Quality of patents causes markets to prosper or contrariwise perish
Giving aggressors like Microsoft sacks of patents to breed Mafia-like behaviour, not healthy competition
Summary: Revisiting the EPO’s vision of poor patent examination and the effect of discriminatory granting practices, favouring patent bullies such as Microsoft (which actively attacks Linux using low-quality and usually pure software patents)
“A skilled patent attorney working with a qualified searcher could cobble together a colorable obviousness argument against the vast majority of issued patent claims,” says a new article from Patently-O. Not to mention “abstract” criteria, prior art and so on. “Part of the difficulty for patentees,” continues the article, “stem from the the billions of prior art references available via increasingly effective search tools. Even when an invention results from a ‘flash of genius,’ patent law typically back-fills extensive knowledge for the obviousness analysis – even when that knowledge was not actually available at the time of the invention. The larger difficulty though is likely the large number of hard-to-pin-down facts such as the motivations, common sense, and level of creativity of a person having ordinary skill in the art.”
“In the case of large companies like Microsoft, mountains of patents (granted in bulk by the EPO]) can be used to compel companies to pay up without even a trial.”If the EPO replaces examiners with algorithms, things will exacerbate further and patents get granted incorrectly, leading to an ocean of frivolous lawsuits. In the case of large companies like Microsoft, mountains of patents (granted in bulk by the EPO) can be used to compel companies to pay up without even a trial. Recall the Microsoft v TomTom case. Picking on small companies is Microsoft’s thing; it doesn’t sue Google.
The above reminds us of the danger of poor patent quality as well as streamlining grants, which is what Battistelli’s EPO has in effect done for Microsoft (and evidence we showed for that led to legal threats from the EPO). They — like the USPTO — in effect facilitate patent racketeering by Microsoft.
“They — like the USPTO — in effect facilitate patent racketeering by Microsoft.”Watch this new article titled “Primetime: Microsoft’s Android Cross Patent Dealings”. That’s misleading because it's not cross-licensing, it's a patent settlement (in bundling form) and it’s essentially a patent shakedown without even a trial and without an opportunity to properly assess the quality (and thus in/validity) of patents. The article says that “to press on this advantage, Microsoft does need to sign into more cross licensing or similar patent deals with manufacturers. Given Microsoft’s patent portfolio and how useful this will be to those manufacturers wishing to break into the North American market, such as Xiaomi, we may be seeing more of these arrangements in the coming months. The alternative might be Microsoft suing any manufacturer that tries to sell devices into a patent-friendly market.”
But again, these are not cross-licensing deals, these are patent shakedowns. One might even call this extortion or racketeering, even though Microsoft is too well-connected to face court charges brought forth by the government.
It is worth noting that many of Microsoft’s patents — those which it uses to shake down Android players (OEMs) — are not even valid anymore (if properly scrutinised), but there are so many of them that it would cost a fortune to demonstrate it to the court. It’s a numbers game, quantity rather than quality. It’s cheaper to just settle and let Microsoft continue to wield software patents like a weapon, even post-Alice. PTAB cannot take a request to review hundreds of patents from just one single company because it’s already overburdened by a growing number of reviews (IPRs).
Speaking of patent aggressors, there is this new software patent from Facebook (the usual, see our Facebook wiki page). These are oftentimes surveillance patents, but this time is’s about languages, at a time of increased competition with Google. Facebook's growing stockpile of patents is a real problem (Facebook has a history of going aggressive with them) and The Next Web says that “the US patent office issued 6,789 patents. Each patent adds a little something new to the human knowledge base. As we cannot list all six thousand, the PatentYogi team has selected the five most interesting patents.” How many of these are software patents that oughtn’t have been granted? How many of these will be toothless some time in the near future?
Patently-O says “The number of pending Ex Parte appeals continue to drop. Great work PTO.” There are other statistics of interest, based on PDFs from the USPTO (like this one). Patently-O claims they suggest that: “Design patent applications expected to reach 40,000 for FY2016 – up from under 30,000 in FY2010. The PTO is working to improve design patent prosecution speed – current wait of more than a year for a first office action.”
Well, the Office may have granted 40,000 patents on designs, but once reassessed the Office may need to throw them all away, on a per-request basis (post-Apple v Samsung at SCOTUS). Granting again for the sake of granting? Until the next Alice happens?
