Bonum Certa Men Certa

Patent Troll Finjan Manages to Defend a Patent (on Appeal) and the Trolls' Lobby is Loving It

Todd M. HughesSummary: Blue Coat (now owned by Symantec) has attempted -- and failed -- to invalidate all of Finjan's patents using Section 101/Alice; those who are in the business of trolling view that as particularly good news because the judgment came from Timothy Dyk and Todd Hughes (much younger and appointed a few years ago)

THE USPTO had granted software patents far too easily before Alice, so in recent years we saw a lot of patent trolling from the likes of Finjan (such trolling is drying up over time, owing to courts' decisions which repel further action).



The high-profile patent trolls and their supporters were glad to see that, for a change, after a case reached the Court of Appeals for the Federal Circuit (CAFC) the troll got its way. To give one example: "Finjan v Blue Coat Federal Circuit 1/10/18 reverses-in-part because as to 1 of 4 patents, patentee "failed to apportion damages to the infringing functionality"; court also agrees with def that "$8-per-user royalty rate was unsupported by substantial evidence."

"Just because Alice isn't applicable in certain cases doesn't mean much; sometimes that is just the case."Another one wrote: "The patentable subject matter ruling is interesting, and also because the opinion was authored by Judge Dyk, and joined by Judge Hughes, both of whom have a pronounced history of finding claims ineligible."

Another proponent of trolls called them "anti-patent jurists" (as if being selective or expecting high quality makes one "anti-patent"). "But didn't Dyk and Hughes," he said, "two of the most anti-patent jurists on the Federal Circuit decide that at least some claims were patent eligible under 101?"

"Turns out that this decision is likely to be cited a lot in the future."They try to personify it... at least they don't resort to sexual orientation slant like corporate media does [1, 2].

Just because Alice isn't applicable in certain cases doesn't mean much; sometimes that is just the case. "Section 101" isn't always a winning argument, obviously...

Media of the patent microcosm covered this 3 days ago. It said:

The U.S. Court of Appeals for the Federal Circuit on Wednesday upset a $39.5 million award in long-running patent litigation between Finjan Inc. and Blue Coat Systems Inc., causing a San Jose federal judge to throw the brakes on another ongoing trial between the cybersecurity rivals.


Turns out that this decision is likely to be cited a lot in the future. "Finjan v Blue Coat Syst (Fed. Cir. 2018) PRECEDENTIAL," said the above person. "Claims Directed to Computer Virus Detection Held Patent Eligible under 101; Other Issues in Decision: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2520.Opinion.1-8-2018.1.PDF …"

"Finjan sued the enabler of the EPO's police state (surveillance and censorship), but we ought to leave that aspect aside in the context of patents."We don't have much sympathy for Blue Coat in particular; what we see here one evil firm against another evil company (the latter at least makes and sells something). Finjan sued the enabler of the EPO's police state (surveillance and censorship), but we ought to leave that aspect aside in the context of patents.

Nicole R. Townes and Daniel Kiang from Knobbe Martens took the time to write about it. "After a bench trial," they said, "the district court concluded that one of the asserted patents is directed to patent-eligible subject matter under Section 101."

CAFC did not agree about all 4 patents. This is the key part: "With respect to patent-eligibility, the Federal Circuit affirmed the district court’s finding that the claims were not directed toward an abstract idea for two reasons. First, the claims were drawn to behavior-based virus scanning which analyzes a downloadable’s code and determines whether it performs potentially dangerous or unwanted operations. This was different than the traditional method of code-matching virus scanning. The Federal Circuit determined that this was an improvement in computer functionality. Second, the results of the behavior-based virus scan are attached to a new type of file which enables a computer security system to perform tasks that it could not do before. Also, the claims recited more than a mere result and provided specific steps of generating a security profile that identifies suspicious code and links it to a downloadable."

That's just software patents.

There might even be another trial. To quote: "The Federal Circuit found that Finjan failed to present a damages case for one of the asserted patents that could support the jury’s verdict and remanded for a determination of whether Finjan waived its right to establish reasonable royalty damages under a new theory and whether to order a new trial on damages."

"IBM -- like Microsoft -- is literally in the business of fueling patent trolls these days."What is also interesting about this case is that there are ramifications for Symantec (Finjan is suing just about the whole security industry, except Microsoft, as it is deeply connected to Finjan).

The Symantec connection is explained here in relation to another Microsoft-connected troll, Intellectual Ventures.

The year's first substantive patent-eligibility decision from the Federal Circuit is a rare victory for the patentee. It is also further evidence that the outcome of an eligibility analysis may be more dependent upon how the analysis is carried out than the actual language of the claims under review.

[...]

The Court began by distinguishing Finjan's claim with those of Intellectual Ventures I LLC v. Symantec Corp., where the Court concluded that "by itself, virus screening is well-known and constitutes an abstract idea." Particularly, claim 1 (as construed) requires that "the security profile includes details about the suspicious code in the received downloadable, such as . . . all potentially hostile or suspicious code operations that may be attempted by the Downloadable." Thus, "[t]he security profile must include the information about potentially hostile operations produced by a behavior-based virus scan." In this light, the claimed invention is distinguishable from traditional virus scans that look for previously identified patterns of suspicious code in executable programs.



