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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).

01.28.18

The European Commission and the Failure to Stop the FRAND/SEP Lobby

Posted in Antitrust, Europe, Patents, RAND at 12:58 am by Dr. Roy Schestowitz

Bristows and IAM: working together to help patent trolls in Europe

Bristows and IAM

Summary: The European Commission — rather than show strength in the face of patent parasites — shows considerable weakness by allowing controversial mergers/takeovers and issuing token fines

THE European Commission has succumbed and surrendered to pressure fom Microsoft front groups again. As this article put it the other day, obligatory patents one can’t work around are becoming more institutionalised:

In November The European Commission issued a communication setting out its vision on standard essential patents (SEPs) and outlining its expectations from stakeholders involved in the declaration, exploitation and enforcement of SEPs. Stakeholders include SEP holders, SEP implementers, standard developing organisations (SDOs) and national courts of the member states.

The communication draws on a number of points arising from various judicial decisions, such as the U.K. court’s decision in Unwired Planet v. Huawei on what constitutes fair, reasonable and non-discriminatory (FRAND) licensing terms and the Court of Justice of the European Union’s (CJEU) decision in Huawei v. ZTE. The communication also provides principles of general applicability and sets out specific recommendations and guidance.

This also indirectly relates to companies such as Qualcomm, which was brought up the other day in the context of its battles with Apple:

The high-stakes FRAND licensing dispute between Apple and Qualcomm took another turn last week when the chipmaker filed a subpoena against Philips Electronics North America demanding that the Dutch company produce information on its licensing practices deemed relevant to the litigation that is currently gripping the patent world.

According to the subpoena, which was filed in Massachusetts district court, Philips does not dispute that the documents are relevant but has so far declined to make them available because of concerns that the protective order put in place by district court in Southern California, where Apple filed its suit against Qualcomm, does not have adequate confidentiality provisions. Philips has demanded that both companies and any of their counsel who have access to the information should be barred from acting adversely to the Dutch company — such as in a litigation case against it — for two years following the conclusion of Apple v Qualcomm.

This was written around the same time that the European Commission imposed a $1.23bn fine on Qualcomm — a move which Qualcomm critics actually described as a ‘win’ for Qualcomm for the following reasons:

In tennis, there are four Grand Slam tournaments. In antitrust enforcement, there’s no official equivalent, but I would argue that a company being held in violation of competition rules by the United States, the European Union and at least two major Asian jurisdictions has a legitimate claim to the crown. Last year, Qualcomm got sued by the Federal Trade Commission of the United States; just a month earlier it had been fined by the Korea Fair Trade Commission (KFTC); in October, the Taiwan Fair Trade Commission imposed a record fine of more than $700 million; and it had been fined in China a couple of years before. But one key jurisdiction was missing from this list (apart from reservations concerning Qualcomm’s proposed acquisition of NXP): the European Union.

Most of the press coverage about this (e.g. [1, 2, 3]) framed it as a big loss for Qualcomm, but former IAM staff — alluding to this new $2 billion dealsaid, “[t]hat should pay off the EU antitrust fine with some left over” (fine was too low).

The CCIA, writing about the above, is still tackling the FRAND/SEP scam (patent tax you cannot avoid/work around). To quote:

First, the EU antitrust authorities fined Qualcomm $1.2 billion over conduct that involved locking Apple into an exclusive supplier arrangement in order to harm competing baseband chipset makers. The EU investigation isn’t the only place Qualcomm’s anti-competitive conduct is being challenged; they’ve also been fined by the Korean FTC and the US FTC is currently pursuing a case against Qualcomm. Apple has also filed a lawsuit against Qualcomm. As Patent Progress has previously discussed, Qualcomm’s conduct harms competition and thereby harms consumers. Qualcomm, rather than changing course, has filed additional lawsuits aimed at using their SEP portfolio to harm companies that challenge their anti-competitive conduct.

The trolls and the patent microcosm, with firms like Bristows, have lobbied hard for this injustice, even in the UK. Bristows and IAM work together on this lobbying effort.

Even IP Kat is pushing this agenda/scam (if not Bristows, then Eibhlin Vardy). As usual, the same people who push/lobby for UPC in Europe (for trolls) and for software patents also adore patent thickets. What we’re dealing with here is rather troubling for Free/Open Source software as these thickets typically overlap software as well.

