Joe Mullin is probably the country’s leading out-of-the-beltway journalist who regularly covers patent law issues. He writes for ArsTechnica and tends to take favor defendants (accused infringers) in his stories, although not as much as his colleague Timothy B. Lee.
Mullin’s recent story on the Newegg patent trial and Erich Spangenberg is a really interesting read.
Timothy B. Lee has a clear anti-patent agenda, which overlooks hard core facts. He also does not have a good understanding of what a patent is, based on what I have heard at different panel discussions he has moderated or been a part of. It’s surprising that people are even reading what he has to say, and even sad that a reputable newspaper such as the Washington Post has hired him.
Based on Mullins summary of the expert testimony, it appears that Newegg has made at least a 102 or 103 argument for finding invalidity based on so-called “secret prior art” (the old 102(g)(2)) (in addition to some straight up anticipation arguments). Can anyone confirm or direct me to Newegg’s briefing on that issue?
There’s something that happens to some people once they earn a certain amount of money and come to believe that they are “successful” by some common criteria (e.g., the size of their bank account, or the value of their house). They convince themselves that their “success” is due solely to the fact that they are “smarter” or “harder working” than other people. Those who dare suggest that maybe there was perhaps some luck involved (e.g., timing) or something at all unseemly about the manner in which their wealth was obtained must therefore be “jealous” or “ignorant” or worse. It’s hardly a universal sentiment shared by the most privileged among us, but, sadly, it’s not exactly uncommon either.
Down below J Nicholas Gross accused myself (and others) who criticize the behavior of Spangenberg and his patent trolling ilk of being “clowns”, ignorant of patent law, and “jealous” of Spangenberg. That was pretty funny.Nobody will be surprised to learn that J Nicholas Gross appears to be something of a Spangenberg wanna-be himself. Here’s an example of Gross and Phoenix, a company that Gross “worked for” as a patent prosecutor (and apparently also as “the threatening letter writer guy”, at least), getting spanked by Judge Patel for failing to understand the concept of privilege and how it relates to patent cases:link to jenner.com…Note the terms used by Patel throughout the order to describe Phoenix’s behavior and arguments: “unacceptable” “ill-founded” “nonsensical” “unrealistic” “awkwardly sidesteps the fact” “arguments … set up a straw man” “Gross is indubitably involved in the sort of decision-making that disqualifies him from having access to Wells Fargo’s confidential information” “Phoenix has already crossed the line” “disingenuous” “sleight of hand” “omitted “no convincing basis for Phoenix’ proposition”, etc. etc.Another amusing tidbit:link to leagle.com…The irony of Phoenix’s opposition to defendant’s motion for leave to file a first amended answer, both in terms of its timing and its substantive allegation of undue delay, is not lost on the court. The court is hopeful that this too is not lost on Phoenix. (<– Ya just gotta love Judge Patel.)Most of the junk patents that Phoenix was asserting were tanked and found invalid (surprise!). So … who are the “clowns” who “don’t understand patent law”? Who’s “jealous” of Spangenberg? Please come back, Nick, and share more of your “insights” with us all.
Heh, well I just now “remembered” why J Nicholas “You’re Just Jealous of Spangenberg” Gross sounded so familar. Nick is the “incremental innovator” who sued Netflix because they improved their service in an incredibly obvious way. And lost, bigtime.link to patentlyo.com…This case involves a classic “improvement patent†scenario. Nick Gross was a longtime Netflix user when he came-up with the idea that the service should provide additional user notifications — such as when the movie queue runs dry. Just before filing suit, Gross and partners formed Media Queue as a holding company. Media Queue then sued Netflix, Blockbuster, and others for patent infringement. Nick is also a patent attorney and a nice guy.I think a “nice” guy would have just sent a message to Netflix’ suggestion box or found another service rather than filing a junk lawsuit and trying to rake in some cash (maybe Nick really needs money — any bets on that?). But, hey, critics of this sort of behavior are all just “jealous” of guys like Nick. At least, that’s what Nick seems to think.Whatever happened with the Media Queue request for en banc rehearing of the denial of Media Queue’s attorney fees in that case?
