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09.02.18

US Patent Office and Patent Courts Taking a Stand Against Submarine Patents or Patent Ambushes

Posted in Microsoft, Patents, RAND at 3:50 am by Dr. Roy Schestowitz

Should tackle evergreening similarly

Gil Hyatt
Reference: Inventor battling U.S. over patents from ’70s

Summary: When patent trolls armed by Microsoft (in order to attack Microsoft’s rivals) find out that submarine patents are no longer worth the paper they’re printed on and even examiners refuse to grant such patents

A PATENT which practically or at least metaphorically acts as a form of “submarine” (a form of an ambush) was mentioned a lot about a decade ago [1, 2] in relation to a high-profile case of Rambus. Rambus Incorporated was founded 28 years ago and it is considered a “licensing company,” i.e. firm that only/mostly deals with patents. We mentioned submarine patents again last year in relation to OIN. It is a crude form of entrapment and courts can hear arguments to that effect; sometimes examiners too take such considerations into account when assessing whether or not to award a patent.

“It is a crude form of entrapment and courts can hear arguments to that effect; sometimes examiners too take such considerations into account when assessing whether or not to award a patent.”A couple of days ago Venture Beat, which focuses on technology, did an interview (i.e. puff piece) with Gil Hyatt, “a man who created a “submarine patent” by continually following up his patent application with new details.” Why the scare quotes there? A submarine patent is what it really is. Here’s the introduction:

Gil Hyatt’s patience has been tested. After a 22-year delay, the inventor received a patent in 1990 for what he called the first microprocessor, or a computer on a chip. After cutting a deal with Philips Electronics, he began collecting royalties on a lot of electronics products that used the fundamental technology.

In Silicon Valley and elsewhere, Hyatt was viewed as a carpetbagger, a man who created a “submarine patent” by continually following up his patent application with new details. He claims he was a diligent individual inventor who protected his rights. But after the controversial patent award, and after getting 75 patents, the patent office never approved one of his applications again.

More than 40 years later, Hyatt said his important applications are still in limbo. (The typical wait time is 18 months.) He has made at least $150 million from the Philips deal, but he said he is fighting for “justice.” The case took a twist in 2014, when news emerged that the U.S. Patent and Trademark Office had a special way of flagging potentially controversial patents.

Congratulations to whoever at the USPTO did that. The man became a multi-millionaire out of “submarine patents”, just as some other people became multi-millionaires out of patent trolling, i.e. blackmail. They basically take the money of many other people, including some small businesses. The summary of this article in Slashdot says, “80-Year-Old Inventor Gil Hyatt Says Patent Office is Waiting For Him To Die” (as if it’s him who is the victim deserving of sympathy!). Thankfully there are many comments there, over 100 of them.

Speaking of trolls and submarine patents, Core Wireless Licensing S.A.R.L. is part of Conversant (formerly known as MOSAID, a Microsoft-connected troll), and it has just found out that its submarine patent cannot be enforced (by virtue of it being part of an ambush). We wrote about it last month and Watchtroll caught up with it quite late (13 days after the decision). It wrote this:

The United States Court of Appeals for the Federal Circuit recently issued a ruling on discussing the equitable doctrine of implied waiver; a decision that will be particularly important for those participating in the standard setting process and engaging with standard setting organizations, or SSOs as they are sometimes called. According to the Federal Circuit, failure to disclose patents and applications relevant to a standard may render a patent unenforceable based on an implied waiver. See Core Wireless Licensing S.A.R.L. v. Apple Inc., No. 17-2102, 2018 (Fed Cir. Aug. 16, 2018) (Before Reyna, Bryson, and Hughes, Circuit Judges) (Opinion for the court, Bryson, Circuit Judge).

This case began when Core Wireless Licensing S.a.r.l. (“Core Wireless”) sued Apple Inc. (“Apple”) for infringing U.S. Patent No.s 6,477,151 and 6,633,536, both of which were directed to an improvement in the way mobile devices communicate with base stations in a digital network. Apple, in turn, argued that the ‘151 patent was unenforceable because Nokia – the original assignee of the ‘151 patent – breached a duty of disclosure it owed to the European Standards Organization (“ETSI”) during ETSI’s development of technical standards addressing propagation delays in GPRS networks. Specifically, Apple argued that Nokia’s failure to disclose a Finnish patent application, to which the ‘151 patent claimed priority, while advancing a proposal to revise the ETSI GPRS standard rendered the ’151 patent unenforceable. While Nokia’s proposal was ultimately rejected and replaced by a competing proposal, Nokia did not disclose its Finnish patent application to ETSI until four years later.

