Bonum Certa Men Certa

Patents Roundup: Proxy Lawsuits, SCOTUS on Software Patents, Reform Agenda, and Lawyers Bypassing Alice

Summary: A look at recent developments in the US patent system and how they relate to software patents in particular

TAKING a break from EPO articles and looking again at the USPTO, here is a roundup of recent developments.



Proxies in Patent Lawsuits



Nearly a decade ago we looked into why and how SCO had received money from Microsoft to sue Linux (or large corporations that rely on GNU/Linux). We also kept a close eye on patent trolls which often operate as proxies against a competitor. See for instance Intellectual Ventures and Acacia. They're suspects.

"We also kept a close eye on patent trolls which often operate as proxies against a competitor."This new article by Joe Mullin shows that litigation by proxy is a problem more widespread than just Microsoft and GNU/Linux, for patent trolls cannot be sued, making them convenient proxies (Intellectual Ventures, which is Microsoft-connected, is estimated to have about 2,000 satellite firms for litigation and Acacia too has many 'branches'). Here is Mullin's new article:

Company wrests $100k payment from patent troll but has no idea who paid



[...]

Lumen View Technology sued several small businesses in 2013 over a patent that described little more than online "matchmaking" before its demands for quick $50,000 payoffs ran into a Santa Barbara startup called Graphiq (formerly FindTheBest).

Graphiq CEO Kevin O'Connor, who had also co-founded online ad giant Doubleclick, pledged to spend his own money to defeat Lumen View—and defeat them he did. O'Connor's battle with the patent-holding company has finally come to an end, with the still-unknown owners of Lumen View agreeing to pay him $100,000.


We remind people that the patent troll problem is more complex than people care to realise. A lot of this tends to be part of a broader anticompetitive picture. See what Microsoft did with Nokia and MOSAID.

"A lot of this tends to be part of a broader anticompetitive picture."Tim Wilson (not my TechBytes co-host) used to write prolifically about the patent troll problem. That was years ago after he was personally hurt by them. Here he is again contributing a new article to IP Watch. The title of his article (and premise) is "Companies Can Inoculate Themselves Against Patent Trolls Through Their Supply Chain," but it's better to just eliminate trolls, which requires eliminating software patents because of the close correlation between the two.

Legislative Remedies for Software Patents



This new article from yesterday covered the SCOTUS stance on software patents as follows:

SUPREME COURT ON SOFTWARE PATENTS: During oral arguments at the Supreme Court on Tuesday, Justice Stephen Breyer said it is "unfortunate" that Congress hasn't created special rules to deal with software patents, which are pervasive in the technology industry.

"Today's patent world is not a steam €­engine world," he said. "We have decided to patent tens of thousands of software products and similar things where hardly anyone knows what the patent's really about."


Related to SCOTUS as well, see "Supreme Court Oral Argument Reviewing Enhanced Damages" -- a subject that many sites tackled yesterday. To quote Patent Docs: "Earlier today, the Supreme Court heard oral arguments in two related cases: Halo Electronics, Inc. v. Pulse Electronics, Inc. (Supreme Court docket number 14-1513) and Stryker Corp. v. Zimmer, Inc. (Supreme Court docket number 14-1520). The issue on appeal in the Halo case was limited to Question 1 presented in the petition..."

"Speaking of SCOTUS, remember that Apple’s war on Android may soon reach SCOTUS level."The mass media covered this too, not just patent maximalists and (patent) law professors. Here is a useful overview from Patently-O):

Today the Supreme Court heard combined oral arguments in the willful infringement cases of:

Halo Electronics, Inc. v. Pulse Electronics, Inc., et al. (14-1513); and Stryker Corporation, et al. v. Zimmer, Inc., et al. (14-1520)


Speaking of SCOTUS, remember that Apple's war on Android may soon reach SCOTUS level. There is some misinformation about it out there. "Patenting company" is what patent maximalists now foolishly call Samsung; it also makes actual products, and it is not a patent aggressor, unlike Apple. These false narratives help distract from the reality of Apple's aggression, which is making 'smart' phones hugely expensive to everyone. To quote this new tweet from the Web Foundation, “1/3rd of the cost of a midrange smartphone is down to patent royalties. Time for reform” (real patent reform).

Patent Reform (Tackling Trolls, Not Patent Scope)



"Patent law firms are just trying to find ways around Alice, in order to patent software despite the new rules."A patent lawyer has just highlighted this article from a GOP-leaning site. It is against patent reform and the patent lawyer said "I agree" (only to be expected, as they profit from litigation).

