Joe Mullin's Techdirt Profile

Joe Mullin

About Joe Mullin

Posted on Techdirt - 8 June 2022 @ 01:53pm

Patent Troll Uses Ridiculous “People Finder” Patent To Sue Small Dating Companies

Finding people near you with shared interests, and talking to them, has a very long history in human culture. We’re social animals. We need to find other people close to us to work together with, play games with, and build relationships and families with. Modern online social networks are built on top of those basic human needs. 

The technologies we humans use to do these things are ever-changing, but the basic concepts aren’t. Software that promotes new types of social networking is a terrible fit for the patent system, which hands out hundreds of thousands of 20-year monopolies each year on inventions that are supposedly new, but often aren’t. No one should be able to patent an “invention” that simply describes a method of finding like-minded people. 

Unfortunately, that seems to be just what happened with a patent we looked at recently. A patent troll called Wireless Discovery LLC sued eight different social and dating apps for patent infringement, claiming that they infringe U.S. Patent No. 9,264,875, which claims “location-based discovery” based on people’s “personal attributes.” Wireless Discovery, which was created just before its patent was granted in 2016, sued eight different online dating apps in April—most of them small apps

Claiming the “Mobile Social” World 

Wireless Discovery lawyers say that a simple combination of basic computing services is enough to infringe their patent. Its claim chart makes it explicit what is required to infringe the ‘875 patent. For its lawsuit against the dating network Zoosk, the claim chart describes how: 

  • Zoosk has a website that mobile devices can connect to.
  • Zoosk’s server collects information from the mobile devices, including location and unique device identifiers. 
  • Zoosk users can send and accept invitations to connect with and send messages to each other. 
  • Zoosk shares profile information of connected users, who are “members of a same social network” (i.e., they’re on Zoosk)
  • Zoosk can connect users who are in the immediate vicinity of each other, or a particular distance away. 

And that’s it. 

The Wireless Discovery patents were originally filed for a company called Ximoxi, which tried to market a type of “electronic social cards.” Ximoxi founder Ramzi Alharayeri, who is the named inventor on the patent, said in a 2012 press release that his software was “the first social-discoverability application that works on iPhone, Android and Blackberry alike.” 

In 2016, however, the Ximoxi website said that the app was still “under development.” It continued: “After releasing our Beta, we needed to go back to work for bugs fixes and features improvements.” Today, the Ximoxi website is defunct

Not the First 

The idea of connecting nearby users of a social network isn’t an idea that should be patentable at all. But it’s also worth noting that—even if Ximoxi executed this concept in some way—it was far from the first. The Ximoxi patent was filed in 2014, but claims that it’s a continuation of a patent that was originally filed in October 2008, the time that Ximoxi was founded. 

Location-based social networking on mobile devices is quite a bit older than that, though. It was conceptualized, and used, well before smartphones were common. The New York City-based app “Dodgeball” dates back to 2000. It was acquired by Google (with plenty of press coverage) in 2005. By then, it was clear that different types of social mobile apps were going to be taking off. A paper presented at the 2006 IEEE engineering conference notes the growth of mobile social networking: “An entire sub-industry of the wireless sector is slowly being created as companies such as Dodgeball, Playtxt, and begin to capitalize on this new phase in the mobile technology platform.” 

None of this earlier technology was presented to the U.S. Patent and Trademark Office in Wireless Technology’s patent applications. 

Unfortunately, this is all too common. It’s how many software patents get issued—examiners have just 18 hours, on average, to complete the examination, and the applicants can come back with endless revisions. Ultimately, persistent applicants get patents, even when they don’t have a great case for one. 

And those monopolies do serious damage. Most patent lawsuits filed in the past several years aren’t disputes that result from a company trying to defend the market for its product. Rather, they are initiated by patent trolls—companies with no products, that simply use patents to demand payment from others. In 2021, 87 percent of high-tech patent disputes in federal courts were filed by companies or people that make most of their money from patent licensing. 

It’s very difficult, and expensive, to get patents thrown out in court, even when the technology described in the patent existed long before the patent was filed. That’s why 10 years ago, Congress created a more robust review system for already-granted patents, called inter partes review (or IPR). Over the years various patent owners have tried to weaken the IPR system, encouraging the patent office to reject many IPRs on technicalities, or even saying IPRs are unconstitutional. Thankfully, those efforts have all failed. 

There’s a bill in Congress that would strengthen IPR, closing some of the loopholes that patent owners have used over the years to dodge the IPR process. Right now, passing the Restoring America Invents Act, as it was introduced, is the best thing we could do to weed bad patents out of the system. 

Originally posted to the EFF Deeplinks blog.

Posted on Techdirt - 12 August 2021 @ 09:39am

Stupid Patent Of The Month: This Captcha Patent Is An All-American Nightmare

A newly formed patent troll is looking for big money from small business websites, just for using free, off-the-shelf login verification tools. 

Defenders of the American Dream, LLC (DAD ), is sending out its demand letters to websites that use Google?s reCAPTCHA system, accusing them of infringing U.S. Patent No. 8,621,578. Google?s reCAPTCHA is just one form of a Captcha test, which describes a wide array of test systems that websites use to verify human users and keep out bots. 

DAD?s letter tells targeted companies that DAD will take an $8,500 payment, but only if ?licensing terms are accepted immediately.? The threat escalates from there. If anyone dares to respond that DAD?s patent might be not infringed, or invalid, fees will rise to at least $17,000. If DAD?s patent gets subject to a legal challenge, DAD says they?ll increase their demand to at least $70,000. In the footnotes, DAD advises its targets that ?not-for-profit entities are eligible for a discount.? 

The DAD demand letters we have reviewed are nearly identical, with the same fee structure. They mirror the one filed by the company itself (with the fee structure redacted) as part of their trademark application. This demand letter campaign is a perfect example of how the U.S. patent system fails to advance software innovation. Instead, our system enables extortionate behavior like DAD?s exploding fee structure. 

DAD Didn’t Invent Image Captcha

DAD claims it invented a novel and patentable image-based Captcha system. But there?s ample evidence of image-based Captcha tests that predate DAD?s 2008 patent application. 

The term ?Captcha? was coined by a group of researchers at Carnegie Mellon University in 2000. It?s an acronym, indicating a ?Completely Automated Public Turing test to tell Computers and Humans Apart.? Essentially, it blocks automated tools like bots from getting into websites. Such tests have been important since the earliest days of the Internet. 

Early Captcha tests used squiggly lines or wavy text. The same group of CMU researchers who coined ?Captcha? went on to work on an image-selection version they called ESP-PIX, which they had published and made public by 2005. 

