Apple Ordered to Pay $302 Million in Damages to VirnetX in Patent Retrial

[techwhiz]

Patents have some specific requirements before they are allowed. You can't just have an idea for something-- you have to "teach" the idea and "show enablement". Meaning you need to explain how to do it, and that the technologies exist to do it (faster than light motorcycles can't be part of your invention, for example).

Granted the patent office isn't perfect at screening these things out (see: perpetual motion) but you can't just say "I have an idea, pay me".

The problem is I can patent an idea.
I can patent something that says like "the invention is a computer that runs a software program and that software program does....".

Without the actual algorithm, I have patented an idea.
There is no way to work around that patent because it has encompassed every variation of algorithm, even though the original invention has none.

The patents in this case are applied incorrectly.
This company asserts that any communication like Skype or FaceTime is infringing no matter how implemented.
Apple doesn't even use the same mechanism. Their idea and implementation uses NAT and hides the IP address as a method of security. FaceTime doesn't work that way.

The other issue is the jury has no understanding of technology so you can effectively say enough junk and fool them.
Patent cases should be tried with a jury of people knowledgable of the topic.

 

[hungedu]

What's next? Patents on thoughts?

 

[ptb42]

Good question, and I believe I know at least part of the answer. Many engineers are discouraged from searching patents for prior art when developing their own stuff, so it is quite possible that they may independently come up with the same solution as another person did. The reason why patent searches are discouraged is so that companies can truthfully claim that they didn't know about the existing patents, and therefore didn't willfully infringe on them (and therefore can't be awarded triple damages).

Just "liking" this post isn't enough. You have explained it perfectly.

Linux Torvalds (who wrote the first Linux kernel) summed it up in this post:

http://lwn.net/Articles/7636/

On Mon, 12 Aug 2002, Daniel Phillips wrote:
>
> It goes on in this vein.  I suggest all vm hackers have a close look at
> this.  Yes, it's stupid, but we can't just ignore it.

Actually, we can, and I will.

I do not look up any patents on _principle_, because (a) it's a horrible
waste of time and (b) I don't want to know.

The fact is, technical people are better off not looking at patents. If
you don't know what they cover and where they are, you won't be knowingly
infringing on them. If somebody sues you, you change the algorithm or you
just hire a hit-man to whack the stupid git.

           Linus

I'll add: I am inventor or co-inventor on a number of patents. Once an invention is "translated" into patent lawyer language, it bears little resemblance to the plain language of an original design or implementation.

It is very difficult for a layperson to effectively search the US patent database and determine if an invention has been patented, wholly or partially. That is something left for a patent attorney.

But, patent attorneys typically don't get involved unless someone actually tries to apply for a patent. So, the trivial thing you created (either a device or an algorithm) may infringe on a patent, and you won't ever know it until you are sued.

 

[RichTeer]

Just "liking" this post isn't enough. You have explained it perfectly.

I blush; thank you!

 

[macfacts]

No, you're entirely missing my point. It isn't that they're not making the thing covered by the patent, it's that they have been given a patent that never should have been granted in the first place. ...

I agree that some patents shouldn't be valid from the start but what does that have to do with this law suit in this story between Apple and VirnetX? Apple thinks the patent is valid because they tried to patent it but found out it was already patented.

 

[a.gomez]

people are being crazy. The judge didn't decide Apple was guilty a Jury did - the judge is just adjusting the damages. A jury listen to the case and came with a verdict, and it was for VirnetX. Apple has it in a product and now they need to pay. Cant just change the rules every time Apple is on the wrong side of the argument.

It does not matter if VirnetX is using the patent or not - they own it. Dean Kamen lives in an island in the middle of nowhere - but you can't make a portable dialysis machine without paying him - he owns the patents.

It is up to Apple to get the approvals - or they can make their own technology and not use this one.

 

[CFreymarc]

China will become leading country in technology development soon, while everyone in US will be developing....eee...lawyers

Bet against China in the long run. Historically, authoritative governments with centrally run economies eventually collapse upon themselves. China is showing cracks and political discourse already.

