Warner Bros Discovery recently shut down a trio of game studios, including the well-regarded Monolith Productions. This has put one of the coolest game mechanics of the 2010s in limbo. Middle-earth: Shadow of Mordor’s excellent Nemesis system is locked behind a patent owned by Warner Bros all the way until 2036, according to reporting by Eurogamer.

The Nemesis system was featured in both 2014’s Shadow of Mordor and the follow-up Middle-earth: Shadow of War. Simply put, it’s a gameplay mechanic in which enemies remember previous encounters with the protagonist. These antagonists, typically orcs in the LOTR games, would use these humiliating memories to fuel their thirst for revenge as they rose through the ranks. This mechanic also worked both ways, so enemies would remember besting you in a previous encounter.

It was the best part of those two titles and Monolith had planned on bringing back the mechanic for a now-cancelled Wonder Woman game. Now the system is lying unused, locked behind a patent vault in David Zaslav’s mega-yacht or whatever. Gigantic multinational corporations are awesome!

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Warner Bros Discovery patented the system in 2016, which you can read right here. The patent is active until 2036, so long as the company keeps up with the associated fees. It’s worth noting that in the nine years since patenting the system, it’s only been used in a single game. That’s Shadow of War, which came out in 2017 and was already in development when Warner Bros went ahead with the patent.

It remains to be seen if Warner Bros Discovery will do anything with the Nemesis system. It had nine years of heavy game development to make use of it across its entire IP portfolio, but didn’t. In that time period, plenty of Batman games and Hogwarts Legacy all came out. Those would have surely benefited from the unique mechanic. Oh well.

WB will still focus some resources on game development, but the company’s efforts will be primarily spent on four franchises. These include Harry Potter, Mortal Kombat, the DC universe and Game of Thrones. Three of those four seem like good fits for the Nemesis system to me.

Source: Shadow of Mordor’s innovative Nemesis system is locked behind a patent until 2036

Patents stifle innovation yet again.

The argument for pharma patents: making new medicines is expensive, and medicines are how we save ourselves from cancer and other diseases. Therefore, we will award government-backed monopolies – patents – to pharma companies so they will have an incentive to invest their shareholders’ capital in research.

There’s plenty wrong with this argument. For one thing, pharma companies use their monopoly winnings to sell drugs, not invent drugs. For every dollar pharma spends on research, it spends three dollars on marketing:

https://www.bu.edu/sph/files/2015/05/Pharmaceutical-Marketing-and-Research-Spending-APHA-21-Oct-01.pdf

And that “R&D” isn’t what you’re thinking of, either. Most R&D spending goes to “evergreening” – coming up with minor variations on existing drugs in a bid to extend those patents for years or decades:

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3680578/

Evergreening got a lot of attention recently when John Green rained down righteous fire upon Johnson & Johnson for their sneaky tricks to prevent poor people from accessing affordable TB meds, prompting this excellent explainer from the Arm and A Leg Podcast:

https://armandalegshow.com/episode/john-green-part-1/

Another thing those monopoly profits are useful for: “pay for delay,” where pharma companies bribe generic manufacturers not to make cheap versions of drugs whose patents have expired. Sure, it’s illegal, but that doesn’t stop ’em:

https://www.ftc.gov/news-events/topics/competition-enforcement/pay-delay

But it’s their money, right? If they want to spend it on bribes or evergreening or marketing, at least some of that money is going into drugs that’ll keep you and the people you love from enduring unimaginable pain or dying slowly and hard. Surely that warrants a patent.

Let’s say it does. But what about when a pharma company gets a patent on a life-saving drug that the public paid to develop, test and refine? Publicly funded work is presumptively in the public domain, from NASA R&D to the photos that park rangers shoot of our national parks. The public pays to produce this work, so it should belong to the public, right?

That was the deal – until Congress passed the Bayh-Dole Act in 1980. Under Bayh-Dole, government-funded inventions are given away – to for-profit corporations, who get to charge us whatever they want to access the things we paid to make. The basis for this is a racist hoax called “The Tragedy Of the Commons,” written by the eugenicist white supremacist Garrett Hardin and published by Science in 1968:

https://memex.craphound.com/2019/10/01/the-tragedy-of-the-commons-how-ecofascism-was-smuggled-into-mainstream-thought/

Hardin invented an imaginary history in which “commons” – things owned and shared by a community – are inevitably overrun by selfish assholes, a fact that prompts nice people to also overrun these commons, so as to get some value out of them before they are gobbled up by people who read Garrett Hardin essays.

Hardin asserted this as a historical fact, but he cited no instances in which it happened. But when the Nobel-winning Elinor Ostrom actually went and looked at how commons are managed, she found that they are robust and stable over long time periods, and are a supremely efficient way of managing resources:

https://pluralistic.net/2023/05/04/analytical-democratic-theory/#epistocratic-delusions

The reason Hardin invented an imaginary history of tragic commons was to justify enclosure: moving things that the public owned and used freely into private ownership. Or, to put it more bluntly, Hardin invented a pseudoscientific justification for giving away parks, roads and schools to rich people and letting them charge us to use them.

To arrive at this fantasy, Hardin deployed one of the most important analytical tools of modern economics: introspection. As Ely Devons put it: “If economists wished to study the horse, they wouldn’t go and look at horses. They’d sit in their studies and say to themselves, ‘What would I do if I were a horse?’”

https://pluralistic.net/2022/10/27/economism/#what-would-i-do-if-i-were-a-horse

Hardin’s hoax swept from the fringes to the center and became received wisdom – so much so that by 1980, Senators Birch Bayh and Bob Dole were able to pass a law that gave away publicly funded medicine to private firms, because otherwise these inventions would be “overgrazed” by greedy people, denying the public access to livesaving drugs.