By 2007, Microsoft had developed its own image-categorization Captcha, which used photos from, then asked users to identify cats and dogs. At the sime time, PayPal was working on new captchas that ?might resemble simple image puzzles.? This was no secret?researchers from both companies spoke to the New York Times about their research, and Microsoft filed its own patent application, more than a year before DAD?s. 

There?s also evidence of earlier image-based Captcha tests in the patent record, like this early 2008 application from a company called Binary Monkeys. Here’s an image from the Binary Monkeys Patent: 

And here’s an image from DAD’s patent:

So how did DAD end up with this patent? During patent prosecution, DAD?s predecessor argued that they had a novel invention because the Binary Monkeys application asks users to select ?all images? associated with the task, as opposed to selecting ?one image,? as in DAD?s test. The patent examiner suggested adding yet another limitation: that the user still be granted access to the website if they got one ?known? image and one ?suspected? image. 

Unfortunately, adding trivial tweaks to existing technology, such as small details about the needed criteria for passing a Captcha test, can and often does result in a patent being granted. This was especially true back in 2008, before patent examiners should have applied guidance from the Supreme Court?s 2014 Alice v. CLS Bank decision. That?s why we have told the patent office to vigorously uphold Supreme Court guidelines, and have defended the Alice precedent in Congress.  

Where did DAD come from? 

DAD?s patent was originally filed by a Portland startup called Vidoop. In 2010, Vidoop and its patent applications were purchased by a San Diego investor who re-branded it as Confident Technologies. Confident Tech offered a ?clickable, image-based CAPTCHA,? but ultimately didn?t make it as a business. In 2017 and 2018, Confident Tech sued Best Buy, Fandango Media, Live Nation, and AXS Group, claiming that the companies infringed its patent by using reCAPTCHA. Those cases all settled.

In 2020, Trevor Coddington, an attorney who worked on Confident Tech?s patent applications, created Defenders of the American Dream LLC. He transferred the patents to this new entity and started sending out demand letters. 

They haven?t all gone to large companies, either. At least one of DAD?s targets has been a one-person online publishing company. Coddington?s letter complains about how Confident Tech failed in the marketplace and suggests that because of this, reCAPTCHA users should pay?well, him. The letter states: 

[O]nce Google introduced its image-based reCAPTCHA for free, no less, [Confident Technologies] was unable to to maintain a financially viable business? Google?s efficient infringement forced CTI to abandon operations and any return on the millions of dollars of capital investment used to develop its patented solutions. Meanwhile, your company obtained and utilized the patented technology for free.? 

Creating new and better Captcha software is an area of ongoing research and innovation. While the lawyers and investors behind DAD have turned to patent threats to make money, other developers are actively innovating and competing with reCAPTCHA. There are competing image-based Captchas like hCaptcha and visualCaptcha, as well as long lists of Captcha alternatives and companies that are trying to make Captchas obsolete

These individuals and companies are all inventive, but they?re not relying on patent threats to make a buck. They?ve actually written code and shared it online. Unfortunately, because of their real contributions, they?re more likely to end up the victims of aggressive patent-holders like DAD. 

We?ll never patent our way to a better Captcha. Looking at the history of the DAD patent?which shares no code at all?makes it clear why the patent system is such a bad fit for software. 

Originally posted to the EFF Deeplinks Blog

Posted on Techdirt - 22 June 2021 @ 12:09pm

Changing Section 230 Won't Make The Internet A Kinder, Gentler Place

Tech platforms, especially the largest ones, have a problem?there?s a lot of offensive junk online. Many lawmakers on Capitol Hill keep coming back to the same solution: blaming Section 230.

What lawmakers don?t notice is that a lot of the people posting that offensive junk get stopped, again and again, thanks to Section 230. During a March hearing in the House Committee on Energy and Commerce, lawmakers expressed concern over some of the worst content that?s online, including extremist content, falsehoods about COVID-19, and election disinformation.

But it?s people spreading just this type of content that often file lawsuits trying to force their content back online. These unsuccessful lawsuits show that Section 230 has repeatedly stopped disinformation specialists from disseminating their harmful content.

Section 230 stands for the simple idea that you?re responsible for your own speech online?not the speech of others. It also makes clear that online operators, from the biggest platforms to the smallest niche websites, have the right to curate the speech that appears on their site.

Users dedicated to spreading lies or hateful content are a tiny minority, but weakening Section 230 will make their job easier. When content moderation doesn?t go their way?and it usually doesn?t?they?re willing to sue. As the cases below show, Section 230 is rightfully used to quickly dismiss their lawsuits. If lawmakers weaken Section 230, these meritless suits will linger in court longer, costing online services more and making them leery of moderate the speech of known litigious users. That result could make it easier for these users to spread lies online.

Section 230 Protects Moderators Who Remove Hateful Content

James Domen identifies as a ?former homosexual,? who now identifies as heterosexual. He created videos that describe being LGBTQ as a harmful choice, and shared them on Vimeo, a video-sharing website. In one video, he described the ?homosexual lifestyle? this way: ?It?ll ruin your life. It?s devastating. It?ll destroy your life.?

In at least five videos, Domen also condemned a California bill that would have expanded a ban on ?sexual orientation change efforts,? or SOCE. Medical and professional groups have for decades widely recognized that efforts to change sexual orientation in various ways, sometimes called ?conversion therapy,? are harmful.

Vimeo removed Domen?s videos. In a letter to Domen?s attorney, Vimeo explained that SOCE-related videos ?disseminate irrational and stereotypical messages that may be harmful to people in the LGBT community,? because it treated homosexuality as ?a mental disease or disorder? that ?can and should be treated.? Vimeo bans ?hateful and discriminatory? content, and company officials told Domen directly that, in their view, his videos fell into that category.

Domen sued, claiming that his civil rights were violated. Because of Section 230, Domen?s lawsuit was quickly thrown out. He appealed, but in March, the federal appeals court also ruled against him.

Forcing a website to publish Domen?s anti-LGBTQ content might serve Domen?s interests, but only at the expense of many other users of the platform. No website should have to face a lengthy and expensive lawsuit over such claims. Because of Section 230, they don?t.

Some lawmakers have proposed carving civil rights claims out of Section 230. But that could have the unintended side effect of allowing lawsuits like Domen?s to continue?making tech companies more skittish about removing anti-LGBTQ content.

Section 230 Protects Moderators Who Remove Covid-19 Falsehoods

Marshall Daniels hosts a YouTube channel in which he has stated that Judaism is ?a complete lie? which was ?made up for political gain.? Daniels, who broadcasts as ?Young Pharaoh,? has also called Black Lives Matter ?an undercover LGBTQ Marxism psyop that is funded by George Soros.?

In April 2020, Daniels live-streamed a video claiming that vaccines contain ?rat brains,? that HIV is a ?biologically engineered, terroristic weapon,? and that Anthony Fauci ?has been murdering motherfuckers and causing medical illnesses since the 1980s.?

