Apple loses patent retrial to the litigious VirnetX, ordered to pay $300M
techcrunch.com
techcrunch.com
"The U.S. Patent and Trademark Office conducted parallel reviews of the four patents and on Sept. 9 said none covered new inventions." [1]
So now it's up to the Federal Circuit to determine whether the Patent Office's ruling is right.
[1]: http://www.bloomberg.com/news/articles/2016-10-01/virnetx-wi...
If the Federal Circuit does find the patents invalid, the trial will have been for nought.
(You could argue that it would have been better to wait for the validity to be determined before proceeding with the trial, and indeed I think Apple did, but East Texas being East Texas the judge went ahead with the trial anyway)
What exactly is is reputation?
> Last year, there were just over 6,000 patent suits filed in federal courts around the country. One in four of those cases (24.54% to be exact) were filed in the Eastern District of Texas. But why do patent plaintiffs, especially trolls, see it as such a favorable forum? Partly, the district's relatively rapid litigation timetable can put pressure on defendants to settle. But other local practices in the Eastern District also favor patentees. And, in our view, they do so in a way that is inconsistent with the governing Federal Rules, and work to mask the consistent refusal by the courts in the Eastern District to end meritless cases before trial.
It has a reputation for being so favorable to software patents that it's worth setting up an office in the district just so you can have that judge decide your cases.
2003: 14 cases
2004: 59 cases
2006: 236 cases
2013: 1386 cases (24.5% of federal patent cases)
2015: 2540 cases (43.6% of federal patent cases)
Whether or not the Eastern District (and specifically Judge Gilstrap) are actually more favorable to patent suit plaintiffs, this is straight up abuse of venue and that causes it's own issues. The cost to a defendant to litigate their case in Tyler, TX is an unnecessary burden.
It seems like there are problems in the patent office with issuing a lot of patents that shouldn't have been issued in the first place, but there is also a problem with there being several judges who collectively control billions of dollars worth of legal decisions.
So if you're going to legislate, it seems to me that patents should be easier to overturn and cases need to be spread more uniformly across jurisdictions.
Normally when a federal case gets appealed, it goes to the court of appeals for the part of the country where the case originated. But appeals in patent cases go exclusively to the Court of Appeals for the Federal Circuit (CAFC). This has led to the CAFC diverging significantly from traditional interpretation of patent law and to several strong rebukes from the Supreme Court, thanks in large part to the feedback loop of primarily seeing cases from people seeking highly expansive readings of patent law. Restoring diversity to patent cases -- by having appeals go to the geographic circuit courts instead of concentrating them all in a single specialized court -- would do a lot to roll back the overzealous expansions of patent law we've seen in recent decades.
How does that solve the problem? Wouldn't normal appeals courts see the exact same set of cases as the patent circuit currently does, under this proposal?
In reality, probably most cases would end up in the Fifth Circuit because that's the one that gets appeals from the Eastern District of Texas, but that's when you can step in and start pushing to avoid the venue-shopping problem that weighs down East Texas with patent cases.
[0] http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea...
> cases need to be spread more uniformly across jurisdictions.
> Honestly, a more meaningful step would be to remove the Federal Circuit's exclusive jurisdiction over patent case appeals.
> Restoring diversity to patent cases -- by having appeals go to the geographic circuit courts instead of concentrating them all in a single specialized court
I think we agree on the principal that one court shouldn't have that much power (unless we're talking about the supreme court I suppose, but that serves a different purpose), how would a change like that even be implemented? Would laws have to be passed state by state or would federal law supersede that? Is there a better way to reduce the power of patent trolls? I haven't heard any, and I've followed the issue on and off for a good decade now without seeing much change.
[1] https://en.wikipedia.org/wiki/United_States_patent_law
[2] https://en.wikipedia.org/wiki/United_States_District_Court_f...
[3] https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...
https://www.youtube.com/watch?v=sG9UMMq2dz4 its like 5 min in.