On September 21, the NIH quietly published an announcement of one of these pharmaceutical transfers, buried in a list of 31 patent assignments in the Federal Register:

https://public-inspection.federalregister.gov/2023-20487.pdf

The transfer in question is a patent for using T-cell receptors (TCRs) to treat solid tumors from HPV, one of the only patents for treating solid tumors with TCRs. The beneficiary of this transfer is Scarlet TCR, a Delaware company with no website or SEC filings and ownership shrouded in mystery:

https://www.bizapedia.com/de/scarlet-tcr-inc.html

One person who pays attention to this sort of thing is James Love, co-founder of Knowledge Ecology International, a nonprofit that has worked for decades for access to medicines. Love sleuthed out at least one person behind Scarlet TCR: Christian Hinrichs, a researcher at Rutgers who used to work at the NIH’s National Cancer Institute:

https://www.nih.gov/research-training/lasker-clinical-research-scholars/tenured-former-scholars

Love presumes Hinrichs is the owner of Scarlet TCR, but neither the NIH nor Scarlet TCR nor Hinrichs will confirm it. Hinrichs was one of the publicly-funded researchers who worked on the new TCR therapy, for which he received a salary.

This new drug was paid for out of the public purse. The basic R&D – salaries for Hinrichs and his collaborators, as well as funding for their facilities – came out of NIH grants. So did the funding for the initial Phase I trial, and the ongoing large Phase II trial.

As David Dayen writes in The American Prospect, the proposed patent transfer will make Hinrichs a very wealthy man (Love calls it “generational wealth”):

https://prospect.org/health/2023-10-18-nih-how-to-become-billionaire-program/

This wealth will come by charging us – the public – to access a drug that we paid to produce. The public took all the risks to develop this drug, and Hinrichs stands to become a billionaire by reaping the rewards – rewards that will come by extracting fortunes from terrified people who don’t want to die from tumors that are eating them alive.

The transfer of this patent is indefensible. The government isn’t even waiting until the Phase II trials are complete to hand over our commonly owned science.

But there’s still time. The NIH is about to get a new director, Monica Bertagnolli – Hinrichs’s former boss – who will need to go before the Senate Health, Education, Labor and Pensions Committee for confirmation. Love is hoping that the confirmation hearing will present an opportunity to question Bertagnolli about the transfer – specifically, why the drug isn’t being nonexclusively licensed to lots of drug companies who will have to compete to sell the cheapest possible version.

Source: Pluralistic: Uncle Sam paid to develop a cancer drug and now one guy will get to charge whatever he wants for it (19 Oct 2023) – Pluralistic: Daily links from Cory Doctorow

The European Commission today proposed new rules to improve the protection of intellectual property (IP) in Europe, covering patents relating to industry standards, compulsory licensing of patents in crisis situations, and the revision of the legislation on supplementary protection certificates.

These will work hand-in-hand with the unitary patent system that 17 EU countries are to introduce in June, after 50 years in the making.

Thus far, patents have been “an expensive business,” said Thierry Breton, EU commissioner for the internal market, presenting the proposal. The unitary patent system will cut costs from an average of €36,000 to €5,000. “We’re going to have a true single market for patents,” said Breton.

The proposed new rules will take this even further, tidying up aspects of patent legislation that up to this point have varied country by country.

IP is more important than ever as a key driver of economic growth. According to the Commission, IP-intensive industries account for almost half of GDP and over 90% of all EU exports.

The proposed new rules will now be reviewed and amended by the European Parliament and the member states, which will have to rubberstamp the final agreement before it enters into force.

What’s in the package?

Standard Essential Patents (SEPs): These concern technologies that are essential in making a product standards-compliant. They include various connectivity technologies, such as 5G, Wi-Fi, Bluetooth, and audio/video compression and decompression standards. The holders of these patents essentially get a monopoly on their technologies and are obliged to license them on fair, reasonable and non-discriminatory (FRAND) terms.

But the current system isn’t very transparent, causing constant lengthy disputes and litigation. The Commission hopes the new rules will fix this by providing additional transparency regarding SEP portfolios; aggregating royalty when patents of several holders are involved; and allowing for more efficient means for parties to agree on FRAND terms.

Compulsory Licensing: Sometimes, in last-resort crisis situations, governments can allow the use of a patented invention without the consent of the patent holder. For example, if there’s a vaccine shortage, governments can ramp up production without explicit permission from the company that holds the patent.

While many value chains across the bloc span multiple countries, each member stat has its own rules on this, resulting in a very patchy legal framework. The Commission proposes to create an EU-wide compulsory licensing instrument.

Supplementary Protection Certificates (SPC): These certificates extend the term of a patent by up to five years, to encourage innovation and growth in certain sectors. It’s a special right awarded only to human or veterinary pharmaceutical product and plant protection product patent holders, and only at national level. Once again, it’s a fragmented and costly system.

The Commission wants to introduce a unitary SPC. An application would be subjected to a single examination, which would allow the granting of a unitary SPC or national SPCs in each selected member states.

Source: Commission sets out to harmonise EU patent rules | Science|Business

So SEPs and Compulsory Licensing seem like a step in the right direction, hopefully stopping companies from sitting on their (bought) IPs to slow down innovation. SPC, however, ensures that work in the field of the patent is brought to a standstill as the only innovator there is the company that holds the patent – who doesn’t have any clear incentive to work on the patent at all!

