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11.09.18

With Patent Trolls Like Finjan and Blackbird Tech out There, Microsoft in OIN Does Not Mean Safety

Posted in Microsoft, OIN, Patents at 4:39 am by Dr. Roy Schestowitz

LOT and OIN (DPAs) used by Microsoft to promote "Azure IP Advantage"

LOT Network: A WHOLE LOT OF SOFTWARE PATENTS

Summary: With many patent trolls out there (Microsoft’s Intellectual Ventures alone has thousands of them) it’s not at all clear how Microsoft can honestly claim to have reached a “truce”; OIN deals with issues which last manifested/publicly revealed themselves a decade ago (Microsoft suing directly, not by proxy)

PUBLISHED behind paywall yesterday (and then promoted in Twitter) was an article titled “More valuable to offer patent licences through LOT and OIN than do it ourselves, says Microsoft IP chief” (based on a Microsoft-friendly and trolls-funded publisher).

We can imagine the gist of it because we covered it based on the tweets while also expressing concerns about the new Deputy Director of the U.S. Patent and Trademark Office (USPTO). Even Dennis Crouch noted that “[s]he was also GC at Immersion Corp — by that point the company was really just enforcing its patents on haptic feedback game controllers.” By “enforcing” he meant suing. They sue a lot of companies, having already earned themselves a reputation as “patent troll” (some news sites do call them that].

As we explained yesterday, Microsoft still relies on patent trolls to attack companies, enticing them into Microsoft’s “protection racket” in Azure (“Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21]). OIN members would be defenseless.

OIN has just published this press release about expanding the scope of “protection” (from other OIN members), “bringing the total number of protected packages to 2,873,” it said.

Here are some key parts:

Open Invention Network (OIN), the largest patent non-aggression community in history, with more than 2,750 community members, announced today that it has increased its patent non-aggression coverage through an update to its definition of the Linux System. The expansion is part of Open Invention Network’s program to regularly revise its Linux System coverage to keep pace with innovation.

“Linux and open source software are thriving, and they continue to transform industries,” said Keith Bergelt, CEO of Open Invention Network. “This Linux System expansion enables OIN to keep pace with open source innovation, promoting patent non-aggression in the core. As open source grows, we will continue to protect Linux and adjacent technologies through strategic software package additions to the Linux System.”

The expansion includes 151 new packages, bringing the total number of protected packages to 2,873. “With this update to the Linux System definition, OIN continues with its well-established process of carefully maintaining a balance between stability and innovative core open source technology,” stated Mirko Boehm, OIN’s director for the Linux System definition. “While the majority of the new additions are widely used and found in most devices, the update includes a number of key open source innovations such as Kubernetes, Apache Cassandra and packages for Automotive Grade Linux.” The 5.5 percent growth over the 2017 coverage reflects OIN’s conservative and consensus-driven Linux System update process.

[...]

Funded by Google, IBM, NEC, Philips, Red Hat, Sony, SUSE and Toyota, OIN has more than 2,750 community members and owns more than 1,300 global patents and applications. The OIN patent license and member cross-licenses are available royalty-free to any party that joins the OIN community.

But OIN cannot defend from trolls. It cannot. At best it can discourage Microsoft from passing yet more patents to patent trolls, but those trolls can get patents from other avenues and OIN can, at best, try to outbid them. According to this press release, within a few days the Microsoft-funded patent troll Finjan can decide which Microsoft rival to sue next, having already sued many of them. What good would OIN membership have been? No good, no use.

A Section 101 challenge (invoking 35 U.S.C. § 101, based on Alice/SCOTUS) has meanwhile been noted in relation to a notorious patent troll called Blackbird. It uses software patents for extortion (sometimes Microsoft’s rivals) and the case needs to be escalated to the Federal Circuit (expensive) for invalidation that seems likely. To quote:

In the U.S. District Court for the District of Delaware, Plaintiff (Blackbird) sued Defendant (Niantic) alleging infringement of U.S. Patent No. 9,802,127. Niantic filed the present motion to dismiss the case for failure to state a claim under Rule 12(b)(6), on the basis that the asserted patent claims are invalid under 35 U.S.C. § 101.

The Court followed the two-step approach set forth by Alice to evaluate the section 101 challenge, and ultimately found the claims satisfied step 1 (leaving step 2 unnecessary), and thus, the motion was denied.

The ’127 patent is directed to a video game in which user determined location information (e.g. GPS, Google Maps, an entered address or the like) is acquired, and the determined location information of a physical location is mapped to a video game environment so that the user of the video game experiences objects from the user’s physical location while playing the video game.

The bottom line is, as we’ve explained before (even yesterday), OIN does not do anything to eliminate software patents (it does not oppose these!) and it’s almost pointless when patent trolls, including Microsoft’s own, launch the litigation campaigns. Microsoft has a “clever plan”, but Microsoft staff is not allowed to speak.

