Insanity Rules In East Texas: Jury Finds Newegg Infringes On Ridiculous Encryption Patent

from the why-trolls-love-east-texas dept

There's a reason why patent trolls love east Texas -- and big part of that is that the juries there have a long history of favoring patent holders, no matter how ridiculous or how trollish. That was on display last night, when the jury in Marshall, Texas sided with patent troll Erich Spangenberg and his TQP shell company over Newegg. As we've been describing, Newegg brought out the big guns to prove pretty damn thoroughly that this guy Mike Jones and his encryption patent were both not new at the time the patent was granted and, more importantly, totally unrelated to the encryption that Newegg and other ecommerce providers rely on. Having Whit Diffie (who invented public key cryptography) and Ron Rivest (who basically made it practical in real life) present on your behalf, showing that they did everything prior to Jones' patent, while further showing that what Newegg was doing relied on their work, not Jones', should have ended the case.

But, apparently TQP's lawyers' technique of attacking Diffie's credibility somehow worked. The jury said both that the patent was valid and that Newegg infringed -- and they awarded TQP $2.3 million -- a little less than half of what TQP wanted, but still a lot more than TQP settled with many other companies (including those with much bigger ecommerce operations than Newegg). In other words, yet another travesty of justice from a jury in east Texas. Newegg will appeal, as it did in its last big patent troll lawsuit (which was much bigger), against Soverain Software. Again, Newegg had lost in East Texas, but prevailed big time on appeal. Hopefully history repeats itself.

Joe Mullin's coverage (linked above) has a bunch of little tidbits about how everyone responded to the verdict, but I think Diffie's response is the most honest. Asked how he was feeling:
"Distressed," he said. "I was hoping to be rid of this business."
Yeah, he's not the only one. The sheer ridiculousness of a jury simply not believing the very people who created the very building blocks of modern encryption, and instead buying the story of someone who did nothing special either with the concept behind his patent or with that patent once it existed, is just distressing. It shows how arbitrary jury trials can be, especially when you have jurors who simply don't understand the technology or the history at play. Blech. I think I may have to go buy an anti-patent troll t-shirt from Newegg.


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  1.  
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    That One Guy (profile), Nov 26th, 2013 @ 4:19am

    Crazy, but expected

    Honestly, given the case was being held in east Texas, which is troll heaven, I would have been surprised(pleasantly so mind) had it not gone this way. From comments on the AT article, the Newegg team apparently expected pretty much the same, and had already budgeted for an appeal.

    I think the following, from the source article, sums it up fairly nicely actually:

    The Newegg team was obviously crestfallen. But Newegg Chief Legal Officer Lee Cheng—who has said he will appeal any loss at this trial—made a point of congratulating the inventor after the verdict. "Congratulations Mr. Jones," he said. Cheng then added with a smile: "Get your money up front."

    That to me is the 'congratulations' of a man who knows he will have no problem mopping the floor with his opponent in any court that's actually balanced and fair.

     

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    Richard (profile), Nov 26th, 2013 @ 6:42am

    "Whit Diffie (who invented public key cryptography) and Ron Rivest (who basically made it practical in real life)"


    Actually it was invented by James Ellis and made practical by Clifford Cocks and Malcolm Williamson several years earlier. Unfortunately the secrecy policies of GCHQ prevented them from either exploiting it or receiving the credit.

    Whitfield Diffie heard a rumour(about this), probably from the NSA, and travelled to see James Ellis. The two men talked about a range of subjects until, at the end, Diffie asked Ellis "Tell me how you invented public-key cryptography".

    However I am sure that Ellis Cocks and Williamson would (have) agree(d) with Diffie on this issue.

     

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  3.  
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    James, Nov 26th, 2013 @ 6:46am

    Typo

    "now matter" should probably be "no matter"

     

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  4.  
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    Anonymous Coward, Nov 26th, 2013 @ 6:51am

    So if encryption is now patented, why don't they sue all those spies from hundreds and thousands of years ago in history who wrote secret messages in code that needed the right tool or method to 'decrypt' and read? One ruler for example had his people write hidden messages on blankets that had to be folded just the right way around a pole of just the right width for the message to be read, otherwise it would look like random black lines on a blanket.

    And I'm sure warlords and emperors like Genghis Khan wouldn't mind retroactively paying a small royalty on all the loot their empire stole.

     

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  5.  
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    David, Nov 26th, 2013 @ 6:57am

    Re: Crazy, but expected

    That to me is the 'congratulations' of a man who knows he will have no problem mopping the floor with his opponent in any court that's actually balanced and fair.


    So what? They got three strikes at most. Finding a court that's actually balanced and fair with that is quite a gamble in the U.S.A.

