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EveryMD sues Facebook business account end users for patent infringement ~pj Updated 2Xs
Tuesday, February 28 2012 @ 12:39 PM EST

You know how those pushing the alleged "safety" of Mono back in the day, despite it being patent-encumbered, used to try to minimize the danger by arguing that Microsoft would never sue end users over patent infringement, because there'd be no meaningful financial return? The argument went that Mono was safe, because no rational actor would sue individuals, only deep pockets.

Guess what? Someone has just sued some end users over alleged patent infringement.

Courthouse News had the news first that EveryMD has filed a lawsuit [PDF] alleging patent infringement against Facebook end users, specifically Facebook users who have business accounts, naming Rick Santorum, Mitt Romney and Newt Gingrich as defendants, after Facebook refused to pay a royalty for EveryMD's patents. The complaint also names as defendants "Does 1-1000", which it defines as "each a presently unidentified one of an estimated 4,000,000 additional Facebook business account holders that are subject to the jurisdiction of this court."

Shades of SCO Group, who sued business end users of Linux, like DaimlerChrysler and AutoZone, for alleged copyright infringement after IBM refused to pay them off. They were asking $699 for anyone using a server in the enterprise that ran Linux. EveryMD is asking business accounts on Facebook to pay $500, their "reduced" price. If the group is large enough, $500 each comes to the same as one lump sum from a deep pockets company, I guess is the rationale.

Courthouse News:

EveryMD claims that Facebook uses its '122 patent to create Facebook pages for its members. It claims that it offered to sell the '122 patent to Facebook in 2001, but Facebook refused, and its offer has expired.

It claims that Facebook's use of the '122 patent is unauthorized, and "leaves holders of Facebook business accounts liable for infringement of the '122 patent for unauthorized commercial use of Facebook pages produced by Facebook using the method of the '122 patent."

Remember Darl McBride sounding a lot like that back in 2003?
SCO Group Inc is preparing to take a Linux user to court to speed up the legal process in its claim Unix code has been illegally copied into Linux, and also encourage Linux users to take out a license for its intellectual property. ..."We are prepared to have this heard on a quicker basis in a customer environment if that's what it takes to quicken it up," he said. . . . McBride added SCO is identifying Linux users for possible litigation. He said SCO had for the last month gathered information on Linux users, and identified about 10% of the total Linux servers sold last year. McBride added that he expected that figure to rise to 40% over the coming weeks before SCO would take action....

"There's a bouncing ball that ends up in the hands of customers because of the GPL," said McBride....

Mark Heise, of law firm Boies Schiller and Flexner, representing SCO against IBM, believes SCO is entitled to pursue users based on its claims. "End users are improperly using this copyrighted material, and under copyright law SCO is entitled to damages and injunctive relief," he said.

Sontag warned users that ignoring SCO's requests to license the code in advance of a court case could be costly. "Those who have chosen to ignore the license are more in a situation of potential willful infringement," Sontag said.

SCO, and its law firm Boies Schiller, failed, but that's partly because it was relying on copyright law, not patent law. This new attack on end users is using patent law, which is so much worse, so much less rational. Everything tilts toward patent owners.

By "business accounts" holders, EveryMD seems to mean *anyone* with a business account:

"Facebook's failure to purchase the '122 patent or otherwise obtain rights under the '122 patent leaves holders of Facebook business accounts liable for infringement of the '122 patent for unauthorized commercial use of Facebook Pages produced by Facebook using the method of the '122 patent."
While this would seem to be another SCO-like effort to get a big company to pay up to protect its end users, or in the alternative to get $500 or so from each end user, I can't help but hope that by suing politicians and all companies and individuals with a business account page on Facebook at least some of those sued will wake up and realize that software patents are an evil and unnecessary weight on the marketplace that seriously is damaging innovators in ways the USPTO seems incapable of preventing. And now, just as so many tried to warn, it's threatening everyone, you, me, anyone trying to do any kind of business and using the Internet. If the law permits something, someone *will* do it sooner or later. Never assume that lawyers can't figure a way to try to get money from IP law.

If you'd like to know one important reason why software patents ought not to be permitted, here are some articles that explain it:

Software is algorithms, which are by law not allowed to be patented per se. If you think there is anything else in there, pray tell us what you think that something might be. As Donald Knuth wrote to Congress once back in 1999, "I am told that the courts are trying to make a distinction between mathematical algorithms and nonmathematical algorithms. To a computer scientist, this makes no sense, because every algorithm is as mathematical as anything could be."

If all there is inside software is algorithms, and all algorithms are mathematical, then it follows like night follows day that folks have been patenting mathematics, which is a perfect system for closing down innovation, aside from being a violation of the law of what is supposed to be patentable.

Congress didn't listen to Knuth, and neither did the USPTO or the Federal Circuit, and now the chickens are coming home to roost in the marketplace and the courts. Look at the smartphone patent wars. Who benefits from this silliness? You? Me? The market? The public?

They only solution is to ban software patents, which has a stranglehold on Internet companies and now are threatening end users. Otherwise, you are looking at the future in this litigation, where anyone with a webpage on the Internet is allegedly liable.

Let this case, please, be a wakeup call. Needless to say, it has me wide awake, and I'll definitely be following this case, even though I don't use Facebook, because of its privacy policies. I never choose cases based on who I like or dislike, only on the issue being raised and the principles involved.

Update: Here's the docket so far:

02/27/2012 - 1 - COMPLAINT against Defendants Does 1-10, Newt Gingrich, Mitt Romney, Rick Santorum. Case assigned to Judge Dean D. Pregerson for all further proceedings. Discovery referred to Magistrate Judge John E. McDermott.(Filing fee $ 350 PAID.) Jury Demanded., filed by Plaintiff Everymd. (et) (Entered: 02/27/2012)

02/27/2012 - 21 DAY Summons Issued re Complaint - (Discovery) 1 as to Defendants Newt Gingrich, Mitt Romney, Rick Santorum. (et) (Entered: 02/27/2012)

02/27/2012 - 2 - CERTIFICATION AND NOTICE of Interested Parties filed by Plaintiff Everymd, identifying Other Affiliate Frank M Weyer, Other Affiliate Troy K Javaher for Everymd. (et) (Entered: 02/27/2012)

02/27/2012 - 3 - REPORT ON THE FILING OF AN ACTION Regarding a Patent or a Trademark (Initial Notification) filed by Everymd. (et) (Entered: 02/27/2012)

02/27/2012 - 4 - NOTICE TO PARTIES OF COURT-DIRECTED ADR PROGRAM filed. (et) (Entered: 02/27/2012)