11.04.18

Software Patents Proponents Abound: IAM, IBM, Kappos, OIN and Microsoft

Posted in IBM, Microsoft, OIN, Patents at 2:07 pm by Dr. Roy Schestowitz

Summary: A roundup of lobbying for software patents and against Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs); the big players are still eager to strangle the whole domain with thousands of lawsuits, armies of lawyers, and tens of thousands of US patents of questionable quality/validity (enough to keep their rivals hobbling and fearing)

THE U.S. Patent and Trademark Office (USPTO) continues granting some software patents. And sure, not many or any of them have much of a chance in courts. Especially not high courts like SCOTUS or even the Federal Circuit. Just look at their track record.

“Over the past week there have also been reports about another Microsoft-funded patent troll suing almost all of Microsoft’s rivals in this space (security).”The patent trolls’ lobby, IAM, is trying hard to change that. Patent aggressors pay IAM for the effort and days ago they promoted software patents in an event called Software IP. Guess who opened the event: IBM, the new (soon to be confirmed) owner of Red Hat. Let that sink in for a moment. It’s actually not surprising as it’s consistent with IBM’s stance on the matter.

“Brian Kuhn from @IBM delivers this year’s keynote address,” IAM declared. At around the same time David Kappos, who had worked for IBM before he became the Director of the USPTO (he’s now more like a lobbyist of IBM), got boosted by the front group misleadingly named “Innovation Alliance” (hint: it is not about innovation but litigation, it should be named accordingly but “Litigation Alliance” sounds bad). Kappos is a paid lobbyist for software patents — he is paid by patent powerhouses including IBM and Microsoft — both companies being feeders of patents trolls. Their tweet said: “Fmr. @USPTO Dir. Kappos and Judge Michel: Congress needs to pass legislation that redefines #patent eligibility standards to overrule recent #SupremeCourt decisions #PatentsMatter @MorningConsult https://morningconsult.com/opinions/supreme-court-patent-decisions-stifling-health-care-innovation/ …”

It’s basically that same old rant of theirs about SCOTUS. The “Innovation Alliance” then went on to bashing PTAB, which is consistent with the above agenda of lowering the patent bar. This anti-PTAB alliance, boosted by radicals who created anti-PTAB groups, is doing anything it can think of to slow down or obliterate PTAB. As we recently noted, however, based on the numbers, PTAB remains strong and “PTAB petition filing in the third quarter of this year was the highest since the second quarter of 2017,” according to Michael Loney’s latest tally.

Going back to IAM and its IBM-led (keynote) event, here they are writing about Northrop (to be mentioned later in the week in the misleading article from IAM, promoting abstract/bunk patents) [1, 2, 3, 4]: “Northrop – clearly given the amount of money we have in place we’re bullish on patents and software patents although still dealing with some unpredictability in the system [..] diligence process is definitely more robust when there are a lot of software patents in a portfolio [...] having diversity in your portfolio (such as in terms of geography) allows you to blunt some of the impact of Alice [...] I think the negative impact of Alice can be overplayed a bit. It got rid of some really bad patents and is cleaning up the system a little bit…”

A lot if not all software patents are not desirable to the software domain. At all. It isn’t as though there were programmers in that crowd though. It was an echo chamber of lawyers/attorneys. Someone called Pierantozzi is quoted/paraphrased as saying “there’s more confidence, less uncertainty [in software patents] especially in portfolios that are tied to technology…”

Keith Bergelt, a former US diplomat who worked in patent ‘monetisation’, was there too and he’s paraphrased as saying “having Microsoft as a licensee [in OIN] is symbolically important and it’s important for the entire community…”

If only they stopped feeding patent trolls — something OIN can do virtually nothing about. It’s worth reminding ourselves that Bergelt succeeds a person from IBM, who was the first head of OIN. In fact, OIN still is a very IBM-centric group.

A few days ago an article was published with the headline “Microsoft Wants to Make Peace with the Open Source Community” (then stop feeding patent trolls and financing firms that smear FOSS).

One Microsoft-connected patents troll that repeatedly attacked GNU/Linux firms (including Red Hat quite a few times) is still busy suing, based on this new report:

Cook Medical has won a successful dismissal of a patent infringement claim brought by Endotach, a subsidiary of Acacia Research Group.

Endotach’s appeal was dismissed by the US Court of Appeals for the Federal Circuit, which affirmed the US District Court for the Southern District of Indiana’s summary judgement that Endotech’s US patent (5,122,154) was invalid under section 102 of the US Patent Act.

Cook was originally sued by Endotach in 2012 at which point the patent had already expired.

