Accepting the status quo, like sheep led to slaughter
Summary: Red Hat is too soft on the issue of software patents, based on its comments to the USPTO; Linux/Android continue to suffer from software patents in court cases which may last years
Red Hat has hardly been a flag bearer in the fight against software patents. It is not as bad as IBM, but it is not always helpful, either. Red Hat itself is filing to receive software patents of its own, making a distinction between what it calls “bad” software patents and “good” software patents. It tends to focus on trolls and in its Web site OpenSource.com (Red Hat-run) it has almost a monopoly on views regarding software patents.
Nevertheless, in the wake of USPTO opening up to feedback Red Hat is making its policy known:
The USPTO has been asking the public to respond to a series of questions with suggestions on improving patents. It is aware that the technical community isn’t happy with the way patents are being issued, particularly software patents. You are familiar with some of the USPTO’s questions, because we at Groklaw responded to two of them, topic 1 on how to improve software patents, regarding functional language, and topic 2, suggestions for future topics for discussion.
Red Hat’s suggestions play along the lines of software patents as a given, which is problematic. Groklaw‘s ‘cref 66895 suggestions], on the other hand, were very good and they are essential for a meaningful discussion of the real issues. Elsewhere in Groklaw there is a discussion about a legal case involving the best-selling Linux devices, the ones from Samsung. Here are the latest two updates on that:
1. Joint Case Management Statement Filed in Apple v. Samsung
The judge in the first Apple v. Samsung patent case in California, the Hon. Lucy Koh, asked the parties to file a joint case management statement, just in case she decides to go forward with an immediate second jury on the issue of damages on the 14 products where the first jury got the math wrong. And they have now done so [PDF]. There will be a hearing on all this on April 29. Of course, they disagree. Because they don’t agree on how to go forward, they each set out their positions, once again. The short version is that Apple wants to hurry up and have the trial immediately and Samsung wants to hear from the appeals court before the new damages trial goes forward, so as to ensure the same mistakes aren’t repeated.
2. Judge Koh’s Order in Apple v Samsung: No Stay on Damages Retrial, Unless…
Judge Lucy Koh has reached a decision [PDF] on going forward on the retrial on damages in Apple v. Samsung. Trial is set now for November 12th, on damages only, same Daubert rulings, motions in limine, discovery disputes, and evidentiary objections ruled on the same as the first trial, meaning if she made mistakes in the first trial, they’ll be repeated in the retrial. “The parties may not relitigate these issues,” she writes. So it’s all for the appeal court to figure out. She isn’t interested in reviewing all that. So if the appeals court orders a third trial, that’s the way it will have to be. She wants to keep the damages retrial short and sweet and limited to just one issue, and then send it on its way to appeal, so no new theories and no new fact discovery. There is a schedule for expert discovery. The jury will be 8 people, with the parties’ given three peremptory challenges each. Apple asked for the very same jury instructions, but she says they will get together on October 17th to discuss “how to
present infringement and validity findings” to the new jury. Other than that, she is silent on that point.
Trial expected at the end of this year, eh? Justice is taking too long, so it’s SCO all over again in that respect. What needs to occur some time in the next year or two is elimination of software parents in the United States (or radical cut-down). Red Hat just doesn’t go far enough to achieve that. We need other fronts in the fight against software patents; Google ain’t it, either. █
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Apple pushed over the cliff
Summary: Apple’s crucial ammunition against Linux/Android gets thrown by the USPTO right into the garbage can
The news from the second-largest patent case against Android gets covered by Pamela Jones, whose articles about Samsung and Apple include in-depth legal analysis. Companies like Microsoft, Oracle and Sony [1, 2] also sue Android, but none has earned a ruling as favbourable as Apple’s (just over a billion dollars in damages). The USPTO has been forced to acknowledge failure to examine patent applications. The USPTO reaffirms invalidation of Apple patent in Samsung suit, says CBS. Apple’s patent should not have been granted in the first place, so the USPTO should be held responsible for a lot of damage to the industry, again. Here is Jones’ coverage of the news and some more from CBS tabloid ZDNet.
“Apple deserves go go out of business for its shameless business strategy.”Mr. Pogson calls it a case of rotten Apple, noting: “So Apple’s case is shrinking like a rotten apple. There’s just nothing left, at least nothing Samsung has to apologize or pay for. In fact, I would not be surprised to find Apple had to pay some of Samsung’s costs for frivolous action.”
