David Ruschke’s ‘official’ photo

Summary: The Patent Trial and Appeal Board (PTAB), led by David Ruschke, continues to function as another ‘layer’ that ensures patent quality by weeding out bad patents and here are some of the latest cases

THE patents and litigation climate is rapidly changing in the US. It’s not just about software patents, but it has a lot to do with them as a lot of litigation emanates from such patents, notably troll litigation.

Just before the days of the holiday (whichever one) we learned about the Patent Trial and Appeal Board (PTAB), which is responsible for invalidating many software patents, being in the midst of this battle:

The Patent Trial and Appeal Board announced on Dec. 2 that it would uphold a patent filed by Securus Technologies, and that the challenge filed by rival company Global Tel*Link (GTL) was invalid. GTL maintains, however, that Securus only won a partial victory.

The patent (U. S. Patent No. 7,494,061 B2) that Securus maintains held up to the challenge from GTL, relates to biometric identity verification monitoring devices used in correctional facilities. According to a summary of the patent, “The term “biometrics” refers to technologies that measure and analyze human characteristics for authentication.”

This patent is a software patent by the sound of it. These are actually the sorts of patents which improperly use terms like “biometrics” to sound as though they’re anything but image analysis, which is my field of research (post-doctoral). It has nothing to do with biology and it’s all typically reducible to mathematics (matrices). Does the appeal board (PTAB) realise this? If not, maybe it’s time to reassess.

Another report, last Updated 6 days ago, is an article about appeals in Korea, published by Jay (Young-June) Yang, Duck Soon CHANG and Seung-Chan EOM from Kim & Chang (patent microcosm). Remember that Korea still blocks software patents (as it should) and we commend this decision, which guards software giants (also hardware giants, not to mention military equipment players) like Samsung and LG — both of which became Microsoft prey for using Linux nearly 9 years ago. We last reported on this 3 months ago (Microsoft wants more 'Linux patent tax' in Korea).

Going back to PTAB, there is a CAFC/PTAB case (CAFC having the authority to object) that MIP explained as follows: “The original Federal Circuit panel decision in the case – written by Judge Reyna and joined by Chief Judge Prost and Judge Stark – was issued on May 25. The court affirmed the Board’s denial of Aqua’s motion to substitute claims 22–24 of a patent concerning automated swimming pool cleaners.”

There is a 9-page PDF in there. As mentioned here some days ago, they are complaining because their patent was granted in error and now they want to change it. Imagine if granted patents were something dynamic you could just amend, edit, expand etc. as you go alone. What a ludicrous thing. Invalidate the patent and if they insist it’s not fair, then they should apply for the patent again (with amended claims).

MIP also explains how to use PTAB to squash bad patents (like software patents) even when it’s not so trivial. “Jim Brogan, Brian Eutermoser and Janna Fischer discuss the ways that the unsuccessful IPR petitioner at the Patent Trial and Appeal Board still can challenge validity in subsequent district court litigation,” MIP wrote.

MIP, to its credit, keeps abreast of PTAB cases (mostly because of Mr. Michael Loney), although it sometimes misinterprets the numbers it puts forth.

In better news about PTAB, here is PTAB having a go at software patents and getting a chance to kill them again. As PatentDocs put it:

Petitioner, iVenture Card Traveler Ltd, filed a Petition seeking to institute a covered business method patent review of all claims of U.S. Patent No. 7,765,128, owned by Smart Destinations, Inc. The Board, applying the standard that requires demonstration that more likely than not Petitioner would prevail with respect to at least one challenged claim, the Board granted Petitioner’s request to institute the CBM review.

We hope that PTAB will continue to do its job improving patent certainty by knocking out a lot of rubbish patents, leaving in tact only those that merit court cases (if any). █

Nokia suing everyone… except Microsoft.

Summary: Few days before Christmas Nokia decides that the backlash from the media would be minimal enough to finally show its true colours and rear its ugly head again, putting a tax on phones that actually sell (unlike Nokia’s)

VERY LATE LAST NIGHT (as late as 2 AM) we wrote about a story which Nokia probably hoped the media would not notice/cover all that much (hence the timing/date in the year). Nokia is a patent troll now. “Meanwhile,” as this article puts it, “Apple has accused Nokia of using the ‘tactics of a patent troll’.” It’s not just about Apple as Nokia will go after Android OEMs next (if it hasn’t already).

It’s the ‘Microsoft effect’. The company likes turning other (usually vulnerable) companies into a pile of patents, weaponised against Microsoft’s rivals. There are many examples of that which we’ve covered here over the years.

“It’s the ‘Microsoft effect’. The company likes turning other (usually vulnerable) companies into a pile of patents, weaponised against Microsoft’s rivals.”We have already found about a hundred reports about this in English, in spite of Christmas absence of many reporters (even from large British publishers, US publishers and several people at IDG [1, 2]). The Finnish English-speaking media touches the subject and Wall Street media puts it behind a paywall. Tripp Mickle and Matthias Verbergt say that “Apple Inc. and Nokia Corp. ​filed competing lawsuits over intellectual property used in the iPhone and other Apple products.”

Worth seeing in this case is what Apple finds out about the network of trolls (typically shrouded in secrecy). With evidence admissible by the courts about the patent trolls of Nokia and Microsoft we can improve our information here (growingly extensive and occasionally praised by people who come here in order to understand cryptic trolls.). Florian Müller says “First court hearings in the new Nokia v. Apple dispute will most probably take place in Munich in a few months. I’ll probably go and listen.”

“We believe that the date of the press release was designed (or intended) to dodge negative press coverage.”He also quotes Apple’s spokesperson as saying that Nokia “is now using the tactics of a patent troll to attempt to extort money from Apple…”

He is “not mincing words anymore,” Müller adds, and someone from Finland agrees with him. Finns do not blindly support Nokia. We speak to some Finns who are extremely upset at Nokia. It’s a national embarrassment to some.

As for IAM, it thinks it’s favourable to have patent lawsuit from a troll-like Nokia, but it lacks a vital
disclosure; Nokia’s patent troll MOSAID (now called “Conversant”) has paid IAM, which recently did a lot of puff pieces for it. Maybe that’s just IAM’s business model…

IAM says “Apple is against patent owners doing what they want with their patents to maximise their value.”

Whose value? And to whose advantage? And at whose expense?

“Not sure how that helps R&D,” IAM says, but Benjamin Henrion has already responded to them by saying “that helps P&L [patents and litigation], not R&D.”

We believe that the date of the press release was designed (or intended) to dodge negative press coverage. █

Summary: The growing embrace of “China” as the convenient bogeyman for those who oppose patent reform and wish to see a resurgence of patent chaos, from which they personally profit at victims’ expense

THE USPTO may be in self-perpetuating denial about it, but software patents are a dying breed in the US as courts don’t tolerate them. The EPO, in the mean time, moves in the opposite direction, but we’ll leave the EPO out of this post’s scope.

Unhappy With Insufficient Number of Lawsuits and Collateral Damage

Paul Morinville, a prominent opposer of patent reform in the US (and part of Watchtroll’s ilk), whines that “PTAB procedures are now invalidating nearly 90% of all patents they evaluate.” Yes, so what? Alice and other cases are pretty clear about it and PTAB, unlike patent examiners, is not being pressured to just bless every patent in the name of “production” or “success” (again, a growing problem at today’s EPO).

Morinville picks on Google (large company as his latest scapegoat) and some of his online friends already heckle me for pointing that out. To quote his article: “Over the next decade, the Supreme Court would eliminate injunctive relief and then for all intents and purposes, invalidate their patents first under Bilski and then under Alice. The courts also changed the way claims were written, thus invalidating thousands of patents retroactively. The America Invents Act’s PTAB procedures are now invalidating nearly 90% of all patents they evaluate. The courts also radically reduced damages for patent infringement.”

That’s good. But wait until Morinville brings up the bogeyman again — the same bogeyman that David Kappos has been summoning recently.

Let’s Envy China

“With China strengthening its patent system,” Morinville says, in probably the most ludicrous part of the whole article. China is actually weakening patents by granting almost everything that comes through SIPO’s doors, causing a patent hyper-inflation and an epidemic of trolling. How is that desirable to anyone but the patent microcosm? These anti-AIA think tanks and lobbyists (like Morinville), who want more lawsuits and more litigation, continue to infest the Web and a lot of them congregate around Watchtroll these days. This pattern of China-blaming or China-shaming mirrors what the Democratic Party in the US has been doing with Russia as of late.

Watchtroll wants the USPTO and the courts to start another race to the bottom and give/approve patents on everything, just like SIPO in China. One might call it “the litigation lobby” — for all it want is more and more lawsuits (which the lobby profits from). Watch another new Watchtroll article, this time by Steve Brachmann, the henchman of Quinn. So people who don’t even develop anything insist that “China” is the threat and that “Chinese patent guidelines” are a threat to the US rather than to China itself.

What kind of post-truth nonsense have we sunk to here?

Watchtroll, in another new article, says “Keep it Cordial” while Quinn attacks everyone who does not agree with him, even judges (see the image at the top).

What a nasty Web site this is. For IBM’s patent chief to occasionally link to it probably takes some guts because it says a lot about IBM, which has gone rogue (even IBM employees now protest/object to the management over that infamous Trump fawning).

China’s Growing Trolls Epidemic

China’s situation with regards to patents is not good. As we have been pointing out since the summer, SIPO grants far too many patents, including software patents. “This is especially true for software patents where the scope of patent protection is rather vague,” says this new article from China, which also mentions Xiaomi, a company that got trolled through India, as we noted before. To quote the relevant part:

As Chinese smartphone brands work to carve out a spot in the major-league global smartphone industry, they are increasingly being dragged into an international patent war with foreign tech firms.

The latest case saw San Francisco-based audio tech firm Dolby Laboratories lodge a lawsuit against Chinese smartphone companies Oppo and Vivo in India, accusing them of infringing on its patented technology. Back in 2014, Chinese tech firm Xiaomi was barred from selling phones in India after Sweden-based Ericsson filed a complaint with an India court alleging patent infringement.

The Ericsson-Microsoft patent trolls strategy (using trolls as proxies) was mentioned here twice this month [1, 2] and Xiaomi is again being mentioned by the Microsoft Windows-powered IAM (with other Microsoft connections). It is again embellishing Microsoft's patent extortion against Linux as follows:

The May agreement between Microsoft and Xiaomi was undoubtedly the IP deal of the year and it was also an excellent example of how patents can play a role in broader commercial agreements. Under the terms of the deal, Xiaomi undertook to pre-load Microsoft products on to more of its mobile devices, the two sides agreed to a cross-licence and the US software giant transferred 1,500 patent assets to the Chinese company. The transaction provides an excellent foundation for Xiaomi as it looks to grow its business in the US and for Microsoft as it continues its penetration of the Chinese market.

This is misleading. All we have here is patent extortion by Microsoft against Linux, even in China where the government of China took a strong stance against it (even leaking a list of Microsoft patents that are secretly being sued to blackmail Chinese companies like ZTE). We believe that Huawei, the world’s leading Android OEM these days, is still able to resist Microsoft’s Mafia-like tactics. Microsoft repeatedly failed to sign a patent deal.

The bottom line is, China has become a dangerous place patents-wise. Is that desirable to anyone but the patent microcosm? Of course not. █

Credit: Japanese media

Summary: Leadership shuffled in ever-changing (morphing) patent satellites that typically prey on Linux/Android

EARLIER THIS MONTH we wrote about patent trolls of Microsoft and Ericsson “trying to tax everything, especially Linux devices.”

Watch who’s in the news again after a rename, which is a common practice among notorious patent trolls that are a front for someone else (usually a large company). It’s Ericsson’s patent troll that already operates in Europe (London) as well, thanks to the EPO which repeats the USPTO‘s errors.

IAM is writing about this patent troll that paid IAM (without disclosure in the article). This is the second time in about a month (without disclosure) and the latest blog post says that “former boss of Unwired Planet, Boris Teksler, has been appointed the new CEO of Conversant, in a move that sees the Candian NPE’s current head John Lindgren step down after more than nine years in charge.”

Conversant is the new name of MOSAID, which Microsoft passed many of Nokia‘s patents to. We also wrote a great deal about Unwired Planet, back when it was known as Openwave. “Openwave has changed its name to Unwired Planet,” as Wikipedia puts it.

Speaking of Linux-hostile trolls, IAM writes about more of them today. To quote one relevant part:

Whether it’s Microsoft’s link-up with Xiaomi or Huawei’s surprising partnership with InterDigital, licensing deals with value-added components were the major theme of 2016.

InterDigital is an anti-Android troll (we have many articles about that) and Xiaomi did not have a “link-up” with Microsoft. It was more like patent extortion, as we explained at the time.

The shell game of patent trolls is extremely important to keep abreast of. Names keep changing; the same goes for Microsoft front groups that lobby on patent law, e.g. Association for Competitive Technology, which goes (and went) by several other names (ATL or stuff with “App” and “FRAND” in it). █

Background: Donald Trump Thinks He Can Call Bill Gates To Shut Down The Internet

Reference: Super Rich Hide $21 Trillion Offshore, Study Says

Summary: How Bill Gates shifts sides when it suits his financial agenda, this time with President-elect Trump

According to CNBC, Gates recently spoke with Trump, supposedly talking about innovation. Gates then claimed that Trump is a big supporter of innovation, saying that Trump would revolutionize America and get rid of regulatory barriers. He claimed that Trump likes to point out weaknesses in the American system and that he wants to improve on them.

Maybe he will even start an opportunistic partnership with Trump. Interesting Gates should claim this, when in June 2016 he said “Donald hasn’t been known for his philanthropy. He’s been known for other things.” Furthermore, Gates also implied that Trump was behind the other candidates.

He even portrayed Trump as unscientific, stating “Science in general, whether it’s GMOs or vaccines, there’s a lot of people out there who don’t give science the benefit of the doubt”. “In terms of experience, Hillary Clinton and Bill Clinton have more experience on global health.”