[...]

The Supreme Court held that the equitable defence of laches no longer applied to cases where the alleged infringement occurred during the statutory period.

Over the past week there have also been reports about another Microsoft-funded patent troll suing almost all of Microsoft’s rivals in this space (security). As we noted before, there’s this press release and shallow press coverage. Exactly one month ago they got a patent back in play and they’re still as aggressive as ever while Microsoft carries on stockpiling new patents (examples in [1, 2]).

10.30.18

IBM- and Microsoft-Backed Patent Troll Strikes Again and IBM’s Lobbyist for Software Patents Has Just Defended Patent Trolls (Again)

Posted in GNU/Linux, IBM, Microsoft, OIN, Patents, Red Hat at 9:56 am by Dr. Roy Schestowitz

Related: IBM, IPO, AIPLA, ABA and Other Lobbying/Front Groups of the Patent Microcosm Are Trying to Change US Law for Software Patents

David Kappos as lobbyist

Summary: With IBM and Microsoft having lots of commonalities when it comes to patent policy and exploitation of the law (both employed similar people too, notably Marshall Phelps and David Kappos, former Director of the USPTO), concerns should be raised in light of the latest lawsuit from the patent troll they support

FORGET the nonsense about OIN and LOT Network; OIN does nothing to shield anyone from trolls or proxies, which Microsoft is leveraging to sell “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21]. It’s also difficult to forget Microsoft’s role in the SCO lawsuit, which is still ongoing (more than a decade and a half now) and primarily targets IBM.

“It is quite worrying to see IBM- and Microsoft-employed lobbyists publicly defending patent trolls on the very same day an IBM-armed and Microsoft-funded patent troll uses software patents for blackmail.”According to patent boosters, who took note of it pretty fast and linked to reports, patent troll Finjan, fueled by the new owner of Red Hat, backed and financed by Microsoft, filed another lawsuit. We had spotted the original press release within hours upon publication and it said this:

Finjan Holdings, Inc., (NASDAQ:FNJN), a cybersecurity company, today announced that — after nearly two years of good faith efforts to resolve a patent dispute with Fortinet, Inc. ( “Fortinet”) — its subsidiary Finjan, Inc. (“Finjan”) has filed a patent infringement lawsuit against Fortinet, Inc., a Delaware corporation with headquarters in Sunnyvale, California, in the U.S. District Court for the Northern District of California.

Finjan filed the Complaint (Case No. 3:18-cv-06555), on October 26, 2018, and alleges that Fortinet’s products and services infringed or are infringing at least nine of Finjan’s U.S. patents. Specifically, Finjan asserts that Fortinet’s FortiGate, FortiManager, FortiAnalyzer, FortiSiem, FortiSandbox, FortiMail, FortiWeb, FortiCache and FortiClient technologies, including Fortinet Security Fabric Platform products infringe U.S. Patent Nos. 6,154,844; 6,965,968; 7,058,822; 7,418,731; 7,647,633; 7,975,305; 8,079,086; 8,225,408; and 8,677,494 (collectively “the Asserted Patents”). Finjan is seeking, among other things, a jury trial, past damages not less than a reasonable royalty, enhanced damages for willful, wanton and deliberate infringement, and reasonable attorneys’ fees and costs for infringement of each of the Asserted Patents. Additionally, Finjan is seeking preliminary and permanent injunctive relief against Fortinet and those in privity with them, from infringing and inducing the infringement of the ‘968, ‘822, ‘731, ‘633, ‘305, and ‘408 Patents.

These are software patents. So the same month that Microsoft said it had reached patent “truce” with GNU/Linux its patent troll Finjan is filing yet another lawsuit against Microsoft’s rivals. It’s as if nothing at all has changed except Microsoft’s lies embedded all over the media (something about “protecting Linux” and “open-sourcing patents).

Meanwhile, the lobbyist David Kappos (sponsored by Microsoft and IBM after he had run the USPTO) is promoting software patents and patent trolls (like Microsoft’s and arguably IBM). He uses the euphemism non-practicing entities (NPEs) and published this article yesterday in what’s likely the largest site on the topic, saying:

The recipe for swinging the pendulum of patent law towards weaker patent rights is simple: Start with a generous warning about the scourge of low quality patents, stir in a skosh of fear mongering regarding non-practicing entities (NPEs) asserting those patents, then apply heat with predictions of lost jobs and threats to innovation, publicize in a blog, speech or article, and there you have it!