It seems there is a more complex picture here. There is patent reexamination going on, requested by Facebook, Reexam No. 95/001,411 according to Patently O, as this EveryMD press release, dated February 21, demonstates:
EveryMD announced today that it is publicly releasing a copy of its most recent appeal brief filed February 13, 2012 with the U.S. Patent Office's Board of Patent Appeals. EveryMD's appeal brief is the latest filing in ongoing patent reexamination proceedings before the U.S. Patent Office initiated by Facebook against EveryMD's U.S. Patent No. 7,644,122 entitled “Method, Apparatus and Business System for Online Communications with Online and Offline Recipients.” (U.S. Patent Office Reexamination Control No. 95/001411). In the appeal brief, EveryMD uses statements from Facebook's recently filed IPO prospectus as evidence of the patent's validity. The appeal brief states:

“Thus [Facebook] expressly admits that its commercial success is based on providing its members the tools to ‘stay connected’ – namely the member’s homepages that allow users to send messages to and post comments and rating information (what [Facebook] calls “Likes”) about members. These features are precisely the novel features of the claimed invention: a server providing member homepages with controls for sending messages and posting comments are claimed in all claims 1-26, while a server providing homepages with controls for posting rating information are additionally claimed in dependent claims 6, 7, 10 and 11. Accordingly, [Facebook’s] own admissions contradict its assertion that there is no “nexus” between [Facebook’s] commercial success and the claimed invention.”

In earlier filings with the Patent Office, Facebook had argued that EveryMD’s invention is an “obvious” combination of technologies that existed at the time the patent application was filed in 1999. The EveryMD inventors, in their filings with the Patent Office, had argued that Facebook’s commercial success as a result of using the patented invention shows that the patent is not obvious. Facebook in return argued that the EveryMD inventors had not shown a "nexus" between the patented invention and Facebook's success. In the rebuttal brief, EveryMD uses language from Facebook's IPO prospectus as evidence of the "nexus" Facebook argued is lacking.

EveryMD had filed a patent infringement lawsuit against Facebook in January 2010 in the U.S. District Court for the Central District of California (Civil Action No. CV 10-00499). As shown by the U.S. District Court's records, EveryMD had filed a motion for summary judgment of patent infringement against Facebook in September 2010. In EveryMD's summary judgment motion, EveryMD provided evidence to support its allegation that its patent covers the method used by Facebook for providing Facebook pages to Facebook members. As shown by the District Court's records, before EveryMD's summary judgment motion was ruled upon by the Court, Facebook moved to stay the litigation until the patent reexamination proceedings are concluded.

According to U.S. Patent Office records, EveryMD's patent was filed in November 1999. According to EveryMD's filings in the reexamination proceedings, the patented invention grew out of development of the medical doctor communications website http://www.EveryMD.com, which has been in continuous operation since 2001.

According to EveryMD's attorney Frank Weyer, the timing of Facebook's IPO Prospectus could not have been better. "Earlier in the litigation, we had offered our patent to Facebook for a minimal fee, representing a one-time fee of less than $.02 per Facebook member at the time--an almost negligible amount given the vast sums of money that Facebook intends to make off its users," says Weyer. "Instead, Facebook rejected that offer and tried to overwhelm us with their team of high-priced attorneys. We are now pleased that Facebook did not take us up on our earlier offer. Thanks to Facebook’s IPO prospectus, we realize our earlier offer was greatly undervalued. It will now take a substantially higher sum to resolve this ongoing patent dispute."

Patently O says:
In the reexamination, all of the claims are currently on appeal to the Patent Office's internal Board of Appeals (BPAI) following a final rejection of the claims by an examiner in the Central Reexamination Unit (CRU). At least two other continuations of the application are pending and claim priority to the original 1999 filing date.

Update 2: Oh, brother. Look what Facebook has been going through with these plaintiffs since February of 2010, when Frank M. Weyer and Troy K. Javaher sued Facebook for alleged patent infringement, adding Facebook as defendant with MySpace, which they sued the month before. Here's the docket sheet showing the case in the US District Court for the Central District of California, currently administratively closed, only to be opened if the patents get reinstated on appeal, which the judge said is unlikely. So, now they turn around and sue three presidential candidates and every business account holder on Facebook, with patents they've been told are not valid. Please notice how many times Facebook tried to get this case dismissed, and consider the cost of all this. I wish the USPTO and the Federal Circuit and the US Supreme Court would. I'll plug in a few of the most important documents in a bit:

2:10-cv-00499-MRP -FFM Frank M Weyer et al v. MySpace Inc
Mariana R. Pfaelzer, presiding
Frederick F. Mumm, referral
Date filed: 01/25/2010
Date terminated: 08/23/2011
Date of last filing: 08/23/2011

History - Doc. - No. - Dates - Description

Filed & Entered: 01/25/2010
Summons Issued
Docket Text: 21 DAY Summons Issued re Complaint - (Discovery)[1] as to defendant MySpace Inc. (esa)

1 - Filed & Entered: 01/25/2010
COMPLAINT against defendant MySpace Inc; (Filing fee $350 PAID); Jury Demanded; filed by plaintiffs Frank M Weyer, Troy K Javaher.(esa) (ds).

2 - Filed & Entered: 01/25/2010
CERTIFICATION AND NOTICE OF INTERESTED PARTIES filed by plaintiff Frank M Weyer, Troy K Javaher. (esa) (ds).

3 - Filed & Entered: 01/25/2010
REPORT ON THE FILING OF AN ACTION Regarding a Patent or a Trademark (Initial Notification) filed by Frank M Weyer, Troy K Javaher. (esa)

4 - Filed & Entered: 01/25/2010
Notice to Parties of Court-Directed ADR Program (ADR-8) Docket Text: NOTICE TO PARTIES OF ADR PILOT PROGRAM filed.(esa)

5 - Filed: 01/26/2010
Entered: 01/27/2010
STANDING ORDER regarding Newly Assigned Cases (See document for further details) by Judge Philip S. Gutierrez. (ir)

6 - Filed & Entered: 02/05/2010
ORDER TRANSFERRING CIVIL ACTION pursuant to Section 3.1 of General Order 08-05. ORDER case transferred from Judge Philip S. Gutierrez to the calendar of Judge Mariana R. Pfaelzer for all further proceedings. The case number will now reflect the initials of the transferee Judge CV10-00499 MRP (FFMx). Signed by Judge Philip S. Gutierrez and Judge Mariana R. Pfaelzer. (at)

7 - Filed & Entered: 02/16/2010
Docket Text: AMENDED DOCUMENT filed by Plaintiffs Troy K Javaher, Frank M Weyer. FIRST AMENDED COMPLAINT filed by Plaintiffs Troy K Javaher, Frank M Weyer (Weyer, Frank)

