money by arming patent trolls (Microsoft does the same thing and it financially supports Finjan), whereas several groups like OIN or Unified Patents try hard to disarm trolls.

Remember the patent troll called “Red River Innovations” [sic]? Unified Patents put a bounty on its patent/s last month and Joe Mullin, who covered patent trolls for at least a decade (first in his blog, then in news sites like Ars Technica before joining the EFF), has just labeled its patent the “Stupid Patent of the Month”. Hours ago he wrote:

Online businesses—like businesses everywhere—are full of suggestions. If you order a burger, you might want fries with that. If you read Popular Science, you might like reading Popular Mechanics. Those kinds of suggestions are a very old part of commerce, and no one would seriously think it’s a patentable technology.

Except, apparently, for Red River Innovations LLC, a patent troll that believes its patents cover the idea of suggesting what people should read next. Red River filed a half-dozen lawsuits in East Texas throughout 2015 and 2016. Some of those lawsuits were against retailers like home improvement chain Menards, clothier Zumiez, and cookie retailer Ms. Fields. Those stores all got sued because they have search bars on their websites.

In some lawsuits, Red River claimed the use of a search bar infringed US Patent No. 7,958,138. For example, in a lawsuit against Zumiez, Red River claimed [PDF] that “after a request for electronic text through the search box located at www.zumiez.com, the Zumiez system automatically identifies and graphically presents additional reading material that is related to a concept within the requested electronic text, as described and claimed in the ’138 Patent.” In that case, the “reading material” is text like product listings for jackets or skateboard decks.

Unified Patents is already fighting back against this troll by targeting its patents. That’s all one can do about trolls, which cannot really be sued (no products to sue over).

Unified Patents uses PTAB to disarm another patent troll, one called “Bradium Technologies” [sic] — an obscure proxy or tentacle of General Patent. Patent Troll Tracker wrote about it a decade ago [1, 2] and so did we, e.g. in [1, 2, 3]. Robert Jain wrote about what they did yesterday:

On April 23, 2018, Unified filed a petition for inter partes review (IPR) against U.S. Patent 9,253,239 owned and asserted by Bradium Technologies, LLC, a General Patent subsidiary and well-known NPE. The ’239 patent claims the concept of dividing large data sets of images (such as geographic imagery) into “image parcels” at varying levels of detail, allowing users to browse quickly online, and has been asserted in district court against Microsoft (Case No. 1:15-cv-00031).

Jain then added that “[o]n April 23, 2018, Wordlogic Corporation and Unified Patents Inc. filed a joint request to terminate the recently instituted IPR2017-01856 pursuant to settlement.”

We’ve mentioned Wordlogic several times before, e.g. earlier this year, eight years ago, and even a decade ago.
____
* On Monday it also propped up another patent parasite, this one from Taiwan (excerpt from the paywalled article below).

  • Taiwanese start-up widens assertion drive in the wake of 2017 Apple settlement

    At last week’s IPBC Taiwan conference, managing IP costs emerged as a key theme of conversation – with some suggesting that financial pressure could lead to more monetisation activity. One firm that has recently opted to go down the monetisation path is a small company called CyWee, which began life within the government-funded Industrial Technology Research Institute (ITRI). CyWee is evidently an operating company with business across wireless streaming, motion processing and facial tracking. According to a District of Delaware patent infringement lawsuit it filed against Google last Monday, CyWee was formed by two ITRI researchers in 2007…

04.13.18

Samsung is the ‘New IBM’, Sans the Trolling With Patents

Posted in America, Asia, IBM, Patents, Samsung at 5:18 pm by Dr. Roy Schestowitz

IBM has itself become nothing but a trolls' feeder and patent bully

IBM floppy

Summary: The ‘relic’ company, IBM, loses its patent leadership (as measured using some yardstick) to Samsung, a company which is relatively calm when it comes to patent activity (unless/only when sued, as happens a lot nowadays)

SIZE matters. Especially when it comes to patents. Samsung is a very large company that employs a huge number of people and is viewed as a national asset. It’s to Korea what IBM used to be for the US. Samsung has already been ‘king’ of patents at the EPO and now IBM see itself dethroned in its own country. Reports and analyses have recently suggested that Samsung silently became ‘king’ of patents at the USPTO. We’ll come to the cited criteria in a moment (it depends on what’s being measured).