 

[CarlJ]

I agree that some patents shouldn't be valid from the start but what does that have to do with this law suit in this story between Apple and VirnetX? Apple thinks the patent is valid because they tried to patent it but found out it was already patented.

And this discussion we've been having was started by your statement, "What is it people have against "patent trolls"? So what if they have no product. Is making the product the hard part or coming up with the idea the hard part." You asked a question about patent trolls in general, not specifically about this case. I answered the question you posed. I think we see now that we're both in agreement that many patents are being / have been granted that should never have been granted in the first place.

I don't think that what patent trolls are doing is illegal, though I do find it rather distasteful. They're gaming the system. The system was conceived to reward inventors for their hard work, in order to foster the creation of novel, unique, solutions to society's technological problems. The patent trolls are, largely, not contributing to this original goal. The problem is not that they're making money off other people's inventions, it's that the patents they're making money off of aren't really inventions in the first place.
[doublepost=1475437288][/doublepost]

The patents in this case are applied incorrectly.
This company asserts that any communication like Skype or FaceTime is infringing no matter how implemented.
Apple doesn't even use the same mechanism. Their idea and implementation uses NAT and hides the IP address as a method of security. FaceTime doesn't work that way.

The other issue is the jury has no understanding of technology so you can effectively say enough junk and fool them.

This is the kind of thing that happens repeatedly and is the problem. The East Texas court is a racket, but it wouldn't have the power that it does if there weren't unreasonable patents being granted, and if companies couldn't keep getting away with claiming ridiculously overreaching applicability of their patents ("well my ridiculous patent on sending pig-latin encrypted letters through the mail ought to apply to any encrypted computer communications of any kind").

 

[Analog Kid]

The problem is I can patent an idea.
I can patent something that says like "the invention is a computer that runs a software program and that software program does....".

Without the actual algorithm, I have patented an idea.
There is no way to work around that patent because it has encompassed every variation of algorithm, even though the original invention has none.

I don't know if what you're saying is that the law allows it, or the system sometimes fails and makes it possible, but by law, you cannot.

Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.

A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required.

By law, you can not patent an idea without teaching an implementation and that idea must be new and non-obvious.

The problem is that the system is not as good as it should be at screening up front, so stuff slips through that shouldn't. Modern patent law says that the courts, not the patent office is the final say so if enough money is put behind it that can lead to some of these more extensive court cases. That's a problem with the system, however, and the distorting influence of money.

The patents in this case are applied incorrectly.
This company asserts that any communication like Skype or FaceTime is infringing no matter how implemented.
Apple doesn't even use the same mechanism. Their idea and implementation uses NAT and hides the IP address as a method of security. FaceTime doesn't work that way.

The other issue is the jury has no understanding of technology so you can effectively say enough junk and fool them.
Patent cases should be tried with a jury of people knowledgable of the topic.

I'm with you on the jury problem. If the common refrain that "a jury is a group of people not smart enough to get out of jury duty" has any truth, then this is not the way to try deeply technical cases. Obviousness in patents is specifically defined as "obvious to one skilled in the art", and there's no way a common jury is skilled in these arts.

I don't think you'll be able to pull a jury of academics from the population as a whole.

I'd be tempted to say that patent cases should be tried by a sitting tribunal and follow something closer to the FCC rules process where the arguments are made and commented on publicly by written submission and then reviewed and decided on by the council.

 

[SeattleMoose]

I invented the internet!!! Where is my money???

 

[unplugme71]

What about universities? Do you expect them to also sell an active product? How about business bankruptcy estates trying to recoup investors' losses? Do you expect them to also sell an active product?

What is an active product anyway? Wouldn't an NPE be able to make up a product, make less than a dozen of these token products, and list them for an absurdly high price where no one would ever buy it? Seems like unnecessary busy-work? If not, and you would require proof of sales, wouldn't that unfairly disadvantage small companies?