Russia has effectively legalized patent theft from anyone affiliated with countries “unfriendly” to it, declaring that unauthorized use will not be compensated. The Washington Post reports: The decree, issued this week, illustrates the economic war waged around Russia’s invasion of Ukraine, as the West levies sanctions and pulls away from Russia’s huge oil and gas industry. Russian officials have also raised the possibility of lifting restrictions on some trademarks, according to state media, which could allow continued use of brands such as McDonald’s that are withdrawing from Russia in droves. The effect of losing patent protections will vary by company, experts say, depending on whether they have a valuable patent in Russia. The U.S. government has long warned of intellectual property rights violations in the country; last year Russia was among nine nations on a “priority watch list” for alleged failures to protect intellectual property. Now Russian entities could not be sued for damages if they use certain patents without permission.

The patent decree and any further lifting of intellectual property protections could affect Western investment in Russia well beyond any de-escalation of the war in Ukraine, said Josh Gerben, an intellectual property lawyer in Washington. Firms that already saw risks in Russian business would have more reason to worry. “It’s just another example of how [Putin] has forever changed the relationship that Russia will have with the world,” Gerben said. Russia’s decree removes protections for patent holders who are registered in hostile countries, do business in them or hold their nationality.

The Kremlin has not issued any decree lifting protections on trademarks. But Russia’s Ministry of Economic Development said last week that authorities are considering “removing restrictions on the use of intellectual property contained in certain goods whose supply to Russia is restricted,” according to Russian state news outlet Tass, and that potential measures could affect inventions, computer programs and trademarks. The ministry said the measures would “mitigate the impact on the market of supply chain breaks, as well as shortages of goods and services that have arisen due to the new sanctions of western countries,” Tass stated. Gerben said a similar decree on trademarks would pave the way for Russian companies to exploit American brand names that have halted their business in Russia. He gave a hypothetical involving McDonald’s, one of the latest global giants to suspend operations in Russia under public pressure.

Source: Russia Says Its Businesses Can Steal Patents From Anyone In ‘Unfriendly’ Countries – Slashdot

Considering that patents are bad for innovation, make customers bleed and basically empower laziness, this should be an interesting experiment in skyrocketing Russian technologies

To hear many politicians (and, tragically, many academics) tell the story, patents and patent policy are keys to innovation. Indeed, many studies trying to measure innovation use the number of patents as a proxy. For years, we’ve argued that there is little evidence that patents are in any way correlated with innovation. Indeed, in practice, we often see patents get in the way of innovation, rather than being a sign of innovation. If anything, an influx of patents seems to indicate a decline in innovation, because as the saying goes, smart companies innovate, while failed companies litigate. Litigating patents tends to happen when a more established company no longer is able to compete by innovation, and has to bring in the courts to block and stop more nimble competitors.

Indeed, over and over again we seem to see the most innovative companies eschewing the anti-competitive powers that patents give them. I was reminded of this recently with the announcement that payments company Square had agreed to put all of its crypto patents into a new non-profit called the Crypto Open Patent Alliance to help fight off the unfortunate number of crypto patent trolls that are showing up.

Square is putting all of our crypto patents into a new non-profit org we’re calling the Crypto Open Patent Alliance, which will maintain a shared patent library to help the crypto community defend against patent aggressors and trolls. Join us! #bitcoinhttps://t.co/I9VopgtMz9

— jack (@jack) September 10, 2020

Of course, we see this throughout the companies generally considered to be the most innovative. A decade ago, Twitter came up with a very clever Innovator’s Patent Agreement, which effectively would block patent trolls from ever being able to use Twitter’s patents, should they somehow fall into trollish hands. A bunch of other top internet companies including Google, Dropbox, Asana, and Newegg launched the License on Transfer network, as a basic poison pill to, again, stop patent trolls.

And, most famously, Elon Musk flat out gave away Tesla’s patents and encouraged anyone else to use them to compete with Tesla, license-free.

If patents really were so vital to innovation, why would all of these innovative companies be so quick to give them up? And why is it so incredibly rare that any of them assert patents against competitors? Instead, so much of the patent litigation we see is against those innovative companies coming from a variety of patent trolls (frequently lawyers who never innovated at all) or also ran companies which may have been innovative in the past but have long since seen their innovative days in the rearview mirror.

It would be nice if policymakers, the media, and academics finally started recognizing the idea that patents are not just a bad proxy for actual innovation, but often antithetical to innovation, and we can see all the evidence we need for that in the fact that the most innovative companies are “devaluing” in their own patents to improve the ecosystem, rather than enforce those patents.

Source: If Patents Are So Important To Innovation, Why Do Innovative Companies Keep Opening Up Their Patents Rather Than Enforcing Them? | Techdirt

Not only that, but there are whole industries that would be nowhere if patents were enforced rigidly, such as the fashion industry and computer programming.

Artificial intelligence has myriad use cases, but it turns out inventing devices isn’t one of them — at least in the eyes of the US Patent and Trademark Office. The agency issued a decision on two patent applications for devices created by an AI system, determining that only humans can legally be credited as inventors.

The items in question — an emergency flashlight and a shape-shifting drink container — were the brainchildren of a system called DABUS. The Artificial Inventor Project filed the applications last year on behalf of the AI’s creator, Stephen Thaler. AIP lawyers argued that, since Thaler didn’t have any expertise in either of those types of products and couldn’t have come up with them by himself, DABUS should be the credited inventor.

The USPTO wasn’t buying it. The agency noted that US patent law uses pronouns and language such as “whoever” to refer to inventors. It wrote that “only natural persons may be named as an inventor in a patent application” as the law stands. The UK Intellectual Property Office and the European Patent Office previously rejected AIP applications on similar grounds, despite their belief that the devices were patent-worthy.

There was no suggestion, however, that DABUS itself might obtain any patents. Thaler himself was the applicant. “Machines should not own patents,” the AIP says on its website. “They do not have legal personality or independent rights, and cannot own property.”