Bill Gates has been innovative like many billionaires: he has created a charitable foundation and still manages to profit in the billions every year, and Microsoft as a whole profits from monopolizing software. █

Summary: An outline of one week’s news regarding software patents in the United States, with special emphasis placed on key foes and allies of GNU/Linux

The Lobby for Software Patents

THE USPTO can no longer grant software patents as routinely as it used to and some people are upset about it. These people, however, do not develop software.

“Sen Chris Coons,” according to this tweet, says that “Eroding patent protections for software and medical advances imperils American R&D, learning, health, and innovation,” but this coming from guy who never wrote a single line of code in his entire life does not mean much. Maybe he’s just funded by some large company that is pursuing software patents (like IBM and Microsoft). Moreover, with Watchtroll branding on the podium (see the photo), we assume that Chris Coons came there to serve patent maximalists, who have grown quite loud recently. Benjamin Henrion responded by saying that “software patents shifts R&D budgets to P&L.” (patents and litigation)

We are troubled to see the voices of the patent microcosm growing even louder in the wake of Trump’s election win. They want change and they want this change to harm software developers so that they can profit from (or tax) actual producers. IBM, we might add, is a growing part of the problem. Does IBM even realise to what degree it alienates the Free software development community by advocating software patents all the time? Does IBM truly realise that it aligns itself with patent extremists that insult judges and push for software patents based on self-serving lies? Does it care? Does IBM realise that by paying the former Director of the USPTO it participates in institutional corruption? And again, does it care? By lobbying to annul the Supreme Court’s decision and elevate less than a handful of Appeals Court (CAFC) decisions these people reveal their true face and selfish interests, which happen to harm every software developer around the world. It harms developers of both proprietary and Free/Open Source software.

CAFC on Software Patenting

Speaking of the Appeals Court, also published (albeit behind paywall) is this article titled “Appeals Court Casts Doubts on Smartflash’s Patent Win Over Apple” (we mentioned this before). “Two judges signaled the patents claim ineligible subject matter under Section 101 of the Patent Act,” says the summary. This article is mirrored here (also behind paywall). Section 101 certainly gets taken into account by CAFC, but patent law firms like Finnegan continue pushing the envelop on lies that software patents still have teeth in the US. It’s that usual cherry-picking of CAFC cases. Baker Botts LLP has just done the same thing. Don’t fall for it. In the vast majority of cases, including in 2016, CAFC rules against software patents and Section 101 remains very strong an argument against software patents. Watch this new docket report that says:

The court denied defendant’s motion for summary judgment of invalidity on the ground that plaintiffs’ call center telecommunications patents encompassed unpatentable subject matter because the motion obscured patents’ complexity with reductionist simplicity.

The recurring theme here was covered in almost a hundred Techrights articles. It definitely seems as though software patents aren’t coming back any time soon (if ever), but the patent microcosm sure is trying to accomplish that.

IBM and Conservative Think Tanks

Adam Mossoff, who works for a Conservative think tank and has a history of rather aggressive patent views (we covered these in [1, 2, 3]), is trying to shame Congress into pushing for reinstatement of software patents, based on misinformation. “Today,” he summarised it, “Congress should save software again by expressly confirming that it is a patentable technological invention.”

Nonsense.

If anything, software patents caused a lot of damage. But then again, judging by Mossoff’s paymaster, reliance on facts is almost a sin. Look where they stand on issues such as climate change.

“But this essential technology in our modern innovation economy is at risk,” Henrion quotes him as saying, responding with “yeah copyright replaced by patent trolls…”

Another person responded with “and look at the Patent Troll mess Software Patents has left us in…”

Exactly. Mossoff, as we pointed out here in the past, became a voice of patent trolls and the patent microcosm. He’s not a software developer and he merely ‘hijacks’ the voice of those who are with a nonsensical headline like “Congress Saved Software in 1980, and It Should Do It Again Today” (in a neo-Conservative Web site, of course).

This article seems to be one among several. The patent microcosm wants software patents back, unlike actual developers. Watchtroll is pressuring Congress on this subject also, most recently with yesterday’s headline (yes, a Sunday!) “Congress Can Save Software Patents by Repeating One of Its Successes”.

It’s just a bunch of mumbo-jumbo urging Congress to reinstate software patents and some of this mumbo-jumbo is promoted by IBM’s patent chief. Patent trolls proponents like Adam Mossoff are intentionally conflating software with software patents (one destroys the other) and then some IBM lawyers deems it cite-worthy? How stupid does IBM want to look here? It’s only going to harm the company’s relations with developers.

Google Against Software Patents, Unlike Microsoft

Contrast this with the following new article from Allen Lo, who is deputy general counsel for patents at Google. He published “Protecting Alice protects patent quality and technological innovation” and said in it:

The goal of the patent system, as set forth in the Constitution, is to promote the progress of the “useful arts,” which has always been understood to mean technological progress. Here at Google, we are proud of the many ground-breaking software inventions by our engineers that have allowed us to file a growing number of high-quality patents and establish a strong and valuable portfolio.

While Google and many other tech companies invest many billions of dollars in research and development (R&D) to make these inventions – and these patents – possible, not all software patents issued by the Patent and Trademark Office (PTO) are of high quality. A series of roundtables recently convened by the PTO in Alexandria, Va.; Stanford University; and other locations around the country explored one of the most important tools for improving the quality of software patents and ensuring that only worthy patents are approved.

That tool arises from the unanimous 2014 Supreme Court decision in Alice Corp. v. CLS Bank International, which established that software patent claims that recite a financial arrangement or broadly describe a function performed “on a computer” or “on the internet” are not eligible to be patented. Before Alice, applicants were obtaining patents from the PTO that were not based on any technical contribution or innovation, often not even providing an explanation of how they expected to achieve a result beyond stating that it would be done “on a computer.” Case law and PTO practices had swung too far toward allowing these low-quality claims to remain unchallenged, and a course correction was needed.

So we’ve covered IBM, Google, and what about Microsoft? Well, Microsoft is in the same boat as IBM when it comes to software patents and its patents have just survived CAFC’s scrutiny, based on this new report that says:

Microsoft has survived an appeal against a lower court decision that it didn’t infringe patents belonging to Impulse Technology.

Yesterday, December 8, the US Court of Appeals for the Federal Circuit affirmed the ruling of the US District Court for the District of Delaware, granting Microsoft’s motion for summary judgment.

In 2011, Impulse sued Microsoft, alleging infringement of 15 claims of the asserted patents: US patent numbers 6,308,565; 6,430,997; 6,765,726; 6,876,496; 7,359,121; and 7,791,808.

Inverting the Narrative

Truth be said, large companies don’t mind the patent mess because they can afford to pay the legal fees and this whole mess harms small companies the most. Here is a 15-page PDF of a paper by Professor Lemley et al in which it’s said (by Patently-O) that “patent litigation outcomes vary according to the identity of the patentee” or to quote Patently-O‘s summary: “The sales market for patent rights continues to vex analysts – especially in terms of valuation. In their Patently-O Patent Law Journal article, Professor Mark Lemley teams up with the Richardson Oliver Group to provide some amount of further guidance.”

It’s no secret that there is gross discrimination in patent systems, even in the EPO.

Part of the patent microcosm, or pushers for software patents (Bilski Blog), chose to distort the narrative of software patents (for large businesses, in bulk) and instead went with this narrative which would have us read about the “little guys”:

From the beginning my application was rejected, and continues to be rejected, under Section 101, even though we have recently overcome all of the prior art rejections. As a result, I have become something of an accidental student of patent eligibility and as such was very interested in attending the USPTO’s Patent Subject Matter Eligibility Roundtable I on November 14, 2016. Prior to the roundtable, I had assumed that my application was something of an outlier, that there was something wrong with it and that was why it had been rejected. At the roundtable I learned that “it’s not me, it’s you” applies not just to exes but to the patent system as well.

[...]

The few speakers at the roundtable who did advocate on behalf of us “little guys” often mentioned how the “direct costs” negatively impacted micro-entities, focusing on the need for examiners to avoid using “blanket statements,” to be specific in their responses, and carefully ensure the law is being properly interpreted and applied on a case by case basis. As a solo entrepreneur, I couldn’t agree more with the need to “get it right the first time,” as this would substantially reduce direct costs for us. My impression is that the examiner’s first instinct is often to reject without any substantive reason, hoping we’ll simply abandon the process altogether, or better yet, pay the ever increasing, exorbitant fees (for me) involved in requests for continued examinations and the appeals process.

This thing which the USPTO called “roundtable” was just an echo chamber. See our article about it and then see this article from Scott Graham of The Recorder (behind paywall). To quote the outline: “A discussion Monday at Stanford University was an opportunity for big tech companies, entrepreneurs, bar associations and academics to hash out the impact of ‘Alice’ and other developments in patent eligibilty.”

This was cited by IBM’s Manny Schecter (IBM is still dissatisfied because there is no software patents certainty and IBM attacks small companies using software patents). There was “no software developer around the table,” Henrion told IBM’s Manny Schecter, “how broken is that?”

Well, this whole “roundtable” was nonsense, or an exercise in fake transparency, giving the illusion of public participation in decision-making while excluding the main stakeholders (who actually produce something).

“If you write code,” I told Manny in relation to this tweet of his, “maybe you’ll understand it’s mumbo-jumbo buzzwords” (he wrote “Abstract? Technological? Concrete? Practical application? Exactly. From #patent perspective these simply cannot be defined precisely.”)

Henrion added, “Tangible?”

All those silly words are so often used by non-developers who try to convince us developers that software patents are desirable.

The Trolls’ Lobby

Witness how Watchtroll’s site wants to crush patent reform and harm actual producers of software etc. The title says “Advice for the Trump Administration and New Congress: Protect Bayh-Dole and Restore the Patent System” and it’s more like the above pattern of lobbying, which we are seeing more of these days.

Not too long ago Watchtroll called reformers “Patent infringer lobby”, leading people in the patent microcosm to saying stuff like: “Patent infringer lobby pushes Trump to aggressively pursue “patent reform” https://lnkd.in/fasm8pZ Time to call out deliberate infringers.”

Well, time to call out Watchtroll who didn’t write any code, doesn’t know how programs work, yet lobbies for software patents.

“Nice bullshit spin on the issue,” wrote a technical person (Raphaël Jacquot) about the above. Henrion wrote, “restore software patents and patent trolling.”

Good for the patent microcosm after all, and we know at whose expense…

Speaking of trolls, Blumberg who used to work for for the world’s largest patent troll, Microsoft’s patent troll that’s connected to Ray Niro (who is now dead), is quoted by IAM as saying: “In our view, Germany is the new Eastern District of Texas. That’s the venue that gives us the most concern.”

Blumberg is now working in Lenovo, which is believed to have colluded with Microsoft to block GNU/Linux (they denied this after actually admitting this).

Concerns about Germany becoming another/new Eastern District of Texas are real because of the UPC ambitions, which will thankfully never reach London. Alexander Esslinger (a.k.a. Patently German) wrote about the above quote: “Really ? At least of owners of SEP’s it is not so easy to get an injunction in Germany based on interpretation of ECJ Huawei-ZTE…”

“Is that a bad thing,” I asked him. He later responded to that, but one must remember whose side he is on. He’s not interested in a sane patent system but a system from which he profits more. Like Bastian Best, who spreads misinformation (biased by omission; fails to mention those ~80% of CAFC cases that send software patents down the sewer), he wants more patent litigation in Germany so that he can profit from that. IAM is on the same side as them and it’s eager for everyone to celebrate patent trolling that’s coming from the Far East. Here is the latest example of that: “Barely a week after KAIST sued several major tech companies in what appeared to be the first ever patent infringement action initiated by an Asian university in the United States, another Korean educational institution has launched its own assertion campaign in the Northern Districty of California.”

Remember that these are non-producing entities that are funded by public money.

Citing Microsoft and its massive patent troll (Intellectual Ventures), IAM also pretends that lowering patent quality is a good thing:

Perhaps the most striking thing was how quickly some of China’s major tech companies have become sophisticated IP players. Xiaomi’s progress in particular has been remarkable and with former IV IP executive Paul Lin on board, the company has one of the most experienced operators in the local monetisation market.

Xiaomi’s deal with Microsoft, announced in May this year, was in the spotlight on day 1 as Lin joined the software giant’s Micky Minhas to dissect one of the leading IP-driven transactions of 2016. As part of that agreement Microsoft sold the Chinese company 1,500 patents, giving Xiaomi a much-needed boost to its portfolio as it weighs up expansion into the US. For all that conditions are widely seen to have deteriorated for many patent owners in the US, the deal shows that American assets will always remain a crucial part of any company’s IP strategy be it focused on freedom to operate or monetisation.

Xiaomi’s patent settlement with Microsoft was an attack on Linux and on Free software, as we explained at the time. Given China’s approach towards software patents (the opposite of what the US is doing), we’re not too shocked to see this happening, but that does not mean we have given up, either. █

Summary: A quick look at the past week’s news and clues about Microsoft’s (and its broad army of patent trolls) strategy for taxing Linux, or imposing bundling at zero cost (to Microsoft)

THE STATE of patent trolling in the US is pretty bad and to make matters worse China is now emulating the US system by patenting almost everything and harbouring patent trolls that use rubbish patents (not even with their own name on these).

One aggregator of patents (lots of rubbish in one big pool) that we wrote about before is RPX. It’s like a massive patent troll whose members include Microsoft. According to this blog post from IAM, changes are afoot as a Senior Vice-President jumps ship:

Dan McCurdy, senior vice-president at RPX with responsibility for data and technology solutions, is to leave the defensive patent aggregator to become a partner with strategic IP consultancy Quatela Lynch. He will join on 1st January 2017, when its name will also change to Quatela Lynch McCurdy. The move comes just weeks after Laura Quatela, who founded the firm with former Kodak chief IP officer Tim Lynch in 2014, was named as the new chief legal officer of Lenovo, sitting on the executive committee and reporting directly to its CEO. Quatela will remain the majority shareholder of Quatela Lynch McCurdy and will act as a special adviser to the firm on non-conflicting projects.

