Verdict and Settlement

By Dennis Crouch

Cassidian Communications v. microData GIS (E.D. Tex. 2013). Last week an Eastern District of Texas jury found all of Cassidian’s asserted “multiple-call-center” claims invalid. See U.S. Patent No. 6,744,858. According to Michael C. Smith, the E.D. Texas results for 2013 are “four plaintiff verdicts in fifteen infringement trials this year.”

Meanwhile, Princeton Digital Image settled another infringement case. This time with Toys R Us. PDI’s patent is US Patent No. 4,813,056 that allegedly covers “encoding image data into JPEG files for the purposes of producing JPEG images of products” for use on a website. The Patent was originally owned by GE and has now expired. PDI is in the process of collecting back-damages.

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

56 thoughts on “Verdict and Settlement

  1. What a literal CRPfest from Malcolm.You really need to get into a profession in which you can believe in the work product.

    1. You really need to get into a profession in which you can believe in the work product.Right. Then I’ll be really happy. Like you.LOL.

  2. One thing not mentioned here is why the jury found the claims to be invalid. Is there any information available on that (aside from looking it up in PACER)?By the way, the call center patent had gone through an ex parte re-exam from 2006 to 2008.

    1. the call center patent had gone through an ex parte re-exam from 2006 to 2008Which just shows how inept the USPTO is when it comes to tanking this junk. You can read the Markman brief here:link to tx.findacase.com…Key passage: “When claim 1 was initially rejected in reexamination, the patentee amended claim 1 to recite that the plurality of remote terminals were “each associated with one of a plurality of call centers.” “WOW! What an incredibly non-obvious limitation for a “communications system” allegedly designed to handle emergency calls. Really technologically advanced stuff there.If you read the Markman order, you also note that most of the fighting about the claims was about the content of the information being passed through or stored within the “system.” That was the case even for the system claims. And that is absurd. Again: our patent system is a joke and, as might be expected, the jokes they tell in Texas are the biggest jokes in the country.My question is: where are the sanctions against the plaintiffs for wasting everyone’s time with this junk? Where are the defendant’s attorneys fees?

      1. Sure. So, all information is just information and all information processing is just information processing. OK. All equivalent. Like when a justice renders an opinion that is the same thing as when you decide to turn the t.v. channel.

  3. From the ‘858 patent:1. An emergency services communication system, comprising:a plurality of remote terminals for enabling emergency services operators to receive incoming calls and to dispatch emergency service personnel in response to said incoming calls;You can see the junkiness right away. What possible difference could it make for patentability what kind of information is passed through this “communication system”? Is the patent infringed if it’s not a “real emergency” that’s being communicated? How does an “emergency services operator” differ structurally from any other kind of “operator”? This is where the USPTO miserably and utterly fails, day in and day out. And it’s the weak point consistently pressed upon by the trolls, grifters and exploiters trying to line their pockets with everyone else’s money.

    1. Now, MM (paid blogger boy), read what you wrote, read Benson, and get a clue that Benson has caused the problem you are complaining about. But, you are probably either not smart enough or your mind has been so bent by your unethical conduct that you will not be able to figure it out.

      1. read Benson, and get a clue that Benson has caused the problem you are complaining aboutIt appears that you don’t understand Benson, or you don’t understand the problem I’m discussing, or you understand either of these things. I’m guessing the latter summary is the most accurate summary of the situation.Benson was decided correctly, of course. It was the failure by subsequent courts to follow Benson in a rational way that has led to the current broken patent system and to its inevitable exploitation.The recitation of computer-implemented functionality remains the lowest form of “inventing.” It was ever thus and it always will be. Would you like to see some “innovation”? Let me know. I’m always happy to pre-empt the patenting of more computer-implemented junk. And because I’m not a bottom-feeding tool, I won’t bother to file my application before sharing my “innovation” with you. Just let me know.

        1. Benson was decided correctly? So, each time I write a computer program I capture a natural law? Or create one? I think I will create a few natural laws before bed.I also notice you ducked my question to you. Benson has caused almost all the problems. But, you’ll never be able to figure that out. Maybe if I am tired of your whining I will spoon feed it to you.

          1. So, each time I write a computer program I capture a natural law?Benson never said that. Benson was about a patent claim. Let’s just cut to the chase, shall we? I’m going to organize my bookshelves using my brain and my hands, and you can stand on your lawn and scream at the sky.