In May 2020, Daniels live-streamed a video called ?George Floyd, Riots & Anonymous Exposed as Deep State Psyop for NOW.? In that video, he claimed that nationwide protests over George Floyd?s murder were ?the result of an operation to cause civil unrest, unleash chaos, and turn the public against [President Trump].? According to YouTube, he also stated the COVID-19 pandemic and Floyd?s murder ?were covert operations orchestrated by the Freemasons,? and accused Hillary Clinton and her aide John Podesta of torturing children. Near the video?s end, Daniels stated: ?If I catch you talking shit about Trump, I might whoop your ass fast.?

YouTube removed both videos, saying that they violated its policy on harassment and bullying.  

Daniels sued YouTube, demanding account reinstatement and damages. He claimed that YouTube amounted to a state actor, and had thus violated his First Amendment rights. (Suggesting that courts treat social media companies as the government has no basis in the law, which the 9th Circuit reaffirmed is the case last year.)

In March, a court dismissed most of Daniels? claims under Section 230. That law protects online services?both large and small?from getting sued for refusing to publish content they don?t want to publish.

Again, Internet freedom was protected by Section 230. No web host should be forced to carry false and threatening content, or Qanon-based conspiracy theories, like those created by Daniels. Section 230 protects moderators who kick out such content.

Section 230 Protects Moderators Who Remove Election Disinformation

The Federal Agency of News LLC, or FAN, is a Russian corporation that purports to be a news service. FAN was founded in the same building as Russia?s Internet Research Agency, or IRA; the IRA became the subject of a criminal indictment in February 2018 for its efforts to meddle in the 2016 U.S. election.

The founder and first General Director of FAN was Aleksandra Yurievna Krylova, who is wanted by the FBI for conspiracy to defraud the U.S. Later in 2018, the FBI unsealed a criminal complaint against FAN?s chief accountant, Elena Khusyaynova. In that complaint, the FBI said that Federal Agency of News was not so different than the IRA. Both were allegedly part of ?Project Lakhta,? a Russian operation to interfere with political and electoral systems both in Russia ?and other countries, including the United States.?

Facebook shut more than 270 Russian language accounts and pages in April of 2018, including FAN?s account. Company CEO Mark Zuckerberg said the pages ?were controlled by the IRA,? which had ?repeatedly acted deceptively and tried to manipulate people in the U.S., Europe, and Russia.? The IRA used a ?network of hundreds of fake accounts to spread divisive content and interfere in the U.S. presidential election.? Facebook?s Chief Security Officer stated that the IRA had spent about $100,000 on Facebook ads in the United States.

At this point, one might think that anyone with alleged connections to the Internet Research Agency, including FAN, would lie low. But that?s not what happened. Instead, FAN?s new owner, Evgeniy Zubarev, hired U.S. lawyers and filed a lawsuit against Facebook, claiming that his civil rights had been violated. He demanded that FAN?s account be reinstated, and that FAN be paid damages.

A court threw the FAN lawsuit out on Section 230 grounds. The plaintiffs re-filed a new complaint, which the court again threw out.

Small Companies And Users Can?t Afford These Bogus Lawsuits 

Weakening Section 230 will give frivolous lawsuits like the ones above a major boost. Small companies, with no margin for extra legal costs, will be under more pressure to capitulate to bogus demands over their content moderation.

Section 230 protects basic principles, whether you run a blog with a comment section, an email list with 100 users, or a platform serving millions. You have the right to moderate. You have the right to speak your own mind, and serve other users, without following the dictates of a government commission?and without fear of a bankrupting lawsuit. 

Innovation, experimentation and real competition are the best paths forward to a better internet. More lawsuits over everyday content moderation won?t get us there.

Reposted from the EFF’s Deeplinks blog.

Posted on Techdirt - 18 June 2021 @ 12:03pm

15 Universities Have Formed A Company That Looks Remarkably Like A Patent Troll

Imagine this: a limited liability company (LLC) is formed, for the sole purpose of acquiring patents, including what are likely to be low-quality patents of suspect validity. Patents in hand, the LLC starts approaching high-tech companies and demanding licensing fees. If they don?t get paid, the company will use contingency-fee lawyers and a litigation finance firm to make sure the licensing campaign doesn?t have much in the way of up-front costs. This helps give them leverage to extract settlements from companies that don?t want to pay to defend the matter in court, even if a court might ultimately invalidate the patent if it reached the issue.

That sounds an awful lot like a patent troll. That?s the kind of entity that EFF criticizes because they use flimsy patents to squeeze money from operating companies, rather than making their own products. Unfortunately, this description also applies to a company that has just been formed by a consortium of 15 large research universities. 

This patent commercialization company has been secretly under discussion since 2018. In September 2020, it quietly went public, when the University of California Regents authorized making UC Berkeley and UCLA two of its founding members. In January, the DOJ said it wouldn?t challenge the program on antitrust grounds. 

It?s good news when universities share technology with the private sector, and when startup companies get formed based on university research. That?s part of why so much university research is publicly funded. But there?s not much evidence that university patenting helps technology reach the public, and there?s a growing body of evidence that patents hinder it. Patents in this context are legal tools that allow someone to monopolize publicly-funded research and capture its promise for a private end.

While larger tech companies can absorb the cost of either litigating or paying off the patent assertion entity, smaller innovators will face a much larger burden, proportionately. That means that that the existence of this licensing entity could harm innovation and competition. When taxpayers fund research, the fruits of the research should be available for all. 

With 15 universities now forming a consortium to license electronics and software patents, it?s going to be a mess for innovators and lead to worse, more expensive products.

Low-Quality Patents By The Bundle 

Despite the explosion in university patenting and the growth of technology transfer offices (essentially university patent offices), the great majority of universities lose money on their patents. A 2013 Brookings Institute study showed that 84% of universities didn?t make enough money from their patents to cover the related legal costs and the staffing of their tech transfer office. Just a tiny slice of universities earn the majority of patent-licensing revenue, often from a few blockbuster pharmaceutical or biotech inventions. As many as 95% of university patents do not get licensed at all.  

This new university patent licensing company won?t be getting any of the small number of impressive revenue-producing patents. The proposal sent to the UC Board of Regents explains that the LLC?s goal will be to get payment for patents that ?have not been successfully licensed via a bilateral ?one patent, one license? transaction.? The universities? proposal is to start by licensing in three areas: autonomous vehicles, ?Internet of Things,? and Big Data. 

In other words, they?ll be demanding licensing fees over lots and lots of software patents. By and large, software patents are the lowest quality patents, and their rise has coincided with the rise of large-scale patent trolling.  

