Patent battles

423 Comments

1. May 24, 2013 at 11:59 am

   Tomi Engdahl says:

   Microsoft Xbox 360 does not infringe Motorola patents, rules ITC
   http://www.theverge.com/2013/5/23/4360422/microsoft-xbox-360-did-not-infringe-motorola-patents-rules-itc

   The International Trade Commission has ruled that Microsoft did not infringe upon any Motorola Mobility patents with the Xbox 360. The decision represents the end of an investigation that stretches back to 2010.

   It’s a clear, decisive win for Microsoft — and just one more blow to Google-owned Motorola’s patent warfare ambitions. A judge in another case ruled just last month that Motorola’s patents were worth nowhere near what the company has sought in various legal battles.

   Reply
2. June 3, 2013 at 12:52 pm

   Tomi Engdahl says:

   Software Freedom Law Center effectively blesses Microsoft’s Android and Linux patent license deals
   http://www.fosspatents.com/2013/05/software-freedom-law-center-effectively.html

   After many years of fundamentalist opposition to patent licensing it appears that Free Software advocates have become more pragmatic and now, at long last, tend to appreciate the benefits of patent license agreements and recognize what they usually denied in “open standards” policy debates around the world: that FRAND licensing terms for patents that read on Free and Open Source Software (FOSS) can actually contribute to the freedom of software distributors and users.

   SFLC’s Senior Staff Counsel Aaron Williamson writes:

   “Because the patent license does not restrict those freedoms, but rather affords some new, limited protections to users and developers within the field of use, it improves on the current situation.”

   This is, in fact, a ringing endorsement of Microsoft’s patent license agreements with Android and Linux device makers (note that Android includes Linux, which is distributed under the Free Software Foundation’s GPL license).

   Last month ZTE became the 20th Android device maker known to have taken a royalty-bearing Android patent license from Microsoft, and Microsoft previously announced license deals involving non-Android variants of Linux (examples: Amazon, Brother, Casio, Kyocera, LG, Samsung).

   Of course, the terms of Microsoft’s agreements with Android/Linux device makers aren’t known — nor are the terms of Google’s agreement with 11 MPEG LA patent licensors.

   With a vocal part of the Free Software ecosystem agreeing that patent licenses are preferable over litigation, and confirming that patent licenses wich don’t result in a modification of software copyright licenses actually “afford[] some new, limited protections to users and developers within the field of use”, licensing is more popular than ever.

   Reply
3. June 5, 2013 at 3:08 pm

   Tomi Engdahl says:

   How Microsoft shattered Gnome’s unity with Windows 95
   Who needs prior art when you’ve got lawyers?
   http://www.theregister.co.uk/2013/06/03/thank_microsoft_for_linux_desktop_fail/

   There never will be a year when Linux conquers the desktop, because desktop computers are going to merge into tablet-style touch-driven devices and disappear. But desktop Linux was getting close, until Microsoft derailed it a few years back.

   Bootnote

   Hang on, though, aren’t most of these GNOME spin-offs very Windows-like? Aren’t they at risk?

   No, not any more. Microsoft has taken no legal action since 2007 and thus under the legal principle of laches it has forfeited the right to sue. Indeed, with Windows 8, the company itself moved away from the classic Start Menu-based desktop to a touch-oriented one.

   Doesn’t matter, though – the job was done by the time GNOME Shell and Unity came out. Meantime, it’s been good news for the Xfce and LXDE desktops, which are still picking up disgruntled GNOME 2 emigrés – meaning yet more fragmentation of the Linux community.

   Reply
4. June 10, 2013 at 11:55 am

   Tomi Engdahl says:

   Tech patents latest: Google, Cisco search pockets to sling $490m at TiVo
   There you go, no need to worry about that trial, eh?
   http://www.theregister.co.uk/2013/06/07/google_cisco_tivo_patent_settlement/

   Googorola and Cisco have settled their upcoming patent infringement trial with TiVo out of court, agreeing to pay the telly box firm $490m upfront.

   The patented technology in question covers the playing back of digital video that was recorded live, pausing said footage in the right place, and similar work; TiVo, a maker of digital video recorder boxes, has spent nearly a decade chasing companies it has accused of ripping off its designs.

   Today, TiVo said it had now straightened things out with Motorola Mobility, now owned by Google (2012 profit: $10.7bn), and Cisco (2012: $8bn) along with Time Warner Cable – and that it had agreed to “certain patent licensing arrangements” with Google and Cisco for an upfront lump sum of $490m.

   Reply
5. June 14, 2013 at 3:21 pm

   Tomi Engdahl says:

   Congress Proposes Strategy For Fighting Patent Trolls
   http://yro.slashdot.org/story/13/06/14/0318257/congress-proposes-strategy-for-fighting-patent-trolls

   “Congressman Charles Schumer has written a piece decrying the evils of patent trolls.”

   “Patent trolls cost U.S. companies $29 billion in 2011 alone.’ His solution? Make it easier for low quality patents to be re-examined and rejected by the patent office.”

   A Strategy for Combating Patent Trolls
   http://online.wsj.com/article/SB10001424127887323844804578531021238656366.html

   With so many weak patents being used just to get a payoff, it’s time to make patents stronger.

   Getting hit with a patent lawsuit is like being forced onto a highway that has only two exits, both of which exert a high toll. You can pay the plaintiff either as a settlement or in licensing fees, or you pay your lawyers to litigate the case and hopefully win. Because of the high cost of patent litigation—the average litigation defense costs a small or midsize company $1.75 million—it is often marginally cheaper for a defendant to pay up front to make the case go away. The average settlement for the same group of companies is $1.33 million.

   Reply
6. June 25, 2013 at 12:50 pm

   Tomi Engdahl says:

   One of the worst patents ever just got upheld in court
   http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/24/one-of-the-worst-patents-ever-just-got-upheld-in-court/

   Forget patenting an invention. These days, companies patent conceptual categories for future inventions.

   During the first dot-com boom, Amazon famously patented the concept of buying things online with one click. More recently, companies have patented concepts such as scanning documents to an e-mail account, clearing checks electronically and sending e-mail over a wireless network.

   The problem with these kinds of abstract patents is that lots of people will independently discover the same basic concept and infringe by accident. Then the original patent holder — who may not have come up with the concept first, or even turned the concept into a usable technology — can sue. That allows for the kind of abusive litigation that has been on the rise in recent years.

   A lawsuit over an Internet advertising patent offered a key appeals court an opportunity to rein in these abstract patents. Instead, the court gave such patents its endorsement on Friday, setting the stage for rampant patent litigation to continue unchecked.

   A firm called Ultramercial claims to have invented the concept of showing a customer an ad instead of charging for content. The company has sought royalties from a number of Web sites, including Hulu and YouTube.

   If you build a Web site that follows the general business strategy claimed by the patent, Ultramercial thinks you owe them money.

   The Supreme Court has repeatedly held that abstract ideas cannot be patented. So one of Ultramercial’s targets, a company called WildTangent, challenged the validity of the patent.

   In 2012, after striking down another abstract patent, the Supreme Court ordered the Federal Circuit to reconsider its 2011 decision.

   This week’s decision is unlikely to be the last word on abstract patents. Another recent decision split the Federal Circuit down the middle

   Reply
7. June 25, 2013 at 2:18 pm

   Tomi Engdahl says:

   The Tabarrok Curve: Why The Patent System Is Not Fit For Purpose
   http://www.forbes.com/sites/timworstall/2013/06/23/the-tabarrok-curve-why-the-patent-system-is-not-fit-for-purpose/

   It isn’t entirely necessary that we have a patent system: certainly not the patent system that we have. But it is necessary that we have some system to deal with the basic economic problem of the public goods nature of knowledge. There’s a balancing act going on and there’s good evidence that we’re actually trying to put our fulcrum at the wrong point.

   Here’s the Tabarrok Curve: something that we might hope will become as famous as the Laffer Curve.

   background to it here by Matt Ridley

   “Patents are supposed to prevent imitation, but in practice, imitation is often more costly than innovation. Most patent disputes are not about firms copying each other’s inventions but about two companies discovering simultaneously the next step in an innovative process. Yet patent law can’t easily handle that type of situation.”

   Our problem is that knowledge, once discovered, is a public good. That is, it’s non-excludable and non-rivalrous.

   we often say that governments must subsidise public goods like education or vaccination: precisely because this is an area where the market unadorned won’t really work.

