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Daniel Nazer, EFF

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Posted on Techdirt - 31 October 2018 @ 08:05pm

Stupid Patent Of The Month: How 34 Patents Worth $1 Led To Hundreds Of Lawsuits

One of the nation’s most prolific patent trolls is finally dead. After more than a decade of litigation and more than 500 patent suits, Shipping & Transit LLC (formerly known as Arrivalstar) has filed for bankruptcy. As part of its bankruptcy filing [PDF], Shipping & Transit was required to state how much its portfolio of 34 U.S. patents is worth. Its answer: $1.

We are recognizing Shipping & Transit’s entire U.S. portfolio as our latest stupid patent of the month. We agree that these patents are worthless. Indeed, they have always been worthless, except as litigation weapons. In the hands of their unscrupulous owners, they caused enormous damage, costing productive companies more than $15 million in licensing fees and untold legal expenses. That’s tens of millions of dollars that won’t be used to invest in new products, reward shareholders, or give raises to workers.

Dozens of worthless patents

All patent troll stories start with Patent Office. You can’t be a patent troll without patents. And you can’t have patents unless with Patent Office grants them. We have found many occasions to write about problems with patent examination. The Patent Office spends only a few hours per application and regularly issues software patents without considering any real-world software at all. This helps explain how an entity like Shipping & Transit could end up with dozens of valueless patents.

Shipping & Transit claims to be “one of the pioneers of determining when something is arriving and being able to message that out.” Its patent portfolio mostly relates to tracking vehicles and packages. Of course, Shipping & Transit did not invent GPS tracking or any protocols for wireless communication. Rather, its patents claim mundane methods of using existing technology.

Consider U.S. Patent No. 6,415,207. This patent claims a “system for monitoring and reporting status of vehicles.” It describes using computer and software components to store status information associated with a vehicle, and communicate that information when requested. In other words: vehicle tracking, but with a computer. It doesn’t disclose any remotely new software or computer technology. Rather, the patent claims the use of computer and software components to perform routine database and communications operations. There is nothing inventive about it.

Given that it was aggressively filing lawsuits as recently as 2016, it is striking to see Shipping & Transit now admit that its patent portfolio is worthless. While many of its patents have expired, that is not true of all of them. For example, U.S. Patent No. 6,415,207 does not expire until 2020. Also, the statute of limitations for patent infringement is six years. An expired patent can be asserted against past infringement so long as the infringement occurred before the patent expired and within the last six years. Many of the patents Shipping & Transit have asserted in court expired less than six years before its bankruptcy filing. Yet Shipping & Transit valued all of its U.S. patents at $1.

A decade of patent trolling

When it was known as Arrivalstar, Shipping & Transit sued a number of cities and public transit agencies claiming that transit apps infringed its patents. (While the exact legal relationship between Arrivalstar S.A. and Shipping & Transit LLC is unclear, Shipping & Transit has itself said that it was “formerly known as Arrivalstar.”) Its litigation had all the hallmarks of classic patent trolling. When transit agencies banded together to defend themselves on the merits, it quickly abandoned its claims.

Shipping & Transit’s campaign continued for years against a variety of targets. In 2016, it was the top patent litigator in the entire country, mostly targeting small businesses. One judge described its tactics as “exploitative litigation.” The court explained:

Plaintiff’s business model involves filing hundreds of patent infringement lawsuits, mostly against small companies, and leveraging the high cost of litigation to extract settlements for amounts less than $50,000.

For many years, this strategy worked. Shipping & Transit/Arrivalstar is reported to have collected more than $15 million from defendants between 2009 and 2013.

Finally, after more than a decade, Shipping & Transit’s exploitative tactics finally caught up with it. First one, then another federal judge awarded attorneys’ fees to the defendants in cases brought by Shipping & Transit. With defendants successfully fighting back, it stopped filing new cases.

The end: Shipping & Transit files an inaccurate bankruptcy petition

Shipping & Transit filed its bankruptcy petition [PDF] on September 6, 2018. The petition discloses that Shipping & Transit’s gross revenue in the two-year period of 2016 and 2017 was just over $1 million dollars. Of course, this does not include the legal costs that Shipping & Transit imposed on its many targets. It claimed to have no revenue in 2018.

Other than its 34 U.S patents (valued at $1), and its 29 worldwide patents (also valued at $1), Shipping & Transit claims to have no assets at all. Where did more than $1 million dollars it received go? The application doesn’t say.

The bankruptcy petition, submitted under the penalty of perjury and signed by Shipping & Transit’s Managing Member Peter Sirianni, contains at least one false statement. A bankruptcy petition includes Statement of Financial Affairs (Form 207). Part 3 of this form requires the debtor to list any “legal actions ? in which the debtor was involved in any capacity?within 1 year before filing this case.” Shipping & Transit said “none.”