It is meanwhile worth reminding readers that Intellectual Ventures, Microsoft’s biggest patent troll (with thousands of satellite firms of its own), is imploding, however this extortion and gate-keeping tool, which habitually attacks Linux, still plays a role of in the operations of Linux-based devices (which it taxes).

See this new article that says “a new intellectual property agreement gives Netflix the opportunity to license TiVo’s patent portfolios, as well as patents for over-the-top (OTT) offerings, which are held by Intellectual Ventures.”

How much of that money flows into the pockets of Microsoft and Bill Gates (a stakeholder in the troll at a personal capacity)? It’s hard to tell, but as we noted here before, Microsoft loves Linux patent tax. With China going crazy over patents, Microsoft recently managed to blackmail Xiaomi over its Linux products (we believe that only Huawei remains untainted by this Microsoft tax) and looking into Microsoft’s patent settlement with Xiaomi (they don’t call it a “settlement”, but it is one), IAM writes:

In the opening plenary of the day, featuring Xiaomi’s Paul Lin and Microsoft’s Micky Minhas, the ground-breaking deal announced in May between the two companies was, not surprisingly, the first topic for discussion. IP was a major driver of the agreement, as the Chinese smartphone maker acquired 1,500 patents from the software giant; but the transaction was premised on a much broader collaboration between the pair, with Microsoft applications now set to be included on Xiaomi mobile devices. Minhas, recently appointed as Microsoft’s head of licensing, revealed that the deal had taken a year to unfold after a senior Xiaomi executive had expressed the Chinese’s company’s desire to grow its IP portfolio. He added that one of the key drivers in making it all happen was the relationship between some of the key executives involved in the negotiations. Minhas, Microsoft head of business development Peggy Johnson and Xiaomi’s head of strategic cooperation Wang Xiang, all previously worked at Qualcomm, so there was a level of familiarity; while a face to face meeting between the respective company CEOs in March 2016 largely resolved outstanding issues and advanced the negotiation to the point where it became a matter of getting the contractual terms refined. But what really mattered more than anything, it seems, is that both companies had taken the time to understand each other’s perspectives and needs, and that both were fully focused on finding a win-win outcome. Goodwill, rather than good friendships, are the key to successful IP deal-making. Though, of course, it also helps to get along.

The part about “Microsoft applications now set to be included on Xiaomi mobile devices,” as we explained early in the year, is where patent extortion against Linux comes into play. The ‘new’ Microsoft just tries hard to hide what it does, either attacking Linux through trolls or compelling OEMs to ‘pay’ Microsoft for Linux/Android by shoving Microsoft malware into them (sucking up user data and sending it to Microsoft, never mind vendor lock-in through proprietary formats and code).

Don’t believe Microsoft’s claims that it has changed or that it “loves Linux”. It’s still the same old malicious company. It just learned how to lie/mislead better.

Quite a few GNU/Linux firms and even the Linux Foundation are now being paid by Microsoft (like silence money), so don’t expect them to speak out against this injustice. █

Summary: Microsoft’s continued fascination with and participation in the effort to undermine Alice so as to make software patents, which the company uses to blackmail GNU/Linux vendors, widely acceptable and applicable again

OUR longest article yesterday focused on poor advice — either deliberately bad advice or simply influenced by the echo chamber — regarding software patents. The patent microcosm is in growing denial over US courts invalidating software patents granted by the USPTO using Alice, or even patents invalided by PTAB (in much larger numbers).

Some days ago we saw this report from the 2016 International Women’s Leadership Forum, courtesy of patent maximalists.

As can be expected, it was somewhat of an echo chamber not in the gender sense but in the agenda sense. Microsoft was there too and here is the relevant part:

The first practical step, said Julie Kane Akhter of Microsoft, is to learn from cases where the patent has been upheld, such as Enfish, Bascom and Planet Blue.

“In the Enfish patent, for example, they were actually improving the operation of the computer itself,” she stressed. Lessons from the Enfish decision included: the specification was really important; consider identifying the technical problem in the specification; and avoid being too high level in the claims.

She said Enfish provides several practical strategies for applicants: utilise the interview; talk about the technical improvement; and cite Enfish! Lessons from Bascom are: consider discussing prior solutions and their drawbacks; highlight lack of preemption; and keep drafting software applications! And tips from Planet Blue are: argue the examiner has determined the idea in the claims at too high a level; argue the claim is specific enough and improves the technology; and draft claims with realistic scope and technical effect.

For those who forgot or have not been paying attention, Enfish ended up as a pro-software patents caselaw and Microsoft pays David Kappos, former Director of the USPTO, to lobby along those lines. He keeps trying to eliminate Alice (a Supreme Court case) as caselaw. Various patent law firms too still lick their lips over software patents and try to undermine Alice, hoping to ‘rewrite’ it with lower-level cases such as Enfish or Bascom.

On November 30^th Dennis Crouch wrote about Microsoft v Enfish (not the other way around), nothing that it “Turns Out the Claims Are Obvious”. This is a PTAB case:

After instituting review, the Patent Trial and Appeal Board found some of the patent claims invalid as anticipated/obvious. On appeal, PTAB factual findings are generally given deference but legal conclusions are reviewed without deference. After reviewing the claim construction and rejections, the Federal Circuit affirmed in a non-precedential decision.

It’s no secret that Microsoft’s software patents are rubbish; their low quality was the subject of many old articles here. Moreover, the company’s selective and hypocritical views on software patents were noted here way back in the i4i days. In another new article by Dennis Crouch he says that “PTAB judges are so well trained in the complexity of technology and patent law,” which is probably something that most patent courts lack.

“It’s no secret that Microsoft’s software patents are rubbish; their low quality was the subject of many old articles here.”Microsoft is still promoting software patents and in the words of MIP: “Great first panel at #ipwomen Forum discussing practical steps for software patents post-Alice & overcoming S101 objections @MicrosoftIP pic.twitter.com/cGWe9qrGPh” (Microsoft hates Linux too, except when it taxes it with patents, in which case it’s more tolerable to “MicrosoftIP”, the troll entity of the corporation). The people who covertly extort and blackmail Linux on behalf of Microsoft — all this while shaping patent law for the company’s bottom line — are also mentioned here. To quote: “It’s the @MicrosoftIP networking break at the #ipwomen Forum. Time to make some new contacts! pic.twitter.com/YwajQuWadV”

To be fair, Microsoft is part of a broader movement here. But it’s role is notable. Microsoft is a key player in this.

The following crossposted article [1, 2], for instance, tries to leave Alice behind. Another crossposted article [1, 2], this one titled “No Abstract Idea Where Invention Cannot be “Practiced in the Abstract”,” is also composed by the patent microcosm and the aim is similar. All the above entities generally wish to restore the patentability of software in the US. Also see the new article titled “The Current State of Computer Software Patentability” (behind paywall). What they all have in common is dissatisfaction with the new status quo — one wherein software is barely patent-eligible, or at least barely defensible in the patent sense in the courts. Patent lawyers pretend to care for inventors, but they just want to undermine Alice to patent software without barriers. See this article of one law firm; what they mean by “weather” does not take into account the risk of one getting sued but the chance of one to obtain a patent. Very one-sided a take, as usual. Software developers should stop patenting software as it’s a waste of time/money, even if such patents can sometimes be granted (only to be lost after a long and expensive legal battles). New PTAB cases on patents, such as this one [1, 2] (on reasonable diligence), remind us that sometimes patents will be invalidated even before they reach the court, i.e. even without the patent holders choosing to assert these offensively. Is is worth the risk? Patent lawyers can brag about “privilege” all they want (see new examples [1, 2]), but all they are after is a universal tax on software, extracted from patents nobody needs or wants. In the case of Free software such as Linux, this tax prevents redistribution, so it is inherently incompatible and antithetical.

“Has CCIA flipped sides again, as it previously did after Microsoft had paid it millions of dollars?”Much to our surprise, Matt Levy (CCIA) has decided to give articles to pro-software patents sites — a departure from his usual tune. He gives false hope to software patents hopefuls like Watchtroll readers and also IAM readers. Has CCIA flipped sides again, as it previously did after Microsoft had paid it millions of dollars? █

Summary: An update on Intellectual Ventures and Unwired Planet, whose operations pose a growing problem for Free software and Linux-based products (e.g. Android)

Patent trolls, as we noted in the previous post, are a growing problem in China and UPC in Europe can also make them a growing problem in Europe, basically emulating the mistakes of the USPTO.

“”Working with” as IAM refers to it basically means agreeing to cooperate with an extortionist.”IP Watch, speaking to LOT Network’s Ken Seddon, mentioned the problems associated with trolls on the first of the month, taking stock of the type of trolls that FTC spoke about (against) a couple of months ago. To quote: “Patent assertion entity (PAE) activity has skyrocketed in the past decade and much discussion has occurred around what to do in response to patent holders whose strategy is more focused on legal battles than innovating. One notable group has risen up to bring together global companies to address the PAE issue with a novel sharing approach. In an interview with Intellectual Property Watch, Ken Seddon, CEO and President of LOT Network, talks about the group’s rapid growth, what’s coming next, and how not to bring a squirt gun to a nuclear fight. ”

In our previous post we showed that Intellectual Ventures had expanded in China. Well, IAM continues to groom this troll, the world’s largest patent troll, which is Microsoft’s patent troll. See this promotional article and another new article which euphemistically calls patent extortion “NPEs” “monetisation”. “Working with” as IAM refers to it basically means agreeing to cooperate with an extortionist. IAM makes patent trolls look so benign that it’s appalling if not disgusting. That’s what happens when the patent trolls pay IAM…

“IAM makes patent trolls look so benign that it’s appalling if not disgusting. That’s what happens when the patent trolls pay IAM…”In other news, a network of sites published an article titled “How Big Law and Big Banks Took the Fight to Intellectual Ventures” [1,2], reminding us that Intellectual Ventures is very malicious and parasitic.

Speaking of Microsoft’s biggest patent troll, watch what Microsoft does with Nokia‘s patents other than extorting Android OEMs and passing patents to patent trolls like those that fund IAM. To quote the new article: “Under the terms of the agreement, HMD got exclusive rights to use the Nokia brand on mobile phones and tablets globally (except Japan) for the next 10 years, standard essential cellular patent licenses, software for feature phones…”

Those “standard essential cellular patent licenses” are among the reasons Microsoft ‘stole’ Nokia and now taxes a lot of the mobile industry using patents, even without selling any phones of its own. Not only Nokia’s patents serve to accomplish this goal. Ericsson’s patents too have been weaponised and Ericsson essentially created patent trolls that even operate in Europe (London).

“Ericsson’s patents too have been weaponised and Ericsson essentially created patent trolls that even operate in Europe (London).”Recently, Ericsson’s most prominent patent troll (Unwired Planet) did some damage even to PTAB, which has been responsible for intercepting a great number of software patents in the US. We wrote quite a lot about it last weekend and for those who don’t remember, the Court of Appeals for the Federal Circuit (CAFC) ruled to weaken PTAB. More coverage on CAFC coming out in favour of this patent troll of Ericsson — and indirectly against PTAB scope of operation — came from legal-centric sites [1, 2] at the beginning of last week.

Here in Europe, there may be some good news as Florian Müller, who used to promote/defend FRAND back in the days (it’s similar or related to standard essential patents), says that Germany pushes back against FRAND, citing antitrust reasons. To quote:

There was a time when I spent most Fridays–and occasionally also a Tuesday–in Mannheim (and on trains from Munich to Mannheim and back) to watch numerous smartphone patent trials. After coming to terms with a prohibition on making Internet connections from the courtroom (which prevented me from live-tweeting about the proceedings), I generally enjoyed my visits. I admired the depth of the judges’ technical understanding and their effective trial management (authoritative, but not authoritarian; highly facts-focused, but with a great sense of humor that I know other trial watchers also appreciated). There are, however, two notable exceptions from my fond memories: the incredibly dry air in the courtrooms and, more than anything else, the Mannheim judges’ take on what the obligation to license standard-essential patents on FRAND terms should mean for patent infringement remedies.

We certainly hope that these congregations of trolls, including those that try to tax every phone running Android, will be pushed back by courts. What we have here is a network of few large companies operating through patent trolls (i.e. resistant to lawsuits themselves), hoping to tax everything and everyone. Nobody benefits, except few rich people at the top. █

Summary: Some of the latest reports pertaining to Microsoft’s (and its patent trolls’) pursuit/lobbying for software patents at a time when such patents lose their appeal/lustre in the United States

SOFTWARE PATENTS are still possible to attain at the USPTO, but this does not mean — and is certainly no guarantee — that courts or even boards (like PTAB) will tolerate these. In fact, both often reject these and this reduces the incentive to pursue software patents in the first place.

“They want software patents restored so that they can carry on blackmailing software companies (usually with Linux/Android) at greater ease.”Watchtroll offers tips for overcoming the barriers to software patenting, having come to grips with the fact that at the Court of Appeals for the Federal Circuit (CAFC) almost no software patents survive (one can count this year’s exceptions on the fingers of one hand).

As noted here the other day, based on two reports, Microsoft and its trolls continue trying to undermine the new rules. They want software patents restored so that they can carry on blackmailing software companies (usually with Linux/Android) at greater ease. According to this new report about Microsoft’s biggest troll:

Earlier this week, Intellectual Ventures (IV) petitioned the full Federal Circuit to review the panel opinion in Intellectual Ventures v. Symantec, which invalidated two of its patents under section 101. Both patents—the ’050 and the ’610—are directed to filtering email or file content. (IV does not challenge the invalidation of a third patent, which was directed to receiving, screening, and distributing email.) The petition echoes concerns raised by clients, courts, and the patent bar about the growing uncertainty about what is—and what is not—patent eligible, especially in the area of software patents. Identifying two emerging fault lines in the court’s evolving section 101 jurisprudence, IV urges the full court to bring much needed doctrinal clarity and methodological consistency to the patent eligibility analysis.

