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SIIA Tells the FTC What Patent Trolls Are Doing to the Software Industry ~pj
Monday, May 20 2013 @ 01:00 AM EDT

There are now 68 public comments listed on the FTC's website on the topic of patent trolls. Patent Progress's David Balko's article, The End-Users Strike Back, notes that a surprising number are from end users, defined as "retailers, financial services, grocery stores, advertising, hotel industries, and even oil companies [who] are coming out in droves to fight abusive patent troll tactics":
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.
You may enjoy going through them, but I thought you might like to see one of the more thoughtful of the public comments, the one from Ken Wasch [PDF], President of the Software & Information Industry Association, or SIIA, a trade association for the software industry with 700 plus members, because it provides details on how the patent trolls attack and what the results have been. I don't see members listed on the site, but the Software Board lists a number of companies, including Red Hat and IBM, and a number of smaller companies. And the comment states that trolls are hindering innovation, being "masters at abusing and manipulating the patent system." The footnotes alone are worth noting, but the really interesting part is how the comment explains how trolls do what they do. I learned something I've long wondered about, why trolls hide who they are in litigation.

read more (3589 words) 225 comments  View Printable Version
Most Recent Post: 05/23 05:37PM by Wol

Motorola Files Reply Brief in Appeal of Judge Posner's FRAND Decision in Apple v. Motorola-~pj
Friday, May 17 2013 @ 12:40 PM EDT

The beat goes on in the Apple v. Motorola appeal of Judge Richard Posner's ruling dismissing both parties' claims with prejudice, saying neither was entitled to damages or an injunction. Both are appealing, but for different reasons. Motorola has now filed its redacted reply brief [PDF] in response to Apple's response and reply brief [PDF]. And as soon as Judge James Robart issued his Microsoft-friendly ruling in Microsoft v. Motorola in the Seattle litigation, Apple sent a letter to this appeals court, bringing it to the court's attention, because it supports Apple's position and calls Motorola's patents a trivial contribution to the standard.

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.

read more (9091 words) 156 comments  View Printable Version
Most Recent Post: 05/23 03:33PM by Anonymous

Happy 10th Anniversary, Dear Groklaw! Happy 10th Anniversary to Us! ~pj
Thursday, May 16 2013 @ 12:01 AM EDT

We made it. A decade of Groklaw as of today. Who'd a thunk it?

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.
Group dynamics are awesome. Whenever there is a new need, somehow the right people show up and fill it. Whether it was meticulously demolishing SCO's claims, one by one, or doing patent prior art searching, or explaining that software is mathematics and hence unpatentable subject matter, or noticing what the real game is in the patent smartphone wars, you came through with competence, donating your knowledge, research, and skills to the group effort. And you did it entirely as volunteers, as a free gift to the world.

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

read more (1130 words) 245 comments  View Printable Version
Most Recent Post: 05/21 01:36PM by russellphoto

Hackathon Trademarked in Germany? Now What? ~pj Updated 2Xs
Monday, May 13 2013 @ 02:42 PM EDT

I am sure you saw that somebody in Germany, a company called, has sneaked through a trademarking of the word HACKATHON in Germany. There was no opposition, because nobody knew about it. We know now, however, so what can anyone do about it? It turns out, plenty.

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.

read more (1406 words) 360 comments  View Printable Version
Most Recent Post: 05/17 10:21PM by Kilz

Federal Circuit, en banc, rules in CLS Bank ~pj Updated 3Xs
Friday, May 10 2013 @ 03:58 PM EDT

OMG. CLS Bank v. Alice Corp. has been decided [PDF] by the the Federal Circuit en banc. And Patently O says the court "finds many software patents ineligible"!
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.

The Federal Circuit. OMG. We've worked hard for so many years to get to this point, I almost can't believe it. And I suppose it's possible it could be appealed, but this is proof of what I've always told you, that education is never a waste. Judge Rader is very upset, I gather. He has written a dissent. But he didn't prevail. And I'm sure he gave it his best effort. OMG. This is a new day.

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.

read more (37818 words) 709 comments  View Printable Version
Most Recent Post: 05/18 04:44AM by Anonymous

Blackberry Tells the Federal Circuit Judge Posner Got It Wrong Re No Injunctions for FRAND Patents in Apple v. Motorola ~pj
Friday, May 10 2013 @ 02:57 AM EDT

Blackberry's amicus brief [PDF] is now made public in the Apple v. Motorola appeal of Judge Richard Posner's order which seemed to say that if you own FRAND patents, you have no right to seek an injunction under any circumstances.

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.”
The misunderstanding by one and all, if that is what it is, stems from accepting Apple's argument that a FRAND agreement is a contract, as Motorola's brief points out, but if it's a contract, then contract law should apply. Motorola never waived its right to injunctions, and since that is a right under law, it would have to have specifically waived its rights to lose them. Not even judges can just waive their hands and remove legal rights. Why, indeed, would they want to?

read more (5346 words) 86 comments  View Printable Version
Most Recent Post: 05/13 02:02PM by Anonymous

Google, Red Hat, HTC, SAP and Rackspace Seek to File Amicus in Apple v. Samsung Appeal ~ pj
Thursday, May 09 2013 @ 09:47 AM EDT

Google, Red Hat, HTC, SAP America, and Rackspace have asked leave of the Federal Circuit Court of Appeals to file an amicus brief [PDF] in the Apple v. Samsung appeal. That's on the first case., the one Samsung lost but has been whittling down a bit in post-trial motions. Here's the issue they'd like to address:
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.
Apple opposes [PDF]:
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).
Even if they win, they still lose, though, because there are several others seeking to file the same material, and they are not by any stretch of imagination parties in interest. Except for HTC, none of the rest of the proposed filers is even in the mobile phone marketplace.

read more (1615 words) 117 comments  View Printable Version
Most Recent Post: 05/12 02:53PM by Anonymous

SCO: But waitaminnit, yer Honor ~pj
Wednesday, May 08 2013 @ 01:15 PM EDT

SCO, of course, is asking [PDF] the judge in U.S. District Court in Utah to reconsider his order denying SCO's request to reopen its case against IBM.

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.
They are right about the Bankruptcy Court lifting the stay. So unless the judge is much more clever than I am, which is likely actually, I suspect he'll have to grant the motion to reopen, and then we'll see IBM make its moves. But of course, SCO wants more.

read more (201 words) 206 comments  View Printable Version
Most Recent Post: 05/14 03:00PM by albert

The Novell v. Microsoft Hearing at the 10th Circuit - Eyewitness Report ~pj
Monday, May 06 2013 @ 06:59 PM EDT

Our own Justin Ellis attended today's hearing at the 10th Circuit Court of Appeals on Novell's appeal in Novell v. Microsoft. This is the antitrust litigation Novell brought over WordPerfect. He has a report for us. He begins with his general impressions, and then provides his notes on the arguments.

To help you follow along, here are some resources:

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.

read more (3563 words) 174 comments  View Printable Version
Most Recent Post: 05/11 10:10AM by FrankH

MS v. Motorola Appellate Jurisdiction - Another Appeal Issue ~pj
Monday, May 06 2013 @ 10:38 AM EDT

Matt Rizzolo has an interesting article, "Which appeals court has appellate jurisdiction over the Microsoft-Motorola RAND case?":
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.

It's worth it.

read more (492 words) 55 comments  View Printable Version
Most Recent Post: 05/14 01:20AM by Anonymous

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