8 - Filed & Entered: 03/23/2010
WAIVER OF SERVICE Returned Executed filed by plaintiff Frank M Weyer. upon Facebook Inc. waiver sent by Plaintiff on 2/23/2010, answer due 4/24/2010. Waiver of Service signed by Sam O'Rourke. (Weyer, Frank)

9 - Filed & Entered: 03/24/2010
WAIVER OF SERVICE Returned Executed filed by plaintiff Frank M Weyer. upon MySpace Inc waiver sent by Plaintiff on 2/23/2010, answer due 4/24/2010. Waiver of Service signed by Janene Bassett. (Weyer, Frank)

10 - Filed & Entered: 03/26/2010
NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Amended Document (Non-Motion)[7]. The following error(s) was found: L.R. 3-2 Filing of Initiating Documents. Complaints (including third-party complaints, couter-claims, cross-claims) and other initiating documents in civil cases shall be filed in the traditional manner on paper rather than electronically. Please manually file your First Amended Complaint. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lom)

11 - Filed & Entered: 04/26/2010
CERTIFICATION and NOTICE of Interested Parties filed by Defendant MySpace Inc, identifying Fox Interactive Media, Inc., and News Corporation. (Devkar, Andrew)

12 - Filed & Entered: 04/26/2010
Terminated: 06/17/2010
NOTICE OF MOTION AND MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) filed by Defendant Facebook Inc., MySpace Inc. Motion set for hearing on 6/7/2010 at 11:00 AM before Judge Mariana R. Pfaelzer. (Attachments: # (1) Proposed Order)(Knauss, Daniel)

13 - Filed & Entered: 04/26/2010
MEMORANDUM in Support of MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)[12] filed by Defendants Facebook Inc., MySpace Inc. (Knauss, Daniel)

14 - Filed & Entered: 04/26/2010
OF SERVICE filed by Defendant Facebook Inc., re MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)[12], Memorandum in Support of Motion[13] served on 04/26/2010. (Knauss, Daniel)

15 - Filed & Entered: 04/26/2010
Certification and Notice of Interested Parties filed by Defendant Facebook Inc., (Keefe, Heidi)

16 - Filed & Entered: 04/28/2010
NOTICE OF ERRATA filed by Defendant Facebook Inc.. correcting MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)[12], Memorandum in Support of Motion[13] (Knauss, Daniel)

17 - Filed & Entered: 05/03/2010
OPPOSITION Opposition re: MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)[12] Request for Sanctions, Declaration of Frank Weyer filed by Plaintiffs Troy K Javaher, Frank M Weyer. (Attachments: # (1) Exhibit Exhibit 1, # (2) Exhibit Exhibit 2, # (3) Exhibit Exhibit 3, # (4) Exhibit Exhibit 4, # (5) Exhibit Exhibit 5, # (6) Exhibit Exhibit 6)(Weyer, Frank)

18 - Filed & Entered: 05/06/2010
NOTICE of Change of Attorney Information for attorney Reuben H. Chen counsel for Defendant Facebook Inc.. Adding Reuben H. Chen as attorney as counsel of record for Facebook, Inc. for the reason indicated in the G-06 Notice. Filed by Defendant FACEBOOK, INC. (Chen, Reuben)

19 - Filed & Entered: 05/12/2010
NOTICE of Change of Attorney Information for attorney Richard De Bodo counsel for Defendant MySpace Inc. Adding Richard de Bodo as attorney as counsel of record for Myspace, Inc. for the reason indicated in the G-06 Notice. Filed by Defendant Myspace, Inc. (De Bodo, Richard)

20 - Filed & Entered: 05/24/2010
MEMORANDUM in Support of Motion to Dismiss Pursuant to Fed.R.Civ.P.12(b)(6) filed by Defendant Facebook Inc.. (Attachments: # (1) Declaration Declaration of Reuben H. Chen ISO Defendants' Reply Memorandum In Support of Motion to Dismiss Pursuant to Fed.R.Civ.P.12(b)(6), # (2) Declaration Declaration of Richard De Bodo ISO Defendants' Motion to Dismiss)(Knauss, Daniel)

21 - Filed & Entered: 05/26/2010
STIPULATION to Continue Hearing date for Defendants' Motion to Dismiss from June 7, 2010 to June 21, 2010 Re: MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)[12] filed by Defendant MySpace Inc. (Attachments: # (1) Proposed Order)(Devkar, Andrew)

22 - Filed: 05/27/2010
Entered: 05/28/2010
ORDER by Judge Mariana R. Pfaelzer,( Motion set for hearing on 6/21/2010 at 11:00 AM before Judge Mariana R. Pfaelzer.) (sce)

23 - Filed & Entered: 06/17/2010
ORDER by Judge Mariana R. Pfaelzer: granting in part and denying in part [12] pending Motion to Dismiss. The hearing scheduled for the motion to dismiss is VACATED. The parties are further ORDERED to serve infringement and invalidity contentions in strict compliance with the Court's directions in this Order. (See attached document for requirements.) (lom)

24 - Filed & Entered: 07/01/2010
ANSWER to Complaint - (Discovery)[1] with JURY DEMAND and Counterclaims filed by Defendant MySpace Inc.(Devkar, Andrew) Modified on 7/8/2010 (lom). (Corrected Answer and Counterclaim, filed 7/2/10, re [27].)

25 - Filed & Entered: 07/01/2010
ANSWER to Complaint - (Discovery)[1] filed by defendant Facebook Inc..(Knauss, Daniel) Modified on 7/7/2010 (lom).(See Corrected Docket no. 26, for manually filed answer and counterclaim) Modified on 7/7/2010 (lom).

[] - Filed: 07/02/2010
Entered: 07/07/2010
21 DAY Summons Issued re Answer to Complaint and Counterclaim [26] as to Counter Defendants Troy K Javaher, Frank M Weyer. (lom)

26 - Filed: 07/02/2010
Entered: 07/07/2010
ANSWER to First Amended Complaint [7] AND COUNTERCLAIMS; Demand for Jury Trial against Counter Defendants Troy K Javaher, Frank M Weyer filed by Defendant/Counter Claimant Facebook Inc. (lom) (Additional attachment(s) added on 7/7/2010: # (1) Summons, # (2) Summons Issued) (lom). Modified on 7/7/2010 (lom).

27 - Filed: 07/02/2010
Entered: 07/08/2010
ANSWER to First Amended Complaint [7] and COUNTERCLAIM; Demand for Jury Trial against Troy K Javaher, Frank M Weyer filed by Defendant MySpace Inc.(lom) Modified on 7/8/2010 (lom).