     

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  6.  
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    Craig (profile), Nov 26th, 2013 @ 7:05am

    Support Newegg

    On Black Friday I'm going to buy something at Newegg to support them in fighting the trolls. If they have a box to pay extra just to support the fight, I'd give an extra $20.

     

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  7.  
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    That One Guy (profile), Nov 26th, 2013 @ 7:07am

    Re: Re: Crazy, but expected

    Simply moving the case out of that part of Texas would probably be enough, given Newegg's witnesses backing them up.

    There's a reason so many patent trolls do everything they can to have cases ruled on in that area, and it's because it's very friendly to patent holders, troll or not.

     

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    vegetaman (profile), Nov 26th, 2013 @ 7:14am

    As a computer science guy, this pains me. Nothing could do more to stifle innovation than have bullshit like this happen.

    Bravo America. You've screwed the pooch, yet again.

     

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  9.  
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    vegetaman (profile), Nov 26th, 2013 @ 7:17am

    Is there a reason we cannot have a jury on a patent trial stocked with nothing but experts skilled in the art? It'd put a damper on this sort of stupidity right quick, I'd hope.

     

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  10.  
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    Anonymous Coward, Nov 26th, 2013 @ 7:17am

    Re:

    Yes, not to mention the NSA and other government officials scaring business away with all their spying on us, and creating a worldwide perception that your data in America or American made software/hardware is not safe. I fear for my future in the tech industry in another decade.

     

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  11.  
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    Anonymous Coward, Nov 26th, 2013 @ 7:21am

    Re:

    Because lawyers like stupid people, they're easier to sway with emotional arguments that might completely ignore the facts of the case.

    If you're something like an engineer, or an occupation that's viewed as requiring you to be a genius, your chances of being selected to serve on a jury are very low.

     

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  12.  
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    Anonymous Coward, Nov 26th, 2013 @ 7:21am

    Re:

    The system is built by lawyers, for lawyers. Stacking the system in such a way that would be beneficial to the public is hardly to their benefit.

     

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  13.  
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    Arthur Moore (profile), Nov 26th, 2013 @ 7:21am

    Re: Support Newegg

     

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    Anonymous Coward, Nov 26th, 2013 @ 7:28am

    Re:

    Actually it was invented by James Ellis and made practical by Clifford Cocks and Malcolm Williamson several years earlier. Unfortunately the secrecy policies of GCHQ prevented them from either exploiting it or receiving the credit.

    If Diffie managed to come up with the same idea without any knowledge whatsoever of Ellis, Cocks, and Williamson's work, well then Diffie still invented it. Independently.

     

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  15.  
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    Anonymous Coward, Nov 26th, 2013 @ 7:29am

    Maybe I'm just ignorant, or too much of a techy, but I don't see the advantage of trying a complicated, technical patent case in front of a bunch of average joes that haven't the first foggy clue what they're talking about. I would think you'd want a jury that understood the subject matter and could judge the merits based on that. Oh well.
    .

     

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  16.  
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    Anonymous Coward, Nov 26th, 2013 @ 7:32am

    Re:

    This is what really cheeses me about the patent system. One of the requirements for patent validity is that an invention be non-obvious to one skilled in the art. Yet at no point is anyone actually skilled in the art really involved in the decision making process. Sure, they can make various filings or be expert witnesses. But the final decision still always lies with an examiner, judge, or jury that more often than not has no idea what is sitting before them.

     

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  17.  
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    BentFranklin (profile), Nov 26th, 2013 @ 7:36am

    Re: Re: Support Newegg

    I will. Love the GNU the egg is riding. I was not aware that Newegg was GNU-loving.

     

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  18.  
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    That One Guy (profile), Nov 26th, 2013 @ 7:43am

    Re:

    Depends on which side you're on.

    If you're the one suing over a ridiculous patent, the more clueless the jury is the better.

    If you're defending against a ridiculous patent however, you ideally want a jury that actually has at least a vague idea of the terminology being used.

     

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  19.  
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    Lee, Nov 26th, 2013 @ 7:45am

    Re: Support Newegg

    Sir--I have just the thing for you...

    http://www.newegg.com/Product/Product.aspx?Item=N82E16800996219

    Litigation is like wine--the early result is often bitter, but if you let the wine mature, it often is something that can be savored.

    Thank you for your support.

    Lee

     

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  20.  
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    Not That Chris (profile), Nov 26th, 2013 @ 7:46am

    What's with East Texas

    I'm sure this has probably been addressed somewhere before, but I'm a lazy internet user and expect things spoon fed to me:

    What is the reason behind East Texas being so patent holder friendly? Has anyone looked into why juries there so often side with the patent holder, even when, as with this case, its blatantly obvious the patent is invalid? Are there a lot of patent holders who end up on the juries there, so they're pretty obviously going to side with the patent holder (which would seem like a conflict to me)? Is it just a "screw the big guy, save the little guy" mentality? Are we seeing the same handful of people on each jury that sway the rest of the jury (not necessarily saying they're a plant, but if the jury pool is small enough...)? There has to be something special about the people there or the water or something that makes this place such an obvious patent haven that everybody wants to file there, but what is it?