Patent quality control is the principal pillar of true and potent patent offices, otherwise they would be just archives of untested claims (a registration/filing system). █
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Rounded corners? Apple’s invention!
Summary: Apple’s insistence that designs should be patentable could prove to be collectively expensive, as patent trolls would then use a possible SCOTUS nod to launch litigation campaigns
TROLLS, or patent sharks, typically use software patents, but what if they also had design patents at their disposal?
Apple‘s war on Android, which manifested itself in a now-settled case against HTC and later in a long patent war against Samsung, may prove to be counterproductive now that Apple attracts patent trolls like VirnetX, to which it might be forced to pay billions of dollars. A pro-software patents site now says that “Apple will also be an even richer target for the new breed of design patent trolls” if it wins its case against Samsung/Android (over design patents). To quote this new article:
On October 11, 2016, the Supreme Court will hear Samsung’s appeal of the Federal Circuit’s affirmation of the jury’s damage award to Apple of Samsung’s “total profits” on sales of the infringing smartphones even though it had only infringed Apple’s design of the iPhone’s outer shell. In upholding the “total profits” award, the Federal Circuit determined that it was bound to uphold the jury’s award by the “explicit” and “clear” statutory language relating to design patent infringement damages.
The importance of the Supreme Court’s ultimate ruling here is underscored by the numerous amicus curiae briefs filed (27 at last count). With over 205 billion in cash reserves at last count, Apple certainly doesn’t “need” the full nine-figure damage award. And, given the far reaching implications of this case, Apple may live to regret its aggressive pursuit of “total profits” for design patent infringement by finding itself battling design patent holders seeking to recover Apple’s total device profits for infringement of even a minor design feature. Apple will also be an even richer target for the new breed of design patent trolls already surfacing based, at least in part, on Apple’s success in this case. Clearly it is time for Congress to step in and amend Section 289 to add apportionment language.
No wonder technology companies are overwhelmingly supportive of Samsung in this case — a high-profile case over design patents.
In other news, Vera Ranieri from the EFF has this new update about one of their high-profile cases against patent trolls. Ranieri writes:
There has been significant activity relating to cases and patent infringement claims made by Shipping & Transit, LLC, formerly known as ArrivalStar. Shipping & Transit, who we’ve written about on numerous occasions, is currently one of the most prolific patent trolls in the country. Lex Machina data indicates that, since January 1, 2016, Shipping & Transit has been named in almost 100 cases. This post provides an update on some of the most important developments in these cases.
In many Shipping & Transit cases, Shipping & Transit has alleged that retailers allowing their customers to track packages sent by USPS infringe various claims of patents owned by Shipping & Transit, despite previously suing (and settling with) USPS. EFF represents a company that Shipping & Transit accused of infringing four patents.
The above is a timely and good example. It demonstrates not just of the harms of patent trolls but also the harms of software patents, which in the large majority of cases rely on them. If Apple made design patents stronger, with affirmation from the Supreme Court (SCOTUS), the damage would be enormous.
Apple is on the wrong side of history. █
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Summary: Apple’s frivolous lawsuits against Android OEMs win the support not of technology companies (these actually oppose Apple’s actions) but of some “non-tech companies, high-profile designers and intellectual property associations”
A few days ago we mentioned Florian Müller‘s latest article on Samsung v Apple (or vice versa) — an article which he later corrected for errors (amici overlooked or simply not yet listed at the time). It turns out that Müller wasn’t far from the truth, however, as technology companies pretty much reject Apple’s position. Müller has since then continued to highlight Samsung matters such as this likely new IPO or Google’s antitrust worries in Korea [1, 2], the home of Samsung. “The South Korean government has delayed a decision on whether it will accept Google’s request to export South Korea’s detailed map data,” one of those articles says. “Less than 2 months to go until the Samsung v. Apple Supreme Court hearing on design patent damages,” he wrote about the case which involves patents granted by the USPTO in spite of their low quality (the EPO made similar mistakes under Battistelli).