Just like the Trump-appointed Director Iancu he seems to be denying there’s a problem. Earlier this month Iancu came under a lot of fire, especially from front groups of technology firms large and small, after he had insinuated that patent trolls aren’t a problem or don’t even exist (they’re a ‘fiction’ or ‘fake news’). It is quite worrying to see IBM- and Microsoft-employed lobbyists publicly defending patent trolls on the very same day an IBM-armed and Microsoft-funded patent troll uses software patents for blackmail. Need we add that on the same day IBM also announced that it bought or agreed to buy all of Red Hat’s ‘defensive’ patents, which include software patents? The Federal Circuit typically finds that those patents are invalid (if the case reaches that far, at great expense to the defendant).

10.23.18

Microsoft’s Patent Troll Intellectual Ventures Still Suing Microsoft’s Rivals, Microsoft Gags Its Staff Regarding Patent Matters

Posted in Deception, GNU/Linux, Microsoft, OIN, Patents at 11:45 am by Dr. Roy Schestowitz

While Microsoft is trying to sell “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21], its ‘protection’ racket (defense from Microsoft’s trolls) and strategy for getting everyone — even GNU/Linux workloads — on Azure

Bill and Nathan

Summary: Microsoft says it’s pursuing “truce”; the patent trolls it has created and backed (Bill Gates still backs them at a personal capacity) feel differently

Microsoft loves Microsoft. Microsoft loves Windows. Microsoft loves its patents. It also loves the patent trolls it created and invested in. Microsoft’s biggest patent troll Intellectual Ventures passes patents to another shell (distancing itself from it) and then attacks rivals of Microsoft (again, as usual).

“Large companies, and especially Microsoft, are arming and financing patent trolls to attack their competition.”“An IP Valuation Partners affiliate is asserting patents recently acquired from Intellectual Ventures against Facebook, Instagram, Snap and Foursquare Labs,” Scott Graham (The Recorder) wrote.

This happened while Microsoft wiped the media with its lies, e.g. “protecting Linux”, “open-sourcing patents”, knowing that anyone from Microsoft talking about it would only refute these lies. As it turns out, based on a new video from a former Microsoft employee, “Microsoft had told internally not to talk to the press about the OIN deal, and Microsoft is refraining to talk to journalists about this,” as Benjamin Henrion put it.

As a reminder, the situation is far more complicated than Microsoft put it (e.g. when telling lies to the press). Large companies, and especially Microsoft, are arming and financing patent trolls to attack their competition. It is a SCO-like tactic. Microsoft’s patent trolls do this constantly while Microsoft sells ‘protection’ from these trolls. It’s a classic protection racket and Microsoft euphemistically calls it “Advantage” (the same word it used to compel companies to only use Novell’s SUSE).

“Microsoft has not changed; only its outward strategy (PR) has changed.”“14 of the 25 patent suits filed Thursday were filed by patent trolls,” we learned yesterday, “according to RPX Corp. That’s 56%.”

Companies don’t sue directlya fact that OIN would rather not be asked about (as it’s useless whenever that happens). The chief of OIN was himself working in the patent ‘monetisation’ business before he came to OIN. Need we remind readers that Microsoft has put Team Mono in charge of GitHub? Before Microsoft absorbed Team Mono in company form (Xamarin) Team Mono had strategically killed Free software projects that posed a threat to Microsoft/Windows. Microsoft has not changed; only its outward strategy (PR) has changed. It wants to get in.

“I saw that internally inside Microsoft many times when I was told to stay away from supporting Mono in public. They reserve the right to sue”

Robert Scoble, former Microsoft evangelist

10.21.18

Data Engine Technologies (DET) Just One Among Many Microsoft-Connected Patent Trolls That Pick on Microsoft’s Biggest Competitors

Posted in GNU/Linux, Google, Microsoft, OIN, OpenOffice, Patents at 5:57 pm by Dr. Roy Schestowitz

Data Engine Technologies (DET) and Acacia Research Corp.

Summary: Lawyers’ articles/blog posts continue to obscure the fact that Data Engine Technologies is merely a satellite or unit (one among many) of patent trolling giant Acacia Research Corp., connected to Microsoft and sporting a long history of lawsuits against GNU/Linux

As covered in an earlier post last weekend, potential ‘satellites’ of Microsoft are still attacking Microsoft’s biggest rivals using software patents.

Michael Borella (McDonnell Boehnen Hulbert & Berghoff LLP) wrote about a patent troll connected to Microsoft through Acacia, but like many others he overlooked or missed out the Acacia connection, having published his detailed analysis in a couple of places to say:

Data Engine Technologies (DET) filed an infringement suit against Google in the District of Delaware contending infringement of U.S. Patent Nos. 5,590,259, 5,784,545, 6,282,551, and 5,303,146. Google responded with a Rule 12(c) motion arguing that the patents are directed to patent-ineligible subject matter under 35 U.S.C. § 101. The District Court agreed and invalidated the patents. DET appealed.