     

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  21.  
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    Anonymous Howard (profile), Nov 26th, 2013 @ 7:47am

    Re: Re: Re: Crazy, but expected

    This is exactly why I find jury trial the dumbest thing that happened to justice. 12 bozo deceived by a sneaky lawyer, experts ignored for good.

     

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  22.  
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    Anonymous Coward, Nov 26th, 2013 @ 7:52am

    Re:

    Patent lawyers dont even slightly agree on patentability. Why would it help having "experts" in the field as a jury? They would ruin the business completely for this kind of boon!

    The patent system is not for inventors, it is build by lawyers and for lawyers. When you can get thousands of patents on a single smartphone, it is a sign that the demand for invention hight is getting ignored by patent examiners or that they are just unable to see the tricks getting used to get trivialities patented.

     

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  23.  
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    That One Guy (profile), Nov 26th, 2013 @ 7:55am

    Re: Re: Re: Re: Crazy, but expected

    A system that weeds out anyone intelligent to actually understand what's going on and being discussed... yeah, the system does have it's problems, especially when dealing with technical or detailed problems like this.

     

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  24.  
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    Ha ha, Nov 26th, 2013 @ 7:56am

    Racketeering

    When the jury consists of local hicks who profit from this type of racket, how is that not racketeering?

    How much was the jury paid, I wonder...

     

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  25.  
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    The Real Michael, Nov 26th, 2013 @ 8:00am

    When you think about it, the patent system is essentially making it against the law to externalize your imagination. They're taking an intangible thing -- an idea -- and granting one person or entity sole ownership rights.

     

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  26.  
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    Anonymous Coward, Nov 26th, 2013 @ 8:01am

    Re:

    So, you are in favour of stacking the jury in favour of one party?

    Would you be OK if in a copyright infringement case* the jury was composed entirely of copyright executives? After all, they ARE experts in the field of copyright infringement.

    Likewise, in this case, why not stack the jury with patent experts? I believe Intellectual Ventures would be wiling to help. I hear the have a HUGE patent portfolio, so it stands to reason that they are experts in the area.

    But, seriously, your proposal is both moronic and self-serving. The jury is supposed to be impartial. Your proposal would taint the jury and stack it against one side or the other, thoroughly perverting the purpose of a jury.


    * no idea if they are supposed to have juries, but bear with me on this one

     

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  27.  
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    Trails (profile), Nov 26th, 2013 @ 8:02am

    Re: Re: Support Newegg

    y u no sell this in Canada?!?!

     

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  28.  
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    JWW (profile), Nov 26th, 2013 @ 8:04am

    Seriously

    This makes me want to cry.

    I hate patent trolls with the fire of a thousand suns. I do not classify them as human beings.

     

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  29.  
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    Anonymous Coward, Nov 26th, 2013 @ 8:15am

    i sure as hell hope Newegg are going to go to appeal over this! and those on the jury who voted against Newegg need to be checked to see what they gained out of it! no one in their right mind could have ruled this way, without some sort of serious encouragement! all this has done is keep the laws on trolling alive and kicking. one day, hopefully, someone on the jury will be affected personally by this ridiculousness!

     

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  30.  
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    Anon-Y-Mouse, Nov 26th, 2013 @ 8:16am

    Re:

    If your case has merits, you want a competent jury. If it doesn't, you want idiots easily swayed by emotions.

     

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  31.  
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    Anonymous Coward, Nov 26th, 2013 @ 8:23am

    This is the result of putting 12 morons in a room so retarded they couldn't think of an excuse to get out of jury duty.

     

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  32.  
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    sorrykb (profile), Nov 26th, 2013 @ 8:25am

    The Nuclear Option

    So far I've resisted extremism, but having exhausted all other options, it's clear now that only one choice remains. It'll be difficult, and dangerous, and not all of us will survive, but we've been left with no other course of action.

    So this is it: We have to change the jury pool -- We have to move to East Texas.

     

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  33.  
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    Anonymous Coward, Nov 26th, 2013 @ 8:31am

    Re:

    An AC wrote:
    This is the result of putting 12 morons in a room so retarded they couldn't think of an excuse to get out of jury duty.

    Or perhaps this is the result of otherwise reasonable and thoughtful people deciding they're too important for jury duty.

     

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  34.  
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    Anonymous Coward, Nov 26th, 2013 @ 8:36am

    Antintellecualism?

    I wonder if the reason why they lost in East Texas is due to anti-intellectualism. Their witnesses were too credible and thus judged as "elite" and therefore wrong.