“It turns out that Müller wasn’t far from the truth, however, as technology companies pretty much reject Apple’s position.”Not too long afterwards MIP published this article that says: “Ahead of a showdown over design patents at the Supreme Court in October, Samsung has received more support from US technology companies whereas Apple has received the backing of non-tech companies, high-profile designers and intellectual property associations” (i.e. not quite producing companies). Patently-O wrote about this as well, noting that Apple’s “visual design is critically important in the sales of complex products.” That’s just branding and hype (or compelling marketing), i.e. the bread and butter of Apple. Patent-granting should be a scientific process, entirely disconnected from hype or brand recognition. █
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And why EPO policies under Battistelli will emulate the worst aspects of the USPTO
Summary: The Government Accountability Office (GAO) explains that decline in patent quality in the US is responsible for a hostile environment which fosters litigation rather than innovation; BlackBerry the latest example of patent assertion firms (trolls) which would make phones ‘dumber’ (features like a mechanical keyboard removed or never added in the first place)
LAST month we wrote about GAO in relation to the EPO [1, 2], demonstrating that the US patent system has gone out of touch and increasingly disconnected from the raison d’être of patents.
A good but somewhat belated article from TechDirt covers this topic, citing the Government Accountability Office for support:
This shouldn’t be a surprise. All the way back in 2004, in Adam Jaffe’s and Josh Lerner’s excellent book about our dysfunctional patent system, Innovation and Its Discontents, one of the key problems they outlined with the system was the fact that there was strong incentives for patent examiners at the US Patent Office to approve shit patents. That’s because they were rewarded for how “productive” they were in terms of how many patent applications they completed processing. Now, you might think that shouldn’t encourage approvals — except that there’s no such thing as a true “final rejection” from the patent office (they have something called a final rejection, but it’s not — applicants can just make some changes and try again… forever). So rejecting a patent, inevitably, harms your productivity rates as an examiner. Approving a patent gets it off your plate and is considered “done.” Rejecting it means having to spend many more hours on that same patent when the inventor comes back to get another chance.
After Jaffe and Lerner made that criticism clear, it seemed like the Patent Office started to take the issue to heart and they actually started changing some of how examiners were rated. And, for a few years, it seemed like things were heading in the right direction. But then, once David Kappos took over, he noticed that a lot of patent holders were complaining that it took too long to get patents approved. Apparently ignoring all of the evidence that pushing examiners to review patents quickly ends up in disaster, Kappos put back in place an incentive structure to encourage examiners to approve more patents. He kept focusing on the need to get through the backlog and speed up the application process, rather than recognizing what a disaster it would be. Of course, some of us predicted it and were mocked in the comments by patent lawyers who insisted we were crazy to suggest that the USPTO would lower its standards.
Of course, an academic study a few years ago found that was absolutely happening and now, to make the point even clearer, the Government Accountability Office, which tends to do really fantastic work, has written a report that agrees. It blames the Patent Office’s focus on rapidly approving patents for the flood of low quality patents and the resulting patent trolling epidemic…
Noting that last part about a “trolling epidemic” (to the point where 90% of all technology lawsuits are filed by trolls), we wish to highlight the correlation between abstract software patents and software patent trolls. Since half a decade ago we have highlighted the strong correlation between patent trolls and software patents, so had the USPTO stopped granting patents on software, a lot of this “trolling epidemic” would go away almost entirely. It would not be a viable business model for reasons we explained here repeatedly over the years. Given an extraordinary number of patents granted to BlackBerry (far too many to be deemed high quality), this is relevant to the past week’s news. BlackBerry, which is rapidly becoming a troll (or PAE) down in Texas [1, 2], has generated more and more headlines in recent days, e.g. [1, 2, 3, 4, 5, 6]. “Blackberry is now a troll,” wrote Benjamin Henrion (FFII). “Too bad NTP did not kill them 10 years ago.”
BlackBerry is one among many such companies. Apple, for example, having totally lost the plot to Android in India (where Android is now estimated to have 97% of the market; see daily links for details), is suing endlessly. Is there another Apple-Samsung patent war in the making? As one site notes right now: “Samsung filed a patent for a smartwatch with a detachable strap. Detachable band straps are already there. So, what’s the big deal? Their new smartwatch looks like the Apple’s iWatch. Now, that’s a big deal.
“Samsung is not eyeing another patent war with Apple, hopefully, they aren’t. Because, the last time when they did it, they had to suffer for it. A California court had ordered Samsung to pay 548 million dollars.”