It’s important to keep track of this case.

Microsoft’s and Bill Gates’ (personal connections) patent troll now pressures CAFC to kowtow to software patents while the media keeps telling us that Microsoft loves Linux so much. We don’t suppose the Linux Foundation cares to comment on Microsoft’s own lobbying for software patents (directly, not just by proxy). It’s an Inconvenient truth when the Linux Foundation gets paid not to understand, having received Microsoft money for a while now [1, 2, 3]. Here is what Simon Phipps (head of OSI for a long time) wrote about the Linux Foundation’s decision to join Microsoft the other day:

Microsoft may have joined the Linux Foundation but "Joining A Community Means Accepting Its Norms" still applies https://t.co/TLU22LvALm

— Simon Phipps (@webmink) November 16, 2016

Or to put it another way, has MIcrosoft joined OIN yet? They need to forswear patent aggression against open source before we accept them. https://t.co/UlRivyQxGT

— Simon Phipps (@webmink) November 16, 2016

Microsoft loves open source? Only when it's convenient https://t.co/lyily4pHoL (nothing has changed since the Eclipse & SQL Server news)

— Simon Phipps (@webmink) November 16, 2016

How many Linux Foundation members extract patent royalties from Linux users? Do you know, @jzemlin ?

— Simon Phipps (@webmink) November 17, 2016

How many trade associations do you know where a company making patent threats against the other members would be admitted?

— Simon Phipps (@webmink) November 17, 2016

@jonobacon I have been making this comment for a long time. They have had their grace period. Sample: https://t.co/h9Pek3GfxV

— Simon Phipps (@webmink) November 17, 2016

@vivainio They only keep it because we give them credit for gestures too easily. /cc @jonobacon

— Simon Phipps (@webmink) November 17, 2016

@kgerloff @jonobacon They just need to join OIN.

— Simon Phipps (@webmink) November 17, 2016

The $500k Microsoft paid to join Linux Foundation is about ¼% of their revenue from patent threats against Linux, as far as I can tell.

— Simon Phipps (@webmink) November 17, 2016

@hugoroyd I believe

— Simon Phipps (@webmink) November 18, 2016

@hugoroyd Both annual, of course.

— Simon Phipps (@webmink) November 18, 2016

@itoctopus The $500k is from the LF Bylaws. The $2Bn is from coverage in multiplre publications in 2013.

— Simon Phipps (@webmink) November 18, 2016

Linux Foundation member Microsoft's income from patent threats against Linux is about the same as Red Hat's entire turnover.

— Simon Phipps (@webmink) November 17, 2016

@itoctopus Sample: https://t.co/0sOCyA8huN – I suggest you try Google for more.

— Simon Phipps (@webmink) November 18, 2016

@itoctopus You are clearly not following the subject.

— Simon Phipps (@webmink) November 18, 2016

@itoctopus The information is extremely easy to find. Another sample: https://t.co/uElICgoHxz

— Simon Phipps (@webmink) November 18, 2016

@itoctopus And seriously, you want to gaslight me? Over well known issues? Who are you exactly?

— Simon Phipps (@webmink) November 18, 2016

@itoctopus Gaslighting again. Anonymous still. End of conversation.

— Simon Phipps (@webmink) November 18, 2016

@itoctopus So this doesn't exist? https://t.co/GL5okHiQWB

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Or this https://t.co/o7WfB2F3Ir

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Or this https://t.co/pCBReTe1j4

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Or this https://t.co/0J15NepA9Y

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Every bilateral patent license agreement is preceded by a patent threat. You would know if you had ever been involved in one.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus I just did. You should research the subject before proceeding. Start by searching Google for "patent troll". Good night.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Microsoft's patent licensing attacks on Linux are a superset of which Android is only a part, per earlier links.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Gaslighting again?

— Simon Phipps (@webmink) November 19, 2016

@itoctopus I am not interested in your strawman about Samsung, which I did not mention here.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus No, that was $1bn, just in one year and was mentioned by @jwildeboer

— Simon Phipps (@webmink) November 19, 2016

@itoctopus As @jwildeboer indicates the ballpark of $2bn annually is routinely estimated. Annual numbers vary, as links I have offered show.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Since you are an expert I would welcome your better estimate.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus I have no idea what point you trying to make but that statement makes no sense.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Patent licenses for technology a company has not asked to license are preceded by threats. Equating with royalties is an error.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Where did I say that?

— Simon Phipps (@webmink) November 19, 2016

@itoctopus No, my comment was in connection with Microsoft joining Linux Foundation; they are taxing earlier members

— Simon Phipps (@webmink) November 19, 2016

@itoctopus https://t.co/QSIQvUQmax starts by setting the context to Linux Foundation membership. Hard to read it your way without an agenda.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Microsoft makes patent threats against Linux, its rich users pay up rather than fight & the income is 400x LF fees. Simple.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Neither do I. Nothing here is false information though.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Where did I say it took money from Linux? That is your words.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus How do you know what the huge sum Microsoft has harvested from Linux deployers might have been spent on? Sources, please.

— Simon Phipps (@webmink) November 19, 2016

@itoctopus Given you have spent so long gaslighting me and questioning my integrity it's the least you can do

— Simon Phipps (@webmink) November 19, 2016

@itoctopus You've repeatedly questioned my integrity & gaslighted me 3 times, in addition to your question about sources.

— Simon Phipps (@webmink) November 19, 2016

@weiserjo @RobertHarm All from easily located public sources. Fee: LF bylaws; RH income: them; MS patents: Ask Google.

— Simon Phipps (@webmink) November 20, 2016

@weiserjo I've not found one yet; seems most commentators are giving MS a free pass. Maybe I will… /cc @RobertHarm

— Simon Phipps (@webmink) November 21, 2016

“Microsoft’s and Bill Gates’ (personal connections) patent troll now pressures CAFC to kowtow to software patents while the media keeps telling us that Microsoft loves Linux so much.”Another odd ‘friend’ of Linux, a company that is attacking small companies using software patents while lobbying for software patents and spreading proprietary software, is mentioned in the news today. IBM’s Manny Schecter is trying to find some balance between secrecy and software patents and we sure hope that he’ll quit his stance on software patents as it often makes IBM look almost as hostile as Microsoft. █

‘“Other than Bill Gates, I don’t know of any high tech CEO that sits down to review the company’s IP portfolio” —Marshall Phelps (of IBM and Microsoft)

–Matt Asay, April 21^st, 2008

Summary: In order to maintain the order of “Linux patent tax” Microsoft and its proxies (patent trolls like Intellectual Ventures) keep pursuing patent policy that is friendly towards software patenting

A FEW days ago we became aware of the Microsoft-friendly IAM with its latest/upcoming event (as usual, with patent maximalists as sponsors). It is an IAM event, so basically IAM agenda, including software patents promotion. They are hoping to shape patent policy (see “Programme”) and as Benjamin Henrion put it, it is “Microsoft and others writing swpat [software patents] law: “Key topics for legislators to consider: a solution for 101 uncertainty”…”

“As a reminder, earlier this year software patents from Intellectual Ventures were aimed at Linux devices (in the courtroom) and recently a failed case of Intellectual Ventures led to the potential death of all software patents in the US.”Longtime readers of ours probably don’t need to be convinced that Microsoft is still an enemy of GNU/Linux, at the very least by virtue of promoting software patents (there’s a lot more than that). Sites like Phoronix may have fallen in line with the “LOVES LINUX” nonsense (a PR campaign), but judging by the company’s actions — not mere words — it is still a vicious opponent that cannot be trusted.

The largest patent troll of Microsoft (which attacks Linux with software patents) still fights for software patents. Yes, Intellectual Ventures is just one among many Microsoft-connected trolls that prey on Linux. Here is one new report about it: “Earlier this week, Intellectual Ventures (IV) petitioned the full Federal Circuit to review the panel opinion inIntellectual Ventures v. Symantec, which invalidated two of its patents under section 101. Both patents—the ’050 and the ’610—are directed to filtering email or file content. (IV does not challenge the invalidation of a third patent, which was directed to receiving, screening, and distributing email.) The petition echoes concerns raised by clients, courts, and the patent bar about the growing uncertainty about what is—and what is not—patent eligible, especially in the area of software patents. Identifying two emerging fault lines in the court’s evolving section 101 jurisprudence, IV urges the full court to bring much needed doctrinal clarity and methodological consistency to the patent eligibility analysis.”

This was also covered in another report (partly behind paywall) which says “Intellectual Ventures asked the full Federal Circuit on Tuesday to review a panel decision that invalidated two of its patents on detecting spam and viruses for claiming only abstract ideas, saying the ruling “directly conflicts” with other decisions on patent-eligibility.”

“It would be nice if we did not have to mention Microsoft at all, but it just keeps interfering with (and trying to undermine) Free software, so it’s impossible to ignore this company.”As a reminder, earlier this year software patents from Intellectual Ventures were aimed at Linux devices (in the courtroom) and recently a failed case of Intellectual Ventures led to the potential death of all software patents in the US. It’s clear that Intellectual Ventures intends to keep fighting that decision. It wants to keep extorting all sorts of companies, extracting patent payments (settlements from them). Intellectual Ventures is closely connected not just to Microsoft but to Bill Gates personally.

IAM’s apologists of trolls had the cheekiness to say the other day that “as you know, a lot of infringement goes uncontested because of the cost of litigating in the US.”

That’s nonsense. “A lot of patent bullying goes unchallenged (‘protection money’ paid) because of the cost of litigation everywhere,” I told them and “seen it personally,” added the former lawyer of Samba, Carlo Piana. As Benjamin Henrion (FFII) put it, “politicians don’t care about small companies.”

“I thought big companies were the targets of litigation,” said Jamie Love (Knowledge Ecology International, or KEI for short), probably joking about this myth.

The matter of fact is, Microsoft and its patent trolls continue to lobby pretty hard for software patents, yet the Linux Foundation somehow found it appropriate to join Microsoft and help Microsoft spread its lies (e.g. that .NET is open even though it’s not and SQL Server comes to GNU/Linux even though technically it will run on top of a Windows kernel, which in turn sits on GNU/Linux).

I had a lot more to say about the Linux Foundation joining Microsoft (yes, it certainly feels like the suitable way to put it), but I wrote it succinctly in Diaspora* and other such sites as I wish to focus all energy and time on the patent systems, not on Microsoft specifically. It would be nice if we did not have to mention Microsoft at all, but it just keeps interfering with (and trying to undermine) Free software, so it’s impossible to ignore this company. █

‘We had some painful experiences with C and C++, and when Microsoft came out with .NET, we said, “Yes! That is what we want.”‘

–Miguel de Icaza, now Microsoft employee

Summary: A warning about lots of prepared (in advance) Microsoft brainwash, or intentionally misleading material that strives to portray Microsoft as a friend of GNU/Linux even though the company actively attacks GNU/Linux and tries to bring the competitor under its own control

WHILE we prefer to focus on the EPO and the US patent system’s software patents (the USPTO still grants them, but courts barely tolerate these), something happened today which we cannot simply brush off and ignore.

“It’s all about proprietary software. There’s nothing to celebrate here.”If one believes the lie, Microsoft now “loves Linux” and has officially joined the Linux Foundation. I have already responded to that over at Tux Machines where I also included many dozens of links to today’s nonsense (reproduced below), which was virtually everywhere. Remember these were quietly prepared in coordination with Microsoft/Linux Foundation before the announcements were actually made. It’s a well-orchestrated PR blitz that came out within an hour or two, reaching a lot of news channels simultaneously and drowning out opposition/scepticism. Almost all the links are there, except newer ones that we’ve found since, e.g. [1, 2] (it is a multi-faceted E.E.E. move that serves to also impose .NET and proprietary SQL Server on more users). There are reactions on the Web from pro-GNU/Linux people who are not so easily fooled or mesmorised by the torrent of Microsoft propaganda, delivered primarily by Microsoft-friendly writers who got groomed and prepared for it at least a day in advance (one writer accidentally published his article half a day too early and quickly took it down, he told us). There is relevance to patents, as one Red Hat employee put it: “I do wonder what #Microsoft joining #Linux foundation means wrt to those 250+ patents #Microsoft licenses to #Android OEMs.”

Compare that to optimism from those who got paid to write Microsoft-friendly puff pieces in a Windows site lately. No doubt there will be a lot more puff pieces about it in the coming days, maybe also some editorials critical of the move (I got approached for comments).

It is not a “love affair” but an attack on GNU/Linux, a classic E.E.E. move. It is imposing .NET on us, too. It’s all about proprietary software. There’s nothing to celebrate here. It’s not a victory for the Linux Foundation but a defeat; they finally sold out as Microsoft bought them off for just half a million dollars (slush funds to Microsoft).█

Related/contextual items from the news:

1. Microsoft Steps Up Its Commitment to Open Source

   Today The Linux Foundation is announcing that we’ve welcomed Microsoft as a Platinum member. I’m honored to join Scott Guthrie, executive VP of Microsoft’s Cloud and Enterprise Group, at the Connect(); developer event in New York and expect to be able to talk more in the coming months about how we’ll intensify our work together for the benefit of the open source community at large.

2. Microsoft Joins The Linux Foundation As A Platinum Member

3. Microsoft’s Linux love affair leads it to join The Linux Foundation

   No, this isn’t The Onion and it’s not April Fool’s Day. Microsoft has joined The Linux Foundation.

   Microsoft announced that it was joining forces with The Linux Foundation at the Microsoft Connect developer event in New York.