But that isn’t true. On July 23, 2018, a writ of execution [PDF] was issued as to Shipping & Transit in the amount of $119,712.20. This writ was issued in Shipping and Transit, LLC v. 1A Auto, Inc., Case No. 9:16-cv-81039, in the Southern District of Florida. The judge in that case had issued a final judgment [PDF] on April 3, 2018, awarding fees and costs to the defendant. Both of these orders, and many other court filings, took place within a year of Shipping & Transit’s bankruptcy petition. Yet Shipping & Transit still affirmed that it had not been involved in litigation “in any capacity” within a year of the bankruptcy filing.

Shipping & Transit’s petition does list 1A Auto as an unsecured creditor. Even though a court has issued a writ of execution with a precise six-figure amount, Shipping & Transit stated that the amount of 1A Auto’s claim is “unknown.”

It is not surprising that a decade of abusive patent trolling would end with an inaccurate bankruptcy petition. To be clear, our opinion that Shipping & Transit’s bankruptcy petition includes a false statement submitted under oath is based on the following disclosed facts: its answer to Part 3 of Form 207 of its petition, and the public docket in Case No. 9:16-cv-81039 in the United States District Court for the Southern District of Florida.

A monster story for Halloween

UPSTO Director Andrei Iancu recently gave a speech where he suggested that those who complain about patent trolls are spreading “scary monster stories.” It may finally be dead, but Shipping & Transit was a patent troll, and it was very, very real. We estimate that its lawsuits caused tens of millions of dollars of economic harm (in litigation costs and undeserved settlements) and distracted hundreds of productive companies from their missions. Research shows that companies sued for patent infringement later invest less in R&D.

A patent system truly focused on innovation should not be issuing the kind of worthless patents that fueled Shipping & Transit’s years of trolling. Courts should also do more to prevent litigation abuse. It shouldn’t take an entire decade before an abusive patent troll faces consequences and has to shut down.

While it lived, Shipping & Transit/Arrivalstar sued over 500 companies and threatened many hundreds more. That might be a “monster story,” but it is true.

Reposted from the EFF’s Stupid Patent of the Month series.

Posted on Techdirt - 28 September 2018 @ 07:39pm

Stupid Patent of the Month: Trolling Virtual Reality

This month’s stupid patent describes an invention that will be familiar to many readers: a virtual reality (VR) system where participants can interact with a virtual world and each other. US Patent No. 6,409,599 is titled “Interactive virtual reality performance theater entertainment system.” Does the ‘599 patent belong to the true inventors of VR? No. The patent itself acknowledges that VR already existed when the application was filed in mid-1999. Rather, it claims minor tweaks to existing VR systems such as having participants see pre-recorded videos. In our view, these tweaks were not new when the patent application was filed. Even if they were, minor additions to existing technology should not be enough for a patent.

The ‘599 patent is owned by a company called Virtual Immersion Technologies, LLC. This company appears to have no other business except patent assertion. So far, it has filed 21 patent lawsuits, targeting a variety of companies ranging from small VR startups to large defense companies. It has brought infringement claims against VR porn, social VR systems, and VR laboratories.

Virtual reality was not new in mid-1999. The only supposedly new features of the ‘599 patent are providing a live or prerecorded video of a live performer and enabling audio communication between the performer and a participant. Similar technology was infamously predicted in the Star Wars Holiday Special of 1978. In this sense, the patent is reminiscent of patents that take the form: “X, but on the Internet.” Here, the patent essentially claims video teleconferencing, but in virtual reality.

Claim 1 of the ‘599 patent is almost 200 words long, but is packed with the kind of mundane details and faux-complexity typical of software patents. For example, the claim runs through various “input devices” and “output devices” assigned to the “performer” and “participant.” But any VR system connecting two people will have such things. How else are the users supposed to communicate? Telepathy?

Like many software patents, the ‘599 patent describes the “invention” at an absurdly high, and unhelpful, level of abstraction. Any specific language in the patent is hedged to the point that it becomes meaningless. The “input devices” might be things like a “keypad or cyberglove,” but can also be any device that “communicate[s] with the computer through a variety of hardware and software means.” In other words, the “input device” can be almost any device at all. The patent suggests that the “underlying control programs and device drivers” can be written in “in many different types of programming languages.” Similarly, the “network communication functions” can be accomplished by any “protocols or means which may currently exist or exist in the future.” The overall message: build yourself a VR system from scratch and risk infringing.

RPX filed an inter partes review petition arguing that claims of the ‘599 patent were obvious at the time of the application. The petition argues, persuasively in our view, that earlier publications describe the supposed invention claimed by the ‘599 patent. The inter partes review proceeding has since settled, but any defendant sued by Virtual Immersion Technologies, LLC can raise the same prior art (and more) in their defense. Unfortunately, it is very expensive to defend a patent suit and this means defendants are pressured to settle even when the case is weak.

