Headlines:
| Microsoft v. Motorola, Part 2, Will Be a Jury Trial, Aug. 26 ~pj |
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Tuesday, May 21 2013 @ 03:32 AM EDT
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The next phase of the Microsoft v. Motorola litigation in Seattle will begin on August 26th. It will be a jury trial, as Motorola requested. I hope some of you are nearby and can attend. This will be the part about Microsoft's claims of breach of contract based on its assertion that Motorola violated a RAND contract by its opening bid being allegedly too high.
To describe it is to express the ridiculousness of what has been happening in Seattle. Why do I say that? I'll show you.
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| SIIA Tells the FTC What Patent Trolls Are Doing to the Software Industry ~pj |
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Monday, May 20 2013 @ 01:00 AM EDT
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There are now 68 public comments listed on the FTC's website on the topic of patent trolls. Patent Progress's David Balko's
article, The End-Users Strike Back, notes that a surprising number are from end users, defined as "retailers, financial services, grocery stores, advertising, hotel industries, and even oil companies [who] are coming out in droves to fight abusive patent troll tactics":Patent trolls have started to target end-users, especially small companies, because they typically lack the expertise, experience and ability to fight questionable claims. Litigation costs can quickly mount up to $250,000 to $500,000, and reach millions if the case goes all the way through trial (not to mention appeals). End-users also have to deal with disruptions to their business from discovery requests and managing the litigation. Often companies are forced to divulge secret financial and technical information as well as divert key personnel from their work to participate in depositions and give testimony. Patent trolls, on the other hand, have few costs in pursuing a suit because they do not operate in any market. The lawsuit has no disruptive effect on the patent troll’s business because it is the patent troll’s business. You may enjoy going through them, but I thought you might like to see one of the more thoughtful of the public comments, the one from Ken Wasch [PDF], President of the
Software & Information Industry Association, or SIIA, a trade association for the software industry with 700 plus members, because it provides details on how the patent trolls attack and what the results have been. I don't see members listed on the site, but the
Software Board lists a number of companies, including Red Hat and IBM, and a number of smaller companies. And the comment states that trolls are hindering innovation, being "masters at abusing and manipulating the patent system." The footnotes alone are worth noting, but the really interesting part is how the comment explains how trolls do what they do. I learned something I've long wondered about, why trolls hide who they are in litigation.
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| Motorola Files Reply Brief in Appeal of Judge Posner's FRAND Decision in Apple v. Motorola-~pj |
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Friday, May 17 2013 @ 12:40 PM EDT
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The beat goes on in the Apple v. Motorola appeal of Judge Richard Posner's ruling dismissing both parties' claims with prejudice, saying neither was entitled to damages or an injunction. Both are appealing, but for different reasons. Motorola has now filed its redacted reply brief [PDF] in response to Apple's response and reply brief [PDF]. And as soon as Judge James Robart issued his Microsoft-friendly ruling in Microsoft v. Motorola in the Seattle litigation, Apple sent
a letter to this appeals court, bringing it to the court's attention, because it supports Apple's position and calls Motorola's patents a trivial contribution to the standard.
Motorola defends the value of its patents and then tells the Federal Circuit that RAND patent holders have to be able to seek injunctions against "intransigent" licensees like Apple. Otherwise, they'll take advantage, delaying by litigation any reckoning for years while benefiting from the technology without paying for it. What exactly should happen to a company that refuses to pay and won't accept an offered rate or a court-set rate? The RAND patent holder *still* can't do a thing? No injunction? Nothing? Apple began its infringement, Motorola points out, in 2007. It's now 2013, and it still hasn't paid a dime. "Motorola should have the opportunity to seek an injunction to stop Apple’s six years of ill-gotten gains from stretching into a decade or more," Motorola says.
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| Happy 10th Anniversary, Dear Groklaw! Happy 10th Anniversary to Us! ~pj |
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Thursday, May 16 2013 @ 12:01 AM EDT
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We made it. A decade of Groklaw as of today. Who'd a thunk it?
Not I. When I started, I thought I'd do a little fiddling around for a couple of months to learn how to blog. But then all you guys showed up and taught me some important things that I didn't know, and vice versa I hope, and here we are, on our 10th anniversary, still going strong, together on a very different path than I originally imagined. The important moment for me was when I realized the potential we had as a group and decided to try to surf this incredible wave all of you created by contributing your skills and time. I saw we could work as a group, explain technology to the legal world so lawyers and judges could make better decisions, and explain the legal process to techies, so they could avoid troubles and also could be enabled to work effectively to defend Free and Open Source Software from cynical "Intellectual Property" attacks from the proprietary world. And it worked! That's the amazing part. It actually worked. So far, so good.
