PATENT trolls thrive in countries that have software patents. It started with the USPTO (US), it later started to happen in the EPO (Europe), and it is already becoming an epidemic in SIPO (China), as we repeatedly warned in recent months. There are several reasons for this correlation and we explained these before.
Should patent lawsuits filed in federal courts be hidden from the public? We don’t think so, especially where a patent owner may be suing multiple people based on the same claim. Apart from the general principle that legal processes should be open to the public whenever possible, as a practical matter sealed filings prevent other people under legal threat from the same person from learning information that may be crucial to their own defense.
That’s why we were concerned when we noticed that numerous court filings and at least three court orders were made entirely under seal in a patent case. We contacted the parties to the lawsuit, Audible Magic and Blue Spike, and asked them to file public versions of significant court filings, redacting only information that was truly confidential. Audible Magic quickly agreed to EFF’s request. However, Blue Spike opposed it entirely, forcing EFF to intervene in the case and ask that the court order the filing of public-redacted versions of the sealed filings.
The court granted EFF’s motion to intervene and our motion to unseal. The court ordered Audible Magic and Blue Spike to submit redacted versions of any document a party wished to keep partially sealed. Again, Audible Magic quickly complied. The documents revealed, among other things, that Blue Spike had not created a product it advertised, called the “Giovanni Abstraction Machine,” despite Blue Spike’s public statements indicating otherwise. We also discovered allegations that Blue Spike’s owner, Scott Moskowitz, took the technology that formed the basis of some of Blue Spike’s patents from company called Muscle Fish,1 and therefore shouldn’t have gotten those patents in the first place. (The parties settled before trial, thus leaving the question of Moskowitz’s alleged misappropriation, and also the related validity of Blue Spike’s patents, unanswered.)
Stupid Patent Of The Month: Changing The Channel
Is somebody really claiming to have invented a method for switching from watching one video to watching another?
This question comes from a lawyer at the New York Times, as an aside in an interesting article about the paper's response to a defamation threat from a presidential candidate. Apparently, that defamation threat distracted the his legal team from their work on another task: responding to a patent troll. Intrigued, we looked into it. The patent troll is called Bartonfalls, LLC and its patent, U.S. Patent No. 7,917,922, is our latest Stupid Patent of the Month.
The patent is titled "Video input switching and signal processing apparatus." It includes just two pages of text and, as the title suggests, describes an apparatus for switching between channels that come from different inputs (e.g. between cable channels and free-to-air broadcasts). The patent is directed to the equipment found in and around a 1990s television (such as VCRs, cable converters, satellite tuners). It does not even mention the Internet.
Last Thursday, China’s State Intellectual Property Office (SIPO) published new draft guidelines for patent examination. Amid tweaks that will be greeted by pharmaceutical innovators, there are also changes to the standards for software patenting that should be a boon to companies seeking protection for computer programmes, something that has been increasingly difficult to obtain in the US and some other markets. SIPO says the measures are driven by "urgent demand" from innovative industries. It is the latest reminder that in the post-Alice environment, many observers say software protection is easier to obtain in China than in the US.
The USPTO’s senior counsel for China, Mark Cohen, drew attention to the proposed new rules in a blog post last week, saying that they “appear to loosen the standards for obtaining software enabled inventions”. According to Cohen’s translation, a section of the Patent Examination Guidelines which asks applicants to describe “which parts of the computer programme are to be performed and how to perform them” is amended to add that “The components may not only include hardware, but may also include programmes”. If adopted, the guidelines would also make it easier to obtain business method patents, as they provide that: “Claims related to business methods that contain both business rules and methods and technical characteristics, shall not be excluded from the possibilities of obtaining patent rights be Article 25 of the Patent Law.”
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Editor's round-up
See current issue The death of software patents has been greatly exaggerated, at least in China and the United States. On the IAM blog this week, we reported on new examination guidelines at the Chinese State IP Office which seem to indicate that it will be easier to get protection for computer-implemented inventions in the country than it has been thus far. Meanwhile, in an exclusive article the former chief patent counsel at Microsoft explained why it has been a very good six months for US software patent owners. The European Commission has just released a detailed report on patent assertion entities which concludes that troll-like behaviour is unlikely to be seen in Europe for a number of reasons, including the preponderance of high-quality patent rights and comparatively low litigation costs. Elsewhere, we looked at Hillary Clinton’s IP policies and focused on a major BlackBerry licensing deal in Asia. There was news, too, of confidence-boosting third-quarter results from InterDigital, as well as claims from its CEO that a recently launched Internet of Things licensing platform could deliver significant revenue boosts in the near future.
Joff Wild Editor
Since 2006, hundreds of US businesses have received letters informing them that they infringe patents belonging to Martin Kelly Jones, who briefly ran a business called "BusCall" in the early 90s. The Jones patents, owned for many years by a company called ArrivalStar, have been called out repeatedly as one of the most egregious examples of patent abuse.
ArrivalStar sent out hundreds of demand letters, often targeting small companies that couldn't hope to afford a drawn-out defense of a patent infringement suit. It also took the unusual step of suing public transit agencies, saying their bus-tracking systems infringe Jones' patents. The patents were moved into a new entity called Shipping & Transit LLC last year.
Jones and the lawyers who work with him have squeezed royalty payments from over 800 companies over the years, but little has been known about him, outside the short explanation included in the demand letters he sends out. Now, Jones has made what appear to be his only public comments since his inventions launched a decade-long campaign of lawsuits, in statements to The Wall Street Journal.
Negotiations over patent licensing are tricky. One bad sign is if parties start discussing standard-essential patents in detail
Michele Herman of Metabl and Richard Taffet of Morgan Lewis staged a mock negotiation yesterday as part of the session called "The Nuts and Bolts of Licensing: Strategies for Negotiating to Yes."
Negotiations over patent licensing are tricky enough. But Herman said it's a bad sign if parties start discussing standard-essential patents (SEPs) in detail.