by Mike Masnick

Filed Under:
patents, rand, wifi

cisco, innovatio

WiFi Patent Troll Told That Each License Should Be Less Than 10 Cents

from the that-limits-the-damage dept

We've written a few times about patent troll Innovatio, which claims to hold some patents on WiFi, saying that anyone using WiFi (including home users) are infringing, though it has chosen "at this stage" not to sue home users. It is, however, going after tons of coffee shops, hotels, grocery stores and restaurants for offering WiFi, demanding $2,300 to $5,000 to settle. A year ago, we wrote about how a bunch of WiFi equipment manufacturers, including Cisco, Motorola and Netgear had teamed up to go after Innovatio. Not only do they contest the validity of the patents in question, but they highlight a ton of really questionable behavior by Innovatio and claim that the troll is involved in a form of racketeering. Among other accusations, the manufacturers note that Innovatio includes expired patents in its list that it threatens people over, and it leaves out that the patents are part of the WiFi standard, and there are commitments related to them that they'll be licensed on RAND (Reasonable and Non-Discriminatory) terms.

The lawsuit is moving forward, and there was just a ruling on one key part of it. The court decided that before getting into everything else, it would try to determine what the RAND rate should be for the manufacturers (which are separate from the end-users like the coffee shops that Innovatio is going after). The idea is that having the rate set upfront might help the parties settle. Innovatio pushed (of course) to have the rate be calculated based on the price of the final product that was for sale. For example, it claimed that 10% of a laptops value is from WiFi (um, what?!?) and that its patents deserve to get 6% of the value of WiFi. This calculates down to them wanting $4.72 per laptop. The company has other prices for other items: $3.39 per WiFi access point, $16.17 per tablet and $36.90 per "inventory tracking device."

The manufacturers point out that this is insane. And if there needs to be a base from which to calculate a royalty rate it should be the WiFi chip itself, which these days go for about $3 each. Thankfully, the court agrees with the manufacturers and more or less eviscerates Innovatio's "expert" who came up with the prices it thought were reasonable, even highlighting a ridiculous exchange showing that the guy, Chris Bergey, was more or less coming up with ways to support these claims based on questionable assumptions, and no connection to how these things are normally priced.
Specifically, Mr. Bergey testified in part as follows:
Q. I'm saying you are unaware of a single case where this approach has been taken, correct?
A. Correct. I'm not well versed in patent cases.
Q. Well, what do you mean by that?
A. I ... couldn't tell you if this is something that's widely used or not widely used.
Q. You have no idea whether this approach has ever been used?
A. I do not know.
Q. Or whether it's an appropriate approach?
A. It seems logical to me, and I know that this is an emerging, you know, area of law where there is a lot of challenges, but ... I allow that to the experts and, you know--
Q. And on this issue, you're not an expert, right? Fair?
A. On which issue?
Q. On the issue of whether this is even the right approach to take.
A. Again, I think it's logical, but, you know, I think that's up to others in the case to determine, you know, what they want to use.
Q. Because you don't have any expertise or training to say yourself whether or not it's appropriate, right? You're not a lawyer, for example?
A. I believe my education allows me to say I believe it's accurate, but if it's appropriate, no, I don't believe I'm qualified.
Mr. Bergey's testimony about the methodology he used to produce the Wi-Fi feature factor confirms that his approach was not based on an established method of analysis, but is instead speculative and subjective.
The ruling is definitely a loss for Innovatio, as it massively limits the royalties it claims it's entitled to. Of course, Innovatio's lawyer, Matthew McAndrews, seems to want to turn lemons into obnoxious lemonade to spit all over everyone, arguing that now that a rate is set, he can't wait to get all that money from all those WiFi chips:
“At a minimum, the court’s determination that the Wi-Fi chip is the appropriate base to which the RAND rate applies opens the door for Innovatio to potentially license hundreds of millions of units sold by numerous Wi-Fi chip suppliers,” Matthew McAndrews, an Innovatio IP attorney, said yesterday in an e-mailed statement.
Meanwhile, Cisco notes that (1) this much lower rate should hopefully limit the threats that Innovatio can send to users and (2) there's still a long way to go before anyone has to pay anything. Cisco's general counsel, Mark Chandler, told Bloomberg: "We would be shocked if we had to pay anything" by the time the case is over. Meanwhile, in an emailed statement, Chandler told us:
Now, instead of sending letters to businesses asking for thousands, Innovatio can send letters asking for a dime, and only if Innovatio can prove that the patents are valid and that the accused products use the WiFi features and are not already licensed – none of which they have done yet. I suggest they save the stamp.
Ouch. Of course, that's not entirely accurate, since the case is clear that it only applies to the manufacturers, and not the WiFi users, which will be discussed separately, apparently. But, given the RAND rate set for the manufacturers as a starting point, it is likely that any rate that might apply to WiFi users would also be greatly diminished from Innovatio's nutty claims. And, of course, the company still has to show that actual infringement occurred, and that is still likely to be difficult.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    Baldaur Regis (profile), Oct 4th, 2013 @ 3:08pm

    Innovatio's lawyer, Matthew McAndrews, says this ruling "opens the door for Innovatio to potentially license hundreds of millions of units sold by numerous Wi-Fi chip suppliers."

    Except behind that door are not the timid rabbit lawyers that are all the small business owners can afford, but the rabid timberwolf lawyers of corporations.

    Knock knock, Mr. McAndrews.