4. Microsoft announces the next version SQL Server for Windows and Linux

5. Microsoft joins The Linux Foundation as a Platinum member

6. Microsoft joins the Linux Foundation

7. Microsoft—yes, Microsoft—joins the Linux Foundation

8. THE END TIMES ARE HERE: Microsoft embraces Google, Apple, Samsung and even Linux in one go

9. Microsoft’s open source love fest continues as it joins Linux Foundation

10. Microsoft Goes Linux Platinum, Welcomes Google To .NET Foundation

11. Microsoft joins Linux Foundation in another nod to open-source code

12. Microsoft Is Joining the Linux Foundation

13. Microsoft Joins Linux Foundation

14. Microsoft joins Linux Foundation in another step toward greater openness

15. Microsoft joins the Linux Foundation, 15 years after Ballmer called it ‘cancer’

16. Microsoft joins the Linux Foundation as a Platinum member, Google joins .Net community

17. Microsoft is now a Linux Foundation Platinum Member

18. That’s an expensive Linux install! Microsoft gives the Linux foundation $550000

19. Microsoft joins the Linux Foundation because 2016 isn’t weird enough already

20. Microsoft just got its Linux Foundation platinum card, becomes top level member

21. 4 no-bull takeaways from Microsoft joining the Linux Foundation

22. Microsoft announces the public preview of the next release of SQL Server on Linux and Windows

23. Microsoft Joins Linux Foundation, Google Joins .NET Community

24. Microsoft just joined the Linux Foundation as a Platinum member

25. Linux has won, Microsoft joins the Linux Foundation

26. Microsoft is joining the Linux foundation as a platinum member

27. Microsoft joins Linux Foundation, Google added to .NET community

28. Microsoft seeks to grow Azure platform with products, partnerships

29. Microsoft Joins Linux Foundation As Platinum Member

30. Microsoft Fortifies Commitment to Open Source, Becomes Linux Foundation Platinum Member

31. Microsoft contributes to open ecosystem by joining Linux Foundation and welcoming Google to the .NET community

32. Linux Academy Partners with Microsoft Visual Studio Dev Essentials Program

33. Microsoft Joins the Linux Foundation as the World Remains the Right Side Up

34. Hell freezes over as Microsoft joins the Linux Foundation

35. Microsoft Joins Linux Foundation as a Platinum Member

36. Microsoft Connect: Visual Studio 2017, SQL Server v.Next for Windows and Linux and More

37. SQL Server joins the Linux party, new preview comes to Linux and Docker

38. Microsoft joins The Linux Foundation

39. Google joins .Net Foundation

40. Microsoft and Google bury the hatchet in one small way

41. Google joins Microsoft’s .NET Foundation

42. Microsoft announces Visual Studio for Mac, preview of the next SQL Server with Linux and Docker support

43. Microsoft’s SQL Server Next for Linux, Windows hit public preview [Ed: Proprietary software with surveillance is not a gift]

44. Google signs on to the .NET Foundation as Samsung brings .NET support to Tizen

    Microsoft is hosting its annual Connect(); developer event in New York today. With .NET being at the core of many of its efforts, including on the open-source side, it’s no surprise that the event also featured a few .NET-centric announcements…

45. Samsung launches Visual Studio Tools for Tizen preview, lets developers build apps with .NET

46. Microsoft joins the Linux Foundation, welcomes Google to .NET community

47. Microsoft releases SQL Server Preview for Ubuntu and Red Hat Enterprise Linux

48. Microsoft says Linux is no longer ‘cancer,’ joining Foundation

49. Samsung Joins Microsoft .NET, C# Developers to Build Apps for Tizen Devices

Summary: A roundup of news about patent trolls, in particular their growth in east Asia and growing interest from parasitic firms like IBM and Microsoft (which have not so much left but a pile of software patents amassed in past years)

CHINA’S SIPO, which the EPO‘s President got close to (and increasingly imitates both in terms of degrading labour standards and poor patent quality), is becoming the generator of the world’s biggest platform for patent trolls. We have been pointing this out for a number of months now. It’s a harrowing scene because it means that an epidemic that (thus far) was almost exclusive to the US has spread like a pandemic to the world’s largest population.

A new article from John Collins and Steve Lundberg (yes, that crude software patents booster from Schwegman Lundberg & Woessner) is titled “Barrier to Business Patents Softening in China” and it reveals that China — like today’s EPO — encourages more patents irrespective of their quality and it already attracts patent trolls that utilise software patents. Has China learned nothing from the mistakes of the United States — mistakes that even government departments now openly speak of?

According to IAM, a site exceptionally sympathetic towards patent trolls (some of them pay IAM), says that “Qihoo 360 was actually the first company to have a GUI design patent granted.” Now it’s a highly litigious company, IAM says. With software patents, as expected, come the patent trolls to Asia, where patent quality nearly got abandoned (same mistake which the US had made). Here is another new example from IAM, though it does not use the “T” word. These trolls operate not only in China and as we pointed out before, some of them now go abroad and sue Western companies in plaintiff-friendly courts like those in Texas. They will certainly come to Europe as well, in due course. At the EPO, as we have repeatedly demonstrated, patent examination is too lax/lenient — a recipe for disaster for existing EP holders, if not future ones too. According to this tweet from the EPO: “Luis Ignacio Vicente del Olmo of @Telefonica : “The number of patent applications is increasing” #EPOPIC pic.twitter.com/BcmVRxswtD”

Does that mean more innovation or aggressive patent thickets that lock the ‘small guy’ (or business) out of the market?

As another EPO tweet put it the other day: “Luis Ignacio Vicente del Olmo: ” A smartphone may include more than 5000 patent families” #EPOPIC”

Wonderful! “Luis Ignacio Vicente del Olmo speaks about new challenges for IP as a result of the new technological paradigm,” the EPO says, adding that: “Luis Ignacio Vicente del Olmo of @Telefonica talks about trends in #ICT sectors & transparency of patent data #EPOPIC pic.twitter.com/wApNe223C1″

Some of that data comes to and from Asia, as this tweet notes: “Luis Ignacio Vicente del Olmo: “The European market is very attractive to companies outside Europe like from Asia & the US” #EPOPIC”

So how long before Chinese patent trolls come to Europe, even without that UPC (which would greatly assist them if it ever became a reality)?

IBM, which is already suing small companies using software patents, seems to salivating and drooling over litigation in China. See this tweet from IBM’s Manny Schecter, boasting that “China’s patent-lawsuit profile grows. http://www.wsj.com/articles/chinas-patent-lawsuit-profile-grows-1478535586 … via @WSJ” (article here but with limited access to non-subscribers).

“When a Canadian patent-licensing firm wanted to sue Japanese electronics company Sony Corp., it chose an unlikely venue: China.” That’s what the report says. IBM already sold quite a few pieces of its business to China and we can envision IBM trying to impose patent licensing deals in China, if not lawsuits too (for those not sufficiently ‘obedient’).

According to this new article from Liu, Shen & Associates, the notion of obligatory patent tax has already spread to China. “Standard essential patents have long been a hot topic in China,” they argue. “Hou Guang and Jia Hongbo of Liu,Shen & Associates explain the history and analyse recent developments…”

Standard essential patents (SEPs) block the use of Free/Open Source software (FOSS) and much more. IBM used to lobby for this kind of mess in Europe and look where it led to; rather than stop SEPs/FRAND IBM told the European authorities that software patents promote FOSS innovation (which is of course a lie).

Design patents in Taiwan (arguably part of China, depending on who one asks) are discussed in another new article. Japan and China phased in this nonsense, as we noted the other day and sooner or later we expect China to overtake the United States in terms of patent trolling, including trolling in places/parts of the US where litigation is ubiquitous and low-quality patents are routinely tolerated (not just Texas, the trolls’ capital). See this article titled “As litigation increases, China follows Japan in exploring state-subsidised IP infringement insurance”. It says that “[p]atent authorities in both China and Japan have recently brought forth proposals for patent office-subsidised IP infringement insurance. SIPO says it will focus on offering protection to Chinese companies expanding outside the country, while the JPO anticipates local SMEs using its insurance product both offensively and defensively in China. As litigation increases in China, and more Chinese companies expand abroad, companies throughout the region need all the IP risk management tools they can get.”

What a total waste of resources and energy. They handicap their own economy.

Over in the United States, says this article from IAM, Rockstar (a patent troll connected to Microsoft) pursues more shakedown, even though the FTC deemed this damaging to the country. IAM, being the trolls’ apologist that it is (or denier of patent trolling), attacks the FTC’s study which bemoans patent trolls (for the second time in less than a month!) and says this:

One of the significant outcomes of the Federal Trade Commission’s recent report on patent assertion entities (PAE) is that it very clearly differentiated between two types of licensing business.

On the one hand there were the litigation PAEs, who use the threat of infringement litigation to drive a large volume of low-dollar settlements. They, it was strongly implied, largely engage in the kind of abusive practices that many in the patent community criticise and drive a high number of lawsuits.

We are increasingly convinced that IAM is very eager, with money from Microsoft-connected patent trolls on its table, to see patent trolls go global. IBM too seems to like the idea, as the company has little left other than a pile of patents (same as Microsoft). Some companies are simply transforming into megatrolls; see what Blackberry does in Texas because its products are failing to sell. █

Summary: News about Microsoft’s love of [patents against] Linux, the persistent issue of patent maximalists guiding US patent law, and an update regarding the Patent Trial and Appeal Board (PTAB) that cleans up the mess left by these aforementioned actors

SOFTWARE PATENTS have always been our primary focus, since the site began exactly 10 years ago.

“I’m not talking about software patents, whose disappearance I would welcome,” said the author of this new article titled “The End of Intellectual Property?”

Patent practitioners must understand that in order for their profession to maintain legitimacy (positive public perception) they need to ensure that patents are granted only on things where patenting can be justified, economically in particular. Not every thing in existence should be patented. That’s just common sense, as authors who studied the effects of monopolies explained in scholarly work for decades if not centuries. Patent law — like copyright law — must examine/study the broader effects, including the externalities.

Today’s article is a mix of news found and collected over the past week. We present the news in no special order.

Microsoft Still Evil and Dangerous

Microsoft is lobbying against Alice (and for software patents, as usual). How do we know? This report from last week reminds us that Microsoft is a nasty, malicious company that intends to continue to sue rivals using software patents. To quote: “As Microsoft’s Micky Minhas sees it, Alice may be dissuading IP owners from other countries from patenting their products here, placing the US at a disadvantage. As China considers accepting patents for business methods, the US is heading “in the opposite direction,” he said.”

Does that mean that China’s patent system is getting better? No, it’s getting worse and patent trolling has gotten a foothold there, as we so often/habitually noted this year. Looking at what Microsoft actually continues to do, consider this new and timely article titled “No, Microsoft does not love open source” (published by the corporate media about a week ago). To quote the key part:

I used to follow Microsoft’s intellectual property Twitter account in order to see exactly how much Microsoft loved open source as it bragged about all the people it had coerced into signing patent agreements. I guess someone realized that crowing about that was not a great idea, because today the feed tweets puff pieces about how great software patents are and how they drive innovation (through litigation).

The truth is that Microsoft’s principal open source strategy hasn’t changed and probably never will. The point of open source to Microsoft (or any other company) is to give you an on-ramp to its platform. For Microsoft, that platform is morphing from Windows to Azure, so of course Microsoft has dialed back its rhetoric toward Linux. If you read Microsoft hates Linux, then you probably won’t host your VMs on Azure — same deal if you have a choice between two virtual private clouds. Duh, Microsoft loves Linux … on Azure. Why wouldn’t it?

Microsoft may even be willing to accept open source that’s tied to its technologies, but not directly to its platform. Generally these will be “children’s edition” versions like .Net Core. I’m not saying Visual Studio for Linux isn’t progress, but is anyone really itching to run .Net on Linux? I mean, after the outrageous commercial success of Mono (/sarcasm), are any of you going, “Woo-hoo, I want to write .Net code and run it on Linux”? Bueller? Bueller? Anyone?

Now, about those lawsuits — Microsoft likes it both ways: Embrace on one hand, and get tidy patent settlements on the other. People who work at Microsoft say it’s a big company, and as with all big companies, the left hand doesn’t know what the right hand is doing. Actually, that would be dismal management — if “we love open source” was really part of Microsoft’s strategy.

As evidence that Microsoft loves open source and Linux, last year Microsoft noted some long-running lawsuits that it wasn’t really winning and dropped them. Repositioning “we cut our losses” to “because we love you” is good PR. Respect! But let’s talk about real change.

For those who think that Microsoft has changed, be sure to check if media coverage changed rather than Microsoft itself. We wrote quite a few articles this year about new instances of Microsoft blackmail using patents, targeting companies which distribute Linux devices.

Patents That Harm Society

There is a new paper (more than a fortnight old by now, which in academic terms/by academic standards is very little) that focuses on patent litigation. Litigation is rarely indicative of success; rather, litigation is invoked when there is a failure and when parties fail to agree about patents. Who benefits from all this the most? Patent lawyers of course, at both sides (offensive and defensive). Here we have a new report about a patent lawsuit against solar panel company . Earth Solar Power, a Chinese solar panel company, got sued. Does the environment benefit from it? Certainly not. What does public interest say about all this? Also see this report about Octane. “Ninth Circuit’s en banc ruling says a case in which fee-shifting is appropriate is “simply one that stands out from others with respect to the substantive strength of a party’s litigating position”,” to quote MIP. Where does the public stand on this? Whose fees are “shifting” and who pays the price for all these lawsuits? Here is another new MIP article, this one speaking about a lawsuit with a decision composed by Justice Ginsberg. It’s not a new case, but here’s what MIP says:

In 2014, the US Supreme Court heard Petrella v Metro-Goldwyn-Mayer, which asked the same question of copyright law. In a majority opinion written by Justice Ginsberg, the Court decided that laches should not be an available defense in copyright infringement cases. The Court has recently shown a tendency to want to maintain consistency across the branches of IP law. In this case the Justices will have to interpret whether the statute creates a statute of limitation for damages in patent infringement cases, or if this is not established, whether laches are needed to effect this limitation upon suit delays.

Baby products are not improving because of lawsuits like this (see context in this article) and certainly society loses a lot. Maybe the problem is that too many patents are being granted in too many domains.