Source: AI can’t be legally credited as an inventor, says USPTO | Engadget

However, patent rights can extend to the relatives of a dead person? I’m pretty sure dead people have no legal personality and can’t own property either

Techdirt has just written about the extraordinary legal action taken against a company producing Covid-19 tests. Sadly, it’s not the only example of some individuals putting profits before people. Here’s a story from Italy, which is currently seeing more new coronavirus cases and deaths than anywhere else in the world. Last Thursday, a hospital in Brescia, in the north of Italy, needed supplies of special valves in order to use breathing equipment to help keep Covid-19 patients alive in intensive care (original in Italian). The manufacturer was unable to provide them because of the demand for this particular valve. The Metro site explains what happened next:

With the help of the editor of a local newspaper Giornale di Brescia and tech expert Massimo Temporelli, doctors launched a search for a 3D printer — a devise that produces three dimensional objects from computer designs.

Word soon reached Fracassi, a pharmaceutical company boss in possession of the coveted machine. He immediately brought his device to the hospital and, in just a few hours, redesigned and then produced the missing piece.

Actually, it wasn’t quite as simple as that suggests. Business Insider Italia explains that even though the original manufacturer was unable to supply the part, it refused to share the relevant 3D file with Fracassi to help him print the valve. It even went so far as to threaten him for patent infringement if he tried to do so on his own. Since lives were at stake, he went ahead anyway, creating the 3D file from scratch. According to the Metro article, he produced an initial batch of ten, and then 100 more, all for free. Fracassi admits that his 3D-printed versions might not be very durable or re-usable. But when it’s possible to make replacements so cheaply — each 3D-printed part costs just one euro, or roughly a dollar — that isn’t a problem. At least it wouldn’t be, except for that threat of legal action, which is also why Fracassi doesn’t dare share his 3D file with other hospitals, despite their desperate need for these valves.

And if you’re wondering why the original manufacturer would risk what is bound to be awful publicity for its actions, over something that only costs one euro to make, a detail in the Business Insider Italia article provides an explanation: the official list price for a single valve is 10,000 euros — about $11,000. This is a perfect example of how granting an intellectual monopoly in the form of a patent allows almost arbitrarily high prices to be charged, and quite legally. That would be bad enough in any situation, but when lives are at stake, and Italian hospitals struggle to buy even basic equipment like face masks, demanding such a sum is even worse. And when a pandemic is raging out of control, for a company to threaten those selflessly trying to save lives in this way is completely beyond the pale.

Source: Volunteers 3D-Print Unobtainable $11,000 Valve For $1 To Keep Covid-19 Patients Alive; Original Manufacturer Threatens To Sue | Techdirt

Remember Theranos? The blood-testing company worth billions whose CEO Elizabeth Holmes became a celebrity right up until the point when it became clear its revolutionary testing machines didn’t actually work as described?

Well, Theranos is dead, and Holmes is still dealing with the legal repercussions, but her vampire company has come alive again – and in the very worst way: its reincarnation is suing another medical testing company for patent infringement.

It gets worse. While Theranos’ patents, obtained by an outfit called Fortress Investment Group in 2018, do not relate to a testing machine that actually works, they are being used to sue a manufacturer whose medical-testing machine not only works but is being used to detect the presence of the COVID-19 coronavirus.

That’s right: a private-equity-turned-investment group is using patents it picked up from a collapsed testing company – which imploded because its tech didn’t work – to sue a company whose machines actually do work and which is on the front-line of tackling the worst pandemic that the world has known for 100 years.

The lawsuit [PDF] comes by a company called Labrador Diagnostics, which is a part of Fortress, which is itself a part of investment monster Softbank. It’s worth noting that Apple and Intel sued Fortress late last year for stockpiling patents with sole aim of suing other companies.

“Labrador is informed and believes, and on that basis alleges, that Defendants individually and collectively have infringed and, unless enjoined will continue to infringe, one or more claims of the ‘155 [US 8,283,155] Patent, in violation of 35 U.S.C. § 271, by, among other things, making, using, offering to sell, and selling within the United States, and/or supplying or causing to be supplied in or from the United States, without authority or license, the Accused Products for use in an infringing manner,” the lawsuit reads.

The other patent in question is US 10,533,994.

Short life

It’s dense legal language designed solely to extract money out of a legitimate business. And while Labrador Diagnostics may sound like a legitimate testing company, there is no evidence that it exists on anything but paper. It was created as a limited liability company in Delaware literally this month. Within three days of it existing, it sued the testing equipment maker in question: BioFire.

BioFire, meanwhile, is a real company with real people doing actual work. The technology that “Labrador” claims is infringing its patent – which it calls FilmArray technology – is being used to develop three much-needed tests for COVID-19.

Since the lawsuit was filed in America on March 9, Labrador/Fortress has claimed it had no idea BioFire was working on COVID-19 tests; although that claim is questionable given that on March 3 there was an article in the Wall Street Journal specifically identifying BioFire and the fact it was working in two diagnostic tests for the coronavirus.

Faced with a wave of extremely critical commentary from the diagnostics industry, the IP industry, and now the press, Labrador/Fortress put out a statement on Tuesday in which it said it would “offer to grant royalty-free licenses to third parties to use its patented diagnostics technology for use in tests directed to COVID-19.”

But it continues to claim that the “lawsuit was not directed to testing for COVID-19. The lawsuit focuses on activities over the past six years that are not in any way related to COVID-19 testing.” It also claims that as soon as it learned of BioFire’s COVID-19 testing it “promptly wrote to the defendants offering to grant them a royalty-free license for such tests.”

In other words, we’ll give you a free license for COVID-19 testing machines, but the lawsuit against BioFire’s tech in general is still going ahead.