The university LLC won?t engage in the type of patent licensing that most actual university spinoffs would want, which are typically exclusive licenses over patents that give it a product or service no one else has. Rather, ?the LLC will focus on non-exclusive sublicenses.? In other words, they?ll use the threat of litigation to attempt to get all competitors in a particular industry to pay for the same patents. 

This is the same model pursued by the notorious Intellectual Ventures, a large patent troll company that convinced 61 different universities to contribute at least 470 different patents to its patent pool in an attempt to earn money from patents. 

What about the Public Interest? 

The lawyers and bureaucrats promoting the UC patent licensing scheme know how bad this looks. Their plan is to use patents as weapons, not tools for innovation?exactly the method used by patent trolls. In the ?Pros and Cons? section of the memo sent to the UC Regents, the biggest ?Con? is that the University of California ?may incur negative publicity, e.g., allegations may arise that the LLC?s activities are tantamount to a patent troll.? That?s why the memo seeks to reassure the Regents that ?it is… the expectation that no enforcement action will be undertaken against startups or small business firms.? This apparently nonbinding ?expectation? is small comfort. 

The goal of the patent-based LLC doesn?t seem to be to share knowledge. If the universities wanted to do that, they could do it right now. They could do it for free, or do it for a contracted payment?no patents required. 

The real goal seems to be finding alleged infringers, accusing them, and raising money. The targets will know that they?re not being offered an opportunity?they?ll be under attack. That?s why the lawyers working with UC have promised the Regents that when it comes time to launch lawsuits against one of the ?pre-determined targets,? they will steer clear of small businesses. 

The university LLC isn?t going to license their best patents. Rather, the UC Regents memo admits that they?re planning to license the worst of them?technologies that have not been successfully licensed via a ?one patent, one license? transaction by either UCLA or UC Berkeley. 

To be clear, universities aren?t patent trolls. Universities are centers for teaching, research, and community. But that broader social mission is exactly why universities shouldn?t go off and form a patent-holding company that is designed to operate similarly to a patent troll. 

Patents aren?t needed to share knowledge, and dealing with them has been a net loss for U.S. universities. Universities need to re-think their tech transfer offices more broadly. In the meantime, the UC Regents should withdraw from this licensing deal as soon as possible. Other universities should consider doing the same. The people who will benefit the most from this aren?t the public or even the universities, but the lawyers. For the public interest and innovation, having the nation?s best universities supply a patent-trolling operation is a disaster in the making. 

The fifteen members of the University Technology Licensing Program are expected to be: 

  • Brown University
  • California Institute of Technology (Caltech)
  • Columbia University
  • Cornell University
  • Harvard University
  • Northwestern University
  • Princeton University
  • State University of New York at Binghamton
  • University of California, Berkeley
  • University of California, Los Angeles 
  • University of Illinois
  • University of Michigan
  • University of Pennsylvania
  • University of Southern California
  • Yale University

Republished from the EFF’s Deeplinks blog.

Posted on Techdirt - 24 May 2021 @ 12:10pm

Washington State Has Sued A Patent Troll For Violating Consumer Protection Laws

Landmark Technology, a patent troll that has spent 20 years threatening and suing small businesses over bogus patents, and received EFF?s Stupid Patent of the Month award in 2019, has been sued by the State of Washington.

Washington Attorney General Bob Ferguson has filed a lawsuit claiming that Landmark Technology has violated the state?s Patent Troll Protection Act, which bans ?bad faith? assertions of patent infringement. Following a widespread campaign of patent demand letters, more than 30 states passed some kind of law placing limits on bad-faith patent assertions.

These laws face an uphill battle to be enforced. First of all, the Constitution places important limits on the government?s ability to penalize the act of seeking legal redress. Second, the Federal Circuit has specifically held that a high bar of bad faith must be established for laws that would penalize patent assertion.

Washington?s case against Landmark could be a major test of state anti-troll laws, and whether state anti-trolling and consumer protection laws can dissuade some worst-of-the-worst patent troll behavior.

The lawsuit is filed against ?Landmark Technology A,? a recently created LLC that appears to be largely identical to the now-defunct ?Landmark Technology.? The new company asserts the same patent against the same type of targets. The patent?s inventor is Landmark Technology owner Lawrence Lockwood.

Over 1,000 Demand Letters

Landmark threatens and sues small businesses over U.S. Patent No. 7,010,508, which was issued to Lockwood in 2006 and claims rights to ?automated multimedia data processing network for processing business and financial transactions between entities from remote sites.?

The Washington case reveals just how widespread Landmark?s threats are. From January 2019 to July 2020, Landmark sent identical demand letters to 1,176 small businesses all across the country. Those letters threaten to sue unless Landmark gets paid a $65,000 licensing fee. 

Landmark essentially insists that if you use a website for e-commerce, you infringe this patent. In recent years, it?s filed suit against candy companies, an educational toy maker, an organic farm, and a Seattle bottle maker, just to name a few. 

Or as the Washington State Attorney General put it:

[T]he company broadly and aggressively misuses the patent claims, targeting virtually any small business with a website, seemingly at random. Landmark claims that common, near-ubiquitous business webpages infringe on its patent rights ? such as small business home pages, customer login pages, new customer registration and product-ordering pages.

?Landmark extorts small businesses, demanding payment for webpages that are essential for running a business,? Washington Attorney General Ferguson said. ?It backs them into a corner ? pay up now, or get buried in legal fees. I?m putting patent trolls on notice: Bully businesses with unreasonable patent assertions, and you?ll see us in court.?

According to the AG?s press release, four Washington companies settled for between $15,000 and $20,000 each to avoid litigation costs. The lawsuit seeks restitution for those companies.

The patents created by Landmark owner Lawnrence Lockwood patents have been used in well over 150 lawsuits filed by Landmark Technology and Landmark Technology A; as well as at least 40 cases filed by his earlier company PanIP, which sued dozens of early e-commerce websites by 2003. Given what we now know about the more than 1,000 letters sent just in 2019 and 2020, the litigation record seems like just the tip of the iceberg.

The U.S. Patent and Trademark Office found in a 2014 review that the ?508 patent was likely to be invalid because it didn?t actually explain how to do the things it claimed. However, that case settled before the patent could be invalidated.

The USPTO is an office that labors under industry capture. Its fees are paid by patent owners, and in practice it works for patent owners far too often?not users or small business owners. While review processes like inter partes review (IPR) are useful in restoring some balance to the system, it?s critical that the worst abusers of the patent system be treated as a serious consumer protection problem. It?s certainly worthwhile for states to experiment and try to find ways to deter abuse, within the bounds of due process.

Patent owners who demand licensing fees from hundreds or thousands of individuals based on a patent that clearly should be found invalid, for broadly used web technology, are essentially engaging in widespread extortion, as AG Ferguson states. When patent owners won?t let users set up even a basic, out-of-the-box website without facing a demand letter, it?s not just an economic problem?it?s a threat to free expression.