01.01.18

FRAND is Unfair, Unreasonable and Discriminatory; Ericsson is Still a FRAND Troll

Posted in Deception, Patents, RAND at 10:13 am by Dr. Roy Schestowitz

Ericsson troll

Summary: In commenting on TCL v Ericsson, particular sites give away their biases (and support of Ericsson trolls such as Unwired Planet, formerly Openwave, software.com, phone.com, and Libris, Inc)

THE EPO seems to be pushing the FRAND and software patents envelop these days. This means that a software patents tax may be silently creeping into Europe and there’s no way for people to be exempted from it. It’s attached to or bundled together with products.

“We aren’t exactly surprised to see those sites aiding Ericsson’s agenda. They have long been in cohesion or harmony with patent trolls’ agenda. Some of their clients are literal patent trolls.”Bristows, a fan of Ericsson’s patent troll Unwired Planet (which operates in London and brings business to the likes of Bristows), has just written about this new case. It’s not about Ericsson's trolling operations in Europe but about China. Richard Vary (Bird & Bird), who has similar interests to Bristows’, including the UPC, has been given the platform. They push that old “FRAND” lie. They are basically promoting FRAND tax on the first day of the year; Patently-O has just done the same thing, courtesy of Jorge Contreras. It’s introduced as follows: “The case involves the sale of cellular handsets by TCL, a Chinese firm reported to be the seventh largest global manufacturer of mobile phones. Ericsson is one of the largest holders of patents essential to the implementation of the 2G, 3G and 4G wireless telecommunications standards published by the European Telecommunications Standards Institute (ETSI) (standards-essential patents or SEPs). Under ETSI’s policies, ETSI participants are required to grant licenses under their SEPs to implementers of ETSI standards on terms that are fair, reasonable and non-discriminatory (FRAND).’

Ericsson — like Microsoft — is trying to tax every single phone and is even using trolls for this purpose. It publicly pretends to be reasonable, usually by detaching itself from the trolls and disguising the patent stacking ploy.

We aren’t exactly surprised to see those sites aiding Ericsson’s agenda. They have long been in cohesion or harmony with patent trolls’ agenda. Some of their clients are literal patent trolls.

12.10.17

Patents Are Becoming a Welfare System for the Rich and Powerful

Posted in Patents, RAND, Standard at 3:42 pm by Dr. Roy Schestowitz

Recent: The SEP/Patent Trolls’ Lobby Insults the Victims, Calling Them “Free Riders”

Welfare of dogs

Summary: A culture of litigation and more recently the patenting of broad industry standards may mean that multi-billion dollar corporations are cashing in without lifting a finger

THE gross saturation of patents in the United States used to work in favour of patent law firms, at the expense of firms which actually produce things.

A few days ago we learned about yet another large sum (nearly 0.1 billion dollars) being passed based on a patent dispute/lawsuit that alleges “lost profits” (as if it’s corporate welfare, wherein you declare an entitlement for profits). We wrote about that subject a few weeks ago. “The lawsuit is related to WesternGeco’s patents on marine seismic surveys,” Patently-O wrote. “Adjudged infringer ION manufactures components of the system in the US, for assembly and use “on the high seas.” A jury found liability under 271(f) – exporting components of a patented invention for assembly abroad. The jury also awarded the patentee $12.5 million in reasonable royalties in addition to $93.4 million in lost profits based upon specific competitive contracts lost.”

“Since when have patents become merely a tool of ‘wholesale’ wealth passage?”So that’s even over 0.1 billion dollars (all in all). Based on potential alone, or the mere claim of potential.

Since when have patents become merely a tool of ‘wholesale’ wealth passage? Patents were not originally envisioned as such and this does not contribute to innovation, it just makes already-rich people even richer.

Now let’s look at so-called F/RAND, which ought not exist in the first place. It’s the basic idea that even industry standards are ‘owned’ in the patents sense, and we’re supposed to think that’s “fair”, “reasonable” and “non-discriminatory”. In reality, it is the opposite of all these things. It’s an unjust tax which empowers monopolies.