This sort of ‘triumph’ of Samsung could not be celebrated today; it was clouded by late(r) Friday news from a Texan court. Yes, patent trolls carry on suing Samsung with dubious patents and hours ago we saw reports about that [1, 2, 3]. It’s about a biometric patent or patents. And yes, it’s in Texas, so PACid, the plaintiff, is quite possibly a troll if not some major parasite. It wants almost $3,000,000,000 (no typo!) and it went after Samsung because it’s a leading OEM with many sales of Android devices. Speaking of Texas, in the Eastern District of Texas strikes again a Catalan university, exploiting the district in a get-rich-fast-type patent scam. Universities as patent trolls? No, IAM would not use the “T” word. Here is how its editor put it some hours ago:

Another tale of patent litigation with its roots in convergence is now being played out in the Eastern District of Texas. What makes this one slightly different to other stories is that its main protagonist is a small, Spanish company that was spun out of a Barcelona university back in the late 1990s. Earlier this week, antenna R&D business Fractus filed suits in Marshall against AT&T, Verizon, T-Mobile and Sprint, accusing them of infringing its patents relating to cellular base station antenna technologies.

Anyway, we digress. The point of this detour may be to show that Texas is where trolls go not for justice and companies go to defend themselves from injustice. Things are different in California, where Judge Lucy Koh does some good things these days (invaliding abstract patents) and is now being recalled by a longtime Apple v Samsung watcher. As he has just put it, “One month prior to yet another Apple v. Samsung trial, old and new disagreements on design patents surface” (headline). He ought to know this stuff, having covered it for nearly 8 years. Here’s the latest:

On May 14, Apple and Samsung will square off in court again. It’s going to be the third trial in their first California case alone. What makes it interesting is that it will involve a design patent damages determination (damages in this case amounting to a disgorgement of infringer’s profits) following a Supreme Court ruling in the same case. The exact amount of money that will change hands between Apple and Samsung won’t impact the parties’ positions in the smartphone market. However, it will be a signal to other design patent holders, including patent trolls. Should Apple be awarded a huge amount that Samsung could ultimately afford but the equivalent of which would potentially put many other companies out of business, design patents would be used in aggressive, extortionate ways.

Last week, Judge Lucy Koh ruled on the parties’ Daubert motions. Daubert motions and rulings are hard to figure out from the outside unless they’re just about numbers (such as damages claims that a court does or does not permit) because one would need to know the related expert reports to really understand the context. What became clear to me from Judge Koh’s ruling, however, is that she gave Apple various opportunities beyond the test proposed by the United States government in 2016 to argue that the relevant article of manufacture for a disgorgement of design patent infringer’s profits in this case is an entire phone, not just a casing. While Judge Koh adopted the broad lines of the DoJ’s proposed test, her Daubert order explicitly and intentionally declines to apply parts of what the DoJ had argued in its amicus curiae brief to the Supreme Court.

As we pointed out here many times before, Samsung tends to be more passive and defensive with patents. So we no longer view Samsung as much of a danger (if any).

Regarding Samsung’s stance in the US, the CCIA has just pointed out that “[w]hile IBM is the largest single corporation recipient each year, Samsung actually receives more patents than IBM when you include the various Samsung subsidiaries.”

Companies are filing for more patents every year—IBM received almost 1,000 more patents in 2017 than they did in 2016, an increase of 12% year-on-year. But, despite the fact that more patents are being filed for and granted every year, you still hear critics of patent reform claim that reforms have rendered patents worthless.

Samsung, IBM, Canon, Microsoft, Intel—these are all sophisticated users of the intellectual property system. They aren’t throwing money at something worthless; if they’re filing for patents, it’s because there’s value in doing so. And judging from all sorts of relevant statistics, as Patent Progress has previously covered, innovation is alive and well in the United States, including when it comes to patent filings.

A lot of IBM’s patents are worthless software patents.

Here’s a case — or IPR rather — against IBM patents (ZitoVault LLC v International Business Machines Corporation et al), based on prior art. The Docket Report put it explained:

Following two inter partes review proceedings, the court granted plaintiff’s motion for summary judgment that IPR estoppel under 35 U.S.C. 315(e)(2) barred defendants from asserting invalidity of previously instituted claims based on prior art that was known by defendants when they joined a third-party’s IPR, but which defendant’s failed to assert in that IPR.