     

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  35.  
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    Anonymous Coward, Nov 26th, 2013 @ 8:36am

    Re: The Nuclear Option

    Lets not be hasty here. Perhaps we should consider other less radical options like nuking East Texas first.

     

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  36.  
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    Anonymous Coward, Nov 26th, 2013 @ 8:36am

    Re: Re:

    Likewise, in this case, why not stack the jury with patent experts? I believe Intellectual Ventures would be wiling to help. I hear the have a HUGE patent portfolio, so it stands to reason that they are experts in the area.

    "Experts skilled in the art" refers to people with expertise in the domain of the invention, not experts in the domain of patent law. In this case, we needed a jury with people sufficiently experienced in cryptography so that they could see whether the "invention" was novel or not.

     

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  37.  
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    Anonymous Coward, Nov 26th, 2013 @ 8:47am

    Re: Re:

    Same with copyright cases... you would not stack the jury with copyright gatekeepers but with actual creators and artists who could determine if there is infringement or something that is furthering the art. It is surprising how many real creators have a bad taste for Disney style copyright extensions and Public Domain Pirating that is being done by the big lobby groups that you want to put on the jury. what a moronic suggestion.

     

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  38.  
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    Anonymous Coward, Nov 26th, 2013 @ 8:48am

    Re: Re:

    "So, you are in favour of stacking the jury in favour of one party?"

    Absolutely, I am in favor of stacking the odds in favor of the party that should rightly win, in favor of stacking the odds in favor of the truth and in what promotes the progress. If some trolls want to file a bogus stupid patent that experts in the field would consider bogus, obvious, and not novel then the odds should be stacked against their favor in favor of the party being trolled. But our legal system is backwards stacking the odds in favor of whoever provides politicians with campaign contributions and revolving door favors and does whatever else they can to get a desired outcome through manipulating the system politically instead of through the merit of their efforts. Look, for instance, at copy'right' lengths and public domain theft (ie: retroactive extensions). Govt. established taxi cab monopolies. The corrupt FDA. Well, the list goes on and on and on.

     

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  39.  
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    ltlw0lf (profile), Nov 26th, 2013 @ 8:54am

    Re: Re:

    The system is built by lawyers, for lawyers.

    The sad thing is they don't particularly like lawyers on juries either. As an engineer, I am usually the first person off the jury. even though I usually can render a fair and impartial judgment. But in at least two jury selections I sat near a lawyer who was removed before I was. I told one of the lawyers that I was surprised he was removed before I was, and he told me he was always the first off the jury.

    So I think it is more "The system is built by lawyers, for stupid people."

     

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  40.  
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    Aaron Pacheco, Nov 26th, 2013 @ 8:57am

    Re: Re: Support Newegg

    Lee... as in Cheng?

    Either way, T-shirt bought.

    I also snuck a Samsung 840 EVO into the cart. I was having trouble justifying buying a new SSD, but it's obviously for the greater good.

    Thank you for fighting these trolls. Or if you are just some other Lee, thanks for giving me an excuse to buy an SSD.

     

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    Anonymous Coward, Nov 26th, 2013 @ 9:02am

    I hope the 5th circuit judges are rested up. This should be interesting.

     

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  42.  
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    Anonymous Coward, Nov 26th, 2013 @ 9:02am

    Re: What's with East Texas

    I would bet that there are elements of both screw the big guy save the little guy and elements of help the "local" company. Too bad the jury doesn't seem to realize that the "local" company is just an empty office used to get jurisdiction in the eastern district of Texas rather than where the troll or the victim are actually located.

     

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  43.  
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    Anonymous Coward, Nov 26th, 2013 @ 9:04am

    Re: Re: The Nuclear Option

    Considering the size of the court, it shouldn't take more than a 1 or 2KT tactical weapon.

     

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    ltlw0lf (profile), Nov 26th, 2013 @ 9:06am

    Re: Re: The Nuclear Option

    Lets not be hasty here. Perhaps we should consider other less radical options like nuking East Texas first.

    You, sir, owe me a new keyboard.

     

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  45.  
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    Anonymous Coward, Nov 26th, 2013 @ 9:19am

    After issuing this ruling these total morons in east texas went back home and proceeded to use DH handshakes every two minutes on their computers.

    What total idiots. Jury of your inferiors in East Texas. My god.

     

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    BentFranklin (profile), Nov 26th, 2013 @ 9:23am

    Re: Re: What's with East Texas

    It's obviously because the whole town is bought.

     

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    Sunhawk (profile), Nov 26th, 2013 @ 9:29am

    To be honest, this means that as soon as someone comes out with a genuine invention or innovation X and patents it, someone else can swoop along and submit a whole bunch of patents that are simply "X using ___".

