Judge Alsup Slams Patent Troll For Basically Everything

from the don't-try-to-pull-a-fast-one-on-judge-alsup dept

Lots of folks probably remember Judge William Alsup from the Google/Oracle mess, in which he seemed to be one of the few reasonable people in the room, who actually took the time to understand the deeper technical issues. Alsup has quite a reputation for a number of other cases as well, and one thing that seems fairly clear is that you don’t want to try to bullshit this judge who knows how to code on technical issues. You might recall in the Uber/Waymo fight, he also ordered both companies to teach him how LiDAR works and he made it clear that he wasn’t messing around:

Please keep in mind that the judge is already familiar with basic light and optics principles involving lens, such as focal lengths, the non-linear nature of focal points as a function of distance of an object from the lens, where objects get focused to on a screen behind the lens, and the use of a lens to project as well as to focus. So, most useful would be literature on adapting LiDAR to self-driving vehicles, including various strategies for positioning light-emitting diodes behind the lens for best overall effect, as well as use of a single lens to project outgoing light as well as to focus incoming reflections (other than, of course, the patents in suit). The judge wishes to learn the prior art and public domain art bearing on the patents in suit and trade secrets in suit.

That brings us to a more recent case, involving notorious patent troll Uniloc — a company we’ve written about a bunch in the past, mainly for its buffoon like attempts at patent trolling. This includes suing over the game “Mindcraft” (the trolls were in such a rush to sue, they didn’t notice it was actually “Minecraft”), and a weak attempt to patent basic math. All the way back in 2011, we wrote about Uniloc getting smacked down by the Federal Circuit for pushing a ridiculous way of calculating patent damages.

It appears that in the intervening years, Uniloc hasn’t given up any of this. The company keeps buying up more patents and suing lots of companies — including Apple, which it has sued multiple times. One of those lawsuits was filed back in 2017. In response to this lawsuit, Apple argued that Uniloc didn’t actually hold the right to sue over the patent. Ridiculously, Uniloc demanded most of the details be blacked out, arguing that it was “confidential.”

It sounds like a situation not unlike the Righthaven situation from a few years ago, where the “real” holder of the patent (or, in Righthaven’s case, the copyright) retained real ownership, but created a sham transfer whereby the suing company (in this case Uniloc) really only had the right to sue, and was disconnected from the actual right to license the patent. But, it’s difficult to tell for sure, given all the black ink.

EFF got involved to protest this, and back in January Judge Alsup agreed that Uniloc couldn’t hide this info. Since then, Uniloc has been trying to convince Judge Alsup to change his mind, with a ton of filings (and a few hearings) back and forth on this issue. Earlier this week Judge Alsup more or less rejected every argument Uniloc made, even going beyond the question of redacting info.

In short, Judge Alsup says he got it right the first time, and the public’s right to know outweighs any concern Uniloc has for giving up its “secret sauce.”

This order reiterates the prior order denying plaintiffs? initial request to seal: generalized assertions of potential competitive harm fail to outweigh the public?s right to learn of the ownership of the patents-in-suit, which patents grant said owner the right to publicly exclude others…. It also reiterates that this is particularly true where, as here, the public has an especially strong interest in learning the machinations that bear on the issue of standing in the patent context. Furthermore, the United States government bestows entities such as Uniloc the right to control the use of the purported inventions at issue. Because Uniloc?s rights flow directly from this government-conferred power to exclude, the public in turn has a strong interest in knowing the full extent of the terms and conditions involved in Uniloc?s exercise of its patent rights and in seeing the extent to which Uniloc?s exercise of the government grant affects commerce.

In other words, a patent grants you tremendous power to exclude in exchange for the public revelation of what you’ve invented. Uniloc shouldn’t be able to conduct its business in secret.

Alsup also notes that Uniloc doesn’t even come close to justifying the reasons for its requested redactions other than a general “oh, but it will hurt our business.”