Cheryl Wetzstein, "formerly national news reporter at The Washington Times," is speaking to some academics for this article (at least they're not just patent lawyers) and notes that "The recent death of U.S. Supreme Court Associate Justice Antonin Scalia could impact the fate of many bills, including the patent proposals."

Another GOP-leaning site, Fox News, approached this from the "troll" angle and wrote: "A decision to let the ruling stand will further incentivize patent trolls to go after small businesses, a devastating blow to small and minority businesses that are instrumental to U.S. economic growth. Letting the ruling stand will solidify legal precedent that will hinder entrepreneurship and create significant barriers for Hispanic and other minority owned businesses."

Patent Lawyers Prepare to Work Around the Rules



"Usually, following common sense, more litigation means less production because of allocation of financial and human resources."An article by Lewis Roca Rothgerber Christie LLP continues to show a phenomenon which we repeatedly highlight here. Patent law firms are just trying to find ways around Alice, in order to patent software despite the new rules. James Cosgrove, Legal Analyst at Juristat, has just published a piece titled "Defeating Alice with Data". To quote Cosgrove: "While all patent attorneys would like for Alice to be applied with consistency and predictability across all examiners and art units, the application of law is rarely predictable due to the personal experiences and preferences of individual examiners. However, there are tools that patent attorneys can use to at least get a head start on prosecution of software and business methods applications and market their expertise to clients who are looking for it. No strategy is going to guarantee a positive outcome in every prosecution, but patent attorneys can certainly increase their chances of success through careful study of the relevant data available to them."

Litigation Epidemic



Usually, following common sense, more litigation means less production because of allocation of financial and human resources. According to this new analysis, so far in 2016 "the top patent defendants is comprised entirely of tech or e-commerce companies, most with a consumer focus: Expedia, Apple, AT&T Mobility, T-Mobile US, Huawei USA, Samsung, HP, T-Mobile USA, ZTE and Huawei."

"With all these patent disputes no wonder a pair of shoes that costs just a few dollars to manufacture can cost as much as hundreds of dollars at the shops."Clothing companies too are battling over patents, based on this article about CAFC, Nike, and Adidas. To quote the MIP article: "The Federal Circuit provided guidance on motions to amend in inter partes review proceedings in its recent Nike v Adidas decision. PTAB observers are hopeful it is a sign the court will be harder on the Board’s resistance to substitute claims..."

With all these patent disputes no wonder a pair of shoes that costs just a few dollars to manufacture can cost as much as hundreds of dollars at the shops. A society and an industry more cooperative would go a long way in serving the customers (or "consumers" as some call them).

Recent Techrights' Posts

Changing One's Name Won't Change One's Past
People who have earned a bad reputation are not magically "entitled" to reset
People Who Assault Women Are Not Victims of "Distress"
It seems like an American tradition. In a country with almost 50 presidents, not even one was a female.
Adoption of Gemini Protocol Still Growing
Gemini Protocol is being obscured by the media - it doesn't help that Google 'hijacked' the word "Gemini" - but people still manage to find out about it, download a client, and use it
Brett Wilson LLP "Takes it Personal" (Character Assassination, Not Professionalism). Everybody Can See That.
On behalf of violent men
Pissing Contests and Pissing Off Everyone
people who came from Microsoft are trying to vex and divide the community
Microsoft Repeats the Mistakes Made by the EPO After We Exposed a Major Microsoft/EPO Scandal 10 Years Ago
That scandal was all over the media, not just in English
 