In Alice Corp. v. CLS Bank Int’l, the Supreme Court set forth a two-part test to determine whether claims are directed to patent-eligible subject matter under § 101. One must first decide whether the claim at hand is directed to a judicially-excluded law of nature, a natural phenomenon, or an abstract idea. If so, then one must further decide whether any element or combination of elements in the claim is sufficient to ensure that the claim amounts to significantly more than the judicial exclusion. But generic computer implementation of an otherwise abstract process does not qualify as “significantly more,” nor will elements that are well-understood, routine, and conventional lift the claim over the § 101 hurdle.

[...]

I have to agree with PatentlyO, which viewed as “fairly questionable” the reasoning under which the notebook tab was the linchpin for patent-eligibility. And if you contrast the surviving Tab Patent claims with the claims that were held ineligible, this case certainly seems to equate claim breadth with patent-ineligibility – perhaps confirming that, as many of us suspect, an “abstract idea” is simply a really broad idea. In any event, decisions like this highlight the not-infrequent anomaly that claims can survive novelty and obviousness challenges, but fail on patent-eligibility. And as we saw here, the present court’s analysis, stripped down to what it really was, had a lot to do with obviousness.

Dozens of long paragraphs about this decision from Judges Reyna, Bryson, and Stoll (with opinion by Judge Stoll) and Acacia not mentioned even once? It already sued major GNU/Linux companies several times after it had hired from Microsoft. Now it goes after Google, specifically the biggest rival to Microsoft’s cash cow, Microsoft Office.

This same case was mentioned by Charles Bienema, who also overlooked the connection when he focused on patent scope:

Some claims directed to a computer spreadsheet are patent-eligible, while others are not, said the Federal Circuit in Data Engine Techs. LLC v. Google LLC (Fed. Cir. 2018) (precedential). The District of Delaware had granted a Rule 12 judgment on the pleadings of 35 U.S.C. § 101 invalidity of claims of U.S. Patent Nos. 5,590,259; 5,784,545; 6,282,551; and 5,303,146; the Federal Circuit thus reversed-in-part, affirmed-in-part, and remanded.

The three surviving patents (with the exception of one independent claim which had a patentable dependent claim), the ’259, ’545, and ’551) were dubbed the “Tab Patents.” The Tab Patents purportedly solved the problem that “complex commands” were required by “prior art three-dimensional or multipage electronic spreadsheets.” The patent-eligible solution was “a notebook-tabbed interface” to provide users with easy navigation through three-dimensional spreadsheet. Why? Because the notebook tab “allowed computers, for the first time, to provide rapid access to and processing of information in different spreadsheets, as well as easy navigation in three-dimensional spreadsheets.”

A widely-spread article [1, 2] by Joseph Saphia and Bonnie L. Gaudette (Haug Partners) said this:

On October 9, 2018, the Federal Circuit added to its growing collection of favorable Alice step one rulings1 by reversing portions of a decision from the U.S. District Court for the District of Delaware concerning an invention aimed to streamline the technology of electronic spreadsheets—a technology that has been around for twenty-five years. See Data Engine Technologies LLC v. Google LLC, No. 2017-1135, 2018 U.S. App. LEXIS 28412 (Fed. Cir. Oct. 10, 2018). The Federal Circuit’s decision may be viewed as a not-so-gentle reminder to patent applicants and drafters alike to continue to draft software patent claims narrowly and with specificity if they wish to survive patent eligibility challenges under 35 U.S.C. § 101 and Alice step one.

The court commenced its opinion with a robust overview of Data Engine’s patents-at-issue: U.S. Patent Nos. 5,590,259; 5,784,545; and 6,282,551 (the “Tab Patents”) and U.S. Patent No. 5,303,146 (the “’146 Patent”). See Data Engine, at *2-12. The Tab Patents are entitled “System and Methods for Improved Spreadsheet Interface With User-Familiar Objects.” Id. at *1-2. In its detailed review of the Tab Patents, the court noted that they claim “systems and methods for making complex electronic spreadsheets more accessible by providing familiar, user-friendly interface objects—specifically, notebook tabs—to navigate through spreadsheets while circumventing the arduous process of searching for, memorizing, and entering complex commands.” Id. at *2. In essence, the Tab Patents aim to overcome some of the challenges users encountered when navigating electronic spreadsheets due to complex menu systems that “diminished the utility and ease of use of this technology.” Id. at *3. In an attempt to offer a solution to the challenges of prior art multipage electronic spreadsheets, the Tab Patents are directed to “implementing a notebook-tabbed interface, which allows users to easily navigate through three-dimensional electronic spreadsheets” and “conveniently flip through several pages of notebook to rapidly locate information of interest.” Id. at *4-5. The ’146 Patent is entitled, “System and Methods for Improved Scenario Management in an Electronic Spreadsheet” and is directed to tools that permit “electronic spreadsheet users to track their changes” automatically, as opposed to manually, when testing a multitude of modeling scenarios. Id. at *10-11.