Republished from the EFF Deep Links blog

Posted on Techdirt - 21 May 2021 @ 12:15pm

How A Camera Patent Was Used To Sue Non-Profits, Cities, And Public Schools

Patent trolls are everyone?s problem. A study from 2019 showed that 32% of patent troll lawsuits are directed at small and medium-sized businesses. We told the stories of some of those small businesses in our Saved by Alice project.

But some patent trolls go even further. Hawk Technology LLC doesn?t just sue small businesses (although it does do that)?it has sued school districts, municipal stadiums, and non-profit hospitals. Hawk Tech has filed more than 200 federal lawsuits over the last nine years, mostly against small entities. Even after the expiration of its primary patent, RE43,462, in 2014, Hawk continued filing lawsuits on it right up until 2020. That?s possible because patent owners are allowed to seek up to six years of past damages for infringement.

One might have hoped that six years after the expiration of this patent, we might have seen the end of this aggressive patent troll. Nope. The U.S. Patent and Trademark Office has granted Hawk Tech another patent, U.S. Patent No. 10,499,091. It?s just as bad as the earlier one, and starting last summer, Hawk Tech has started to litigate.

Camera Plus Generic Terms

The ?091 patent?s first claim simply claims a video surveillance system, then adds a bunch of computer terms. Those terms include things like ?receiving video images at a personal computer,? ?digitizing? images that aren?t already digital, ?displaying? images in a separate window, ?converting? video to some resolution level, ?storing? on a storage device, and ?providing a communications link.? These terms are utterly generic.

Claim 2 just describes allowing live and remote viewing and recording at the same time?basic streaming, in other words. Claim 3 adds the equally unimpressive idea of watching the recording later. The additional claims are no more impressive, as they basically insist that it was inventive in 2002 to livestream over the Internet?nearly a decade after the first concert to have a video livestream. Most laughably, claim 5 specifies a particular bit rate of Internet connection?as if that would make this non-invention patentable.

In order to be invalidated in court, however, the ?091 patent would have to be considered by a judge. And Hawk Tech?s lawsuits get dismissed long before that stage?often in just a few months. That?s because the company reportedly settles cases at the bottom level of patent troll demands, typically for $5,000 or even less. That?s significantly less than a patent attorney would request even for a retainer to start work, and a tiny fraction of the $2 million (or sometimes much more) it can cost to defend a patent lawsuit through trial.

The patent monetization industry includes the kind of folks that can be counted on to sue a ventilator company in the middle of a pandemic. Even in that context, Hawk Tech has taken some remarkable steps.

Hawk Tech has sued a municipal stadium that hosts an Alabama college football team; a suburban Kentucky transit system with just 27 routes; non-profit thrift stores and colleges; and a Mississippi public school district that serves an area with a very high (46%) rate of child poverty. That last lawsuit is one of at least three different public school districts that Hawk Tech has sued.  These defendants would be hard pressed to mount a legal defense that could easily cost hundreds of thousands of dollars.

One type of company you won?t see on the long list of defendants is a company that actually makes camera systems. Instead, Hawk Tech finds those companies? customers and goes after them. For instance, Hawk Tech drew up an infringement claim chart against Seon, a maker of bus camera and GPS systems; then used that chart to sue not Seon, but the Transit Authority of Northern Kentucky (TANK), based on a Seon pamphlet that pointed to TANK as a ?case study.? Instead of suing camera company Eagle Eye, Hawk Tech sued the city of Mobile, Alabama, likely after seeing a promotional video made by Eagle Eye on how the city?s stadium used its camera systems.

The problem of what to do about patent trolls that demand nuisance-level settlements is a tough one. What may be a ?nuisance? settlement in the eyes of large law firms can still be harmful to a charity or a public school serving impoverished students.

That?s why EFF has advocated for strong fee-shifting rules in patent cases. Parties who bring lawsuits based on bogus patents won?t be chastened until they are penalized by courts. We also have supported reforms like the 2013 Innovation Act, which would have allowed customer-based lawsuits like the Hawk Tech cases to be stayed in situations when the manufacturer of the allegedly infringing device steps in to litigate.

Right now, there are two different parties seeking to invalidate Hawk Tech?s ?091 patent and collect legal fees. One is Nevada-based DTiQ, a camera company whose customers, including a Las Vegas sandwich shop, have been sued by Hawk Tech. Another is Castle Retail, a company that owns three supermarkets in Memphis. Let?s hope one of those cases gets to a judgment before Hawk Tech files off another round of bogus lawsuits against small companies?or public schools. 

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

Posted on Techdirt - 19 February 2021 @ 01:34pm

How Oregon's Top Wildlife Official Got Sued Over His State's Hunting App

What if you could get a patent on a new government program? Then, you could ask for the government to pay you royalties just for running that program. Nice work, if you can get it.

Oregon resident Iiley Thompson is the named inventor on U.S. Patent No. 10,257,651, ?Mobile electronic device for identifying and recording an animal harvest.? Shortly after his patent issued in 2019, Thompson?s lawyers sent a letter to the Oregon Department of Justice, suggesting that the Oregon government take a license to his patent.1

Thompson claims that the Oregon Department of Fish and Wildlife?s MyODFW app, which allows hunters and anglers to complete their licensing paperwork on a mobile device, infringes his patent.

Claim 1 describes:

  • Entering animal harvest data (i.e. how many fish of a certain type you caught) into a computer

  • Uploading the harvest data, together with location data, to a second computer (operated by someone else)

  • Checking the data against the maximum allowed by the user?s license

In other words, Thompson patented following state laws, and filing the appropriate paperwork, but you know, connected to a powerful computer network. Claim 2 describes the same system, but specifies a mobile device as the first computer and a server as the second.

On January 22, Thompson filed a lawsuit claiming that MyODFW infringes his patent. But he didn?t sue the state or any of its departments?he sued Curt Melcher, the Director of the Oregon Department of Fish and Wildlife, personally.

Making it Personal

Because of a legal concept called sovereign immunity, you generally can?t sue a state government, or any of its departments, for patent infringement. When I saw the Thompson v. Melcher case as I was going through this year?s first patent lawsuits, it struck me as a possible attempt to do an end-run on sovereign immunity.

I ran this hypothesis by Joshua Landau, patent counsel at Computer Communications & Industry Association, who agreed that it did look like a way to put legal pressure on a state when you can?t sue the state. He pointed me to a 1908 Supreme Court case called Ex parte Young, which suggests just this method to get around sovereign immunity. Plaintiffs can sue a state official who they believe is in violation of a federal law. In this case, because Thompson is barred from arguing that the State of Oregon is violating his patent, he?s saying Melcher personally has contributed to the infringement of his patent.

