Oh, joy, another stupid, bullying patent troll lawsuit trying to crush Android. There simply aren't enough of those already.
This one is brought by Intellectual Ventures against Motorola in Florida. Here's the complaint [PDF]. They are already suing Motorola in Delaware. Why not just add them to the Delaware case, if it needs shoring up? Maybe because this way, they get two tries at the golden ring on this merry-go-round, and if Google tries to consolidate the cases, they have to pay lawyers for that extra work, and if the effort fails, they have to pay two teams of lawyers to go to two different states to protect Motorola. Lawyers do know how to be annoying if they want to be. If the goal is to sue someone, like Google, let's just say, until they scream Uncle and pay up, they might just do so. Not that Google ever does. It has a fabulous record of success in patent defense, and they have done it repeatedly even without counterclaims, so in that sense, part of the benefit expected from using a troll to go after Google is probably lost.
And you will not believe the seven patents that are being used this time. One is for linking urls in an email. Yes. Really. Ever do that? Did you know you should be paying IV because the USPTO gave it ownership of that functionality? Actually it's less direct and IV keeps it a little bit murky, but I'll show you the details.
I want the USPTO to explain how this is even possible, that a patent could ever have issued on something like that.
And guess where IV got these patents? Not *directly* from the USPTO. I'll give you a big hint. Some of them, from what I'm seeing, are from working companies. Don't they call that privateering, when active companies outsource their patents to trolls to do their dirty work? Why yes. Yes, they do.
Can you guess one company in this picture? Someone helping Microsoft in its anticompetitive attack on Android and Linux, you say? Yes, one of the companies that seems to have transferred two patents to IV for its holy quest is Nokia, Microsoft's 'partner in crime', as I like to think of them.
I know. You are shocked, shocked to know that patents are being used anticompetitively in a court of law.
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Here's the assignment document on one of the Nokia patents, #US 6,170,073. IV doesn't mention that in the complaint, of course. It talks about struggling individual inventors that IV collects and tries to get money for, as I'll show you. Why wouldn't Nokia just sue directly? Other than because it'd get sued back, I mean? Ask them. Maybe because IV is asserting against Android some standard essential patents on things like
WiFi, 3G, and 4G LTE. Did they negotiate with Motorola before suing? I mean, that's the process when standards are involved. The parties are supposed to meet and work out a fair price. I know. How quaint of me. I'll let the complaint answer, with a typical paragraph:
65. Intellectual Ventures II has provided written notice via a letter dated June 18, 2013 from counsel for Intellectual Ventures II to Renny Hwang and Brett Roesslein advising Motorola Mobility of its infringement of at least claims 1 and 21, and Motorola Mobility also has written notice of its infringement by virtue of the filing and service of this Complaint. They sent a letter. The day before filing the lawsuit.
Where are the regulators? Come out, come out wherever you are. In fairness, the FTC is reportedly considering investigating IV and other such trolls, and Google and Red Hat and others have asked them and the DOJ to look at active companies outsourcing litigation to trolls this way. Here you go, Exhibit A.
[ Update 2: I just remembered something. Here's one worry Google and Red Hat expressed about outsourcing FRAND patents:
Operating companies and PAEs may engage in joint ex post exploitation. Certain transfers from operating companies to PAEs threaten to evade FRAND commitments even when, consistent with In re N-Data, the PAE agrees to honor a specific FRAND commitment made by the transferor. In particular, in some industries, operating companies that have made specific commitments to avoid royalty stacking may, in tandem with PAEs, be evading those commitments. The result, as with other transfers to PAEs, is to “raise prices and decrease incentives to innovate.”...
And here is IV, going after Android with a couple of Nokia patents, one of them for LTE. I left off the footnotes, but you can read the entire filing, if you are interested. - End Update 2.]
Similarly, commitments to royalty caps or FRAND licensing secured by certain industry participants from rights holders (whether through formal standard setting, unilateral commitments by patent holders, or otherwise) can mitigate royalty stacking concerns. Such assurances work to keep royalties reasonable once firms have adopted standardized technologies. One type of assurance is a “no stacking” pledge. Often this takes the form of a commitment by a rights holder not to seek more than a specific royalty level from implementers of particular standards no matter how many patents the rights holder possesses and no matter how many standards an implementer uses.
“No stacking” commitments are common in some industries. A concrete example of such a pledge is one made by Nokia. To induce adoption of its proposed LTE standard, Nokia committed not to seek more than a 2.0% royalty for all of its patents “essential to wireless communication standards irrespective of the number of wireless standards deployed” and denominated this pledge a “no royalty stacking” commitment. Nokia’s commitment – and similar commitments of other cellular SEP holders – played a critical role in inducing the telecommunications industry to adopt its proposed LTE standard as a 4G cellular communications standard. SSOs facilitate “no stacking” commitments. The IEEE, for instance, permits firms with likely essential patents to commit to not-to-exceed license fees.
