Bonum Certa Men Certa

Apple Has Far More to Lose Than to Gain From Patent Maximalism; Apple Needs to Fight for Patent Sanity

Zeroclick, Uniloc, VirnetX, AVRS and many others can cost Apple billions in legal bills and settlements

Apple logo



Summary: It might be time for Apple to rethink its legal strategy; patents are costing the company a great deal of money and have yielded almost nothing for the company's bottom line (unlike the company's lawyers, perpetrators of this misguided strategy)

THE SUMMER HOLIDAYS are in full swing and many staff (e.g. EPO and USPTO examiners) likely enjoy a long break right now. In fact, journalists too slowed down; some are away. But it's never a suitable time for them to stop the Apple hype. Whenever there's some patent case involving Apple the corporate media suddenly bothers covering patent news (it otherwise doesn't care because people don't click on stories unless there's some famous brand in the headline).



"Whenever there's some patent case involving Apple the corporate media suddenly bothers covering patent news (it otherwise doesn't care because people don't click on stories unless there's some famous brand in the headline)."This is a short roundup of Apple in patent news. This is far from the first time we point out the exceptional emphasis on Apple; we last mentioned it a few weeks (or 10 days) ago.

Chris Stokel-Walker's article, "Forget Apple vs Samsung, an even bigger patent war has just begun," is citing Florian Müller for the most part. Müller is correct and here's the core thesis:

A tech giant like Samsung, Apple or IBM can register up to 5,000 patents every year - with engineers writing them “at a furious rate”, says Horace Dediu of Asymco, a mobile phone analyst. “IBM does this seriously. They just amass a huge arsenal of patents.” Apple alone has more than 75,000 patents and filed for over 2,200 more since the beginning of 2017. Samsung has filed for more than 10,000 patents in the last 18 months and in total has 1.2 million of them.

“My personal opinion is that this absolutely exorbitant number of patents you find in a phone shows that the hurdle for obtaining a patent is too low,” says Mueller. There should be more substantial investment behind every patent.

Crucially though, patents aren’t just important for protecting people’s inventions: they’re also a money-making tool. “Patents are one of these currencies that is always traded,” explains Dediu – or sold.

They are a tool used against opponents in a highly competitive industry. “If you have a patent, you can stop someone else shipping a product that contains that intellectual property,” says Dediu. “Generally, the rights are entirely held by the patent owner and those rights mean that an infringing product must be withdrawn from the market.”

The malicious use of patents to prevent competition rarely happens, but the sheer scale of the number of patents can stifle innovation. Mueller calls it a “patent thicket”. Companies can develop a new device or a new technology, then find themselves undone. “You inevitably – because there are so many of them – will be found to have infringed a patent,” he says. “That is a real problem for the industry.”


It's not only Müller who calls it a “patent thicket”; it's a widely-accepted legal term, albeit with the negative connotation it deserves, just like "patent tax", "patent troll", "royalty stacking" and so on. Euphemisms typically contain spurious and misleading words like "fair", "reasonable" and "nondiscriminatory" (that's FRAND). Either way, Apple is very aggressive with patents, but nowhere as aggressive as IBM and unlike IBM it also finds itself on the receiving end of a lot of lawsuits, including troll lawsuits (preying on the big 'wallet'). This is why we habitually encourage Apple to join us in the fight against -- not for -- software patents. It certainly seems like quite a lot of software patents are being used against Apple, costing it billions of dollars in total.

"It's not only Müller who calls it a “patent thicket”; it's a widely-accepted legal term, albeit with the negative connotation it deserves, just like "patent tax", "patent troll", "royalty stacking" and so on."The latest in Uniloc USA, Inc. et al v Apple Inc., as per Docket Navigator, is that "[t]he court granted defendant's [Apple's] motion to strike plaintiff's infringement contentions because plaintiff failed to sufficiently identify the accused instrumentalities."

Uniloc is a major patent troll, just like VirnetX, which also preys on Apple and wants hundreds of millions of dollars.

In a Mac/Apple-oriented site, Joe Rossignol spoke of AVRS, which is not a classic patent troll but mostly software patents without an actual complete product, only litigation and "portfolio" (of patents). To quote Rossignol:

Arizona-based speech recognition technology company AVRS, short for Advanced Voice Recognition Systems, Inc., has filed a lawsuit against Apple this week, accusing the iPhone maker of infringing on one of its patents with its virtual assistant Siri, according to court documents obtained by MacRumors.