The ‘599 patent highlights many of the weaknesses of the patent system, especially with respect to software patents. First, the Patent Office failed to find prior art. Second, the patent claims are vague and the patent isn’t tied to any concrete implementation. Finally, the patent ended being used to sue real companies that employ people and make things.

Republished from the EFF’s Stupid Patent of the Month series.

Posted on Techdirt - 13 April 2018 @ 12:14pm

New Hampshire Court: First Amendment Says You Can Call A Patent Troll A Patent Troll

A New Hampshire state court has dismissed a defamation suit filed by a patent owner unhappy that it had been called a “patent troll.” The court ruled [PDF] that the phrase “patent troll” and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim. While this is a fairly routine application of defamation law and the First Amendment, it is an important reminder that patent assertion entities ? or “trolls” ? are not shielded from criticism. Regardless of your view about the patent system, this is a victory for freedom of expression.

The case began back in December 2016 when patent assertion entity Automated Transactions, LLC (“ATL”) and inventor David Barcelou filed a complaint [PDF] in New Hampshire Superior Court against 13 defendants, including banking associations, banks, law firms, lawyers, and a publisher. ATL and Barcelou claimed that all of the defendants criticized ATL’s litigation in a way that was defamatory. The court summarizes describes the claims as follows:

The statements the plaintiffs allege are defamatory may be separated into two categories. The first consists of instances in which a defendant referred to a plaintiff as a “patent troll.” The second is composed of characterizations of the plaintiffs’ conduct as a “shakedown,” “extortion,” or “blackmail.”

These statements were made in a variety of contexts. For example, ATL complained that the Credit Union National Association submitted testimony to the Senate Committee on the Judiciary [PDF] that referred to ATL as a “troll” and suggested that its business “might look like extortion.” The plaintiffs also complained about an article in Crain’s New York Business that referred to Barcelou as a “patent troll.” The complaint alleges that the article included a photo of a troll that “paints Mr. Barcelou in a disparaging light, and is defamatory.”

ATL had filed over 50 lawsuits against a variety of banks and credit unions claiming that their ATM machines infringed ATL’s patents. ATL also sent many demand letters. Some in the banking industry complained that these suits and demands lacked merit. There was some support for this view. For example, in one case, the Federal Circuit ruled the several of ATL’s asserted patent claims were invalid and that the defendants did not infringe. The defendants did not infringe because the patents were all directed to ATMs connected to the Internet and it was “undisputed” that the defendants’ products “are not connected to the Internet and cannot be accessed over the Internet.”

Given the scale of ATL’s litigation, it is not surprising that it faced some criticism. Yet, the company responded to that criticism with a defamation suit. Fortunately, the court found the challenged statements to be protected opinion. Justice Brian T. Tucker explained:

[E]ach defendant used “patent troll” to characterize entities, including ATL, which engage in patent litigation tactics it viewed as abusive. And in each instance the defendant disclosed the facts that supported its description and made ATL, in the defendant’s mind, a patent troll. As such, to the extent the defendants accused the plaintiffs of being a patent troll, it was an opinion and not actionable.

The court went on to explain that “patent troll” is a term without a precise meaning that “doesnt enable the reader or hearer to know whether the label is true or false.” The court notes that the term could encompass a broad range of activity (which some might see as beneficial, while others see it as harmful).

The court also ruled that challenged statements such as “shakedown” and comparisons to “blackmail” were non-actionable “rhetorical hyperbole.” This is consistent with a long line of cases finding such language to be protected. Indeed, this is why John Oliver can call coal magnate Robert Murray a “geriatric Dr. Evil” and tell him to “eat shit.” As the ACLU has put it, you can’t sue people for being mean to you. Strongly expressed opinions, whether you find them childish or hilariously apt (or both), are part of living in a free society.

Justice Tucker’s ruling is a comprehensive victory for the defendants and free speech. ATL and Barcelou believe they are noble actors seeking to vindicate property rights. The defendants believed that ATL’s conduct made it an abusive patent troll. The First Amendment allows both opinions to be expressed.

Reposted from EFF’s Deeplinks blog

Posted on Techdirt - 28 December 2017 @ 12:14pm

Stupid Patent Of The Month: Motivational Health Messaging LLC Gets A Patent On Sending Uplifting Texts

Have you ever sent a motivational text to a friend? If you have, perhaps you tailored your message to an activity or location by saying “Good luck in the race!” or “Have fun in New York!” Now, imagine doing this automatically with a compuuuter. What a great invention. Actually, no. That’s not a good invention, it’s our latest Stupid Patent of the Month.