Yet another great moment in the proud history in the magnificent career of J Nicholas “You Clowns Are Just Jealous of Spangenberg” Gross. This one involves yet another “patent assertion entity” (this time named “Phoenix” — so cool!) in which Gross apparently had at least a “security interest” according to the assignment database:http://www.allthingspatent.com…link to bartlit-beck.com…A federal appeals court has upheld a win for DirecTV Group Inc. in a patent infringement suit brought by Phoenix Solutions Inc. claiming DirecTV’s customer service telephone system infringes four patents for speech recognition technology. The U.S. Court of Appeals for the Federal Circuit tossed Phoenix’s appeal with a single word — “affirmed†— on Wednesday, two days after oral argument. …The hearing before the Federal Circuit did not go well for Phoenix — its argument hinged on proving that DirecTV “used†the calling system. The quickly exasperated judges on the panel asked why Phoenix did not structure the suit differently, as it was clear to them that DirecTV’s customers used the system by calling it.Apparently the judges weren’t exasperated enough to slap some sanctions down. That’s too bad. So, um, who’s “jealous” of Spangenberg?
More excellent Joe Mullin reporting on another patent troll ground into dust:link to arstechnica.com…In her ruling (PDF) issued late Friday, US District Judge Denise Cote noted that Lumen View was trying to patent “matchmaking,” a practice that is literally ancient. She cited the patent specification, which included examples like “having a computer match employees and employers whose desired attributes and intensities of preferences mutually align.” Another brainstorm from the patent is having a computer match “college applicants and … colleges seeking applicants,” according to their preference data.”There is no inventive idea here,” she wrote in her order. “Having two or more parties input preference data is not inventive. Matchmakers have been doing this for millennia… It is merely a mathematical manifestation of the underlying process behind matchmaking: determining good matches. Nothing in the ‘073 patent evinces an inventive idea beyond the idea of the patent holder to be the first to patent the computerization of a fundamental process that has occurred all through human history.”Truly the best judges are starting to “get it” (with help from lawyers and a general appreciation by more and more people as to how pathetic this computer-implemented garbage is). Congrats to Judge Cotes and here’s hoping she’ll be sitting on the Federal Circuit instead of one of the fossils who believe that computers are magical and that describing a specific if-then function is the “essence of electronic structure.”You know what else is “ancient”? Created customized proposals for potential customers. Also using information around you to determine how to drive your car. Just sayin’. Is anyone at the PTO listening?
link to arstechnica.com…An amusing update from the last day of the Newegg trial.Diffie’s testimony [on behalf of Newegg] went on some time, but he seemed to have the jury in the palm of his hand. A few jurors laughed at his jokes and smiled, and the more serious ones were certainly focused on his testimony. After about two hours, Albright passed the witness.And then TPQ’s attorney attempts a character assassination of Diffie, basically accusing Diffie of lying “under oath” about his role in the invention of public-key cryptography. Nice try?
The “expert” for Spangenberg is Tom Rhyne who runs a “Patent Expert Witness Bootcamp” and who has testified in other junk patent cases in East Texas including the infamous “Clear with Computers vs. Hyundai” case. That piece of junk related to “a computer system for generating a customized proposal to facilitate a sale of a tangible product.” Wow. It’s “customized” — can you imagine? And it’s for the sale of a “tangible” product. Because that matters somehow.
Maybe not the best thread in which to post this, but here’s a link to news that Canadian PAE “Rockstar” is going after Google, Samsung, and others:link to cbc.ca…Rockstar’s CEO is quoted as saying that:”The companies being sued are competitors of Rockstar’s owners, but Veschi insists U.S. Department of Justice rules prohibit those owners from having a say in who Rockstar targets.”I’m not sure what he’s talking about, does anybody know? I was always of the belief that any infringer could be targeted at the discretion of the patent owner, and that the mechanics of the patent owner’s decision-making would be governed by its governing documents and local laws.Does the consortium somehow constitute a de jure monopoly according to DOJ? Would it be somehow anti-competitive because there is such a big block of heavy-hitters in the consortium?And precisely what does “a say” mean? They can’t make recommendations? They can’t be consulted? They can’t supply the results of their own research?