Tastelessly enough (in our view), Professor Crouch now uses his student Zachary Kasnetz to criticise a decision he doesn’t seem to approve of. Crouch is part of that crowd (or the insulated choir) that wants us that believe that more patents mean more success, more innovation, or whatever. His blog is usually quite informative (with detailed graphs and everything), but he is clearly subjective and he has become a symptom of a patent system led and steered by maximalists, not moderates. Some of them have become so greedy that they burn down the system and alienate the public. No wonder the connotation with patents among many members of the public isn’t quite so positive. Many now find “patents” synonymous with “trolls” rather than light bulbs, innovation, etc.

Here is a new article where Crouch shows the proportion of abandoned patent applications in the US going down over time. Is this indicative of a patent quality problem? Remember that the real number is FAR higher than what's shown by Crouch, around 92% if one considers revisions and re-applications. Here is another Crouch article about “USPTO Allowance Rate” and further commentary about it (“What is the Steady-State Patent Allowance Rate?”). In recent years, based on these figures, the USPTO got ever more terrible at rejecting bogus patents. David Kappos as Director (now lobbyist) made things ever more dire.

Courts Meet Avalanche of Bogus Patents

The USPTO has created a mess. It certainty did, but it profited from it. It’s obvious at whose expense and to whose gain. The incompetence (top-down, management instructing examiners) now overloads the PTAB staff and leads to a sort of ‘scatterback’ that falls back on courts. Only lawyers and trolls win here.

How did it all happen and what does the USPTO plan to do about it now? Well, based on Patently-O (Crouch’s blog), the “USPTO Proposed to Revise Rule 56″. David says in this article, while linking to a PDF, that the “announcement is here. I will be submitting comments before the 12/27 deadline, and so if you have any ideas or thoughts, please post away.”

So basically policy is being shaped by those who profit from it. We don’t expect public interest groups to have anything to say. Here is the nasty Watchtroll pushing his own agenda with this article about a “new memorandum on software eligibility”. Want to guess what Watchtroll will tell them?

Here is Watchtroll bemoaning the CAFC for smashing about 90% of software patent cases that it deals with. These people just can’t help themselves. Whenever the system tries to correct itself they panic and try to keep it ruined, as from ruin comes more business to them (consulting, applications, litigation etc.) and it’s frustrating to think that the public pays the price for all this unproductive chaos. The public pays, these people pocket it all.

The mess created by the USPTO, which granted patents on software for a number of decades (because it got greedy), scatters back on CAFC now. We see a growing number of reports about it. Kyle Bass, a person whom patent maximalists like to hate, goes on a PTAB winning streak ahead of the winter break. By invalidating crappy patents (granted by USPTO in error) he actually makes money. While opportunistic and selfish, at least it helps keep applicants honest (out of fear). Here is how MIP put it the other day. “The Coalition for Affordable Drugs has notched a flurry of PTAB wins in the past two weeks. The next decisions will not come until the new year,” Michael Loney wrote.

Drugs being more affordable is a good thing, right?

Here is another new update about PTAB, courtesy of Mr. Loney:

The past four months have been stable for Patent Trial and Appeal Board filings, while October saw the Federal Circuit giving another ruling on reviewability of IPR institution in Medtronic, the PTAB issue Kyle Bass and printed publication decisions, and the USPTO propose fee increases and changes to patent agent privilege

The monthly numbers of Patent Trial and Appeal Board (PTAB) petitions filed for the past four months have been within a 14-petition range, after displaying volatility at the start of the year.

There is no sign of stopping at PTAB and we are gratified to know that those who attack PTAB (Watchtroll for example) are not succeeding. In another report from MIP it’s stated that the “Federal Circuit [is] falling behind as PTAB appeals stack up,” confirming what we saw other sources claim. IAM ‘magazine’, in the mean time, has a new “Report” (usually paid) which shows that CAFC further limits patent scope (not just impacting software but also logic circuit designs) and it leaves us very hopeful. Is this combination of CAFC and PTAB, inheriting the ‘genes’ of the SCOTUS, going to make software patents a thing of the past everywhere? It’s definitely an attainable future. We’re partly there already.

What got a lot of this reform rolling was the America Invents Act (AIA), which brought PTAB just a few years before Alice. According to Patently-O,”AIA Patents [are] Approaching 50% of newly issued patents” and here is what they mean by AIA Patents:

By the end of the calendar year, most newly issued US utility patents will be considered “AIA Patents.” AIA-patents are examined under the first-to-file rules of the America Invents Act of 2011 and are also subject to potential post-grant-review proceedings. The chart below shows results from a random sample of 7,300 recently issued patents.

Soon enough there might not be many software patents left (not already expired) and Alice/Section 101 accomplished more than just software patents abolition, based on this report about industrial machines. It seems too good to be true, but it’s true. This is why patent law firms are hopping mad.

The US patent system is still messy, but we are optimistic and we believe it’s getting better; most developments these days are positive ones. █

It is true that some autistics do have significant talents in those areas, but contrary to the media myth of the socially inept computer programmer (Source: http://www.washington.edu/news/2015/02/11/how-to-interest-girls-in-computer-science-and-engineering-shift-the-stereotypes/), the vast majority of autistics are unemployed or need structured employment.

Autistics that do have those talents are usually very close to functioning normally already. Interestingly enough, a follow-up article by Microsoft about the program cites an unemployment rate of 80% for autistics. It is very unlikely that special hiring programs can help most of those autistics (Source: https://news.microsoft.com/stories/people/kyle-schwaneke.html).

Additionally, from what is understood, the only legitimate difference is the hiring process. The demands of the jobs that the autistics are looking for are the same as most equivalent jobs (Source: https://news.microsoft.com/stories/people/kyle-schwaneke.html). Even for some autistics that do have talents in mathematical calculations or can “engage in an endless acquisition of facts”, they need to be flexible and to be productive to work in technical fields, abilities which most autistic individuals lack, according to Fred Volkmar, an psychiatrist at Yale and an expert on Autism (Source: http://www.nytimes.com/2001/10/09/health/cases-a-disorder-far-beyond-eccentricity.html).

Out of 700 resumes submitted to this program application, only 10 applicants were accepted. This hiring process — not an employment program — can only help a very small percentage of autistic people, but Microsoft tries to portray it as a norm, talking about hidden talents and “breaking down the stereotypes” (which still apply most of the time unfortunately) and referencing the hiring company Specialisterne which claims without much evidence “many people with autism… could not only hold down a full-time job, but use their particular talents as a competitive advantage.” (Source: https://news.microsoft.com/stories/people/kyle-schwaneke.html)

While this program will help some people with autism, it is more a way for Microsoft to gain attention for glorifying autism as being an advantage than to find a genuine way to resolve the problems of most autistic individuals. █

Microsoft CEO Satya Nadella: women, don’t ask for a raise

Summary: Another example of the large (industrial) scale of sexual discrimination at Microsoft — a company that tries to advertise itself as diverse or tolerant and stigmatise Free/Open Source software (FOSS) as intolerant and/or not diverse

SEXUAL orientation-related and sexual discrimination at at workplace are a common theme. Microsoft’s propaganda mills, however, tried to stigmatise FOSS as hostile to minorities, women, and whatever else isn’t white, straight, middle-aged men.

Microsoft has got quite some audacity though. Microsoft’s hostility towards women [1, 2, 3, 4, 5, 6, 7, 8] and hostility towards gay people (or homophobia) [1, 2] were covered here before. Even Microsoft’s new CEO came under fire for it. The latest example of Microsoft sexism is reaching the press now. To quote The Register (one among very few that covered it):

Microsoft will have to defend itself against a lawsuit alleging that its employee rating system was biased against women.

A US district court in Washington has tossed out [PDF] the Redmond giant’s motion to dismiss a complaint lobbed at it by three women engineers, who allege the system for evaluating engineering and technical positions unfairly penalized them.

At issue is the Windows giant’s “Connect” system, the evaluation method Microsoft used to replace the much maligned “stack ranking” process for evaluating employee performance.

The engineers allege that the review system relies on manager and peer input from a group that is overwhelmingly male and, as a result, the female employees they evaluated may have missed out on raises and promotions.

“Plaintiffs allege these performance evaluation methods are ‘invalid’ because they ‘set arbitrary cutoffs among performers with similar performance’ and are ‘not based on valid and reliable performance measures’,” the court’s ruling, dated October 14, reads.

As we noted several months ago, sexism at Microsoft is systemic and a year ago we noted that it's not really a FOSS issue, in spite of a stereotype created and spread by the likes of Microsoft. Hence the relevance to FOSS… █

The latest twist: Lenovo attacks free speech and silences complaints

Summary: The Lenovo/Yoga brouhaha (which came from Techrights last month) will from now on be covered in our main site, not just the IRC forums

SEVERAL weeks ago, we at the #techrights IRC channel began discussing issues that had been encountered with Lenovo devices. Once publicised, these made it into the news in many countries, with hundreds if not thousands of articles, blog posts, forums threads etc. about the topic (we cataloged a lot of the coverage over at Tux Machines). It was a huge success story for us, as the news reached many millions of people all around the world. It did so much damage to Lenovo (not just the desktop business but servers and mobile also, to the point of major layoffs being announced last week) and Lenovo repeatedly lied, trying to blame everyone by itself and repeatedly changing the story (face-saving excuses and ‘damage control’), at some point even blaming Linux (although Alan Cox refuted them publicly about it).

We have not written about this until today because the media seems to be unwilling to cover the subject anymore, even when Lenovo’s lies are being debunked, necessitating new stories and corrections refuting Lenovo’s ‘official’ response. In the latest twist, Lenovo seems to be suppressing discussion. As Ryan from #techrights put it last night:

So yeah, Lenovo Forums seems to have banned all Comcast users in the state of Illinois in order to try to silence me.

Apparently, they don’t want anyone to talk about Linux issues on their Yoga anymore. I have another account on their forums that I can use behind a proxy, but even deleting all of my cookies and stuff, no matter what IP address I get from Comcast, it gives me a screen saying “We’re sorry, but you have been banned from using this site.”.

Anyway, I can still see what’s going on in there and comment using my other account behind a proxy server, but the mods seem to have done the following in the Linux forum:

Banned me (and all Comcast IP addresses in Illinois, apparently).

Banned at least half a dozen or more other people who were complaining that they couldn’t run Linux, or stating that they would take their Yoga back to the store, or talking about ways to potentially mod their Yoga to get AHCI support back and install Linux in spite of Lenovo’s BIOS restrictions.

Changed the thread about no Linux support on the Yoga 900 ISK2 to “moderated”, which makes it look like you can post there, but you can’t, because the mods aren’t approving new posts since 9/27, apparently. The views on this topic have shot up over 130,000 people. Lenovo is trying to stop people from talking about it and is going back and deleting and modifying earlier posts to make them look less damning.

Deleting more posts about Linux not working or people taking their Yogas back to the store on other threads. Probably banned them too since many haven’t posted anything since Lenovo deleted their thread. One person in Germany said that he was talking to his lawyer and gathering evidence to force them to take back his 710S and give him a refund. They deleted that. He hasn’t been seen since.

The Private Message feature seems to be gone, so there’s no way for me to contact other users without the mods noticing and deleting another forums account.

At least one of the mods doing this is a Microsoft MVP. One of the other mods “Sarbin” said that it was just a coincidence after someone brought that fact up, and then moved the post about the MS MVP to a “Forum Housekeeping” forum. Instead of deleting some posts, they seem to be moving them to “the cornfield”, where it’s harder for people to read them or for Google to index it, or for archives of the main thread from being saved.

So if I say cover up, then certain people will roll their eyes and downvote me and proceed to take Lenovo’s side again, but it’s definitely a cover up.

I just wanted to let everyone know what happened in case they thought that people didn’t want to talk about the Linux problems on Lenovo’s Forums. In reality, people are steaming mad about this and their accounts are being banned and their threads deleted or modified.

Prior to this, Ryan submitted a letter to the Federal Trade Commission regarding Lenovo blocking GNU/Linux and other operating system installations on Yoga PCs. This can take a while to make progress on and here is the gist of it:

This is the letter I sent to the Federal Trade Commission and to the Illinois Attorney General’s office regarding Lenovo locking out Linux from their Yoga laptops.

“Lenovo sells computers known as “Yoga” under at least several models that block the installation of Linux operating systems as well as fresh installations of Windows from Microsoft’s official installer. They have the system rigged, intentionally, in a storage mode that is incompatible with most operating systems other than the pre-installed copy of Windows 10. If the user attempts to install an operating system, it will not be able to see or use the built-in SSD (Solid State Drive) storage. I believe that this is illegal and anti-competitive. These product are falsely advertised as a PC, even though it prohibits the user installing PC operating systems. Known affected models are the 900 ISK2, the 710, the 900 ISK for Business, the 900S, and possibly others. Lenovo’s position is that this is not a defect and they refuse to issue refunds to their customers, who have been deceived by the notion that their new PC is compatible with PC operating systems and that they should be able to install a PC operating system on a PC. Lenovo is therefore engaging in a conspiracy to defraud their customers through deceptive advertising. Lenovo’s official position is that Linux lacks drivers, however, Linux could easily be installed on these systems had Lenovo not removed the AHCI storage mode option from the BIOS and then wrote additional code to make sure that people couldn’t set it to AHCI in other ways, such as using an “EFI variable”. AHCI mode is an industry standard and should be expected on a computer describing itself as “PC” or “PC compatible” as it is broadly compatible with all PC operating system software. I feel that Lenovo should remedy the problem in one of three ways. (1) Offer full refunds for customers who want to install their own operating system but can’t. -or- (2) Release a small BIOS firmware patch to restore AHCI mode, which is simply hidden. This would be extremely easy for them since it would only be two lines of code and the user could do it themselves were they not locked out of updating their BIOS themselves. -or- (3) Provide open source drivers to the Linux kernel project that would allow Linux and other PC operating systems address the SSD storage in the “RAID” mode.”

Feel free to use this as your letter or a template for a letter of complaint to the FTC. Their consumer complaint form is available here.

https://www.ftccomplaintassistant.gov/#&panel1-1

Please also contact your state’s Attorney General’s office. They usually have a bureau of consumer complaints or something to that effect. If not, just shoot them an email.