Those are software patents and the Patent Trial and Appeal Board (PTAB), if an inter partes review (IPR) was pursued, would likely cause them to perish. A few days ago a new example of this (patents on "Phonetic Symbol System") was dealt with by the Federal Circuit (CAFC). "In a non-precedential decision," Patently-O admitted, "the Federal Circuit has rejected George Wang’s pro se appeal — affirming the PTAB judgment that Wang’s claimed phonetic symbol system lacks eligibility under Section 101."

"It certainly seems like quite a lot of software patents are being used against Apple, costing it billions of dollars in total."Well, obviously. The patent system has become almost self-satirising and sites of patent maximalists are still cherry-picking slightly older (June) CAFC cases where mere dissent -- not eventual judgment -- gives hope to these maximalists.

And speaking of maximalists, the case of Zeroclick against Apple was brought up again at the end of last month. Patent Docs' patent maximalist Michael Borella belatedly catches up with Zeroclick, LLC v Apple Inc. (we have already mentioned Zeroclick in [1, 2, 3]), noting that "it is not uncommon for software inventions to be claimed as methods" (that's purely semantics). To quote the details, which deal with ۤ 112 rather than ۤ 101:

Most software inventions are functional in nature. The focus is not on what the invention is so much as what it does. The same physical hardware can be programmed by way of software to carry out an infinite number of different operations. Thus, it is not uncommon for software inventions to be claimed as methods. But when such inventions are claimed from the point of view of hardware carrying out a method, the patentee runs the risk of the claims being interpreted under 35 U.S.C ۤ 112(f) (pre-AIA ۤ 112 paragraph 6) as being in "means-plus-function" form. This, of course, can effectively narrow the scope of the claims to embodiments disclosed in the specification and equivalents thereof. Also, such claims can be found invalid if the specification does not disclose sufficient structure to support the embodiments.

[...]

"First, the mere fact that the disputed limitations incorporate functional language does not automatically convert the words into means for performing such functions." Notably, many structural components or devices are named after the functions they perform.

"Second, the court's analysis removed the terms from their context, which otherwise strongly suggests the plain and ordinary meaning of the terms." Particularly, the terms "program" and "user interface code" were not used in the claim as nonce terms, but instead refer to "conventional graphical user interface programs or code, existing in prior art at the time of the inventions." And as explained in the specifications, the claimed invention was an improvement to such interfaces and code.

"Third, and relatedly, the district court made no pertinent finding that compels the conclusion that a conventional graphical user interface program or code is used in common parlance as substitute for 'means.'" The Federal Circuit suggested that use of a broader term, such as "module", in place of "program" and "user interface code" would have likely have invoked ۤ 112(f).

For these reasons, the Federal Circuit reversed the District Court and remanded the case for further proceedings.


Patents on graphical user interfaces don't relate to ۤ 101, as we noted earlier this year (on numerous occasions even), but they oughtn't be granted because copyrights and trademarks already cover appearances. If Apple fought against patent maximalism, many of these nuisance lawsuits would likely stop.

The patent trolls' lobby, IAM, expectedly worries that Qualcomm might lose key patents. And why? Because Apple does in fact reach out to PTAB, reaffirming the idea that technology companies need and support PTAB. IAM said that "the Apple v Qualcomm battle royale took on a new front in June as the iPhone giant turned to the Patent Trial and Appeal Board (PTAB) to try to invalidate several of its rival’s patents. It is the first time that Qualcomm, widely seen to have one of the more valuable patent portfolios in the mobile and semiconductor sectors, has seen its grants challenged at the PTAB and should Apple start successfully knocking out some of its adversary’s patent claims it would give the tech giant some helpful leverage in a dispute..."

"If Apple fought against patent maximalism, many of these nuisance lawsuits would likely stop."Similar things have happened in Europe, as we covered here earlier this year. Will patent maximalists soon start demonising Apple too, calling it "anti-patent"? Well, the PTAB-bashing Watchtroll again covers news from 3 weeks ago, adding nothing new except its pro-patent trolls slant ("Apple Brings Patent Battle Against Qualcomm to PTAB With Six IPR Petitions on Four Patents"), having covered another Apple story with this propaganda headline. The said case showed that only lawyers win in patent disputes, but here they go saying that 7 years of fighting is actually "Proving Patent Litigation Doesn’t Hinder Consumer Access" (the term "consumer" is an insulting word for customer and features were actually removed from these phones as a result of the fighting, directly harming customers). Had Steve Jobs never declared a patent war on Android, Apple would likely be in the same position that it's in right now, albeit with fewer lawyers, not many legal bills, and without negative press coverage (berating it for patent aggression).