Google’s technology for matching relevant advertising to a user’s search terms was actually patented by Nortel. Heckuva job, PTO. What an incredibly broken patent system we have.
What should be written is an article why Benson should be expressly overturned. Benson is a joke. A shameful unethical immoral joke.
“What should be written is an article why Benson should be expressly overturned”I agree. I need something to shoot down this week since it is so slow in patent news.
http://www.marshallnewsmesseng…Baldauf asked the jury to please examine the patent closely. “You won’t see any mention of SSL, RC-4, e-commerce, the Internet or Worldwide web and you’re certainly not going to see anything of encrypting credit card information,†he argued. “It’s just not there.No mention of the Internet? Or encrypting credit card information? How odd that a “genius” who was thinking about “e-commerce” before anyone else would fail to acknowledge the existence of the Internet or credit card information in his patent.Then again, this is the same “genius” who wrote (with the help of his able attorney, of course, who was surely just as much in possession of this awesomely broad concept as Jones) the following summary of the Invention in the Abstract:”A modem suitable for transmitting encrypted data over voice-grade telephone line. The modem is implemented by the combination of integrated circuit components including a microprocessor, a serial communications controller which communicates with connected data terminal equipment, and a modulator/demodulator for translating between voice band tone signals and digital data.LOL.
Fenster described the inventor of the patent, Michael Jones, as a hard worker. “He doesn’t have all these fancy degrees,†said Fenster. “He’s a hard worker, creative, smart, an innovative guy, and he loves technology. … He’s great at recognizing problems of the future and finding solutions,†said Fenster. “He thought things would need to be paid for electronically,†said Fenster, noting that it was a remarkable idea in 1986.Uh, no it wasn’t. Things were paid for “electronically” before then and people were aware of the role that computers could play in finance. “He knew no one would give their credit card information online unless it was safe and secure.â€Wow, that’s some real “genius” right there. It’s also false, of course, as stated, but hey let’s not quibble. This is a jury trial in Texas after all. Still curious as to why this “genius” Jones couldn’t figure out on his own that he invented e-commerce. Very odd. Maybe he’s some kind of Rainman savant.
How many times do you need to be sanctioned in Federal Court to be disbarrred in Texas? Anyone done any research on that question?
link to ifttt.com, it’s like an invitation to start infringing someone else’s junk patent.Is the PTO aware of this? Seems like your typical Internet-enabled algorithm patent just got even more obvious than it already was (which was pretty effin obvious).Or will the True Believers in Incremental Innovation continue to maintain that any computer-implemented invention that isn’t anticipated by the use of the exact words in the claim must be patentable? Because “claims as a whole”. Or something.Also, totally awesome that they refer to the algorithms as “recipes.” Icing on the cake. LOL.
Target had a website; Target got sued by TQP. It got out of the case by paying $40,000….Dodge & Cox, a mutual fund, paid a bit more than $25,000. Pentagon Credit Union paid $65,000. QVC paid $75,000. MLB Advanced Media paid $85,000. PetSmart paid $150,000. PMC paid $400,000. Cigna paid $425,000. Bank of America paid $450,000. First National paid $450,000. Visa paid $500,000. Amazon, Newegg’s much larger competitor, paid $500,000. UPS paid $525,000. IBM paid $750,000. Allianz Insurance paid $950,000. Microsoft paid $1,000,000.I wonder how many of the decision-makers in these companies (the people who decide whether to give Spangenberg money or not) consider themselves “friends” or “admirers” of Spangenberg’s. Obviously there are many, many, many other companies that could be sued (every company selling stuff online, right?) … but what about those who are not being sued? Perhaps because friends of Spangenberg’s are on the boards of those companies? Isn’t that how “the real world” works? Maybe not in this case because it’s really about this “genius” Jones and his awesome contribution without which we’d never have “e-commerce”. Perhaps that information will leak out during trial as well.I wonder how Target managed to get off relatively easily? It’d be great to hear from them about their experience with Spangenberg, assuming they didn’t sign away their rights to comment on their deal.My bet is on Spangenberg losing this one bigtime, with sanctions. It’ll be fun to watch.