… plaintiffs? supposed risk of (still) generalized competitive harm in future negotiations from disclosure did not and does not compellingly outweigh the public?s interest in accessing this information for the reasons stated above

Alsup mocks Uniloc’s reference to other patent suits (including Apple v. Samsung) in which some information was redacted by noting that that was a totally different situation involving actually confidential information from companies selling actual products, not just trolling.

Plaintiffs? reliance on Apple Inc. v. Samsung Electronics. Co. Ltd., … is unavailing, inasmuch as the parties there sought to seal product-specific financial information (such as costs, sales, profits, and profit margins), as opposed to the licensing-specific financial information at issue here…. Plaintiffs here have no products to sell and thus their (alleged) risk of competitive harm is entirely distinguishable from that in Apple.

A few other areas where Uniloc sought to hide info, Alsup dismisses by pointing out that a “boilerplate assertion of competitive harm fails to provide a compelling reason to seal.”

And that’s not all that Alsup appears displeased with Uniloc over. Remember earlier when I talked about Uniloc running into trouble years back for using a nutty formula for trying to calculate damages? Well, Alsup notes that redacting all this info might help Uniloc hide “reasonable royalties” from being used in damage calculations, and calls out “vastly bloated figures.”

The impact of a patent on commerce is an important consideration of public interest. One consideration is the issue of marking by licensees. Another is recognition of the validity (or not) of the inventions. Another is in setting a reasonable royalty. In the latter context, patent holders tend to demand in litigation a vastly bloated figure in ?reasonably royalties? compared to what they have earned in actual licenses of the same or comparable patents. There is a public need to police this litigation gimmick via more public access. We should never forget that every license has force and effect only because, in the first place, a patent constitutes a public grant of exclusive rights.

Once again, the message is: don’t try to bullshit Judge Alsup, especially on technical issues. Now, hopefully, we’ll finally see the details of Uniloc’s agreements over these patents, and why exactly Apple thinks Uniloc really has no standing to sue.

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Companies: apple, uniloc

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Comments on “Judge Alsup Slams Patent Troll For Basically Everything”

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58 Comments
Anonymous Coward says:

We need more judges like Alsup.

I’d wish he was on the supreme court, but I think he’d be wasted there; his current position kills bogus lawsuits before they ever get to the supreme court.

And yeah; patents (and copyrights) should be public things, with the entirety of the work disclosed. You shouldn’t be able to claim trade secret on something that you’ve made public in order to gain temporary monopoly control. Trade secrets are for the processes you never show the public.

Anonymous Coward says:

Re: Re:

When I read something like the following:

"The judge wishes to learn the prior art and public domain art bearing on the patents in suit and trade secrets in suit."

I wonder…. shouldn’t the USPTO have done this before issuing the patent in the first place? I mean, why does each individual judge have to do their job?

Scary Devil Monastery (profile) says:

Re: Re: Re:

"I wonder…. shouldn’t the USPTO have done this before issuing the patent in the first place? I mean, why does each individual judge have to do their job?"

Because the USPTO doesn’t have the resources. They more or less have to assume the patent applicant acts in good faith.

The bigger issue is that a wrongfully filed patent claim isn’t easier to pursue in court and the fines aren’t hefty enough to ensure a patent troll won’t remain on the positive side of his investment.

Amal Gamated says:

Corporate power on "platforms" is government-conferred SO

my views on those under Section 230 being not solely "private" but de facto government censorship and therefore UN-Constitutional is EXACTLY like:

Because Uniloc’s rights flow directly from this government-conferred power to exclude,

Tell ya, kids: I’ve seen lawyers played on TV so I have good grasp of The Law and how it’s entirely different from the paid corporate propaganda that Masnick puts out.

Masnick is trying to pull a fast one by asserting Section 230 powers allow YOUR 1st Amendment rights to be violated. A "government-conferred power" cannot be a primary one. Common law over-arches.

Anonymous Coward says:

I think you’re wrong, TFG. Yes, that was my reaction at first glance, but "I’ve seen lawyers played on TV" is the clue that this is really a parody of the "twitter kicked me off for hate speech, someone accused me of pedophilia and now everyone must pay, pop-music downloaders are making it hard for self-improvement spammers to steal personal information" kind of drivel that’s been so common lately.

