from the um,-we-actually-offer-no-encryption-services-of-our-own.-sorry. dept
Scores of big brands – from AT&T and Yahoo! to Netflix, GoPro and Macy’s – are being sued because their HTTPS websites allegedly infringe an encryption patent.
CryptoPeak reckons TLS-secured websites that use elliptic curve cryptography are infringing the patent – so it’s suing owners of HTTPS websites that use ECC. Top tip: loads of websites use ECC these days to securely encrypt their traffic.
CryptoPeak, of course, offers no cryptography products. It does, however, manage a portfolio of 66 lawsuits, all filed in the Texas Eastern District Court, beginning roughly 60 days after it acquired the patent. Among the illustrious names listed as defendants are PNC Financial Services, VUDU, Netflix, State Farm, Allstate, Petco, GoPro, Mary Kay, Target, Groupon, Williams-Sonoma, Etsy, Priceline… well, the list goes on and on and on.
All of these companies produce goods and services. CryptoPeak does not. The only thing it produces are lawsuits. The patent it’s using in its litigation doesn’t appear to actually cover the allegedly infringing activity it’s suing over.
Perhaps crucially, [the patent] describes a means for “generating public keys” and “publishing public keys”, and it’s certainly true that ECC does involve generating public keys and using them.
But the patent is focused on “a key recovery agent to recover the user’s private key or information encrypted under said user’s corresponding public key” – which is really not the point of ECC.
Netflix, which has already moved to dismiss the suit against it, doesn’t concern itself too much with the patent’s supposed function. Instead, it argues the patent (along with the numerous lawsuits) should be invalidated/tossed because of other wording used in the patent paperwork itself.
The invalidity of the claims asserted here is cut and dry. The Asserted Claims recite “a method and apparatus.” Thus, a practitioner cannot know the scope of the Asserted Claims from reading them because they explicitly claim “separate statutory classes of invention,” an act expressly forbidden by the law. For this reason alone, these claims are invalid on their face, and the Court should declare so at this stage.
Netflix then points out the “method and apparatus” wording appears in multiple claims.
All of which should serve to kill the lawsuit and, possibly the patent, no matter how much the troll protests.
The defect in these claims is so glaring that CryptoPeak’s only choice is to request that the Court overlook the express words of the claims, construe the claims to read out certain language, or even correct the claims. CryptoPeak has done just that in its Amended Complaint, alleging that “[n]othwithstanding that [the claims] generically recite the existence of ‘apparatus’ in their preambles, each of the . . . Asserted Claims is a method claim . . . .” (Dkt. No. 21 at 4 (emphasis added).)
This request is improper and should be rejected. The Court must read the claims as written, “not as the patentees wish they [ ] were written.”
Seems like a solid argument, but CryptoPeak didn’t file in this particular court just because it coincidentally happened to have rented a mailbox and an empty office in Longview, Texas shortly before filing the lawsuits. It filed in this court because magical things often happen for patent trolls — wholly unrelated to the validity of their claims and their affected Texan accents. If this wasn’t the case, then this particular district wouldn’t be the IP shitmagnet that it is. If CryptoPeak can nail down a few settlements and licensing agreements, it makes the hassle and expense of serial filing worthwhile. And isn’t that why our patent system was implemented in the first place?