Transferors can attempt to circumvent these no royalty stacking commitments by outsourcing the enforcement of patents to PAEs.
Here are some of the laughable claims in US patent #5790793, which I've truncated for space, but trust me, every bit of it is on this same level of stupid (and mean):
See? Pure magic, no? Sending an email with a url in it that the receiver sees displayed? This claim would be infringed with sending email in HTML format if you
include an IMG tag with a URL to the image. The email client will download the
image and incorporate it in the mail according to the HTML.
What is claimed as new and desired to be secured by Letters Patent of the United States is:
1. A method of communicating between computers, comprising the steps of:
creating a message at a first computer, said message including a reference to a predetermined location;
2. A method according to claim 1, wherein:
transmitting, by the first computer, said message to a second location; and
receiving said message by a computer at the second location;
decoding said message by the computer at the second location by retrieving data from the predetermined location, automatically by a single application, without requiring user interaction, into the computer at the second location.
said step of creating a message creates the message using Hypertext Markup Language (HTML); and
3. A method according to claim 1, wherein:
said step of decoding said message decodes the message using an HTML viewer.
said step of creating a message creates the message without using a Hypertext Markup Language (HTML); and
4. A method according to claim 1, wherein:
said step of decoding said message includes:
decoding the message by translating the message to the HTML; and
displaying, using a HTML viewer, said message which has been translated to the HTML.
said reference to a predetermined location is a Uniform Resource Locator (URL) and said step of creating creates the message without including data corresponding to the predetermined resource referenced by the URL.
5. A method according to claim 4, wherein said decoding step automatically retrieves the data from the predetermined location when a user decodes the message without the user requesting the retrieval of the data corresponding to the URL.
6. A method according to claim 1, wherein said transmitting step transmits the message over an Internet connection.
7. A method according to claim 1, wherein said step of creating creates the message so that the reference to a predetermined location corresponds to at least one of company information, a catalog, new product information, a manual, a correction to the manual, an order, complaint information, and a questionnaire.
8. A method according to claim 1, wherein
said decoding includes displaying the message and the data from the predetermined location without running an application other than said single application and without running a separate translation program.
9. A method according to claim 1, wherein said step of creating a message creates said message to be an electronic mail message and said transmitting steps transmits said message over the Internet.
So you could
infringe on this patent by writing and reading email in HTML format when the
image is found via a URL instead of attaching the image file. But this is all
part of the HTML standard. This patent reads on standard use of HTML as provided
by the standard. URLs are meant to be followed by programs to display information. That's what they have been created for. The "invention" is that an email client does it automatically instead of typing the URL in a web browser. Not over the *Internet*? What genius could invent such a marvelous, nonobvious function? Wow.
[ Update: A reader provides an example:
From: firstname.lastname@example.org End Update.]
Body: Here's a pic of that widget [PJ: But with a link to click on, like href="http://www.companyname.com/gp/
If moe's mail client is set to plain-text he's OK.
If his mail client automagically displays the pic he infringes.
And they don't want Motorola to be able to do that unless they pay Intellectual Ventures. Yup. That's the plan. Everybody wants Google's money, I've observed.
You know what it means? It means if you ever do that -- and you do every day of your life, I'm guessing -- you evildoers are infringing IV's Sooper Sakred Most Holy Intellectual Property.
Remember when the last head of the USPTO gave a swan song speech as he was leaving about how patent critics should give it a rest already? I dare him to show his face now. Do, come here and defend this patent. I double dog dare you.
I most sincerely want to thank Microsoft, Nokia, and Intellectual Ventures for helping the public to understand just how stupid US patent law has become. It's transforming the public's view, and over time that will transform the law. Even the President is mad at patent trolls now. Meanwhile, raise your hand if you think this is despicable. Do you see why he wants to do something about it?
I know. IV claims it does such things so it can help inventors who can't afford to litigate their claims, their wonderful inventions cooked up in their little genius garages. Here's how IV describes itself as a Knight of the Round Table rescuing poor inventors who need them to save their opportunity to sue:
Would you imagine, reading that tale, that IV was talking about operating companies like Nokia?
I mean, Nokia can afford to sue. It's surely doing so as we speak. What a phony story, under the circumstances. The Essential Patent Blog
INTELLECTUAL VENTURES AND THE PATENTS-IN-SUIT
7. Intellectual Ventures Management, LLC (“Intellectual Ventures”) was founded in 2000. Since its founding, Intellectual Ventures has been deeply involved in the business of invention. Intellectual Ventures creates inventions and files patent applications for those inventions; collaborates with others to develop and patent inventions; and acquires and licenses patents from individual inventors, universities and other institutions. A significant aspect of
Intellectual Ventures' business is managing the Plaintiffs in this case, Intellectual Ventures I and Intellectual Ventures II.