U.S. Patent No. 9,069,648 is titled “Systems and methods for delivering activity based suggestive (ABS) messages.” The patent describes sending “motivational messages,” based “on the current or anticipated activity of the user,” to a “personal electronic device.” The patent provides examples such as sending the message “don’t give up” when the user is running up a hill. The examples aren’t limited to health or exercise. For example, the patent suggests sending messages like “do not fear” and “God is with you” when a “user enters a dangerous neighborhood.”

The patent’s description of its invention is filled with silly, non-standard acronyms like ABS for “activity based suggestive” messages or EBIF for “electronic based intelligence function.” These silly acronyms create an illusion of complexity where plain, descriptive language would reveal the mundane nature of the supposed invention. For example, what the patent grandly calls EBIF appears to be nothing more than standard computer processing.

The ‘648 patent is owned by Motivational Health Messaging LLC. While this may be a new company, at least one of  the people behind it has been involved in massive patent trolling campaigns before. And the two named inventors have both been inventors on patents that trolls have asserted hundreds of times. One is also an inventor listed on patents asserted by infamous patent troll Shipping and Transit LLC. The other named inventor is the inventor on the patents asserted by Electronic Communication Technologies LLC. Those two entities (with their predecessors) brought over 700 lawsuits, many against very small businesses. In other words, the ‘648 patent has been issued to Troll Co. at 1 Troll Street, Troll Town, Trollida USA.

We believe that the claims of the ‘648 patent are clearly invalid under the Supreme Court’s decision in Alice v. CLS Bank, which held abstract ideas do not become eligible for a patent merely because they are implemented in conventional computer technology. Indeed, the patent repeatedly emphasizes that the claimed methods are not tied to any particular hardware or software. For example, it states:

The software and software logic described in this document ? which comprises an ordered listing of executable instructions for implementing logical functions, can be embodied in any non-transitory computer-readable medium for use by or in connection with an instruction execution system, apparatus, or device, such as a computer-based system, processor-containing system, or other system that can fetch the instructions from the instruction execution system, apparatus, or device and execute the instructions.

The ‘648 patent issued on June 30, 2015, a full year after the Supreme Court’s Alice ruling. Despite this, the patent examiner never even discussed the decision. If Alice is to mean anything at all, it has to be applied to an application like this one.

In our view, if Motivational Health Messaging asserts its patent in court, any defendant that fought back should prevail under Alice. Indeed, we would hope that the court would strongly consider awarding attorney’s fees to the defendant in such a case. Shipping & Transit has now had two fee awards made against it for asserting patents that are clearly invalid under Alice. And the Federal Circuit recently held that fee awards can be appropriate when patent owners make objectively unreasonable argument concerning Alice.

In addition to the problems under Alice, we believe the claims of the ‘648 patent should have been rejected as obvious. When the application was filed in 2012, there was nothing new about sending motivational messages or automatically tailoring messages to things like location. In one proposed embodiment, the patent suggests that a “user walking to a hole may be delivered ABS messages, including reminders or instructions on how to play a particular hole.” But golf apps were already doing this. The Patent Office didn’t consider any real-world mobile phone applications when reviewing the application.

If you want to look for prior art yourself, Unified Patents is running a crowdsourcing contest to find the best prior art to invalidate the ‘648 patent. Aside from the warm feelings that come from fighting patent trolls, there is a $2000 prize pool.

Despite the weakness of its patent, Motivational Health Messaging LLC might still send out demand letters. If you receive such a letter, you can contact EFF and we can help you find counsel.

We have long complained that the Patent Office promotes patent trolling by granting obvious and/or abstract software patents. The history of the ‘648 patent shows how the Patent Office’s failure to properly review applications leads to bad patents falling into the hands of trolls.

Republished from EFF’s Stupid Patent of the Month series.

Posted on Techdirt - 1 September 2017 @ 07:39pm

Stupid Patent Of The Month: JP Morgan Patents Interapp Permissions

We have often criticized the Patent Office for issuing broad software patents that cover obvious processes. Instead of promoting innovation in software, the patent system places landmines for developers who wish to use basic and fundamental tools. This month’s stupid patent, which covers user permissions for mobile applications, is a classic example. 

On August 29, 2017, the Patent Office issued U.S. Patent No. 9,747,468 (the ‘468 patent) to JP Morgan Chase Bank, titled “System and Method for Communication Among Mobile Applications.” The patent covers the simple idea of a user giving a mobile application permission to communicate with another application. This idea was obvious when JP Morgan applied for the patent in June 2013. Even worse, it had already been implemented by numerous mobile applications. The Patent Office handed out a broad software monopoly while ignoring both common sense and the real world.