“My bet is on Spangenberg losing this one bigtime, with sanctions. It’ll be fun to watch.”Remind me never to consult you for anything where any kind of objective thinking is required
Remind me never to consult you for anything where any kind of objective thinking is requiredI’d never do any consulting for you so you don’t need to be reminded of anything.As for “objective thinking,” the case is far from over. I’ll grant you I would love to see sanctions. But from a statistical viewpoint, you’d have to agree that Spangenberg is more likely to get spanked than a random patent litigator. You understand why, don’t you, Nick?
Brad Burnham:link to usv.com…We have all benefited from the extraordinary innovation delivered first by the independent software industry and more recently by the web services industry. In both cases, this innovation was a direct result of the ability to innovate without permission. Nathan [Myrhvold, of Intellectroll Ventures] proposes to replace this world of decentralized innovation on open platforms with one dominated by a new gatekeeper, “intellectual property market makers”. In this world, young companies, may not need to ask permission of Dell, Microsoft, or Verizon, before they launch a new web service, but they will have to negotiate with Nathan’s firm to as he puts it “get all the patents they need to roll out an innovative product faster and at the same time reduce the risk that they’ll miss a necessary license and get blindsided by an infringement suit” This is not a good idea.Clearly, Brad is just a wannabe thief with no respect for property. Plus he’s surely jealous of Nathan Myhrvold because he’s awesome and super dooper rich, unlike Brad./deep-thinking from the patent troll defenders off
http://www.scientificamerican….And now for something completely different…
Good article. I like this quote:”Patent offices around the world should tighten standards to ensure that only inventions truly worthy of protection receive it, thereby reducing the amount of litigation involving flawed patents.”
Ned,If (and that’s a mighty big if) the proper discussions on tightening standards would be held – that is by the legislature with pro’s and con’s being objectively discussed, then (and only then) would you have my respect for such a comment.As it is, the comment is being geared to judicial activism in order to rewrite the law.Sorry, but that does not – and cannot – have my respect.
I rather like that article NWPA, first it shows the simplistic thinking by many of the few proponents of the patent system left (outside the bar) are gradually coming around as well. It also shows off how many blatantly unsupported assertions their positions rely on currently. “atent offices around the world should tighten standards to ensure that only inventions truly worthy of protection receive it, thereby reducing the amount of litigation involving flawed patents. “The above quote is from your article. Apparently he doesn’t understand that disallowing software patents is just patent offices around the world tightening the standards to ensure only inventions truly worthy of protection receive it, thereby reducing the amount of litigation involving flawed patents. “Most people agree that inventions like new microphones should be patentable. But today many academics, venture capitalists, policy analysts and others are questioning the value of patent protection for other sorts of inventions, such as software, which are created in industries where product cycles are short, up-front investments are lower and time to market plays a central role in market success.”I love how he brings this up and then never goes into it, what so ever.
Software is equivalent to firmware and is equivalent to hardware.Deal with that fact.And no Ned, your vacuous “1” argument merry-go-round should be avoided. “1” is not software. Software is copyrightable, and to be copyrightable, it must be captured in a tangible media, which necessitates structure, and the exceptions to the printed matter doctrine control the legal position that the structure so captured has patentable weight. Software is a manufacture and a machine component. It does not exist ‘in the mind.’ It is not ‘math,’ as ‘math’ is not copyrightable. It is not a ‘non-Useful art’ as it is beyond argument that software is created to do something, to have some usefulness. So let’s not even attempt to climb on that ride, since you have refused to take that discussion to its next logical step repeatedly.
anon, so software is equivalent to hardware?Describe the structure of a “1.”
Ned, what is the structure of an electron?Ned, does it take structure to represent information? Or can information be magically represented? Can information be magically transformed?Must you lot resort to every dirty trick in the book.Ned, what is the structure of a Higgs boson?Ned, can machines with the same structure perform different functions?
I’ve been dealing with it for the last several years. Or didn’t you notice all these tasty decisions comin’ out?