An active patent is one that is being worked on - either revised or put into development/production.

An inactive patent is one that was awarded and no future work was done.

You should be given 18 months of active patent work before being able to extend for another 18 months for a max of 60 months.

You must prove something is being done.

This will avoid having patent trolls.

 

[ptb42]

I invented the internet!!! Where is my money???

Al Gore, go back to your private jet and evangelize about CO2 reduction.

 

[CarlJ]

I invented the internet!!! Where is my money???

Hey! I invented it first! Copycat!

 

[Analog Kid]

...
If somebody sues you, you change the algorithm or you
just hire a hit-man to whack the stupid git.

Linus

Wouldn't wiping your source control in a pending case be seen as destruction of evidence?


[doublepost=1475453263][/doublepost]

An active patent is one that is being worked on - either revised or put into development/production.

An inactive patent is one that was awarded and no future work was done.

You should be given 18 months of active patent work before being able to extend for another 18 months for a max of 60 months.

You must prove something is being done.

This will avoid having patent trolls.

I think this would just encourage delaying the adoption of new inventions and discourage disclosure of new research.

First, it's something like 2 years before you even know if your patent has been awarded. If I were a small inventor with few resources and uncertain market acceptance of my invention, I might not be able to justify spending 18 months of resources on it from day one. Potential licensors would be incentivized to just hold off starve off funding a couple years until the invention went public domain.

Then there's the lag time between the time something is invented and when it can be practically deployed to a mass market. It could easily take 5-10 years before the supporting technologies mature enough.


I think the patent troll problem really comes from the problem described some posts back. The broken system seemed to work while every big company was playing offense and defense at the same time, but the trolls are asymmetric-- the threat of counter suits don't really stick because they're not making anything that can possibly infringe.

 

[oneMadRssn]

An active patent is one that is being worked on - either revised or put into development/production.

An inactive patent is one that was awarded and no future work was done.

You should be given 18 months of active patent work before being able to extend for another 18 months for a max of 60 months.

You must prove something is being done.

This will avoid having patent trolls.

But this will also severely hurt universities and investors (especially small business investors). Universities rely on patents to secure funding for whatever the next project is. Sometimes the practical fruits of research take years if not decades to materialize. Yet the inventions they came up with are no less worthy of protection. By licensing their patents, they get money for future research; even if its unrelated. Small businesses raise money from the investors investors know that even in the worst case they will be able to recoup something from the business' IP. Without this assurance, the risk of funding a start-up is too high, and fewer start-ups will receive funding.

Patent trolls are an overblown problem, compared to the drastic economical consequences of what you are suggesting. It's like amputating your leg because you have stubbed your toe.

 

[akbarali.ch]

What is it people have against "patent trolls"? So what if they have no product. Is making the product the hard part or coming up with the idea the hard part. If people think making the product is the hard part, then why are those same people angry when Samsung has a smartphone that looks like an iPhone?

The (complete working) idea is hard.
The making the product from that idea is even harder.
Designing a product that people would love, is even more harder.
Last, asking 3 times the amount than competitors and making them pay is the toughest.

 

[Kroo]

Jus

My confusion is the sum. It just doesn't make sense.

Apple v VirnetX - Infringing a VPN patent $302 million
Apple v Samsung - copying the iPhone $548 million

Seems the USA courts show favouritism to small companies and foreign companies. Samsung are still appealing and going through the courts. I'd like to see the final total combined bill for a case from legal, to witnesses, accommodation etc etc.

Just East Texas. The two judges who preside over these frivolous law suits, never grant a change of venue, never award costs if the company sued wins, oh, and both judges, Davis and Ward, have sons. Who are lawyers, and who exclusively represent patent trolls. Nice way to rack up lawyers fees for your sons, ay? Corruption, thy name is East Texas Law courts, Judges Ward and Davis, and sons.
[doublepost=1475489835][/doublepost]

That's not what they're known for. They're not against big corporations. That's just who the defendants usually are.

