07.08.17

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Patent Trolls Are Still a Problem, But Microsoft Remains One of the Biggest Patent Trolls (Non-Practicing in Mobile)

Posted in Microsoft, Patents at 5:57 pm by Dr. Roy Schestowitz

Related: Patent Trolls of Microsoft and Ericsson Are Trying to Tax Everything, Especially Linux Devices

Summary: How Microsoft, together with non-practicing entities such as Intellectual Ventures and the nearly-defunct Nokia, continues to tax Android/Linux using patents — even in areas where Microsoft does not operate anymore

Patent trolls are still using as their principal source of ammunition patents granted by the USPTO. Most of these patents are software patents. Their arsenals vary in terms of size, but since nobody can sue a troll (nothing to sue over), one patent may be enough for the trolls to operate without risk of retribution (notably countersuit). Use of patents in bulk, moreover, overwhelms the defendant with “targets”, raising the cost of a legal fight and rendering out-of-court settlement more attractive an option (see Microsoft v Samsung in 2015). That’s just what Microsoft does to discourage legal challenge. Sometimes Microsoft simply attacks indirectly, via some well-funded, e.g. by Microsoft and Bill Gates, patent troll (it has plenty of such tentacles, including an in-house one).

“It’s a global problem because many businesses operate in the US, even if they’re not based in the US. This makes them susceptible to lawsuits.”The problem of US patent trolls isn’t compartmentalised. It’s a global problem because many businesses operate in the US, even if they’re not based in the US. This makes them susceptible to lawsuits. That includes companies in the far east — just about as far as it gets from the US.

There are many articles about trolls, but not about software patents. We’ll soon cover some of these articles and add our remarks on them. A new article, this one behind a paywall in Australia, says that “Patent trolls trawl for business” and starts as follows:

What better way to start the new financial year than with a cautionary tale about vexatious litigation.

There’s only one thing I fear more than getting the facts wrong and that’s getting embroiled in legal action, which I’m sure is the same for most professionals.

I have heard of quite a few companies that suffered from patent trolls. There are many thousands of such companies out there; some don’t speak about it for fear of retribution from trolls. They just pay the ‘protection’ money and try to move on. They also don’t want to signal that they’ll willing to shell out cash for trolls, as that too can make them an attractive target.

“Microsoft is trying to impose bundling (e.g. of Microsoft ‘apps’ inside Android) using patent threats, with forced sales of patents to soften the appearance or the nature of additional payments.”When the term “patent troll” is used many typically think of small entities, but not giant trolls such as the Microsoft-connected Intellectual Ventures or even the Microsoft-connected Nokia, which Microsoft now uses to relay patents to relatively big patent trolls. Microsoft is trying to impose bundling (e.g. of Microsoft ‘apps’ inside Android) using patent threats, with forced sales of patents to soften the appearance or the nature of additional payments. We wrote about it some days ago in relation to Nokia and a couple of days ago we stumbled upon the obligatory revisionism from IAM (the voice of patent trolls) — the same sort of revisionism it repeated endlessly after Microsoft had done it to Xiaomi. Regarding patent shakedowns by Nokia and Microsoft, this is what IAM wrote:

In last year’s Microsoft agreement, the 1,500 patents transferred quickly became the deal’s headline figure, an indication that Xiaomi wouldn’t shy away from major acquisitions as it sought to catch up to more established smartphone companies. It was seen as a measure that might allow the Chinese company to move ahead in its timeline for introducing mobile devices to the litigation-heavy markets of North America and Europe.

All that really happened was, Xiaomi paid Microsoft and in addition to that it was compelled to preload Microsoft ‘apps’. It was, as we explained at the time, yet another patent ‘settlement’. It was extortion. Microsoft was trolling. But it keeps embellishing the story (PR) over time….

We need to start recognising that patent trolls don’t need to have size as a criterion; rather, it’s the nature of their behaviour. In that sense, Microsoft is one heck of a patent troll these days. Its mobile business is virtually non-existent, so Microsoft just goes preying on companies that distribute Android. It wishes to make billions of dollars by just threatening companies with litigation.

“…Microsoft is one heck of a patent troll these days. Its mobile business is virtually non-existent, so Microsoft just goes preying on companies that distribute Android.”Not too long ago an article was published about the “growing disparity between NPE [trolls] and practicing entity patent damages” — an article based on a so-called ‘study’ from PwC, a paid liar for Battistelli*.

Can we trust anything PwC says about patent trolls (referred to by euphemisms)? “PwC’s 2017 Patent Litigation Study highlights a number of interesting US trends,” Managing IP wrote, “including the increasing gap between NPE and practicing entity damages and the top 10 awards ever…”

Well, by criteria such as “practicing”, Microsoft now qualities as a patent troll because it’s not practicing in the area of mobile. What will it take for more people to recognise that Microsoft too has been reduced to “patent troll” status (and a profitable one at that)?
_______
* There is a lot to be said about the above, including the fact that EPO apologists keep referring as an authority to an EPO-funded ‘study’ which we repeatedly wrote about in the following past articles:

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