What we have here is a bunch of patents passed at Microsoft’s own directions (it explicitly instructed this) to a troll which then attacked Apple and Android/Linux. It’s one among many nasty things Microsoft did inside Nokia.

Qualcomm and AMD Want ‘Innovation’ by Embargo

Posted in Patents, RAND at 1:33 am by Dr. Roy Schestowitz

Pursuing patent deals (patents as a revenue source) by denying rivals even access to the market

Don't block

Summary: Campaigns of patent aggression at USITC (or ITC for short) look for embargoes — the most radical form of patent assertion

THE principal prospect of patents was simple: promotion of innovation. How? Publication. In exchange for what? A temporary monopoly. How would such a monopoly be enforced? Patent taxes? Threats? Lawsuits? Embargoes? It doesn’t say. But the practices evolved or devolved over time. For the objective of innovation to be served it’s not hard to see that complete monopolisation should be actively discouraged. It reduces choice and limits the number of people permitted to work in a certain discipline.

Florian Müller has long written about Qualcomm‘s patent aggression and before the weekend he wrote about its efforts to ban imports by Apple: [via]

A day before an originally-scheduled-then-canceled hearing on a motion by a group of class-action consumers to enjoin Qualcomm from enforcing a hypothetical ITC exclusion order (i.e., a U.S. import ban) against Intel-powered iPhones, Judge Koh has denied the motion without prejudice. One might also say: with an invitation to try again later.

More than a month ago, I analyzed Qualcomm’s opposition and plaintiffs’ reply brief, and wrote that “Qualcomm’s timing-related arguments appear[ed] potentially more interesting to me than the other points it [made].” And indeed, timing was outcome-determinative, for the time being: Judge Lucy Koh of the United States District Court for the Northern District of California based her decision on the Supreme Court’s 2013 holding in Clapper, a case in which Amnesty International and others expressed fears over the federal government, under the Foreign Intelligence Surveillance Act (FISA), intercepting communications between U.S. citizens and foreigners in ways that would infringe on some people’s constitutional rights. In Clapper, the Supreme Court declined to see “certainly impending” injury in a “highly attenuated” chain of possibilities, given that multiple decisions that could go either way had to go one particular way (in each case) in order for the alleged injury to materialize. To the Supreme Court, this was just “too speculative,” and Judge Koh identified parallels with the consumer motion against Qualcomm, given that even if Qualcomm prevailed on the merits of one or more patents-in-suit, the ITC might not grant the exclusion order (broad except that it’s limited to Intel-powered iPhones, which does raise competition concerns) in the form Qualcomm is seeking, that the ITC decision would be appealable, and the President could veto it.

A day or so later Müller added this update about antitrust aspects:

Four months prior to the FTC v. Qualcomm antitrust bench trial in the Northern District of California, the U.S. Federal Trade Commission has brought a motion for partial summary judgment that has the potential to make a far greater contribution to fair competition in the wireless baseband chipset market than the procedural context (a pretrial motion) suggests. The FTC is asking Judge Lucy Koh to hold that, under certain (F)RAND licensing obligations it entered into when it participated in wireless standard-setting, Qualcomm must licenses its CDMA, UMTS and 4G/LTE standard-essential patents (SEPs) to rival chipset makers (such as Intel).

This is an unusual situation in which a summary judgment motion is legally extremely simple, yet has the potential for truly transformative impact on the marketplace. In most situations where a party is seeking a game changer, reasonably tricky question of law and/or fact are involved. Here, the FTC is just seeking clarification that Qualcomm’s FRAND licensing commitments say what they say.

It has meanwhile emerged, as per Watchtroll, that ITC is leveraged for more embargo attempts and it’s succeeding. AMD has just had something to celebrate; it resorted to embargo tactics against VIZIO, SDI and MediaTek last year. Who’s behind it?

