Patent troll on the verge of winning 1% of iPhone revenue
arstechnica.com
arstechnica.com
Majority of the patent is explanation on how a VPN works, different mathematical explanations on how to generate random numbers, the theory behind secure communications. But none of that stuff is actually covered by the patent, so don't be impressed by it. What is covered is basically the straightforward and logical application of the explained VPN concepts, but the VPN concepts them selves are not patented.
I am not sure if the patent examiner of this patent was dazzled by the 50+ pages of VPN theory and just granted this thing. To me it's stunning! It's like filing a patent that in intricate detail explains how an automobile works and than sneaking in a claim that you invented that an automobile can be used to move personal belonging from place to place.
Claim 1 is a joke. How does this not apply to HTTPS? I would toss it and all its dependents.
Claim 13 is almost as obvious, but in this case I am not sure about the dependent claims. Some of them sound to me like they might be inventions.
Claim 10 seems stronger to me. Networking is not my field, so I am not at all sure there is not prior art, but at least it seems to contain an actual idea.
I'm not going to read the whole description, but a quick scan seems to support your contention that there is a lot of material here that is not referenced by the claims.
Despite the huge prolegomena which would in fact work as a crash course in fringe geometry and pseudoscience, it turns out to be a patent for a golf club (I think.)
The point being, how does stuff like this even get past USPTO? Don't they employ people to weed out the nonsense?
They have a design patent for the ornamental design of the iPad. Just like Google has design patents for the ornamental design of a smiley face, a usb cable, a “computer icon” etc etc. Just like Samsung has a design patent for the ornamental design of a "Terminal for portable mobile communication”, which based on the images looks like a tablet.
In 1981 some company got a design patent for the ornamental design of a briefcase, with rounded corners.
Please stop talking shit.
"Closely comparing Apple's patented design with Samsung's products reinforces the conclusion of substantial similarity. Samsung copied every major element of Apple's patented design:
* a flat, clear, black-colored, rectangular front surface with four evenly rounded corners [emphasis mine];
* an inset rectangular display screen centered on the front surface that leaves very narrow borders on either side of the display screen and substantial borders above and below the display screen; and
* a rounded, horizontal speaker slot centered on the front surface above the display screen,
* where the rectangular front surface is otherwise substantially free of ornamentation outside of an optional button area centrally located below the display."
Seriously, look at this a moment: http://i.imgur.com/iBD3A1z.jpg
Remove the phone answer/end keys from the bottom row, and it basically is the front of the iPhone. Re-read what you wrote above and look at that picture of the LG Prada. That design patent should have never been issued.
Samsung blatantly copied apple product designs, from the physical appearance of the device, to the design of the packaging right down to the design of the chargers and cables.
This is not speculation, it's fact.
I don't deny that most modern smartphones, including the iPhone, look vaguely similar to that LG. No way you would confuse them for the same product though.
Now look at this image: http://i.imgur.com/TmUj2.jpg
This isn't some case of "oh but Apple's design is obvious how can it not be the same?"
This is Samsung's business model.
Motorola RAZR (copied Samesung Blade) - even the name is a pun on the fact that its a copy (hint: razor blade)
Blackberry (copied as Samsung BlackJack) - again the even the name is a ridiculous rip off. This one went to court and funnily enough RIM won.
Samsung Innov8 (copied from Nokia N96)
In 2012 Samsung released their Chromebox, which copies the circular cover on the 2 year old MacMini. The MacMini has it there to allow RAM upgrades. The ChromeBox has no reason for it, besides copying the MacMini design.
In their advertising they have a history of either reproducing Apple ads (e.g. the way a phone and the earbuds are arranged). In one case, they literally photoshopped the iOS Google Maps app onto their own device.
Their "iRemote Control 4" is a ridiculously blatant copy of the iPhone 4
Do a quick search for "Dyson Samsung clone"
There is no question that Samsung copies it's competitors designs, packaging and advertising. Apple was granted a design patent and used that in its fight with Samsung.