Apple deserves go go out of business for its shameless business strategy. We can help that happen by boycotting Apple and urging others to do the same. I have already convinced many friends and even some small companies to do this.
Speaking of Apple, watch this lousy propaganda piece from the New York Times, to which Mike Masnick responds as follows:
Author Claims That If Apple And Microsoft Started Today They’d Fail Without Stronger Patent Protection
First of all, the number of patents filed is meaningless. You can file a ton of patents and it means absolutely nothing concerning innovation. First off, applications are different from granted patents. Second, and more importantly, patents show no relation to innovation. Third, when it comes to Chinese patents, the Chinese realized long ago that patents are merely a tool for protectionist tariff-like policies that can be enacted with less scrutiny or trade war issues and have acted accordingly. Basically, nothing in the paragraph above actually supports Fingleton’s argument.
Apple is not an innovative company, it is a marketing company and it managed to market or brand itself as “innovative”; in practice, it’s just a ripoffs company. It hardly manufactures anything. █
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Image via SCALE
Summary: Dr. Matthew Garrett explains that not Microsoft’s imposition of UEFI but Samsung itself is to blame for the bad name Linux got from a recent technical cockup
“The problem with Samsung laptops bricking themselves turned out to be down to the UEFI variable store becoming more than 50% full and Samsung’s firmware being dreadful,” Matthew Garrett wrote after he had defended UEFI Restricted Boot. It is rather embarrassing for the UK that support for UEFI or Microsoft apologism comes from him. This news was noted by this London based site:
In a blog post describing the use of UEFI variables for debugging purposes, Matthew Garrett mentions that the memory for UEFI variables being filled up by more than fifty per cent is thought to be the reason why Samsung notebooks will no longer boot and may require repair in certain conditions – for example after starting some Linux distributions with UEFI, or after executing a Windows test program that stores information in the UEFI firmware. The Linux kernel developer and UEFI specialist investigated why even booting some Linux distributions can sometimes cause device failure and has written a Windows program that will brick certain Samsung notebooks.
Here is another British article:
Former Red Hatter Matthew Garrett, who cleared Linux’s name when the open-source kernel appeared to cause shiny new Samsung laptops to destroy themselves, has offered a survival guide to avoid similar catastrophes.
Nebula programmer Garrett this week warned that Samsung laptops may brick themselves if the computer’s UEFI firmware variable storage space is more than 50 per cent full.
The firmware is the first thing that executes when the computer is switched on; its job is to power up the hardware and start the operating system, be it a Linux distro, Windows, Mac OS X, BSD or alternatives. But if the Samsung UEFI firmware’s variable storage is less than half empty, apparently the machine will end up refusing to start. The trigger? “Writing a crash dump to the NVRAM [non-volatile random access memory],” Garrett said.
Let’s remind ourselves why UEFI was used there in the first place. It was Microsoft’s idea and it has given some GNU/Linux users a bricked computer. It gave many others a hard time and gave GNU/Linux a bad name. Microsoft executives must be laughing deep inside. Nobody filed a complaint against them. Once again they get away with it.
UEFI has become somewhat symbolic of the power Microsoft got over OEMs, even when people are fed up with the latest versions of Windows and OEMs explore their possibilities with GNU/Linux. To play by Microsoft’s rules is to handicap our own judgment and to perpetuate the power play of thuggish executives inside the software monopolist. █
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Summary: Apple continues to find that patent wars against Linux/Android are getting it nowhere
Apple’s hype machine is losing its momentum as technically superior devices come out and outsell Apple’s best-selling products. Those devices have Linux in them.
Apple has been impeding development of some of the world’s technically best phones, the Galaxy S series. “Apple and Samsung,” writes Pamela Jones, “at the judge’s request, have filed their joint status report [PDF] on the theme of whether the judge should stay Apple v. Samsung II until after the appeals court rules on Apple’s appeal of Apple v. Samsung I. It’s a joint report, filed together, but they agree on nothing. Samsung says they should wait; Apple says they shouldn’t. Apple says that the two cases are distinct, with Apple II involving none of the same patents and “virtually none” of the same Samsung products.”