28 - Filed & Entered: 07/09/2010
ANSWER TO COUNTERCLAIMS ANSWER to Answer to Complaint (Discovery), Counterclaim, Answer to Complaint (Discovery), [26], Answer to Complaint, Counterclaim[27], ANSWER filed by counterclaim defendant Troy K Javaher, Frank M Weyer.(Weyer, Frank)

29 - Filed & Entered: 08/02/2010
Terminated: 08/11/2010
NOTICE OF MOTION AND MOTION to Stay Case pending Reexamination of the '122 Patent filed by Defendants Facebook Inc., MySpace Inc. Motion set for hearing on 8/30/2010 at 11:00 AM before Judge Mariana R. Pfaelzer. (Attachments: # (1) Proposed Order)(Devkar, Andrew)

30 - Filed & Entered: 08/02/2010
MEMORANDUM in Support of MOTION to Stay Case pending Reexamination of the '122 Patent[29] filed by Defendants Facebook Inc., MySpace Inc, Counter Claimants Facebook Inc., MySpace Inc. (Devkar, Andrew)

31 - Filed & Entered: 08/02/2010
DECLARATION of Andrew V. Devkar in suport of MOTION to Stay Case pending Reexamination of the '122 Patent[29] filed by Defendants Facebook Inc., MySpace Inc, Counter Claimants Facebook Inc., MySpace Inc. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D, # (5) Exhibit E, # (6) Exhibit F)(Devkar, Andrew)

32 - Filed: 08/02/2010
Entered: 08/03/2010
MINUTES IN CHAMBERS by Judge Mariana R. Pfaelzer. Pursuant to F.R.Civ.P. 16(b), a scheduling conference is set in this matter for Monday, September 13, 2010, at 11:00 a.m. The parties are reminded of their obligations to disclose information, confer on a discovery plan, and report to the Court, as required by F.R.Civ.P. 26 and the Local Rules of this Court. Trial counsel are ordered to be present. (lom)

33 - Filed & Entered: 08/09/2010
Plaintiffs Memorandum in Opposition to Defendants' Motion for a Stay of Litigation Pending Reexamination opposition re: MOTION to Stay Case pending Reexamination of the '122 Patent[29] filed by Plaintiffs Troy K Javaher, Frank M Weyer. (Weyer, Frank)

34 - Filed: 08/11/2010
Entered: 08/12/2010
MINUTES (IN CHAMBERS) by Judge Mariana R. Pfaelzer: The Court DENIES Defendants' Motion to Stay of litigation pending reexamination [29]. The Court ORDERS Defendants to notify the Court if Defendant Facebook, Inc.'s request forinter partes reexamination is granted. (jp)

35 - Filed & Entered: 08/27/2010
Terminated: 09/02/2010
First REQUEST to Substitute attorney E. Daniel Robinson in place of attorney Christopher P. Broderick, Andrew V. Devkar, and Richard De Bodo filed by Defendant MySpace Inc. (Attachments: # (1) Proposed Order)(Choe, Samantha)

36 - Filed & Entered: 09/01/2010
Terminated: 09/02/2010
APPLICATION for attorney Kevin Barry Collins to Appear Pro Hac Vice (PHV FEE NOT PAID.) filed by defendant MySpace Inc. (Attachments: # (1) Letter Cert. of Good Standing, # (2) Proposed Order Order on App of Non-Res Attorney to Appear in Specific Case)(Robinson, Edward)

37 - Filed & Entered: 09/01/2010
Terminated: 08/02/2011
NOTICE OF MOTION AND MOTION for Summary Adjudication as to Patent Infringement by Defendants Myspace, Inc. and Facebook, Inc. filed by Plaintiffs Troy K Javaher, Frank M Weyer. Motion set for hearing on 10/25/2010 at 11:00 AM before Judge Mariana R. Pfaelzer. (Weyer, Frank)

38 - Filed & Entered: 09/01/2010
MEMORANDUM in Support of MOTION for Summary Adjudication as to Patent Infringement by Defendants Myspace, Inc. and Facebook, Inc.[37] filed by Plaintiffs Troy K Javaher, Frank M Weyer. (Weyer, Frank)

39 - Filed & Entered: 09/01/2010
DECLARATION of Frank M Weyer In support of MOTION for Summary Adjudication as to Patent Infringement by Defendants Myspace, Inc. and Facebook, Inc.[37] filed by Plaintiffs Troy K Javaher, Frank M Weyer. (Attachments: # (1) Exhibit Exhibit 1, # (2) Exhibit Exhibits 2-18, # (3) Exhibit Exhibits 19-22)(Weyer, Frank)

40 - Filed & Entered: 09/01/2010
STATEMENT of Proposed Statement of Uncontroverted Facts and Conclusions of Law MOTION for Summary Adjudication as to Patent Infringement by Defendants Myspace, Inc. and Facebook, Inc.[37] filed by Plaintiffs Troy K Javaher, Frank M Weyer. (Weyer, Frank)

41 - Filed: 09/02/2010
Entered: 09/03/2010
ORDER by Judge Mariana R. Pfaelzer: granting [35] Request to Substitute Attorney E. Daniel Robinson of Covington & Burling, LLP, for Defendant MySpace Inc., as as attorney of record in place and stead of Christopher P Broderick, Andrew V Devkar, and Richard C. P. De Bodo of Hogan Lovells US LLP. (lom)

42 - Filed: 09/02/2010
Entered: 09/03/2010
ORDER by Judge Mariana R. Pfaelzer: granting [36] Application to Appear Pro Hac Vice by Attorney Kevin B. Collins of Covington & Burling LLP, on behalf of Defendant MySpace Inc, designating Robert D. Fram as local counsel. (Fee Paid 9/1/10) (lom)

43 - Filed & Entered: 09/07/2010
JOINT REPORT of Early Meeting of Counsel Pursuant to Fed. R. Civ. P. 26 filed by Defendants Facebook Inc., MySpace Inc. (Knauss, Daniel)

46 - Filed: 09/13/2010
Entered: 09/20/2010
MINUTES SCHEDULING CONFERENCE (held & completed) before Judge Mariana R. Pfaelzer. Court and counsel discuss the status of the case. Counsel requests that the matter be stayed until the reexam is concluded. The Court Grants the request. Counsel are order to prepared and submit a proposed order. Court Reporter: Margaret Babykin. (lom)

44 - Filed & Entered: 09/15/2010
NOTICE OF LODGING filed re MOTION to Stay Case pending Reexamination of the '122 Patent[29] (Attachments: # (1) Proposed Order Staying Case)(Knauss, Daniel)