Show me a case where Apple has used its design patent against a competitor that is not obviously trying to blatantly copy their devices?
Rather then looking at weather or not Samsung copied apple, let's look at the motivations. Because I believe that imitating someones design because you think its the best and the most practical way to do something should be perfectly ok. However, it is wrong to copy a design of your competitors in the hopes that consumers will confuse your product for your competitors. For instance, I would call BS on Apple arguing that a black rounded rectangle with rounded corners is somehow their design. It's just the most obvious and straightforward way of making an glass touch tablet. But then look at the power / sync cord. Can you justify that choice? No, there is no practical reason to make your cord look like that other than to make your product look more like an iPad.
They do say that imitation is the sincerest from of flattery, and I do tend to believe it, as long as the motivation is right. A company can look at the fact that iPads are doing really well in the market and tell it's designers and engineers: "Let's get a few of those iPads, play with them, figure out why people love them, and than make better one our selves, incorporating some of the features that we thing people really love about the iPad." I think that's what ASUS did with their Transformer line. They observed that a lot of people liked the simple and clean look of the iPad, and they made it even cleaner by removing all buttons. They also decided that people really want a option to have a keyboard on a tablet, as evidenced by the abundance of the keyboard cases for the iPad, so they added that function as well.
On the other hand, Samsung told its engineers: "Here is an iPad, copy it! No, don't bother figuring out why people like it, use those ideas, build on them, and maybe come up with something better. Just copy it. You see that idiotic, unnecessarily wide connector that only made any kind of sense when it was first installed in the original iPod, and not even then really. Copy that too."
So, to finish my thought, yes Apple is a bit bitchy when people copy their stuff. In case of most manufacturers I think they are wrong. In case of Samsung, I can see it, they copied Apple, and they did it for all the wrong reasons.
Companies have been getting design patents on generic looking devices for years, this one just got a lot of attention because it actually ended up in court. If Samsung's devices were simply the same shape as the iPad but weren't otherwise so similar, Apple would have had no case to argue, (and probably never filed the lawsuit) and no one would care about this patent.
For reference, the 30 pin connector wasn't actually on the first iPod - it was introduced with the 3rd gen. Previously they used a full sized Firewire 400 (1394A) port on top next to the headphone port.
You reaffirmed this by quoting that "They sued samsung over a number of combined similarities:" and then listing design features that the iPhone copied from the LG Prada.
1) Apple tries to sue a small German coffee shop over logo: http://gawker.com/5853402/apple-threatens-to-sue-tiny-german... (Now tell me honestly, does the logo of the 'fruit' apple really look similar at all to Apple's logo? I mean, that poor lady running the coffee shop was not even in electronics business, just serving some coffee! What did they think, the fruit apple is their property now? This is inhuman to do that to a small coffee shop in my opinion.
2) Apple sues Polish Grocery store over name "a.pl": http://www.pcmag.com/article2/0,2817,2409669,00.asp - Apple said they are trying to use their 'reputation' by using a name similar to theirs. really? Come on, .pl is Poland's top level domain for god's sake. 'a' is the first letter of English alphabet. And they are in Grocery business! How would they snatch Apple's customers?
A company which can do the above, can sue anyone, for just anything. They have money, they are big. They're the electronics equivalent of Monsanto.
On the other hand, it's not that Apple doesn't copy blatantly. They stole Swiss railway's clock blatantly and 'exactly', without taking permission or paying. Finally Swiss railway sued and Apple had to pay $21 million for theft. Many, many other such examples.
The crux is, incremental evolution is the only way the industry learns and progresses. Suing others for getting inspiration (while doing the same yourself) is dangerous.
That's not how designs work. A design is violated if you copy multiple elements, giving an overall impression that is substantially similar. If I copy just the buttons from a dress, or just the cut, or just the colour - no infringement. If I copy all of them, then I have infringed.
