Overeager Patent Troll Can't Tell Github From Its Web Host

from the slow-down-there-fellas dept

Last year, we wrote about the somewhat random confluence of events that brought together two ex-file sharing industry execs (one associated with Kazaa and the other with Morpheus) and made them extreme patent trolls, suing a ton of internet companies under the ridiculous brand “PersonalWeb.” Well, PersonalWeb is adding to its ridiculous legacy by suing Rackspace as well, though as the complaint makes clear (pdf), PersonalWeb seems mighty confused about what it’s suing over.

That’s because it seems to be claiming that Rackspace is responsible for… GitHub. Now, it’s true that Rackspace, one of the most popular hosting companies out there, does provide hosting services to GitHub, but that doesn’t mean that Rackspace is Github — though you couldn’t tell that from the filing. Now, it isn’t just filing about GitHub, but also Rackspace Cloud Servers, which obviously are a Rackspace product. The patents being sued over are basically the same batch as we wrote about last year, but with one addition (added at the top — it wasn’t in last year’s post because… it was only granted this year):

  • 8,099,420: Accessing data in a data processing system
  • 8,001,096: Computer file system using content‐dependent file identifiers
  • 7,949,662: De‐duplication of data in a data processing system
  • 7,945,544: Similarity‐based access control of data in a data processing system
  • 7,945,539: Distributing and accessing data in a data processing system
  • 7,802,310: Controlling access to data in a data processing system
  • 6,928,442: Enforcement and policing of licensed content using content‐based identifiers
  • 6,415,280: Identifying and requesting data in network using identifiers which are based on contents of data
  • 5,978,791: Data processing system using substantially unique identifiers to identify data items, whereby identical data items have the same identifiers

If those seem incredibly vague and broad to you, you’re not alone. M-CAM, a company which specializes in analyzing the quality of patents, found PersonalWeb’s patents so egregious that it proposed an award named after the examiner on a bunch of them, Khanh B. Pham:

After reviewing PersonalWeb’s patents, we propose that the USPTO indeed mold a “Pham” award to best commemorate the ultimate, the outrageous, the most horrifically unacceptable patent examination performance of the current patent system.

To be fair, it seems like Pham has plenty of company.

There is also the oddity of Level 3 being a plaintiff on the case, though it sounds like it’s just along for the ride as a silent partner:

Level 3 has joined in this Complaint pursuant to its contractual obligations under the Agreement, at the request of PersonalWeb.

Basically, it sounds like part of the licensing deal in which PersonalWeb ended up with some Level 3 patents, and Level 3 gets a cut of some of the profits.

For its part, Rackspace has rightfully spoken out about the ridiculousness of this. What’s good to see is that they don’t just focus on the insanity of this particular case (though that is discussed), but the patent system as a whole:

In fact, GitHub is a perfect example of a company that is built to foster and enhance innovation. The GitHub repository service for software development projects has achieved legendary status among open source developers all over the world. GitHub has over 2.1 million users hosting over 3.7 million repositories. They are a paragon of innovation. Yet PersonalWeb has the audacity to file a lawsuit which alleges that “Rackspace Cloud Servers and GitHub Code Hosting Service” infringe some obscure patent from 1999 that has nothing to do with Rackspace and GitHub. Who is truly innovating here, PersonalWeb or Rackspace and GitHub? PersonalWeb is not the issue of course. They are just another patent troll attempting to take advantage of bad law. It is their nature. They look for opportunity, and patent litigation can be very profitable. The real problem is the law. According to a recent study by James Bessen and Michael Meurer of the Boston University School of Law, titled The Direct Costs from NPE Disputes,” patent trolls cost the American economy $29 billion in 2011. The authors found that patent troll litigation affected 5,842 defendants in 2011.

It’s good to see more companies speaking out and recognizing that this is a widespread problem that needs to be addressed, rather than a narrowly focused one on the margins.

Filed Under: , ,
Companies: github, personalweb, rackspace

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Comments on “Overeager Patent Troll Can't Tell Github From Its Web Host”

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2ndStep (profile) says:

Speaking of Pham, something I have been noticing a lot with patents is that it seems like the application work is good for visas or something:

Primary Examiner: Chong H. Kim

Primary Examiner: Toan Ton
Secondary Examiner: Tai Duong

Primary Examiner: Hung T Vy

Primary Examiner: Thai Q. Tran

Primary Examiner: Bret Chen

Primary Examiner: Douglas Q Tran

Primary Examiner: Vu A Le

Secondary Examiner: Ifedayo Iluyomade

Primary Examiner: Stephen Chin
Secondary Examiner: Sam K. Ahn

Anyone know anything about examiner work?