Ubuntu is Becoming GAFAM-Like
What does that say about Canonical and Ubuntu?
Slopfarms Which Take Real Articles About GNU/Linux and Turn Them Into Copycats Which Are False
Even before the LLM hype those were quite common
The Firm That Picks on Techrights is Accustomed to Working With Criminals
Techrights never did anything illegal. So why is it being picked on by people who work with criminals?
Microsoft Said the Mass Layoffs Were for "Investment" in "AI", But It's Also Laying Off the "AI" and "Copilot" Staff
Months ago we showed many so-called "AI" people were getting the boot and this time it's the same
DryDeadFish is Dead, Long Live DryDeadFish
We kept checking, hoping it can recover from some temporary technical issue
For Quite Some Time Already Microsoft Attracts Crackpots, Scams, and More
Occasionally we talk about the situation at IBM as there are many parallels
Links 14/07/2025: Chatbots Broken Again, McHire LLM Shows Limits of the Hype
Links for the day
Slashdot Media Turned Linux Journal Into a Slopfarm and Now Slashdot Actively Promotes Anti-Linux Slopfarms
Yes, "no-nonsense" apparently means actual nonsense
Links 14/07/2025: Arresting Photographers, Threats to Revoke US Citizenship Over Criticism
Links for the day
More EPO Leaks on the Way
We hope that Mr. Rowan will actually try to refute what we say and show, not merely point the finger at the messengers
Decommodification is a Corporate Strategy Against Communities
systemd is led by Microsoft and hosted by Microsoft
copyleft.org 'Hijacked' by the People Who Attack the Person Who Created Copyleft
So far there's nothing "tasteless" in copyleft.org, but that can change at any time in the future
Asking People to Take Down Articles and Videos Only Makes These More Popular and "Viral"
If you do something bad, one of the worst things you can possibly do it try to silence those who speak about it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 13, 2025
IRC logs for Sunday, July 13, 2025
Two-Thirds Towards FSF Goal, Richard Stallman to Give Talks in Europe
There are 67 left before reaching the target
Gemini Links 14/07/2025: Politicised Tech and "Leaving GitHub"
Links for the day
The Demise of LLMs
We've just checked BetaNews again. They've dropped all the slop and went back to human authors.
Gemini Links 13/07/2025: Sonpo Museum of Art and FCEUX
Links for the day
Links 13/07/2025: UnitedHealth's Censorship Campaign, Australia Wary of China
Links for the day
Firing Away With Nonsense
Or fighting fire with fire
Links 13/07/2025: Climate Crisis, GAFAM Poisoning the Water
Links for the day
Turns Out LLMs for Code Don't Save Time and Don't Improve Quality
Neither legal nor useful
The Microsofters Will Have an Obligation to Compensate Us
This story isn't just about Microsoft. It's also about corruption, there are many women victims, there is abject "abuse of process", and many more scandals to be illuminated in years to come.
Reproducing at the EPO Instead of Producing Monopolies for Foreign Monopolies With Their Price-Fixing Cartels
Does the EPO recognise the need of well-educated Europeans to bear kids?
Valnet Inc. Dominates Real (Not LLM Slop) GNU/Linux Coverage in 2025
And likely in prior years, too
Free Software Foundation (FSF) Fund Raiser Goes on
Later this month we'll expose another OSI scandal
EPO Staff Representatives Issue a Warning About Staff's Health and Inadequate Care
Even the EPO's own stakeholders (money sources) are openly protesting against what the EPO became
Links 13/07/2025: Partly Assorted News From Deutsche Welle and CBC
Links for the day
Gemini Links 13/07/2025: Board Games and Battle Styles
Gemini Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 12, 2025
IRC logs for Saturday, July 12, 2025
Plunder at the Second-Largest Institution in Europe
cuts, neglect, health problems, even early deaths
Links 12/07/2025: Political Developments, Attack on Opposition, Climate Actions
Links for the day
Gemini Links 12/07/2025: Melodic Musings and Small Web July
Links for the day
Links 12/07/2025: Jail in China for Homoerotica, South Korea Discriminates Against Old Workers
Links for the day
If Only Everything Was Rewritten in Rust, We'd Have No More Security Issues?
Nope.
Links 12/07/2025: Birdwatching and Fake/Misleading Wall Street 'Valuation' Figures
Links for the day
Gemini Links 12/07/2025: How to Avoid Writing, Apps for Android
Links for the day
Using SLAPPs to Cover Up Sexual Abuse and Strangulation
The exact same legal team of the Serial Strangler from Microsoft and Garrett already has a history fighting against "metoo"
EPO Staff Committee on Harassment in the Workplace
slides
Adding the Voice of Writers to UK SLAPP Reform
The journey to repair antiquated (monarchy era) laws will likely be long
EPO Takes More Money From Staff for Speculation (Pensions), Actuarial Study Explains the Impact
"The key change in this year’s Actuarial Study, due to cascading the new “risk appetite” from the financial study, is a significant increase of the total pension contribution rate of 5.7 percentage points, up to a total of 37.8%. This is driven by an unprecedented decrease in the discount rate of 105 bps down to 2.2%."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 11, 2025
IRC logs for Friday, July 11, 2025