45 - Filed: 09/16/2010
Entered: 09/17/2010
ORDER STAYING CASE re [29] by Judge Mariana R. Pfaelzer. Court hereby Orders: (A) that this action is STAYED; (B) that the stay shall continue until the Inter Partes re-examination proceeding currently before the U.S. Patent and Trademark Office (U.S. Serial No. 95/001,411) has been completed; (C) that while the stay is in place, no further pleadings shall be filed, nor any action, including discovery, be taken, relating to the Motion for Summary Adjudication filed by Plaintiffs on September 01, 2010; and (D) that the parties shall keep the Court informed and updated regarding developments in the re-examination proceeding by filing ECF notices attaching documents concerning the re-examination. In the ordinary course, such notices shall be filed by the Plaintiffs. If the Plaintiffs have not filed a document within seven days of its entry in the re-examination docket, the Defendants shall file the document with the Court. (lom)

47 - Filed & Entered: 10/12/2010
NOTICE Notice of Action in Reexamination Proceedings filed by Plaintiff Troy K Javaher, Frank M Weyer. (Weyer, Frank)

48 - Filed & Entered: 11/17/2010
NOTICE Notice of Filing in Reexamination filed by Plaintiff Frank M Weyer. (Weyer, Frank)

49 - Filed & Entered: 12/17/2010
NOTICE OF ACTION IN REEXAMINATION PROCEEDINGS FOR U.S. PATENT NO. 7,644,122 filed by Defendant Facebook Inc.. (Attachments: # (1) Exhibit A, Part 1, # (2) Exhibit A, Part 2)(Knauss, Daniel)

50 - Filed & Entered: 04/19/2011
NOTICE Notice of Filing in Reexamination filed by plaintiff Frank M Weyer. (Weyer, Frank)

51 - Filed: 04/26/2011
Entered: 04/27/2011
MINUTE ORDER IN CHAMBERS by Judge Mariana R. Pfaelzer: The Court on its own motion sets a Telephonic Conference call for Monday, May 2, 2011 at 11:00 a.m. (ys)

52 - Filed: 05/02/2011
Entered: 05/03/2011
MINUTES TELEPHONIC CONFERENCE CALL (Held and Completed) before Judge Mariana R. Pfaelzer. Court and counsel discuss the status of the re-exam of the patent. The Court continues this Telephonic Conference Call to Tuesday, August 2, 2011 at 12:00 p.m. Noon. Court Reporter: Bridget Montero. (lom)

53 - Filed & Entered: 05/12/2011
NOTICE Notice of Filing of Documents in Patent Reexamination filed by plaintiff Frank M Weyer. (Attachments: # (1) Exhibit Response to ACP filed by Plaintiffs, # (2) Exhibit Petition to Patent Commissioner, # (3) Exhibit Exhibit A to Petition to Commissioner, # (4) Exhibit Exhibit B to Petition to Commissioner)(Weyer, Frank)

54 - Filed & Entered: 05/19/2011
NOTICE Notice of Filing of Documents in Patent Reexamination filed by plaintiff Frank M Weyer. (Attachments: # (1) Exhibit Abridged Response to ACP as Filed)(Weyer, Frank)

55 - Filed & Entered: 06/21/2011
NOTICE Notice of Filing in Reexamination Proceedings filed by plaintiff Troy K Javaher, Frank M Weyer. (Attachments: # (1) Exhibit)(Weyer, Frank)

56 - Filed & Entered: 07/11/2011
Terminated: 08/23/2011
NOTICE OF MOTION AND MOTION to Dismiss Case filed by Defendant Facebook Inc.. Motion set for hearing on 8/8/2011 at 11:00 AM before Judge Mariana R. Pfaelzer. (Attachments: # (1) Proposed Order re Motion for Administrative Dismissal)(Knauss, Daniel)

57 - Filed & Entered: 07/11/2011
MEMORANDUM in Support of MOTION to Dismiss Case[56] filed by Defendant Facebook Inc.. (Knauss, Daniel)

58 - Filed & Entered: 07/11/2011
DECLARATION of Daniel J. Knauss in support of MOTION to Dismiss Case[56] filed by Defendant Facebook Inc.. (Knauss, Daniel)

59 - Filed & Entered: 07/15/2011
MEMORANDUM in Opposition to MOTION to Dismiss Case[56] ; Declaration of Frank M. Weyer; Exhibits 1-6 filed by Plaintiffs Troy K Javaher, Frank M Weyer. (Attachments: # (1) Exhibit Exhibit 1 to Weyer Decl., # (2) Exhibit Exhibit 2 to Weyer Decl., # (3) Exhibit Exhibit 3 to Weyer Decl, # (4) Exhibit Exhibit 4 to Weyer Decl., # (5) Exhibit Exhibit 5 to Weyer Decl., # (6) Exhibit Exhibit 6 to Weyer Decl.)(Weyer, Frank)

60 - Filed & Entered: 07/21/2011
Joint STIPULATION to Reschedule HEARING ON MOTION FOR ADMINISTRATIVE DISMISSAL filed by Defendant Facebook Inc.. (Attachments: # (1) Proposed Order)(Knauss, Daniel)

63 - Filed: 07/22/2011
Entered: 07/26/2011
ORDER Granting Stipulation to Reschedule [60] by Judge Mariana R. Pfaelzer. The Court ORDERS: That the hearing on Defendants' Motion for Administrative Dismissal [56] is consolidated into the telephonic case status conference set for August 2, 2011. (lom)

61 - Filed & Entered: 07/23/2011
NOTICE Notice of Action in Reexamination filed by Plaintiff Frank M Weyer. (Attachments: # (1) Appendix Reexam Decision on Petition to Waive Page Limit)(Weyer, Frank)

62 - Filed & Entered: 07/25/2011
REPLY In Support of MOTION to Dismiss Case[56] filed by Defendant Facebook Inc.. (Knauss, Daniel)

64 - Filed: 08/02/2011
Entered: 08/03/2011
MINUTES: TELEPHONIC CONFERENCE CALL (Held and Completed) and MOTION FOR ADMINISTRATIVE DISMISSAL (fld 7/11/11) [56]: The case is called and appearances are made. Court and counsel discuss the status of the case. The Motion for Administrative Dismissal is taken under submission. The parties are Ordered to notify the Court regarding any notification from the patent office. Plaintiffs Motion for Summary Adjudication of Patent Infringement against Defendants Myspace, Inc. and Facebook, Inc. (Fld 9/1/10) [37] is denied without prejudice by Judge Mariana R. Pfaelzer Court Reporter: Kathy Stride. (ir)