Also, I think that a grate confusion stems from USPTO using the word "patent" to describe design patents. Design patents are not like utility patents. Utility patents are interpreted broadly. Design patents are usually interpreted very specifically. Meaning, for instance, that apple would not be able to enforce it's design patent against the Prada (if it had come out subsequent to iPhone), or most of the Android phones, including the Galaxy line. But you have to admit that the Galaxy Tab looks remarkably like the iPad. I am not saying that that alone should have permitted apple to sue Samsung. But when you take the entire product as a whole, including the packaging, the charger, the ridiculous and unnecessarily wide charging cable, and the look of the device, you can see where Apple had a point.
Samsung blatantly copied, and for all the wrong reasons.
http://mobile.theverge.com/2012/11/7/3614506/apple-patents-r...
So we need more of these patent trolls to win substantially more and more revenue from these companies, until the pain is so great that the big companies do something about it.
The problem is that argument is complete bunk when you're talking about software patents. The plaintiffs also get nothing if they don't sue, and if they do they have a chance at a huge windfall. Imagine how many bad patents you could litigate with and lose if you could win one claim for $200 million dollars.
One of the (many) problems with software patents is that because the scope of what software does is so broad, what an individual patent would rightly be worth sounds extremely small, and so their worth tends to be vastly overestimated when not taken in the proper context.
You look at something like an iPhone, it's probably covered by thousands of patents. Cellular wireless, wifi, video codecs, audio codecs, encryption algorithms, web browsers, app stores, music stores, digital telephony, media library functions, printing, Airplay, etc. etc. Each of those will be claimed by dozens if not hundreds of patents. And "1% of revenue" sounds small when you're not taking that into consideration, even though in reality 1% is huge. Even calling it 1% of the value of all patents covering the device is ridiculous, and revenue has to cover at least a couple of non-patent sources of costs like manufacturing, distribution, marketing, etc.
There is an obvious absurdity if there exist 1000 patents that could each be considered to be worth 1% of revenue when you only look at them one at a time.
That said, I doubt banning this behavior would solve much. It's easy to pretend to be well intentioned and there are truly well intentioned people with bad patents.
As for old, if the patent is still valid, does the age matter in isolation? Sure, you can argue that patents stay valid for too long, but I don't think I can call a company a troll for using an old patent if the age alone is how you're labelling them a troll.
Also, the inventor listed on the patents, Dr. Robert Short, who previously worked at SAIC, is CTO at VirnetX: http://virnetx.com/company/executive-management ("Dr. Short has been the Chief Scientist for VirnetX since May 2007 . . . . From February 2000 to April 2007, Dr. Short was Assistant Vice President and Division Manager at Science Applications International Corporation, or SAIC. . . . Dr. Short is named as a co-inventor on substantially all of the patents in the VirnetX patent portfolio.")
I haven't studied the patents in question and am not commenting on whether they're any good or not. But considering how much of the core internet technologies were developed by private defense contractors working for the government, it's not far-fetched that some of them would hold key patents.
I believe this viewpoint is shared by a number of people. Specifically, that a litigious NPE is, by colloquial definition, a "patent troll." There is a conversation to be had as to whether the practice is good or bad, or if they are acting more appropriately than their peer group, but I think the term fits in this case.
In general, the law allows you to sell your cause of action to someone else. For example, many investors who had suits against big banks over mortgage-backed securities sold their causes of action to funds that could bring them efficiently in one go. That's just property rights in action. At least in theory, it's more efficient to allow rights of action to be sold like property.
Now, maybe you think that these sorts of suits shouldn't be brought at all. There's arguments to be made for that. But in that case, I think you need to lump companies like Apple in with companies like these.
Simple explanation: if they make their money from suing people, it's a troll.
proceeds to take own advice
[1]: such as this one, but this wouldn't be necessary if folks didn't find it necessary to waste space dictating what's worth talking about.