“It would mean that phones must have features and parts removed from them.”Apple has been suing Android OEMs for more than 6 years, starting with HTC. We expect BlackBerry to do the same thing pretty soon. Does that mean more innovation? Quite the contrary. It would mean that phones must have features and parts removed from them. █
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“The most dangerous moment for a bad government is when it begins to reform.”
–Alexis de Tocqueville
Summary: Highlighting some of the differences between the US patent system and other patent systems
THE most notable deficiency at the USPTO right now pertains to overly broad patent scope and poor patent quality (the same direction which the EPO takes under Battistelli) and this leads to a lot of litigation by patent trolls. Startups (sometimes known here as SMEs) suffer the most and we rarely hear their stories because they must settle in secret and pay ‘protection money’ to non-practising entities. This clearly does not promote innovation. A lot of this activity, perhaps more than 90% of it (on a global scale), happens in the United States.
“It says a lot about what the USPTO fosters and why the EPO must not follow the same footsteps.”As of days ago, Ericsson’s case (via a patent troll it increasing uses inside Europe) against Apple found momentum at the Court of Appeals for the Federal Circuit (CAFC), home of software patents, according to this short report and BlackBerry has just beaten Mobile Telecommunications LLC, after this apparent troll (whose whole public existence revolves around this lawsuit) started a high-profile patent case in the US (BlackBerry is Canadian, but it can be dragged down south).
Leading Android OEMs are also embroiled in a patent war in the far east (Asia) and there are lots of articles about it [1, 2, 3, 4] (many hundreds in English alone, so they should not be hard to find even several years down the line).
What’s worth noting here is that in Asia, where a lot of the world’s phones are actually being made, patent trolls are hardly even a topic, whereas in the US patent trolls have become an epidemic. They are sometimes proxies of large companies such as Ericsson. In the case of Nokia, Microsoft has already created or armed trolls using its patents.
It is important to realise the difference between two manufacturing Android giants like Samsung (Kroea’s domain leader) and Huawei (China’s domain leader) having patent disputes and some random LLC du jour trying to tax large companies as well as small ones (these latter cases rarely make any headlines). It says a lot about what the USPTO fosters and why the EPO must not follow the same footsteps. █
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Halo as a sanctuary for patent trolls
Summary: A Supreme Court ruling on patents, its implications for software patent trolls, and how media that is promoting software patents and patent trolls covered it
THE dishonest/self-serving patent lawyers in the US might never openly admit this, but software patents are dying not only in US courts and PTAB but also, increasingly, at the USPTO. This does not necessarily solve the problem of patent trolls because trolls tend to go after small companies that have neither the will nor the budget to invalidate the asserted patents, e.g. by going to court.
“Court rulings like this,” say anti-trolls lobbyists, “make it much more urgent for Congress to pass patent litigation reform legislation this year” (they probably allude to the VENUE Act or the likes of it).
“This does not necessarily solve the problem of patent trolls because trolls tend to go after small companies that have neither the will nor the budget to invalidate the asserted patents, e.g. by going to court.”“Supreme Court Ruling in Halo/Stryker Case Will Lead to More Lawsuits from Patent Trolls, More Forum Shopping by Repeat Plaintiffs,” says the accompanying PDF. “Ruling Gives Small Businesses Less Incentive to Fight Meritless Suits,” says the second line. This is correct as it’s already far too expensive and laborious. The smaller the company, the more likely it is to just pay ‘protection money’ (extortion) because the ratio between the ‘damages’ and the legal costs in a court makes it the ‘correct’ business choice.
Suppose for a moment that patent trolls don’t get granted (or get to buy) the patents they use. The proposed reform legislation does not actually tackle software patents. The subject is not even on the agenda and that’s a problem. As long as software patents can land on the lap of patent trolls, these are guaranteed to be misused. Natalie Rahhal of MIP wrote about the same decision (Halo/Stryker case) as follows: “The Supreme Court decided both Halo Electronics, Inc v Pulse Electronics, Inc, et al and Stryker Corporation, et al v Zimmer, Inc, et al on Monday, in a decision that significantly lowered the bar for the issuance of enhanced damages in a patent infringement case.