Here's a new report which suggests that the above possibley leads to mistrial:

A California federal judge on Wednesday granted Symantec unit Blue Coat’s request for a mistrial in a cybersecurity patent infringement case brought by Finjan, saying a just-issued Federal Circuit decision striking damages in a related case called for a fresh jury, free from certain impressions about damages and willfulness issues.

The presiding judge said she agreed with concerns expressed by Symantec-acquired Blue Coat Systems that the Federal Circuit's opinion in the prior case affects many of the issues that have been discussed in the current trial...


As we noted in our previous post, IBM was helping the troll last year. IBM -- like Microsoft -- is literally in the business of fueling patent trolls these days. When these trolls are indebted to IBM and Microsoft they will sue neither; instead, they're more likely to sue IBM's and Microsoft's competitors. That may be an implicit if not explicit part of their agreement.

Recent Techrights' Posts

The Gerstnerisation of Microsoft: Seventh Wave of Microsoft Layoffs (Over 20,000 to be Cut) Allegedly Going to Start Shortly, Probably Start of Next Week, Microsoft Spreads Chaff and Noise Before the Big Axes Fall
we might be looking at about 50,000 people that Microsoft gets rid of this year
GNU (and the FSF) Still Changing the World
Today, in 2025, GNU powers almost everything
Military-Grade Anti-Linux Microsoft Propaganda Using Microsoft LLMs in Fake 'News' Sites (Slopfarms)
This is part of a pattern
Rust is Starting to Seem More Like Microsoft-hosted "Digital Maoism", Not a Legitimate Effort to Improve Security
Maybe this is very innocent, but they seem to have taken a solid, stable program from a high-profile Frenchman and looked for ways to marry it with GitHub, i.e. Microsoft/NSA
 
European Patent Office (EPO) Faked "Revenue Expansion" by Granting Loads of Invalid, Illegal Patents; Staff Still Wants to Know Where That Money Went
Only about 30% of the EPO's patents are for EU entities/people
Links 09/05/2025: TeleMessage Blunder, More Distractions From Impending Mass Layoffs at Microsoft
Links for the day
Links 09/05/2025: Analog Computer and First time at FOSDEM
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 08, 2025
IRC logs for Thursday, May 08, 2025
Links 08/05/2025: Mass Layoffs at Google Again, India/Pakistan Tensions Continue to Grow, New Pope (US) Selected
Links for the day
"Victory Day" - Part I: That is the Day Microsofters Who Assault Women Pay for Their Actions in Foreign Land (Using "Guns for Hire" Who Attack Their Own Country for American Dollars)
Adding a friend from Microsoft to the docket didn't help
Gemini Links 08/05/2025: Practical Gemini Use Case, Shutdown of the Blanket Fort Webring
Links for the day
Links 08/05/2025: "Slop Presidency", US Government Defunds Public Broadcasting
Links for the day
Lasse Fister, Organiser of Libre Graphics Meeting, Points Out the Code of Conduct is Likely Violated by the Same People Who Promote Codes of Conduct (and Then Bully Him Into Cancelling a Keynote)
I am starting to see Lasse Fister as another victim
LLM Slop Attacks Not Only Sites of Free Software Projects But Also Bug Reporting Systems (Time-wasting, in Effect "DDoS")
Microsoft, the leading purveyor and promoter of slop, is a cancer
The Richard Stallman (RMS) "European Tour" Carries on In Spite of the Nuremberg Incident
Some people spoke about how they saw yesterday's talk
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 07, 2025
IRC logs for Wednesday, May 07, 2025
The CoC Means the Founder of GNU/Linux Cannot Talk and a 72-Year-Old Man With Cancer is Somehow a "Safety" Risk?
Those who don't like RMS are not forced to attend his talks
Gemini Links 07/05/2025: A Shopping Spree and Digital Gardening
Links for the day
Links 07/05/2025: Pegasus Guilty and a Path Towards EU Without Russian Energy
Links for the day
People Used to Talk
If pets can live a measurably happy life without gadgets and "apps", why can't humans?
Outsourcing GNU/Linux to Microsoft GitHub Promoted by Microsoft LLM Slop and Army Officers
Something doesn't seem right
Weaponisation of For-Profit Dockets - Part III: No More Media Lawsuits From Brett Wilson LLP This Year, One Can Only Guess Why
People leak a lot of material to Techrights because they know, based on the track record, that the sources will be protected and whatever gets published will stay online, in full, no matter how stubborn an effort (even lawsuits and blackmail) will be sent its way
Gemini Links 07/05/2025: Adopting GrapheneOS, Further Enshittification of Flickr
Links for the day
Links 07/05/2025: CISA Gutted, Debt-Saddled (Likely Insolvent) 'Open' 'AI' (Proprietary Slop) Faking Its Financial State Again
Links for the day
Finland, Lithuania, and Latvia Fortify Their Digital Border With GNU/Linux
This month's data from statCounter is particularly interesting near the Baltic Sea
The European Patent Office (EPO) Has a Very Profound Corruption Issue, Far More Urgent an Issue Than Pronouns
a rather long document
Richard Stallman Gives Public Talk at Technical University of Liberec, Czech Republic
"For programs that you could run, and for network services that could do your own computing, under what circumstances is it reasonable to trust them?"
Today We Turn 18.5
The eighteenth "and a half" anniversary
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, May 06, 2025
IRC logs for Tuesday, May 06, 2025