The full text of Claim 1 of the ‘468 patent is as follows:

A method for a first mobile application and a second mobile application on a mobile device to share information, comprising:

the first mobile application executed by a computer processor on a mobile device determining that the second mobile application is present on the mobile device;

receiving, from a user, permission for the first mobile application to access data from the second mobile application;

the first mobile application executed by the computer processor requesting data from the second mobile application; and

the first mobile application receiving the requested data from the second mobile application.

That’s it. The claim simply covers having an app check to see if another app is on the phone, getting the user’s permission to access data from the second app, then accessing that data. 

The ‘468 patent goes out of its way to make clear that this supposed invention can be practiced on any kind of mobile device. The specification helpfully explains that “the invention or portions of the system of the invention may be in the form of a ‘processing machine,’ such as a general purpose computer, for example.” The patent also emphasizes that the invention can be practiced on any kind of mobile operating system and using applications written in any programming language. 

How was such a broad and obvious idea allowed to be patented? As we have explained many times before, the Patent Office seems to operate in an alternate universe where the only evidence of the state of the art in software is found in patents. Indeed, the examiner considered only patents and patent applications when reviewing JP Morgan’s application. It’s no wonder the office gets it so wrong.

What would the examiner have found if he had looked beyond patents? It’s true that in mid-2013, when the application was originally filed, mobile systems generally asked for permissions up front when installing applications rather than interposing more fine-grained requests. But having more specific requests was a straightforward security and user-interface decision, not an invention. Structures for inter-app communication and permissions had been discussed for years (such as here, here, and here). No person working in application development in 2013 would have looked at Claim 1 of the ‘468 patent and think it was non-obvious to a person of ordinary skill.

JP Morgan’s “invention” was not just obvious, it had been implemented in practice. At least some mobile applications already followed the basic system claimed by the ‘468 patent. In early 2012, after Apple was criticized for allowing apps to access contact data on the iPhone, some apps began requesting user permission before accessing that data. Similarly, Twitter asked for user permission as early as 2011, including on “feature phones”, before allowing other apps access to its data. Since it didn’t consider any real world software, the Patent Office missed these examples.

The Patent Office does a terrible job reviewing software patent applications. Meanwhile, some in the patent lobby are pushing to make it even easier to get broad and abstract software patents. We need real reform that reduces the flood of bad software patents that fuels patent trolling.

Reposted from EFF’s Stupid Patent of the Month series.

Posted on Techdirt - 3 August 2017 @ 07:54pm

Stupid Patent of the Month: HP Patents Reminder Messages

On July 25, 2017, the Patent Office issued a patent to HP on reminder messages. Someone needs to remind the Patent Office to look at the real world before issuing patents.

United States Patent No. 9,715,680 (the ‘680 patent) is titled “Reminder messages.” While the patent application does suggest some minor tweaks to standard automated reminders, none of these supposed additions deserve patent protection.

Claim 1 of the patent states (comments in brackets):

A non-transitory computer-readable storage medium containing instructions, the instructions when executed by a processor causing the processor to [use a computer to]:

receive at a first computer system, via a network, event data descriptive of an event to occur at an event time [get event and time information];

receive via the network, reminder data descriptive of a reminder time to occur on or before the event time [get the reminder time];

at a time after receipt of the event data, receive via the network article data descriptive of an article to be associated with the event, the article data created during an electronic scanning operation [receive some additional information (created by scanning) relating to the event]; and

at the reminder time send via the network a reminder message describing the event and the article to a second computer system, for presentation at the second computer system [at the reminder time, send the reminder message].

Although this claim uses some obscure language (like “non-transitory computer-readable storage medium” and “article data”), it describes a quite mundane process. The “article data” is simply additional information associated with an event. For example, ?buy a cake’ might be included with a birthday reminder. The patent also requires that this extra information be input via a “scanning operation” (e.g. scanning a QR code).

The ‘680 patent comes from an application filed in July 2012. It is supposed to represent a non-obvious advance on technology that existed before that date. Of course, reminder messages were standard many years before the application was filed. And just a few minutes of research reveals that QR codes were already used to encode information for reminder messages. For example, QRickit suggested using QR codes for calendar events and reminders (with the option of adding additional information beyond the event descriptor). This 2011 article suggests using QR codes to embed information such as “assignments for the week.” The only even arguable difference from the prior art is that the patent’s claims require the “article data” to be received after the event data. In our view, that is not a distinction that warrants the government-granted monopoly power inherent in a patent.

The Patent Office reviewed HP’s application for years without ever considering any real-world products. Indeed, the examiner considered only patents and patent applications. We have complained before that the Patent Office seems to operate in an alternative universe where only patents provide evidence of the state of the art in software. The fact that the Patent Office doesn’t take developments in real software into account in its assessment of prior art speaks poorly for its ability to determine whether patent applications actually reflect new inventions.