Rather, East Texas is known for legal rules that greatly benefit the patent holder, whether big or small.

That's why small patentees prefer using that District versus, say, suing Apple or Google in their home state of California, where the larger corporations have all the advantages.

Unfortunately, the same local legal rules that help small plaintiffs against large defendants, also put small defendants at a disadvantage, and allows for weaker software patents as well.

You forgot to mention the judges, Davis and Ward who preside over these law suits, have two sons, lawyers, who exclusively represent patent trolls and who, low and behold, never lose a case. Funny about that. If that isn't corruption, then noting is. Hardly a fair playing field when the pitch is slanted in one direction.

 

[Scubaman]

Does this explain why "Messages" video / screen sharing / remote control hasn't worked properly for at least the last 2 years? Trouble is this was one of Apple's most useful apps when trying to provide remote support! Many users have logged faults but we've never had any kind of explanation. Finally, in Sierra, the camera icon has just disappeared!!!

 

[kdarling]

You forgot to mention the judges, Davis and Ward who preside over these law suits, have two sons, lawyers, who exclusively represent patent trolls and who, low and behold, never lose a case. Funny about that.

Out of date info. Judge Ward retired five years ago, and Davis last year.

If that isn't corruption, then noting is.

The primary advantage that the sons are seen to have, is their being local boys. Same goes anywhere else. E.g. don't bring New York lawyers to a California trial. With the exception of "My Cousin Vinnie", it's often a good idea to hire someone local.

Hardly a fair playing field when the pitch is slanted in one direction.

Unfortunately true all over. That's why Apple sued Samsung in California with a jury trial. Ditto for Nokia suing Apple in Delaware instead of in California. Smart lawyers are going to use all the advantages they can get.

Which some say argues for the concept of a central patent jurisdiction, with technically trained courts and juries.

 

[BMcCoy]

So where does FRAND licensing come in?

Is that a middle-ground where patent-holders can assert their ownership, but a company's liability can be judged more appropriately and with context, thereby avoiding this sort of zillion-dollar nonsense?

Or is FRAND limited to patents that become established as 'official' standards, rather than just general descriptions of ubiquitous technologies..?

 

[The Monkey]

I'm with you on the jury problem. If the common refrain that "a jury is a group of people not smart enough to get out of jury duty" has any truth, then this is not the way to try deeply technical cases. Obviousness in patents is specifically defined as "obvious to one skilled in the art", and there's no way a common jury is skilled in these arts.

I don't think you'll be able to pull a jury of academics from the population as a whole.

I'd be tempted to say that patent cases should be tried by a sitting tribunal and follow something closer to the FCC rules process where the arguments are made and commented on publicly by written submission and then reviewed and decided on by the council.

Actually, the Court of Appeals for the Federal Circuit is very close to what you describe. It has developed expertise in patent cases, and it is the federal appellate court where most patent case appeals are heard.

 

[LordVic]

An active patent is one that is being worked on - either revised or put into development/production.

An inactive patent is one that was awarded and no future work was done.

You should be given 18 months of active patent work before being able to extend for another 18 months for a max of 60 months.

You must prove something is being done.

This will avoid having patent trolls.

I have serious issue with the "if you don't pysically build something, you have no right to keep a patent" mentality.

Lets say I do invent something. I spend a lot of time, money and effort to R&D some idea or invention. But at the end of the day, I'm just a measly non-rich person. I should have every right to monetize off that invention anyway I deem appropriate to
recoup the costs and to benefit from my hard work. What if I can't afford to produce my invention? should that mean I don't have rights to it? Thats a scary argument because it starts to put in the reality that only the rich can produce things. And that is bloody terrifying notion



if that means selling my patents / inventions to others, That is my right.

 

[ptb42]

Wouldn't wiping your source control in a pending case be seen as destruction of evidence?

When I wrote my post with the quote, I noticed the potential pun.

The quote is from 2002, the software was first released in 2005.