   So, we’ve constructed the patent system: people have a 17 year exclusive right to such public goods. That is, we’ve made them excludable by law: people can now make money out of them. We think this increases the amount of effort that people will put into producing such inventions and innovations and so Hurrah! We all get more innovations and inventions.

   Yet we also recognise that if we provide protection that is too strong then we will be reducing the amount of innovation and invention.

   Too strong a protection for the initial invention will prevent that ongoing innovation around it. Which is where our balancing act comes in. We want to have patent protection that is strong enough to encourage more invention but not one that is strong enough to deter further invention or innovation. The Tabarrok Curve is simply a graphical representation of this point. And Tabarrok’s argument is that we’re at the wrong point on the curve.

   Do note that patents aren’t the only way that we can try to solve this problem.

   Reply
8. June 25, 2013 at 2:28 pm

   Tomi Engdahl says:

   Congress looking to act on patent assertion entities
   https://opensource.com/law/13/6/congress-patent-assertion-entities

   Congress is beginning to focus on the abusive use of patents by Patent Assertion Entities (PAEs) with new legislative proposals.

   House Judiciary Committee Chairman Bob Goodlatte and a wide variety of witnesses highlighted the PAE problem in hearings last winter. Senate Judiciary Committee Chairman Patrick Leahy is working with Chairman Goodlatte and committed to working in a bicameral and bipartisan way to counter what they term ‘patent trolling,’ which “casts a pall on the system because it hinders innovation.”

   A number of legislative proposals have now been advanced. Some are at a public draft stage, while some have been formally introduced. Others are ‘forthcoming’. The key ones under discussion appear to be the following:

   House Judiciary Discussion Draft.
   S. 1013, the “Patent Abuse Reduction Act.”
   S. 886, the “Patent Quality Improvement Act of 2013.”
   Senate Judiciary Proposal.

   Reply
9. June 26, 2013 at 11:24 pm

   Tomi Engdahl says:

   Everything You Need to Know About Trolls (The Patent Kind)
   http://www.wired.com/opinion/2013/06/everything-you-need-to-know-about-trolls-the-patent-kind/

   It’s almost as if there’s been a call to arms.

   There’s been a flurry of patent-related activity lately: 5 bills (and counting), 7 legislative recommendations, 5 executive actions, several government studies in the works, and numerous stakeholder hearings.

   As the discussions about patents heat up, so does the hype — especially about patent trolls.

   But first, what exactly is a patent troll?

   A patent “troll” — or the more polite “PAE” (or patent assertion entity, a term I coined) is an entity that asserts patents as their primary business model. The term “PAE” is narrower than the commonly used “NPE” (or non-practicing entity) because PAEs don’t include entities like startups and universities whose goal is to get their technologies out there.

   Naming and name-calling aside, the key is that PAEs aren’t focused on getting technology developed or making products — assertions are their “product.” That’s not inherently good or bad, and in fact, PAEs support a vibrant secondary market for patents

   But this model is concerning because it gives PAEs a freedom to litigate that most companies don’t have: Trolls can sue customers, because they don’t have any. Trolls can sue without worrying about countersuit, because they don’t make anything. Trolls don’t have to worry about reputational or other harm to their core business, because asserting patents is their core business model.

   When backed by public investors, for example, PAEs need to show consistent trolling returns, quarter after quarter. That pressure can lead to, for example, “hyper-aggressive patent troll-style litigation to build revenues”

   As the patent assertion industry has grown — there are now more than a dozen public companies focused on patent monetization — so has the diversity of tactics and targets.

   Why is the focus exclusively on trolls — aren’t they just middlemen?

   Most of the recent patent-reform proposals actually don’t focus exclusively on patent trolls or regulate the patent marketplace. Instead of targeting entities, they more narrowly target particular behaviors – regardless of who’s practicing them.

   In turns out that both large and small companies are increasingly working with or selling to trolls — some larger companies have even formed their own trolls. Many companies also enforce patents that they don’t themselves practice.

   When it comes to the cost and pace of litigation, those with great non-infringement or invalidity claims sometimes can’t afford to make their arguments because discovery accounts for up to 90% of litigation costs and is also disproportionate (PAEs have relatively few documents)

   Also, if the patent troll is solely a shell company or uses a shell complaint, the defendant has to spend a lot of time and money trying to figure out what the heck the suit is about and what to do about it.

   Trolls distort the market. They shift the focus away from winning in the marketplace to winning in the courtroom.

   The market is probably better at picking winners and losers than patent jurists and the PTO.

   Any improved guidelines also represent tools for challenging — and judging — the validity of already-issued software patents.

   Reply
10. June 26, 2013 at 11:28 pm

    Tomi Engdahl says:

    Let’s Limit the Effect of Software Patents, Since We Can’t Eliminate Them
    http://www.wired.com/opinion/2012/11/richard-stallman-software-patents/

    Patents threaten every software developer, and the patent wars we have long feared have broken out. Software developers and software users – which in our society, is most people – need software to be free of patents.

    The patents that threaten us are often called “software patents,” but that term is misleading. Such patents are not about any specific program. Rather, each patent describes some practical idea, and says that anyone carrying out the idea can be sued. So it’s clearer to call them “computational idea patents.”

    The U.S. patent system doesn’t label patents to say this one’s a “software patent” and that one isn’t. Software developers are the ones who make a distinction between the patents that threaten us – those that cover ideas that can be implemented in software – and the rest. For example: If the patented idea is the shape of a physical structure or a chemical reaction, no program can implement that idea; that patent doesn’t threaten the software field. But if the idea that’s patented is a computation, that patent’s barrel points at software developers and users.

    Still, software is where computational idea patents cause a special problem. In software, it’s easy to implement thousands of ideas together in one program: If 10 percent are patented, that means hundreds of patents threaten it.

    A Different Approach: Limit Effect, Not Patentability

    My suggestion is to change the effect of patents. We should legislate that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement.

    This approach doesn’t entirely invalidate existing computational idea patents, because they would continue to apply to implementations using special-purpose hardware. This is an advantage because it eliminates an argument against the legal validity of the plan.

    Reply
11. June 26, 2013 at 11:29 pm

    Tomi Engdahl says:

    Let’s Judge Patent Rights by Harm to the Public — Not to Inventors
    http://www.wired.com/opinion/2013/04/lets-judge-patent-rights-by-harm-to-the-public-not-inventors/

    Infringement of software patents is usually a good thing because in most cases the alternative to infringing is to produce nothing new. So, what if we could fix the patent problem by rethinking the assumption that infringement should always be penalized?

    Instead of basing remedies for infringement entirely on harm to the patentee, we could decide to award remedies only if the infringement also harms the public. That way, if the defendant’s infringement makes the public better off – as it routinely does in software – the court would deny the patentee both money damages and injunctive relief.

    But how do we know whether the infringement makes the public better off?

    Reply
12. June 26, 2013 at 11:37 pm

    Tomi Engdahl says:

    US trade commish kicks off patent-troll-nixing plan
    Hey, do you even do business here?
    http://www.theregister.co.uk/2013/06/26/itc_patent_troll_pilot_scheme/

    The US International Trade Commission has kicked off a pilot scheme to rein in the glut of intellectual property claims from patent trolls.

    The ITC said that it will soon require complaining firms to prove upfront that they have any actual business in the States before pursuing their case.

    For the pilot programme, the ITC will allow its judges to figure out within 100 days whether or not the companies that want to pursue patent lawsuits have an adequate presence in the country to actually avail themselves of the commission’s protection.

    “Addressing this will require more than administrative fixes, but the pilot program is a step forward that could help limit costly and unnecessary patent cases,”

    Reply
13. July 3, 2013 at 9:45 am

    root my android says:

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    Reply
14. July 30, 2013 at 9:12 am

    Tomi Engdahl says:

    US patent office rejects claims of Apple ‘pinch to zoom’ patent
    pcworld.com/article/2045461/us-patent-office-rejects-claims-of-apple-pinch-to-zoom-patent.html

    The U.S. Patent and Trademark Office has rejected claims of an Apple patent that figures prominently in a patent infringement lawsuit against Samsung Electronics, according to documents filed by the South Korean company in a U.S. federal court.

    The 21 claims of the patent were rejected by the USPTO in a “final office action,” as they were anticipated by previous patents or unpatentable. Known as the “pinch-to-zoom” patent, it covers the ability to distinguish between the scrolling movement of one finger and two-fingers gestures like pinch-to-zoom on a touch-screen to activate certain functions.

    Apple has up to two months to respond to the USPTO decision.