“Gene the WatchTroll (or “Watchdog” as he prefers to think of himself) is so upset that judges are doing their job and eliminating software patents (after SCOTUS Justices ruled on the matter) that he shamelessly exploits these latest developments to assert Justices are writing legislation (untrue).”“Enhanced damages are set out by Section 284 of the Patent Act and allow the Court to award a patent owner up to three times the amount of the damages found, if the jury or the court determines that the infringement was wilful.”
Gene the WatchTroll (or “Watchdog” as he prefers to think of himself) is so upset that judges are doing their job and eliminating software patents (after SCOTUS Justices ruled on the matter) that he shamelessly exploits these latest developments to assert Justices are writing legislation (untrue). In our previous post we showed how he had exploited the Halo/Stryker case to accuse Justices of ignorance and here he is saying that §101 (Alice) is “overused”:
It seems as though once the court realized the claimed invention related to software, it pulled out its §101 goggles and ignored any other grounds for patent invalidity. Such an analysis, which pushes decision-making into 101, which is ill-suited to be used as such a brute force instrument, has perplexed and frustrated patent practitioners. Courts, including the Federal Circuit, simply disregard the other sections of the Patent Act in favor of §101, which for them is easier and leads to decision-making without the need of discovery and without presuming the issued patent is valid.
With or without Halo/Stryker, with or without Enfish, §101 still stands and it will continue to demolish software patents by the thousands (those that reach PTAB and the courts anyway). One can be sure that patent lawyers will keep saying “Halo” and “Enfish” any time they wish to defend trolls and software patents. Joff Wild, for a change, says the T word (“Trolls”) in his article about Halo (a case which we first mentioned here last week) and here is his opening paragraph: “There have already been plenty of articles written about the Supreme Court’s decision in Halo v Pulse, which was handed down yesterday. As is usual in cases where they review the work of the Federal Circuit, the court’s justices have decided that its practices are wrong. This time, it’s the approach that the CAFC has towards determining wilful infringement – it’s too rigid and lets too many potentially very badly behaved defendants off the hook. Instead, the Supreme Court has stated, judges should have a lot more discretion in deciding when a defendant’s behaviour has been so egregious that it deserves the sanction of triple damages.”
“With or without Halo/Stryker, with or without Enfish, §101 still stands and it will continue to demolish software patents by the thousands (those that reach PTAB and the courts anyway).”Expect this to be used to discredit §101 and defend patent trolls. Now that Ericsson’s patent trolls (in Europe) are about get ‘scooped up’ IAM celebrates and as another major lawsuit comes to light IAM says: “Earlier this week an entity called Global Equity Management (GEMSA) filed lawsuits against 20 separate operating companies including Spotify, Netflix and Uber over the alleged infringement of two patents. All of the suits were filed in the Eastern District of Texas.”
That’s just a patent troll in the Eastern District of Texas, as usual. “US Pat 6,690,400, Asserted Against Amazon Web Service Users,” Patent Buddy wrote, adding some of his information about the patent. Apparently that’s just fine with Wild and his colleagues, whose employer received money from patent trolls. This EPO‘s mouthpiece, IAM ‘magazine’, still treats the world's largest patent troll (and Microsoft-connected troll) like some kind of heroic entity that people ought to emulate. Last week it continued to groom this patent troll, Intellectual Ventures. They almost do public relations, having spoken directly to the company’s executives last month (the editor in chief did, the trolls denialist).
“It doesn’t seem to bother Congress enough. Why not? Follow the money.”Perhaps the saddest thing in it all is that most voices that weighed in on the latter (and we were able to find) treated a win for patent trolls as some kind of fantastic ruling from SCOTUS, except perhaps TechDirt with this article titled “Supreme Court Just Made It Easier For Patent Trolls”.
To quote TechDirt: “As we’ve noted over the past decade or so, the Supreme Court has been smacking down the Court of Appeals of the Federal Circuit (CAFC) over and over and over again on issues related to patent law. And on Monday, the Supreme Court did it once again — but this time in a way that actually might not be good.”
The analysis ends with: “At the very least, this seems like an argument for Congress to finally stop sitting around and doing something to fix the patent troll problem.”
It doesn’t seem to bother Congress enough. Why not? Follow the money. Why is IAM so soft on trolls? Again, follow the money.