The Ex parte Young route doesn?t provide a way to get damages, only an injunction, and indeed Thompson doesn?t ask for damages in his lawsuit. If Thompson?s extremely broad claims are valid, in my view, that would basically mean shutting down the MyODFW app.

“It certainly looks like an attempt to put pressure on the state, both through legal expenditures, and by threatening to enjoin a service they provide,” Landau said. “Suing an individual official is a plausible strategy to try to get around state sovereign immunity in some cases, but there are significant open questions.”

Among those questions would be whether or not Melcher has a significant enough connection to the allegedly infringing app. Melcher is a longtime public servant who has served as ODFW?s director since 2015.

Patenting A Government Service Is Pretty Bad

Regardless of who is being sued, Thompson?s patent on e-tagging wildlife is very problematic in and of itself. Most government services aren?t really ?inventions.? So there really shouldn?t be patents on collecting benefits, or getting a certain type of state-granted license, or reporting your taxes. And because of the Alice v. CLS Bank Supreme Court case, similar ?do it on a computer?-style patents should be banned, as well. We shouldn?t be seeing patents that cover ?requesting benefits plus a powerful computer network? or ?sending your paperwork to the government oh but on a smartphone.?

But we do see them all the time, because it?s a broken system. Patent examiners have, on average, 19 hours to prove applicants like Iiley Thompson should not get a patent.2 Applicants get an unlimited number of do-overs, as long as they can keep paying for them.

Thompson?s patent application was filed in 2015. At that date, it was utterly predictable that government services like hunting licenses would continue to move online, as they already had been for many years.

And it wasn?t just predictable in a general sense?it was specifically predictable that Oregon regulators would move their hunting licenses to smartphones. They were already moving other ODFW services to smartphones, and were being as public about it as possible. By late 2014, about a year before Thompson filed his patent application, the Department linked smartphones to its hunting map. This was reported in The Oregonian, the state?s largest newspaper. By mid-2015, ODFW had come out with a fishing-specific app, which was reported in the Klamath Falls Herald and News.

So it?s hardly shocking that in March 2016, ODFW got started thinking about how they could improve their licensing process. The timeline for Oregon?s creation of electronic licensing is laid out in this ODFW PowerPoint.

Notably, Thompson never actually created his own app, at least not one that?s ever been made publicly available. As his complaint states, ?Thompson has never offered nor sold, and has never authorized nor licensed any other to offer or sell, a system or method covered by the claims of the ?651 patent.?

Thompson runs a footwear business in a town just south of Portland, and has an extensive resume of work in that industry, including stints at Adidas and Nike. I asked Thompson to talk about his case to get his side of it, but he declined an interview. I also emailed the public information office at the Oregon Department of Fish and Wildlife, but didn?t hear back.

1 Patent demand letters frequently do not make explicit ?demands,? but rather couch the language in terms of making an ?offer? to license or buy a patent. But, it?s generally understood to be a demand for payment. It puts the recipient officially on notice, which can have other effects, like increasing damages. More examples of demand letters are at

2 Frakes, Michael and Wasserman, Melissa F., The Failed Promise of User Fees: Empirical Evidence from the U.S. Patent and Trademark Office (December 2014). Journal of Empirical Legal Studies, Vol. 11, Issue 4, pp. 602-636, 2014. For something free and more readable, see this 2014 piece in The Washington Post, ?Inside the stressed-out, time-crunched patent examiner workforce.?

Originally posted to the Letters Patent blog.

Posted on Techdirt - 24 April 2019 @ 01:34pm

How Landmark Technology's Terrible Patent Has Survived

Stupid Patent of the Month

There?s an increasing insistence from the highest echelons of the patent world that patent abuse just isn?t a thing anymore. The Director of the U.S. Patent Office, Andre Iancu, has called patent trolls?a term for companies that do nothing but collect patents and sue others?mere ?monster stories,? and suggested in a recent oversight hearing that it was simply name-calling. 

But whatever you call them?trolls, non-practicing entities, or patent assertion entities?their business model, which involves stockpiling patents to sue productive companies rather than making goods or services, continues to thrive. It?s not hard to find examples of abusive patent litigation that make clear the threat posed by wrongly-issued patents is very real.

Take, for instance, the patents that Lawrence Lockwood owns. These patents have been used to sue companies, large and small, for nearly 20 years now. Through his company Landmark Technologies and his earlier company PanIP, more than 100 lawsuits have been filed against businesses?candy companies, an educational toy maker, and an organic farm, to name a few. Because these companies engage in ?sales and distribution via electronic transactions,? or use an automated system ?for processing business and financial transactions,? Landmark says they infringe one of its patents.

Those lawsuits don?t account for the other companies that have received licensing demands, but have not been sued in court. The numerous threats made with Lockwood?s patents are made clear both by news accounts of Lockwood?s activity, as well as the several small business owners that have reached out to EFF after being targeted by Lockwood?s patents. 

Patent Office records show Lockwood first applied for a patent in 1984, but his litigation ramped up after he acquired U.S. Patent No. 6,289,319 back in September 2001. The document describes an ?automatic business and financial transaction processing system,? which Lockwood has interpreted to give him rights to demand licensing fees from just about any web-based business. Upon receiving that patent, Lockwood promptly sent 100 letters to various e-commerce businesses, demanding $10,000 apiece. When that didn?t work, he started filing lawsuits.

For more than 15 years now, some companies have been paying thousands of dollars to license Lockwood?s patents rather than pay the legal fees required to defend themselves. Hiring attorneys to fight the patents would have cost far more, and Lockwood was keenly aware of this leverage.

?Do they really want to spend $1 million and two years of their life to invalidate a patent they can license for a couple thousand dollars?? Lockwood said in 2003, speaking to a Los Angeles Times reporter about his lawsuits. ?People get divorced over this stuff. They have strokes over this.?

Sixteen years and more than 100 lawsuits later, stress and the expenses continue to mount for Lockwood?s targets. Through Landmark, Lockwood continues to demand money from businesses that provide basic e-commerce, although his price has gone up. Companies targeted by Landmark Technology patents in recent years have shown demand letters [PDF, PDF] indicating the company now demands around $65,000 to avoid a lawsuit. 

Not a single court has ever weighed in on the merits of Lockwood?s patent claim, according to court papers [PDF] filed in 2017 by one of his targets. 

Despite some court rulings that have helped cut back patent trolling over the years, nothing has slowed down Lockwood?s broad assault on Internet commerce. This year, through a newly created company called ?Landmark Technology A,? Lockwood?s patent no. 7,010,508?related to the ?319 patent that came before it?has been used to sue two more companies: a specialty bottle-maker in south Seattle, and an Ohio company that sells safety equipment

Based on Landmark?s history, it?s unlikely these two lawsuits will be the last. 