    Effectively forcing the actual inventor to either pony up some money or not be able to use *their invention* in any useful circumstance except on its own.

    Oh, how I loathe patents that are "do this existing thing, but online" or, more generically, "combine these two existing things".

    It's like a PhD dissertation - sure, you can (and probably will) use and discuss the work of others, but there's got to be some original research in there.

     

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  48.  
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    Anonymous Coward, Nov 26th, 2013 @ 9:30am

    Re: Re: Re:

    "Absolutely, I am in favor of stacking the odds in favor of the party that should rightly win, in favor of stacking the odds in favor of the truth and in what promotes the progress."

    * facepalm *

    What you are proposing is a system where you (or a chosen elite) gets to decide from the start who is right, and then you have a sham trial just so you can put a tick in a checkbox that says "had a 'fair' trial".

    That's not how things work in a Democracy. At least, not in the kind of Democracy where I would like to live.

    You remind me of those people that suggest that I run untrusted applications (games, steam, etc) as root when they don't work. Because, you know, throwing away rules and restrictions is clearly the way to go when something doesn't work. What could possibly go wrong (you know, other than my system getting pwned because I was dumb enough to remove the few mechanisms that made it safe).

     

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  49.  
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    Namel3ss (profile), Nov 26th, 2013 @ 9:48am

    Re: Re: Support Newegg

    If you're really Newegg's Lee Cheng, then I salute you sir! I've bought $1000's worth of stuff from NE over the years, and it's good to see my money going to a company that cares.

    I need to see about getting a SSD for an older laptop that uses PATA drives, and I'll make sure I buy it from NE.

    Again, hats off!

     

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  50.  
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    Mike Masnick (profile), Nov 26th, 2013 @ 9:51am

    Re:

    We actually discussed *exactly* that in our last post and I totally disagree. James Ellis created a similar concept, but it was NOT what Diffie-Hellman did. Cocks came up with a method similar to Rivest's and Williamson more or less came up with Diffie-Hellman, but actually figured it out a few months *after* Diffie spoke about it.

    Either way, Diffie-Hellman most certainly invented it totally independently, and between Diffie and Rivest, they were the ones who actually made it useful.

    GCHQ had no idea what they had on their hands and ignored it.

     

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  51.  
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    Mike Masnick (profile), Nov 26th, 2013 @ 9:57am

    Re:

    I hope the 5th circuit judges are rested up. This should be interesting.


    Patent appeals go to CAFC, not the circuit appeals court in that circuit.

     

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  52.  
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    Anonymous Cory, Nov 26th, 2013 @ 9:57am

    Re: Crazy, but expected

    I live in East Texas; born and raised, and I am (unfortunately) not surprised. I am sad to say that there are some truly terrible people around here, but these days you can find terrible people anywhere, so please don't judge us all based on these idiots.

     

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  53.  
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    Henry Fnord (profile), Nov 26th, 2013 @ 10:28am

    Re:

    Actually that was covered in this ars technica story. Diffie was asked about this on cross and disagrees: http://arstechnica.com/tech-policy/2013/11/newegg-trial-crypto-legend-diffie-takes-the-stand-to-knoc k-out-patent/

     

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  54.  
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    relghuar, Nov 26th, 2013 @ 10:58am

    buy an anti-patent troll t-shirt from Newegg

    Hmm, would they perhaps have any anti-stupid-jury ones?

     

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  55.  
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    aldestrawk (profile), Nov 26th, 2013 @ 11:01am

    Re: Re: Re:

    A friend of mine is a DA and once told me that prosecutors do not like to have engineers, software engineers in particular, because they require too much proof. During the recent jury selection I was involved in, I told this to a Google engineer who was also in the jury pool. He was desperate not to be chosen because the estimated trial length was 2 months. What was odd was that the defense attorney was the one who dismissed him on a peremptory challenge.

    I think the main reason that lawyers are dismissed early is because attorneys on both sides and the judge do not want someone on the jury who can act as an expert on law and sway other jurors contrary to only the presented evidence or to the judges precise instructions.

    A potential juror who has expertise in a field applicable to the trial will probably be dismissed because they are less malleable to presented evidence. Worse, they may influence other jurors who may look to them as an unofficial expert witness. I am a software engineer but it was my knowledge and my other degree in psychobiology which led to my dismissal as a juror in that recent 1st degree murder trial. A few years back, I had watched videos comprising many hours of lectures by one of the scheduled expert witnesses, Robert Sapolski. The defendant was 17 at the time he stabbed someone in front of many witnesses. (after I was dismissed I read the appeals court decision which overturned his previous conviction based on the fact that the judge did not allow the jury to properly consider the defense testimony from a psychologist.) I pretty much knew what Sapolski's testimony would be and I knew his personal opinions based on what he said in this interview in the NYT about being an expert witness and how the legal system always lags behind the advances of science and technology:
    http://www.nytimes.com/2007/03/11/magazine/11Neurolaw.t.html?pagewanted=all&_r=0