And more depressing news

And if all that wasn’t enough, there is another infringement case that could delay vital medical treatment in COVID-19-slammed Italy. The manufacturer of critical breathing equipment has threatened to sue a man, technician Christian Fracassi, for 3D-printing a valve for the machine after the company said it was unable to provide a replacement due to demand.

The valve normally costs $11,000, but Fracassi was able to reproduce it in plastic using 3D printing for just $1 and get the machines working again. The 3D-printed version is not going to last very long, and may need to be swiftly replaced and discarded, but it will work long enough to keep someone alive until a replacement is delivered. And, according to local reports, his swift actions have already saved 10 people.

But despite hospitals asking for the 3D plans, Fracassi is wary about providing them because the manufacturer has threatened to sue. And has refused to share the blueprints too.

“I am holding my hands because in a world where money matters more than someone’s health, nothing else can be done,” he said, according to UK paper Metro. ®

Bootnote

As noted by tech journalist Mike Masnick, the law firm representing Labrador is Irell & Manella, the same legal eagles who represented the monkey in that obnoxious macaque selfie copyright battle.

Source: Theranos vampire lives on: Owner of failed blood-testing biz’s patents sues maker of actual COVID-19-testing kit • The Register

Wow. What a shining example of how well the patent system doesn’t work.

Partly in response to this licensing mess, and HEVC’s high per-device cost, the Alliance for Open Media was formed in September 2015:

Seven leading Internet companies today announced formation of the Alliance for Open Media — an open-source project that will develop next-generation media formats, codecs and technologies in the public interest. The Alliance’s founding members are Amazon, Cisco, Google, Intel Corporation, Microsoft, Mozilla and Netflix.

In contrast to the proprietary and expensive H.265, the new video standard, called AOMedia Video 1 (AV1), is open source and royalty-free. Those features, and the backing of many of the top Internet companies, would seem to make it an obvious choice for manufacturers to build into their devices, leading to better-quality video streaming for end users at no extra cost.

Life is never that simple. Back in March last year, Sisvel announced a “patent licensing program” for AV1. Sisvel is an Italian company that began as a manufacturer of white goods, particularly refrigerators, and has morphed into a group that “identifies, evaluates and maximizes the value of IP assets for its partners around the world”. The AOMedia group wrote in response:

AOMedia is aware of the recent third-party announcement attempting to launch a joint patent licensing program for AV1. AOMedia was founded to leave behind the very environment that the announcement endorses — one whose high patent royalty requirements and licensing uncertainty limit the potential of free and open online video technology. By settling patent licensing terms up front with the royalty-free AOMedia Patent License 1.0, AOMedia is confident that AV1 overcomes these challenges to help usher in the next generation of video-oriented experiences.

But refrigerator companies don’t give up that easily. Sisvel has just announced that more companies have added patents to its pool. There are currently 1,050 patents that Sisvel says must be licensed, but in due course it expects that number will rise to around 2,000. The fact that people can claim that there are 2,000 separate patents involved in a video encoding format is an indication of how far the patenting madness has gone. The sheer number claimed for a single technology is an indication of how trivial most of them must be — and thus by definition undeserving of monopoly protection.

According to an article on c|net, Sisvel is “willing to pursue companies that don’t pay its AV1 licensing fees”. This probably means we are in for another few years of utterly pointless legal battles over who “owns” certain ideas. That’s bound to cast a chill over this whole area, and to negate some of the benefits that would otherwise flow from an open source, royalty-free video standard. Companies will waste money paying lawyers, and end users will miss out on exciting applications of the technology. And all “because patents”.

Source: Former Refrigerator Manufacturer Says Companies Using Open Source, Royalty-Free Video Technology Must Pay To License 2,000 Patents | Techdirt

The GNOME Foundation is facing a lawsuit from Rothschild Patent Imaging, LLC. Rothschild allege that Shotwell, a free and open source personal photo manager infringes its patent.

Neil McGovern, Executive Director for the GNOME Foundation says “We have retained legal counsel and intend to vigorously defend against this baseless suit. Due to the ongoing litigation, we unfortunately cannot make any further comments at this time.”

While Neil cannot make any further comments on this issue, let me throw some lights on this matter.

The patent in the question deals with wireless image distribution. The patent is ridiculous because it could mean any software that transfers images from one device to another could be violating this patent.

And that’s what this lawsuit is about. If you read the lawsuit, you’ll see why Neil called it baseless:

Shotwell is not the only one being sued

I did a quick web search with “Rothschild Patent Imaging” and I couldn’t find their website. I am guessing that it doesn’t exist. However, I come across a number of “Rothschild Patent Imaging vs XYZ” lawsuits.

I dig a little deeper. As per patent litigation website RPX Insight, there are six active cases and forty two inactive cases involving Rothschild Patent Imaging.

There are a number of companies being sued if there product mentions grouping photos based on date, location etc, facial recognition and transferring images from one device to another. Sounds crazy, right?

But it won’t be crazy if it’s someone’s full time job.

Patent Litigation Abuse aka Patent Trolling

Rothschild Patent Imaging is owned by Leigh M Rothschild.

The modus operandi of ‘inventor’ Leigh M Rothschild is to get patents on obvious ideas. And that obvious idea would be so broad that they could sue a huge number of organizations. Defendants have two choices, either pay Rothschild to settle the lawsuit or pay even more to lawyers and fight the court battle.

Rothschild Patent Imaging LLC might be formed to sue companies dealing with grouping and transferring images. In 2017, Rothschild Connected Devices Innovations LLC also filed a number of patent infringement lawsuits against companies that hinted mixing drinks and connected devices.

Ars Technica called Rothschild a patent troll because he was demanding $75,000 from each defendant for settling the lawsuits.