There are many more patents like these which IBM loses nowadays. This barely happens to Samsung.

As IAM put it a short time ago, “Samsung’s patent portfolio is almost certainly the biggest in the world, it may also be the best.”

There’s a corresponding blog post and more behind a paywall. IAM, not IBM, said that “Samsung has the world’s largest active patent portfolio and among the highest quality ones, too, exclusive IAM-commissioned research reveals.”

From the summary:

In the IAM/ktMINE US Patent 100, published in issue 89 of IAM, we revealed that Samsung owns by far the largest US patent portfolio. Now, new research conducted for IAM shows that the Korean conglomerate not only has the largest portfolio in the world, but also one of the strongest. Below we provide a detailed analysis of Samsung’s patent holdings, including an examination of how the company has developed its assets and the most salient patent-related stories it has been involved in over the last five years. Patent portfolio breakdown With almost 250,000 granted patents worldwide….

We don’t typically wish to cite IAM, but in order to understand some things we keep track even of its spam from Japan (latest ad from Shobayashi International Patent & Trademark Office, or Satoshi Watanabe trying to sell services).

SCMP, which is now connected to the Chinese government through its new owner, wrote a few days ago about Huawei v Samsung. This shows how China uses patents to help the CPC-connected (the nation’s Communist regime) Huawei block/stop competition from Korea. We already wrote about these legal disputes many times before (LG has been driven out of China using such lawsuits) and here’s the latest:

A Beijing court specialising in intellectual property (IP) rights disputes has dismissed requests from Samsung Electronics seeking invalidation of Huawei Technologies’ certain patent rights on smartphones after an earlier local Chinese court decision banned sales of certain phone models from the South Korean brand.

The Beijing IP Court confirmed that Huawei’s patent rights on smartphones involved in the disputes with Samsung were valid and it denied any procedural violation in the previous patent review process, which had dismissed Samsung’s requests on the grounds of they lacked a factual and legal basis, according to a report by China Intellectual Property News on Sunday – a newspaper supervised by the State Intellectual Property Office (SIPO).

Well, SIPO and its aggressive/short-sighted approach will be the subject of our next post.

03.13.18

IAM and IBM Want Lots of Patent Litigation in India

Posted in Asia, IBM, Patents, RAND at 6:55 am by Dr. Roy Schestowitz

Not just low-salaried labour/workforce for IBM

India IAM lobbyingSummary: Having ‘championed’ lobbying for litigation Armageddon in China (where IBM’s practicing business units have gone), patent maximalists set their eyes on India

IBM is trying to change the USPTO, having had a Director in it for a number of years (he’s now working for IBM as a lobbyist). IBM is a patent bully and almost a troll (IBM still sells some products, so it’s premature to start calling it a “patent troll”).

IBM used software patents against Twitter (many did not notice that), extracting perhaps tens of millions of dollars without actually doing anything.

Florian Müller, an IBM critic, has just published this blog post about a core Twitter patent in the post-Alice era. “Worst-case scenario for Twitter,” he added, is that “some of its “own” patent claims might belong to Indian inventor, who could then sue Twitter.”

From yesterday’s blog post:

It could be that an Indian patentee ends up owning what was considered a core Twitter patent. But he’s not quite there yet. His U.S. Patent Application No. 15/053,889 is facing an Alice (§101) rejection by the examiner, which he is appealing (the appeal was filed in late November). Most recently, the examiner sought to defend his rejection in his mid-February answer to the appeal brief.

Twitter’s older and narrower patent was granted at a pre-Alice time; but the broader one was granted in 2015. The USPTO is clearly applying double standards so far, holding the same claims abstract in one case after not holding them abstract in another. That’s not good.

PTAB/district courts/CAFC would likely just say, “go away, opportunist/troll…”

They’re no longer tolerant of such patents.

Speaking of India, Dolby does not create anything concrete in India; nothing but patent lawsuits. But a person from Dolby, a speaker at an upcoming IAM event in India (possibly with the usual advocacy of software patents in India), will certainly enjoy yesterday’s puff piece that says:

Documents filed with the Delhi High Court show that Dolby Laboratories called off a dispute with Oppo last December after more than a year of litigation. For the US-based licensor of audio standards technology, the Oppo deal followed on two settlements with Indian defendants during the course of 2017.