I happen to know some Apple fans who turned into Galaxy S fans. I met one of them yesterday. Even some prominent Apple people, such as Woz and Guy Kawasaki, seem to be walking away from the “i” hype.
Apple may be under some patent attacks, but the scale of the attacks which come from Apple is much greater. Samsung, responding to Apple’s aggression, tried to block Apple in Japan:
Samsung Electronics Co. (005930) failed in a bid to block sales of Apple Inc. (AAPL) iPads and iPhones in Japan, the latest step in a global patent spat between the world’s two largest smartphone makers.
The Tokyo District Court rejected the request as Samsung hadn’t negotiated “sincerely” with Apple over licensing data- sending patents, Judge Ichiro Otaka said in a ruling today. The court also ruled that Samsung doesn’t have the right to seek damages from Apple.
According to another recent report, “touchscreen gesture patents that Apple has accused Samsung of infringing on are not eligible to be patented in the first place, according to Samsung’s Australian barrister Richard Cobden.”
This case or set of cases between Apple and Samsung may help determine how quickly Android grows. In a new paper from Lemley et al. it is being claimed that trial length in patent cases has no effect on the outcome, which may be good news for several defendants in Linux-related cases. Here are some more findings:
We conduct a comprehensive study of all patent trials over the past eleven years. We find that juries are more favorable to patentees than judges, that (to our surprise) the length of a trial has no effect on its outcome, and that there are surprisingly modest differences between patentee win rates in favored jurisdictions like Delaware and the Eastern District of Texas.
Apple is desperate to carry on with this battle that Steve Jobs advocated for whereas the current CEO, based on reports, actually opposed. It has been a long time since Apple started this clueless patent war and Apple is barely getting anywhere with it. Apple is just getting distracted and it slows down. The US press, CBS for example, keeps posing Apple propaganda in the form of biased, flawwd statistics. The authors, some of whom used to serve the Microsoft press, fail to stall Linux growth. The latest of the Galaxy S series, the S4, is to be officially announced this week. █
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Hear the partners…
Summary: The resentment against Windows is growing, even among OEMs and other sellers, who typically count for 80% of Windows ‘sales’
The failure which is Vista 8 needs to be highlighted because it’s yet another blow to remember amid the growth of Android (and Linux in other forms).
Samsung, which already uses Linux extensively in its products (not just Android), has its division president say that Vista 8 is no better than Vista. Ouch! And it’s not alone:
First it was Asus and Acer, then Fujitsu. Now Samsung has added its voice to the growing chorus of PC manufacturers whinging away about sluggish demand for machines running Microsoft’s new Windows 8 operating system.
Asked for his take on recent reports that the PC market will continue to contract through 2013, Jun Dong-soo — president of Samsung’s memory chip division — said he doesn’t expect the PC industry to rebound anytime soon. And if and when it does, that rebound won’t be driven by Windows 8.
The FOSS bashers write about ‘saving’ Vista 8, but it sure looks like a lost cause. All that Microsoft can do now is try to tax Android for its own bottom line. Samsung already pays Microsoft for Linux. █
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SCOny defined, following SCO and SCOracle tactics
Summary: Despite using Android itself, Sony helps Apple against Samsung, using patents
Sony reserved the right to sue and we finally see why reservations as such are trouble. Let’s start with some background from this week’s news.
Samsung has begun retaliating for Apple’s aggression more strongly then before (stopping supply of components), with lawsuits that go both ways as well as deterrents:
Seeking to head off Samsung argument, Apple shortens a patent term
Apple agreed to limit the term of one of the patents it used to win a $1.05 billion jury verdict against Samsung. The company filed a so-called “terminal disclaimer” with the patent office today. It limits the term of patent D618,677, a patent that 12 different Samsung phones were found to infringe.
Samsung says something along the lines of “Without Us, There Is No iPhone”:
A Samsung executive laid it out: Without the Korean company’s patents there can be no iPhone, at least not one that works. Shin Jong-Kyun, President of Telecoms and IT at Samsung, told reporters in Seoul that the truth will out, and that Apple couldn’t make the iPhone without using Samsung’s patents.