Yes, patents on user interfaces are still being tolerated in the US, at least in the Federal Circuit. Charles Bieneman classifies these as “Software Patents” and recalls a related albeit older case on which he says: “Claims directed to an “information management and real time synchronous communications system for configuring and transmitting hospitality menus” were held patent-ineligible under 35 U.S.C. § 101 and the Alice abstract idea test in Ameranth, Inc. v. Pizza Hut, Inc., No. 3-11-cv-01810 (S.D. Cal. Sept 25, 2018). The court thus granted the defendants’ motion for summary judgment that U.S. Patent No. 8,146,077 is unpatentable.”

“This is a problem. It impacts LibreOffice, OpenOffice etc. because these too have tabbing.”“The patent owner,” he later added, “tried to rely on two Federal Circuit decisions, Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc. (2018), and Visual Memory LLC v. NVIDIA Corp. (2017), as well as a recent district court case. But these cases were distinguishable…”

We covered this before. The above comes from a blog that advocates software patents. Generally speaking, software patents are the joke of all jokes. Not innovation at all. But lobbying from patent law firms has made the unthinkable reality. Bieneman accepted defeat when he wrote about another more neglected case (because it’s a district court): “Agreeing that patent claims “are directed to the abstract idea of facilitating cross-marketing relationships and fail to add any inventive concept” under 35 U.S.C. § 101 and the Alice/Mayo abstract test, Delaware’s Judge Stark granted a Rule 12(b)(6) motion to dismiss a complaint alleging infringement of claims of U.S. Patent No. 8,768,760. DiStefano Patent Trust III, LLC v. LinkedIn Corp., C.A. No. 17-1798-LPS-CJB (D. Del. Sept. 28, 2018).”

“OIN cannot do anything about such a racket.”Why was such a ridiculous patent granted in the first place? The headline should be a “duh” moment: “Linking Web Pages to Each Other Not Patent-Eligible” (based on prior art too, not just obviousness and abstractness).

As the above (main) story shows, however, merely adding tabs to spreadsheets is still considered innovative. The high court considers or determines this to be patent-eligible. This is a problem. It impacts LibreOffice, OpenOffice etc. because these too have tabbing. Will the troll go after them too while Microsoft claims to have reached a “truce” and looks the other way? The only known ‘cure’ is buying Microsoft ‘protection’ in the form of “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21] — a racket that extends to trolls Microsoft can control. OIN cannot do anything about such a racket.

MIT and the Prior Art Archive Perpetuate Existing Problems

Posted in America, Apple, GNU/Linux, Google, IBM, Microsoft, OIN, Patents at 11:37 am by Dr. Roy Schestowitz

There’s a reason why similar initiatives perished in the past

Strata Center MIT
Strata Center MIT

Summary: Large companies with many tens of thousands of patents (each) would have us believe that broadening access/reach of prior art (e.g. to patent examiners) would solve the issues; This may very well work for these large companies, but it overlooks the broader picture

COMPANIES like Apple, Microsoft and IBM — large companies that cross-license among themselves — don’t fear the USPTO or even patents in general (not even the EPO where they have a lot patents of their own). The patent system has, with few exceptions, served them well. It protects them. It’s a form of protectionism.

20 years after its foundation Google has already joined this ‘club’; instead of reforming things Google is adapting and so does Red Hat. To companies like these, which use GNU/Linux extensively, OIN and the likes of it represent a solution. Google backs LOT Network, which is similar.

Recently, together with a bunch of other large companies (Cisco, Dell, Intel, AT&T, Amazon, Microsoft, and Salesforce are named below), Google pushed the “Prior Art Archive”; MIT’s self-promotional new piece about it gives a rather foggy idea; it even quotes MIT staff and no critics/sceptics. It doesn't help much when they focus on prior art rather than patent scope and obviousness (among other things). To quote MIT’s own site:

Two years later, a company applies for a patent on your invention. Once the application is granted, the company not only begins profiting from your device, but launches a lawsuit against you, the inventor, for infringing their patent.

This is the danger faced by researchers and developers alike, because the limits of existing content repositories means it is often a struggle for patent examiners to find what they call prior art — evidence that an invention is already known — relating to an application. That means that some applications that should be rejected are wrongly approved.

[...]

Cisco has already uploaded 165,000 documents into the archive, and a number of companies have committed to take part in the initiative, including Dell, Intel, AT&T, Amazon, Microsoft, and Salesforce. Google has also assisted the project with classification technology that will be used in the system.