So, I think there is a reasonable argument that if your actively doing research your not really a NPE. AMD and University's both make money from both obvious and non obvious patents but they have positive contributions where companies that only buy existing patents and sue don't contribute anything as the patents already exist.
We need to understand what we're fighting. Defining a patent troll as any NPE who files an infringement suit is clearly too broad, because the only way to prevent trolling under that definition is to shut down the patent system. As long as patents are issued, and can be bought and sold, it will be possible for NPEs to own them. Furthermore, independent inventors, of whom I believe there are still a few left, and whom I think we all believe the patent system should protect if it protects anyone, are generally NPEs.
This is actually _exactly_ how language works, and that's precisely what's under discussion here: whether the term patent troll is accurate.
There's a different discussion to be had (which rayiner is also alluding to in his comment) about whether this definition has negative side-effects (like being too broad), but being clear on the terms being used in a discussion is important.
Filing in East Texas pretty much defines you as a patent troll. If you have a real case, you don't have to go to East Texas to litigate it.
My understanding is that the US Federal government cannot be sued for patent infringement. If correct, there would be no value for it to acquire patent rights and if the technology was to be controlled, classifying the design would be better than filing patents.
2) the government can issue secret patents
IANAL, but I was a government contractor for many years.
It seems to defeat the original purpose of patents, which was to promote openness of inventions rather than secrecy.
(speculation)
> Instead, two other mysterious companies came forward seeking to challenge VirnetX's patents. First was a shell company called New Bay Capital, which filed an IPR and then reportedly asked VirnetX for 10 percent of its massive jury award in exchange for backing off. New Bay dropped its case on April 4 without getting any money—and without revealing who was behind the claim.
Then came RPX, a defensive patent aggregator that has become increasingly well-known, and increasingly profitable, in recent years. RPX works by selling memberships to companies that feel harangued by patent trolls, including Apple and many other tech companies.
How wonderful it would be if the ultimate demise of patent trolls was brought about by other patent trolls :)
So in that sense, I'm happy about this.
Sadly nothing happened. Rim paid up I believe.
I believe that the current state of IP law does far more to stifle innovation than to support it, and I fear that it will only change when sufficient monied interests become inclined to support a change.
Put another way, I believe change will come when the juggernauts like Apple stand to lose more than they gain from the current state of the law. Until then, I suspect that the status quo will continue.
[0] Others have made similar arguments, including Mark Cuban in re: Yahoo's patent suit vs. Facebook: http://blogmaverick.com/2012/03/13/i-hope-yahoo-crushes-face...
It's worth mentioning that SAIC is not a lightweight. It is a large government contractor with $4 billion in annual revenue.
1) The claims are incredibly broad, and I'm surprised they have held up so far. Many such patents issued back then (it happens much more rarely these days) but even by those standards this is broad. Without indulging too much in the sin of simplifying claims, they basically cover detecting if a server supports secure connections, and if so, establishing a VPN instead of a normal connection. One of the patents covers a DNS server which indicates whether a server supports secure connections.
2) One of the comments on TFA, which is significant if true (would be good if someone could verify):
> If you read through the court docs, the actual royalty imposed was 0.52%. It was Apple's various shenanigans and lies (partial and outright) to the court that prompted additional penalties up to a 0.98% rate.
Similar things have happened in the past, e.g. In i4i, where a Microsoft lawyer was sanctioned for insisting plaintiff was a patent troll. However, in that case the lawyer paid the price rather than the company as a whole. In any case, even 0.52% is incredibly high a single minor feature. I guess the lesson here is clear: don't piss off the court.
If there is big money to be made, and it's legal, somebody is going to do it - and if it's not you, well, your loss.
This is, and always has been, a problem of bad legislation. It is a structural problem in the system. The human race would save so much time, money, and energy if it tackled problems at their root instead of dossing around in the details, oblivious to the actual issue.