    Claim eight of the patent was involved in Apple’s lawsuit against Samsung in the court, according to a filing Sunday by Samsung in U.S. District Court for the Northern District of California, San Jose Division. A jury last August awarded Apple US$1.05 billion in damages, but the court has ordered a partial retrial to review the damages to be paid to the iPhone maker.

    The jury found at trial that 21 of 24 Samsung smartphones and tablets infringed claim 8 of U.S. Patent No. 7,844,915(’915 patent), Samsung said in its filing on Sunday.

    Reply
15. August 12, 2013 at 10:17 am

    Tomi Engdahl says:

    Google pledges 79 more patents to the open source community
    More weapons against patent trolls
    http://www.theinquirer.net/inquirer/news/2288045/google-pledges-79-more-patents-to-the-open-source-community

    SOFTWARE DEVELOPER Google has given the open source community 79 patents to help defend against patent trolls.

    Under the headline “More patents in the service of open source” the firm spelled out its intentions and its continued campaign against patent claims that slow down and harm innovation.

    “Open-source software has accelerated the pace of innovation in computing, leading to better products and services at lower cost. But as the impact of open source software has grown, so too has the number of patent attacks against it,” said Duane Valz, senior patent counsel at Google.

    “In March, we announced an Open Patent Non-Assertion (OPN) Pledge – committing not to sue any user, distributor or developer of open source software on specified patents, unless first attacked. Our goal was to encourage pro-competitive, defensive uses of patents to support open source innovation.”

    Carrying this further is the promise to release 79 more patents under the OPN Pledge. Some of the patents come from IBM and they extend to servers.

    Reply
16. August 12, 2013 at 11:46 am

    Tomi Engdahl says:

    ITC Ban Deals Blow to Samsung in U.S.
    U.S. Restriction Could Hurt the South Korean Firm’s Market Share in Near Term
    http://online.wsj.com/article_email/SB10001424127887323477604579003700665769122-lMyQjAxMTAzMDEwMTExNDEyWj.html

    The International Trade Commission’s ruling to ban the import and sale of some Samsung Electronics Co. products into the U.S. will sap growth momentum for the South Korean behemoth just as it has overtaken Apple Inc. AAPL as the U.S.’s biggest smartphone maker.

    Samsung said that its products would continue to be available in the U.S. despite the ruling, indicating it has already made some changes to models to avoid infringing on Apple’s patents.

    But the ruling could lead to Samsung losing market share in the near term, according to analysts, even though the impact on its earnings won’t be significant because the company will make modifications to existing models or launch newer versions of its mobile phones so it can continue to sell its devices in the U.S.

    “It remains to be seen whether Samsung can comply with today’s limited exclusion order in the ways that don’t make its Android-based smartphone and tablet less attractive,” wrote Florian Mueller, an intellectual property analyst at Florian Mueller Consulting, in a blog post. “The commercial significance of the exclusion order depends on the viabilities of the workaround.”

    “The patents that are being asserted by Apple against Samsung are in a different category and therefore not apparent that there will be the same opportunity for Samsung,” said Mark Summerfield, a patent attorney at Watermark in Melbourne

    “Litigants such as Samsung would have to now start to look and say, can we build more of our strategy around non-standard essential patents,” that would not be subject to the debate of fair and reasonable licensing issues, Mr. Woods said.

    Reply
17. August 29, 2013 at 3:19 pm

    Tomi Engdahl says:

    Google Patents “Scroogling”
    http://tech.slashdot.org/story/13/08/29/0027216/google-patents-scroogling

    “In Microsoft’s eyes, the idea of scanning Gmail so advertisers can bid on access to those suffering from breast cancer, bi-polar disorder, depression, and panic anxiety, deserves no kudos. The USPTO, on the other hand, feels it deserves a patent”

    Reply
18. September 1, 2013 at 6:43 pm

    Tomi says:

    New Zealand just abolished software patents. Here’s why we should, too.
    http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/29/new-zealand-just-abolished-software-patents-heres-why-we-should-too/?tid=rssfeed

    What’s wrong with the patent system? Most people cite problems with patent trolls or low patent quality. But a recent study by the Government Accountability Office makes it clear that the real problem is more specific: Patents on software don’t work.

    The number of software patents has soared in the past two decades. In 1991, software-related patents (using a broad definition adopted by the GAO) accounted for fewer than a quarter of all patents issued by the U.S. Patent and Trademark Office. In 2011, for the first time ever, software patents accounted for the majority of all patents issued

    The rise in patent litigation is a more recent phenomenon. “The overall number of defendants in [patent] cases increased from 2007 to 2011 by about 129 percent over the 5-year period,” the GAO reports. “Lawsuits involving software-related patents accounted for about 89 percent of the increase in defendants during this period.”

    Interestingly, while trolls get a disproportionate amount of press, the GAO found little evidence that they’re responsible for the growth in patent litigation. The proportion of lawsuits initiated by trolls (“patent monetization entities”) and non-trolls (“operating companies”) hasn’t changed much over the past five years.

    In other words, both trolls and non-troll companies have been enforcing their patents more aggressively in recent years. What’s changed is that there are a lot more patents on software than there used to be. And software patents are much more prone to litigation than other patent categories.

    The GAO says that “many recent patent infringement lawsuits are related to the prevalence of low quality patents; that is, patents with unclear property rights, overly broad claims, or both. Although there is some inherent uncertainty associated with all patent claims, several of the stakeholders with this opinion noted that claims in software-related patents are often overly broad, unclear or both.”

    Why is software-patent quality so low? The GAO speculates that “language describing emerging technologies, such as software, may be inherently imprecise because these technologies are constantly evolving.” Also, it says, “claims in software patents sometimes define the scope of the invention by encompassing an entire function — like sending an e-mail — rather than the specific means of performing that function.”

    Another problem: the complexity and rapid development cycle of software makes patent research impractical.

    Representatives from a software start-up company we spoke with told us that searching for relevant patents before developing new products is unrealistic and diverts already scarce resources, particularly because their product development process can be as short as 2 months,” the GAO says, echoing a point I’ve made before.

    “A few representatives of venture capital and software start-up firms told us that they do not always apply for patents until their companies are well established because patent attorneys are expensive, and the process is time-consuming. They told us that the cost of R&D is low relative to the cost of applying for a patent, so there is minimal incentive in the software industry to patent in order to recoup R&D costs.”

    That’s very different from the pharmaceutical industry. The GAO says that “several representatives from the pharmaceutical industry told us that patents are actually critical to their ability to recoup the costs of developing a new drug, which can cost as much as $1 billion and take from 10 to 15 years.”

    The GAO suggests some modest changes to improve the quality of software patents, such as amending the law to “require more detail for algorithms” in software patents. But policymakers should consider a more radical option: eliminating software patents altogether. There’s little evidence that patents promote innovation in software, and a great deal of evidence that they hinder it.

    Reply
19. September 2, 2013 at 12:38 pm

    Tomi Engdahl says:

    ‘Patent trolls’ put brakes on S.F. transit app
    http://www.sfgate.com/technology/dotcommentary/article/Patent-trolls-put-brakes-on-S-F-transit-app-4778304.php

    Smart Ride, which provides real-time transit information like the arrival times of San Francisco Muni buses, was growing by 20 percent a month. The free, ad-supported service wasn’t profitable but it was finally covering operating costs.

    Then in late March, a FedEx package arrived filled with a stack of paperwork, topped with a letter threatening to sue his company for patent infringement. It was from a company with ties to Martin Kelly Jones, who holds a series of patents claiming ownership of technologies for tracking vehicles and providing users with electronic updates.

    A handful of affiliated companies, including ArrivalStar and Melvino Technologies, have threatened or sued hundreds of organizations in recent years, from small entrepreneurs like Bannert to large corporations like American Airlines. They’ve filed a flurry of cases against cash-strapped transit agencies in numerous cities

    As far as anyone on the outside can tell, this is their sole business model: leveraging patents not to build competitive products, but simply to strong-arm others into forking over money when they create something that stumbles into the broadly worded language of the intellectual property protections.

    The nicest phrase for such outfits is “non-practicing entity.” But most people call them “patent trolls.”

    Defense pricey

    Many of the patents might not hold up in court, but it can easily cost $1 million to mount a defense. For a company whose business model is filing lawsuits, the only incremental cost of each new case is the filing fee – about $500.

    With decks stacked like that, most organizations simply surrender, often settling for tens of thousand of dollars.