65 - Filed & Entered: 08/22/2011
NOTICE Notice of Activities in Reexamination Proceedings filed by plaintiff Frank M Weyer. (Attachments: # (1) Exhibit, # (2) Exhibit)(Weyer, Frank)

66 - Filed & Entered: 08/22/2011
Terminated: 08/23/2011
REQUEST for Order for Administratively Dismissing Case [Proposed] filed by Defendant Facebook Inc.. (Knauss, Daniel)

67 - Filed & Entered: 08/22/2011
Terminated: 08/23/2011
REQUEST for Order for Removing Case from Active Docket filed by plaintiff Frank M Weyer. (Weyer, Frank)

68 - Filed: 08/23/2011
Entered: 08/25/2011
ORDER ADMINISTRATIVELY DISMISSING CASE [56] by Judge Mariana R. Pfaelzer. The Court hereby Orders: (A) that this action is administratively dismissed without prejudice; (B) that the Court shall retain jurisdiction; and (C) that this action shall be reinstated with this Court in the unlikely event that Plaintiffs obtain claims from the patent-in-suit following reexamination and appeals. ( MD JS-6. Case Terminated ) (lom)

69 - Filed: 08/23/2011
Entered: 08/25/2011
REPORT ON THE DETERMINATION OF AN ACTION Regarding a Patent or Trademark. (Closing) (Attachments: # (1) Order) (lom)


  


EveryMD sues Facebook business account end users for patent infringement ~pj Updated 2Xs | 252 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: hardmath on Tuesday, February 28 2012 @ 12:41 PM EST
Please note the basic error -> correction in Title.

Thanks!


---
Do the arithmetic or be doomed to talk nonsense. -- John McCarthy (1927-2011)

[ Reply to This | # ]

News Picks
Authored by: hardmath on Tuesday, February 28 2012 @ 12:43 PM EST
If starting a new topic under the News Picks thread, please
use HTML mode and include a link to the underlying news
article (as given in the News Picks column).

Thanks!


---
Do the arithmetic or be doomed to talk nonsense. -- John McCarthy (1927-2011)

[ Reply to This | # ]

Off-topic Thread
Authored by: hardmath on Tuesday, February 28 2012 @ 12:46 PM EST
On-topic posters will have to get Judge Alsup to approve their
vacation leaves three months in advance.

Thanks!


---
Do the arithmetic or be doomed to talk nonsense. -- John McCarthy (1927-2011)

[ Reply to This | # ]

Comes Transcripts
Authored by: hardmath on Tuesday, February 28 2012 @ 12:50 PM EST

Check here for more information about Comes transcripts.

Best to post HTML in text mode for shortish items. Thanks!

---
Do the arithmetic or be doomed to talk nonsense. -- John McCarthy (1927-2011)

[ Reply to This | # ]

EveryMD sues Facebook business account end users for patent infringement ~pj
Authored by: Anonymous on Tuesday, February 28 2012 @ 01:06 PM EST
What is with the Mono FUD? Someone was wrong on the Internet!

The threat from patent trolls applies equally applies to the user of any
technology.

[ Reply to This | # ]

Groklaw's comment policy
Authored by: hardmath on Tuesday, February 28 2012 @ 01:16 PM EST

Groklaw's comment policy is linked from the About Groklaw link at top center of the home page.

It has this to say inter alia: No political debates or religious flames. There are plenty of places to do that on the Net. Groklaw is not the appropriate place. It works against our stated purpose, which is to work together smoothly.

Not casting stones here (PJ has warned me a couple of times about bad language, IIRC), but something to mull over for yourself.

--hm

---
Do the arithmetic or be doomed to talk nonsense. -- John McCarthy (1927-2011)

[ Reply to This | # ]

Bad company: Facebook, Santorum and others
Authored by: Anonymous on Tuesday, February 28 2012 @ 01:19 PM EST
Doesn't this violate PJ's "no politics" rule?

[ Reply to This | # ]

EveryMD sues Facebook business account end users for patent infringement ~pj
Authored by: Anonymous on Tuesday, February 28 2012 @ 01:40 PM EST
The 7644122 patent being asserted here is for a message entry form, where the
message is sent by the server by means appropriate for the recipient.
I am sure that a form for contacting someone was in use on the web well before
1999.

If Santorum apologises for his remarks on Dutch euthanasia law, I may even be
inclined to search prior art.

[ Reply to This | # ]

EveryMD sues Facebook business account end users for patent infringement ~pj
Authored by: feldegast on Tuesday, February 28 2012 @ 01:46 PM EST
EveryMD claims they tried to sell the patent to Facebook in
2001.... yet facebook wasn't launched until 2004

From Wikipidia "Facebook is a social networking service and
website launched in February 2004, operated and privately
owned by Facebook Inc....."

so how does that work?

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Can they do this all in one suit?
Authored by: Anonymous on Tuesday, February 28 2012 @ 01:46 PM EST
I thought that a good thing (possibly the only good thing) from the most recent
patent "reform" law was that you cannot sue multiple defendants simply
because they all happen to infringe on the same patent. There has to be some
other commonality tying the defendants together, doesn't there? If my memory is
correct, then a quick motion to sever should break this apart into multiple
suits, which would cost the plaintiff more to try to go forward with, and
hopefully be a bit of a deterrent.

[ Reply to This | # ]

Prior Art for '122
Authored by: feldegast on Tuesday, February 28 2012 @ 02:13 PM EST
this is from a discussion elsewhere and might help prior art searches....

http://www.google.com/patents/US7 644122

patent filing date: Jan 15, 2007
Issue date: Jan 5 2010

http://www.google.com/patents/US6 671714
the 714 patent is basically taking an email address and turning into a url by changing the "@" to a "."

Didn't bind do that in zone files?

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Who expects Facebook to support its business account end users?
Authored by: IMANAL_TOO on Tuesday, February 28 2012 @ 02:27 PM EST
Who expects Facebook to support its business account end users?

From what I understood, Facebook need not do anything as rhey are not sued.


From what I understand, Facebook won't do anything anyway.



---
______
IMANAL


.

[ Reply to This | # ]

Patent Absurdity a 30-minute movie
Authored by: IMANAL_TOO on Tuesday, February 28 2012 @ 02:41 PM EST
PJ recommended "Patent Absurdity! a 30-minute movie.

I'd like to recommend another movie, actually a full feature film, which could
be taken as about patents, "The Man Who Fell to Earth"
(http://www.imdb.com/title/tt0074851/); no, none of the trailers over at Youtube
does it any justice.



---
______
IMANAL


.