Smaller companies might have been intimidated but when Rothschild targeted a giant like Garmin, they hit back. Rothschild backed out of the lawsuit but Garmin filed a counter and Rothschild was asked to pay the legal expenses to Garmin.

Unfortunately, patent trolling is a big business, specially in the United States of America. There are companies with the sole business model of suing other companies. They are almost exclusively based in East Texas where the laws favors such patent trolls. EFF has a dedicated page that lists the victims of patent trolls.

I am so glad that GNOME Foundation has decided to fight this lawsuit vigorously.

Source: GNOME is Being Sued Because of Shotwell Photo Manager

Google has won a patent dispute over its famous “I’m feeling lucky” button that immediately connects a user to its top-raking search link with a single click.

The search engine giant was sued in 2016 by Israeli company Spring Ventures (previously Buy2 Networks) for allegedly infringing on its patent, US 8,661,094, that covers displaying a web page without extra user input.

The patent was originally filed in 1999, and the company won a continuation of it in 2014. Soon after it started sending letters to Google insisting that its button infringed at least 14 separate aspects of the patent because it allowed users to reach a webpage without providing a specific URL.

Google, funnily enough, ignored the upstart’s licensing demands, and so Spring Ventures sued in the United States. In response, Google went to the Patent Trial and Appeal Board (PTAB) and asked it to review the patent’s validity.

And the three-person review came back this week with its answer: the patent was not valid because of its “obviousness.”

That may sound like a harsh putdown but in the rarefied world of patent law, the term “obvious” has a tediously precise meaning. You can read the full decision to find out precisely what it means but we don’t recommend it: patent lawyers have habit of turning written English into a gaspingly turgid explanation of a concept.

And so here is the plain English version: Spring Ventures patent a system for finding web pages that were not written in English (presumably there is a Yiddish aspect in there). The internet and the world wide web to this day remain a painfully ASCII medium thanks to all its early inventors only speaking English and so only writing that in their code.

This created a lot of problems for people used to non-ASCII symbols and letters in their everyday written language and so Spring Ventures patented a way for people to type in something very close to a non-ASCII name in ASCII and have it automatically figure out what they were looking for. Useful stuff.

For example.com

At some point however it decided that this meant it had control over any system that automatically took a user to a website without them typing in the full website address e.g. example.com.

Google took issue with this argument and pointed out that this wasn’t exactly the first time that people had thought about how to make the vast landscape of web pages more manageable.

And so it dug back into the annals of internet browsing history and specifically Joe Belfiore’s patent for “Intelligent automatic searching” which he developed while working for Microsoft back in the Internet Explorer days (Belfiore is still at Microsoft btw). He filed it back in 1997.

There is another earlier patent too – Bernardo Sotomayor’s one for “Qualified searching of electronically stored documents” – which was explained in an article in Infoworld back in 1997 written by Serge Koren and talking about a product called EchoSearch.

Basically, Belfiore came up with a system for passing a search request in a browser bar that wasn’t a full URL through to a search engine and giving the user a results page – rather than just saying “this webpage doesn’t exist.” And EchoSearch was Java-run software that displayed results from several search engines pulled into a single page in response to a specific search.

Obvious, mate

Google argued that considering these two systems were already in place and in use before Spring Ventures made it patent application, that its whole concept was not some new imaginative leap that needed protecting but instead a pretty obvious thing that people were already doing.

And the patent board agreed [PDF].

The lawsuit that Spring Ventures initiated against Google has been on hold until the PTAB made a determination and will now die unless the Israeli appeals and successful persuades the board to reverse its decision – something that is possible given that the USPTO just changed its guidelines to make it easier to patent software applications. But it seems unlikely.

Which is lucky for Google. We can only imagine the payout if its one-click button was found to be infringing a patent

Source: Do you feel ‘lucky’, well, do you, punk? Google faces down magic button patent claim • The Register

Incredible, the amount of money that must have been spent on lawyers to come to this obvious conclusion.

Qualcomm Inc. says its fight with Apple Inc. over how much the chipmaker can charge for essential patented technology used in iPhones and iPads is getting pricey.

“They’re trying to destroy our business,” Qualcomm lawyer Evan Chesler said at a hearing Friday in federal court in San Diego. “They’re now $7 billion dollars behind in royalties. The house is on fire and there is $7 billion of property damage right now.”

Qualcomm wants as many as 56 patent-related claims and counterclaims cut from a lawsuit with Apple and its Asian manufacturers, arguing that these are just a sideshow to the broader licensing dispute between the companies. Apple, through its manufacturers, halted royalty payments to Qualcomm last year and the tech giants’ showdown has escalated into some 100 legal proceedings around the world.

Apple argues that Qualcomm is using its intellectual property to bully customers into paying excessive royalties even as it tries to duck scrutiny over whether its patents are valid. “You can’t just let Qualcomm walk away from this,” Apple’s lawyer, Ruffin Cordell, told the judge at Friday’s hearing.

Source: Technology – Bloomberg

The Portuguese Courts issued today a decision against Google in relation to the injunction filed by Aptoide. It is applicable on 82 countries including UK, Germany, USA, India, among others. Google will have to stop Google Play Protect from removing the competitor Aptoide‘s app store from users‘ phone without users‘ knowledge which has caused losses of over 2.2 million users in the last 60 days.

The acceptance of the injunction is totally aligned with Aptoide’s claim for Google to stop hiding the app store in the Android devices and showing warning messages to the users.

Aptoide is now working alongside its legal team to next week fill in courts the main action, demanding from Google indemnity for all the damages caused.

Aptoide, with over 250 million users, 6 billion downloads and one of the top stores globally, has presented this July, a formal complaint to the European Union’s anti-trust departments against Google.