8. Intellectual Ventures' business includes purchasing important inventions from individual inventors and institutions and then licensing the inventions to those who need them. Through this business, Intellectual Ventures allows inventors to reap a financial reward from their innovations, which is frequently difficult for individual inventors to do. To date, Intellectual Ventures has acquired more than 70,000 IP assets and, in the process, has paid individual inventors hundreds of millions of dollars for their inventions. Intellectual Ventures, in turn, has earned more than $3 billion by licensing these patents to some of the world's most innovative and successful technology companies who continue to use them to make computer equipment, software, semiconductor devices, and a host of other products.
9. Intellectual Ventures also creates inventions. Intellectual Ventures has a staff of scientists and engineers who develop ideas in a broad range of fields, including agriculture, computer hardware, life sciences, medical devices, semiconductors, and software. Intellectual Ventures has invested millions of dollars developing such ideas and has filed hundreds of patent applications on its inventions every year, making it one of the top patent filers in the world. Intellectual Ventures has also invested in laboratory facilities to assist with the development and testing of new ideas.
10. Intellectual Ventures also creates inventions by collaborating with inventors and research institutions around the world. For example, Intellectual Ventures has developed inventions by selecting a technical challenge, requesting proposals for inventions to solve the challenge from inventors and institutions, selecting the most promising ideas, rewarding the inventors and institutions for their contributions, and filing patent applications on the ideas.
Intellectual Ventures has invested millions of dollars in this way and has created a network of more than 4,000 inventors worldwide.
11. On August 4, 1998, U.S. Patent No. 5,790,793 (“the ’793 Patent”), titled “Method and System To Create, Transmit, Receive and Process Information, Including An Address To Further Information,” was duly and lawfully issued by the United States patent and Trademark Office (“PTO”). A copy of the ’793 Patent is attached hereto as Exhibit A.
12. Intellectual Ventures I is the owner and assignee of all right, title and interest in and to the ’793 Patent and holds the right to sue and recover damages for infringement thereof, including past damages.
13. On November 14, 2006, U. S. Patent No. 7,136,392 (“the ’392 Patent”), titled “System and Method For Ordering Data Messages Having Differing Levels of Priority For Transmission Over A Shared Communication Channel,” was duly and lawfully issued by the PTO. A copy of the ’392 Patent is attached hereto as Exhibit B.
14. Intellectual Ventures I is the owner and assignee of all right, title and interest in and to the ’392 Patent and holds the right to sue and recover damages for infringement thereof, including past damages.
15. On September 19, 2000, U.S. Patent No. 6,121,960, (“the ’960 Patent”), titled “Touch Screen Systems and Methods,” was duly and lawfully issued by the PTO. A copy of the ’960 Patent is attached hereto as Exhibit C.
16. Intellectual Ventures II is the owner and assignee of all right, title and interest in and to the ’960 Patent and holds the right to sue and recover damages for infringement thereof, including past damages.
17. On June 3, 2008, U.S. Patent No. 7,382,771 (“the ’771 Patent”), titled “Mobile Wireless Hotspot System,” was duly and lawfully issued by the PTO. A copy of the ’771 Patent is attached hereto as Exhibit D.
18. Intellectual Ventures II is the owner and assignee of all right, title and interest in and to the ’771 Patent and holds the right to sue and recover damages for infringement thereof, including past damages.
19. On July 21, 2009, U.S. Patent No. 7,564,784 (“the ’784 Patent”), titled “Method and Arrangement For Transferring Information In A Packet Radio Service,” was duly and lawfully issued by the PTO. A copy of the ’784 Patent is attached hereto as Exhibit E.
20. Intellectual Ventures I is the owner and assignee of all right, title and interest in and to the ’784 Patent and holds the right to sue and recover damages for infringement thereof, including past damages.
21. On January 2, 2001, U.S. Patent No. 6,170,073 (“the ’073 Patent”), titled “Method And Apparatus For Error Detection In Digital Communications,” was duly and lawfully issued by the PTO. A copy of the ’073 Patent is attached hereto as Exhibit F.
22. Intellectual Ventures I is the owner and assignee of all right, title and interest in and to the ’073 Patent and holds the right to sue and recover damages for infringement thereof, including past damages.
23. On December 7, 2010, U.S. Patent No. 7,848,353 (“the ’353 Patent”), titled “Method, Communication System And Communication Unit For Synchronisation For Multi-Rate Communication,” was duly and lawfully issued by the PTO. A copy of the ’353 Patent is attached hereto as Exhibit G.
24. Intellectual Ventures II is the owner and assignee of all right, title and interest in and to the ’353 Patent and holds the right to sue and recover damages for infringement thereof, including past damages.