          2. Night, MOT. That’s what Benson brought to the table, not law of nature. A process that does not transform subject matter from one state to another (change its information, information being in time space context – meaning the process must operate on inputs and outputs from the real world), or that does not related to a particular machine, is not eligible.

              1. Sorry Night, citing cases, the SC came up with the MOT in Benson. That was holding followed in Diehr and later in the Bilski Federal Circuit. The problem, of course, was with the Bilski SC majority that seemingly abandoned the MOT in favor of preemption. But as you and I will agree, preemption is not an eligibility issue, but a 112 support issue. Benson and Diehr remain the best 101 cases. Prometheus got the right answer, but in a confused way. Sticking with the MOT is the way to go.

                1. Ned, read Benson. Benson makes every argument possible that an information processing method and machine are not eligible for patentability. Benson is without question the worse SCOTUS case regarding patents ever issued.

                2. Benson did not consider a machine that was limited to permanently resident software known as firmware claimed as a machine.The problem as we all know is that software folks do not want to be limited to firmware. But every time they argue for the patentability of software, they give a firmware example as justification.

                3. Machine components – manufactures – are fully patent eligible in and of themselves.You have never addressed nor acknowledged this simple fact.

                4. anon, “Machine components – manufactures – are fully patent eligible in and of themselves.”you really like to bootstrap do you not?

                5. Ned,You really like to avoid discussing critical aspects of legal theory, do you not?Why is it that you fail to accord actual manufactures their full legal weight?A rivet is no less an invention because it has not been used to join two work pieces. A tire is no less an invention sitting in a warehouse and not mounted to a car. A bullet is no less an invention sitting in a box. Software – by itself (and satisfying the utility requirement, so let’s leave that strawman to the side) is still a manufacture in its own right. You continue to depend on the strawman of ‘computer in use, in conjunction with something else,’ but you do not have any (and I mean any) legal basis for this as a requirement. Diehr does not (and cannot – as I have poked you with the PON in Diehr being software) help you – the facts in that case do not address the manufacture of the component on its own. And yet, you would attempt to create some type of force of law from what is not there.Why is it that you have never acknowledged the exceptions to the printed matter doctrine? Once you acknowledge that software is a machine component, then the exceptions to the printed matter doctrine come into play and it is the functionally related aspect that garners the legal basis as I have so often explained. Yet, you refuse to even acknowledge the existence of this legal point. I would point out that even Malcolm, in his vendetta against software patents has volunteered an admission as to knowing this controlling law. And yet, you refuse – absolutely refuse – to even consider its existence, let alone integrate this item into the discussion.Why?

                6. anon, your citations to component assumes that one has, in the first place, a eligible machine when that component is made part of it.

                7. Completely false Ned – a patent on a manufacture has no such legal requirement that the item the manufacture goes into is either patent eligible or patentable.You just made that up out of whole cloth.And, yet again, you have failed to even mention the exceptions to the printed matter doctrine.Your silence on this point screams so loud that I cannot hear anything else.

          1. how about Diehr?The “invention” in Diehr should never have made it up to the Supreme Court because it was an obvious pile of junk. All that Diehr stands for is the trivial proposition that the mere existence of an algorithm in a patent claim is not sufficient, by itself, to find the claim ineligible. That’s it.That said, the Court could have (and should have) found the patent claim in Diehr ineligible because there was nothing added to the recitation of the ineligible algorithm that would pull the claim out of the bottomless swamp of “automated” junk that the USPTO continues to ineptly cultivate more than three decades on from that crap decision.

      2. paid blogger boySoros gave some pretty big bonuses this year after all the progress we made. On the shadow website, we had a good laugh about what champagne we were going to buy for the next meeting.

          1. Nice try to dodge the issue”Dodge the issue”? That’s funny. You called me a “paid blogger” based on some imaginary nonsense in your fossilized brain. You’ve made the assertion before, about numerous people, and each time you’ve been deservedly mocked. How do you expect to be responded to “directly” when you make ridiculous, baseless allegations about people with whom you disagree? You and your little buddy “anon” have been peddling this “paid to post” nonsense forever. And we all know why.Give it a rest already.

            1. let’s see what happens when you actually engage in a substantive exchange: that’s right, you volunteer admissions against interestBe sure to show your comments to the nurse when she returns to check up on you.

              1. That is a non-responsive reply, Malcolm.Why the dissembling?LOL, yes we both know why.Look what happens when Malcolm is asked to discuss actual law… poof! gone away bye-bye

  4. According to Michael C. Smith, the E.D. Texas results for 2013 are “four plaintiff verdicts in fifteen infringement trials this year.”Proposed title for that article: “Marshall Texas Juries: We’re Trying Really Hard to Be Fair Since You Started Paying Attention.”