It’s a good parody, granted, with the usual twist on 230: what matters is preventing someone ELSE’S free speech, and therefore somehow I ought to have the right to tell the government to do just that. But I can’t believe any of the usual droolers[*] would have admitted to learning law from a sitcom.

TFG says:

Re: Re:

I caught that as well, AC. I stand by my action.

The parodied individual is enough of a plague on this site that the parodies are just going to be part of the plague. It invites yet another comment section flooded with nonsense devoted to nonsense and the rebuttal of nonsense repeated ad nauseum.

Or, TL;DR – saw it was parody, considered it still off-topic spam because of who was parodied.

Scary Devil Monastery (profile) says:

Re: Re: Re:

"I caught that as well, AC. I stand by my action. The parodied individual is enough of a plague on this site that the parodies are just going to be part of the plague."

I second that. Baghdad Bob/Bobmail/Blue runs so fast into Poe’s Law even a professional comedian trying to make a parody of him would just sound like the man himself.

Bamboo Harvester (profile) says:

Re: Re:

In the early 80’s, we’d "hide" details of products by applying for a Patent and constantly modifying the Application.

Once Patent is granted, it’s available to anyone who asks for a copy and pays a small fee.

When an item is Patent Pending, the documentation isn’t available to the public.

From some of the Patent nonsense reported here, that’s likely been changed.

Bobvious says:

"BUT iT will HURT our business"

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Anonymous Coward says:

Does China pay Techdirt for this kind of article?

Have you considered that the major beneficiary if your anti-patent rant is China?

Without patents, China can copy ANYTHING, reproduce it low cost without investing any R&D, and put legitimate American companies out of business in America.

Have you considered that?

Or do the Chinese pay you directly?

Are you going o say (again) that the “lowest cost of production” should rule the day?

Wait – are you actually Chinese?

Anonymous Coward says:

Re: Does China pay Techdirt for this kind of article?

China already copies everything, patents or no.

Allowing dumbass patents like Personal Audio LLC’s is not going to magically make China stop. All that’s going to do is allow corporations (you know, the ones you claim to hate) to harass smaller businesses who can’t afford lawsuits – just because their office printer has a "Scan PDF to PC" function.

Anonymous Coward says:

Re: Re: Does China pay Techdirt for this kind of article?

It won’t make China stop – but it will let me sue Chinese companies that practice my patents in ?America.

What we should be working towards is making patent lawsuits less expensive, that would benefit EVERYONE (except the attorneys).

Anonymous Coward says:

Re: Re: Re: Does China pay Techdirt for this kind of article?

Chinese companies that practice my patents

The ones that you’re kicking out in the upcoming trade war?

It’s cute that you think that podcasting patents are going to serve any deterrent effect on actual patent infringement.

making patent lawsuits less expensive

Which part? If you make lawyer’s fees less expensive it’s not going to stop larger corporations. Their larger war chests will let them afford even more lawsuits than before.

On the other hand, if you’re talking settlement fees or penalties, patent holders will throw an epic shit fit. Which would include you (legitimacy of your alleged patents notwithstanding), so I doubt this is what you’re referring to.

Your end goal of permitting more bad patents to slip through the cracks will only have the effect of people taking patents even less seriously.

Anonymous Coward says:

Re: Re: Re:2 Does China pay Techdirt for this kind of article

I am not promoting the idea of more bad patents.

How about something like this: For all patent claims of $100M or less, let the case be fought in local arbitration in the state where the suit is brought. Let a panel of 3 retired judges decide the case in a single step. Outline the entire case, including damages, at the start, and have a single trial in front of the 3 judges to resolve the entire matter.

Patent-litigation-lite, less expensive, overseen by legal experts, and committed to fast resolution of disputes.

What do you think? Less expensive is good, that’s my overall point. More expensive is bad, because it makes the game difficult for new companies to afford.