We could say a lot more about IAM’s sheer bias. Consider its latest coverage from Asia. IAM, as usual, misses the point. LG and Samsung are absolutely massive companies (almost part of the nation itself, including the military in fact); they are the exception, not the norm, when it comes to the number of patents. IAM says “Korean companies own some of the world’s largest patent portfolios, including of course the single biggest stockpile of US grants – by some margin – which belongs to Samsung Electronics.” But IAM does not mention that this is pretty much limited to just two companies. Regarding Japan, which has a lot more than just two or three giant technology companies, IAM suggests some kind of patent liquidation. Notice how they ascribe or use the word “asset” to refer to a patent (the A in IAM is “asset”), as if it’s some kind of physical object. Euphemisms are everywhere at IAM. It’s lobbying disguised as news. █
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Samsung has the power to put an end to a controversial type of patents that are similar to software patents
Slide to unlock: novel or medieval?
Summary: A couple of new developments in Apple’s dispute about the ‘design’ of Samsung’s Android phones, which emulate extremely old concepts in digital form
WE are definitely not friends of Samsung (never have been), but some of its patent cases in recent years (especially against Microsoft and Apple) have had profound implications/impact.
“How on Earth were such patents granted in the first place?”Here is Professor Mark Lemley sharing his “brief for 50 IP professors on design patent damages in the Samsung v. Apple Supreme Court case” (local copy to ensure it endures the test of time). This is one of several such cases that involve Apple and Samsung. Florian Müller wrote that this is about as absurd as Microsoft’s patent bullying “over tiny arrow”. To quote the relevant part: “This is one of the patents Microsoft is presently asserting against Corel. Last summer I reported on Corel drawing first blood by suing Microsoft over a bunch of preview-related patents. A few months later, Microsoft retaliated with the assertion of six utility patents and four design patents. The Electronic Frontier Foundation named one of Microsoft’s design patents-in-suit the “stupid patent of the month” of December 2015 because it merely covered the design of a slider. But that patent isn’t nearly as bad as U.S. Design Patent No. D550,237, which practically just covers a tiny arrow positioned in the lower right corner of a rectangle. If you look at the drawings, particularly this one, note that the dotted lines mark the parts that aren’t claimed. What’s really claimed is just a rectangle with another rectangle inside and that tiny graphical arrow in the bottom right corner.”
“This sounds good on the surface, but unless the SCOTUS Justices rule on this, the perceived legitimacy of design patents may persist.”How on Earth were such patents granted in the first place? It’s not surprising that USPTO patent quality has declined so badly and so quickly and there are new patent quality studies regarding the USPTO. Will any similar studies look closely at EPO patent quality as well?
According to an Apple advocacy site, patents on design might not reach SCOTUS after all. This is bad news to all who hoped that SCOTUS would put en end to design patents once and for all.”Samsung Electronics welcomes support for overturning U.S. court ruling in Apple case,” said this new article, which along with others said “Justice Department Urges High Court Overturn Award to Apple Over Samsung Smartphones”. This sounds good on the surface, but unless the SCOTUS Justices rule on this, the perceived legitimacy of design patents may persist. As Müller put it: “Reading all amicus briefs in Samsung v. Apple (design patent damages). Momentum behind call for reasonableness is very impressive.” It looks very likely that if the SCOTUS rules on this, it will help demolish many design patents by extension, in the same way that Alice at SCOTUS put an end to many software patents in the United States. “A federal appeals court awarded about $500 million in damages to Apple for design patent infringement,” recalled one article, demonstrating just how much money can be at stake due to one single patent. “Design patent owners shouldn’t get 100% of the profits when only 1% of the product infringes, EFF tells court,” according to the EFF’s Twitter account and accompanying blog post that says: “The Electronic Frontier Foundation (EFF) asked the U.S. Supreme Court today to reverse a ruling that required Samsung to pay Apple all the profits it earned from smartphones that infringed three basic design patents owned by the iPhone maker.
“Apple is the aggressor, whereas Samsung — like Google — is hardly ever initiating patent lawsuits.”“The $399-million damage award against Samsung, upheld by the United States Court of Appeals for the Federal Circuit in the Apple v. Samsung patent lawsuit, should be thrown out, EFF told the court in an amicus brief filed today with Public Knowledge and The R Street Institute. Forcing defendants to give up 100% of their profits for infringing designs that may only marginally contribute to a product’s overall look and functionality will encourage frivolous lawsuits and lead to excessive damage awards that will raise prices for consumers and deter innovation.”