  5. Based on a quick review of the ‘056 patent, it was filed in 1989 and appears to cover a compression algorithm. Obviously the patent owners believe that the compression algorithm covers the JPEG standard that was first published in 1992, but it was based upon the work of a Joint Photographic Experts Group that was formed in 1986 by the ISO/IEC. One wonders if General Electric participated in the development of the JPEG standard as a member of this group. If they do not, then there is no estoppel; but one wonders why it took so long for them to bring forth that claim. The issue of latches comes to mind.

    1. one wonders why it took so long for them to bring forth that claim. The issue of latches comes to mind.Among many other issues. The patent expired 6 years ago and these clowns are still filing new lawsuits. That’s another area in the law ripe for revision.

        1. But Ned this is a “new use” for JPEG that nobody ever contemplated until the great genius “Nicola J Fedele” realized that you could use the presentation of digital images exactly as you would use any other image. For years people struggled with what to do with JPEG images. I mean, they were nice and all but … what was the point? It wasn’t clear whether they had any purpose or utility.And then along came Nicola J Fedele, who quite literally invented the use of digital images for commerce. In fact, if you look up his name, the first thing you find is an extensive Wikipedia entry documenting his extraordinary contributions to this field, contributions which have ensured that his name will be forever associated with Internet commerce in the minds of everyone who has any interest in the evolution of this thrilling new trend.Just kidding. Fedele is a pawn in the troll’s game and his pathetic “contributions” to the “science” of Internet commerce are rightfully ignored by everyone on earth.

  6. From the link by Michael Smith:Today’s Marshall News Messenger carries an above the fold article “Attorneys: “Judicial Hellhole” Report Far from True” by local reporter Robin Richardson. The article responds to a recently released “Judicial Hellholes” report published annually by the American Tort Reform Association which claims that the Eastern District of Texas has become a popular patent troll venue, mainly because – wait for it – “it’s juries are perceived to be “plaintiff – friendly””. . . Robin polls three old lawyers (and me) to report that that claim was described variously as absurd (by Carl Roth) hysterical (by me) and and ridiculous (by Sam Baxter). (Showing better judgment, Gil Gillam just talked about how hard-working our judges are). The article is actually a really a good collection of analysis from three distinguished local attorneys (again, plus me) on the docket, uniformly stating based on one h— of a lot of experience that the local juries are eminently fair and evenhanded. Funny thing, though: the article that Michael refers to includes this quote from Carl Roth:http://www.marshallnewsmesseng…“If you are a plaintiff suing Microsoft, you don’t want to be in Seattle, or in San Jose if you’re suing Google or Cisco — the jury pool is loaded with people who work for or have family that work for (the) defendant,”said Roth.Ah, so it appears that Roth himself shares this “hysterical” “perception” about juries in East Texas being more favorable to patent trolls than juries in other parts of the country. Apparently it’s everyone else that’s “biased” because (gasp) they have jobs at companies that actually make stuff, or they know somebody that does.There’s some other funny quotes in that article:“Defendants are doing very well in the district these days,” he said, noting plaintiffs have not won consistently in the district since 2006. “The verdicts have been equally split,” he said.That souds like a great percentage given the fact that the patents being asserted are some of the junkiest pieces of garbage ever granted by the USPTO.Also note the hidden admission: plaintiffs were apparently “winning consistently” prior to 2006. So what happened? All of a sudden the juries decided to “be fair”? Give us a break already. Then there’s this strange quote:“The reason they call it judicial hellhole because our judges let it go to trial, they let it go to a jury and the jury throws it out,” said Smith.What?“Last year, plaintiffs won more, but the juries gave them pennies on the dollar, so even when you win, there’s not much there. . . . Courts are cracking down on damages and reducing the amount (they award),” said Smith.And what does Mr. Smith think is the reason for this “crackdown”? Why is there a need for a “crackdown” if the juries in East Texas are “always fair”? He doesn’t say.