    “It’s a shakedown, it’s extortion, but it’s legal,” said Julie Samuels, an attorney who is the Mark Cuban Chair to Eliminate Stupid Patents at the Electronic Frontier Foundation. “It’s easy to be a troll, it’s cheap to be a troll, and it’s totally unethical. It’s exploiting a loophole in a broken system.”

    In a phone call following the arrival of the package, Bannert was told his legal troubles could go away for a figure that happened to be nearly twice the revenue the app brought in during 2012. Since he still hadn’t eked out a profit, that cash would have come out of his own pocket.

    He was confident the patents in question were bogus, loose legalese describing obvious ideas. Moreover, the service that he received his data from, NextBus, already had a license to use those patents.

    He didn’t have the cash to hire a patent specialist who could do the deep research required to contest the validity of the patents.

    Reply
20. September 4, 2013 at 10:31 am

    Tomi Engdahl says:

    Why Nokia didn’t sell its patents to Microsoft
    http://www.reuters.com/article/2013/09/03/us-nokia-microsoft-patents-idUSBRE9820ZZ20130903

    Nokia may have sold its handset business to Microsoft Corp, but by hanging on to its valuable patent portfolio, the Finnish company could also get a big future payoff at the expense of Android phone makers.

    Until now, Nokia has not widely licensed many of its patents, preferring instead to use them to protect its handset business against competitors, Nokia spokesman Mark Durrant said in an email to Reuters.

    “Once we no longer have our own mobile devices business, following the close of the (Microsoft) transaction, we would be able to explore licensing some of those technologies,” he added.

    The Finnish company has long been a savvy player in the intellectual property market.

    For Microsoft, taking a license for Nokia’s patents rather than buying them serves a strategic objective as well. Microsoft has already convinced about 20 Android manufacturers to pay patent royalties as part of its effort to raise the cost of Google Inc’s mobile operating system.

    Now, Nokia remains free to go after the same Android manufacturers for royalties as well, although Nokia spokesman Durrant did not reveal specific targets.

    “It wouldn’t surprise me at all to see litigation filed by Nokia in coming months,” said one senior IP executive who has dealt with both companies,

    Reply
21. September 5, 2013 at 12:39 pm

    Tomi Engdahl says:

    Microsoft awarded $14.5M in Motorola patent licensing suit
    http://news.cnet.com/8301-10805_3-57601432-75/microsoft-awarded-$14.5m-in-motorola-patent-licensing-suit/

    In second phase of closely-watched patent trial, federal jury finds the Google handset maker in breach of contract for failing to license standard essential patents at a reasonable rate.

    Reply
22. September 12, 2013 at 10:00 am

    Tomi Engdahl says:

    How IP Law Helps FOSS Communities
    http://news.slashdot.org/story/13/09/11/229209/how-ip-law-helps-foss-communities

    “Fighting against software patents (New Zealand has banned them) tends to blind FOSS communities to aspects of IP law that actually serve them well. While certainly not perfect, patent, copyright, trademark, and trade secret law each has something to offer FOSS communities.”

    Reply
23. September 12, 2013 at 10:04 am

    Tomi Engdahl says:

    Frenemies: How IP Law Helps FOSS Communities, guest blog by Clark Asay
    http://www.outercurve.org/Blogs/EntryId/103/Frenemies-How-IP-Law-Helps-FOSS-Communities-guest-blog-by-Clark-Asay

    In previous posts here and here I assessed the intellectual property (IP) risks that free and open source software (FOSS) communities face, as well as some possibilities of how to address them. And I’m certainly not the first nor will I be the last to make such assessments; there is a natural tendency in FOSS communities to view IP law with distrust, since the FOSS movement arose in part as a reaction to corporations using IP rights to thwart openness and sharing of technology.

    But while some of this distrust may be merited, this focus tends to blind FOSS communities to aspects of IP law that actually serve them well. While certainly not perfect, patent, copyright, trademark, and trade secret law each has something to offer FOSS communities. Below I briefly describe some of the ways in which each helps or can help them.

    1. Copyright

    Because software is generally automatically subject to copyright protection, the FOSS movements’ founders were able to use copyright as the basis for making FOSS available to the public under permissive copyright licenses.

    The virtue of this flexibility manifests itself in several ways. For instance, because the main copyright licenses used in FOSS communities are by now well-known, they help reduce transaction costs because subsequent users are more likely to be familiar with the terms and their rights under them.

    2. The DMCA

    Another partial boon to FOSS communities is the Digital Millennium Copyright Act of 1998 (DMCA). The DMCA is not strictly copyright law, but it is related to copyright;

    Many of its provisions are therefore meant to protect copyright holders against the potential for increased copyright infringement

    For instance, the DMCA includes “safe harbors” that shield online service providers from liability arising from the activities of its users—e.g., uploading infringing content to the site—so long as the service providers adhere to certain basic requirements of the DMCA (e.g., removing infringing content once notified by a copyright holder). YouTube and other online services would have a difficult time surviving without this important liability shield.

    3. Trademark

    Traditionally trademark law’s primary objective has been to protect consumers; trademark rights in use of certain marks are granted in order to protect consumers from potential confusion regarding the source of the goods or services.

    Trademark law is mostly a win-win for FOSS communities. Effective branding is one of the key ways by which FOSS projects distinguish themselves, and trademark law helps ensure that effective branding can occur in the FOSS world. This is especially crucial given the open, permissive nature of FOSS.

    4. Patents

    As I’ve written here and here, patent law is probably FOSS’s biggest foe. And while there’s much to be desired in terms of changing patent law to better accommodate FOSS development, patent law already does provide some help to FOSS communities, or at least some self-help solutions.

    Perhaps the most straightforward way is patent law’s concept of prior art; patents technically shouldn’t issue on inventive concepts that have already been developed and released to the public prior to the would-be patent holder inventing or filing for the same invention.

    those rules generally mean that FOSS communities can do themselves a great deal of good by developing high-quality software and releasing it to the public as quickly as possible.

    5. Trade Secrets

    Trade secret law generally protects information that derives economic value from not being known or readily ascertainable through appropriate means, and which is subject to reasonable efforts to maintain its secrecy. Often companies choose between the (relatively) short-term protection offered by patents and the (potentially) infinite protection offered under trade secret law.

    Another key difference between trade secret law and patent law—and which can benefit FOSS communities—is that trade secret law does not protect the owner of trade secrets against independent development by someone else.

    Conclusion

    While FOSS development doesn’t always mesh well with traditional IP law, IP law does provide FOSS communities some aid.

    Reply
24. September 12, 2013 at 12:26 pm

    Tomi Engdahl says:

    3D Printering: Key Patents
    http://hackaday.com/2013/09/11/3d-printering-key-patents/

    Here’s a little tip about tech blogs, and journalism in general: absolutely everything you read is one hundred percent true, except in the cases where you – the reader – know anything about the story being discussed.

    Such is the case with ‘key 3D printing patents set to expire in 2014′ – a phrase bandied about tech blogs with the fervency of news the seventh seal has been broken. If you believe everything you read on the Internet, we’re looking at a world of 3D printed lollipops, unicorns, and rainbows in just a few short months.

    The current crop of 3D printers use fused deposition modelling, FDM, or the ‘squirting melted plastic’ method. This technique was patented in 1989 by [Scott Crump], co-founder of Stratasys, one of the largest manufacturers of 3D printers. This patent expired in 2009, and there’s no coincidence 3D printing really started to pick up around that time with the development of the Reprap Mendel and the founding of what was previously the Open Hardware community’s golden child, Makerbot.

    If past results are any indication of future performance, the expiration of these key 3D printing patents will result in yet another boom in the field of one-off manufacturing, rapid prototyping, and some really cool projects coming out of hackerspaces in the next year or two.

    What is SLS, you ask? It’s actually pretty simple: take some powder, shoot it with a laser, let the powder melt, and put a dusting of new powder over the mess you just created. You can use a wide range of plastics with SLS compared to the FDM Repraps and Makerbots we have today; you can even print in metal and make yourself a rocket engine. If NASA is doing it, it has to be awesome, right?

    Even though the current lineup of ‘squirting plastic’ printers is fairly capable and can do a lot in the right hands, there’s some stuff an FDM machine such as a RepRap or Makerbot can’t do.

    Why You Won’t Have an SLS Printer in Your Garage

    Oversimplifying everything a great deal, these printers are basically made of two parts: a laser cutter on top, and a plunger and roller system to build up parts layer by layer below. Simple enough, right?

    First things first. We’re going to need something that moves a laser beam around on an XY plane

    That’s half of our build right there. Now all we need is some sort of roller to dispense the powder and a plunger mechanism to build a part layer by layer. This is where things get a little more difficult.