Well, we could try passing a law like this:
"Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business."
And we tried passing such a law. The text above is 28 U.S.C. §1400 (b) and has been the law of the United States since the 1897 patent statute. The Supreme Court says, "venue in patent infringement actions is solely and exclusively governed by § 1400(b), as a special and specific venue statute applicable to that species of litigation," (Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957)) and has never reversed or amended that opinion.
But when you live under a corrupt and openly self-interested judiciary, you can't depend on the law to protect you. In 1982, after much lobbying from the patent bar, Congress directed all appeals of patent cases away from regional circuit courts of appeal, where almost all other appeals go, to the newly created Court of Appeals for the Federal Circuit (CAFC). The patent bar wanted a court filled with appointees from its own ranks to create new case law that would force engineers and companies to pay out much more fealty and cash to the patent lawyers themselves.
And we get an explosion in patents and patent litigation. Software patents were legalized by the CAFC and the CAFC abolished the venue statute in the VE Holding case of 1990, driving patent litigation to the entrepreneurial judges of the corrupt East Texas District.
Usually a court can't just decide to abolish a statute like that, but when an appeals court has exclusive national jurisdiction, there's no check on its power. The Supreme Court justices often comment on the power and freedom from ordinary limits of the CAFC and it is the most often reversed 9-0 of the appeals courts, but the Supreme Court can rarely make time to reverse all the CAFC's messes. The CAFC takes about 2-5,000 cases a year and the Supreme Court takes a couple hundred, just a handful of those from the CAFC.
The TC Heartland case is currently under appeal to the Supreme Court asking it to reverse the CAFC abolition of this statute. If the Supreme Court takes the case, East Texas will soon be limited to cattle and civil cash forfeiture cases.
It seems, IIRC, that invalidation after the trial doesn't change the outcome of that trial
For example, set up an EFF like non-profit whose mission is to invalidate bad patents. Then these tech. companies can just throw money at the non-profit as a preventive strike against patent trolls working in their solution space.
(And once the emperor's clothes are shown to be gone, that IP is worth zero.)
If you really want to do something about this, you need to get political and change the rules. A stronger combined effort into lobbying would be a much better approach to solve this problem once and for all. It would also open up a path for other issues such as crypto, net neutrality and immigration that's also important to all of these companies.
When it's business as usual, these companies rather enjoy the benefits of having large portfolios filled with patents of dubious validity. They don't want to get the ball rolling on something that may end up costing them money in the long run, like drawing attention to the dubious nature of most patents or starting an initiative that may backfire by invalidating some of their own IP.
You'll find this is common with big companies. The law governing a certain type of conduct may be a totally incomprehensible, unpredictable, and uneven disaster, but incumbent players don't mind because for the most part, it enables them to scare off any upstart challenger by intimidation. The challengers who are too foolish to back down will generally struggle to keep representation and eventually end up completely destroyed (see Facebook v. Power Ventures), which makes a fine example to warn off any other cheeky upstarts who think they'll play hardball with the big conglomerate. These big companies know that their peers won't press the legal matters or try to get the law improved because they benefit from the same effects. Instead, two big companies with beef will, after some legal posturing, eventually come to a mutual licensing deal (which may be in the form of a settlement) where they each send the other a large check every month to license the patents that could be construed as covering components of each others' products.
The matter is only pressed when there's no mutually-beneficial agreement to be had, like in Oracle v. Google regarding the Java API; Google wants the right to re-implement the Java API as they see fit, without having to pay royalties, and Oracle wants the right to exact payment from anyone implementing the Java API. Indeed, some Sun insiders consider Google's refusal to license Java components (they had apparently been in talks at some point) as one of the final blows that forced Sun to sell.