As we explained earlier this month, this serves to distract from other efforts and put examination efforts in the hands of the public, essentially outsourcing or crowdsourcing the work (for corporate gain). When examiners use the archive they may get a false sense of search exhausion.

10.17.18

Ask OIN How It Intends to Deal With Microsoft Proxies Such as Patent Trolls

Posted in GNU/Linux, Microsoft, OIN, Patents at 1:59 am by Dr. Roy Schestowitz

Microsoft does not need to sue GNU/Linux (and hasn’t done so in quite a while); there are ‘tentacles’ for enforcement…

Bill and Nathan
The "Microsoft spinoff" Intellectual Ventures is still managed by the same man. Credit: Reuters

Summary: OIN continues to miss the key point (or intentionally avoid speaking about it); Microsoft is still selling ‘protection’ from the very same patent trolls that it is funding, arming, and sometimes even instructing (who to pass patents to and sue)

WE HAD been writing about Microsoft’s attacks — especially by means of patents — and ‘defensive’ aggregators (DPAs) long before the Open Invention Network (OIN) added Microsoft as a member (or even LOT Network). We wrote many articles about why OIN wasn’t the solution, except perhaps to large companies such as Red Hat and IBM (which already cross-licenses with Microsoft anyway). We foresaw Microsoft joining as a member and clarified that it would not mean very much. OIN cannot really tackle some of the key problems. Even if Microsoft threw away all of its patents (voiding everything) — however unlikely that is — that would still leave many patents out there that it gave to patent trolls such as MOSAID (now known as Conversant). For well over a decade Microsoft has ‘polluted’ several spaces/domains with trolls, flooding them with risks that help Microsoft sell “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21] (or previously Novell/SUSE Linux with the ‘Microsoft tax’ for what they back them marketed as “intellectual property peace of mind”).

“For well over a decade Microsoft has ‘polluted’ several spaces/domains with trolls, flooding them with risks that help Microsoft sell “Azure IP Advantage”…”OIN’s response to my views (just mentioned in Hall’s new article with the words “Peace Treaty” in the headline) dodges the issue of patent trolls, including Microsoft-connected ones. There’s nothing they can do about these and occasionally they admit so, too. With lots of USPTO-granted software patents out there (OIN expresses no interest in actually challenging those) there’s going to be trouble.

I must say that not a single person has yet pointed out inaccuracies or errors in my articles/views on this matter. Nobody. I saw a lot of people agreeing; curiously enough, some key Microsoft employees blocked me in Twitter pro-actively (even though I never even spoke to them or about them). How curious. It’s like they’re afraid of actually dealing with the facts and debate matters. Ears wide shut.

Mitchel Lewis, who blogs about technology [1, 2], recently approached me for “a chat about Microsoft [...] Specifically with regard to patent trolling. I’m writing an article about the influence of Bill Gates Sr. and his law firm KL Gates with regard to the predatory design and nature of Microsoft…”

“I’m an open book man,” he said. “Another project that I have on the back-burner is focused on how Microsoft influences and suppresses the media.”

Here is what we wrote to me about OIN and patent trolls:

Truth be told, I just stumbled upon that site today so I will be spending a bit of time there over the next few weeks. Based on what I’ve read so far though, thanks for pointing out how Microsoft funds patent trolls; this was news to me. But it also seems like an eerily similar tactic leveraged by Peter Thiel, and presumably others, when he enacted his revenge on Gawker by funding Hulk Hogan’s lawsuit. In turn, this makes me wonder if media outlets dance around topics that make Microsoft and other large entities look bad for fear of indirect retaliation such as this.

I’ve been so focused on other crude aspects of Microsoft that I seem to have neglected to realize just how potent of a troll they are in the realm of patent law, among other things. Only after realizing that they’ve been trolling the Linux world for years, to the point of being one of necessitating factors of OIN’s formation, did I begin to consider just how much of their business is dependent on subverting their competition, Linux or otherwise, through their patents.

Needless to say, please feel free to use and re-appropriate anything that I’ve written to use as well as cite at your discretion. I maintain the stance that there are not enough people writing about how destructive Microsoft is in this day and am just glad to see others writing about it.

OIN may never be able to explain how it intends to tackle Microsoft’s satellites, such as Intellectual Ventures, Finjan, and Acacia, which as noted only earlier this week still attacks other OIN members for their products that compete with Microsoft’s.

10.14.18

Federal Circuit Doubles Down on User Interface Patents, Helps Microsoft-Connected Patent Trolls Curtail the Prime Competitor of Microsoft Office

Posted in Google, Microsoft, OIN, Patents at 8:29 am by Dr. Roy Schestowitz

Dan Bricklin
Dan Bricklin, photographed by Betsy Devine at a blogger brunch in Boston’s Chinatown 2/25/2007. Licence: CC BY 2.5

Summary: Patent trolls that are connected to Microsoft continue to sue Microsoft rivals using old patents; this time, for a change, even the Federal Circuit lets them get away with it

THE Federal Circuit (CAFC) with its current Chief Judge (Prost) is rather different from what it used to be. Perhaps it learned to accept that reversals by SCOTUS must end, not by means of changing SCOTUS itself but by getting rid of corrupt judges like Rader (he actually got caught).