In addition to failing to consider real products, the Patent Office gives little weight to common sense and takes an extremely rigid approach to evaluating whether or not a patent application is obvious. This leads to patents on things like taking photos against a white background, filming a yoga class, voting for a favorite photo, and out-of-office email. Much of the responsibility for this mess rests with the Federal Circuit, which has failed to apply a Supreme Court case called KSR v. Teleflex that calls for a flexible, common sense approach to obviousness. Together with Public Knowledge, EFF recently filed an amicus brief [PDF] asking the Supreme Court to consider the obviousness standard in patent law and to reaffirm that examiners can reject common sense combinations of known elements.

Even leaving obviousness aside, HP’s patent application still should have been rejected under Alice v. CLS Bank. In Alice, the Supreme Court ruled that an abstract idea does not become eligible for a patent simply by being implemented on a generic computer. As with many software patents, the patent goes out of its way to explain that its method can be implemented on a generic computer, or, as the patent puts it “generally any computer.” Despite this, the prosecution history [PDF] reveals that the examiner never even mentioned Alice, even in office actions written well after the Supreme Court’s decision came down. We have written many times (e.g. 1, 2, 3, and 4) to protest that the Patent Office is not doing enough to diligently apply the Alice decision. The ‘680 patent provides yet another example of abstract software patents being issued despite the Supreme Court’s ruling.

In case you want to set a reminder, the ‘680 patent will expire on December 16, 2035.

Republished from the EFF’s Stupid Patent of the Month series.

Posted on Techdirt - 5 July 2017 @ 03:49pm

Stupid Patent Of The Month: Using A Computer To Count Calories

This month’s stupid patent, like many stupid patents before it, simply claims the idea of using a computer for basic calculations. U.S. Patent No. 6,817,863 (the ‘863 patent) is titled “Computer program, method, and system for monitoring nutrition content of consumables and for facilitating menu planning.” It claims the process of using a computer to track nutrition information like calorie or vitamin intake. It is difficult to think of a more basic and trivial use for a computer.

The ‘863 patent is owned by a patent troll called Dynamic Nutrition Solutions, LLC. Dynamic Nutrition filed a lawsuit this month in the Eastern District of Texas accusing Australian company Fatsecret of infringing the ‘863 patent. Dynamic Nutrition had filed four other lawsuits. Consistent with a pattern of nuisance litigation, each of those earlier suits settled very quickly.

What “invention” does the ‘863 patent purport to cover? Claim 1 of the patent is reproduced in full below (with comments in brackets):

A computer program comprising a combination of code segments stored in a computer-readable memory and executable by a processor to provide nutrition content information related to consumables, the computer program comprising:

a code segment operable to receive and store an input related to consumption of consumables, and to associate the input with a calender [sic] date [i.e. program a computer to track daily food intake]; and

a code segment operable to generate an interactive display screen, wherein the interactive display screen includes? [i.e. include some kind of user interface]

one or more lists of consumables and related nutrition content information, and [i.e. list food options and nutrition information]

a summary section of past consumption of consumables. [i.e. list past food intake]

In other words, program a computer to help people keep track of meals and calorie or vitamin intake.

The application for Dynamic Nutrition’s patent was filed on June 11, 2001. By that time, computers had been around for decades and there was nothing remotely surprising or innovative about programming a computer to keep track of data?whether it be nutrition data or units shipped or accounts receivable or whatever. Nevertheless, the Patent Office takes an extremely rigid approach to whether or not a patent application is obvious. This means that companies often get patents on common sense ideas (like taking photos against white background or filming a yoga class).

Even leaving aside the issue of obviousness, the claims of the ‘863 patent are invalid under the Supreme Court’s Alice v. CLS Bank decision (which struck down patents that merely claim the use of conventional computers to implement an abstract idea). Indeed, the first company to be sued by Dynamic Nutrition, Under Armour, filed a motion to dismiss the case under Alice. Under Armour pointed out that the ‘863 patent itself repeatedly emphasizes that its methods can be implemented using any conventional computer or programming language. Given the strength of this argument, it is unsurprising that the litigation settled before Dynamic Nutrition even filed a response.

Dynamic Nutrition’s patent is not even the only patent that claims using a computer for routine meal planning. A patent troll called DietGoal sued dozens of companies with a meal planning patent. A court invalidated DietGoal’s patent under Alice because it claimed nothing more than the “conventional and quotidian tasks” of selecting meals. The Federal Circuit affirmed that ruling. The logic of this decision applies straightforwardly to Dynamic Nutrition’s patent claims.

We recently launched our Saved By Alice project where we are highlighting cases where companies attacked by stupid software patents were able to use the Alice decision to defend themselves against weak patent suits. The Dynamic Nutrition litigation is yet another example of why the Alice ruling is important and how it can protect productive companies from patent trolls.