AMD was represented by attorneys Michael Renaud, Jim Wodarski, Michael McNamara, Bill Meunier, Adam Rizk, Marguerite McConihe, Matthew Karambelas, and Catherine Xu, and Aarti Shah, of Mintz Levin Cohn Ferris Glovsky & Popeo PC.

The AMD complaint alleged violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and was based upon the unlawful importation into the United States, the sale for importation, and the sale within the United States after importation of certain graphics systems, components thereof, and consumer products containing the same. The importation in question was asserted to infringe certain claims of the U.S. Patent No. 7,633,506 (“the ’506 patent”); U.S. Patent No. 7,796,133 (“the ’133 patent”); U.S. Patent No. 8,760,454 (“the ’454 patent”); and U.S. Patent No. 9,582,846 (“the ’846 patent”).

Another article, this one by Anton Shilov (veteran writer on hardware matters), says this:

AMD has won a round in its legal battle against makers of TVs at the United States International Trade Commission (US ITC). The Commission found that Vizio and Sigma Designs have infringed one of AMD’s patents covering fundamental aspects of modern GPUs. The ITC ordered to cease imports of some of Vizio TVs to the U.S.

Back in early 2017, AMD filed a lawsuit with the US ITC against LG, MediaTek, Sigma Designs, and Vizio. The plaintiff accused the defendants of infringing three patents covering fundamental aspects of contemporary graphics processing, such unified shaders (‘133), parallel pipeline graphics system (‘506), as well as a graphics processing architecture employing unified shaders (‘454). Furthermore, the complaint referenced an in-progress patent application covering GPU architectures with unified shaders (‘967) and accused two of the said companies of infringing it as well. Meanwhile all the defendants license (or licensed) their GPU technologies from ARM and Imagination Technologies (though, as we reported back in early 2017, it looks like AMD only accuses SoCs based on ARM’s architecture of infringing its patents).

I have some professional background in computer graphics albeit not GPUs (or shaders); the above clearly aren’t software patents (so 35 U.S.C. § 101 does not apply) because processing commands in silicon (the ‘pipeline’) is about accelerating execution of code/signal generation. In the case of Qualcomm we’re looking at standard-essential patents (SEPs) — i.e. patents one cannot avoid stepping on — for the implementation of mobile communication, as per industry standards. There are some software patents in there, but most are not.

What we see here is monopolisation taken to the extreme; one must pay particular companies a lot of money to merely comply or conform to standards or else be barred from import/export. How is that good for innovation? The whole FRAND euphemism does not begin to describe just how unjust that is. There should be no patents in such widely-used standards (whose embrace isn’t merely a choice).

07.18.18

IAM is Pushing SEPs/FRAND Agenda for Patent Trolls and Monopolists That Fund IAM

Posted in Deception, Patents, RAND at 6:39 pm by Dr. Roy Schestowitz

Sponsored by Microsoft-connected patent trolls such as Finjan, who also just ‘happen’ to be speakers at this upcoming event

Finjan speaker

Summary: The front group of patent trolls, IAM, sets up an echo chamber-type event, preceded by all the usual pro-FRAND propaganda

PATENTS are OK as long as they don’t obstruct access to a market. It should be possible to work around them one way or another, otherwise the USPTO becomes merely a monopoly protector or protectionism agency. If patents are about innovation, one must keep this in mind.

“Rokt’s software patent to take centre stage in high-stakes hearing,” said this new headline. “Motorola Solutions Wins Patent Infringement Lawsuit Against Hytera Mobilfunk GmbH Resulting in Injunction and Recall,” said another. In one case we see software patents and in the latter an embargo. Is the public well served by these? Probably not. How about this (almost) week-old report stating that a “federal appeals court on Thursday declined to reconsider a recent decision reinstating a patent infringement lawsuit against Apple Inc.”

The patent in question is very… questionable. So are many of IBM’s patents, which are simply software patents asserted in bulk (to make legal challenges a lot more expensive). We wrote about that yesterday and earlier today Richard Lloyd from the patent trolls’ lobby fired the headline “IBM’s infringement suit against Groupon shows it’s still a licensing heavyweight” (celebrating extortion). This malicious lobby, only about a month after corrupt Battistelli had given a keynote speech at its US think tank-type event, today announced that a lobbyist, Makan Delrahim, will keynote its extortion event (“patent licensing event”). To quote:

Makan Delrahim, the assistant attorney general for the Antitrust Division of the US Department of Justice, has been comfirmed as the keynote speaker at Patent Licensing 2018, IAM’s annual event focusing on the key issues affecting licensees and licensors, and their dealmaking strategies, in the US and beyond.

