Credit: Bilski Blog
Summary: A bunch of stories of interest regarding the USPTO, which is the world’s most dominant patent office
THIS is the latest update regarding the US patent system, which increasingly shows some positive signs (getting tougher on software patents) but still facilitates a lot of avoidable aggression, and not just by patent trolls.
AliceStorm Versus Software Patents
“The US patent system (or Congress) needs to reconsider whether software patents should be issued at all.”Bilski Blog calls/dubs "AliceStorm" the phenomenon of patent squashing after Alice (2014). A lot of these are software patents, which are abstract. Looking at some of the latest posts about this [1, 2, 3] (the last one was cited here before), we now have the chart at the top. It shows that most of the time, by a large margin, Alice successfully buries software patents. The USPTO needs to heed the warning from courts (not just the Supreme Court but dozens more). The US patent system (or Congress) needs to reconsider whether software patents should be issued at all.
Apple and Samsung
Apple started attacking Samsung several years ago because Apple cannot compete based on merit. Apple wants to make Android more expensive and also Apple’s cash cow. That is similar to what Microsoft has been doing. “Samsung and Apple Were Top Targets for Patent Suits in 2015″ says a new headline from Fortune, noting:
The country’s two most popular phone makers, Apple AAPL and Samsung, are still getting smacked by dozens of lawsuits from so-called “patent trolls,” which are shell companies that make no products.
Meanwhile, a single district in Texas, which the late Justice Antonin Scalia once branded a “renegade jurisdiction,” continues to occupy an outsize role in this ongoing patent pileup.
Those are two of the most notable takeaways that can be found in a new report on U.S. patent trends in 2015. Published by patent analytics firm Lex Machina, the report adds new grist to a debate over U.S. innovation policy at a time when patent reform in Congress has foundered once again.
“With Alice still fresh in people’s mind (although apparently forgotten by some Justices, based on newly-circulated rumours), Apple is likely to lose.”“Blame Texas for the latest patent pile-up falling on Apple and Samsung,” says this person, cited by Florian Müller who added this Friday watchlist alert. Müller wrote: “Earlier this month (on Friday, March 4), the Supreme Court of the United States already had Samsung’s December 2015 petition for writ of certiorari (request for Supreme Court review) in Apple’s design patents case on its agenda. It’s nothing unusual for a case to be relisted, and it happened in this case. There was no weekly conference last Friday, so this cert petition will be discussed this week, and we’ll know the decision (unless there’s another relisting) on Monday morning.”
It is possible that SCOTUS will deal with at least one case that Apple brought against Samsung. With Alice still fresh in people’s mind (although apparently forgotten by some Justices, based on newly-circulated rumours), Apple is likely to lose.
Jawbone and Fitbit
Involving some more design and software patents, the Jawbone and Fitbit story was covered here several times in the past. Here is the latest on that: “For nearly a year Jawbone and Fitbit have been in the courts and Jawbone just threw down new allegations. In a motion to amend the original filing, Jawbone wants to add a new defendant to the case that formerly worked at Jawbone but defected to Fitbit, bringing a host of confidential information along with her. Jawbone also now contends that this person, along with previously named defendants, lied under oath that they had returned all confidential Jawbone information prior to leaving the company.”
“Nobody wins except the lawyers. These cases drag on for ages.”There is a lot more coverage about it this week [1, 2, 3, 4, 5, 6] and it comes to show just what a sordid mess patent wars have become. Nobody wins except the lawyers. These cases drag on for ages.
A new article by Dennis Crouch says about a particular low-profile case that: “The original panel found that the sale constituted an invalidating on-sale bar. Of interest here, the “sale” was Ben Venue’s “sale of services” to manufacture the patented product-by-process rather than sales of the product themselves. The original panel found no principled distinction between these concepts – thus applying the on sale bar. Because the ‘sales’ at issue were associated with MedCo’s ‘validation batches,’ the patentee has also now argued experimental use.”