Recent Techrights' Posts

Banned evidence: Ars Technica forums censored email predicting DebConf23 death, Abraham Raji & Debian cover-up
Reprinted with permission from Daniel Pocock
Intimidation, Threats, and Bullying Not Tolerated by Techrights
When it comes to our reporting, safety always comes first
Something to Celebrate in Gemini Protocol
More capsules and users join in
 
Costa Rica Almost Bankrupt Because of Microsoft
the incidents in Costa Rica are Windows incidents
Gemini Links 29/03/2025: Art of Looking, Wireguard, EMacs
Links for the day
Links 29/03/2025: Attacks on Social Security and War Updates
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 28, 2025
IRC logs for Friday, March 28, 2025
A World Without Rules
We're long insisted on better laws and actual enforcement of them (applicable to all, not selectively applied)
IBM's BS (Bait, Switch) Regarding Ways to Stay Onboard
PIPs, RTOs, and forced relocations are just an illusion of choice (or ability to recover)
statCounter Sees Microsoft Windows Falling to New, Unprecedented Lows in Palau
Taking Android into account, Windows is now down to an all-time low of 14%
Google News Lost the Fight to LLM Slop (While Google Itself Sells Slop, Nowadays Under the Name "Gemini")
Many people say that "Google is getting worse"; that's almost an understatement
Links 28/03/2025: AirAsia Trouble Again, UMich Culls All DEI Programs
Links for the day
Gemini Links 28/03/2025: Alexa is for Gullible People, Rant About Feature Overload
Links for the day
The SLAPPs From the Microsoft Strangler (and Sidekick) No Better Than Patent Trolling
one must never settle with trolls
Links 28/03/2025: Last Reminder "to Delete Your 23andMe Data", "UK's First Permanent Facial Recognition Cameras Installed"
Links for the day
Microsoft Canonical Continues Its FUD (Fear, Uncertainty, Doubt) Campaign, Reveals Google Too Sponsored It
They're paid-for lies from a Chinese company that takes GAFAM money to write puff pieces about them
Android Rises Above 76% in Mozambique, Leaving Windows in the Dust
Windows may soon be measured as smaller than Apple's iOS
IBM, Red Hat and Microsoft Probably Also Manipulate Metrics (It Helps Con the Shareholders)
Wall Street's credibility will depend on enforcement of "checks and balances"
Slopwatch: trendhunter.com and Other Pure Junk From "Google News"
The need to vet sources is hardly new; anyone can spew out anything, anywhere. There's a need for vetting.
Gemini Links 28/03/2025: Rewatching The X-Files, Slop Concerns, and NOSTR Censorship
Links for the day
Links 28/03/2025: Australia at Risk, EPO Grants Illegal Patents With Illegal Effect
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 27, 2025
IRC logs for Thursday, March 27, 2025
Links 27/03/2025: Obituary to a Shop, Russia Trying to Buy Time
Links for the day
Links 27/03/2025: Slop, Autosuggestions, and Nostr
Links for the day
Apparently Confirmed: IBM Layoffs in Canada Today, Hundreds Affected
Impacting "177 people", says one person, "in Ottawa"
When Windows Was Dominant (1990s) Browser Monopoly Meant MSIE, But Now Google Android is Dominant and the Web in a 'Webapps' Era Works With (or Is Designed for) Chrome-isms
We've been there before
Slopwatch: BetaNews, LinuxSecurity.com, and the Attack on Web Search Using Fake and Likely Plagiarised Pages
Changing a few words here and there won't change the fact that it's not properly authored
Links 27/03/2025: U.S. Honeybee Deaths Reach Record High, Legal Occupation Next in Line After War on Science
Links for the day
Using Courts for 'Revenge' is Always a Losing Strategy
Trying to cause someone you dislike to spend a lot of money
IBM CFO James Kavanaugh Refers to Firing of Almost 10,000 Americans as "Workforce Rebalancing" (Shifting IBM's Centre of Balance to Low-salary Contracts/Countries)
The scale of IBM layoffs is getting too large to evade WARN Notices
[Video] Dr. Richard Stallman's Keynote Speech in Kerala Finally Uploaded
In non-free format and proprietary YouTube, but perhaps that's better than nothing
Islands Are Leaving Microsoft Behind, According to statCounter
Android has had a very strong year
EPO Management Fails to Deny That the Office is Discriminating Against Women
Europe's second-largest institution isn't just exceedingly corrupt but also immoral
In Some Countries the Market Share of Vista 11 is Going Down, Not Up
despite being released in 2021
Rumour: Mass Layoffs in IBM Canada Today
Maybe later today some people from Canada will say something firmer and maybe some media will even talk about that
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 26, 2025
IRC logs for Wednesday, March 26, 2025
Gemini Links 27/03/2025: X-Files' "Kill Switch", Orlando, and ASN (Autonomous System Number) 'Hack'
Links for the day