Reposted from the EFF’s Stupid Patent of the Month series.

Posted on Techdirt - 31 March 2017 @ 07:39pm

Stupid Patent Of The Month: Storing Files In Folders

Our ongoing Reclaim Invention campaign urges universities not to sell patents to trolls. This month’s stupid patent provides a good example of why. US Patent No. 8,473,532 (the ‘532 patent), “Method and apparatus for automatic organization for computer files,” began its life with publicly-funded Louisiana Tech University. But in September last year, it was sold to a patent troll. A flurry of lawsuits quickly followed.

Louisiana Tech sold the ‘532 patent to Micoba LLC, a company that has all the indicia of a classic patent troll. Micoba was formed on September 8, 2016, just a few days before it purchased the patent. The patent assignment agreement lists Micoba’s address as an office building located in the Eastern District of Texas where virtual office services are provided. As far as we can tell, Micoba has no purpose other than to sue with this patent.

So what does Micoba’s newly acquired patent cover? Claim 13 reads:

A computer system comprising a processor, memory, and software for automatically organizing computer files into folders, said software causing said computer system to execute the steps comprising:

a.   providing a directory of folders, wherein substantially each of said folders is represented by a description;

b.   providing a new computer file not having a location in said directory, said computer file being represented by a description;

c.    comparing said description of said computer file to descriptions of a plurality of said folders along a single path from a root folder to a leaf folder; and

d.   assigning said computer file to a folder having the most similar description.

In other words, put files into folders that contain similar files. Do it on a “computer system” (in case you were worried office workers from the 1930s might have infringed this patent).

For a software patent, the ‘532 patent is unusually free of patent jargon and pseudo-technical babble. Its specification (this is the description of the invention that comes before the claims) does describe a method for determining when the contents of a file match a folder description. The patent proposes representing folders and files as vectors (which should reflect the frequency of particular words found within). The patent suggests assessing similarity by calculating the dot product of these vectors. But, even assuming this was a new idea when the application was filed in 2003, many of the patent’s claims are not limited to this method. The patent effectively captures almost any technique for automatically sorting digital files into folders.

The ‘532 patent issued in June 2013, about a year before the Supreme Court’s decision in Alice v. CLS Bank. In that case, the Supreme Court held that an abstract idea (like sorting files into folders) does not become patentable simply because it is implemented on a computer. The ‘532 patent should be found invalid under this standard. In our view, this patent has no value after Alice except as a litigation weapon.

Louisiana Tech represents that it “seeks industrial partners to commercialize the technology developed at Louisiana Tech for the benefit of society.” But it completely failed to consider this public interest mission when it sold the ‘532 patent to Micoba. Within two months of the sale, Micoba had filed nearly a dozen cases in the Eastern District of Texas, suing companies like SpiderOak and Dropbox, alleging they infringed at least claim 13 of the ‘532 patent. Instead of benefiting society, Louisiana Tech unleashed a torrent of wasteful litigation.

According to RPX, Micoba is associated with IP Edge, which itself is associated with eDekka (the biggest patent troll of 2014) and Bartonfalls (the winner of our October 2016 Stupid Patent of the Month for its patent on changing the channel). Bartonfalls’ trolling campaign recently collapsed when a judge ruled that its patent infringement contentions were “implausible on their face.” If RPX is correct that these companies are connected, Louisiana Tech has hitched its wagon to one of the biggest trolling operations in the nation.

EFF’s Reclaim Invention project was launched to stop universities from feeding patent trolls like this. The project includes a Public Interest Patent Pledge for universities to sign stating that they will not sell their patents to trolls. We also drafted a model state law to help ensure that state-funded universities don’t sell their inventions to patent trolls. You can ask your university to sign the pledge.

Reposted from EFF’s Stupid Patent of the Month series.

Posted on Techdirt - 22 March 2017 @ 02:29pm

Supreme Court Says Patent Trolls Can Wait A While Before Suing

In a ruling this week that will cheer up patent trolls, the Supreme Court said patent owners can lie in wait for years before suing. This will allow trolls to sit around while others independently develop and build technology. The troll can then jump out from under the bridge and demand payment for work it had nothing to do with.

The 7-1 decision arrives in a case called SCA Hygiene v. First Quality Baby Products. This case involves a patent on adult diapers but has a much broader reach. The court considered whether the legal doctrine of “laches” applies in patent cases. Laches is a principle that penalizes a rightsholder who “sleeps on their rights” by waiting a long time to file a lawsuit after learning of a possible infringement. It protects those that would be harmed by the assertion of rights after a lengthy delay. For example, laches would work against a patent owner that saw an infringing product emerge yet waited a decade to sue, after significant investment of time and resources had been put into the product.