“If patents are about common good rather than protectionism for a few, then China should follow the will of its people, not of its patent lawyers (whose clients are often foreign).”Notice how far patents can go; even “sale of services”, not just manufacturing or sale of manufactured goods. How far can this go? Western patents, as this article from MIP suggests, can also be imposed on manufacturing giants/superpowers such as China. Why would China even entertain this? It’s not in the interests of China, that’s for sure, as most companies already manufacture everything in China. They hardly have a choice. “In determining the scope of patent protection in China,” MIP wrote, “the question of support for the claims has come into focus, particularly for bio-medical inventions. Wenhui Zhang and Stephen Zou review some recent decisions” (from China).
As we noted in relation to India the other day, patents on medicine are in no way beneficial to the interests of a large population such as China’s. If patents are about common good rather than protectionism for a few, then China should follow the will of its people, not of its patent lawyers (whose clients are often foreign). █
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For the time being, only patent lawyers make a lot of money in the process and the public is paying for it
Summary: A look at recent news about Apple and its patent cases, which the company is trying to escalate up to SCOTUS, as is Samsung (depending on the case)
THE reality of patents is more complex than patent lawyers (and other patent maximalists) typically put it. Injunctions are never beneficial to the population (whether one calls them “customers” or uses the more derogatory word, “consumers”) and the costs of products are artificially elevated to make up for lawyers' fees.
“Apple wants not only its own phones to cost nearly a thousand bucks.”Alluding to this patent case against Apple, Patently-O writes that: “It will be interesting to See how Apple responds. The court asked for responses from Apple, Mangrove, and Director Lee to be filed next week.”
“This isn’t just a US problem by the way.”In another case, one in which Apple is a patent aggressor, the judge “issues a warning to Apple lawyers,” according to this recent report about Apple’s fight against Samsung (SCOTUS intervention may be next). Well, only the lawyers win in this case (or war), which has gone on for 6 years. Apple wants not only its own phones to cost nearly a thousand bucks. Along with Microsoft, the Microsoft-dominated (hijacked) Nokia and CPTN partners like Microsoft and Oracle, Apple tries to make Android equally expensive, using software patents for the most part.
This isn’t just a US problem by the way. The EPO‘s President (for now) Battistelli is clueless about the Office's operations and role in the Apple litigation. This cannot be seen as acceptable. █
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Never-ending legal battles with billions of dollars at stake and perhaps hundreds of millions in legal bills (soon)
It doesn’t matter who wins when one sells time and charges a lot by the hour
Summary: In Apple/Samsung patent wars (started by an increasingly jealous and nervous Apple), money flows mostly in a single direction (to neither Apple nor Samsung, only their patent lawyers) as possibility of appeal at SCOTUS is still being considered
BEFORE we continue EPO coverage we wish to get emerging news out of the way. As some people already know, Apple has just lost to Samsung. Here are some of the very earliest reports on this [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23]. There will probably be hundreds more by Monday (look around here), but this in itself is enough to help people understand what’s going on. Some lawyers’ sites cover this as well, whereas a lot of people link to the original PDF published by the Court.
We don’t wish to bore readers with the technical details (these exist in the articles above), but let’s just say that it won’t be long before patent lawyers’ sites bemoan this decision as it damages faith in patents. Also expect many so-called ‘news’ sites from all over the world to just license ‘reports’ from AP and Reuters, probably quoting all sorts of patent lawyers rather than people like myself who actually develop stuff (such as software). Everybody loses (especially the so-called ‘consumers’) when engineers and programmers waste time figuring out how to ‘work around’ patents.
“The smartphone patent war: 1) obtain 10,000s garbage patents + 2) 100s of lawsuits == $ for lawyers & little else…”
–Professor James BessenProfessor Mark Lemley wrote that “The only patent valid and infringed is one of Samsung’s” (yes, how ironic!).
“Live by the patent sword, die by the patent sword,” Simon Phipps (OSI, Sun, Wipro etc.) wrote.