This is getting ugly and it’s bad for Apple. Sony, part of the cartel formed around Nortel’s patents (inclusive of Apple), is striking and hacking away at Samsung now. Sony has a lot of patents, including a lot of hardware patents. Pamela Jones writes: “More stupid smartphone patent warfare. Ericsson is, of course, part of Rockstar Consortium’s Gang of Five (Apple, Microsoft, Ericsson, RIM and Sony) who bought Nortel’s patents.” Here is the article she cites and here is more:
Ericsson has filed a suit against Samsung for patent infringement.
The Swedish telecommunications equipment maker said today that it launched the lawsuit after the two companies were unable to reach an agreement about renewing patent licensing deals.
Samsung previously licensed Ericsson’s patents in 2001 and renewed terms in 2007, but licenses have now expired. According to Ericsson, Samsung refused to renew the licensing agreements for its patents on FRAND terms. FRAND (fair, reasonable and non-discriminatory) terms are used by industry groups to set standards for technology and products, and are aimed at encouraging competitiveness without allowing rights holders to abuse their position, and create a setting for patent holders to receive royalties.
No licensing deal was forthcoming “despite two years of negotiations”, Ericsson said in a statement, so the company decided it “must take action to support a crucial system for technology sharing that has helped create today’s mass market communications industry.” Consequently, Ericsson decided to take legal action, filing a complaint in the District Court for the Eastern District of Texas.
Here is an expert reporter on patents:
Samsung is already embroiled in a worldwide patent fight with Apple, but the company will now face a patent attack from another direction. Swedish telecom giant Ericsson sued Samsung today, saying the Korean company wouldn’t renew a patent cross-licensing agreement after two years of negotiation.
Samsung refused a deal on terms that the rest of the industry has accepted, Ericsson representatives said today. The specific terms offered weren’t disclosed, but documents show they were “Fair, Reasonable, and Non-Discriminatory,” or FRAND. Just what constitutes a FRAND rate is very much in dispute right now, however, with multiple US federal courts and the US International Trade Commission considering the issue. Samsung licensed Ericsson’s standards-essential patents in 2001 and again in 2007, but its license has now expired. “Samsung’s refusal to pay a FRAND rate gives it an unfair competitive advantage over its competitors who have licensed Ericsson’s patents,” write Ericsson lawyers in today’s filed lawsuit.
Walters Consulting and I exchanged some mails about this lawsuit. He thinks Sony may be liaising with Microsoft and Apple here, based on this latter post:
Let’s take a look at some not-so-recent history… as is well known, Sony is, and has long been, a media and entertainment giant. They helped to develop the standards for the MPEG, MP3, and MP4 file formats decades ago, and also developed the software processes that administer digital rights media (DRM) on all sorts of platforms, from Microsoft’s Windows Media Player to Apple’s iTunes. As such, they collect royalties and licensing fees from Apple and Microsoft for using their patented software solutions for digital rights media management, and they continue to be a gigantic player in the music and movie industries. Just ten years ago, Sony entered the mobile phone market by partnering with existing mobile-phone-maker Ericsson to create a mobile technology joint venture in Sony-Ericsson. They operate very heavily upon a traditional business model, just as Apple and Microsoft do, which demands that information always comes for a price.
Now, some more recent history… Early on in 2009, Sony-Ericsson made a decision to design all of their new smartphones based upon Google’s Android, rather than continuing to use their own UIQ versions of Symbian (as opposed to Nokia’s S60, S80, and S90 versions of Symbian) and Microsoft’s Windows Mobile. Sony-Ericsson had been very successful through about 2006 or 2007, but had seen a severe decline in sales after that. In 2011, Sony agreed to buy out their partner Ericsson’s share of the joint venture, and Sony-Ercisson became just another part of Sony. Rebranded and remodeled, Sony’s mobile division began to immediately see improvement, and new pending phone designs were given an extreme fashion makeover. Despite Sony’s use of Android, Apple, for some reason, clearly gave Sony a pass. In fact, when Apple went to court to ask for a ban on sales and import of Samsung’s Android-based products, they were asked to show examples of competitors’ products that did NOT violate their patents-in-question… they produced a Nokia Lumia 800 with Microsoft’s Windows Phone platform, and an Android-based Sony Xperia ion, to fulfill the judge’s requirement.
