07.10.17

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Patent Trolls Roundup: GPNE, Blackbird Technologies, Uniloc and More

Posted in America, Apple, Google, Microsoft, Patents at 12:30 am by Dr. Roy Schestowitz

This is no “David versus Goliath” myth but a case of parasites versus companies that actually produce stuff

Ducks

Summary: A condensed summary of cases and news coverage pertaining to patent trolls in the United States

“TROLL” is a derogatory term. So is the term “shark”, as in “patent shark”. But considering what patent trolls are doing, derogatory terms are very much deserved and justified. I occasionally hear from victims of trolls and they are too afraid to speak about their experiences publicly. It ruins their lives, not just their businesses, their projects (sometimes hobbies) etc. Today we summarise some of the recent troll cases that we have not found time to cover. All of them rely on patents granted by the USPTO, notably software patents.

GPNE

The trolls-friendly IAM, citing the GPNE troll, says that China is quickly becoming attractive to patent trolls, just like we expected. China is nowadays mimicking or copying the worst elements of the US patent system and is sometimes dragging companies to courts in Texas. We say “China” because some of these companies are government-connected.

IAM, as usual, calls patent-trolling “monetisation”. “Given the tough monetisation climate,” it says, “particularly in the US,” some of these parasitic companies go elsewhere.

Well, we certainly hope that they’ll stay out of Europe and preferably out of business altogether.

Patent Trolls in the Mainstream

Not only sites that primarily cover patents write about trolls. “Why we stepped up to the patent troll problem,” for example, is a press article that surfaced quite recently. As trolls are the source of most software patents litigation, some would rather speak about the plaintiff, not the patent/s. “Entrepreneurs don’t pour all their energy into building startups just to have a patent assertion entity (PAE, or patent troll) attack them with patents of questionable quality,” it says. “That is, unfortunately, a very common patent troll story. The PAE problem is big and growing, posing a threat to startups and established companies alike, costing companies millions in defensive litigation fees and diverting money that would be better spent on innovation.”

There is a part there about OIN as well: “Open Invention Network (OIN) is another solution. Members agree not to sue other members for patent infringement on Linux (though they can still engage in patent litigation with other OIN members for infringement for things built on Linux). In exchange, members get the same promise from other members and a license to OINs portfolio of 100s of patents. Along with LOT, membership in these networks is not only good for individual companies, but also for the tech industry as a whole.”

The article comes from Michael Meehan, a director of IP at Uber, and may be a copy of an article elsewhere.

Also worth highlighting is Zoho’s blog post titled “Supreme Court Ruling Bolsters Zoho’s Stand Against Patent Trolls” — an article which celebrated TC Heartland and said:

Yesterday, the Supreme Court dealt a major blow to patent trolls all across the U.S. For decades, technology companies have been an easy target for frivolous patent suits. Arguing that most judges don’t have the technical expertise to preside over most software patent cases, predatory litigants have managed to shift more and more cases to a single federal court system: the Eastern District of Texas. As a measure of how skewed IP litigation has become, this rural court, seen by many as “friendly” to plaintiffs, presided over 44% of all patent disputes in 2015.

We wrote about TC Heartland yesterday, hopefully for the last time.

Codec FUD

Going almost a couple of months back, BAMTech’s CTO said something quite odd. He, like Steve Jobs, was relaying patent trolls’ FUD. He wants us to think that paying a cartel or patent trolls is safer than Free software.

According to the report, “Inzerillo said open-source codecs are “really tough” because on one hand, they’re royalty-free, but on the other, none have been tested, meaning they could result in a lawsuit if they’re eventually found to infringe. He added that becoming embroiled in a lawsuit could be more expensive than licensing a codec like HEVC.”

Well, how often have such lawsuits actually happened?

Blackbird Technologies

One patent troll that emerged again this summer was Blackbird Technologies, which we wrote about back in May. “The Patent Troll’s New Clothes” was one among many articles about it, noting that “Blackbird was formed in 2014 by attorneys” and that it had nothing to do with invention, just extortion with software patents. As this one article from someone who knows them personally put it:

Blackbird was formed in 2014 by attorneys who worked for two major law firms. Everyone involved in Blackbird used to work on the defensive side of patent litigation; often, they were defending their clients against trolls. (A disclaimer: I used to work with some of the Blackbird attorneys, and I think well of them personally, despite their descent under the bridge.)