Professor James Bessen says it like it is with this tweet: “The smartphone patent war: 1) obtain 10,000s garbage patents + 2) 100s of lawsuits == $ for lawyers & little else”
“The only patent valid and infringed is one of Samsung’s…”
–Professor Mark LemleyProfessor Mark Lemley and Professor James Bessen are reasonably noteworthy voices of reason in today’s patents lawyers-saturated corporate media. Don’t expect the mass media to cover this too well. The journalists care a lot about this case because, just as with all that FBI publicity stunt (pretending Apple fights for privacy and security), it’s about Apple. Many people are obsessed with everything ‘i’ (iPhone and so on).
Once upon a time Florian Müller supported Apple in its fight against Android, but not anymore. “Apple lost 100%,” he wrote. He also said “I guess they’ll petition for rehearing.” These comments are noteworthy because he essentially defected or switched sides not too long ago. “Apple v. Samsung (2nd Calif. case) turned out just the way I predicted in January,” he later claimed, adding: “After affirmance of Judge Posner’s Apple v. Moto claim construction, the ’647 patent should have been dropped. I said it then.”
“It adds insult to injury for Apple that the Fed. Cir. has affirmed Samsung’s symbolic win (prevailed on a counterclaim),” he noted.
“It adds insult to injury for Apple that the Fed. Cir. has affirmed Samsung’s symbolic win (prevailed on a counterclaim)…”
–Florian MüllerAlluding to this news about Koh (some sites speak about Koh’s nomination, noting her rise to fame in the Samsung/Apple patent cases), Müller said: “The appellate track record of Apple v. Samsung gives Republicans plenty of reasons to oppose Judge Koh’s nomination to the 9th Circuit.”
Finally, said Müller: “I didn’t just interpret the appellate hearing right. Back in 2014 I made my disbelief in Apple’s 2nd case against Samsung very clear.”
A lot has changed since then, including the Alice case at SCOTUS (where the bigger Apple lawsuit might go soon). If Apple appeals, then it’s guaranteed that only patent lawyers will rejoice. Hey, somebody should tell Battistelli about this as he obvious isn't keeping track. █
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Publicado en Apple, Courtroom, Patentes, Samsung at 3:25 am por el Dr. Roy Schestowitz
El arrogante de Apple esta seguro que invento todo
Sumario: La imparable guerra de patentes contra Android no muestra signos de para, incluso después de varios años de la muerte de Steve Jobs, quién empezo esta guerra de patentes
Hace media década, después de vergonzósamente enjuiciar a HTC, Apple comenzo a enjuiciar Samsung, quien ya era un lider Android OEM, usando patentes y diseños de patentes las que frecuentement son indistinguibles de las primeras. Recuerden quien comenzó esta guerra. Siempre recuerde que no estaba hablando con Samsung para que licenciar patentes. Fue Apple bajo la megalomanía de Steve Jobs. Este caso pronto alcanzo a la Corte Suprema, SCOTUS, pero no hay confirmación todavía.
“La section final de la petición de Samsung [a SCOTUS],” Florian Müller escribió el otro día, ¨resalta la ¨enorme importancia nacional¨ de la petición. Esto suena a mic como ¨esto debería ser revisado, pero por lo menos debería haber una llamada por la opinión del Solicitor General (CVSG).” O tal vez tiendo a leer mucho entre las líneas.
¨Aprecio que ambos Samsung y Apple estan con voluntad de pelear esto hasta las últimas consequencias,¨ escribió esta persona. ¨El proceso es importante como el resultado¨ (y hasta ahora muy oneroso).