“It’s the basic idea that even industry standards are ‘owned’ in the patents sense, and we’re supposed to think that’s “fair”, “reasonable” and “non-discriminatory”.”A short while ago (in academic terms) Colleen Chien mentioned her new paper which can be found here. “Patent litigation is down but transactions are up,” she said. “I discuss in my new paper, “Software Patents as Currency, Not Tax on Innovation” @BerkeleyTechLJ”

Here is her abstract: “Software innovation is transforming the U.S. economy. Yet our understanding of how patents and patent transactions support this innovation is limited by a lack of public information about patent licenses and sales. Claims about the patent marketplace, for example, extolling the virtues of intermediaries like non–practicing entities, or characterizing software patent licenses as a tax on innovation tend not to be grounded in empirical evidence. This Article brings much–needed data to the debate by analyzing transactional patent data from multiple sources and reporting several novel findings. First, this study finds that, despite reductions in the enforceability of software parents and levels of patent litigation, the market for software patents has remained remarkably robust, and actually grown in the number of transacted assets. The strength of this demand appears to be driven by the defensive—not only offensive—value of software patents, the importance of software–driven business models, and bargain shopping in the acquisition of patents. Second, this Article explores the extent to which software patent transfers support the transfer of technology as opposed to supporting just the transfer of liability, or freedom from suit, with mixed results. This study finds that the majority of material software licenses reported by public companies to the SEC from 2000–2015 (N=245) support true technology transfer. However, in recent years, large numbers of software patents apparently have also been sold to avoid litigation or to provide general operating freedom, rather than to access specific technologies. Software patents transferred between public companies from 2012 and 2015 were two to three times more likely to go from an older company to a younger company, and from a higher revenue to a lower revenue public company. These findings underscore the enduring importance of software patents in supporting both technology transfer and freedom to operate. Despite the prevalence of NPEs, most patents are not bought for assertion, but to support these critical innovation functions. As such, the data support the characterization of software patents as a currency of—rather than a tax on—innovation.”

It is certainly good news that litigation is decreasing, but software patents ought not be viewed as patent-eligible anymore. A lot of these transactions Chien speaks of are akin to FRAND and it’s a form of loophole, just like the so-called ‘NPEs’ (trolls) she alludes to.

Looking at sites of the patent microcosm rather than academic papers, one finds another new lawsuit. Here is what IAM said:

Sprint, the US’s fourth largest mobile company, has launched a patent infringement lawsuit against Charter alleging that the cable TV giant infringes on 11 patents relating to voice over packet (VoP) technology.

The case was filed in Delaware district court earlier this month and marks the latest attempt by Sprint, which is owned by Japanese tech giant Softbank, to monetise its patent portfolio. As well as the suit against Charter, Sprint also filed a case using the same patents against another cable business, Mediacom Communications.

Unfortunately, VoP is — quite arguably — about software, just like VoIP (Internet Protocol, which deals with packets too). We hope that Charter will fight back and attempt to invalidate these patents (invalidating a dozen won’t be cheap and definitely not fast).

“We hope that Charter will fight back and attempt to invalidate these patents (invalidating a dozen won’t be cheap and definitely not fast).”The patent microcosm shares IAM’s blood-lust. It wants a lot of litigation or taxation as it gets a share of the loor. See this for example. Just about everything that’s bad for society Bristows will love. It is celebrating with patent trolls and maximlaists again (SPCs). It’s also lobbying for software patents, FRAND, SEP, and the UPC, which this guy too is promoting, along with the rest of that toxic bundle. “Isn’t it funny,” he asked, “that the free market loving Anglo-Saxons want judges to determine the #FRAND rate while the Germans (of all people) want the judge to provide boundaries and let the market set the #FRAND #royalty for an #SEP #Patent”

“A lot of that tax pertains mostly if not entirely to software patents.”The term “royalty” is a euphemism for tax. This new article by William New speaks of the 5G tax, which we wrote about earlier this winter.

The bottom line is, patents are becoming merely a tax in many areas. Sure, litigation is on the decline in the US (unlike — say — in China or Germany), but that in itself does not guarantee end of injustices. A lot of that tax pertains mostly if not entirely to software patents.

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