Paulo Trezentos, Aptoide’s CEO, says that, “For us, this is a decisive victory. Google has been a fierce competitor, abusing his dominant position in Android to eliminate App Store competitors. Innovation is the reason for our 200 million users base. This court’s decision is a signal for startups worldwide: if you have the reason on your side don’t fear to challenge Google.”

About Aptoide

Founded in 2011 and based in Lisbon with offices in Shenzhen and Singapore, Aptoide is one of the top three Android app stores in the world. With over 200 million users, 4 billion downloads and 1 million apps, Aptoide is an app store that reinvents the app discovery experience through an online community, tailored recommendations and the opportunityfor users to create and share their own personal app stores. The Aptoide App Store is available for mobile and TV android devices and is accessible in over 40 languages. With an ever-growing community of users and partners worldwide, Aptoide is now one of the leading players in the world of Apps.

Source: Aptoide: EU National Court Rules Against Google in Anti-Trust Process

Microsoft has applied to patent a brain control interface, so you’ll be able to “think” your way around a computer device, hands free.Last year, Facebook claimed to have 60 engineers engaged in BCI [brain computer interface] but Microsoft isn’t going to take this sitting down. It’s erm, sitting down and thinking really hard.The application Changing an application state using neurological data was filed last year, and published last week. The inventors recently filed a related patent for a continuous motion controller powered by the brain. (US 2017/0329392: Continuous Motion Controls Operable Using Neurological Data).

Source: Microsoft wants to patent mind control • The Register

The problem is that the actual technology to do this doesn’t exist and they have nothing like a working prototype. Considering brain control has existed for some time, it’s a bit silly that this kind of conceptual work can actually be patented by someone with money. I can come up with loads of patentable ideas, but the bridge to creating some sort of working product is one too far for me. And the costs of patenting all my imaginations are far too high. This system basically puts small inventors at a huge disadvantage, but also pushes out innovation by small companies as they find that technologies they have invented and worked out are suddenly patented after the fact by large companies.

If you’ve read our coverage of the Electronic Frontier Foundation’s “Stupid Patent of the Month” series, you know America has a patent quality problem. People apply for patents on ideas that are obvious, vague, or were invented years earlier. Too often, applications get approved and low-quality patents fall into the hands of patent trolls, creating headaches for real innovators.

Why don’t more low-quality patents get rejected? A recent paper published by the Brookings Institution offers fascinating insights into this question. Written by legal scholars Michael Frakes and Melissa Wasserman, the paper identifies three ways the patent process encourages approval of low-quality patents:

The United States Patent and Trademark Office (USPTO) is funded by fees—and the agency gets more fees if it approves an application.

Unlimited opportunities to refile rejected applications means sometimes granting a patent is the only way to get rid of a persistent applicant.

Patent examiners are given less time to review patent applications as they gain seniority, leading to less thorough reviews.

None of these observations is entirely new. For example, we have covered the problems created by unlimited re-applications in the past. But what sets Frakes and Wasserman’s work apart is that they have convincing empirical evidence for all three theories.

They have data showing that these features of the patent system systematically bias it in the direction of granting more patents. Which means that if we reformed the patent process in the ways they advocate, we’d likely wind up with fewer bogus patents floating around.

Source: These experts figured out why so many bogus patents get approved | Ars Technica

Two founders of The Pirate Bay have been ordered by a court in Finland to pay record labels more than $477,000 in compensation. Fredrik Neij and Gottfrid Svartholm were found liable for ongoing copyright breaches on the site. Neither appeared to mount a defense so both were found guilty in their absence.

In November 2011, the International Federation of the Phonographic Industry (IFPI), with support from Finnish anti-piracy group Copyright Information and Anti-Piracy Center (CIAPC), filed a lawsuit in the Helsinki District Court against The Pirate Bay.

IFPI, which represents the world’s major labels, demanded that the site’s operators stop facilitating the unauthorized distribution of music and pay compensation to IFPI and CIAPC-affiliated rightsholders for the damages caused through their website.

Progress in the case has been somewhat glacial but this morning, almost six years after the complaint was first filed, a decision was handed down.

Source: Pirate Bay Founders Ordered to Pay Music Labels $477,000 – TorrentFreak

The law is insane – why has Google not been sued to this extent? So the labels get a load of money: how will they divide this amongst their artists? I think the answer is NOT.

When a patent owner sells a product the sale exhausted patent rights regardless of any restrictions the patentee attempts to impose on location of the sale.

Source: Supreme Court rules Lexmark sales exhausted patent rights domestically and internationally – IPWatchdog.com | Patents & Patent Law

Earlier this morning the United States Supreme Court issued an opinion in Impression Products, Inc. v. Lexmark International, Inc., a case requiring the Court to revisit the patent exhaustion doctrine. In an opinion authored by Chief Justice John Roberts, and joined by all members of the Court except Justice Ginsburg (concurring in part and dissenting in part) and Justice Gorsuch (taking no part in the case), the Supreme Court determined that when a patent owner sells a product the sale exhausted patent rights in the item being sold regardless of any restrictions the patentee attempts to impose on the location of the sale. In other words, a sale of a patented product exhausts all rights — both domestic and international.

– This is great news for innovation and companies that offer value on other companies’ products. It represents an almost unique show of sanity in patent law.

A question mark over whether the GNU GPL – the widely used free-software license – is enforceable as a contract may have been resolved by a US federal judge.

In a California district court, Judge Jacqueline Scott Corley refused [PDF] to accept what has been an uncomfortable legal precedent for the past decade. She ruled that the GNU General Public License – the GNU GPL – is an enforceable legal contract even though it is not actually signed.

