05.30.16

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Make Nothing, Sue Everybody: The Reality of Patent Trolls Increasingly Understood by the ‘Mainstream’

Posted in America, Patents at 5:11 am by Dr. Roy Schestowitz

PBS on trolls

Summary: New patent stories and even extensive coverage at PBS, which dedicated a whole program to these matters but failed to address the core issue, which is software patenting

IN A WORLD or a society so overly obsessed with brands the problem and overt hostility of patent trolls is hardly grasped by most people until some troll like VirnetX sues and wins against Apple (huge amount of money).

Earlier today a question arose: “When will Apple finally become a key player in the patent reform movement?”

The context was this article from a site that glamourises Apple patents (especially when Apple attacks other companies). It has just said: “The California Institute of Technology has filed a patent infringement lawsuit against Broadcom and Apple (and Avago Technologies owned by Broadcom). The patent infringement lawsuit concerns Apple’s iPhones beginning with the iPhone 5, the iPad, MacBook Air, Apple Watch and more. Apple’s use of Broadcom’s technology is using IRA/LDPC encoders and/or decoders invented by the California Institute of Technology. In this lawsuit, Apple is drawn in by virtue of using Broadcom Wi-Fi products. This week AirPort Extreme and Time Capsule were pulled from U.S. Apple Stores. Whether this is due to next-gen versions of these product arriving next month or complications related to this lawsuit is unknown at this time.”

“The subject of parasitic elements in the patent system is gradually becoming mainstream.”Apple likes software patents and other overly broad patents… until it gets sued itself, along with Broadcom in this case. We are not suggesting that the California Institute of Technology is a patent troll per se, but as we explained many times in the past (in relation to other US universities), the practice is using tax money or government subsidies to acquire patents and then make products artificially more expensive for everyone (by litigation or royalties) is neoconservative and growingly unjust. Some people make a killing, whereas the rest of the people pay the price.

The subject of parasitic elements in the patent system is gradually becoming mainstream. For instance, titled “U.S. innovators dogged by money-grubbing ‘patent trolls’,” this new show from PBS is summarised as follows: “The U.S. economy is driven by innovation, but unwelcome “patent trolls” are gunking up the system. Patent reform bills sit idle in Congress as the “trolls” set up companies for the sole purpose, critics say, of shaking down inventors while never creating anything. “We just have to write ‘em a check so they’ll go away,” says one disgusted app maker. Economics correspondent Paul Solman reports.”

Ante Wessels from FFII, writing about “software patent trolls” (combining patent trolls and software patents), remarked on the TTIP the other day as follows:

Citizens in Europe and elsewhere are harassed by software patent trolls, and experience issues regarding sequential innovation, remixing, and access to knowledge and culture. The FFII has argued that the EU should bring its IP law into line with human rights obligations. [4] TTIP may undermine this through exportation of EU law.

The Linux Foundation, which is well funded by patent aggressors (large ones) and software patents lobbyists, has become rather useless when it comes to activism against software patents. It did, however, publish two posts about Newegg’s fight against patent trolls [1, 2, 3, 4]. One is a video and another is an article that says: “As Lee Cheng explained in his keynote speech at the Collaboration Summit held March 29-31 in Lake Tahoe, California, fighting patent trolls as part of his job at Newegg Inc. is a natural progression from his earliest legal involvement in civil rights advocacy.”

“Some circles fail not only to attribute this to software patents but also won’t mention patent trolls.”It is worth noting that Newegg deals with software patents in this case. This is very typical and this debate ought to focus on software patents, not patent trolls.

A large Web site for realtors covered the matter just under a week ago and noted that “NAR took a forceful step against patent trolls last week by filing a petition with the U.S. Patent Office challenging the validity of patent claims by a company that’s been threatening infringement lawsuits against several real estate companies.”

This, again, is about software patents. Some circles fail not only to attribute this to software patents but also won’t mention patent trolls. For example, not even once does IAM say "patent trolls" in relation to the Eastern District of Texas litigation, instead choosing to just remark on raw numbers and mentioning Alice as follows: “One of the stories of the year so far has undoubtedly been the dramatic fall in US patent litigation filings in the first quarter. There were 947 from the beginning of January until the end of March, down from 1,554 the year before. It seems likely that the introduction of heightened pleading requirements last December had an impact, as plaintiffs rushed to file new suits last November before the new rules were introduced. The first full year since the Supreme Court’s Alice decision may also have had an effect as potential plaintiffs become more accustomed to a far greater level of uncertainty in infringement litigation.”

“We continue to argue that the best way to tackle trolls is to limit patent scope, especially when it comes to abstract software ideas (as per Alice).”Those who spent resources accumulating data and charting this data regarding litigation are falling on deaf ears when it comes to IAM, which merely tries to garner sympathy for trolls this way and occasionally bashes Alice (grounds for invalidating software patents in the US).

IAM never speaks about trolls [1, 2], but it does mention “NPEs” in this other new piece: “Elsewhere, we explore how the growing threat of fee shifting is changing the calculations in US patent litigation and explain why NPEs now have no choice but to rethink their established business models. Look out too for our annual listing of every entity that owns 1,000-plus active US patents. With plenty more besides, including a special management report on issues affecting FRAND and standard-essential patents, subscribers will be kept busy right up until issue 79 appears at the end of July.”

Watch how IAM calls trolling “established business models.” It’s more like a Mafia’s modus operandi and IAM’s bias is rather revealing here.

We continue to argue that the best way to tackle trolls is to limit patent scope, especially when it comes to abstract software ideas (as per Alice).

“Members of Congress who are asked by lobbyists to annul or weaken Alice are essentially asked not only to disallow patent reform but to actively make matters worse.”“Presentation last week on Alicestorm patent eligibility forecast,” one person wrote, noting: “Lots of good data.”

“This is an extended an annotated version of my presentation at AIPLA Spring 2016 meeting,” wrote the author himself after he had spent a lot of time accumulating data and charting data about Alice invalidations (we covered this many times before).

Members of Congress who are asked by lobbyists to annul or weaken Alice are essentially asked not only to disallow patent reform but to actively make matters worse.

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