Continuations and Consequences

How did this happen, and how does it continue? Lockwood applied for his first solely-owned patent in 1984, getting it two years later. It describes a network of ?information and sales terminals? that could ?dispens[e] voice and video information, printed documents, and goods,? accepting credit card payments. There?s no evidence Lockwood developed any such network or even had the ability to do so. In fact, Lockwood, a former travel agent, reportedly admitted during a deposition that he had never used a personal computer ?for any length of time,? according to the 2003 Los Angeles Times profile.  

In the mid-90s, Lockwood sued American Airlines for patent infringement, seeking to collect royalties on its SABRE flight reservation system, which he claimed infringed three of his patents. He lost that case when, in 1997, an appeals court agreed with the district court that his patent claims were not infringed and were invalid.

That wasn?t the end of Lockwood?s efforts to make money through patent litigation, though. He continued to get more patents, acquiring Patent No. 6,289,319 in 2001, and 7,010,508 in 2006. Both patents have been used in more than 85 lawsuits, according to the LexMachina legal database. He was able to get those patents despite the fact that they were based on a patent that had been found invalid. Even better for Lockwood, he was allowed to use the ?priority date? of the earlier patent. That means the only prior art that could be used to invalidate the patent would have to be from earlier than that priority date?May 24, 1984. 

Led by a family-owned chocolate shop, a group of small businesses banded together to share legal costs and fight Lockwood?s PanIP. When they put up a website about PanIP?s abuse of the system, Lockwood sued the owner of the chocolate shop for defamation and trademark infringement.

The ?319 patent, which is richly deserving of our ?Stupid Patent of the Month? award, was issued because of a problem we?ve spoken about before?abuse of the continuation process.

The Patent Office allows applicants to file ?continuation? applications with new claims, as long as they?re based on what was disclosed in previously-filed applications. This creates opportunities for applicants to game the system and get patents on advances they could not have developed. For example, even though Lockwood applied for the ?319 patent in 1994, it?s a continuation of the original 1984 application?which means that only prior art from 1984 or earlier can be used to invalidate it. 

Landmark?s complaints demand money from operating businesses, claiming that because their systems process ?business and financial transactions between entities from remote sites,? they infringe the ?319 patent. Their recent complaint [PDF] against Illinois-based Learning Resources, Inc. includes a claim chart [PDF] explaining the alleged infringement, which is a 42-page detailed chart that describes using a computer to order a toy on the defendant?s website. 

That chart makes clear that Landmark?s patent doesn?t claim any particular technological advance?just the basic idea of transmitting data between networked computer terminals.  

This patent should be invalid under Section 101 of the patent laws for failing to claim an actual invention. At best, it describes basic computer technology?like an ?on-line means for transmitting said information, inquiries, and orders?? to exchange information, and respond to orders. That is a ubiquitous and essential part of e-commerce, not a patent-eligible invention.

Right now, lobbyists are pushing for a wholesale re-write of Section 101, which is the best chance of stopping patents like this one early enough in a case to avoid spending hundreds of thousands of dollars on lawyers and expert witnesses. Drastic alterations to Section 101 could leave targets of Landmark in an even worse position?in order to get out of a multi-million dollar lawsuit, they?ll have to find published, pre-1984 prior art describing the precise, nearly indefinable contours of Lockwood?s ?invention,? and invest huge sums on prior art investigations as well as expert witness reports. 

Before lawmakers distort Section 101 so that it?s nearly useless, they should consider campaigns like Landmark?s. It involves an ?inventor? who?s long been focused on litigating patents, not creating new innovations?and who admits to leveraging the high cost of litigation defense against small businesses. Lowering the bar for patent-eligibility even further will do far more to threaten innovation than encourage it.

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

Posted on Techdirt - 1 March 2019 @ 07:39pm

Stupid Patent Of The Month: Veripath Patents Following Privacy Laws

What if we allowed some people to patent the law and then demand money from the rest of us just for following it?

As anyone with a basic understanding of democratic principles can see, that is a terrible idea. In a democracy, elected representatives write laws that apply to everyone, ideally, based on the public interest. We shouldn’t let private parties “own” legal principles or use technical jargon to re-cast those principles as “inventions.” 

But that’s exactly what the U.S. Patent Office has allowed two inventors, Nicholas Hall and Steven Eakin, to do. Last September, the government proclaimed that Hall and Eakin are the inventors of “Methods and Systems for User Opt-In to Data Privacy Agreements,” U.S. Patent No. 10,075,451

The owner of this patent, a company called “Veripath,” is already filing lawsuits against companies that make privacy compliance software. With Congress and many states actively engaged in debates over consumer privacy laws, Veripath might soon be using this patent to extract licensing cash from U.S. companies as well.

Privacy-For-Functionality isn’t an “Invention,” it’s a Policy Debate

Claim 1 of the ‘451 patent describes a basic data privacy agreement. An API provides personal information from a software application; then the user is asked for a “required permission” for the use of that information. There’s one add-on to the privacy deal: in exchange for the permission, the user gets access to “at least one enhanced function.”

The next several claims go on to describe minor variations on this theme. Claim 2 specifies that the “enhanced function” won’t be available to other users. Claim 3 describes the enhanced function as being fewer advertisements; Claim 4 describes offering the enhanced function in exchange for a monetary payment.

To say this “method” is well-known is a major understatement. The idea of exchanging privacy for enhanced functionality or better service is so widespread that it has been codified in law. For example, last year’s California Consumer Privacy Act (CCPA) specifically allows a business to offer “incentives” to a user to collect and sell their data. That includes “financial incentives,” or “a different price, rate, level, or quality of goods or services.” The fact that state legislators were familiar enough with these concepts to write them into law is a sign of just how ubiquitous and uninventive they are. This is not technology this is policy.

(An important aside: EFF strongly opposes pay-for-privacy, and is working to remove it from the CCPA. Pay-for-privacy undermines the law’s non-discrimination provisions, and more broadly, creates a world of privacy “haves” and “have-nots.” We’ve long sought this change to the CCPA.) 

Follow the Law, Infringe this Patent

Veripath has already sued two companies that help website owners comply with Europe’s General Data Protection Regulation, or GDPR, saying they infringe its patent. Netherlands-based Faktor was sued [PDF] on Feb. 15, and France-based Didomi was sued [PDF] on Feb. 22

Some background: Venpath, Inc., a company with a New York address that appears to be a virtual office, assigned the rights in the ‘451 patent to VeriPath just days before the patent issued in September last year. As it happens, the FTC began enforcement proceedings against VenPath last September. The FTC’s complaint [PDF] alleged that VenPath’s website represented that “VenPath participates in and has certified its compliance with the EU-U.S. Privacy Shield Framework.” The FTC alleged a count of “privacy misrepresentation.” It claimed that VenPath “did not complete the steps necessary to renew its participation in the EU-U.S. Privacy Shield framework after that certification expired in October 2017.” The FTC issued a Decision and Order [PDF] requiring VenPath to remove the misrepresentations. 