Source: For now, GNU GPL is an enforceable contract, says US federal judge • The Register

Rather than a corporation that hires outside lawyers to pursue infringement claims, Blackbird is a small law firm strapped to a war chest of patents. It is an all-in-one form-filling, claim-filing robot. It has no extra baggage and no expensive legal bills to pay, making it a rather lean and mean machine.

“In the past, patent trolls had to hire lawyers and law firms,” Prince said. “These guys do away with it entirely and have the owner be a law firm themselves.”

Because Blackbird is owned by the attorneys who pursue its cases, Prince explained, they are able to file lawsuits without having to worry about lawyer fees. This, he said, allows them to scoop up patents on the cheap and fire off multiple “lottery ticket” infringement claims for nothing more than the court filing fees. It allows for a machine-gun attack on companies, with patent infringement claims the bullets.

“This is a unique case. They pose an amplified risk to innovative companies everywhere,” Prince said. “You can see by the volume of the lawsuits they filed, they have optimized patent trolling to a level that can inflict maximum damage.”

Now, instead of just fighting to invalidate the single patent in their case, Cloudflare is backing a campaign to have all of Blackbird’s patent holdings – roughly 70 of them – declared invalid for future litigation.

To achieve this, Cloudflare has ring-fenced $50,000 in bounties for prior-art proof to challenge Blackbird’s holdings. Of that prize pot, $20,000 will pay those who find prior art on the ‘335 patent, and $30,000 for other patents.

In addition, Prince says Cloudflare plans to file with the state bar associations in Illinois and Massachusetts, where Blackbird’s principal attorneys reside, alleging that by owning the patents they litigate, Blackbird lawyers are committing clear ethical violations

Source: Cloudflare goes berserk on next-gen patent troll, vows to utterly destroy it using prior-art bounties

DEATH TO PATENTS!

Pear Technology, which produces digital mapping software and services, applied for the pear logo in 2014 and was almost immediately challenged by Apple, which claimed it was confusingly similar to its own apple-with-a-bite-out-of-it silhouette logo.

The Cupertino intellectual property lawyers claimed that despite one being a picture of a pear and one being a picture of an apple they were, legally, the same. How? Here are the words that make this leap of logic possible: “abstract stylization” and “sleek, rounded silhouettes of the fruits.”

As opposed to the jagged, spiky pears that you see in the supermarket all the time.

Even though the Pear Technologies trademark application had the word “Pear Technologies” written underneath as part of the mark, this mere detail was not enough to prevent consumers from being confused as to the difference between a pear and an apple, it seems.

Source: iPhone lawyers literally compare Apples with Pears in trademark war

Absolutely incredible that Apple(tm) have managed to trademark any and all fruits! How ridiculous is this world getting?

Video game fans have been anticipating the latest franchise from CD Projekt Red, Cyberpunk 2077, for years. But only recently did it come to light that the makers of The Witcher franchise had trademarked the term “Cyberpunk” and this week some fans cried foul. Now, the developer is insisting that everything is ok and they’ll never use their power for evil.

Source: Video Game Maker Sparks Outrage With Trademark of ‘Cyberpunk’

How can you possibly trademark a common word?! Another example cited in this article is Sky TV suing SkyDrive and No Mans Sky for having the word Sky in it. This is ridiculous!

Indeed, Costco might just be trying to beat Acushnet at a legal game that the ball maker has mastered—court sport. Acushnet has managed to muscle out other upstarts easily, simply by filing complaints.

Tiny manufacturers who can’t afford to litigate have been forced to fold based on Acushet’s accusations alone, with no proof of infringement. For example in 2015, Acushnet sued five small golf-ball makers. The co-founder of one of these companies, speaking on condition of anonymity because of the terms of the settlement, told Quartz that’s just how business is done.

Companies with deep pockets lock down the market by making it too expensive for competitors to operate and to offer lower-priced yet quality products. It is a legitimate tactic; even those who succumb to it don’t really begrudge the approach. The co-founder of the smaller competitor sued by Acushnet said he believes the company decides who to sue based on Golf Digest’s Hot List, which signals potential competitors, and that the company files claims regardless of actual infringement.

Source: A lawsuit over Costco golf balls shows why we can’t have nice things cheap

What a great system the patent and law system is!

Today, the Supreme Court heard arguments in a case that could allow companies to keep a dead hand of control over their products, even after you buy them. The case, Impression Products v. Lexmark International, is on appeal from the Court of Appeals for the Federal Circuit, who last year affirmed its own precedent allowing patent holders to restrict how consumers can use the products they buy. That decision, and the precedent it relied on, departs from long established legal rules that safeguard consumers and enable innovation.

When you buy something physical—a toaster, a book, or a printer, for example—you expect to be free to use it as you see fit: to adapt it to suit your needs, fix it when it breaks, re-use it, lend it, sell it, or give it away when you’re done with it. Your freedom to do those things is a necessary aspect of your ownership of those objects. If you can’t do them, because the seller or manufacturer has imposed restrictions or limitations on your use of the product, then you don’t really own them. Traditionally, the law safeguards these freedoms by discouraging sellers from imposing certain conditions or restrictions on the sale of goods and property, and limiting the circumstances in which those restrictions may be imposed by contract.

Source: Patents Are A Big Part Of Why We Can’t Own Nice Things: the Supreme Court Should Fix That

Patent law out of control again

In this case, Apple claimed that Samsung infringed patents for the slide-to-unlock feature, autocorrect and a way to detect phone numbers so they can be tapped to make phone calls. The bulk of the award, $98.7 million, was for the detection patent that the earlier panel said wasn’t infringed. The February decision also said the other two patents were invalid.

Source: Apple Wins Appeal Reinstating $119.6 Million Samsung Verdict

Really? Slide to unlock, autocorrect and detecting phone numbers?