    In the end, you’ll probably looking at around $2000-$3000 for a low-end, home built SLS printer.

    Here’s the problem, though: we’re around the price point of a Makerbot or Ultimaker – both proven machines – and an SLS machine is not going to be that much better.

    As for printing in metals, that’s a pipe dream for any machine cheaper than a car. Sintering metal with a laser requires a vacuum chamber, diffusion pumps, and some very hard core equipment to do it right. Not to mention you won’t be able to melt any appreciable amount of metal with a 40 Watt laser.

    If not homebrew, then what?

    The reason everyone is so excited by the expiration of ‘key patents’ is the fact that other large companies besides 3D systems – Stratasys and Zcorp, for example – will be able to manufacture their own SLS printers. That’s great and all, but even 3D systems, the maker of these SLS printers only use them for their professional range

    Will the expiration of key 3D printing patents in 2014 change anything in the arena of 3D printing? Well, large, already established 3D printer manufacturers will be putting out cheaper printers that can print in metal.

    Reply
25. September 13, 2013 at 2:28 pm

    Tomi Engdahl says:

    Cisco can’t shield customers from patent suits, court affirms
    California appeals court upholds ruling that Cisco isn’t the target of TR Labs patent suits
    http://www.networkworld.com/community/blog/cisco-can%E2%80%99t-shield-customers-patent-suits-court-affirms

    A federal appeals court in California has upheld a lower court ruling that Cisco lacks standing to seek dismissal of patent infringement lawsuits against a number of its biggest customers – wireless network providers and enterprises – being brought by TR Labs, a Canadian research consortium.

    In essence, the appeals court agreed with a lower court’s acceptance of TR Labs’ contention that its patent infringement claims are rightfully against the users of telecommunications equipment – be it gear made by Cisco, Juniper, Ciena or others – and not the manufacturers. Cisco had argued that repeated mentions in court filings of the company and its products – including the ONS 15454 Multiservice Transport Platform (MSTP) and the CRS-1 Carrier Routing System – were reason to believe that Cisco would be accused by TR Labs of either direct or indirect infringement, and thus had standing to seek dismissal of the lawsuits against its customers.

    “In fact, all of the claims and all of the patents are directed at a communications network, not the particular switching nodes that are manufactured by Cisco and the other companies that are subject of our claims,”

    One of the judges asked Summerfield if TR Labs has sued network operators who do not use Cisco gear.

    “Yes, your honor, we have. There are customers who at least tell us that (they) don’t use Cisco products, or the products that (they) do use are in non-infringing configurations.”

    The patents TR Labs is asserting are U.S. Patent Numbers 4,956,835; 5,850,505; 6,377,543; 6,404,734; 6,421,349; 6,654,379; 6,914,880; and 7,260,059.

    Reply
26. September 15, 2013 at 12:30 pm

    Tomi says:

    “Patent troll” claiming playlists and podcasts scores license with SanDisk
    Personal Audio LLC, singled out by EFF and media, is rolling onward.
    http://arstechnica.com/tech-policy/2013/09/patent-troll-claiming-playlists-and-podcasts-scores-license-with-sandisk/

    Some patent trolls hide in the shadows, avoiding reporters and setting up complex mazes of shell companies to avoid scrutiny. James Logan, the owner of Personal Audio LLC, isn’t like that.

    His company got a little blip of publicity back in 2011, when it won an $8 million jury verdict against Apple. But it became truly infamous earlier this year when it started telling podcasters that they had to pay up for a license to its patents. But Logan didn’t back down from telling his story.

    Even though Logan and Personal Audio’s patents have been targeted by EFF, right now, its licensing machine seems to be rolling forward. Today the company announced that SanDisk is now a licensee to its patent portfolio.

    Reply
27. September 16, 2013 at 1:16 pm

    Tomi Engdahl says:

    The Man Who Created the Pencil Eraser and How Patents Have Changed
    http://yro.slashdot.org/story/13/09/15/1958239/the-man-who-created-the-pencil-eraser-and-how-patents-have-changed

    “This weeks ‘Who Made That’ column in The New York Times concerns the built in pencil eraser. In 1858 Hymen Lipman put a rubber plug into the wood shaft of a pencil. An investor then paid about 2 million in today’s dollars for the patent. This investor might have become very rich had the supreme court not ruled that all Lipmen had done was put together two known technologies, so the patent was not valid. The question is where has this need for patents to be innovative gone?”

    Reply
28. September 16, 2013 at 2:12 pm

    Tomi Engdahl says:

    Collaborative Advantage: Blocked From Designing 3D Circuits?
    http://www.eetimes.com/author.asp?section_id=36&doc_id=1319482&

    Although the semiconductor industry has benefited tremendously from 50 years of Moore’s Law there is also broad recognition that the era of regular process shrinks may be, for many, approaching an end.

    A complex mix of technologies and design methods collectively referred to as “More Than Moore” is replacing that regular miniaturization. One of the most promising technologies is the vertical stacking of dies using through-silicon-vias (TSVs) for die interconnect to create a 3D circuit.

    The promise of 3D includes greater functional density, reduced footprints, and lower power consumption, because the distance and capacitance of interconnect can be reduced. However, as the technology matures, as business models evolve, and as 3D design standards emerge, another issue hangs like a cloud over the landscape. That cloud, which could prevent, or at least delay, the broad market adoption of 3D circuitry is patents.

    A casual Internet search for “design of 3D circuits patents” quickly reveals at least five patents describing methods and systems for the design of 3D ICs, focused on design software tools. Finding further details is left as an exercise for the reader.

    These sets of patent claims address data structures for 3D design software. The claims appear to be fundamental enough that it could be impossible to work around them in any design tool implementation, assuming the claims stand. Furthermore, licensing is exclusively controlled by a non-practicing legal entity that is currently suing both EDA and end-user companies, with no indications of any quick settlement on the horizon. This legal climate, now preventing or delaying 3D-capable EDA tools, will necessarily have a similar impact on a pipeline of 3D designs, constraining the market for 3D manufacturing and commercialization.

    Reply
29. September 17, 2013 at 2:13 pm

    Tomi Engdahl says:

    Angry entrepreneur replies to patent troll with racketeering lawsuit
    Patent trolls are legal. Can one be nailed for extortion? One man is betting yes.
    http://arstechnica.com/tech-policy/2013/09/angry-entrepreneur-replies-to-patent-troll-with-racketeering-lawsuit/

    Most business owners sued by patent trolls don’t talk about it to anyone other than their lawyer; a typical response is to cross one’s fingers and hope the problem goes away. It won’t, of course. Often they do the next best thing—hope it will go away for as little money as possible.

    FindTheBest CEO Kevin O’Connor, who also cofounded online ad giant DoubleClick, decided several weeks ago he would talk about it—publicly, and often. O’Connor wrote to tech sites like PandoDaily telling them of his determination to “slaughter” the troll, the “scum of the earth.” And in August, he pledged $1 million of his own money to fight the troll that went after his company.

    Now, we’re getting a vision of how FindTheBest is putting that money to use. The company has made a novel legal claim, saying that the troll that came after it is so reckless, it has engaged in outright extortion, violating racketeering laws.

    Instead of kowtowing to the troll’s demand for $50,000, O’Connor decided to pledge to spend $1 million fighting. He knows it’s not the rational business decision… and he doesn’t care.

    “From a business perspective, it makes 100 percent sense to settle,” he said. “I decided to take it out of the business realm, and into the personal. There’s one thing I love and that’s technology, and there’s one thing I hate, and that’s injustice—people abusing the system.”

    The Gooseberry patent was asserted against several online media companies back in 2011—sites like TechCrunch, Slashdot, and Reddit.

    Lumen View has filed 21 lawsuits in New York and Delaware.

    Perhaps not coincidentally, $50,000 is just about what it costs to hire a lawyer and file the initial set of paperwork to defend a patent case, noted O’Connor.

    Many other Lumen View defendants have settled within just a few months of a lawsuit being filed, suggesting the patent troll is accepting settlements below $50,000.

    FindTheBest’s RICO lawsuit uses language like “extortion” to describe Lumen View’s business practices.

    In fact, Lumen didn’t do “any meaningful pre-filing investigation,” the suit alleges, and that’s part of the problem. Lumen simply did “a broad internet search for companies that offer any type of matching service…”

    “There’s a lot of outrageous stories, but everyone’s so damn afraid of coming forward—It’s like going against the Mafia,” he said. But the idea that trolls may retaliate against those who speak out is overblown, he thinks. “If they want to try to teach me a lesson, go for it. This will be my retirement. I’ll fight them.”