The ruling in SCA follows a similar decision in Petrella v. MGM holding that laches is not available as a defense in copyright cases. The Supreme Court has generally rejected “patent exceptionalism” and has often reversed the Federal Circuit for creating special rules for patent law. So this week’s decision was not especially surprising. In our view, however, there were compelling historical and policy arguments for retaining a laches defense in patent law.

Together with Public Knowledge, EFF filed an amicus brief at the Supreme Court explaining the many ways that companies accused of patent infringement can be harmed if the patent owner sleeps on its rights. For example, evidence relevant to invalidity can disappear. This is especially true for software and Internet-related patents. In his dissent, Justice Breyer cited our brief and explained:

[T]he passage of time may well harm patent defendants who wish to show a patent invalid by raising defenses of anticipation, obviousness, or insufficiency. These kinds of defenses can depend upon contemporaneous evidence that may be lost over time, and they arise far more frequently in patent cases than any of their counterparts do in copyright cases.

The seven justices in the majority suggested that patent defendants might be able to assert “equitable estoppel” instead of laches. But that would likely require showing that the patent owner somehow encouraged the defendant to infringe. In most cases, especially patent troll cases, the defendant has never even heard of the patent or the patent owner before receiving a demand. This means estoppel is unlikely to be much help. Ultimately, today’s ruling is a victory for trolls who would wait in the shadows for years before using an obscure patent to tax those who do the hard work of bringing products and services to market.

Republished from the EFF’s Deeplinks Blog

Posted on Techdirt - 23 December 2016 @ 07:39pm

Stupid Patent Of The Month: Carrying Trays On A Cart

As you head home for the holidays, perhaps passing through a checkpoint or two, take some time to think about U.S. Patent No. 6,888,460, “Advertising trays for security screening.” The owner of this patent, SecurityPoint Holdings, Inc., has sued the United States government for infringement. SecurityPoint recently won a trial on validity [PDF] and the case will now proceed to a damages phase. So, unless the validity decision gets overturned on appeal, we’ll soon be paying tax dollars for the idea of moving trays on carts.

Although the title of the patent mentions advertising, some of its claims do not require any ads at all. In fact, the patent is so broad it reads on almost any system of using trays and carts at a checkpoint. The first claim of the patent (with limitations labeled), reads as follows:

1. A method comprising:

[a] positioning a first tray cart containing trays at the proximate end of a scanning device through which objects may be passed, wherein said scanning device comprises a proximate end and a distal end,

[b] removing a tray from said first tray cart,

[c] passing said tray through said scanning device from said proximate end through to said distal end,

[d] providing a second tray cart at said distal end of said scanning device,

[e] receiving said tray passed through said scanning device in said second tray cart, and

[f] moving said second cart to said proximate end of said scanning device so that said trays in said second cart be passed through said scanning device at said proximate end.

In plain English, this claim means: send trays through a checkpoint and use two carts to move the trays back and forth. As is common with patents, the claim uses obtuse language for ordinary things. For example, the word-salad at limitation [f] pretty much just says: “use a cart to move trays from the end of the checkpoint back to the start.”

In a trial before the Court of Federal Claims, the government argued that this claim was obvious because moving trays using carts was well-known in many contexts. The court disagreed. The court suggested that even if using carts to move trays was well-known, the government needed prior art specifically for security checkpoints (arguably the government had such evidence, but the court disagreed on that point too).

In fairness to SecurityPoint, evidence at trial suggested that it had developed a good system for managing trays and carts within the confined space of an airport security checkpoint. But the patent’s claims are far broader than any specific solution. This is something we often see in patent law: someone develops a (fairly narrow) innovation, but then broadly claims it, capturing things that are well-known or banal. This sort of claiming hurts follow-on inventors who develop their own ideas that wouldn’t infringe any narrower claim, and weren’t invented by the patent holder. But because the broader claim is allowed, their own inventions become infringing. Here, claim 1 is not limited to any particular kind of cart, tray, or scanner. The claim really reads on using a couple of carts to move trays and, in our view, should have been found obvious.

Together with Public Knowledge, we recently filed an amicus brief [PDF] asking the Supreme Court to consider the obviousness standard in patent law. We argue that, as applied by the Federal Circuit, obviousness law has abandoned common sense. Specifically, we argue that the Federal Circuit has failed to apply a Supreme Court case called KSR v. Teleflex that calls for a flexible, common sense approach. We hope the Supreme Court takes that case. If it does, it might help us save some tax dollars that would otherwise have gone to SecurityPoint. Unfortunately, whatever happens, we’ll likely still be stuck waiting at airport checkpoints.

Reposted from EFF’s Stupid Patent of the Month series.

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