[ Reply to This | # ]

A pretty crazy lawsuit
Authored by: bugstomper on Tuesday, February 28 2012 @ 02:46 PM EST
Even if EveryMD has been running a web site since 2001, before FaceBook
launched, the '122 patent was filed in 2007 as a continuation of an application
filed in Dec 2003 as a continuation of a patent filed in 1999 that was issued as
as U.S. Pat. No. 6,671,714 in Dec 2003.

The '714 patent is mentioned in EveryMD's filing, but they do not assert
infringement of it. I looked at the patent on the USPTO site, and it is an
amazing document: It has only two short claims that are perfectly understandable
to the layman. I won't quote the claims, out of deference to the readers here
who say that they do not want to read such things. I will include a short quote
from the Wikipedia entry for Tripod.com, one of the first free web hosting
companies that launched this aspect of their service in 1995.

"Web sites generally are a subdomain of tripod.com. However, users can pay
a monthly charge and own a domain name. Paying in this manner also allows for
other benefits, such as more disk space for the site which allows the site owner
to put more information onto it, and personalized email accounts (i.e.
yourname@yoursite.com)"

I won't quote the two claims of '714, but I will say that I have to be careful
to state that the above quote is a description of Tripod.com's offering since
1995 because otherwise I could be accused of plagiarizing the first claim of the
patent :D. The second claim is for making the services of the first claim
available to members of a licensed profession, such as doctors. I don't think
Tripod discriminated against doctors.

In any case, even though IANAL, I think I can be pretty sure that continuing a
1999 application for a patent does not let you add brand new claims in 2003 and
gain 1999 priority for the new claims. I don't see how EveryMD can get anything
from the 1999 application other than the claims in the '714 patent for giving
people a web page at URL username.example.com and an email address of
username@example.com - The rest would have a priority date of Dec 2003 at the
earliest, wouldn't that be correct?

FaceBook launched in 2004, but MySpace launched in August 2003 and it was a copy
of Friendster which launched in 2002.

Looking at the Friendster article on Wikipedia I see that it lists a number of
patents that Friendster got, which may themselves be prior art for the '122
patent, in addition to the Friendster web site itself.

http://en.wikipedia.org/wiki/Friendster

Here is an interesting twist: That Wikipedia article also says that FaceBook
bought the Friendster patents in 2010. Perhaps they will use them to countersue
EveryMD and put them out of business.


[ Reply to This | # ]

Yahoo is going to sue Facebook for patent infringement ~pj
Authored by: Anonymous on Tuesday, February 28 2012 @ 02:51 PM EST
It is all about the Benjamin's. Click here

[ Reply to This | # ]

This is good news
Authored by: Anonymous on Tuesday, February 28 2012 @ 02:58 PM EST

There can be no better way to send a message about the silliness of software patents then by suing high-profile political candidates. Let's hope this claim reaches into billions and grabs headlines far and wide. Let us hope for an early win for the claimants that goes to the supreme court to get undone. Let us hope that the only way to undo it is by weakening or eliminating software patents altogether.

Gringo

[ Reply to This | # ]

EveryMD sues Facebook business account end users for patent infringement ~pj
Authored by: Anonymous on Tuesday, February 28 2012 @ 03:37 PM EST
Shades of SCO Group, who sued business end users of Linux, like DaimlerChrysler and AutoZone, for alleged copyright infringement after IBM refused to pay them off.
Correct me if I'm wrong, but I was under the impression that SCO sued autozone because they were using the SVR3.2 shared libraries from a SCO Openserver release to run their applications on Linux. They were sued for using SCO's libraries in violation of the library license agreements, not for anything to do with linux copyright infringment. I believe the same reasoning was behind the D-C suit, which was dismissed when D-C showed they weren't using the SCO open server libraries.

[ Reply to This | # ]

Don't get too bent out of shape on this
Authored by: Anonymous on Tuesday, February 28 2012 @ 03:42 PM EST

First, note that, according to the USPTO public PAIR system, U.S. patent No. 6671714 expired on January 30, 2012 due to non-payment of maintenance fees. I wonder whether the patent owner let this patent expire prematurely because of Bilski -- i.e., that Claim 1 (the only claim that appears to me to be applicable in this case based solely upon a superficial reading of the information available as of today) is simply an unpatentable abstract idea.

Second, U.S. patent No. 7644122 has a rather extensive file wrapper in which (1) the USPTO rejected all of the claims as being directed to unpatentable subject matter at least once (remember, the USPTO is your friend! If you don't believe that, refer to Bitlaw to see how they have consistently taken the stance before the courts that software is unpatentable subject matter) and (2) the applicant has extensively defined and limited the claims of the patent through estoppel by distinguishing and refining the claims over prior art after many rejections by the USPTO.

Third, according to USPTO public PAIR and patentlyo.com, the 7644122 patent itself is in the midst of an inter partes reexamination, 95/001,411. The claims are on appeal following a final rejection of all claims by the examiner.

So let's wait a bit and see how this plays out before everyone panics. (Or you could just panic now, if you are an incurable psychotic.)

[ Reply to This | # ]

What happens when someone eventually sues an American Court for infringement of "IP"? n/t
Authored by: SirHumphrey on Tuesday, February 28 2012 @ 04:12 PM EST

[ Reply to This | # ]

Fantastic news!
Authored by: Anonymous on Tuesday, February 28 2012 @ 04:22 PM EST
Suing Newt Gingrich for 'infringing' some silly business method patent is just
about the best news I've heard on the patent front for ages. It certainly rubs
his nose in the stupidity of the patent system. Brilliant!

If he gets annoyed enough he might even decide to take action to fix the patent
system despite the millions payed to his campaign to support the patent status
quo.

[ Reply to This | # ]

EveryMD Paul Ceglia ?
Authored by: Anonymous on Tuesday, February 28 2012 @ 07:03 PM EST
Hmmmm, any connection?

[ Reply to This | # ]

Huh? They are suing after being told the patents are not valid?
Authored by: PolR on Tuesday, February 28 2012 @ 08:50 PM EST
Now we will have three presidential candidate having briefings from lawyers
telling them they are sued over patents that are not valid. They will be told
that these patents are the object of an on-going litigation with Facebook and
that this case is administratively closed because the patents are invalid. They
will be told that this is why they are now the next target of this litigation.

Anyone knows how many members of Congress have a Facebook page? I have checked
that president Obama and his wife Michelle each have a Facebook page. There is
also a Facebook page for the White House.

These guys are not thinking things through.

[ Reply to This | # ]

software patentability - my first programming lesson
Authored by: Anonymous on Tuesday, February 28 2012 @ 09:04 PM EST
I remember my first computer programming lesson in high school. We were asked
to imagine we had a robot at the front of the class, and we were to instruct it
how to "phone home" (this was before cell phones). The lesson was to
show us how detailed we must be when telling the computer what to do. Looking
back on that lesson, it strikes me that looking at programming in that manner
would not be patentable in the least.