    The most important issue to me involved studies that showed that the development of the human brain's pre-frontal cortex is not complete until around the age of 25. The result is that the amygdala tends to dominate and young people end up being more impulsive without thinking through and weighing consequences. No big surprise here except for the fact that brain maturation completes at a later stage than most people think and the cause is organic. This was the main rationale behind the Roper V. Simmons Supreme Court decision in 2005 that eliminated the death penalty for those who committed crimes while 16 or 17.
    I talked about this in a very vague way so as not to sway other jurors before any expert testimony. I even mentioned Roper V. Simmons while explaining how I could not disregard my own knowledge. A juror isn't supposed to consider potential penalties but my knowledge, outside of expert witness testimony, would have influenced my decision to convict for either 2nd degree murder or manslaughter. This isn't absolute as Sapolski himself has noted that criminal behavior can be the result of a "broken machine", with no chance of resolving itself.

    I was not terribly interested in serving on a jury for 2 months but I was also being very honest. If I had really wanted to serve on the jury I wouldn't have mentioned any of this. The prosecutor stopped calling on me after that including questions made to the entire group of prospective jurors. I was absolutely the first one dismissed out of that group and left the courtroom, relieved, but also deeply disillusioned about the jury system. I am still disillusioned and the decision for this patent case only reinforces that.

     

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  56.  
    identicon
    Edward Teach, Nov 26th, 2013 @ 11:15am

    Independent Invention

    I, for one, am surprised at how often independent invention happens, at least in computer science stuff.

    Also, indepdent invention puts paid to the "sole owner" concept in "intellectual property". If someone else can (and often does) independently invent something, how can we award sole ownership to any single entity?

    If we depart from granting temporary state-enforced monopolies on ideas (copyrights and patents) in order to increae the public domain of ideas, then independent invention has to be taken into account. If we give ownership to someone because of the Sacred Act of Invention, we need to give at least part ownership to everyone else we can identify that has also invented (or re-invented) some idea. In fact, I propose that we proportion ownership to the independent inventors based on how much of a Protean Act of Invention they had. That is, someone inventing something documentably ex nihilo should get a larger proportion than an expert in the field, who is merely incrementally building on the ideas floating around in the field at the time.

    It's only fair.

     

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  57.  
    identicon
    Edward Teach, Nov 26th, 2013 @ 11:24am

    Re: Sole ownership!

    Precisely! That's what all of this patent and copyright changes are all about. I'm just not sure if it's emergent behavior, or there's some kind of direction behind it.

    I mean, I see my kids talk about how some other group at school "stole their idea" for a science project or a play or something, so maybe this idea of "idea ownership" is a primitive in US society.

    On the other hand, how could something that's basically done at a subconscious level make it all the way to an international treaty negotiation, like ACTA or TPP?

    Anybody got any more clues for "emergent vs directed"? Because the concept has such dire consequences, I don't even like to contemplate them.

     

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  58.  
    identicon
    Edward Teach, Nov 26th, 2013 @ 11:28am

    Re: Re:

    So, you've posted articles in the recent past about how CAFC judges are essentially in favor of "intellectual property", and that how at least one of them wants more patents on everything.

    What's your view on how a CAFC appeal of this will turn out? Newegg got at least several independent inventors and previous art implementors to show up and testify.

    Can the CAFC blow that testimony off? On what grounds? Or will they just intellectually review the facts and the law and slap the East Texas court around a little?

     

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  59.  
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    JMT (profile), Nov 26th, 2013 @ 11:58am

    Re: Independent Invention

    "I, for one, am surprised at how often independent invention happens..."

    It's not that surprising when you understand that it's often not the idea that's new but the ability to implement it. As new technologies enables things that were previously impractical or simply couldn't be done, ideas that have been sitting in the back of people's heads maybe for years can be implemented. If the enabling technology becomes available to many people at the same time, chances are that multiple people will give it a go.

     

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  60.  
    identicon
    Anonymous Coward, Nov 26th, 2013 @ 12:16pm

    Re: Re: Independent Invention

    Pretty well describes most of the smartphone-related patents out there right now.

     

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  61.  
    identicon
    Anonymous Coward, Nov 26th, 2013 @ 12:34pm

    THEY ARE VIOLATING MY PATENT ON T-SHIRTS!

     

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  62.  
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    JMT (profile), Nov 26th, 2013 @ 1:40pm

    Re: Re: What's with East Texas

    "I would bet that there are elements of both screw the big guy save the little guy and elements of help the "local" company."