The ultimate with your logic is that it would call for massive legislation to cover every facet of our lives - everything bad must be made illegal, otherwise nobody can even be criticised for doing it. I don't want to live in a world like that. Laws are far too crude for that, they can only work at extremes where it is clear you can put down a blanket rule. In between, people and companies behaving badly should be held to account through criticism and public pressure. We should expect companies to behave honorably and ethically and criticise them heavily when they don't.
Also, what makes you think we don't already have "massive legislation to cover every facet of our lives"? Have you ever heard of the book "Three Felonies a Day"?
Increased legislation is rarely the answer. I do not have a pre-rolled solution for the 'patent problem', but - contrary to popular opinion - this is not required to point out flaws in the current system. Perhaps the current system is the best we can do, but that does not excuse its flaws. We should always aim for what could be - and what we could, maybe, come up with is a system that encourages innovation (through financial reward) yet disallows this kind of destructive behaviour. How? Who knows.
I bet 10 years ago if you applied such thinking to finance you wouldn't have got very far - "central bankers supplying fiat money is good enough"...yet now we have Bitcoin et. al., a whole host of currencies whose aggregate behaviour is mathematically provable.
Focus on the could, anything less is not worthy of the tag 'innovation'.
Nobody's oblivious to the actual issue; it's just that the root of the problem is inaccessibly mired in a tangled web of lobbying networks, conflicting interests, and impenetrable committees.
Opportunists are just as guilty of making the world worse as the laws that enable them.
Opportunists are faced with the decision "Should I attempt to make a bucketload of cash, and secure my family's - and my stakeholders families' - future, or should I take a moral stance, make no money, and console myself in poverty because I'm a 'good' person?"
Contrarily, lawmakers have all of the tools required to make a better system, and yet choose not to, for the same indecipherable reasons so many political decisions are made.
I'd like to see politicians react to that...
Lobbying, though, would get their attention. Like it or not, that's how one operates the levers of power in Washington at the moment
Exactly. The legislation and regulatory apparatus built around it allow people to claim exclusivity on ideas and techniques that are already obvious to most people in the field. This must be fixed with legislation.
Calling companies trolls on internet forums unread by the vast majority of citizens really doesn't help the cause. These companies make their living enforcing patents. They aren't going to stop because people say mean things about them. They are going to stop when the law makes their business obsolete.
Unfortunately, patents are becoming more commoditized than healthcare in our country. It seems silly to me that someone is permitted to sue on the basis of patent violation when a) they weren't the original inventor, b) they bought the patent for the entire reason of profiting from litigation, or c) they're suing people who 'violated' their patent prior to the time they purchased it.
https://www.google.com/finance?q=NYSEMKT%3AVHC&ei=h-WTU4DYNs...
VirnetX's market cap is $850 million, which would be a very steep discount if the company were "on the verge" of being paid $340 million/year from Apple.
A district where juries and judges are more favorable than usual towards patents? This sound kind-of ridiculous, no? Can't the defending companies find similar anti-patent areas and file counter-suites there?
It started a bit randomly, based on the politics of the region the judges/juries were slightly more favorable toward patents than anywhere else. Then it became self perpetuating since it helps the local economy & the judges own careers.
> This sound kind-of ridiculous, no?
Absolutely ridiculous. Patents are federal law, but 1 small region is effectively making serious changes to that legislation.
> Can't the defending companies find similar anti-patent areas and file counter-suites there?
They do. There are a range of locations, never in east texas. No one place has emerged as THE anti-patent location. For example, Microsoft files suit in Seattle since it's based there, has influence, people want it to win since it's a benefit to their local economy, etc.
From Stallman's article which did show up here:
https://www.gnu.org/philosophy/not-ipr.html
"Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it—a price that may be worth paying in some fields and not in others."
The real question is does all software patents come in the last part of the aforesaid sentence: ".....—a price that may be worth paying in some fields and not in others."