Today’s CAFC is supportive of Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) and typically affirms PTAB’s decisions — a topic we shall write about separately in view of newer/latest determinations. 35 U.S.C. § 101 at the U.S. Patent and Trademark Office (USPTO) has enabled both PTAB and CAFC to rule out patents quite promptly, without having to engage in a lengthy process like search and assessment of prior art.

“Back in 1992,” Patently-O recalled for those who forgot, “Borland Software invented a tabbed spreadsheet for its Quattro Pro that was then copied by Excel, Google Sheets, and others. Today, the Federal Circuit finally found the patent claims enforceable (or at least patent eligible).”

Microsoft copied everyone, but nowadays it is suing everyone, including Corel.

Found initially via [1, 2, 3] was this article/blog post titled “Tabbed Spreadsheet — Patent Eligible”. It’s what Patently-O covered along/after the above tweet:

D.Delaware Judge Stark dismissed DET’s case on the pleadings — holding that the Borland/DET spreadsheet-tab patent claims were directed to abstract ideas. On appeal, the Federal Circuit has partially reversed — finding that some of the claims are directed toward “specific improved method for navigating through complex three-dimensional electronic spreadsheets” and thus are patent eligible. The decision here is authored by Judge STOLL and joined by Judges REYNA and BRYSON.

The patents at issue here basically cover the use of tabs in a spreadsheet document. You might be thinking – “WHAT I’VE BEEN USING TABS FOR 25 YEARS” — at least that is what I was thinking. The thing is that DET’s patents were invented by folks at Borland Software — baker of Quattro Pro — and claim priority back to 1992. BOOM! Microsoft came out with its tabbed version of Excel in 1993 following Borland’s release. Back then I used Quattro Pro – and tabs were awesome. The case here is against Google for its tabbed sheets.

As you’ll see below, the claims include a “notebook tab” — and that feature seems to be the key for patent eligibility. This aspect of the decision makes it fairly questionable.

I’ll note that this case may well fit into the IP case-books as a companion to the 1996 Supreme Court case on spreadsheet menu copyright. Lotus Dev. Corp. v. Borland Int’l, Inc., 516 U.S. 233 (1996).

“CAFC only exists to be reversed by SCOTUS,” Carlo Piana wrote about it (he became famous for his Samba lawyering).

Benjamin Henrion said: “Despite Alice, CAFC just founds “tabs in a spreadsheet” to be patent eligible. Software patents are back, specialized patent courts are dangerous, biased, populated by the patent establishment, and don’t want to listen http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1135.Opinion.10-9-2018.pdf …”

“It’s actually not so unusual for CAFC,” I told Henrion, “as not too long ago they said OK to other GUI patents; not exactly the same as algorithms/callback functions…”

We wrote about this as recently as January. To Piana I said: “That was true when Rader, the corrupt man, was in charge. His successor is OK and CAFC improved…” (under Prost)

Paul Redmond Michel was also pretty bad (he still is), but unlike Rader he was not corrupt.

Since the above alludes to spreadsheets, noteworthy is also coverage about Microsoft’s ‘proxy’ Acacia. These patent trolls of Microsoft continue to sue Microsoft’s rivals using dubious software patents. To quote Law 360:

The Federal Circuit on Tuesday reversed a lower court’s invalidation of three patents asserted against Google LLC by a unit of patent licensing company Acacia Research Corp.

So a unit of a patent troll of Microsoft (Acacia Research Corp.) sued Google, Microsoft’s main rival in this sector. Patently-O revisited the subject, citing/mentioning Dan Bricklin (the so-called father of spreadsheets):

This week’s decision in DET v. GOOGLE focuses on patent eligibility of a muti-sheet spreadsheet displayed with notebook tabs. The case is reminiscent of a 2014 Patently-O post by Howard Skaist written in the still roiling wake of Alice and Mayo. In his post, Skaist considered ways that the inventor of VisiCalc (Dan Bricklin) might have claimed the computerized spreadsheet he first created in 1979.

[...]

In some pre-Bilski writing, Dan Bricklin explained why he didn’t actually try to patent the spreadsheet.

After Alice these patents would be null and void anyway. Microsoft insists that it wants "truce" (as recently as days ago), but here we have a Microsoft-connected troll attacking another OIN member, Google. OIN has no way/mechanism for dealing with intermediaries.

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