Dolby made its first patent assertions in India in 2016, with Oppo and Vivo as its initial targets. In October that year, Delhi High Court Justice Rajiv Sahai Endlaw laid out an interim royalty payment regime requiring both defendants to deposit 34 rupees ($0.52 at today’s rates) with the court per device sold. According to SpicyIP, the court subsequently required the two Chinese brands to “furnish bank guarantees for the entire amount of the royalty payments due to the plaintiffs”.

[...]

Dolby’s latest cases demonstrate why FRAND and SEP issues will be high on the agenda here in Mumbai.

IAM has long lobbied for software patents in India, for FRAND, and SEP (see examples from last year [1, 2, 3, 4, 5]). IBM did the same thing in India (we wrote articles about that). IAM is the spin department/think tank (setting up lobbying events). It’s just using Dolby (above) as a “model” example by which to drive the agenda. IAM and IBM are often on the same wavelength; both are patent maximalists that want the public to think that patents and innovation are the same thing and only patent litigation (or ‘monetisation’) is the fulfillment of a patent.

02.27.18

IBM Has Become More of a Patent Broker Rather Than a Genuine Technology Company

Posted in IBM, Patents at 5:28 am by Dr. Roy Schestowitz

Monster

Summary: IBM is becoming a lot more like Intellectual Ventures, namely a patent hoarder (tens of thousands of patents) looking to ‘monetise’ these patents using lawsuits, threats of lawsuits, feeding (arming) of patent trolls and so on

IBM likes to think of itself as ‘king of patents’ because for decades it was pursuing a lot of patents, including software patents, which the USPTO granted by the thousands (per year). What isn’t so well known, however, is how IBM uses these patents behind the scenes. It’s pretty brutal and it got a lot worse in recent years.

“The funny thing is that to people like these the trolls are heroes.”Finjan is a very malicious patent troll which was funded by Microsoft and as recently as last year was armed by IBM (IBM gave it patents to help the trolling).

Britton Davis and Max Colice wrote about Finjan yesterday. This troll is still being exploited by Watchtroll, which uses it to make a case for software patents and damages. The funny thing is that to people like these the trolls are heroes. To quote:

Patent damages law is one of the most complex areas in patent law and it is constantly evolving. Attorneys and courts often confuse the principles and get the law wrong. Further, even without the backdrop of constantly evolving and complex damages law, proving damages at trial is one of the hardest aspects of patent litigation. And properly apportioning damages can be one of the most difficult aspects of damages law to get right.

[...]

In Finjan, the Federal Circuit reached the opposite conclusion and remanded the case for failure to properly apportion the royalty base. Finjan, slip op. at 18-19. Finjan’s patent relates to virus detection software and creating a security profile for web addresses. Id. at 18. Finjan accused Blue Coat’s DRTR or “dynamic real-time rating engine” of infringing its patent. Id. The DRTR was itself part of a larger software product called WebPulse that helps companies set internet policies for their employees by categorizing different websites as containing different kinds of content. Id.

Finjan recently announced it financial results, after its stock/shares had collapsed over the years. Very many moons and even years ago Finjan actually had a product; it decided to become a proper patent troll about a decade ago and for IBM to send patents its way is worse than irresponsible; it makes IBM complicit in trolling.

“As Dropbox begins IPO process it has followed a familiar path in buying patents from IBM,” IAM wrote yesterday, having published this blog post that also mentions Facebook, Google and Alibaba (they left out HTC). To quote:

Dropbox filed the necessary paperwork for an upcoming IPO late last week, putting it on track to become the latest tech unicorn to go public. It is also on the long list of high-profile, multi-billion dollar start-ups that have acquired patent assets from IBM in the years leading up to a listing.

The file sharing business acquired 63 US patents and applications from IBM in 2016 in a transaction that was recorded on the USPTO assignment database last September. It has also bought assets from Intellectual Ventures, file-sharing rival SugaSync and, in a 2014 deal, picked up a portfolio of 105 US assets from Sony.

It’s quite likely that at least some of these patents would be worthless though; a lot of these are being invalided nowadays by PTAB.

We weren’t quite aware that Dropbox patents were also being bought from Microsoft’s patent ‘broker’ (troll) Intellectual Ventures. Now we know one thing that Intellectual Ventures and IBM have in common,

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