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.

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.

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.

Groklaw was attacked with venom, of course. But here we are, ten years later, still standing.

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.

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.

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.

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.”

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.

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).

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.

To help you follow along, here are some resources:

• Novell's opening appeal brief
• Microsoft's brief
• Novell's reply
• Microsoft's renewed motion, asking the judge to rule as a matter of law
• Novell's opposition
• Microsoft's reply
• Judge Frederick Motz's Decision, the one being appealed
• Trial transcripts

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.

The Western District of Washington sits within the 9th Circuit Court of Appeals (which, as noted below, has already heard an interlocutory appeal in this case). But as you may know, in order to preserve uniformity in patent law, the U.S. Court of Appeals for Federal Circuit in Washington, DC is the court designated by Congress as the appeals court with exclusive jurisdiction for nearly all patent cases. The Microsoft-Motorola case (at least the part which has garnered the most attention) involves a breach of contract issue relating to patents, standard-setting, and patent licensing issues. So, which is it — the 9th Circuit or the Fed Circuit?

Brace yourselves – this will take a couple thousand words.