Since the FTC form requires the company address and phone number, I used this:

Lenovo “Customer Center” Address: 1009 Think Pl, Morrisville, NC 27560 Phone:(855) 253-6686

Update: Lenovo just updated the BIOS for the Yoga 710, another system that doesn’t allow Linux installs. Wanna know what they changed? Update to TPM (secret encryption module used for Digital Restrictions Management) and an update to the Intel Management Engine, which is essentially a backdoor rootkit built into all recent Intel processors (but AMD has their version too, so what do you do?). No Linux support. Priorities…

Update: The mods at Lenovo Forums are losing control of the narrative and banning people and editing/deleting more comments. http://imgur.com/a/Q9xIE | But it appears that some people just aren’t buying it anymore. http://imgur.com/a/1K1t5

Watch this space. Techrights did not publicly speak about it as long as the mass media (including the BBC) covered the subject, but now that Lenovo enjoys silence from the media we shall take over the coverage, which all along came from us.

Eventually, as was the case in the Superfish saga (also lasting a long time), we hope to compel Lenovo to admit that it lied all along and get to the bottom of it, potentially demonstrating that Microsoft is the culprit and that Microsoft uses a secret contract (under NDA) to have BSD and GNU/Linux blocked by OEMs.

This story is far from over. █

“US Pat RE39231,” wrote a patent attorney, eventually meant that “Apple Must Pat MobileMedia $3M for Infringing this Patent” (MobileMedia is not as real company and we wrote about it before, in relation to MPEG-LA and Larry Horn; we wrote about him in [1, 2]).

How many people out there know that MPEG-LA is a patent troll whose head himself is/was a patent troll? Not many people know this. Horn relies on dishonest lawyers from Proskauer Rose and sues Apple, which itself is part of MPEG-LA (we already took note of how bizarre this is).

Well, “Apple loses ringtone infringement case to Nokia and Sony’s patent troll firm,” according to the headline of this report. To quote: “Apple has been ordered to pony up $3 million in damages by a Delaware judge for infringing the patent of a firm partially owned by Sony and Nokia. The case, which has been running since way back in 2010, saw MobileMedia Ideas originally accuse Apple on 16 counts of patent infringement. Six years and plenty of court activity later, the original claim has been whittled down to just one patent pertaining to iPhone ringer alerts, for which MobileMedia has been awarded a tidy sum of money.”

A patent troll connected to Nokia — a legacy of Microsoft entryism and subsequent passage of patents to trolls like MOSAID — is somewhat of a pattern we’ve seen a lot of recently. Android too is being targeted by these trolls.

“MobileMedia Ideas just won a Delaware trial against Apple over a former Sony patent,” Florian Müller wrote about it. “May file further lawsuit now over iPhone 4S and later.”

Tom O’Reilly from Mobile Media Ideas is advertising for this patent troll. He passed around the press release “MobileMedia Ideas Wins Trial against Apple” and it said:

(CHEVY CHASE, MD, US – 21 September 2016) – MobileMedia Ideas LLC is pleased to announce that the US District Court for the District of Delaware today found MobileMedia Ideas’ “polite-ignore” patent (Re 39,231) for mobile phone call silencing valid and infringed by the iPhone 3G, 3GS and 4 and awarded $3M in damages. The case did not include the iPhone 4S, 5/5C/5S and 6/6 Plus on which there may be further proceedings. The patent was filed in 1994 by Sony Corporation, a pioneer in the development of mobile and other consumer electronics technology, and is now part of the patent portfolio licensed by MobileMedia Ideas.

MobileMedia Ideas President and CEO Larry Horn said, “We thank the jury for its service and hard work. This case could have been avoided by the taking of a license, however. MobileMedia Ideas’ business model is based on offering reasonable licenses to a valuable portfolio of important inventions widely practiced across a broad array of mobile phone and other portable products. We still welcome Apple to respect intellectual property developed by others with the taking of a license.”

MobileMedia Ideas was represented by a team of litigators at Proskauer Rose led by Steve Bauer and Kim Mottley of the Boston office.

In relation to an article/report mentioned here earlier this week, there is now an important update. Coming from the Korea Times, it says that the tax authority is likely to reject Microsoft’s appeal for refund of tax. To quote the opening parts:

The South Korean tax authority is expected to reject an appeal by U.S. software giant Microsoft Corp. to refund 634 billion won ($575.7 million) in a withholding tax, according to the tax authority and industry sources Thursday.

Microsoft filed complaints last month against the National Tax Service (NTS), seeking a refund of the withholding taxes paid by Samsung Electronics Co. to the NTS for using the software giant’s patents.

When will Microsoft pay the tax it has evaded? Above the law, still? A lot of the above sum comes from Linux-powered devices (we wrote about this many times before).

Those who believe that Microsoft has changed surely aren’t paying attention to what it does through patent trolls, through Nokia (which Microsoft demanded should pass patents to trolls), and in various distant countries like Korea. Microsoft just became a little more covert in its war against Linux. █

Summary: Microsoft is pursuing more Linux ‘patent tax’ (using software patents) and patent law firms are preoccupied flooding the media with their shameless self-promotion which is also software patents promotion

OVER the past week we repeatedly wrote about our expectation which turned out to be true. McRO has truly become the latest go-to case when a patent law firm tries to fool software developers into pursuing patents on algorithms, even in a climate that is so hostile towards them. One aspect of it which we mentioned here twice before was Microsoft’s role. Here is a direct link to what Microsoft said in its lobbying blog (later cited by numerous Microsoft advocacy sites, in order to give it the veneer of “news” or “report”). From the company that brought us patent lawsuits against Linux, e.g. Microsoft v TomTom comes yet more advocacy of software patents. And they tell us that they “love Linux”? This may mean that Microsoft would be happy also with the CAFC case that it lost to Enfish, as this outcome was desirable for software patents in general. In other related news, this new report from the Microsoft-friendly IAM, citing another report from Korea, reminds us that Microsoft wants more money from patents, now in terms of a refund of tax. This probably alludes to taxation on money from LG and Samsung, which both surrendered to Microsoft nearly a decade ago. Microsoft signed patent deals specifically covering their use of Linux (we covered this in 2007) and Microsoft now wants more money from this extortion (using software patents which are probably not even valid) and is suing the Korean authorities for it. What a bunch of thugs. ‘New’ Microsoft they say? Loves Linux? What a load of nonsense. To quote IAM: “Korean newswire Pulse recently reported that Microsoft had filed a claim with the country’s internal revenue services requesting the return of 600 billion won ($533.1 million) in corporate taxes it had been charged on patent licence fees and royalties paid to it by Korean businesses. The US company argued that it had been taxed on licences relating to patents covering jurisdictions other than South Korea, when the government of that country should only be able to collect revenue on patents applied for and issued domestically.”

Put in very simple terms, Microsoft, which is openly calling for more software patents, continues to use these to tax Linux and wants even a higher share of the money squeezed out of successful companies. Microsoft has attacked Linux users with software patents for about a decade (raising the costs of everything) and now it sues the Korean tax authorities to get additional extortion money. Coming from one of the world’s biggest tax evaders, which also got caught engaging in financial fraud, surely this takes some nerve and audacity. One can only hope Microsoft layoffs will accelerate fast enough to remove it from the planet (there have been Microsoft layoffs for a while and this month there are Microsoft layoffs in the UK). Recall that Microsoft also pays David Kappos to help resurrect software patents, in his capacity as former Director of the USPTO. It may not be classic bribery but lobbying. He is one of the fiends responsible for the biggest software patents push right now; he is a malicious, greedy man. Software patents remain a key issue that determines success/failure of FOSS; Section 101 is a possible solution and they try to put an end to it. We need to work against a huge patent microcosm which plays dirty behind closed doors. Unpatent is “fighting the smoke rather than the base of the flames,” told me one person yesterday and the President of the FFII thinks so too. Unpatent has good intentions, no doubt (I spoke to its founder several times), but it won’t ever work towards resolving big issues like this massive lobbying push which targets or strives for purely legislative changes (system-wide).

So who else is promoting McRO this week? Pretty much everyone who would be profiting from an upswing in software patents. Here is Watchtroll promoting software patents again (in the form of a “Free Webinar”) and here are some so-called ‘analyses’ or articles from today and yesterday. To quote just the headlines, “Widely Watched Federal Circuit McRO Decision Holds Certain Software Claims to Be Patent Eligible”, “McRo v. Bandai: Evidence related to claimed improvement is key to whether claims are directed to an abstract idea”, “Important Federal Circuit Decision Provides More Clues On Software Eligibility”, “Important Federal Circuit Decision Provides More Clues On Software Eligibility”, “Federal Circuit Highlights Claim Construction in Patent Eligibility Analysis”, “What the Federal Circuit’s Decision in McRO v. Bandai Could Mean for Computer-Based Inventions and Other Innovations”, “McRO v. Bandai: Latest Federal Circuit § 101 Decision Breathes New Life into Software Patents”, “McRO v. Namco – Fed. Cir. Reverses s. 101 Invalidation of Animation Method Patents”, “Important Federal Circuit Decision Provides More Clues On Software Eligibility”, “Federal Circuit is In Sync with Patent’s Validity Under Section 101″, “Gone Enfishing: Software Patentees Reel in Another Huge Win at the Federal Circuit”, and “Widely Watched Federal Circuit McRO Decision Holds Certain Software Claims to Be Patent Eligible”. Every single one of these was published by a patent law firm and they effectively flood news feeds with these (the signal, or actual journalism covering this case, has been washed away by now). These people are just trying to attract clients and we are still seeing lots of these patent law firms piggybacking McRO to promote software patents and make their sales pitch. Judging by what happened after Enfish, this can carry on for weeks to come. Utterly misleading and self-serving — that’s what it all about. This perturbs public understanding of the case. There is hardly even any pretense of balance when it comes to software patents whenever patent law firms just try to sell us more lawsuits.

The patent laws we have typically get written by politicians who are lawyers and lobbyists, not scientists like software developers, hence the sordid state of affairs. Watch how Bilski Blog is attempting to discredit courts for not understanding science, as if patent law firms are that much better at it. From the latest part of “Bad Science Makes Bad Patent Law”:

The Supreme Court in Mayo acknowledged that “Courts and judges are not institutionally well suited to making the kinds of judgments needed to distinguish among different laws of nature.” Indeed. And it is precisely because the courts cannot make such distinctions, that the Supreme Court needs to correct the problem it created by adopting a more scientifically coherent approach to laws of nature.

It’s been argued that it’s too soon for the Court to take up another patent eligibility case, having only recently decided Alice. But it’s been just over four years since the Mayo decision. The Supreme Court “corrected” Parker v. Flook (1978) only three years later in Diamond v. Diehr (1981). And fixing this problem is necessary before more patents (and patent applications) are improperly invalidated for important inventions in diagnostics and treatments.

The Court had that opportunity in Ariosa but it denied Sequenom’s cert. petition. Now the Court has the opportunity again. Genetic Technologies has filed for certiorari. The Court should take up the case for the reasons I’ve articulated in these posts.

More specifically, the Court can address two issues. First, the Court can articulate a more complete and “patently” useful definition of a law of nature. In the past, the Court has expressed a particular distaste for bright line rules in the patent law, preferring instead flexible standards. Consider the Court’s rejection of the “machine-or-transformation” test in Bilski, and the rejection of the “teaching-suggestion-motivation” test in KSR. However, the Court’s current definition is such a bright-line rule, by making any natural relationship a de jure law of nature. A revised definition need not be perfect, only more in concert with current scientific theory and practice.

Australia, which still has issues with software patenting (developers of software oppose these, but they have little or no impact on the law), inherits a lot of the ills of the US patent system. One patent law firm from Australia asks, “Does Australia Have a (US-Style) Two-Step Test for Patent-Eligibility?” These systems are inherently different, but proponents of software patents (like the author in this case) try to assimilate them. To quote:

In its Mayo/Myriad/Alice series of cases, the US Supreme Court has established a two-step test in order to determine whether a claimed invention defines patent-eligible subject matter or not. In the first step, the claims are examined to determine whether they are ‘directed to’ a patent-ineligible concept, i.e. an abstract idea, law of nature or natural phenomenon. If not, then the subject matter of the invention is eligible for patenting. Otherwise, the analysis proceeds to step two, in which the claims are further analysed to determine whether or not they comprise some additional element, or combination of elements, that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’

That latter part alludes to the loophole often used inside the EPO or even in New Zealand. it often seems as though the USPTO gets more similar to what used to be the EPO while the EPO becomes more like the USPTO pre-Alice. In fact, some people theorise that Battistelli is trying to attract the bottom of the barrel by welcoming all the worst patent applications which even the USPTO would reject. This is a recipe for disaster.

As an aside, there is pressure to impose software patents on countries that don’t formally have them. For instance, the media in Taiwan says that the ITC “launches probe into alleged patent infringement by Advantech,” noting that based on “the complaint filed by Rockwell in August, the three accused firms violated the U.S. law by importing into the U.S. market and selling industrial control system software, systems using the same, and components that infringe upon patents…”

These are software patents by the sound of it. These threaten to embargo physical products from Taiwan, where some of the best products are made (in several sectors). So much for innovation… █

Summary: The unwanted elements of the patent system (as it stands at present) illuminated by very recent news and patent court cases

WE sometimes worry that our growing focus on the EPO has distracted somewhat from the patent quality problems at the USPTO. We spend an enormous amount of time looking into patent news from all around the world and occasionally something catches our eye that needs a quick comment but not a comprehensive rebuttal. Herein we lay out some recent patent news, with or without further comment.

Disclosure Requirements

“Patents cannot be used defensively, only as means of retaliation (M.A.D.) so that both sides suffer and only lawyers win (they profit from patent wars irrespective of the outcome).”When it comes to patents, rules vary wildly depending on the country. Here we have Switzerland-based site praising its own country on patents, but it’s only part of the story because for a rich country to have a lot of patents makes a lot of fiscal sense, for reasons we explained last month. The Swiss patent system and the role of Switzerland in the EPO requires taking into account Switzerland’s rather unique economy.