You have been avoiding it for years and avoiding figuring out what the ladders of abstraction are. Or more accurately denying your understanding in order to please your masters.
Oh yes, I’m the one plainly “avoiding” “it” and “avoiding” “figuring out” some other things that aren’t even well published on, and which I understand just fine to the extent I’ve seen them published on. Just plain ol’ evil over here. Tell you what though, if you’d like to personally instruct me I will sit by your knee for a bit. Even longer if you will then sit by mine for but a brief moment. You know just so we can stop talking about this on the interbuts and instead have a conversation face to face where you’re not quite so free to just ignore what you don’t like, and I’ll be free to directly answer your questions and “integrate” your position into my own in a very acceptable manner to all involved. I was going to hold off calling you batsht insane re your first sentence, but your second one is a pretty clear indication that you’ve clearly descended into madness. Apparently you think I’m “pleasing some mysterious master”. Whom do you think are my “master” and why on earth do you think my actions please them?
“some other things that aren’t even well published on, and which I understand just fine to the extent I’ve seen them published on”Quite some serious mistakes there 6. I gave you chapter and verse of well respected patent treatises that you should be able to put your hands on AND you have repeatedly gotten the MIT item incorrect, notwithstanding multiple corrections of you by yours truly.The only ‘madness’ here is your continued desire to misunderstand what the references are actually saying.
“you have repeatedly gotten the MIT item incorrect, notwithstanding multiple corrections of you by yours truly.”Ahhh yes, I’m supposed to take patent jebus’s word for it on what it says rather than taking it at face value. Nevermind that patent jebus is here to usher in a new era of patents relying heavily on his “interpretations” of what experts have said.
6, your attempt to copy the religiously derogative term that was initiated by Malcolm and blocked repeatedly by Prof. Crouch only proves the point of your lemming ways.Try to think and try to be less offensive.
“… and blocked repeatedly by Prof. Crouch ..”Really? Because it’s all still in the archives. This little nugget was the funniest:Patent Jeebus can slice bread into infinitely thin slices that only Patent Jeebus can see. That’s why he has endless slices to hand out here.
Your choice of responses and being offensive is a bit sad Leopold.Perhaps you should focus on adding substantive matters to the conversation instead.
Who am I offending, anon? You? Disciples of Patent Jeebus? Because I doubt that any Christians with any sense of humor at all are offended.
Yes Leopold, I find such profane use of a deity to be offensive.Please stop.
I find such profane use of a deity to be offensive.Then stop acting like one.
jebus has been blocked by D? D’s engaging in patentreligious protectionism? I’m not sure that you two understand why the term is being used. The term is being used to describe you because you come, under your own authority, proclaiming your “truth” and expect everyone else to just jump on your bandwagon.
More than anyone here 6 I have provided external authorities, so (once again) you are wrong.External authorities like case cites and authorities like Donner and Slusky. You know 6, the ones you cannot bother to find and educate yourself with.
More than anyone here 6 I have provided external authoritiesPatent Jeebus is back! Bow down!
Are we really going down this path – again?
Right, external, unseen ones, just like the big J historically used his “visions” etc to support his own arguments from authority. The analogy continues to hold even better than before.
Must you play the thug. You had such promise.
Who are 6’s “masters”, NWPA?
The ILLUMINATI OF COURSE! If you put your tinfoil hat on for a second and block out their mind-waves you’ll see it very soon!
6’s masters are the powers that be that would tear down our patent system. 6 obvious has chosen the path of not thinking for himself. It is a tough path to think for yourself and reason from first principles. 6 was on such a path but broke off.You MM are past hope and represent the darkness of the human spirit.
You MM are past hope and represent the darkness of the human spirit.That’s heavy, man.
Except isn’t it odd that the country with—BY FAR–the most software innovation has software patents. And, the number two country Germany relies heavily on U.S patent protection and does a lot of their development in the U.S.You people just can’t reconcile macro realities with your fantasy arguments.