Tom Gallagher (user link) says:

Patents and NPEs

One of the problems patent haters have is that they don’t know how to read and interpret a patent. Many just read the title. Some read the abstract. Neither of these defines what the patent covers. The smarter patent critics know that they need to read the claims, but they don’t understand the relationship between dependent and independent claims

As for NPEs, under the current definition two of the greatest inventors of the 20th century would be considered NPEs and according to NPE haters, they would be denied any profit from their inventions. The inventors are Philo T Farnsworth (the inventor of electronic television) and Nikola Tesla (the inventor of radio, alternating current, and a host of other goodies). Neither of these inventors had any business sense and both died alone and impoverished. If there had been any trolls around back then, they might have been financially rewarded for their incredible contributions. However the anti-Troll movement (started by big business and gullibly swallowed by idiots) would say that these inventors are worth nothing unless they can form a corporation and get into manufacturing their inventions (skills that have nothing to do with inventing and everything to do with big business). So the anti-troll people are really pro-big-business people and anti-inventor people.

Berenerd (profile) says:

Re: Patents and NPEs

…And yet both continued to invent despite not becoming rich off it…per your own words…

If the trolls were around, they still would be poor because the trolls would have bought the patents for next to nothing and gotten rich themselves or killed all innovation by making it too expensive to innovate in those areas.

I don’t see what point you were trying to make here. Thank you for trolling…good bye.

nospacesorspecialcharacters (profile) says:

Re: Patents and NPEs

Umm.. I’m pretty certain that – in Telsa’s case at least – the reason he died impoverished was due to a patent troll – namely Thomas Edison!

Innovators like Telsa are often the ones who make sacrifices due to their pursuit of creativity, science and improving on things – money is not a motivator. Often they do make great sacrifices in advancing humanity.

Many great projects made no money for their original inventors – most of the great works of architecture and construction of the 20th Century caused their original conceivers to go bankrupt… only to concede to business men looking to make a quick buck of an ‘almost completed’ project that needed little investment to complete.

Mike42 (profile) says:

Re: Patents and NPEs

The problem with patent lovers is they don’t know how to understand technology or invent anything. If they did, they would understand the tremendous amount of “borrowing” involved in any invention. Instead, they see a partially packaged product and think, “oh, this is totally unrealated to anything I have seen before; therefore it is wholly original.” If you want to know an innovator’s ideas on patents, why don’t you Google Steve Wozniak’s opinion on the Apple vs Samsung trial?

The really interesting thing is that, regardless of your, “Big Business” line (on which I call Bullshit), the people who really rake in the cash in any patent dispute are the lawyers… wait, what is your occupation?

Willton says:

Enough with M-Cam and Their So-Called Analysis

As I said in the previous Techdirt article regarding this story,

Analysis? What analysis? Where is it? I certainly don’t see any analysis of the patents in question on M-CAM’s website. All I see is some juvenile commentary about continuation practice and the examiner of the patents in question. No discussion of the claims involved, and no discussion of what is disclosed in their specifications. If you call that analysis, you must be charging too much for yours.

Seriously, Mike, your continued citation of M-Cam and their so-called “special[ty] in analyzing the quality of patents” destroys your credibility. M-Cam’s “analysis” is a bunch of editorialized amateur horse sh**. I’ve seen better analysis from first year law students. To call what M-Cam does “analysis” is inexcusable.

Willton says:

Re: Re: Enough with M-Cam and Their So-Called Analysis

Then can you please rebut the article? Where does it go wrong? Why are the criticisms it presents incorrect?

Just saying “it sucks” doesn’t really tell us anything.

First, M-Cam’s paper contains a number of misstatements of the law, indicating that they lack the “expertise” to analyze any patents. Second, M-Cam’s paper lacks depth and detail; all it has is a lot of high-level generalities about what is claimed, and it makes editorialized judgments thereon. In short, M-Cam’s paper is juvenile and gives the appearance that they have no idea what they are talking about.

Allow me to quote M-Cam’s paper to show why:

“For those who don’t know, continuations can essentially be a USPTO time machine, because they allow a patent holder to ?officially? invent things in the past. This is particularly helpful in patent infringement litigation because it allows the holder to assert past damages for later issued claims.”