A new puff piece about this troll was published yesterday in the US media and said this:

So Freeman and Verlander founded Blackbird Technologies. The lyrics of the iconic Beatles song suggested rebirth to them, and they hoped to resurrect lifeless patents. (Also, every conceivable spelling of “phoenix” was taken.) Unlike a ​ traditional law firm, Blackbird is structured as a limited liability company, not a partnership, and it has no clients. Instead, it acquires patents from inventors or small businesses. Blackbird then sues companies for patent infringement on its own behalf, and it shares an unspecified percentage of any settlement or judgment with the original patent owner.

Blackbird filed 107 lawsuits between September 2014 and May, including against Amazon, Fitbit, Netflix and kCura, a Chicago company that makes software used by law firms. It has settled with Amazon; the kCura case has moved to private mediation. The cases against Fitbit and Netflix are ongoing.

We first wrote about this troll in relation to one particular lawsuit, but it’s actually going after quite a few companies. Patently-O wrote about it back in May, calling these patent trolls “Patent Assertion Entities” and noting that “there are other entities like this, but if so they haven’t made the boom that this one has. Blackbird Technologies was founded by former big-firm (WilmerHale, Kirkland Ellis) patent litigators. It buys (or somehow obtains rights to assert) patents and asserts them with its own in-house staff of litigators. Its “news” page reports a number of suits — at least 100 in its short life — and reports that it settled many.”

We hope that the underlying patents will be quashed. In some of the Blackbird Technologies cases there are already motions to that effect.

ContentGuard

Last year when we mentioned ContentGuard we did not delve into the details, albeit Patent Progress ran a long series about it last month [1, 2, 3, 4]. The site “went through the history of the ContentGuard v. Apple and ContentGuard v. Google cases [and] talked briefly about the Markman process [going] into more detail on what Markman is, how it works, how Markman affected the ContentGuard cases, and why it’s such an important issue in patent litigation in general.”

These cases are relevant due to reaching the Court of Appeals for the Federal Circuit (CAFC), so we shall keep an eye on these.

ContentGuard was first mentioned here about 8 years in relation to Microsoft.

Uniloc

Uniloc is so prolific a patent troll (best known for its cases against Microsoft) that we have a Wiki page about it and dozens of articles.

Having already got money out of Microsoft, this troll “is scrambling to keep Google and other big tech defendants in East Texas federal courts,” says this report. “Uniloc filed a brand-new complaint (PDF) last week, which spends twice as much time describing Google’s ties to Texas as it does explaining how Google supposedly infringes two Uniloc patents, numbered 8,995,433 and 7,535,890. The patents, entitled “System and Method for VoIP messaging,” describe sending instant messages and voice messages over the Internet.”

This could become trickier after TC Heartland. Uniloc is also going after Apple as “Uniloc alleges that Apple infringes upon its patents with AirPlay, autodial, and battery charging,” said a recent report from a Mac-oriented news site. Patent Progress wrote about this as well. To quote: “Uniloc filed a set of lawsuits against Google based on a set of VoIP patents back in March in the Eastern District. After TC Heartland, however, their original complaint would have been totally deficient—there simply wasn’t any information in it that would support venue being proper in the Eastern District.”

Yes, this may be a good example of TC Heartland at work. In July, or at the very end of June, Mac-oriented news sites were still writing about it. These software patents generally affect phones, too, including Android devices, and there are many lawsuits. Uniloc targeted Google directly and the filings (as PDF) got mentioned quite a while back. To quote a patent maximalist: “Next battleground for #patents, venue: https://www.patentprogress.org/wp-content/uploads/2017/06/Uniloc-v.-Google-Complaint.pdf … IMO ecommerce cos have regular/established place of biz: each user browser”

“Microsoft used that trick against TomTom to be able to litigate where they wanted,” Benjamin Henrion responded to him. The EFF too is watching this case. As the EFF’s Nazer put it at the time, “Uniloc sued Google in EDTX yesterday. The patent troll tries, very very hard, to allege venue under TC Heartland…”

We’ll keep en eye on that case.

Universal Secure Registry

Here’s a new name: Universal Secure Registry.

We never wrote about it. New patent troll on the block?

Well, back in May it went after Apple, as reported by Apple-centric sites, corporate media and even this press release. This case too we intend to keep an eye on.

The bottom line is, the terrain is becoming tougher for patent trolls, but they are still active. When we’re not busy writing about the EPO we’ll definitely report about patent trolls. They ought to go extinct because they’re an anathema (or antithetical) to the patent system as it was first envisioned.

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