Whether you see this as hypocrisy or not, there is an excellent reason for this behavior. Apple and Microsoft need an inside ally, and Sony is a very good one. Not only that, but Sony has clear aspirations to join the technology giants in the mobile space. In a way, Apple and Microsoft are already somewhat beholden to Sony over cheap access to DRM patents, especially in a world where digital entertainment is drawing ever more unrealistically extravagant profit margins. The ultimate software industry threat to both Microsoft and Apple is a robust open-source Linux following, and the freedom and popularity of Google’s Linux-based Android is a huge threat if unchecked.
Sony is no friend of Linux. It is just opportunistic about it, more so than Samsung. The FSF’s founder called for a boycott of Sony (or at least demotion thereof) long ago. Now it’s more justified than before. █
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Summary: Apple’s settlement can harm the Apple vs Samsung case
The Apple vs HTC case is over with a seemingly peaceful settlement. The speculations that HTC pays Apple seem to be pure fabrication. Tim Worstall, writing at Forbes, says that this might have some serious implications for the Samsung case (with billions of dollars at stake). To quote:
A little piece of legal finagling that could have some very interesting results. Apple has, as we know, settled with HTC over patents. And reached a general patent cross licensing agreement. Yet Apple, in the Samsung cases, seems to be saying that there are certain patents that it would never license. For getting mere money for them would never be enough. It’s on that that the potential Samsung product bans rest. For judges, if money’s a good enough compensation, prefer not to ban products.
Samsung asks the judge to see the settlement’s details:
Apple settled its patent disputes with HTC last Saturday, and lawyers from Samsung were paying attention. Papers filed in federal court Friday show that by Monday afternoon, Samsung was asking to get a look at that license agreement.
It isn’t exactly clear what patents are covered in the agreement, but at least two of the patents Apple was using against HTC were also being used against Samsung. If Apple licensed those patents, that wouldn’t be in accordance with how a key Apple witness described the company’s patent policies. At trial, Apple IP chief Boris Teksler said the company tended to not license its most “unique user patents” at all, especially to competitors, as Reuters noted today.
Here is what Reuters wrote:
SAN FRANCISCO (Reuters) – When Apple Inc and HTC Corp last week ended their worldwide legal battles with a 10-year patent licensing agreement, they declined to answer a critical question: whether all of Apple’s patents were covered by the deal.
The article says that “Apple co-founder Jobs promised to go “thermonuclear” on Android, and that threat has manifested in Apple’s repeated bids for court-imposed bans on the sale of its rivals’ phones.
“Cook, on the other hand, has said he prefers to settle rather than litigate, if the terms are reasonable. But prior to this month, Apple showed little willingness to license its patents to an Android maker.”
Is this the end of it then? The report says that: “Specific terms are unknown, though analysts have speculated that HTC will pay Apple somewhere between $5 and $10 per phone.”
That is pure speculation and most likely just FUD. Let’s hope that Apple is willing to withdraw its legal actions and start competing based on merit, not patents. █
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Summary: Lawsuits that discredit the system, including Apple’s only recent ‘win’ in court (trial misconduct alleged)
Some recent news about a patent troll got the attention of this famed FUD buster who writes:
Ars Technica has the story on yet another patent troll — though this one seems a bit special. TQP Development — a typical patent troll in so many ways — has apparently gone on something of a rampage over the last four years (and increased in the last year) suing hundreds of companies. The list is impressive. Its most recent lawsuit is against Intel and Wind River, but it’s sued pretty much everyone you can think of. Apple, Google, Twitter and eBay? All sued. Target, Hertz and Mattel? Yup. The list goes on and on… and the company is able to get a bunch of companies to settle just to get rid of the lawsuit. Apparently not a single lawsuit has actually gone to trial.
There is also this in the news today:
Chicago options market goes nuclear, files $525 million patent suit
There was a time, not long ago, when the titans of the US financial world ran away from patents. During the Bilski case, big banks filed an amicus brief (PDF) on the same side as Google, asking the Supreme Court to disallow so-called “business method” patents to no avail.
However, a few key financial institutions have embraced patents enthusiastically. This week, the Chicago Board Options Exchange has taken finance-patent wars to a new level. CBOE filed a lawsuit against a competing options exchange, International Securities Exchange (ISE), demanding $525 million for the infringement of three patents: US Patent Nos. 7,356,498, 7,980,457 and 8,266,044. The board asked for the first patent in 1999, at the height of the patent-everything craze, and the patents were issued between 2008 and 2011.