Suffice to say, the event will be an(other) echo chamber for SEPs/FRAND proponents, who also fund IAM and this event. Delrahim, being a lobbyist, probably won’t feel too uncomfortable in such a setting.

Going back to Richard Lloyd, who is fronting for patent trolls and patent lawyers, he has this update on standard-essential patents (SEPs). It’s about Ericsson, which not only acts like a patent troll but also created several dedicated patent trolls to serve as proxies. Lloyd wrote:

Ericsson has put together the CAFC brief for its appeal against the Central District of California federal court’s decision in its litigation with Chinese handset manufacturer TCL. This sets the scene for the next round of one of the most consequential disputes over standard essential patents (SEPs) that the mobile sector has seen in the US for many years. The document was filed more than six months after Judge James Selna largely sided with TCL over its claims that the Swedish telecoms giant’s licensing offers for its 2G, 3G and 4G patents were not FRAND.

“After almost a decade of litigation, Philips wins India’s first-ever SEP infringement decision,” Jacob Schindler (Lloyd’s colleague) wrote, having already repeatedly bashed India in an effort to make software patents legal there. This time it’s about Philips and its standard-essential patents:

After a number of very significant interim judgments in telecom licensing cases, the Delhi High Court has for the first time issued a SEP infringement verdict following a full trial. Philips was the beneficiary of the decision, in a case centered on the DVD Video and DVD ROM standards. But practitioners say the ruling leaves unaddressed questions on what constitutes FRAND conduct and abuse of dominant position in India. The lawsuit arose all the way back in 2009, when Philips sued two local companies – Manglam Technology and Bhagirathi Electronics – for making infringing DVD players.

Expect IAM to keep pushing this sort of toxic agenda, which merely acts as a “patent thicket” that obstructs competition and taxes the public.

IAM is not a news site. It is a front group disguised as a news site/publisher.

06.27.18

US Supreme Court Will Hear Helsinn v Teva, But What’s Needed Right Now is a Challenge to Patents Inside Standards (a.k.a. ‘FRAND’ or ‘SEP’)

Posted in America, Antitrust, Europe, Microsoft, Patents, RAND, Standard at 11:40 am by Dr. Roy Schestowitz

Standards you can’t use (unless you’re rich)

Trapped

Summary: Antitrust/monopoly aspects of patents one cannot work around (to merely conform/comply with industry standards) are worth debating at the highest of levels rather than in forums full of lobbyists (sometimes hosted inside Microsoft’s very own premises!)

EARLIER this week we noted that SCOTUS would not reassess patent scope (e.g. Section 101). It was mentioned by Patently-O earlier this week and is now being mentioned by many other patent-centric blogs. Managing IP wrote:

The court in Helsinn v Teva appears likely to craft a bright-ruling on the issue of whether the confidential sale or license of a not-yet-patented technology or process qualifies as prior art under the America Invents Act

Gregory Sephton and Anna Schoenfelder said: “As a follow-up to our previous post “The Federal Circuit Has Its Final Say On the “On-Sale” Bar Under the AIA,” the Supreme Court has granted certiorari in the Helsinn v. Teva case, which concerns whether the America Invents Act (“AIA”) changed the longstanding “on-sale bar” rule. This means that at least four of the nine Supreme Court justices agreed to address this case.”

Watchtroll (Gene Quinn) also had to say something only hours after promoting an “ethical” troll, claiming that “iPEL has also defined a set of business practices that a Non-Practicing Entity can follow in order to call itself an Ethical NPETM.”

Ethical? That’s funny!

It’s like Patent Factory Europe (PFE). WIPR has since then done a puff piece for this troll’s PR campaign and it’s comical that those taxing everything with patents, harming small businesses the most, are trying to hide that fact by associating themselves with “Startups and Small Businesses” and “SMEs”. It is, at best, a googlebombing strategy. They wish to drown out the truth with press releases and lies.