Apple ha sido atraído pesadamente a PTBA últimamente; escribimos acerca de PTAB a principios de mes en numerosas ocasiones. De acuerdo a este nuevo post de un blog, una patente biotecnológica esta cerca de ser revisada. Recuerden que muchas patentes, incluso algunas en Europa, fueron invalidadas en el proceso. ¨Un quinto de todas las peticiones a IPR fueron rechazadas de acuerdo a este reporte de PTAB del año 2015,¨ dice IP Watchdog. Para citar el post anterior, la dicha familia de patentes son las más famosas patentes de biotecnologíá. Con reclamos que cubren pasos básicos en generar antibióticos therapeúticos, estas patentes son porteras en la industria que han mostrado inprecedente crecimiento, más de la mitad de las 10 drogas más vendidas en el mundo son antibióticos terapeúticos. A traves de licensiatura a fabricantes de antibióticos, Genentech-one uno de los dueños de Cabilly patentes espera ganar un billón de dollares en regalías por ellas para el 2018.
Bueno, seguramente parece que Apple esta esperando ganar billones, no sólo un billon de dólares simplemente por regalías de patentes. Apple esta esperando en convertirse en una firma de patentes, mientras Android sigue creciendo, y es díficil de detenerlo sin inflar los precios de Android devices artificialmente. █
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The arrogant Apple is so certain that it invented everything
Summary: Apple’s relentless patent war on Android shows no signs of stopping, even several years after Steve Jobs, who had started this mess, died
Half a decade ago, after shamelessly suing HTC, Apple started suing Samsung, which was already a leading Android OEM, using software patents and design patents that are often indistinguishable from software patents. Remember who started this war. Always remember that it wasn’t Samsung reaching out to patents. It was Apple under Steve Jobs' megalomania. This case might soon reach the Supreme Court, SCOTUS, but there’s no confirmation yet.
“The final section of Samsung’s petition [to SCOTUS],” Florian Müller wrote the other day, “stresses the “enormous national importance” of the petition. This sounds to me like “this should be reviewed, but at the very, very, very least there should be a call for views of the Solicitor General (CVSG).” Or maybe I tend to read too much between the lines.”
“I appreciate that both Samsung and Apple are willing to fight this to the bitter end,” wrote this one person. “The process is as important as the result” (and very expensive thus far).
Apple has been drawn rather heavily into PTAB as of late; we wrote about PTAB earlier this month on numerous occasions. According to this new blog post, a biotechnology patent is about to be reviewed. Remember that quite a few Apple patents, including some in Europe, got invalidated in the process. “One-fifth of all IPR petitions denied institution according to 2015 PTAB report,” says IP Watchdog. To quote the former post, the said patent family “is likely the most famous patent family in biotechnology. With claims that cover basic steps in generating therapeutic antibodies, these patents are gatekeepers in an industry that has shown unprecedented growth—currently, half of the 10 top-selling drugs in the world by sales are therapeutic antibodies. Through licensing to antibody manufacturers, Genentech—one of the owners of the Cabilly patents—is expected to reach a billion dollars in royalties from this patent family by 2018.”
Well, it sure seems like Apple is hoping to make billions, not just a billion dollars, out of patent royalties alone. Apple is hoping to become a patents firm, as Android keeps growing and it’s hard to stop it without artificially elevating prices of Android devices. █
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Summary: What the media really ought to be talking about after the high-profile VirnetX case, rather than obsess about the status of Apple or patent trolls in the Eastern District of Texas
EARLIER this week Apple made headlines because VirnetX had ‘lectured’ Apple on patents. Apple got hit by a troll and it will have to pay a lot of money unless a miracle happens. Apple will not blame software patents (which are inherently the issue almost everywhere) but just “trolls” (the small ones). Joe Mullin, a trolls expert, called VirnetX a “Patent-based company”. When a troll’s value depends just on patents (or a patent) the share price can double because of a court’s ruling. The jury bumped the stock by 88% (the members of this jury may as well have just invested in this troll before the ruling), so there we have an example of non-practicing entities doing little more than just litigation.
A patent lawyers’ site said that a “jury in the Eastern District of Texas has awarded VirnetX $626m after finding Apple had infringed four patents. The PTAB instituted inter partes reviews on the patents last October, however, the results of which could affect the district court case” (that’s from MIP).