This will be a good case for abolishing the patent system and the legal framework around it. It is not so far-fetched a concept. We already saw misconduct helping Apple in court [1, 2], but Samsung fights back against it:
Samsung Replies to Apple’s Defense of Jury Foreman’s “Deliberate Dishonesty” ~pj
It’s serious. And it happened, according to his own bragging to the media. I’m not surprised there will be a hearing.
Here is more:
Did Jury Foreman Hogan Influence The Apple vs Samsung Verdict?
Samsung has been on the winning side against Apple’s legal attacks around the globe – including the UK, Germany and The Netherlands. It’s only the US, Apple’s home turf, where it is facing some challenges. The biggest and the most infamous billion dollar verdict might have had a different outcome if Velvin Hogan was not part of that jury, believes Samsung and many others due to his perceived bias against Samsung.
Both Samsung and Apple have been arguing about when the opposing party learned about Hogan’s Seagate court case. Samsung seeks a new trial due to Hogan’s failure to disclose about other court cases, his ‘presumed’ bias against Samsung the way he ignored the court’s instructions and influenced the jury using his own technical expertise.
While Apple wanted Samsung to disclose when they learned bout jury foreman Hogan’s other court cases (and Samsung disclosed), Apple itself refused to entertain Samsung’s similar request.
Samsung wouldn’t settle. Why would it? It has a lot to gain now that it is leading. It is Apple that might want to retreat and prevent further retribution from Samsung. Here is what Samsung is doing:
Samsung Raises Prices To Apple: I Wonder Why?
Now this is an interesting little tale: Samsung has raised the price it charges Apple for the main applications processors in the iPhone and iPad. The interesting question is why have they done this? I have a suspicion that I know the answer why: no proof, just a suspicion.
So, what might encourage Samsung to go for the short term greed rather than the long term type? My suspicion is that Samsung is realising that there’s no long term relationship available with Apple any more. There is of course the multi-continental fight going on over Android and the design of phones and tablets. But more than that, Apple has been disengaging from Samsung as a flash memory supplier, even as a screens supplier. To the point that there are rumours that Apple has been bailing out a Sharp plant in order to ensure that supply from some, any other than Samsung, company.
There have also been stories around that Apple is looking to either bring inhouse the chip fabrication itself, or to look for another fab house to bake them. Apple already does the detailed design of the chips with ARM providing the basics of the core. In the medium term, over the next generation or two of chips, it wouldn’t be all that difficult for Apple to farm it out to someone else, the physical construction of the chips.
Apple has failed in its litigation against Samsung. Apple likes to accuse Samsung of ‘stealing’ like it accuses — in vain — China of ‘piracy’. All in all, we are dealing with a broken system that even Computer & Communications Industry Association (CCIA) is trying to tackle:
The U.S. patent system is supposed to foster innovation and reward inventors. But in recent years it has devolved into an epidemic of licensed blackmail with shell companies using flimsy patents to shake down productive companies — especially in the tech sector.
Today, technology firms launched a new website called Patent Progress to call attention to the patent problem, and to share solutions from legal and policy experts. The site is run by the Computer & Communications Industry Association, an advocacy group that counts Google, Microsoft, Yahoo and Facebook among its members. Its contributors include leading intellectual property and antitrust lawyers and scholars.
They sometimes lobby for Microsoft. CCIA helps corporations, not people, so Patent Progress is probably not the best way to go. Still, it’s a sign that even corporations are getting fed up.
Ed Black from CCIA writes today that “RPX estimates that there are 250,000 active U.S. patents applicable to the smartphone. Assuming an average of 20 claims each, that is 5,000,000 restrictions on smartphone innovation.
“CCIA’s DisCo project did some further calculations and found smart phone patents account for 16 percent of active patents in the U.S, using RPX estimates.
“As for software patents, researchers say it would take roughly 2,000,000 patent attorneys working full-time to compare every software-producing firm’s products with every software patent issued in a given year. Moreover, any such search would be incomplete, because it cannot reveal applications that are not yet published (18 months from filing in most cases), let alone those that have not yet been filed.” █
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