    Reply
30. September 19, 2013 at 1:08 pm

    Tomi Engdahl says:

    Group Attacks Bad Software Patents Before They’re Approved
    http://yro.slashdot.org/story/13/09/18/2228259/group-attacks-bad-software-patents-before-theyre-approved

    “Ars Technica discusses how the Linux Defenders group are exercising the rights granted by the America Invents Act to identify and fight the patents that potentially threaten Linux and open source software.”

    “A project of the Open Invention Network, Software Freedom Law Center, and Linux Foundation, Linux Defenders examines the 6,000 new patent applications published each week, attempting to identify those that are potentially threatening to Linux and open source. Then, the group looks for prior art that would invalidate at least some of the claims in the patents.’”

    Reply
31. September 19, 2013 at 1:10 pm

    Tomi Engdahl says:

    How Linux defenders attack bad software patents before they’re approved
    Group identifies dangerous patents and tries to cut them down to size.
    http://arstechnica.com/tech-policy/2013/09/how-linux-defenders-attack-software-patents-before-theyre-approved/

    Despite the rise in the number of patent trolls launching lawsuits affecting open source software, there are some glimmers of hope. The America Invents Act that was signed into law in September 2011 has provided new ways to prevent the issuance of over-broad software patents that could fuel future lawsuits.

    In a session at LinuxCon today, Linux Defenders director Andrea Casillas explained how the group is using rights granted by the new law to fight patent applications. A project of the Open Invention Network, Software Freedom Law Center, and Linux Foundation, Linux Defenders examines the 6,000 new patent applications published each week, attempting to identify those that are potentially threatening to Linux and open source. Then, the group looks for prior art that would invalidate at least some of the claims in the patents.

    The next step is working with Linux technologists to file defensive publications, which are not patents themselves but describe an invention and place it in the public record, preventing new patents from being granted that cover the same technology. These are typically two- to three-page descriptions of the technology, which the US Patent and Trademark Office (USPTO) examiners can read when conducting their review of prior art that might invalidate or limit the scope of a new patent application. Linux Defenders has filed about 200 of these defensive publications.

    “We’ll work with authors or inventors or developers to take submissions, edit them, and work hand in hand with them to make these publications more effective,” Casillas said, urging the Linux community to help the group identify dangerous patents and find prior art.

    Defensive publications are an old strategy, but it’s become more accessible to the public because of the America Invents Act, Casillas explained. “This is the first time examiners have welcomed the public interaction,” she said. “Any individual can electronically submit up to three pieces of prior art at no cost per application.”

    One patent lawsuit “could make Red Hat go away”

    In a separate session at LinuxCon yesterday, Red Hat’s Fedora engineering manager Tom Callaway discussed legal threats to open source.

    Red Hat has criticized patent trolls and taken many steps to protect itself and its customers from them. Callaway said the threat can’t be understated. “I do not overestimate this. Red Hat is not a small company in our industry, in open source. We’re possibly the biggest. One good loss at trial on a serious set of patents could make Red Hat go away. It would be gone. That’s the seriousness of patents and that’s how chilling they are on our industry,” he said.

    Reply
32. September 24, 2013 at 12:05 pm

    Tomi Engdahl says:

    U.S. trade panel judge says HTC violates Nokia patents
    http://www.reuters.com/article/2013/09/23/us-nokia-htc-patent-idUSBRE98M14C20130923

    HTC Corporation infringed on two Nokia Corp patents in making its mobile telephones and tablets, a judge said in a preliminary ruling issued on Monday for the U.S. International Trade Commission.

    These products include the HTC Amaze 4G, the Inspire 4G, Flyer, Jetstream, Radar 4G, Rezound and Sensation 4G, according to the complaint filed by Nokia with the ITC.

    The full ITC is scheduled to make a final decision on the matter on January 23, 2014. Finland’s Nokia filed the complaint last year.

    Reply
33. September 26, 2013 at 9:17 am

    Tomi Engdahl says:

    Tech Giants Fear Spread of Patent Wars to Europe
    http://www.nytimes.com/2013/09/26/technology/tech-giants-fear-spread-of-patent-wars-to-europe.html?pagewanted=all&_r=0

    LONDON — The technology industry is expanding its fight against patent trolls to Europe.

    In the United States, technology companies like Google, Apple and Microsoft have spent years and hundreds of millions of dollars to defend patent-infringement lawsuits by companies that make a business of buying technology patents primarily for suing software companies and makers of products like smartphones. Now they worry that Europe could soon become a broad battleground for similar court battles.

    In a letter to be sent to European officials on Thursday, 14 companies outline their concerns about a coming change that will give most of Europe a unified patent court system for the first time. So far, the technology industry has generally supported this pan-European effort as a better way to protect intellectual property, compared with the current thicket of country-by-country rules.

    But in looking at the details of the new approach, tentatively scheduled to begin in 2015, the companies now fear that the new system could be vulnerable to what they call patent assertion entities, less politely known as patent trolls, which make a business of filing patent-infringement suits. Such companies say they play a valuable role in protecting innovators, but many corporations see the suits as frivolous and damaging. In the United States, the Federal Trade Commission has a patent-troll investigation under way.

    In the last five years, IPNav has sued more than 1,600 companies in the United States — more than any other entity in the field, according to a report by RPX, a patent risk-management firm. IPNav’s pending cases include lawsuits against Google, Hitachi and Adobe.

    While Mr. Spangenberg said he could understand the industry’s trepidation, he added: “It’s also going to save money for both sides.”

    Reply
34. September 26, 2013 at 10:50 pm

    Tomi says:

    Steve Jobs Video Kills Apple Patent In Germany
    http://yro.slashdot.org/story/13/09/26/1815251/steve-jobs-video-kills-apple-patent-in-germany

    “Today the Federal Patent Court of Germany shot down an Apple photo gallery bounce-back patent over which Cupertino was/is suing Samsung and Motorola. A panel of five judges found the patent invalid because the relevant patent application was filed only in June 2007 but Steve Jobs already demoed the feature in January 2007″

    “While this wouldn’t matter in the U.S., it’s a reason for a patent to be invalidated in Europe.”

    “company forgot that public disclosure, even by an inventor, must not take place before a European patent application is filed.”

    Reply
35. September 29, 2013 at 1:59 pm

    Tomi says:

    US regulators seek public input on plan to investigate patent trolls
    Will actually start investigating annnnnyyyy day now
    http://www.theregister.co.uk/2013/09/28/ftc_seeks_public_input_on_patent_trolls/

    The US Federal Trade Commission is moving ahead – slowly – with plans to investigate the ways and practices of so-called Patent Assertion Entities (PAEs): patent trolls, to you and me.

    On Friday, the FTC voted unanimously to seek public comments on a proposal to gather information from “approximately 25 companies that are in the business of buying and asserting patents,” the agency said in a statement.

    The full proposal describes the companies in question as operating in the wireless communications sector.

    “The proposed study would add significantly to the existing literature and evidence on PAE behavior,”

    That last clause suggests that the FTC is devoting particular attention to the practice of “patent privateering”, where companies that do actually make products also transfer portions of their patent portfolios to PAEs, who then assert the patents against the practicing company’s competitors.

    BlackBerry, EarthLink, Google, and Red Hat jointly submitted a letter to the FTC in April specifically requesting that it investigate privateering, claiming that the practice distorts market competition and unfairly inflates patent licensing costs.

    Reply
36. October 2, 2013 at 10:48 am

    Tomi Engdahl says:

    GAO Report on patents
    http://www.edn.com/electronics-blogs/patent-space/4421839/GAO-Report-on-patents

    Patent litigation by non-practicing entities (NPEs) has become the topic of much discussion in recent years. In particular, NPEs have been accused of greatly increasing the amount of patent litigation. However, a recent government report suggests that NPE litigation is more related to the issuance of software-related patents than the mere existence of NPEs as patent-asserting plaintiffs.

    In 2011, the America Invents Act (AIA) ordered the GAO to investigate the consequences of litigation by NPEs. On August 22, 2013, the Government Accountability Office (GAO) published a report regarding both patent infringement litigation and patent quality.

    The report linked PME activity to increases in the number of patents granted for software-related technologies. However, PMEs were only responsible for about 20% of all patent litigation.

    Based upon this broad definition, the report found that about 46% of lawsuits filed from 2007–2011 involved software-related patents. More significantly, the report concluded that software-related patents could be linked to 89% of the increase in patent infringement claims during this period.