It should come as no surprise to those familiar with Intellectual Ventures that IV was not the original assignee of the patents-in-suit — these patents have been assigned to IV over the years, with former owners of the patents including Nokia, Spyder Navigations (who, according to this site, is a Nokia-related “privateer” that was managed by IV), Ninety Portals, IPWireless, Inc., Intersil, Conexant, In Motion Technology, and Infologix, among others. Some Knight in Shining Armor.
Oh, you may be an infringer without realizing it. For example, note this claim from the complaint:
62. Intellectual Ventures II is informed and believes, and thereon alleges, that Motorola Mobility has directly infringed and continues to directly infringe, literally and/or under the doctrine of equivalents, at least claims 1 and 21 of the ’353 Patent by making, using, selling, offering to sell and/or importing products compliant with and/or implementing the LTE standard, including but not limited to the Photon Q 4G LTE, Atrix HD and Electrify M. You dirty infringers, you. How dare you buy a Motorola phone without crossing IV's palm with your silver.
Actually, this patent doesn't deserve my curved lip, let alone money.
63. Intellectual Ventures II is informed and believes, and thereon alleges, that Motorola Mobility also has and continues to indirectly infringe at least claims 1 and 21 of the ’353 Patent by inducing others to infringe and/or contributing to the infringement of others, including third party users of such products in this judicial district and elsewhere in the United States. Specifically, Intellectual Ventures II is informed and believes, and thereon alleges, that Motorola Mobility has actively induced and continues to induce the infringement of at least claims 1 and 21 of the ’353 Patent at least by actively inducing the infringing use of such products in the United States. Intellectual Ventures II is informed and believes, and thereon alleges, that Motorola Mobility knew or should have known that its conduct would induce others to use its LTE standard compliant products in a manner that infringes the ’353 Patent. Intellectual Ventures II is informed and believes, and thereon alleges, that these third parties have infringed and will infringe the ’353 Patent in violation of 35 U.S.C. § 271(a) by using the infringing products. Intellectual Ventures II is informed and believes, and thereon alleges, that Motorola Mobility through at least its website at https://www.motorola.com, its online user manuals, marketing materials and help materials actively induced its customers to infringe the ’353 Patent.
But Motorola will have to spend money to defend itself. And that's what this ugly dance is really all about. You know how I know? Because Microsoft mouthpiece Florian Mueller says so on FOSSPatents:1
Intellectual Ventures ("IV"), the world's largest non-practicing entity, is not
going to let Google's Motorola Mobility off the hook anytime soon unless it pays
license fees on all of its Android-based devices. Woah. That's letting the cat out of the bag. Just like SCO, Microsoft wants FOSS to cost more, so they can compete against it with a ball and chain attached to Android's leg. So it and its helpers sue and sue and sue to try to force Google to pay. That way, Android won't be free any more, and you will have to pay more for an Android phone, if you law-breakers still want one. Is that what patents are for? Even Mueller isn't pretending this is about protecting intellectual property, is he? It's about forcing Google to pay royalties, as an anticompetitive move. That's how I view it.
IV is, of course, run by an ex-Microsoft guy. And Microsoft, last I looked, had invested in IV. Regulators, where are you? Seriously. When are you going to put a stop to this evil plot?
Meanwhile, we should seriously look for prior art, I'm thinking. If you know of any, either leave a comment or email me.
Here are all the patents, with links, and showing what the patents are for, and when they were assigned and by whom, and when they issued, so you can compute the date prior art would have to beat:
* = appears to be still operating
US 5,790,793 ||
August 28, |
October 31, |
March 21, |
(now General Dynamic
I guess you saw that Microsoft and Nokia were in talks about Microsoft buying Nokia's handset business, with some offshore money so as to avoid paying US taxes, those patriots, but the deal allegedly fell through. So Nokia gets to keep helping and helping, and for what?
Update 3: OMG. Look at this in the New York Times:
The chairwoman of the Federal Trade Commission is expected on Thursday to recommend a sweeping investigation of “patent trolls,” companies that buy large portfolios of technology patents and use them to sue software designers and makers of products like smartphones and tablet computers, people briefed on the inquiry said....
Do the trolls have to tell the truth?
If approved, which is likely, the F.T.C. investigation will require patent-assertion companies to answer questions about how they conduct their operations, including whether they coordinate their lawsuits with other patent holders and if they funnel proceeds from lawsuits and patent licenses back to the original patent owner.
Kidding. They'll be sending them subpoenas:
Ms. Ramirez is expected to recommend what is known as a 6(b) study, after the authorizing section of the Federal Trade Commission Act. This type of inquiry does not always have a specific law enforcement purpose but can gather information for use by Congress, the courts or executive agencies in dealing with an issue.
Oh, my. This could be huge. [swoons]
But those studies can also produce information that results in an antitrust lawsuit.