However, the way that that intellectual property law is written, it's difficult to have firm, universally-applicable precedents established. Fair use is fundamentally a case-by-case basis, which means even if Google gets it established that their use of the Java API is fair (afaik, it has already been established that APIs are protected under copyright, so fair use is the applicable defense), it doesn't necessarily apply to anyone or anything else. That means big companies can still intimidate little guys by threatening to drag them through 10 years of ultra-expensive court proceedings, plus the risk of a judgment finding damages, injunctions, etc., if they don't immediately comply with the BigCo's demands.
Convoluted and murky law benefits the massive corporations, who would much rather pay lawyers a few million to dispose of a plucky competitor than actually have to fight that competitor in the marketplace.
Why would Google need to pay royalties to duplicate the SSO of 37 Java API's that were open sourced in 2008? If you really think companies should have to pay royalties for using the SSO of an API then perhaps we should start with Oracle paying IBM for their use of the SQL API's.
The problem comes when the bar for "inventive" and "novel" and "non-obvious" is too low, and a guy or girl in a garage facing the problem to be solved is just as likely to reinvent the solution independently. Often, it's the problem that shapes the solution, rather than any particular inventiveness.
It turns out, other engineering disciplines also have this problem, but because their times to market are much longer and more expensive, and their times of prior art are much longer (and thus the foundations are more well known/documented) it doesn't quite rise to the immediate existential threat that it does for independent software developers.
I'm not sure that follows. Do you think the ability to keep and preserve trade secrets is the same for all those fields? Keeping a trade secret in software that runs on end user' computers seems much more difficult than keeping the technique used in a chemical reaction a secret. I tend to think that just about everything software related would otherwise be out there and available.
I'm also not sure that coaxing trade secrets into the open is a significant reason that patents are good. At least, I have trouble thinking of cases in any of those fields (much less software) where I think that the overall rate of scientific progress in the world is better as a result of knowledge disclosed in a patent. Do you have examples? In particular, for something software related that is better known today because it was disclosed in a patent which has since expired?
There are important ways that software is different.
One is that software is inherently abstract. If you're making a battery or a machine or a drug, it matters what materials you use, what the temperature is at different points, how long the product lasts, how much it costs per unit to manufacture, etc. In software there is none of that. But without any of those constraints the inherent result is unreasonably broad patents.
This combines on the other end with the fact that software has effectively zero reproduction cost, so there is trivial cost for adding support for things. Which means combinatorial explosion. "You asked for a banana but what you got was a gorilla holding a banana and the entire jungle." If you're making batteries and you use A, B and C then it doesn't affect you if someone else has a patent on the combination of D, E and F. If you're making software there is no unit cost to adding support for everything from A to Z, so you do. But then it doesn't matter which combination of things someone patents, you end up unwittingly infringing it because you support everything and the patent covers some subset of everything.
The result is unworkable. The system can't function when everything infringes everything.
Microsoft (yes, even the polished up, lipstick on a pig, "new Microsoft") benefits from "bad patents" waaay more than it loses to a few random patent trolls. It actually lobbied to stop the elimination of "business method" patents, which are just lawyer-written garbage.
http://bgr.com/2013/05/01/microsofts-android-licensing-agree...
https://www.washingtonpost.com/news/the-switch/wp/2013/11/20...
Fortunately, business method patents are on their last legs thanks to Supreme Court's "Alice" ruling, but they can still cause damage (or profits, depending from which perspective you're look at it):
http://www.ipwatchdog.com/2015/08/04/are-business-method-pat...
Also it would be in the trolls interest to be able to continuously sue a company rather than bankrupting it and destroy a revenue stream.
Always East Texas. How is that crooked court still operating?
Sad.
Damn patent trolls :(
I assumed it was Apple marketing bullshit not external forces?
H.264 happened because the patent owners agreed to the standard not because the H.264 committee had some sort of legal authority to ignore the patent owners.
Originally it worked similar to iMessage in that you had a system to exchange identities but the actual communication was all P2P after that.