    While only 35% of operating company lawsuits involved software-related patents, the vast majority, 84% of PME lawsuits did. Software-related patents were used to sue 93% of defendants in PME patent infringement cases. While this statistic may reflect an extremely broad definition of “software-related patent,” it demonstrates the GAO’s theme that PME activity is largely linked to software patents.

    The GAO report concluded that criticism of “patent trolls” is misplaced because critics should focus on the type of patent rather than the identity of the litigant. The GAO report alleges that quality of software-related patents is a problem.

    Reply
37. October 3, 2013 at 11:26 am

    Tomi Engdahl says:

    Patent Troll Lodsys Settles for Nothing to Avoid Trial
    https://www.eff.org/deeplinks/2013/10/patent-troll-lodsys-settles-nothing-avoid-trial

    Today we learned just how determined the patent troll Lodsys is to avoid a ruling on the merits of its claims. When software security company Kaspersky Lab refused to surrender, Lodsys settled for nothing (yes, you read that right—absolutely nothing) rather than take its claims to trial.

    First, some background: Lodsys is the poster child for the worst kind of patent trolling. A shell company with no apparent business other than “monetizing” patents, it has sued or threatened thousands of application developers. While it has sued some big players, most of its targets have been tiny app developers who lack the resources to defend patent litigation. And these developers are being sued simply for using Apple or Google’s in-app purchase APIs. In this, Lodsys is part of growing trend of patent trolls targeting the end-users of technology.

    We believe that Lodsys is unlikely to prevail on the merits of its claims. First, the principle of patent exhaustion should protect developers using Google and Apple’s APIs.

    Second, Lodsys’ patents have nothing to do with the hardware or software of today’s smartphones and tablets. To the extent they are even comprehensible, the patents discuss a method for providing remote customer feedback for early 90s technology like fax machines. Using intentionally vague claim language like “trigger event” and “perception information,” Lodsys argues that the patents cover today’s technology. This is an abuse of the patent system.

    Lodsys is doing everything it can to avoid a ruling on the merits of its claims. Earlier this week, it successfully dodged a decision on whether Apple’s license shields iOS developers.

    We congratulate Kaspersky Lab on its victory. It joins a select group of companies, like Twitter and Newegg, that have proven willing to stand up to patent trolls. As these cases show, when they are actually forced to litigate, patent trolls frequently lose or give up, particularly when software patents are at issue. One study found that, among the most frequently litigated patents (those asserted in eight or more lawsuits), non-practicing entities won only 9.2% of their cases.

    Unfortunately, fighting back is expensive. Defending a patent case can cost well over $1 million and defendants rarely get that money back. So few companies have the resources or the appetite to take on the trolls. And Kaspersky Lab’s victory in this case will not stop Lodsys.

    Reply
38. October 3, 2013 at 11:28 am

    Tomi Engdahl says:

    Patent troll Lodsys chickens out, folds case rather than face Kaspersky Lab
    After two years, its notorious patents were going to a jury. Lodsys blinked.
    http://arstechnica.com/tech-policy/2013/10/patent-troll-lodsys-chickens-out-folds-case-rather-than-face-kaspersky-lab/

    In 2011, Lodsys seemed like it was working hard to earn the title of the nation’s most-hated patent troll by sending threat letters to small developers. At the end of the day, it turns out that Lodsys is one tremulous troll. After settling dozens of cases, the patent-holding firm finally ran into one man who was willing to face it down in front of a jury: Eugene Kaspersky, founder of Kaspersky Lab.

    Lodsys decided over the weekend to dismiss its case against Kaspersky with prejudice. Instead of facing a jury, Lodsys will slink away instead. It was an unconditional surrender.

    “There was no settlement with Lodsys,” Kaspersky’s lead lawyer, Casey Kniser, told Ars in a phone interview. “We told these guys from the beginning; we were never going to pay them anything.”

    Lodsys has claimed that anyone using basic online business techniques such as “in-app” purchases or even customer feedback forms owe it money for its patents. After two years of threats, Lodsys was finally going to have those outlandish claims tested in front of a jury,

    It was the second time in two years that Kaspersky, who has blogged about his disdain for trolls, chose to pay his lawyers instead of the troll.

    “Our suspicion is that these guys don’t want to go to trial with anyone,” said Kniser. “And that theory is confirmed when they walk away for nothing.”

    This is the second time in two weeks that Lodsys has avoided a decisive ruling about its business. Last week, the judge overseeing the case refused to rule on a motion by Apple that all its developers were licensed, because Lodsys managed to reach settlements “quickly and cheaply” with the seven Apple developers in this litigation.

    Reply
39. October 3, 2013 at 11:29 am

    Tomi Engdahl says:

    Angry entrepreneur replies to patent troll with racketeering lawsuit
    Patent trolls are legal. Can one be nailed for extortion? One man is betting yes.
    http://arstechnica.com/tech-policy/2013/09/angry-entrepreneur-replies-to-patent-troll-with-racketeering-lawsuit/

    Most business owners sued by patent trolls don’t talk about it to anyone other than their lawyer; a typical response is to cross one’s fingers and hope the problem goes away. It won’t, of course. Often they do the next best thing—hope it will go away for as little money as possible.

    FindTheBest CEO Kevin O’Connor, who also cofounded online ad giant DoubleClick, decided several weeks ago he would talk about it—publicly, and often. O’Connor wrote to tech sites like PandoDaily telling them of his determination to “slaughter” the troll, the “scum of the earth.” And in August, he pledged $1 million of his own money to fight the troll that went after his company.

    Reply
40. October 3, 2013 at 1:15 pm

    Tomi Engdahl says:

    Personal Genomics Firm 23andMe Patents Designer Baby System, Denies Plans to Use It
    http://www.wired.com/wiredscience/2013/10/23andme-patent/

    As described in a patent recently granted by the United States Patent Office, consumer genomics company 23andMe has developed a system for helping prospective parents choose the traits of their offspring, from disease risk to hair color. Put another way, it’s a designer baby-making system.

    The company says it does not intend to use the technology this way. “When we originally introduced the tool and filed the patent there was some thinking the feature could have applications for fertility clinics,” said Catherine Afarian, a 23andMe spokeswoman. “But we’ve never pursued the idea, and have no plans to do so.”

    Filed in December 2008, the patent — number 8543339, “Gamete donor selection based on genetic calculations” — sounds like something out of Gattaca, the 1997 movie that came to symbolize tensions between self-determination and biologically ordained fate.

    Reply
41. October 18, 2013 at 7:46 am

    Tomi Engdahl says:

    USPTO confirms all claims in key ‘Steve Jobs’ iPhone patent
    Re-establishes foothold for Apple lawsuits

    Read more: http://www.electronista.com/articles/13/10/17/re.establishes.foothold.for.apple.lawsuits/#ixzz2i2tsFOhw

    Reply
42. October 19, 2013 at 3:30 pm

    Tomi says:

    Extracting a Toll From a Patent ‘Troll’
    http://www.nytimes.com/2013/10/18/business/extracting-a-toll-from-a-patent-troll.html?pagewanted=all&_r=0

    It looks as if “patent trolls” are going to lose a big one.

    The Supreme Court announced this month that it would hear two appeals of decisions by the federal appeals court that oversees all patent cases. In each case, the company that was sued for patent infringement won on the merits but did not prevail in having its legal fees paid by the losing party.

    The court will decide whether to make it much easier for victors in patent suits to force their opponents to pay their legal fees. If it does so — and patent watchers generally assume that the court would not have agreed to hear the appeals if at least some justices were not sympathetic to the companies being sued — that could make it much more expensive to file a frivolous suit, and perhaps scare patent holders away from filing meritorious suits. Losing such a suit could conceivably bankrupt a small company if it was forced to pay the other side’s legal bills, which can run into the millions of dollars.

    Reply
43. October 21, 2013 at 1:05 pm

    Tomi Engdahl says:

    Twitter’s Lack of Patents Seen as a Risk to Investors
    http://www.bloomberg.com/news/2013-10-18/twitter-pre-ipo-patent-paucity-seen-posing-investor-risk-tech.html

    Profits aren’t the only thing lacking at Twitter Inc. (TWTR) ahead of its planned initial public offering. It’s got a dearth of patents, too.

    The microblogging service said in its prospectus this week that it has nine issued U.S. patents.

    While Twitter’s policy is an effort to limit patent litigation, some investors and analysts are concerned it could backfire. Evidence shows that intellectual property can help companies raise more funds in their offerings, as patents enable investors to quantify the value of technological breakthroughs.