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

  2. identicon
    Anonymous Coward, Oct 4th, 2013 @ 4:27pm

    Come at me bro

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

  3. identicon
    Anonymous, Oct 4th, 2013 @ 5:44pm

    "I think it should be 5 cents." -Lucy VanPelt

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

  4. icon
    Sheogorath (profile), Oct 4th, 2013 @ 7:08pm

    Here's a reasonable royalty rate

    Why not agree with Innovatio's assertions, then just have everyone turn WiFi off? Since there's no value in something that's not used...

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

  5. This comment has been flagged by the community. Click here to show it
    staff, Oct 5th, 2013 @ 7:03am

    more dissembling by Masnick

    “patent troll”

    infringers and their paid puppets’ definition of ‘patent troll’:

    anyone who has the nerve to sue us for stealing their invention

    This is just spin control by large infringers to cover up their theft. They have already damaged the American patent system so that property rights are teetering on lawlessness. Simply put, their intent is to legalize theft -to twist and weaken the patent system so it can only be used by them and no one else. Then they can steal at will and destroy their small competitors AND WITH THEM THE JOBS THEY WOULD HAVE CREATED. Meanwhile, the huge multinationals ship more and more American jobs to China and elsewhere overseas.

    Do you know how to make a Stradivarius violin? Neither does anyone else. Why? There was no protection for creations in his day so he like everyone else protected their creations by keeping them secret. Civilization has lost countless creations and discoveries over the ages for the same reason. Think we should get rid of or weaken patent rights? Think again.

    Most important for America is what the patent system does for America’s economy. Our founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they included inventors rights to their creations and discoveries in the Constitution. They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity and the jobs the commercialization of those inventions bring. For 200 years the patent system has not only fueled the American economy, but the world’s. If we weaken the patent system we force inventors underground like Stradivarius and in turn weaken our economy and job creation. For a robust economy America depends on a strong patent system accessible to all -large and small, not the watered down weak system the large multinationals and China are foisting on America.

    For the truth, please see he-shield-act-when-bad-economic-studies-make-bad-laws/

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

  6. identicon
    gnudist, Oct 5th, 2013 @ 11:49am

    Re: more dissembling by Masnick

    except Jefferson didn't believe patents were asomething inventors deserved, it was an optional grant to benefit the public at large.

    see Jefferson's own words on the subject:

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

  7. identicon
    gnudist, Oct 5th, 2013 @ 11:54am

    Re: more dissembling by Masnick

    you'll also notice the only actual constitutional mandate is that patents expire, it is left entirely up to Congress if we should even have patents

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

  8. icon
    Sheogorath (profile), Oct 5th, 2013 @ 5:19pm

    Re: more dissembling by Masnick

    Please take this report vote, fucktard.

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

  9. icon
    BernardoVerda (profile), Oct 5th, 2013 @ 8:39pm

    Re: Re: more dissembling by Masnick

    Snort... "more dissembling" by "staff" is more like it.

    I would just dismiss him a a troll or a nut-- except for his egregiously deceptive choice of screen-name. That's an {ahem} interesting... tactic for someone who claims to be taking a higher moral position, isn't it?

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

  10. identicon
    Anonymous Coward, Oct 6th, 2013 @ 4:22pm

    Re: Re: Re: more dissembling by Masnick

    Oh, but he is staff at Thing is, I'm pretty sure it's one of our past patent trolls trying to hide his real name. The one he used so often in the past, with his monstrously long, and highly amusing, sig script.

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

  11. identicon
    Donglebert the Needlessly Obtuse, Oct 7th, 2013 @ 2:35am

    Re: more dissembling by Masnick

    Do you know how to make a Stradivarius violin? Neither does anyone else.

    True. But we do know how to make violins, and we do know how to make violins that are comparable or better in terms of sound and feel than a top Strad. Repeated blind and double blind tests have shown that they're no better or worse than other top class violins that cost substantially less.

    Had the Stradivarius family had patents in their time, it's likely that the patent would have been extended and extended so that we wouldn't be able to make top quality violins without paying a licence fee. Which is ridiculous.

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

  12. identicon
    Pragmatic, Oct 7th, 2013 @ 5:46am

    Re: Re: more dissembling by Masnick

    Stradivarius violins were created at a time when the wood used was particularly fine-grained due to the "Little Ice Age," which imparted a particular quality to the instrument and to the sound. So basically, the skills were there, but the materials used were the key to the instrument's value.

    Go on, patent that.

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

  13. identicon
    Daniel Harvison, Oct 7th, 2013 @ 6:48am

    CSIRO and WIFI patents

    Hasn't it already been established that Australia's CSIRO developed the technology that allowed modern WiFi to exist in the first place? Should these patent trolls be getting in touch with them? Perhaps I misunderstand, but you know...trolls be thick-headed and stupid.

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

  14. identicon
    Daniel Harvison, Oct 7th, 2013 @ 6:52am

    Re: more dissembling by Masnick

    I most certainly disagree with your pro-patent stance, particularly in this case, unless you can prove that Innovatio had some hand in creating the basic WiFi technology in use today.
    What I want to comment on is your use of the "our founding fathers intended blah blah blah". Looks a lot like you yanks worship your founding fathers and folk heroes, a bit like Bioshock Infinite, where they literally pray to Washington and others.

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

  15. identicon
    Anonymous Coward, Oct 7th, 2013 @ 11:52am

    Since when can you sue users of products for using the products? That would seem to put the entire capitalist system in jeopardy.

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

  16. identicon
    TGM, Oct 7th, 2013 @ 1:57pm

    Re: Re: more dissembling by Masnick

    Or the robot from Fallout 3. Hey poison the water will ya?

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

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Insider Shop - Show Your Support!

Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads


Email This

This feature is only available to registered users. Register or sign in to use it.