A knee-jerk reaction to throw out the baby out with the bathwater by abolishing the whole patent system may not be the right solution here.
To further that analogy, if that bathwater is a toxic brew with, at least in the software industry, a serious chilling effect on innovation and enterprise is that really a bathwater the baby should be in?
If you can point out to me more success stories because of software patents than nightmare scenarios like the above and the X-Plane saga, then I might agree. But as it stands, the biggest success story, Uniloc, that's relevant to Australia, which is where I am, makes me just pissed off.
I do agree that the patent system as it is applied to software (and possibly other areas too like biotechnology) needs to be reformed. I am not defending the status quo but just pointing out that people who argue for abolishing the whole system needs to first understand its historical role before taking a drastic action.
At the risk of over-simplifying, there is a tussle between 'software as a collection of algorithms which in turn are defined as a special class of mathematics' which is not patentable, vs software as a 'product' that provides useful functions which is in-line with how patents have been applied in other areas. Things get a little more complicated with 'process patents' as applied to software.
It is hard to draw a fine line here and I don't claim to have any answers except looking at each case individually and deciding to apply it, sort of like the early definition of art vs porn: "I know it when I see it" (or something to that effect).
Even if you were to grant a expansive protection for functional cases or business methods (implemented by the software), you will still have ridiculous ones like the 'Amazon one-click patent'.
Regarding examples of 'success stories', I am not sure if these apply but the entire model of software business was driven on licenses during its critical growth period in the 1980s. One example is the core functionality of Excel which is probably one of the most successful software ever built:
http://www.google.co.in/patents/US5272628
Even Google's core search ranking algorithm was patented:
https://www.google.com/patents/US6285999
I should leave with this comment from PG:
http://www.paulgraham.com/softwarepatents.html
"Frankly, it surprises me how small a role patents play in the software business. It's kind of ironic, considering all the dire things experts say about software patents stifling innovation, but when one looks closely at the software business, the most striking thing is how little patents seem to matter."
With a device as complicated as a smartphone it's inevitable that someone holds the patents for numerous parts of the device and the software.
Is there a lawyer that is supposed to check out every single aspect of a device and check for prior patents? If so, then shouldn't the lawyer be responsible in this instance?
Note: I personally don't care if Apple loses patent cases, they've done enough damage with their own frivolous patent lawsuits.
I define "patent troll" as an entity that has a sliver of a chance of winning, but 100% chance that they will impose high costs on the defendant at little cost to themselves. They use this assymetry as a form of legal extortion. They limit their downside by holding few assets aside from the patent.
EDIT: I am in no way commenting on the merit of the case or the 1% figure.
"A patent troll, also called a patent assertion entity, is a person or company who enforces patent rights against accused infringers in an attempt to collect licensing fees, but does not manufacture products or supply services based upon the patents in question."
This is always the definition that I understood.
That popular definition looks too much like political propaganda.
Hopefully we can get all entities that fit the definition of a patent troll abolished. Also fortunately it's inevitable that the patent troll business will be destroyed. It will be made so difficult and unprofitable, few will attempt it. It's merely a matter of how long it takes and much economic damage is caused by the trolls first.
In my mind, the people who are doing damage are those who are taking advantage of the fact that defending oneself against a patent infringement suit is expensive, by suing small businesses with little or no regard to whether they actually infringe; and those taking advantage of low-quality patents that should never have been issued, like the infamous scan-to-email patent.
I think that by equating trolls with NPEs, you are losing an important distinction between the ones doing this damage and entities with valid patents that took real R&D to develop, and who are enforcing them against actual infringers. I don't know how you can say that the latter group don't deserve to be able to enforce their patent rights, unless you want to discard the entire patent system.
In any case I don't think your proposal is going to fly. In contrast, we almost had a bill pass Congress to limit the worst abuses. I still don't understand why this failed.