Anonymous Coward says:

Re: Re: Re:3 Does China pay Techdirt for this kind of art

I am not promoting the idea of more bad patents

No, what you do is throw a hissy, passive-aggressive fit whenever a patent is found to be of dubious quality, and whimper and whine in the face of judges and companies pointing out that they’re bad.

I’ll even do you a favor by doing your homework for you, by reminding you of a case where you did precisely that, here.

For all patent claims of $100M or less, let the case be fought in local arbitration in the state where the suit is brought

It’s cute that you think smaller companies have $100 million to throw around like pollen during hay fever season. But no, this isn’t going to solve the issue of every LLC signing up for office space in East Texas while the defendant is halfway across the country.

Let a panel of 3 retired judges decide the case in a single step. Outline the entire case, including damages, at the start, and have a single trial in front of the 3 judges to resolve the entire matter.

Any reason why the judges have to be retired? Does that suddenly mean less money is to be paid to them? What reason would they have to come out of retirement?

What you’re basically asking for is the patent equivalent of the "small claims court" the RIAA is asking for, which does nothing to solve the problems you think you’re targeting, or any of the issues with enforcement, for pretty much the same reasons. It doesn’t evaluate evidence, quality of patents or whether a copyright has been applied for (in fact, the entire point of "small claims court" is to avoid evidence scrutiny), and is entirely focused on churning out settlements.

I’ll even do your homework again and remind everyone of how rightsholders absolutely want to avoid having the legality of their claims scrutinized.

Try again, Hamilton. Or better yet, don’t.

Anonymous Coward says:

Re: Re: Re:4 Does China pay Techdirt for this kind of

Are you intentionally stupid in your writings?

It doesn’t evaluate evidence? Have you ever been in arbitration? What a stupid thing to say.

Why are the judges retired? Because un-retired judges are busy judging. Duh.

It doesn’t evaluate the quality of patents? What do you think the 3 judges do? Fart in chorus?

What an idiot you are. I am a rights-holder – are you trying to tell me what I think with a bullshit CNN poll?

Anonymous Coward says:

This patent is just one in a long series of anti-patent “pro free” “anti-troll” rants by mike.

Are you a fucking idiot and didn’t read the article or are you a fucking idiot and you missed the part where the company who holds the patents makes absolutely NOTHING, so in other words, they have nothing to sell.

So how can their technology be stolen by China when they don’t even have a product to sell from these patents?????

Anonymous Coward says:

Re: Re:

What?

Patents are written by inventors, and protect their original ideas. Patents are also bought and sold, so others, who believe the patents are valuable, can also protect those original ideas.

Patents make original ideas valuable if the inventor writes down and then files his original idea in a manner prescribed by the Government.

The lifeblood of our economy is invention, everyone knows that.

Patents promote invention, because they are written by INVENTORS. Duh. If an inventor sells a patent, that’s fine, we want inventors to sell patents and to receive as much as possible through that sale.

What part of the blatantly obvious value of patents, the patent system, or the patent market are you too stupid to understand?

Or are you Chinese posing as an American to steal our IP?

Gary (profile) says:

Re: Re: Re:

What part of the blatantly obvious value of patents, the patent system, or the patent market are you too stupid to understand?

Patents are just a scam. Scammers, like John Smith, love them.

People who get sued for scanning documents on their HP printer, not so much:
https://arstechnica.com/tech-policy/2013/01/patent-trolls-want-1000-for-using-scanners/

Please note the scammer wasn’t sueing HP – who makes the scanners. He was suing end users, because they were scanning.

"Patents help everyone." Proven to be incorrect.

Anonymous Coward says:

Re: Re: Re:5 Try to listen to the nice men in coats on your next vaca

“Might how tiny have fallen”.

Wow, that’s a literary quotation, right? I know who said it, wait, let me think.. Ronald Regan? No. WInston Churchill? No. Albert Einstein? No. Thomas Edison? No. Henry Ford? No. Donald J. Trump, the Magnificent? No. Hmm… I know there is some profundity in there somewhere.