  7. From the link by Michael Smith:Today’s Marshall News Messenger carries an above the fold article “Attorneys: “Judicial Hellhole” Report Far from True” by local reporter Robin Richardson. The article responds to a recently released “Judicial Hellholes” report published annually by the American Tort Reform Association which claims that the Eastern District of Texas has become a popular patent troll venue, mainly because – wait for it – “it’s juries are perceived to be “plaintiff – friendly””. (Ba-da-bing!)Robin polls three old lawyers (and me) to report that that claim was described variously as absurd (by Carl Roth) hysterical (by me) and and ridiculous (by Sam Baxter). (Showing better judgment, Gil Gillam just talked about how hard-working our judges are). The article is actually areally a good collection of analysis from three distinguished local attorneys (again, plus me) on the docket, uniformly stating based on one hell of a lot of experience that the local juries are eminently fair and evenhanded. Funny thing, though: the article that Michael refers to includes this quote from Carl Roth:http://www.marshallnewsmesseng…“If you are a plaintiff suing Microsoft, you don’t want to be in Seattle, or in San Jose if you’re suing Google or Cisco — the jury pool is loaded with people who work for or have family that work for (the) defendant,” said Roth.Ah, so it appears that Roth himself shares this “hysterical” “perception” about juries in East Texas being more favorable to patent trolls than juries in other parts of the country. Go figure.There’s some other funny quotes in that article:“Defendants are doing very well in the district these days,” he said, noting plaintiffs have not won consistently in the district since 2006. “The verdicts have been equally split,” he said.That souds like a great percentage given the fact that the patents being asserted are some of the junkiest pieces of garbage ever granted by the USPTO.Also note the hidden admission: plaintiffs were apparently “winning consistently” prior to 2006. So what happened? All of a sudden the juries decided to “be fair”? Give us a break already. Then there’s this strange quote:“The reason they call it judicial hellhole because our judges let it go to trial, they let it go to a jury and the jury throws it out,” said Smith.What?“Last year, plaintiffs won more, but the juries gave them pennies on the dollar, so even when you win, there’s not much there. . . . Courts are cracking down on damages and reducing the amount (they award),” said Smith.And why do you think that “crackdown” is happening, Mr. Smith? Why is there a need for a “crackdown” if the juries in East Texas are “always fair”? Very strange indeed.

  8. From back in May:http://www.technologylawsource…History — Princeton Digital Image Corporation claimsthat its patent covers encoding image data into JPEG files for providing JPEG images of products on a website. Beginning in 2011, Princeton Digital Image Corporation began suing large numbers of companies including websites, retailers, and camera and device manufacturers and resellers for patent infringement. The ‘056 patent expired in December 2007, but suits are being filed for “past infringement” of this patent. Under U.S. patent law, a patent owner can sue for “past infringement” up to six years before the filing of a lawsuit, so Princeton Digital Image Corporation can theoretically continue suing companies until December 2013.Recent Activity — In what appears to be a last big push against the retail industry, Princeton Digital Image Corporation has filed infringement suits this year against companies including Abercrombie & Fitch Inc., Alticor Global Holdings, Amazon.com Inc., American Eagle Outfitters, Inc., Avon Products, Buy.com, Cabala’s, CAE Healthcare USA Inc., CBS Interactive, CDW Corporation, Coldwater Creek, Inc., Costco, Wholesale, Dell, Disney Shopping Inc., Drugstore.com, Euromarket Designs, Inc., Footlocker.com, HSN Interactive, ITD Group, Guitar Center Inc., J.C. Penney Company, NetFlix, Macy’s, Nieman Marcus Group Inc., Nordstrom.com, Office Depot Inc., PPR Americas, Inc., QVC, Recreational Equipment, Saks Direct LLC, Scholastic, Sears Holdings, Staples Inc., Systemax Inc., Target, Toys ‘R’ Us Inc., Ubisoft Entertainment SA, Wal-Mart.com Inc., and 1-800 Flowers.com.And this:link to setexasrecord.com…Plaintiff Princeton Digital Image is a Texas corporation having its offices in Longview.LOL! Nobody could have predicted that PDI was just some more cowboy attorneys crawling out of the manure pile.

  9. Get ready for more of these decisions. District court judges are now capitalizing on the disjointed state of affairs with regard to 101 . I have seen several cases over the last two years where patents are being invalidated under 101 but the actual opinion rendered by the Court sounds in obviousness or anticipation. It’s easy to hide the ball and conflate 103 and 101, especially since courts can disguise their arguments using vague references to abstractness or MOT.

        1. My comments were in reply to NWPA but were not inline.Oh, so you were commenting on the imaginary decisions in NWPA’s brain. Nice trick.