The subject of FRAND has meanwhile resurfaced. The same people who push this PFE nonsense are best known for lobbying on FRAND in Europe. They front for large corporations, notably Microsoft. “I am reminded that FRAND worked its way into the ITU’s false definition,” a reader told us, linking to ITU’s definition of “Open Standards” after Microsoft lobbying/entryism (we covered this before).

Florian Müller, a FRAND proponent, has meanwhile ranted about Delrahim (lobbyist-turned-official), whose take on FRAND — related to standard-essential patents (SEPs) — he does not agree with. To quote:

This is a follow-up to last month’s post on an open letter that 77 former government officials and professors (of law, economics, and business) sent Assistant Attorney General Makan Delrahim in order to remind him of long-standing and consistent U.S. policies on standard-essential patents (SEP) under both Republican and Democratic administrations. I’ve meanwhile become aware of the AAG’s reply, which does not provide any indication that he’s on the side of innovation and fair competition.

To his response, Mr. Delrahim attached a letter dated February 13, 2018 from about a dozen academics and former government officials that support the statements he makes, which he describes as “the United States’ policies” (we’ll talk about that further below). With the greatest respect for those individuals, they do not collectively counterbalance the 77 signatories of the letter that criticized Mr. Delrahim’s statements. That’s not just a matter of numbers: for an example, there is no former FTC chairman among them.

Also, before the academics’ February letter, there was a very impressive industry letter to AAG Delrahim in January, signed by industry bodies such as CCIA, the Fair Standards Alliance, the Software & Information Industry Association (SIAA), and ACT | The App Association, but also by major tech companies such as Apple, Intel, Microsoft, Samsung, HP, Dell, and Cisco. It’s very hard to understand why neither of those letters appears to have given AAG Delrahim pause. Does he seriously think he can make his contribution to #MAGA by acting against the likes of Apple, Intel, HP, and Microsoft–and trade organizations that have such companies as Google among their membership?

This whole “MAGA” delusion aside (Müller is an avid Trump proponent), it’s not hard to see that several of the above groups are Microsoft front groups (at least 3 of them). But what ought to matter a lot more is the benefit to society at large, including small businesses. Maybe the Justices at SCOTUS will some time soon find an opportunity to look into the matter (instead of relying on corporations and front groups that set policies by lobbying Trump-appointed ‘officials’, or former lobbyists). We certainly hope so because we have written a great deal about this subject since our inception in 2006.

06.02.18

US Antitrust Official Makan Delrahim Encourages Parasitic Patent Behaviour — Not Just Embargoes — in the Phones Domain and Beyond

Posted in America, Antitrust, Apple, Asia, Patents, RAND, Samsung at 8:47 am by Dr. Roy Schestowitz

The lawyers might like it, but it’s bad for the customers (fewer choices, more expensive overall)

ZTE

Summary: US antitrust authorities and the European Commission have been speaking a lot lately about FRAND/SEP and SPCs; will they institute policies which benefit the monopolies or the market at large?

WE HAVE ALWAYS PREFERRED not to deal with politics but with purely technical matters, but when it comes to patent law it seems like politics are inevitable. The EPO, for example, is run by a crooked politician and the USPTO is connected directly to the government. See Makan Delrahim's history just before Trump put him in his current position; Trump put yet another rogue lobbyist (“swamp” is what he calls it) in charge and it hurts actual science and technology. Before Iancu was nominated and appointed by Trump his firm had worked for Trump too. That’s politics.

Makan Delrahim’s policies were mentioned by Richard Lloyd just before the weekend. It was about standard essential patents (SEPs). There was a discussion about it in Europe (FRAND/SEP and SPCs) because of the European Commission’s latest announcement (relegated to our daily links) and here’s what Lloyd wrote about a new letter:

A group of advocacy groups with close ties to the high-tech, automotive and retail industries have released a new paper calling into question several of the policy positions staked out by US antitrust chief Makan Delrahim regarding the application of antitrust law to the licensing of standard essential patents (SEPs). The paper follows a letter, signed by 77 former government officials and academics sent to Delrahim last week which also questioned several of the comments that the head of the Department of Justice’s antitrust division has made since he was appointed last September.

We already wrote several posts bemoaning Delrahim’s policies, which seem to be influenced not by national interests but few private interests.