“Except isn’t it odd that the country with—BY FAR–the most software innovation has software patents.”Yeah I know, as Mike the economist dude over at Techdirt has hypothesized it is very likely that patent protections (protectionism actually) follow after innovation starts widely occurring in a field. I whole heartedly agree. “You people just can’t reconcile macro realities with your fantasy arguments.”I don’t know w t f you’re talking about, I “reconcile” the “macro reality” with my “arguments” all the time. I understand quite well that you very much would like protectionist policies akin to those we have in the useful arts for the software arts as well. That’s easily “reconciled”. If there’s something else you feel like is not “reconciled” then please bring it to my attention. As to whether or not such protections are really needed, would be of any benefit to anyone except the person seeking protectionism, produce more harm than good, are currently valid under the law, or are even constitutionally permitted in this country is a very different matter.
So, now you are saying that software/hardware/firmware is not useful?Please respond without using software/hardware/firmware.
“So, now you are saying that software/hardware/firmware is not useful?”What on earth makes your bring up that red herring/strawman?
“What on earth makes your bring up that red herring/strawman?”My guess would be your asinine attempts to portray the software arts as outside of the useful arts.Just a guess (but I think a pretty darn good one).
Brother, again, I’m making a simple finding of fact. Don’t you remember the reference about the useful arts and sciences where computer related things were put over in the sciences away from the useful arts?
Your labeling of software as a non-useful art has no (read that as absolutely zero) basis in fact.
Etymology of any given phrase or word is a fact brosefus.
“Mike the economist dude over at Techdirt”One massive LOL at you following the lemming path up that hill, 6.
Well anon what’s your take on the follows/precedes hypothesis? How many countries were not advancing, implemented a patent regime and were then transformed into a powerhouse of innovation where they were not previously? If you know of some, please to be letting me know. Because the only ones I’ve seen are the ones that are from hundreds of years ago, where the implementation of a patent system may or may not have caused the explosion in innovation. On the other hand there are example after example after example of IP laws either following industrialization or being forced on countries that didn’t adopt them of their own accord. I mean let’s be clear, I’m all for seeing some evidence. My position on this matter is far from set in stone. Just the available evidence I’ve seen seems to point in one direction only. I’m willing to hear your side out in full.And I should also note that I have no problem with a patent system being implemented for the traditional useful arts, even after the fact of development. For the reason stated in the constitution, as it happens.
LOL – how many countries…?You almost sound like you want to join the anti-patent search party (that has never come back with even a single example). So please, 6, find me that single example of a modern advanced country that has decided to chuck all of their IP laws and that have ‘seen the light.’I will not be holding my breathe.
Nobody’s saying that they should “chuck all of their IP laws”. I can of course point you to one that “chucked software patents”.
Is that the same one that has the wiggle room of “per se” and “as such”?
We’ll see how it plays out.
Hey look, an even better article:link to washingtonpost.com…Anon will like that one, it has someone using his beloved GAO report for an attack.
This is the first comment after the article: (Yes, they are doing it so they can take our software.)Let’s be clear that this is essentially about the government of New Zealand, hardly an international power-house of software innovation, granting domestic companies permission to ignore software patents. It’s a direct attack against the companies which innovate most in software, for instance major companies in the US and UK.
huzzah?
Must you continue to soil my posts.
Amen?
the companies which innovate most in software, for instance major companies in the US and UK.Wait a minute. I thought those companies were just copiers who steal all their ideas from the “little guys”, without whom we’d revert to a purely agrarian society?
You (and 6) were graciously invited to abstain from using any innovations that included software.To make a crack now about ‘agrarian society’ is amazingly duplicitous.
To make a crack now about ‘agrarian society’ is amazingly duplicitous.It’s called sarcasm. The comment was made in mockery of your childish and pointless “invitation”. But go ahead and keep reminding everyone of your “invitation.” Only the hardcore kool-aid drinkers like yourself find it persuasive or meaningful. Nobody with half a brain actually believes that software or business method patents are necessary for software or business methods to keep improving. Only people like you believe that. You know, the same kind of people who spent years trolling this blog using hundreds of different pseudonyms while pretending not to. Until you were outed. Or have you forgotten that already?