If I take three things away from our experience, it's this: 1.) Education is never a waste, 2.) All of us together are smarter and more powerful than any one of us alone, and 3) FUD withers in sunlight. It only works when people lack accurate information. Group dynamics are awesome. Whenever there is a new need, somehow the right people show up and fill it. Whether it was meticulously demolishing SCO's claims, one by one, or doing patent prior art searching, or explaining that software is mathematics and hence unpatentable subject matter, or noticing what the real game is in the patent smartphone wars, you came through with competence, donating your knowledge, research, and skills to the group effort. And you did it entirely as volunteers, as a free gift to the world. Groklaw was attacked with venom, of course. But here we are, ten years later, still standing.
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| Hackathon Trademarked in Germany? Now What? ~pj Updated 2Xs |
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Monday, May 13 2013 @ 02:42 PM EDT
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I am sure you saw that somebody in Germany, a company called nachtausgabe.de, has sneaked through a
trademarking of the word HACKATHON in Germany. There was no opposition, because nobody knew about it. We know now, however, so what can anyone do about it? It turns out, plenty.
It's a word that OpenBSD and Sun each came up with independently at the same time back in the '90s, for heavens sake, and it surely can't belong to any one company now that it's in the dictionary and everyone has freely used it for years now. Anyway, as soon as I read about it, I wrote to the German equivalent of the USPTO, DPMA, the German Patent and Trademark Office, and I've learned some things that can still be done. I'll share them with you, so the community knows how to go forward if it proves necessary.
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| Federal Circuit, en banc, rules in CLS Bank ~pj Updated 3Xs |
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Friday, May 10 2013 @ 03:58 PM EDT
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OMG. CLS Bank v. Alice Corp. has been decided [PDF] by the the Federal Circuit en banc. And Patently O says the court "finds many software patents ineligible"!As described more fully below, we would affirm the district court’s judgment in its entirety and hold that the method, computer-readable medium, and corresponding system claims before us recite patent-ineligible subject matter under 35 U.S.C. § 101.1 _____
1 While Chief Judge Rader is correct to note that no single opinion issued today commands a majority, seven of the ten members, a majority, of this en banc court have agreed that the method and computer-readable medium claims before us fail to recite patent-eligible subject matter. In addition, eight judges, a majority, have concluded that the particular method, medium, and system claims at issue in this case should rise or fall together in the § 101 analysis. The Federal Circuit. OMG. We've
worked hard for so many years to get to this point, I almost can't believe it. And I suppose it's possible it could be appealed, but this is proof of what I've always told you, that education is never a waste. Judge Rader is very upset, I gather. He has written a dissent. But he didn't prevail. And I'm sure he gave it his best effort. OMG. This is a new day. I knew you'd want to know *that* immediately. We can read and analyze it later in more detail, so stop back by. After I read it again, I'll be sure to post it and we can discuss.
I remember the first time we wrote on Groklaw that software and patents need to get a divorce. Remember? So long ago, and how everybody laughed at us. I remember that too. I am thinking about Apple and Microsoft and all the software patent bullies. Well, let's not get ahead of ourselves. I'll read it more carefully now.
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| Blackberry Tells the Federal Circuit Judge Posner Got It Wrong Re No Injunctions for FRAND Patents in Apple v. Motorola ~pj |
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Friday, May 10 2013 @ 02:57 AM EDT
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Blackberry's amicus brief [PDF] is now made public in the Apple v. Motorola appeal of Judge Richard Posner's
order which seemed to say that if you own FRAND patents, you have no right to seek an injunction under any circumstances. But that is not how folks understood their rights back when they volunteered their patents for use in standards; it's a change in the rules midstream. And Blackberry tells the Federal Circuit exactly that. This is a change, and it isn't fair, or in the public interest. SEP owners might behave badly, but so can prospective licensees. Here's how attorney Matt Rizzolo at the Essential Patent Blog
sums up the Blackberry argument: Just as it has argued in prior submissions to agencies such as the Federal Trade Commission and the U.S. International Trade Commission, BlackBerry asserts here that a categorical rule against injunctions for FRAND-encumbered standard-essential patents is wrong — both as a matter of policy and as a matter of violating Supreme Court precedent. BlackBerry alleges that industry participants have “never understood FRAND to absolutely preclude a patent holder from seeking injunctions.” The misunderstanding by one and all, if that is what it is, stems from accepting Apple's argument that a FRAND agreement is a contract, as
Motorola's brief points out, but if it's a contract, then contract law should apply. Motorola never waived its right to injunctions, and since that is a right under law, it would have to have specifically waived its rights to lose them. Not even judges can just waive their hands and remove legal rights. Why, indeed, would they want to?