Mobile Patents

According to the patents-centric media, Judge Koh, probably best known in recent years for her involvement in Apple and Samsung trials, is still going strong. “The Senate Judiciary Committee on Thursday voted 13-7 to approve the nomination of U.S. District Judge Lucy Koh to the Ninth Circuit,” says this report.

One article, this one coming from a niche Web site, wrongly assumes that ‘app’ (buzzword, usually meaning software for mobile devices) development requires patents. If you develop a mobile ‘app’ and waste time/effort worrying about patents on software, then you’re probably doing it wrong and wasting resources. Patents cannot be used defensively, only as means of retaliation (M.A.D.) so that both sides suffer and only lawyers win (they profit from patent wars irrespective of the outcome). Deterrence using patents does not exist when trolls are involved.

“Microsoft had extorted HTC using patents as well; HTC chose to settle to avoid legal action and potential embargoes.”“Apple Was Hit with a $22M Verdict for Infringing an Acacia Patent,” wrote a patent attorney the other day. Acacia is a Microsoft-connected patent troll. As for Apple, when it sued HTC 6 years ago it showed that it too was quite a patent bully. “According to the complaint,” says another new report, HTC is being sued again and “the plaintiff [Infogation] alleges that Infogation Corp. suffered damages to its business from having its patent infringed. The plaintiff holds HTC Corp. and HTC America Inc. responsible because the defendants allegedly manufacture and distribute mobile phones containing software that infringes the plaintiff’s patents.”

They just can’t leave HTC alone, can they? Microsoft had extorted HTC using patents as well; HTC chose to settle to avoid legal action and potential embargoes. Speaking of embargoes (or injunctions), another example of the ITC being exploited for embargoes (using patent allegations before even a proper trial) can be seen in this new press release. So much for promoting innovation, eh? Promoting racketeering maybe… Microsoft has used the ITC for embargoes using patents for nearly a decade now.

“What’s a Patent Worth?”

“Patents are a lot like financial bubbles and are also an instrument of tax evasion some of the time.”That’s the headline of this article which says: “When a technology business fails, and the flesh of the going concern is stripped away, often the only thing that remains is a paper skeleton of potentially valuable patents. In 2011, Nortel Networks’ patent portfolio of wireless technology patents sold for $4.5 billion. A few years later in 2013, Kodak’s portfolio of digital imaging patents brought in $525 million. Now, Yahoo’s patent portfolio of nearly 3,000 patents is on the block, and experts estimate that it could sell for $1 billion. While “expert” valuations are not always accurate, (Nortel’s portfolio was initially valued at $1 billion, and Kodak’s portfolio was initially valued at $2.2-2.6 million; see http://spectrum.ieee.org/at-work/innovation/the-lowballing-of-kodaks-patent-portfolio) the estimates for Yahoo’s portfolio work out to more than $300,000 per patent, well in excess of the cost of acquisition.”

As we explained before, Yahoo’s patents are mostly software patents, thus they’re pretty worthless right now (after Alice).

Patents are a lot like financial bubbles and are also an instrument of tax evasion some of the time.

Hartig Drug Co. v Senju Pharmaceutical Co.

“Microsoft does this a lot to vendors that sell GNU/Linux, Chrome OS, and Android devices. It’s a form of extortion, depending on how it’s done and how severe the threats are, quality of patents (if disclosed) aside.”A patent maximalism site said about a fortnight ago: “Perhaps one of the most influential first year law school classes for the task of learning how to “think like a lawyer” is civil procedure. Particularly when the professor is bold enough to engage students on the intricacies of the topic, its intricacies can make for a challenging final exam. These experiences should come to mind for many antitrust lawyers when considering the Third Circuit’s decision in Hartig Drug Co. v. Senju Pharmaceutical Co., where the Court applied subject matter jurisdiction principles to reverse a District Court’s dismissal of Hartig’s antitrust allegations on the pleadings.”

Notice the antitrust element of it. It’s quite common when it comes to patent monopolies.

Asetek v AVC

“Patent lawyers say we need to respect patents, but they sure don’t respect copyrights some of the time.”This recent coverage of a case involving patents on cooling systems is also noteworthy. To quote: “The Asetek patents cover liquid cooling systems used to cool integrated circuits (such as those on a computer). Over the past several years, Asetek has sued several competitors for infringing the patents including CoolIT and Cooler Master. In 2014, Asetek sent AVC a letter accusing the company of infringing — however the letter mistakenly accuesd AVC of manufacturing the Liqmax 120s (it does not). After some letters back-and-forth, Asetek eventually sent a letter that it “believes that AVC is likely selling other infringing products in the United States.” After an unsuccessful meeting, AVC filed its declaratory judgment action. The question is whether these facts are sufficient to show an actual controversy between the parties.”

So this can formally become a lawsuit pretty soon, unless money is coughed out in pre-trial settlement. This too often turns out to be of an antitrust nature. Microsoft does this a lot to vendors that sell GNU/Linux, Chrome OS, and Android devices. It’s a form of extortion, depending on how it’s done and how severe the threats are, quality of patents (if disclosed) aside.

Stryker v Zimmer

Earlier this month we found some coverage of the case at MIP which explained: “The Federal Circuit has affirmed the jury’s finding of wilful infringement but vacated and remanded the district court’s award of treble damages, in its Stryker v Zimmer decision”

“Patent lawyers are so dishonest about so-called innovation, so why not plagiarise too?”We wrote about Stryker/Halo in the past. “The jury awarded Striker [sic] $70 million in lost profits,” explains another site. “On appeal,” it added, “the Federal Circuit affirmed as to infringement, validity and damages. [...] Most of the new Stryker opinion involves a recitation of the Federal Circuit’s previous opinion affirming the district court as to infringement and validity. The last three pages, however, deal with the § 284 enhancement issue on remand. What’s interesting is that the Federal Circuit is maintaining its bifurcated approach to enhancement of damages, first requiring a predicate willfulness determination followed by the judge’s discretionary determination of whether and how much to enhance damages. This is essentially the same process as before. See i4i Ltd. Partnership v. Microsoft Corp., 598 F.3d 831 (2010). Pre-Halo, the second step of the process (the district judge’s determination of whether and how much to enhance damages) was a totality-of-the circumstances analysis that was reviewed for abuse of discretion (i.e.: basically the same as the court required in Halo). Id. The Federal Circuit’s post-Halo approach to enhancement involves the same two steps, with the exception that the willfulness determination itself is guided by the holding in Halo rather than requiring the two-element objective/subjective determination of Halo. (The enhancement determination is too, but it’s hard to see much difference there.) Under Halo, the subjective component alone can be enough to establish willfulness.”

This was very good news for patent trolls. It still is.

Patent Lawyers and Plagiarism

“It sure looks as though patent trolling is a ‘thing’ in east Asia right now…”Patent lawyers say we need to respect patents, but they sure don’t respect copyrights some of the time. There is even plagiarism reported and potentially a lawsuit to provide evidence of it. “This creates some very interesting problems for lawyers,” said a patents pundit, “and calls to my mind the case a few years ago where a patent prosecutor was sued for using language from a patent in a specification for another client. I’m not a copyright lawyer, and so just raise this case for you to think.”

Patent lawyers are so dishonest about so-called innovation, so why not plagiarise too? Another article by Dennis Crouch speaks of patent malpractice today. It’s part of an outline of upcoming SCOTUS cases. To quote the introduction:

The Supreme Court will begin granting and denying petitions in early October. Meanwhile, several new petitions are now on file. Last week I wrote about the TC Heartland case as a mechanism for limiting venue. Without any good reason, the Federal Circuit overruled a 1957 Supreme Court case that had strictly limited patent venue as spelled out in the patent venue statute 1400(b). See VE Holdings (explaining its overruling of Fourco Glass). A result of VE Holdings is the expansive venue availability that facilitated the rise of E.D. Texas as the most popular patent venue. TC Heartland simply asks the Supreme Court reassert its Fourco holding – something that could almost be done with a one-line opinion: “REVERSED. See Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957).” The best arguments for the Federal Circuit’s approach are (1) the reasoning of Fourco itself is a bit dodgy; and (2) VE Holdings is well settled doctrine (decided 26 years ago) and Congress has revised the statutory provisions several times without amending. As a side note, several members of Congress have suggested they will act legislatively if SCOTUS fails to act.

Two new petitions (Grunenthal v. Teva and Purdue v. Epic) stem from the same Federal Circuit OxyContin case and focus on anticipation and obviousness respectively. Grunenthal v. Teva questions how ‘inherently’ operates for anticipation purposes. Purdue suggests that – despite the final sentence of Section 103, that the actual circumstances of the invention should be available to help prove non-obviousness (but still not be available to prove obviousness). Another new petition includes the BPCIA case Apotex v. Amgen that serves as a complement to the pending Sandoz case questioning the requirements and benefits of providing notice of commercial marketing.

USPTO is Getting Sued Again

“What they mean by “monetisation” is shakedown or a gentle form of blackmail.”Last week we wrote about fraud at the USPTO, or examiners defrauding taxpayers as Florian Müller and others chose to frame it. According to this article, the USPTO has another embarrassment to cope with. To quote: “In Hyatt v. USPTO, Civ. No. 16-1490 (D.Nevada, Filed June 22, 2016), Hyatt asks for injunctive relief to stop the PTO from repeatedly ‘reopening prosecution’ in his cases and consequently shielding the cases from judicial review by either the PTAB or Article III courts. Hyatt is experiencing the common reality of examiners reopening prosecution once an appeal brief is filed.”

The Ts: Patent Tax and Trolls

“Well, patents on corn oil extraction are deemed invalid by a court, probably because the USPTO just issues a patent for every piece of paper that comes in, leaving courts to clean up their mess.”In recent weeks we wrote about what had happened in east Asia, where patent trolling is becoming an epidemic. It sure looks as though patent trolling is a ‘thing’ in east Asia right now and here is IAM writing about a new non-practicing entity (IAM would never use the T word). To quote: “Just over a month since display maker Sharp came under the formal control of Hon Hai Precision Industry (Foxconn), big changes to its IP operations are already in the offing. Nikkei Asian Review reported on Tuesday that the Japanese company’s IP function would be hived off into a separate IP management company on October 3rd, with one goal being to create more value from Sharp’s massive global patent portfolio. Speaking exclusively to IAM, Foxconn IP chief YP Jou confirmed how the responsibilities for the Sharp portfolio will be divided within the sprawling Foxconn IP apparatus, and revealed the team’s priority when it comes to monetisation.”

What they mean by “monetisation” is shakedown or a gentle form of blackmail. Speaking of so-called ‘monetisation’, this new report says that “[f]ive big holders of cellular patents, including Qualcomm Inc., are joining an effort proposed by Ericsson AB to jointly license patents in an emerging field called the Internet of Things.”

“Some person with an MBA spreads some myths about patents right now, as if companies just can’t do without them.”Here comes the patent tax to surveillance of all Things (IoT). “Qualcomm has long derived a chunk of their revenue from licensing,” said this one person, “so this isn’t a big change for them.”

Qualcomm also came under heavy regulatory scrutiny for it. Watch what IAM wrote about this. These guys are looking at the surveillance of all Things (IoT) only from the point of view of patents; yes, patents alone.

Patents on Corny Stuff

“Unless we get engineers to enter the political systems, we’ll continue to have lawyers with their lawyer buddies from college writing laws, including patent laws.”Well, patents on corn oil extraction are deemed invalid by a court, probably because the USPTO just issues a patent for every piece of paper that comes in, leaving courts to clean up their mess. This new press release says that “GreenShift Corporation (OTCQB: GERS) provided an update regarding the ongoing patent infringement action involving GreenShift’s subsidiary, GS CleanTech Corporation (“CleanTech”), and its corn oil extraction patents.”

Corporate Domination of IP [sic] Law

Some person with an MBA spreads some myths about patents right now, as if companies just can’t do without them. Watch the corporate sob story: “It’s clear the current system is working for no one except those who want money for nothing. America’s inventive spirit has been the lifeblood of our economic growth for generations, moving us from horse-drawn carriages to electric cars in just over a century. Missteps by the courts, Congress, and the Patent Office have threatened to drive that underground, unwittingly rewarding a few large corporations happy to profit off the work of others at no cost to themselves. That’s not the American way.”

“…TPP threatens to spread software patents almost everywhere. It is a truly villainous back room deal and it should be crushed.”What he is trying to say is that people accused of infringement “want money for nothing” and that it’s the “American way” to give large companies monopolies, so as to prevent others from competing. He advocates protectionism, not an American way. Unless we get engineers to enter the political systems, we’ll continue to have lawyers with their lawyer buddies from college writing laws, including patent laws. It’s the sad truth. Here is another new lawyers’ congregation (EPIP) where they speak ‘on behalf’ of inventors, developers etc. Notice the “IP” in the event’s name. The notion of so-called ‘IP’ (an umbrella for several totally separate things) helps mislead people into equating patents with copyrights and secrets; this event wasn’t about patents as it covered other aspects of so-called ‘IP’ (an umbrella for several totally separate things) and when people say “IP” we should always ask them to be specific. IP means nothing; copyrights, trademarks, patents and trade secrets do. Here is how EPIP started: “The plenary session kicked off with Professor Rochelle Dreyfuss highlighting the expansion of trade secrets protection globally, and the worrying potential unintended consequences. There are increasing concerns that trade secrets and economic espionage law in the US is being used to racially profile researchers. (Interesting coverage on the targeting of Chinese-American researchers here.) Dreyfuss discussed the potential negative impact of non-compete clauses on innovation, employees and economic growth. She argued that criminalisation related to trade secrets generates an especially strong chilling effect as high-tech workers are unwilling to risk incarceration. Dreyfuss also observed that TPP (Trans Pacific Partnership) does not create a minimum trade secrets standard, and is trying to express a new norm that information shouldn’t be free.”

Just to remind readers, TPP threatens to spread software patents almost everywhere. It is a truly villainous back room deal and it should be crushed. █