Apple had to change it to use their servers to get around the patents (which VirnetX claimed wasn't enough and was still infringing).
Once that changed there was no point in releasing it as an open standard since it required Apple's servers to operate.
If VirnetX prevails then Skype, Google Hangouts, and everyone else is infringing too and VirnetX will use the precedent to go after them as well. It's a common strategy: go after a couple of people first, establish a win, then use that to leverage settlements out of the remaining players.
The manufacturers proposed as settlement disable the feature being toggleable, and this was accepted.
The patent holder never got money, and people never stopped using his patent, they only made users unable to select if theg wanted silent mode or not.
A rrsult of this: WD has been for a while making low end WD Black and high end WD Blue with shared mechanics.
One model in particular, the WD Black 1TB is almost 100% identical to the blue version. Except it had acoustic management off, while blue had it on.
After noise complaints (people even returned hdds thinking it was broken) they made the black have it 100% identical to the blue... but as result despite being now silent, it is 30% slower, slow enough to cause buffer problems for musicians and video editors. (or to make megatexture problematic in id software games).
So in the end everyone lost. No money for troll, algorithm is still in use, but consumers now have problems to find the hdd they want (almost no manufacturer advertise the hdd is not silent... so if you need to buy a fast hdd, it is trial and error)
From https://search.rpxcorp.com/litigation_documents/9720690
> infringe at least system claims 10 and 12 of the ’135 patent
which are:
> 10. A system that transparently creates a virtual private network (VPN) between a client computer and a secure target computer, comprising:
> a DNS proxy server that receives a request from the client computer to look up an IP address for a domain name, wherein the DNS proxy server returns the IP address for the requested domain name if it is determined that access to a non-secure web site has been requested, and wherein the DNS proxy server generates a request to create the VPN between the client computer and the secure target computer if it is determined that access to a secure web site has been requested; and a gatekeeper computer that allocates resources for the VPN between the client computer and the secure web computer in response to the request by the DNS proxy server. > ...
> 12. The system of claim 10, wherein the gatekeeper computer determines whether the client computer has sufficient security privileges to create the VPN and, if the client computer lacks sufficient security privileges, rejecting the request to create the VPN.
So basically they are saying if you make a VPN that uses DNS as a trigger for creating connections and it and does a privilege check then you are infringing on their patent. Which means you are supposed to get their permission or pay them or something before you can sell software or services that do that?
To me, using the DNS server as a trigger for creating VPN connections seems like a good idea. But this in particular or something very similar might almost might be completely necessary unless you were going to pre-establish connections or paths between every single user in the network, which is absolutely infeasible in such potentially large networks.
Its like if someone spent a few minutes thinking about they would like DNS to work in their VPN, they would come up with this idea, or something similar.
How is it a good idea to give control over this sort of basic research concept to one company (or two working together)?
Software patents are just dumb.
IP law is badly broken, and as it happens, those who are most disparately impacted by its flaws (startups, individuals) are also the least well equipped to fix it. Nothing will change without pain being felt by those who are capable of influence.
Fuck em. Live by the sword etc...
http://www.fosspatents.com/2012/09/claim-check-if-apple-pate...
- no, it's not because you attacked Apple.
- yes, it's because you wrote a shallow comment that was factually inaccurate.
You can interpret it in your own way and might not like it that people remember it the way they do, but it's ludicrous nevertheless.
Seems like people voting things down have a very bad memory regarding history. I suggest they take a trip to 2012 Memory Lane and read up on the entire year.
Monster Cable used to use a design patent to threaten other cable manufacturers, too, seemingly largely without actual standing.
Samsung was being caught having a 155 manual (http://www.theverge.com/2012/8/8/3227289/samsung-apple-ux-ui...) of how to copy the iOS UI. That alone is so clear that it's not even funny.
That's a fact the iHaters always seem to left out, but the round corners on the other hand...
I find it very hard to believe they won that case on the pure fact another device had round corners.