  10. Meanwhile, Princeton Digital Image settled another infringement case. This time with Toys R Us. PDI’s patent is US Patent No. 4,813,056 that allegedly covers “encoding image data into JPEG files for the purposes of producing JPEG images of products” for use on a website.Thank goodness the GAO Report found that “patent trolls are not a problem”.LOL. Seriously, though, who are the bottom-feeder attorneys at “Princeton Digital Image” who have chosen to peddle this ancient junk?And that ancient junk, by the way — same as the new junk that continues to flow out of the PTO. The only difference is the acronyms.

  11. So, you mean it is possible to make 102 and 103 arguments and have them work in court, so the use of 101 (particularly at the Fed. Cir. level) is the last refuge of scoundrels.How can any judge worth more than a grain of salt write that a claim refers to something that has been known for hundreds of years and then use a judicial exception (101) to invalidate the claim? Clear illustration that something else is going on.

    1. the use of 101 (particularly at the Fed. Cir. level) is the last refuge of scoundrels.I would think that would depend on the claims, Gramps. Nice try, though.

    2. How can any judge … write that a claim refers to something that has been known for hundreds of years and then use a judicial exception (101) to invalidate the claim?That’s easy to understand if “what has been known for hundreds of years” is an abstraction and the claim merely limits that ineligible concept to one of an infinite number of “uses.” An example would be a broad claim to “assigning a value” to a specified set of objects for purchase. It doesn’t matter if the specified objects have never been offered for sale before. “Assigning values” is an abstraction. Going down that road turns the patent system into a joke. The fact that some attorneys in Texas think the joke is on everyone else in the country doesn’t improve the situation. You should also appreciate that the various patent statutes work together. There is overlap between the various laws and rules and the considerations underlying each of those laws and rules. It’s not “conflation” merely because some of the same words and themes arise under each of the statutes. Perhaps you need to revisit the Prometheus case again and remind yourself about how 101 is applied, and why.As an aside, I’ll remind you of a classic example of what you would call “conflation” in the patent statute which, for some mysterious reason, is never objected to by the usual footstampers and table-pounders whose underwear gets all knotted up at the mere mention of 101. The example is the treatment under 35 USC 103 of “new instructions” accompanying an otherwise obvious kit. I’m sure you know what I’m referring to because I’ve explained it to you many, many times. I’m happy to do so again, however.

      1. MM, the day I ask for a lesson on a patent law from you will be the day I burn my law diploma.Your post sounds a big giddy actually. You been nipping at the hard stuff while earning your bucks posting?

        1. the day I ask for a lesson on a patent law form you will be the day I burn my law diploma.Stop joking. We all know you can’t burn a stone tablet.

          1. LOL – oh the irony of the one who cannot handle modern day innovation in the form of computers and software calling someone else ‘gramps.’Malcolm – I bet you do not even get why this is ironic.Add: Malcolm continues to accuse others of non-modernism, while displaying that very same non-modernism. He attempts naked insults on age, while belying his own decrepitness. The irony meter pegs out at maximum, and Malcolm likely remains blithely unaware.

            1. modern day innovation in the form of computers and softwareComputers and software are “modern” in the same way that Jackson Pollack is “modern”. Which is to say that if you splash a bunch of paint on a canvas nobody is going to call you an “innovator” merely for doing that, except maybe your mommy.And that explains a lot about you and your fellow tribemembers.

              1. Because Malcolm says so – oh how very Carroll of him.(and Malcolm, the invitation for you and 6 to abstain from this technological innovation remains open – I hear the Amish might enjoy your ‘wit’ or at least your juggling – if you wear that special custom of yours)

      2. “Perhaps you need to revisit the Prometheus case again and remind yourself about how 101 is applied, and why.”More of the Malcolm FAIL Prometheus flashbacks. The case Malcolm so eagerly posted the Office takeaway that reinforced the integration aspect of 101 (and left his pet theory quite unattended). The case where I had to hold Malcolm’s hand as to what exactly the Justices would not let become dead letters – the Justices’ exceptions (i.e. “This approach, however, would make the “law of nature”exception to §101 patentability a dead letter. The approach is therefore not consistent with prior law. The relevant cases rest their holdings upon section 101, not later sections.”) The case, in which Malcolm’s only substantive effort to date to square with the cases most on precedent – and which Prometheus claimed it was not altering – merely resulted in Malcolm throwing his pet theory on a bonfire, and refusing to come and rescue his pitiful attempt with all his great English as a first language skill when pointed out that his pet theory was getting pretty crispy.LOL – ah yes, good times Malcolm, thanks for reminding us of your FAIL.

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