Speaking of politics, ZTE has been everywhere in the news lately; it isn’t all about patents, but the patents angle/aspect does get brought up on occasions, sometimes in relation to these lawsuits in Texas, which is becoming widely known for little but patent trolls and patent lawsuits. From a new report about it:

Despite the fact that its devices were recently banned in America, Chinese smartphone maker ZTE is now facing a patent infringement lawsuit in the US.

A Northern Texas US District Court judge recently denied the company’s motion to dismiss a patent infringement case filed by a Texas-based mobile software developer.

Seven Networks has alleged that ZTE’s firmware uses seven of its own patents regarding battery management, data transfers and notifications. The software developer’s complaint alleges that the ZTE Blade smartphone as well as its other devices, use parts of all seven patents to manage their battery life and handle notifications and data transfers.

[...]

ZTE has decided to halt production until the ban is lifted and its lawsuit with Seven Networks will likely complicate matters further.

As The Register put it (adding some politics), “ZTE can’t buy chips from America – but can still get sued for patent infringement in the US” (this is the headline).

Chinese phone maker ZTE will have to face a patent infringement lawsuit in the US, despite its handsets being effectively barred from sale in America.

On Wednesday a Northern Texas US District Court judge tossed the Chinese company’s motion to dismiss a patent infringement case filed by a Texas-based mobile software developer.

Seven Networks has alleged that ZTE’s firmware borrows from seven patents it holds regarding data transfers, battery management, and notifications.

Why would ZTE even wish to participate in the US market? ZTE and other Chinese companies have been the subject of a political smear campaign lately*. The same has been happening in Europe, especially in the UK.

Going back to the patent maximalist/lobbyist Richard Lloyd, he caught up with something we had covered regarding Panasonic. It’s feeding patent trolls in spite of all the openwashing. It’s likely that the trolls will soon go after companies like ZTE, suing perhaps through Texas (this has become common among Canadian patent trolls). Quoting Lloyd:

WiLAN has acquired a portfolio of patents from Panasonic in the latest in a long line of patent transfers between the Japanese tech giant and the Canadian NPE. The portfolio contains 34 patent families comprising 96 grants worldwide. It relates to security camera surveillance technologies, including camera systems used in retail, other commercial buildings and smart home applications. The transfer follows another transaction between the two in January which related to semiconductor memory technologies used in Dynamic Random Access Memory (DRAM) and NAND Flash Memory.

Nobody benefits from it; they artificially elevate the price of phones, which basically come with a ‘trolls tax’ attached.

As Samsung and Apple recently came to accept, this is mostly beneficial to patent lawyers. IAM named Samsung as the winner in Apple v Samsung, but the truth is that neither company won. Only their legal departments gained, as usual.

Well, having uploaded the relevant PDF, which can be found in Scribd [PDF], Florian Müller wrote that “Apple, Samsung trying to put patent dispute behind them through mediation” and to quote:

After last week’s Apple v. Samsung damages verdict (largely over design patents) in the Northern District of California, counsel for both parties told Judge Koh that they were both willing to put an end to their long-running dispute, which started with a complaint filed by Apple in April 2011 and quickly escalated into a global dispute with filings in ten countries.

[...]

What’s furthermore unclear (and no one may know at this stage) is whether the parties will try to resolve both California cases (the one that went to re-retrial in May, and a second one that turned into a roller coaster) or just the first one.

High-profile smartphone disputes between handset and platform makers (unlike litigation brought by non-practicing entities or increasingly-”trollified” former phone makers such as Nokia and Ericsson) haven’t recently resulted in license agreements. Instead, parties just dropped pending cases but reserved all options for bringing new complaints anytime, with some license agreements–or covenants not to sue–of extremely limited scope possibly having been part of some of those confidential deals. I would expect the same if Apple and Samsung finally called a truce. Apple obviously isn’t going to extend a design patent license to Samsung; the result might involve a license (or a convenant not to sue with the practical effect of a license) to a few software patents, though some have expired and others have been worked around. But by and large the question is just whether Apple will withdraw any pending claims. And, even if this works out now at long last, no one knows when hostilities might flare up again.

Müller speaks of “non-practicing entities or increasingly-”trollified” former phone makers such as Nokia and Ericsson,” but he might as well add Blackberry with Apple at its heels.