    You've flipped cause and effect. The juries aren't sympathetic because the company is local (but not really as you say), the company has set up a local office because they know the juries are historically sympathetic to patent holders.

    It seems to me there needs to be a proper investigation into why east Texas patent cases are so must more likely to go in favour of the patent holder that it's worth setting up shell offices locally. I don't know what the cause is but the whole thing seems very unjust, as this case demonstrates.

     

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  63.  
    icon
    JMT (profile), Nov 26th, 2013 @ 1:59pm

    Re: Re: The Nuclear Option

    Make sure said nuking takes place from orbit. I'm told it's the only way to be sure.

     

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  64.  
    identicon
    Anononmous Hero, Nov 26th, 2013 @ 2:04pm

    Re: Crazy, but expected

    JUDGE

     

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  65.  
    identicon
    Rekrul, Nov 26th, 2013 @ 3:28pm

    If the patent trolls are allowed to choose the jurisdiction in which their lawsuit is filed, shouldn't the defendant be allowed to choose what jurisdiction hears the appeal?

     

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  66.  
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    BernardoVerda (profile), Nov 26th, 2013 @ 5:32pm

    Re: Re: What's with East Texas

    Actually, the "local companies" would be their friends', relatives' and community members' hotels, restaurants, car-rental agencies, office-space realtors, etc...

     

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  67.  
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    mortal (profile), Nov 26th, 2013 @ 6:13pm

    Why Was This a Jury Trial?

    Since the defendant gets to choose whether it is a trial before a jury or a judge, why didn't NewEgg choose a trial before a judge? Or do patent infringement trials have to go to juries?

     

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  68.  
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    ltlw0lf (profile), Nov 26th, 2013 @ 7:39pm

    Re: Re: Re: Re:

    I think the main reason that lawyers are dismissed early is because attorneys on both sides and the judge do not want someone on the jury who can act as an expert on law and sway other jurors contrary to only the presented evidence or to the judges precise instructions.

    I think you're right, but it doesn't make the sting any better when I get dismissed as an engineer/computer scientist. I've been called almost every year to sit through the process, and I'd really like to participate in the entire process of being a juror. But no matter how many times I sit through the process of jury selection (which is probably close to 30 times now,) I always get dismissed (except the one time I got in as an alternate, and then excused and the other time I got to be a juror, and the defense took a plea and the jury was dismissed.)

    What bothers me most is for a system set up to find fair and impartial jurors, they seem to get rid of an awful lot of people based merely on their occupation. In our state, it is a single day/single trial system for jury pools, but if you don't serve on a jury, you remain eligible to be called in again while if you sit on a jury, you are ineligible for three years. It seems like I get called in every year (and I've been called in twice in one year on several occasions.) If you've been called in five times and dismissed five times, you should no longer be eligible for jury duty. Once they kill off their pool of those who want to serve, but can't because of their occupation, they might have to start thinking reasonably.

    Until that happens, they are just jerking us engineers around.

     

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  69.  
    identicon
    chumley, Nov 26th, 2013 @ 7:53pm

    lacking

    I do not know the merits of this case one way or the other. My comment is on the coverage. The reporters don't know the law or they are too lazy to report the actual issues other than the generic 'patent covers encryption'. What exact claim terms were in dispute for infringement? What exact claim terms were in dispute for invalidity and what prior art features were involved in relation with those disputed terms? These are all factual questions on which the verdict hinges.
    Just because an expert has a name doesn't mean he is 100 percent on the mark in his testimony. The attorney's are the ones that actually write the expert testimony. The expert argues whether or not that testimony will get by the other expert. The experts DO NOT stake their professional reputations on everything in their testimony because the expert testimony never sees the light of day. Again, patent litigation reporters are not capable of understanding that level of technical detail.

    More substance is needed to form an adequate opinion about the merits of the verdict. BTW, I do not have a dog in this hunt one way or the other. I have been through this meat grinder so I know about the process.

     

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  70.  
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    BernardoVerda (profile), Nov 27th, 2013 @ 12:24am

    Re: lacking

    This is the internet, not a newspaper, so it's not necessary to write an entire expository essay every time one returns to providing coverage of an on-going story.

    In other words:
    The article provided some pretty good links that would have been very useful in answering those very questions.

     

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  71.  
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    Richard (profile), Nov 27th, 2013 @ 2:05am

    Re: Re:

    If Diffie managed to come up with the same idea without any knowledge whatsoever of Ellis, Cocks, and Williamson's work, well then Diffie still invented it. Independently.

    Not trying to take anything away from Diffie - just trying to ensure that Ellis, Cocks and Williamson get the credit due to them. In fact Ellis agreed with that too since he acknowledged that Diffie et al had made much more of it than they were able to. Too bad that GCHQ politics stopped them from exploiting it.