Perhaps it is this: What you are saying is that for most parents who send their children to school, they understand one thing: Viruses. They penetrate the whole family, like, wow, man, all the time. You know what I mean if you’ve ever had 15 children, like I did.

Anyway, Viruses, deadly things. We take all kinds of measures to prevent being infected. But when one family member gets infected, especially a badly behaved childish narcissist who knows no limits to her embarrassment and public humiliation, like Hillary Clinton, then a lot of America can get sick.

Which is to say, this fever dream of Russian Collusion between the Trump Campaign and Russia, is a Virus. It was introduced by a “trusted family member” in the form of Hillary Clinton. She betrayed everyone, never washed her hands ever after dipping into filthy pots of dirty money. She infected the whole country. For two years.

Now the legitimate anti-bodies to this infection have been set free, like the Kraken. The Kraken is coming, everyone knows it.

What you mean to say is “Loose the Kraken, and call him Bill Barr!”, right? Right?

Anonymous Coward says:

Re: Re: Re:2 made for america

“US lead the world of centuries”
Now all you do is sue people people on the internet and bribe congress to keep the wealth and keep telling everyone hope is coming if they just give those rich folk more money they will bring the jobs back from the Chinese for just one more dollar eh boy?
How’s that for American made?

Anonymous Coward says:

Re: Re: Re:2 Re:

What you often forget is that the American company had the rounded corners, and the Foreigner Fucker company/country was infringing. That makes all the difference. Asshole.

Well, if you really think that rounded corners is some sort of genius invention requiring patent protection, then I am guessing that you failed at "shapes" when you were in pre-school. The rest of us who actually graduated pre-school, understand that it’s just a fucking shape. Asshole.

Anonymous Coward says:

Re: Re: Re: Re:

Ok I talked to Josef. He said he is being held hostage by a violent and criminal faction of the Globalist Party. That he never has any hope to grow his business beyond voluntary donations, because his Chinese masters have taught him, repeatedly, that considering your own well being over the well being of the Party is disloyal.

You understand that, right, comrade?

Gary (profile) says:

Re: Re: Re:2 Re:

Prusa is innovating. That is what this is about, right? Innovation.

What you really want is the federal government to step in and protect your business interests. That’s Protectionism and Federal Oversight. Completely different thing mate.

The 3d printer marked has EXPLODED. You know why? Because the key patents held by Stratasys expired. Patents did nothing but inhibit 3d printer innovation. Ever.

Scary Devil Monastery (profile) says:

Re: Re: Re:4 made for america

"Maybe he is just mad becuase China is doing what the US did during the industrial revolution."

Earlier than that.

https://en.wikipedia.org/wiki/Manufacturers_Aircraft_Association

Fact of the matter is that US patents ensured that at the time of WW1 the US couldn’t field a single combat worthy airplane of their own despite having started out ten or twenty years ahead of the competition.

And today? Hell, Google had to buy a 5 billion dollar portfolio of obsolete patents just to have something to countersue with before they dared launch their first android phones.

I think you’ll find that patents have by and large been a hindrance to growth rather than encouraging it, while keeping smaller startups from entering the markets of major incumbents..

Bobob says:

If you really want to fix patent issues, eliminate the assignee field and keep the inventors to whom the patent is awarded, limited to the (real) people who actually did the inventing. Eliminate the "works for hire" doctrine. The owners of patants ad copyright should be limited to inventors and authors who are real people.

If an invention is really worth a great deal of money to a company that employees the inventor(s), the company will have a great deal of incentive to compensate them for a license to use that patent or copyright. At that point, the inventor(s) or author(s) will be in a better position to negotiate the terms with leverage that is more equal with that of the employer.

Inventors and authors should be real people wgho cannot assign their patent or copyright to a person or entity that did not do the inventing or authoring. A corporation is merely the means to make those things profitable for the potential inventor, not the defacto owner of the patent or copyright by virtue of being the assignee.

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