All these lawsuits sure fascinate patent lawyers because these make them richer. But at whose expense? We would be better off without all these legal battles. Can Delrahim, a lawyer himself, ever understand that?
____
* In addition to this, Microsoft blackmails ZTE and others. It’s suing or threatening to sue using patents just because they use Linux and Free/libre Open Source software.

04.19.18

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

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

Royalty stacking until free/libre platforms become very expensive

Coin stacking

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

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

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

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

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

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

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

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

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

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

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

[...]

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

[...]

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

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

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

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

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.

02.25.18

As Japan Moves Towards Reducing Patent Lawsuits and Curbing SEP Abuse Will the United States Follow Suit?

Posted in America, Antitrust, Asia, IBM, OIN, Patents, RAND at 2:56 am by Dr. Roy Schestowitz

Ask Makan Delrahim

KDDI Corporation logo

Summary: Japan is getting tougher on standards-imposed patent traps (SEP), the US may be getting ready to do the same, and Japan’s KDDI Corporation joins OIN

WE recently wrote about Japan's growing comprehension of the SEP threat, unlike the US with Makan Delrahim (a lobbyist) in charge of antitrust matters. President Trump fills his swamp and it truly shows (just look at his USPTO Director pick, soon to speak at an IAM event). As IAM put it the other day: “Another speech from @TheJusticeDept’s Makan Delrahim suggesting US gov is looking very closely at use of antitrust enforcement in standard setting https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-remarks-college-europe-brussels” (think about Qualcomm for instance).

Watchtroll, in the mean time, is frustrated that on patents “Trump DOJ is on the same page as the Obama DOJ, which is hard to fathom given all the promises made by President Trump during his campaign.”

“The patent maximalists sure hope that chaos will be restored as they profit from that chaos.”Watchtroll now helps the lobby for patent chaos, hoping that republishing a letter will help it have impact. The patent maximalists sure hope that chaos will be restored as they profit from that chaos.

As we recently noted, Japan (and JPO) recognises that patent litigation isn’t desirable (unless you’re a lawyer) and this new report says that “Japan will soon implement a process that will swiftly resolve disputes over patents that are crucial to adhering to certain technical standards…” (that’s SEP)

This is a good thing. Consider the fact that, as IAM put it last week, Hitachi fed patents to “NPE Microconnect in the past several months.”

“…Japan is moving in the same direction as the US. The EPO, by contrast, moves in the same direction as China (SIPO).”“NPE” is a euphemism for patent troll and it’s worrying to think that a Japanese giant will resort to this. This is good for IAM and its paymasters of course, but what about Japan in general? IAM has just published this sponsored ‘article’ for Shobayashi International Patent & Trademark Office (Japan), so it’s clear that IAM is in the pockets of the Japanese patent ‘industry’ (litigation), not actual industry.

A week ago it was announced that KDDI, a communications service provider in Japan, had entered the Linux-centric Open Invention Network (OIN). A press release got disseminated (e.g. [1, 2]) to say:

Open Invention Network (OIN), the largest patent non-aggression community in history, announced today that KDDI Corporation (KDDI) has joined OIN as a community member. As the first key communications service provider in Japan to enroll in the OIN community, KDDI is demonstrating its commitment to open source software and the associated development efforts that benefit the entire communications industry.

“The communications industry is continuing its rapid transformation. Linux-based platforms like ONAP, OPNFV, and OpenDaylight are beginning to enable carriers and enterprises to provision new levels of service functionality across cloud and software defined networks (SDN) at an unprecedented pace,” said Keith Bergelt, CEO of Open Invention Network. “We appreciate KDDI’s participation in joining OIN and demonstrating its commitment to innovation and patent non-aggression in open source.”

OIN is not against software patents. It’s more of an IBM ‘hack’ which, according to Bruce Perens, is about protecting software patents from Linux rather than protecting Linux from software patents (quite an accurate description we might add).

Japan is one of IP5 (JPO is in it), so watching what happens there is definitely worthwhile. Japan has become a lot stricter on software patents and the courts not so plaintiff-friendly. In that regard, Japan is moving in the same direction as the US. The EPO, by contrast, moves in the same direction as China (SIPO).

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