Wrong. First, a patent can only claim what is disclosed in the specification, and continuation practice does not allow a patentee to change the content of the specification for any later-filed applications. (Note: a “continuation-in-part” does allow one to add subject matter to the specification, but any claims directed to such added subject matter do not get the benefit of an earlier filing date.)

Second, a patentee cannot assert past damages that occur earlier than the date of an infringed patent was issued. Saying that one can assert “past damages for later issued claims” is, at best, a complete misstatement of the law, and at worst, utterly dishonest.

“While we could look at any of these patents in detail, let?s take a look at one of the newest, the ?662 patent, since we can all hope this was meant for the USPTO. Titled ?De‐duplication of data in a data processing system,? one look at the USPTO website tells us this patent ? in its attempts to ?de‐duplicate? data ? was rejected four times, including an impressive two final rejections. If the Grinch were stealing trophies on his Christmas runs, this patent would be luring him with the equivalent of a Heisman ?a ?Pham? perhaps (after the ?662 examiner, Khanh B. Pham) ? because receiving more than one final rejection and still being issued is a most outstanding feat.”

Where is this detail that M-Cam speaks of? We see that the ‘662 Patent received a lot of rejections, but we have no idea what is in those rejections. Are they good rejections or bad ones? Did the examiner cite relevant prior art in each one? How far did the applicant have to narrow their claims to get over those rejections? Did the applicant’s final version of its claims get narrow enough to really get around the prior art?

M-Cam does not explain. All it does is wave its hands and say “Look at those rejections!” and suddenly we’re supposed to believe that the ‘662 Patent was improperly issued. Why was it improperly issued, M-Cam? Tell us why!

“The U.S. 7,945,539 patent ? issued just 5 sequentially numbered patents before the US 7,945,544 mind you (another impressive feat for Mr. Pham, since he was the examiner of both of these patents as well) ? has an even more awe‐inspiring amount of precedent innovation. It’s not often that a patent reaches 10,000 counts of precedent innovation on its own. 20 of these 10,593 patents ? or less than 1% of the total ? can be found in Appendix A, and a graphical display of the entities holding these patents can be found to the right. Note that any of these patents could be used to call into question the validity of the claims in the ‘539, and most likely some claims from the other patents in suit as well.”

Really? How can “any of these patents … be used to call into question the validity of the claims in the ‘539” Patent? Show us! Give us a discussion, perhaps even with a claim chart, showing where each element of, say, Claim 1 of the ‘539 Patent is disclosed in “any of these patents”. That’s what a real patent analyst would do, right?

So why don’t we see one inkling of this this from M-Cam? Where’s the analysis? Where is the element-by-element deconstruction of the claims of the ‘539 Patent showing that the patent is invalid? Nowhere: you cannot find such detailed analysis in M-Cam’s paper. M-Cam just says “Look at all this prior art! It’s invalid!” and apparently we’re supposed take it on faith that M-Cam is right and knows what it’s talking about.

I can understand if that kind of detailed discussion is too work intensive for a free publication, but that’s what a real patent analysis looks like. And if M-Cam can’t produce that type of work on its own dime, either because it lacks the resources or is too lazy, then it should not pass off this bullshit as “analysis.” It’s an insult to those of us who actually do perform patent analysis.

John Fenderson (profile) says:

Re: Re: Re: Enough with M-Cam and Their So-Called Analysis

Fair enough, but does any of this mean their analysis is incorrect, or is it simply vague or oversimplified?

I ask because the type of detailed analysis you are wishing for them to have produced would be less useful to us here than the simplified form they have produced. We aren’t all patent attorneys.

Jeffrey Nonken (profile) says:

While they’re at it, they should sue the electric company for providing power to the hosting service (and GitHub’s offices), the government for providing transportation infrastructure for their various employees to travel on, the auto manufacturers and public transit authorities for providing transportation, phone companies for providing communications, water, sewage…. Let’s not forget various state and federal governments for providing citizenship and support, and hospitals, doctors, nurses, volunteers, midwives, doulas, parents, teachers, schools, and anybody else who provided existence and nurturing to the people who violated these patents… because they’re all responsible.

Oh, I’m sorry. Was that bitter and sarcastic? I think my point is valid, though. If you allow secondary liability, you can follow the chain forever and make everybody indirectly responsible.

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