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| Google, Red Hat, HTC, SAP and Rackspace Seek to File Amicus in Apple v. Samsung Appeal ~ pj |
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Thursday, May 09 2013 @ 09:47 AM EDT
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Google, Red Hat, HTC, SAP America, and Rackspace have asked leave of the Federal Circuit Court of Appeals to file an amicus brief [PDF] in the Apple v. Samsung appeal. That's on the first case., the one Samsung lost but has been whittling down a bit in post-trial motions. Here's the issue they'd like to address: Amici are all innovative technology companies that develop and provide a variety of products and services that, like the mobile devices at issue in this appeal, incorporate a wide array of features. As such, an issue presented in this appeal – whether a court may enjoin the sale of innovative and technologically complex products based on the incorporation of trivial patented features without evidence
that the accused features drive sales of the products – is a matter of great concern to amici.
Apple opposes [PDF]:The lead party on the brief, Google, Inc., admittedly has a direct interest in the outcome of this appeal. As the motion explains (ECF No. 55 at 4; ECF No. 60 at 4), Google is the developer of the Android operating system running on the Samsung smartphones that Apple seeks to enjoin in this case. That interest conflicts with the traditional role of an amicus as “an impartial friend of the court—not an adversary party in interest in the litigation.” United States v. Michigan, 940 F.2d 143, 165 (6th Cir. 1991) (emphasis in original). Even if they win, they still lose, though, because there are several others seeking to file the same material, and they are not by any stretch of imagination parties in interest. Except for HTC, none of the rest of the proposed filers is even in the mobile phone marketplace.
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| SCO: But waitaminnit, yer Honor ~pj |
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Wednesday, May 08 2013 @ 01:15 PM EDT
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SCO, of course, is asking [PDF] the judge in U.S. District Court in Utah to reconsider his
order denying SCO's request to reopen its case against IBM. You knew they would:
SCO submits that reconsideration is appropriate because the Bankruptcy Court overseeing SCO’s bankruptcy proceedings lifted the stay of IBM’s counterclaims in February 2012 and IBM agreed to the reopening of the case should that stay be lifted. The Bankruptcy Court order lifting the stay was previously submitted to the Court with SCO’s Request to Submit for Decision, on June 14, 2012. (Exs. A and B.) Accordingly, SCO respectfully asks the Court to reconsider its decision and grant the Motion to Reopen the Case forthwith.
They are right about the Bankruptcy Court lifting the stay. So unless the judge is much more clever than I am, which is likely actually, I suspect he'll have to grant the motion to reopen, and then we'll see IBM make its moves. But of course, SCO wants more.
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| The Novell v. Microsoft Hearing at the 10th Circuit - Eyewitness Report ~pj |
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Monday, May 06 2013 @ 06:59 PM EDT
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Our own Justin Ellis attended today's hearing at the 10th Circuit Court of Appeals on Novell's appeal in Novell v. Microsoft. This is the antitrust litigation Novell brought over WordPerfect. He has a report for us. He begins with his general impressions, and then provides his notes on the arguments. To help you follow along, here are some resources: His general impression is that Microsoft will prevail, as the judges seemed more positive toward its arguments. But keep in mind that you can't always tell what judges are thinking from their questions.
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Filner Urges ‘Jury Nullification’ In Medical Pot Dispensary Case
The mayor is calling on Chang’s eventual jurors to send a message.
"It's time, like with Prohibition, to step back and say this was a stupid thing to do,” Filner said outside the courthouse. “Let's step back, and juries ought to take the lead and say that to the federal government…and if the federal government isn't listening to the mayor, maybe they'll listen to the jury." [PJ: Wow. You don't see a mayor calling for jury nullification every day. Here's what jury nullification is. Lawyers are not allowed to tell juries about it.] - NBC 7 San Diego
Google Search Gets Smarter
However, these additions to Chrome pale in comparison to the change that the update brings to Google Search: The new version of Chrome enables conversational search, a partial implementation of search innovation
discussed last week at the company's annual developer conference. Specifically, the latest desktop version of Chrome lets Google speak answers back, which Chrome already does on mobile devices. This interface enhancement accompanies ongoing backend changes to Google Search that makes Google's responses seem smarter.
"Conversational search has started rolling out on Google.com in the latest version of Chrome," a Google spokeswoman confirmed in an email. "You can just click the mic in the search box, ask your question in a natural way, and get spoken answers." - Thomas Claburn, InformationWeek
The March Toward Patent Reform Continues
Today, Sen. John Cornyn (R-Texas) introduced the Patent Abuse Reduction Act, a wide-ranging bill targeting abusive litigation tactics—a favorite tool of the patent troll. ...