An exhibit [PDF] attached to the complaint shows that one of the named inventors on the patent, Nick Hall, contacted Faktor to ask what its prices were. Hall identified himself as the CEO of VenPath. Once Faktor responded, Veripath sued Faktor in federal court in New York.

In its lawsuits, Veripath claims that basic warnings about cookies on websites, a now-common method of complying with the GDPR, violate its patent. The lawsuit against Faktor notes that Faktor’s own website “might not work properly” unless a user consents to having her browser accept cookies.

Veripath and its legal team argue that this simple deal?accepting cookie use, in order to visit websites?is enough to infringe the patent. They also claim that Faktor’s Privacy Manager software infringes at least Claim 1 of the patent, and facilitates infringement by others. 

The ‘451 patent should never have been granted. In our view, its claims are clearly ineligible for patent protection under Alice v. CLS Bank. In Alice, the Supreme Court held that an abstract idea (like privacy-for-functionality) doesn’t become eligible for a patent simply because it is implemented using generic technology. Courts have struck down similar claims, like a patent on the idea of conditioning access to content on viewing ads. 

Even when a patent is invalid, defendants face pressure to settle. Patent litigation is expensive and it can cost tens or hundreds of thousands of dollars just to get through the early stages. To really protect innovation we have to ensure that patents like the ‘451 patent are never issued in the first place. The fact that this patent was granted shows the Patent Office is failing to apply the law.

We are currently urging the public to tell the Patent Office to stop issuing abstract software patents. You can use our Action Center to submit comments.

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

Posted on Techdirt - 31 January 2019 @ 08:09pm

Stupid Patent Of The Month: IBM's Software Patent On Texting And Driving

In the smartphone era, “distracted driving” is a serious, and well-known, problem. Official warnings about poor driving habits are as old as the automobile itself. The New York Times published a Pulitzer-winning series on distracted driving back in 2009.

Increasingly, technological assists are available for those seeking to manage their smartphone’s distractions while in the car. Apple integrated a “do not disturb while driving” mode into iOS 11, and Google has long had similar functionality in its Android Auto app. Multitudes of third-party smartphone apps exists to address the issue. Finally, more than 50 companies are working on what may be the ultimate solution to distracted driving: autonomous vehicles.

Unfortunately, the U.S. patent system creates warped incentives for emerging software fields like road-safety features. Rather than competing in a challenging space, some players are seeking broadly-worded patents, then hope to sit back and extract profits later.

That may be the strategy of the International Business Machine Corp., which has acquired more U.S. patents than any other company for decades now. This week, IBM was awarded U.S. Patent No. 10,191,462, describing a “Vehicle electronic receptionist.”

IBM likely has the resources to make technology to manage communications while driving. But the ‘462 patent describes nothing of the sort. Instead, IBM’s patent simply describes a computerized decision-making process.

The patent’s Claim 1 describes a computer system that determines the “driving context” of a vehicle; analyzes an incoming communication; and then determines an “electronic action” in response, considering various weights and risk factors. The electronic action could be “taking a message, providing a silent or audible notification? [or] providing an automated response.”

Other claims add more layers to the analysis, like considering road conditions, doing voice analysis on a voicemail, or considering whether a passenger is sleeping before deciding to put a call through.

Essentially, IBM has described a futuristic car computer system that will analyze the driving conditions and the context of an incoming text or call, then use some unspecified type of AI to decide what to do about the communication. The specification is filled with empty platitudes typical of software patents, like “[t]he computer system may be described in the general context of computer system executable instructions, such as program modules, being executed by a computer system.” Aside from hand-waving like this, the patent has essentially no information about how one would actually create the claimed system.

IBM: Ignore the “Troll Scare”

Some of the claims describe good ideas that could be useful parts of automotive software in the future. But the patent is just that?a list of ideas, not instructions for executing the ideas or creating anything. IBM’s patent offers no code, no algorithms, not even a vague description of how the rules might work.

We’ve seen this problem before, in which the Patent Office awards a patent not to the first proven inventor, but to the first applicant who describes a task using technological and legal jargon that patent professionals respect. The Patent Office and the Federal Circuit have been far too willing to approve patents that merely state the idea of applying rules without even specifying what those rules are. The public gains nothing from companies getting patents on the mere idea of using an algorithm to solve a particular problem. Patents like the ‘462 patent leave all of the hard work?actually writing, debugging, and deploying software that solves the problem under real-world conditions?as an exercise for the reader. And they allow IBM to exclude the public from making or creating any of the wide range of algorithms that these broad patent claims could ensnare.

In our view, IBM’s new patent should fail under the Supreme Court’s Alice v. CLS Bank decision, which holds that you can’t patent basic decision-making processes by adding references to generic computer hardware and software. Given that, it may come as no surprise that IBM is lobbying to throw out the Alice precedent. In a recent interview, top IP executives from IBM explained their plans to demolish Alice by getting Congress to re-work Section 101 of the patent laws, which bars abstract patents. “Every time we try to enforce a patent, we get a 101 defense that comes back at us,” said IBM Chief Patent Counsel Manny Schecter. IBM VP Mark Ringes said he’s hearing “positive messages from Congress” about changing Section 101 to better suit big patent owners.

Ringes went so far to claim that the “troll scare is largely just noise now.” That assertion flies in the face of the patent litigation landscape. By one estimate, about 90 percent of patent lawsuits filed last year in the tech sector were filed by non-practicing entities. IBM appears to be downplaying the damage done by patent trolls because its business interests have become aligned with them. IBM collected more than 9,000 patents in 2017 alone. It uses that massive storehouse of IP to fuel a licensing business that earns more than $1 billion per year

In some cases, that means IBM can let other companies battle for dominance in a particular sector, then step in and demand licensing payments when it’s clear who can pay. There’s less need for IBM to build new social media apps, when the company can use a patent threat to collect $36 million from Twitter right before its IPO. There’s less need to build an e-commerce business, when IBM can sue Amazon over an “electronic catalog” patent that dates back to 1994.

Make no mistake: IBM has an incentive to pile up overly broad patents like this one because these patents might allow it to extract revenues from other companies’ future products. A broken patent system encourages companies to use patents, rather than products, to assure dominance in key sectors like driving communications and autonomous driving. Getting rid of Alice would only make the system worse and lead to another flood of do-it-on-a-computer patents. We hope Congress agrees.

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