Notice the role of the Eastern District of Texas again. It’s not a coincidence. Trolls love the Eastern District of Texas. There’s no lack of coverage of this ruling. Within a few hours we saw more than 100 headlines (too much for exhaustive listing here), some of them included [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28] for the record. “Apple now owes VirnetX more than what Samsung owes it”; that’s one way to put it.
Samsung is the leading Android (Linux) OEM, so this is very relevant to us. Even EPO-funded sites mentioned this and then took note of a lesser known patent lawsuit against Apple in China. The author wrote: “Court records from the Chinese manufacturing hub of Shenzhen show that BYD has dropped two patent infringement lawsuits that it filed against client Apple back in May 2015. But since the two cases were closed in late December, the legal back-and-forth has continued in a California federal court, as Apple argues that its supplier breached an IP non-assert clause in their contract and should be compelled to participate in arbitration.”
“This clearly serves to discredit the way this patent system works.”According to software patents fans, some of the patents Apple uses against Samsung are now being challenged at PTAB, and Florian Müller, who spent years promoting/bolstering Apple’s side before defecting, has just published the decision’s PDF and said: “Apple has just responded to Samsung’s mid-December petition for writ of certiorari (request for Supreme Court review) regarding two legal questions concerning design patents and, in the same document, to amicus curiae (“friend of the court”) briefs from major industry players, many IP law professors and various public interest advocates, all of whom agree with Samsung that the top U.S. court should take a look at this matter.”
One can find the PDF of the troll’s case here in Patently-O, which also debated other interesting patent-related matters this week.
“In this case,” wrote Patently-O in one of the above, “the district court found that Lotan had assigned his rights to AngioScore and that his later purported assignment to TriReme actually transferred no rights. These two conclusions led to the final dismissal with a holding that TriReme had no standing to bring its claim.”
This clearly serves to discredit the way this patent system works. The latter analysis, also about the district court, involves Google and says:
In Cioffi v. Google, the Federal Circuit sided with the patentee, Cioffi — holding that the district court erred in its construction of the asserted patent claims and thus vacated the holdings non-infringement and invalidity via indefiniteness. (Non-precedential opinion). Now, Google has petitioned the court for an en banc rehearing asking the court to “strictly construe” claim amendments against the patentee.
This again is about software patents. In fact, pretty much all the above is about software patents, which is what we ought to focus on if these severe issues are ever to be resolved. █
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Publicado en GNU/Linux, Microsoft, Patents, Samsung at 8:14 am por el Dr. Roy Schestowitz
“Se cree que ls monopolios de patentes impulsan la innovación, pero que en realidad impiden el progreso de la ciencia e innovación, dijo Stiglitz. La “maraña de patentes,” actual en la que cualquier persona que escribe un programa de software con éxito es demandado por supuesta infracción de patentes, pone de relieve el fracaso del sistema de propiedad intelectual para fomentar la innovación, dijo.”
–IP Watch on Professor Joseph Stiglitz
Sumario: Microsoft ha convertido a Nokia en un troll de patentes que ahora ataca a Linux y Android.
Microsoft ha convertido Nokia en un anti-Adroid/Linux troll de patentes, como se esperaba. ¿Está alguién sorprendido? Preveímos esto desde el principio. Asi como otros (incluso aquellos que Microsoft pago por ´reportajes´).
Como Florian Muller lo puso esta mañana: ¨Como lo sospeché, el pacto de patentes de 2013 Nokia-Samsung esta lejos de ser comprehensivo: litigación todavía una posibilidad¨ (en aquel entonces él todavía era cercano a Microsoft).
Para citar el blog de Muller: ¨La realidad que muchas de las aserciones de patentes de Nokia contra HTC fallaron (aunque HTC fue forzado al final a pagar por licencias en cualquier términos) puede hacer que prospectivos licenciadores sientan que pueden probar suerte en la corte.