[ Reply to This | # ]

How does EveryMD think they are going to get $500 from all business accounts ...
Authored by: Anonymous on Wednesday, February 29 2012 @ 04:33 AM EST
... given that a lot of non-US companies have facebook pages (and hence
according to EveryMD own them money) but do not recognise US software patents or
US court judgements relating to the same.

Alan

[ Reply to This | # ]

Software you might find useful
Authored by: Anonymous on Wednesday, February 29 2012 @ 08:25 AM EST
"Juriscraper: A New Tool for Scraping Court Websites"
http://legalinformatics.wordpress.com/2012/02/25/juriscraper-a-new-tool-for-scra
ping-court-websites/
The article and url was found on http://planet.topicmaps.org/

[ Reply to This | # ]

EveryMD sues Facebook business account end users for patent infringement ~pj Updated 2Xs
Authored by: iraskygazer on Wednesday, February 29 2012 @ 01:47 PM EST
Are we hear at Groklaw infringing on somebody's patent because the site has
'preview' and 'submit comment' buttons?

Hmmmm. Are the trolls hovering over our heads?

[ Reply to This | # ]

Existing precident already has software patents illegal
Authored by: BitOBear on Wednesday, February 29 2012 @ 07:05 PM EST
Okay, the court may not yet agree, but existing precedent should already hold
that all software is not patentable.

(1) Operating a machine entirely within its design parameters is not patentable.
That is, if a machine X has a button to operate it, one may not rationally
receive a patent "to press the button on machine X to cause it to
operate". This is true no matter how many buttons or levers a machine has.
All software is comprised of invoking normal operations which are built into the
machine in the form of operators. [Not sure how to cite the precedent, but using
a machine entirely as it is designed to work is a case where the patents, if any
were to issue, would belong to the designer of the machine.]

(2) Combining non-patentable elements does not produce a patentable element; and
placing two machines together without chaining their function does not produce a
patentable machine. Since all software is comprised of "some set of
operations followed by an operation", each element of construction in that
software was unpatentable as mere addition of an non-patent-worthy element to an
existing stream of non-patent-worthy elements. [see alpha beta case about cash
register and conveyor belt.]

(3) While it is arguable that all software is math [indeed this author
disagrees] it is -unarguable- that all the transformations that software can
perform -are- -explicitly- mathematical. That is, all input to the computer is
numeric; all transformations are numeric and found within classical mathematics
or boolean algebra; and all logical predicates are executions of operations
defined within classical mathematics, boolean algebra, or set theory. As such
the "machine or transformation test" must find the transformations to
be math and so unfit for patent. [Basic unpatentablilty of math.]

(4) The SCOTUS case that opened this can of worms said that the software
component of a machine was patent worthy. The lawyers immediately started
writing patents where the set of all "real machine" parts was empty,
and the set of software parts was not. This -should- be viewed as a deliberate
misuse of the ruling and citation.

(5) Particular (or Specific) Machine requirement has been improperly argued. In
particular each actor in most patent cases has a patent in suit as claim or
counter-claim. As such both sides are incapable of arguing that all software
patents are invalid without destroying their own claim or counter. As such the
arguments surrounding this requirement have been mortally flawed. As soon as one
can demonstrate two patents A and B describing respective "particular"
or "specific" machines, where B is neither a predicate of nor
predicated on A, there is proof of a non-particular or non-specific machine.
e.g. the "software" is no longer "particular" with respect
to the "machine taught by the patent".

The argument that instantiated the idea that when a computer runs a particular
program it is promoted to a particular machine was and is flawed. In and of
itself it is a reasonable finding, but that finding was blind to obvious
argument that the "particular-ness" is only -true- if the computer is
-only- running the particular program.

In fact, all general purpose machines should be excluded from any patent action
as a matter of law. The presence of multiple applications or the presence of
more than one distinct body of code. So the presence of an application running
"over" and operating system layer, or multiple applications running at
the same time, etc., is definitive proof that the "machine" being
investigated is not qualify as "specific and/or particular".

Note that this last bit -is- a real distinction in the current state of the art
of computer science. There are dedicated processor systems (typically called
embedded systems) where there is no distinct operating system layer and which
only run one application. Such systems -could- then meet the particular machine
test.

(6) Finally, our common use of "computer" is short hand for
"electronic computer". The word "computer" is actually the
title of a human job. By analogy, were one to invent a "robotic
carpenter" and were that to become so popular that humans stopped taking
the job so "carpenter" became the common term, it would not change the
nature of the job of being a carpenter. A human computer -can- do everything an
"electronic computer" can do, and in point of fact the programmer
-does- do it all mentally first in the design and production of the code. While
electronic computers do their operations faster and with less covariant error,
the process remains the execution of a mental task.

This author, having learned programming in seventh grade, but having no access
to one until twelfth, regularly wrote small programs and then "executed
them on paper" in his notebooks as a form of doodling in class. Any
programmer familiar with the language in use, can execute any program or portion
thereof "long hand". Since "purely mental" processes are not
subject to patent, all software is again not patentable material.

Yea, all this is complex, but complexity is not grounds for patent.

[ Reply to This | # ]

Mono is rubbish, plain and simple.
Authored by: Anonymous on Wednesday, February 29 2012 @ 08:05 PM EST
It's hard to really care about the potential legal problems with Mono when it
can't even round 0.5 away from zero effectively :-) In other words, it's
technical (in)capabilities far outweigh its legal issues.

[ Reply to This | # ]

Super duper tinfoil hat time
Authored by: Anonymous on Wednesday, February 29 2012 @ 08:46 PM EST
Try this scenario on for paranoia value:

EveryMD decides that it benefits from ObamaCare, and therefore that it wants
Obama rather than a Republican to win the presidency in 2012.

EveryMD therefore sues the (top) three Republican presidential candidates,
hoping to knock them off of Facebook and therefore hinder their campaigns.

In this view, it's not about the money, or at least not about the money they'd
get from suing people. It's about the money they get from ObamaCare.

But that's just my paranoia... isn't it?

MSS2

[ Reply to This | # ]

  • Yes - Authored by: Ian Al on Thursday, March 01 2012 @ 03:50 AM EST
Pro Se (Sort of)
Authored by: Anonymous on Wednesday, February 29 2012 @ 09:31 PM EST
One of the plaintiffs appears to be his own attorney (albeit a
real one). No wonder there seems to be a lack of perspective
or rational behaviour.

[ Reply to This | # ]

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