The not-so-good news is that these reforms are all litigation focused and, thus, limited. We believe the problem is much bigger. The bill does not address patent quality and fails to consider what the Patent Office could do to help those facing lawsuit threats. It does not include protection for end users, consumers who find themselves staring down patent trolls over widely available technologies. And it fails to address the very root of the problem by not considering whether we should be able to patent software to begin with. - Julie Samuels, EFF
Getting started with login verification
This is a form of two-factor authentication. When you sign in to twitter.com, there’s a second check to make sure it’s really you. You’ll be asked to register a verified phone number and a confirmed email address. - Twitter
Apple levels its latest patent complaints at Samsung’s Galaxy S4
Last week, Apple added a footnote to a filing, saying it hoped to include Samsung's Galaxy S4 in its infringement suit. Now, the company has filed a motion to include not only the S4 but also a wide array of Google services. According to Apple lawyers, the Google "Quick Search Box," and the later Google Now function, infringes two Apple patents....The company is also investigating Google Play Books, Google Play Music, Google Play Movies and TV, and the Google Play Store and Android Market. [PJ: Apple is not backing down, obviously, and it raises two questions: are the patents even valid? and is this just about harassment rather than actual concern about patents? - Megan Geuss, ars technica
IP theft commission: US needs to take strong action
About US$300 billion worth of intellectual property is stolen from the US every year, with 50 to 80 percent of the theft coming from China, according to the report, released Wednesday by the Commission on the Theft of American Intellectual Property, a bipartisan group of former government officials and business representatives.
The US government needs to take a series of strong measures to protect US IP because current measures are ineffective, commission members said. The US needs to make it much more costly for nations to encourage IP theft and for companies to engage in it, said Jon Huntsman, co-chairman of the commission and former U.S. ambassador to China and Republican presidential candidate. - Grant Gross, ComputerWorld
Vermont Attorney General files suit against notorious scanner non-practicing entity
We’ll let you read the complaint [LINK] and the press release [LINK], and Ars Technica‘s Joe Mullin already has a good article on the suit. Essentially, though, it looks like the Vermont AG alleges that MPHJ and 40 shell companies violated Vermont Consumer Protection Act by sending demand letters in bad faith to numerous Vermont businesses — and that MPHJ never investigated whether these entities infringed, never actually intended on enforcing its patents, and simply wanted to extract settlements under the mere threat of litigation. The complaint seeks an injunction against MPHJ, as well as full restitution to the Vermont businesses and civil penalties of up to $10K for each violation.
While state law claims relating to patent infringement assertions are not automatically preempted by federal law, there are inevitably going to be preemption and/or Noerr-Pennington immunity issues that will have to be sorted out here. - Matt Rizzolo, The Essential Patent Blog
First Hand Account Of Judicial Smackdown Of Prenda In Minnesota
Judge Alton was clearly agitated going into this. In reference to the Prenda business model she said, "This is fraud, clear and simple." She also said, "I will be reporting this to the Lawyers Board." In fact, she would make a similar comment at least one more time at the end of the hearing. Still addressing Hansmeier, she went on, "Your involvement in this case is a TRAVESTY!" She added impact (both figuratively and literally) to that point by slapping her hand on the bench.
If I closed my eyes, I could have very easily assumed I was watching an episode of Judge Judy at this point. Judge Alton's passion and inflection as she admonished Prenda's behavior was, quite frankly, a tremendous surprise to me as a non-attorney. My discussions with actual attorneys after the hearing confirmed the abnormality of the scene.
In an attempt to defend their activities, Hansmeier referenced the the actions of the RIAA and MPAA. Judge Alton was unimpressed. She told him, "That doesn't mean you become your own zealot!" Further berating Prenda's pattern of mailing threatening settlement letters to alleged copyright violators, Judge Alton said, "You are guilty of fraud every time you send one of these letters." - TechDirt
Apples Tries to Use Decade-Old Patents to Ban Samsung Galaxy S IV
Thus it is perhaps expected that Apple would be return to its favorite tactic -- looking to troll Samsung in court. Its latest accusation is that Google Inc.’s Android "Google Now" service violates five invention claims that Apple has patented, with respect to its Siri voice search/assistant that it co-designed with Nuance Communications Inc.. - Daily Tech
USPTO: Memo to the Examiners re CLS Bank
"The purpose of this memorandum is to notify the Patent Examining Corps that, at present, there is no change in examination procedure for evaluating subject matter eligibility. Current procedure detailed in MPEP 2106 should continue to be followed....Given the multiple divergent opinions, the USPTO is continuing to study the decision in CLS Bank and will consider whether further detailed guidance is needed on patent subject matter eligibility under 35 U.S.C. § 101." --
Federal Circuit Decision in CLS Bank et al. v. Alice Corp. (signed May 13, 2013)
[PDF]
[PJ: The USPTO says it has no plans to alter
their wicked ways. : D
Not yet, anyway. It's not really surprising, given the unusual
split and the CLS Bank decision regarding the particular patents before the court. Nobody knows now what is and isn't patentable, which is actually better than the situation before CLS Bank, in my view. They used to think they had it right. Not so much now. So stay tuned.] - USPTO
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