¨El próximo anuncio de Nokia-Samsung, cuando este sea dado, será probablemente un comunicado ¨pescado o carnada¨. No hablarán por siempre. En algún momento se pondrán de acuerdo o Nokia los enjuiciará. Por mi parte recomendaría a Samsung (si me lo preguntaran, obviamente no lo harán) que no sobrepaguen.¨
“Microsoft también pasó patentes de Nokia a trolles de patentes como MOSAID (ahora llamada Conversant).”¨Así que ¿Microsoft ama a Linux, si? Por ello destruyeron Nokia después que Nokia se ´atrevió´ a ser uno de los mayores contribuyentes de Linux (casi numero uno). Microsoft también pasó patentes de Nokia a trolles de patentes como MOSAID (ahora llamada Conversant).
El reporte que todos van a citar en los próximos dis es este. El Wall Street Journal escribió: ¨Nokia Corp espera ganar más de 1 billón de dollares en cash por su portafolio de propiedad intelectual en los próximos tres años, incluyendo las ganancias de su pacto con Samsung Electronics Co. firmado hace más de dos años.¨
Aparentemente, Nokia quiere mucho más dinero que esto. ¨NOKIA ES UN TROLL DE PATENTES ahora, extorsionó 1 Billon de dolares de Samsung,¨ escribió el presidente de la FFII (Fundación para una Infraestructura de Información Libre) esta mañana. Revisaremos esta materia más adelante (hay muchos más urgentes temas que cubrir ahora). █
“Microsoft está pidiendo a la gente a pagar por las patentes, pero no van a decir cuáles son. Si un tipo entra en su tienda y dice: “Es un barrio peligroso, ¿por qué no me pagas 20 dólares y me aseguraré de que estés bien,” eso es ilegal. eS CRIMEN ORGANIZADO.”
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“Patent monopolies are believed to drive innovation but they actually impede the pace of science and innovation, Stiglitz said. The current “patent thicket,” in which anyone who writes a successful software programme is sued for alleged patent infringement, highlights the current IP system’s failure to encourage innovation, he said.”
–IP Watch on Professor Joseph Stiglitz
Summary: Microsoft has made a sort of patent troll out of Nokia and Nokia now attacks Linux and Android
Microsoft turned Nokia into an anti-Android/Linux patent troll, as expected. Is anybody surprised? We foresaw this right from the very start. So did others (even those whom Microsoft paid for ‘reports’).
As Florian Müller put it this morning: “As I suspected, the 2013 Nokia-Samsung patent deal is far from comprehensive: litigation still a possibility” (at the time he was still close to Microsoft).
To quote Müller’s blog: “The fact that most of Nokia’s patent assertions against HTC failed (though HTC ultimately felt forced to take a license on whatever terms) may also make prospective licensees feel they should take their chances in court.
“The next Nokia-Samsung announcement, whenever that one may issue, will most likely be a “fish or cut bait” statement. They won’t be talking forever. At some point they will agree or Nokia will sue. I, for my part, would recommend to Samsung (if they asked me, which they obviously don’t) not to overpay.”
“Microsoft also passed Nokia patents to patent trolls like MOSAID (now named Conversant).”So Microsoft loves Linux, right? That’s why it destroyed Nokia after Nokia had ‘dared’ to become a top Linux contributor (almost the number one contributor). Microsoft also passed Nokia patents to patent trolls like MOSAID (now named Conversant).
The report which everyone is likely to cite in the coming days is this one. The Wall Street Journal wrote: “Nokia Corp. expects to gain more than a billion dollars in cash from its intellectual-property portfolio in the next three years, including the proceeds from a patent pact with Samsung Electronics Co. signed more than two years ago.”
Apparently, Nokia wants a lot more money than this. “Nokia is a patent troll now, extorts 1 Billion USD from Samsung,” the FFII’s President wrote this morning. We shall revisit this subject some time later (there are more urgent topics to cover right now). █
“Microsoft is asking people to pay them for patents, but they won’t say which ones. If a guy walks into a shop and says: “It’s an unsafe neighbourhood, why don’t you pay me 20 bucks and I’ll make sure you’re okay,” that’s illegal. It’s racketeering.”
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