The British slang (a foolish or contemptible person) dates back to 1945-1950, according to dictionary.com.

However, the choice by Linus was intentional:

"I'm an egotistical bastard, and I name all my projects after myself. First 'Linux', now 'git'."

The README elaborates further:

The name "git" was given by Linus Torvalds when he wrote the very
first version. He described the tool as "the stupid content tracker"
and the name as (depending on your mood):

- random three-letter combination that is pronounceable, and not
actually used by any common UNIX command. The fact that it is a
mispronunciation of "get" may or may not be relevant.
- stupid. contemptible and despicable. simple. Take your pick from the
dictionary of slang.
- "global information tracker": you're in a good mood, and it actually
works for you. Angels sing, and a light suddenly fills the room.
- "goddamn idiotic truckload of sh*t": when it breaks

 

[MagnusVonMagnum]

How do you seek permission for vague software patents that should never be awarded and for which there is no product to compare to? Software patents need to stop or be 3 years only unless the company has an active product and then they should be maybe 5 years. Software patents are just a dumb idea. Software copyrights are a good idea. That way people cannot steal code.

I agree. How can a company can violate a patent if they have NO ACCESS TO THE CODE?

In other words, did Apple STEAL their security technology? Or did they simply invent their own technology and this company says "Hey, our patents covers ANY CODE INVENTED that does THIS" ??? Because that seems to be the heart of "software patent" cases these days.

I can take a patent on "control interface for a warp drive" and if someone actually unbelievably invents a warp drive, they have to pay me to make a computer program to control the thing!!! Yes, it IS THAT STUPID. Frack software patents. They should be illegal.

Patents are supposed to be more or less "blueprints" for a physical GADGET. If you can find another way to do what a cotton gin does without using Eli Whitney's design (or some slightly modified version), he would have had NOTHING on you. So why do we have these generic abstract patents around software when there's 1000 ways to skin a cat in software??? It's unbelievably stupid that it's even allowed to go on. Software should be copyright based, not patent based.

 

[kdarling]

So where does FRAND licensing come in?

FRAND availability/pricing is a voluntary commitment, often entered into by a group of companies who want to pool their ideas to create a new standard. (*)

Nothing says that the pricing has to be low, btw. It can be anything. For example, back in the early days when Motorola owned more than half the cellular patents, they didn't accept cash in return for a license. Instead, they only had two options: either you fully cross-licensed your patents with them, or you bought all your equipment from them. These things were worth far more than getting few dollars per device.

(*) A few years back, Google asked Congress to apply FRAND rules to patents which were licensed from single companies and that have become de facto standards due to their widespread adoption. Compact Disc and ActiveSync were examples. The reason was because some of the patents for these de facto standards have recently been sold to subsidiaries... who then tried to raise the price. Nobody would've used the patents in the first place if they'd known this could happen later on. It breaks an implicit agreement that lasted years.

I have serious issue with the "if you don't pysically build something, you have no right to keep a patent" mentality.

Yep, patents don't protect products, so no product is necessary. Heck, many inventors cannot afford nor have the time to create products... that's why they sell their invention to companies large enough to use or license their IP.

--- Which Reminds Me: patent definition

A lot of well meaning posters talk about a patent being a right to make or sell a product using that IP. It's not anything of the sort. Patents only confer the right to stop others from doing so.

You see, a patent cannot give the right to make or sell a product, because whether the product is legal or not, is up to other laws. E.g. it might be illegal for you yourself to make a weapon that you've patented.

Moreover, many patents depend on other patents to work, which means you cannot produce anything using your patent unless you license those other patents.

That's sometimes why patent holding companies cannot produce anything themselves. They're just one of many patent holders selling a piece of the whole puzzle. E.g. VirnetX can't sell Facetime because they don't own all the other patents necessary to make the whole thing.

It's like patenting a warp drive. Without inertia dampener and particle shield technologies, it's useless. So none of the so-called "trolls" holding each piece can make a working starship by themselves. But they can each license their patents to someone who can