Robert Pogson

One man, closing all the windows.

Bringing an Unloaded Knife to a Gunfight

  • Aug 24 / 2011
  • 8
technology

Bringing an Unloaded Knife to a Gunfight

That’s what Oracle has done in its suit against Google. Google asked for re-examination of the patents and the patents are falling like flies. Two more patents have been rejected on the grounds that they were obvious. So far 92% of the claims in the patents that have been examined have been rejected. Combined with a significant toning down of the potential damages, from $billions to $millions Oracle is practically impotent in this matter.

The court in the Netherlands has thrown out Apple’s charges of infringement of a design patent againts Samsung only asking Samsung to change a swipe-scroll feature to clear them for importation. Apple lost huge points for fudging pictures and claiming the shape of a tablet was their idea.

I would say Android/Linux and gadgets running it were on very firm ground today.

UPDATE

I don’t know whether these things are connected but Steve has resigned and Apple has claimed Android/Linux smart phones violate yet another patent… Clearly Apple has no shame or does not value its reputation as an innovator. They seem to trumpet that they are jailers, abusing the real innovators with legal shenanigans. Perhaps they are deluded that they are the only innovators on the planet…

8 Comments

  1. oiaohm

    If you want a recent case for the upheld but no payment due because of incompetence. Look mo more than Apple vs Samsung recently. Samsung has to remove 1 program from future models of their phones and Apple is paying costs.

    Yes won is paying bill. Reason Apple knew Samsung was using the tech and had done nothing to correct it. Instead just brought the case before the courts. Yes there is a reason why most patent cases settle out of court. Because if you don’t talk to the party you are using the patent against you are toast.

  2. oiaohm

    “What actually happens is that the people who created the idea get the money that they are entitled to because those who waht to use the IP embodied in the patents pay for the privilege.”

    This a false most of the time. Historically what happens is companies who invented stuff go bust. When they are sold off some holding company buys up there Patents.

    There have been cases of where the real inventor of something has been legally summed to court to be expert witness in cases where they will get nothing.

    If you want to make the patent system work. You make patents non transferable. That all patented inventions own to the person who invented them. To acquire patents you have to acquire the person. This way the inventor will really get paid.

    Lot of court time over patents is wasted due to the fact when the inventor is eventionally found it turns out the patent does not hold water in the particular usage because the particular usage was what the patent was an expand on in a different field. Yes the inventor can read it the correct way and explain what the invention is really about.

    “When is the last time that a jury ruled against a patent holder after the patent had been upheld on reexamination? Never, I believe.”

    Many times Contrarian just because a patent has been upheld in reexamination does not mean that reexamination has not narrowed what the patent can refer to. Yes upheld but narrowed can result in a case where defendant is no longer inside the field the patent is allowed to cover. So the patent holder gets ruled against.

    The jury also has to determine if the patent applies to case at hand. As in some really rare cases like marconi and tesla both had invent radio transmitters at the same time. Both had patented radio transmitters both were using slightly different methods. Result was parallel development case. Neither knew what the other was doing.

    Yes this is a very odd defense against patents. If you can prove that the infringing copy was made by a person who has never seen anything using that patent and never even knew the patent existed. The patent has not been infringed. In fact the person can take out a duplicate patent to yours with yours as a related work and there is nothing you can do if they start licensing your customers instead of you at a cheaper rate. Has happened a few times.

    So yes just because a patent is upheld does not mean a win every single time. There are cases where you still lose. Yes it increase odds of winning to somewhere in the 80 percent mark. Yes there is 20 percent fudge.

    One of the more odd cases is the case if they can proven you know they were using your patented tech and you did nothing. Normally that they have asked for a patent license and you did not answer. Result you have patent judge and rule due to your incompetence you are not entitled to payment.

    This is why patent cases are hell. There are many ways for defendant to get out.

  3. oldman

    “The whole patent thing is a house of cards. Suppose everyone sues everyone else and wins and no one can do business.”

    What actually happens is that the people who created the idea get the money that they are entitled to because those who waht to use the IP embodied in the patents pay for the privilege.

    This is the purpose of the patent system as designed and as embodied in Law NOW. We don’t get to just ignore our laws just because we don’t like them.

  4. Contrarian

    “Do you really believe that a good lawyer or ten have not a decent chance of getting the court to rule out such shaky patents?”

    When is the last time that a jury ruled against a patent holder after the patent had been upheld on reexamination? Never, I believe.

    “Fortunately not all judges are complete idiots.”

    Just the ones who have disagreed with your hopes? The law basically says that a valid patent can be asserted against someone who is not licensed and who is nevertheless using the patented technolgy. All that the judge has to do is referee the jury who decides on the size of the award due to the patent holder. That is usually computed as a percentage of the value of the infringing device in terms of its profitability.

    The problem here for Google is that they do not even control the profits. Rather, they give it away and others take the profits. If Google loses this, I think Android is basically out of business as a FOSS entity.

  5. Robert Pogson

    The whole patent thing is a house of cards. Suppose everyone sues everyone else and wins and no one can do business. This silliness is getting close to that. Fortunately not all judges are complete idiots.

  6. Robert Pogson

    uh, no. Those that remain in play will go to a jury or a judge and a decision has yet to be made. These rejections are the ones that are obvious to the clerks at USPTO. Strange they issued the patents in the first place, eh? Think it was folks trying to make their quota of patent maintenance fees? Of the 56 independent claims only 7% were not subject to re-exam and of the 22 re-examined so far only 2 survived the re-exam. Do you really believe that a good lawyer or ten have not a decent chance of getting the court to rule out such shaky patents? Oracle has a very weak case on patents and also on copyright.

  7. Contrarian

    I forgot to note that your cite shows a number of claims to have survived re-examination and so remain in play vis-a-vis the Oracle lawsuit. Android is not going to emerge unscathed.

  8. Contrarian

    Well, as I have said before, #pogson, I do not support the notion of patents at all, particularly the tiny incremental sort of thing that is in play here. That said, though, I think you are just whistling past the graveyard, hoping that everything you hear but cannot see is just an unreal ghost that cannot do any harm.

    It only takes one claim to be found to be valid and infringed upon to clog up the works here. Various phone and other mobile device makers have, I understand, already caved into demands from Apple, Microsoft, and Oracle for license fees relative to patents infringed upon by Android or other features of these devices. Google is not likely to provide Android to others at no charge when they are being assessed license fees based on using these patented elements. Doubtless this concern is going to flow downhill and will ultimately change the landscape in regard to how OEMs look at Android.

    For that matter, I am waiting for the next Stallman rant along the lines of the fuss he made over Novell agreeing with Microsoft to license technology that MS claimed to be violated by Linux functions. Stallman generated the GPL3 license to thwart anyone doing that in the future, although I am not aware that anything of any significance changed to agree with him.

    Meanwhile, it seems to me that Android is handcuffed by such agreements with various users already and so is also in violation of whatever the bizarre terms and conditions of the GPL exist to prevent anyone from using it in the presence of license fees. Not much has been said about that and I think that the FSF is lying low, fully aware that they cannot survive any such challenge.

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