    “The lack of a large number of issued patents is a little concerning,” Maulin Shah, managing director at Envision IP LLC, an advisory and research firm in New York, said by phone. “If Twitter does deal with patent-infringement lawsuits, they don’t have too many patents to lean on to countersue. That does put Twitter at a disadvantage.”

    Twitter says in its prospectus that many competitors have “substantially larger patent” portfolios, which could make it a target for litigation.

    At the same time, Twitter has said that too many patents may hinder innovation.

    The IPA will help the company lure and retain more talented engineers

    The policy’s biggest risk is that employees will take their inventions with them, posing a competitive threat if they leave

    “This is a radical way of dealing with patents, which is far different than anything investors have seen before,” said Sica, who oversees about $1 billion under management. “People may appreciate the openness and invitation of competition.”

    “Investors are asking if Twitter’s not protecting their business,” Peck said by phone. “I think there’s a business risk there, but at this point, the network effect protects Twitter.”

    “The more that IP is protected, the less infringement opportunity there is, and therefore, would increase the valuation,” said Peter Adriaens, a professor of entrepreneurship and strategy in the Stephen M. Ross School of Business at the University of Michigan.

    Reply
44. November 4, 2013 at 3:08 pm

    Tomi Engdahl says:

    Samsung Extends Agreement to License Nokia Patents, Though Deal’s Price Tag Yet to Be Determined
    http://allthingsd.com/20131104/samsung-extends-agreement-to-license-nokia-patents-though-deals-price-tag-yet-to-be-determined/

    Nokia announced Monday that Samsung has extended for five years a patent agreement that was set to expire at the end of this year.

    However, a clause in the deal means that the price to Samsung will have to be determined through binding arbitration that likely won’t be concluded until 2015.

    “This extension and agreement to arbitrate represent a hallmark of constructive resolution of licensing disputes”

    Reply
45. November 19, 2013 at 12:01 pm

    Tomi Engdahl says:

    Patent law? It’s all about Apples, Newton and iPads
    Why even free marketeers love need IP
    http://www.theregister.co.uk/2013/11/19/patents_explained_with_newton_and_apples/

    The basic problem is something called “public goods”. No, these are not things that the public likes, nor what the public wants. Nor is it particularly the things that would be good for the public. It’s, strictly speaking in the jargon, things that are non-excludable and non-rivalrous. In any form of a free market or capitalist system (the two are very different ideas: one refers to how goods and services are distributed, the second to who owns the productive assets) these public goods also pose a particularly thorny problem.

    Reply
46. November 20, 2013 at 12:05 pm

    Tomi Engdahl says:

    Apple makes last pitch for why Samsung owes $380M more
    http://news.cnet.com/8301-13579_3-57612958-37/apple-makes-last-pitch-for-why-samsung-owes-$380m-more/

    An attorney for the Cupertino, Calif., electronics giant stresses during closing arguments in a damages retrial that Apple took a huge risk by making the iPhone and that Samsung “destroyed its revenue.”

    Apple on Tuesday argued that Samsung’s patent infringement significantly harmed the company and that the electronics giant deserves an additional $380 million for that damage.

    Apple attorney Bill Lee said that Samsung’s copycat tactics helped it gain significant market share while other rivals struggled. And he said the patent infringement set back Apple.

    “Apple can never get back to where it should have been in 2010,” Lee said Tuesday during closing arguments in a federal court here.

    Samsung attorney Bill Price, meanwhile, argued that Apple deserves only $52 million in additional damages because Apple’s patents are limited.

    “Apple has tried to mischaracterize these patents so they are the iPhone,” Price said during his closing arguments. But “these patents are very narrow…Apple doesn’t own beautiful and sexy.”

    A jury last year determined Samsung had infringed on five patents related to the iPhone’s design and functionality. A judge earlier this year vacated about $450 million of the original award and ordered a new jury to convene to recalculate the damages for patent infringement. Samsung is still on the hook for about $600 million, but Apple is asking for $380 million more. Samsung believes it only owes Apple $52 million.

    Samsung sold 10.7 million infringing devices, generating $3.5 billion in revenue. Apple only wants about 10 percent of that revenue, leaving about 90 percent of the revenue to account for the differences in Samsung’s devices, such as Android and bigger screens, Lee said.

    “Samsung destroyed Apple’s revenue…This is not punishment…This is saying, give us back what you got.”

    Reply
47. November 20, 2013 at 11:56 pm

    Tomi Engdahl says:

    Software Patent Reform Stalls Thanks To IBM and Microsoft Lobbying
    http://yro.slashdot.org/story/13/11/20/1834248/software-patent-reform-stalls-thanks-to-ibm-and-microsoft-lobbying

    “The Washington post reports on the progress of a piece of legislation many hoped would address the glut of meaningless software patents used as weapons by patent trolls. Unfortunately, the provision that would have helped the USPTO nix these patents has been nixed itself. The article credits IBM, Microsoft, and other companies with huge patent portfolios for the change, citing an ‘aggressive lobbying campaign’ that apparently succeeded.”

    Reply
48. November 25, 2013 at 2:43 pm

    Tomi Engdahl says:

    Apple Awarded $290M in Patent Dispute with Samsung
    Apply may work to ban Samsung products
    http://www.eetimes.com/document.asp?doc_id=1320202&

    A federal jury awarded Apple over $290 million Thursday in an ongoing patent dispute with Samsung Electronics regarding technology used in iPhones and iPads. The decision came after two days of deliberation.

    Samsung must pay Apple $290,456,793 in additional damages for patent infringement; Apple requested $380 million in damages while Samsung said it should pay $52M for the use of Apple in 13 older products.

    “For Apple, this case has always been about more than patents and money,” Apple spokeswoman Kristin Huguet

    In 2012, the San Jose jury decided most of the Samsung smartphones in the case infringe three design patents on the iPhone’s industrial design and app screen (D 593,087; D 618,677; and D 604,305).

    As a result, Apple was awarded more than $1 billion for infringed patents in 26 products.

    “The next phase is Apple going to the court to get some products banned, and that will be next big battle,” Bajarin said. “None of us have a good hold on how the courts would rule on that. These courts have ruled in Apple’s favor I think the chances lean more toward (Samsung devices) banned. But Samsung will put up a big fight.”

    Reply
49. November 27, 2013 at 1:27 pm

    Tomi Engdahl says:

    Apple Defeats Patent Claim Over Invention of Smartphone
    http://www.bloomberg.com/news/2013-11-25/apple-wins-patent-trial-brought-by-purported-smartphone-inventor.html

    Apple Inc. (AAPL), the world’s most valuable technology company, was found by a federal jury not to infringe the patent of a 70-year-old electrical engineer who claims he came up with the idea for the smartphone.

    The jury in Los Angeles yesterday rejected the claim by NetAirus Technologies LLC, the company owned by inventor Richard L. Ditzik, that Apple’s iPhone infringes its patent for a handheld device that combines computer and wireless-communication functions over both a Wi-Fi and cellular telephone network.

    Apple last month defeated patent holder Wi-Lan Inc. (WIN) at trial over a $248 million royalty demand for wireless technology used in mobile devices, and last week won $290 million in damages from Samsung Electronics Co. (005930) in a retrial over damages following a jury verdict in 2012.

    The trial in Los Angeles was limited to damages NetAirus could seek for infringement by Apple’s iPhone 4 since October of last year, when the patent was recertified with changes in the language of the claims.

    Reply
50. November 29, 2013 at 12:55 pm

    Tomi Engdahl says:

    Google Wants to Write Your Social Media Messages For You
    http://searchenginewatch.com/article/2309696/Google-Wants-to-Write-Your-Social-Media-Messages-For-You

    Overwhelmed by social media? Google may have patented a solution for you, in the form of software that mimics the types of responses you make to update messages on various social networks.

    The patent, by Ashish Bhatia representing Google, describes a comprehensive social media bot, providing suitable yet seemingly personalized responses on social media platforms.

    Essentially, the program analyzes the messages a user makes through social networks, email, text messaging, microblogging, and other systems. Then, the program offers suggestions for responses, where the original messages are displayed, with information about others reactions to the same messages, and then the user can send the suggested messages in response to those users.

    We’ve all seen typical blog spam comments made to blog posts along the lines of “Great, keep up the good work” or “This was really insightful and made me think.”

    However, this program would generates personalize reactions and messages that continue to be tailored to the user and specifically to the messages being responded to.

    Reply