Don’t fall for the corporate media’s narrative of Apple as the victim even when software patents are to blame. Apple is the aggressor, whereas Samsung — like Google — is hardly ever initiating patent lawsuits. We hope that Samsung will take this all the way up to the Supreme Court (more expensive to Samsung but collectively beneficial to all) and eventually win. The net effect might be the end of many design patents in the US. Those patents so often threaten GNU/Linux or Android products, as we have repeatedly shown here over the years. Will Samsung do a public service here? █
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Summary: A look at some of Samsung’s ongoing high-profile patent cases which involve Apple
“The Samsung case [one of several ongoing cases] is particularly interesting,” said Standard Law the other day, “because it turns on the “non-discrimination” prong of RAND. Little case law on what ND means.”
RAND (or FRAND) is an anti-Free software (FOSS) loophole. It’s how proprietary software giants like Apple and Microsoft every so often try to exclude FOSS while calling this reasonable, non-discriminatory and fair (i.e. a series of euphemisms, one longer than the other). In practice, RAND is means UnReasonable and Discriminatory, sometimes UnFair too (FRAND). It’s typically about software patents.
“RAND (or FRAND) is an anti-Free software (FOSS) loophole.”“In a statement to Patently-O,” it has just been said, “Samsung argued that “If the current ruling is left to stand, it would value a single design patent over the hundreds of thousands of groundbreaking technology patents, leading to vastly overvalued design patents.” The itself brief cites Professor Rantanen’s 2015 essay for the proposition that the high damage is likely result in an “explosion of design patent assertions and lawsuits.””
In the mean time, another (new) article by Jason Rantanen explores CAFC appeals — a stage that Samsung has already been through. It will soon reach the Supreme Court (the design patent case at least).
Sharing Samsung’s Supreme Court brief, one said a few days ago that we now have access to “Samsung’s Supreme Court brief addressing the question of whether section 289 of the Patent Act requires the disgorgement of the defendant’s total profit from sales of design patent infringing products, or only the profit attributable to the infringing component.”
“For all we know, not a single case at SCOTUS will present the chance/opportunity to challenge software patents, or override Alice as a precedent.”Patently-O still keeps track of new Supreme Court patent cases and there is a new short article by Dennis Crouch which zooms in on one particular case. He wrote: “On remand from the Supreme Court vacatur, the Federal Circuit has reaffirmed its prior NuVasive decision and – in the process limited the reach of the Supreme Court’s 2015 decision of Commil USA, LLC v. Cisco Systems, Inc., 135 S. Ct. 1920 (2015).”
For all we know, not a single case at SCOTUS will present the chance/opportunity to challenge software patents, or override Alice as a precedent. The case of Samsung is about design patents and one new article says that “in the next five years the chances are this isn’t going to go away anytime soon. So what has this continuing battle demonstrated about patent law?”
“It’s going to be interesting to see which companies will oppose Apple’s ludicrous design patents (probably Google and Facebook, judging by what happened before).”The deadline for amici curiae has passed and Samsung can now wait and prepare for this important case that will hopefully determine design patents are out of line. As a bit of background on this: “More than two months ago, the Supreme Court of the United States granted Samsung’s petition for writ of certiorari (request for top-court review) regarding design patent damages, which was supported by Google, Facebook and other tech giants. Tomorrow [last week actually], Samsung has to file its opening brief. At this level of proceeding the parties’ positions, theories and arguments are largely known, but it will be very interesting to see what priorities they set, what case law they can find in support of their positions, and which amici curiae (“friends of the court”) will support them.”
We are still not aware of any information related to this, maybe because the amicis have not yet been published. It’s going to be interesting to see which companies will oppose Apple’s ludicrous design patents (probably Google and Facebook, judging by what happened before).
Speaking of certiorari, Patently-O reports that “Hospira explained that both the district court weighed the secondary indicia of non-obviousness and found them “not sufficiently strong to overcome the showing of obviousness arising from an analysis of the prior art.” To Hospira, the petition was basically a request that the Supreme Court conduct its own factual analysis.”
The very fact that the Supreme Court is not revisiting any software patents cases (so far) may serve to suggest confidence in the Alice case, much to the chagrin of Big Business lobbyists. █
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