     

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  72.  
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    Richard (profile), Nov 27th, 2013 @ 2:18am

    Re: Re:

    Williamson more or less came up with Diffie-Hellman, but actually figured it out a few months *after* Diffie spoke about it.

    I 'd like to see the evidence that Diffie had it first. The timeline that I'm aware of has Williamson predating Diffie by a few months at least. Certainly Williamson invented it independently of Diffie - although his work depended on what Ellis and Cocks had already done.

    GCHQ had no idea what they had on their hands and ignored it

    No I disagree with that. I think GCHQ knew exactly what they had on their hands and suppressed it.

    However the main point I think we all agree on here is that independent invention is more or less universal. No one is really clever enough to be the only one who has an idea - and most ideas lie dormant for years or even centuries - waiting for an enabling technology as another commenter said.

    One only has to think about the question "why didn't the Romans have bicycles".

    Successful implementation is another matter - but often success is the consequence of geo-economic factors (which often favour the US) and good fortune rather than merit or hard work.

     

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  73.  
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    Richard (profile), Nov 27th, 2013 @ 2:34am

    Re: Re: Re:

    My information gives Williamson's internal note as dated January 1974 and Diffie's paper as published in 1976.

    Where is the evidence that Diffie had the solution before January 1974?

     

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  74.  
    identicon
    The Real Michael, Nov 27th, 2013 @ 6:32am

    Re: Re: Sole ownership!

    Yeah, I hear ya. What began as seemingly innoculous series of limited, beneficial protections has morphed into a behemoth with a virtual monopoly over the human imagination. Like a virus, it continues to perpetuate itself in its own image, immune to common-sense proposals, infesting every nook and cranny of our economy and private sectors.

    What deranged laws do we have when you can be sued for merely using an idea? Thought crimes indeed.

     

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  75.  
    identicon
    Bob Robertson, Nov 27th, 2013 @ 8:52am

    Re: Patents

    What we're seeing is the crushing of innovation always caused by Patents (and Copyright).

    The difference here is that it's a field where most of us have some experience, and thus perspective, unlike mechanical jelly mashers or automatic udder cleaners.

    Just as Copyright has become a mockery of itself with its infinite duration and automatic application to all new works, the problems with Patents are now visible for all to see.

    Abolish Patents entirely.

    I cannot recommend Boldrin and Levin's "Against Intellectual Monopoly" highly enough.

     

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  76.  
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    jsf (profile), Nov 27th, 2013 @ 9:09am

    Re: Re:

    The big difference is that the guys at GCHQ likely had the general idea before Diffie, but they didn't do much with it. Diffie went the few steps further to make a useable method/process, instead of an interesting idea.

     

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  77.  
    identicon
    Anonymous Coward, Nov 27th, 2013 @ 9:56am

    America, the only country in the world which insists that a bunch of yokels and slack-jawed hillbillies, most of which likely have no formal education, can make more informed decisions about public-key cryptography than the father of public-key cryptography himself.

     

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  78.  
    identicon
    TA, Nov 27th, 2013 @ 1:33pm

    Re: What's with East Texas

    East Texas make a lot of money by being patent friendly. Shell corporations do a lot of retail leasing and law cases make the local economy a bunch of money.

     

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  79.  
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    res (profile), Nov 27th, 2013 @ 7:57pm

    Re: Re: Crazy, but expected

    Ah but Juries typically know nothing and when confronted with something so complicated as encryption technology or other complicated legal issues. They will decide the case based upon what the lawyers were wearing and possible how their lunch was. Read The Jury by Stephen J. Adler for more insight.

     

    reply to this | link to this | view in thread ]

  80.  
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    BentFranklin (profile), Nov 28th, 2013 @ 11:26am

    Re: Why Was This a Jury Trial?

    Perhaps the jury was Newegg's idea, to avoid the more likely and direct threat of corrupt judges.

     

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  81.  
    identicon
    Richard Falk, Nov 29th, 2013 @ 1:11am

    The Jury is Not Wholly at Fault

    See the following post for reasons why the jury likely did not find the patent to be invalid. As for non-infringement, the argument from the defense that RC4 was disclosed prior to the patent was weak (it was announced for sale at a conference before the key patent prior art date but was actually sold after that date). However, there were other non-infringement arguments that could have been presented that were much stronger and could have been corroborated by even the plaintiff's experts (namely, the distinction between stream ciphers that existed with pseudo-random number generators long before RC4 vs. block ciphers where the patent introduced the idea of both sides changing the key using a common pseudo-random number generator triggered by a predetermined amount of data transmitted/received).

    http://arstechnica.com/tech-policy/2013/11/jury-newegg-infringes-spangenberg-p atent-must-pay-2-3-million/?comments=1&post=25764027

     

    reply to this | link to this | view in thread ]


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