decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books


Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook


Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

The key point is "Anyone Using.." | 172 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
I think they are out of their league
Authored by: Anonymous on Thursday, April 25 2013 @ 06:01 AM EDT
The problem I see with trolls' alleged patents on e.g. WiFi is this: The
manufacturer of the WiFi chip, which a device is using to implement its network
connectivity, has a license for all relevant patents. However, when the device
implementers start using that chip for its very intended purpose and
transmitting data, other patent holders who do not have a proper stake in the
mostly solid and well motivated hardware patents pop up and demand their

The main problem is not that patents exist, and B&N certainly do not ask for
a wholesale revocation of the patent system. They are asking that use of
licensed stuff should not require new licenses from unknown trolls popping out
of hiding when you start using the stuff for its intended purpose.

Trolls have no patents on WiFi. They have patents on some trivial and entirely
obvious use of WiFi or similar technology.

Trolls have no patents on MP3. They have patents on transmitting music by users'
requests over a digital network, or something similarly vague.

This is what causes the rot: the patenting of broad and unspecific ideas. The
trolls are just gaming the system, and they are bound to pop up in a system that
is as broken as the current one. Their litigation is immoral, but not illegal,
and they make big and easy money. There will always be people who have no
problems engaging in that kind of "business".

If litigation required a patent for a properly disclosed, novel and non-obvious
invention that was actually implemented and brought to market by the current
patent holder, which is along the lines of what B&N suggests, we wouldn't be
in the mess we are in right now.

[ Reply to This | Parent | # ]

I think they are out of their league
Authored by: PolR on Thursday, April 25 2013 @ 09:07 AM EDT
> Essentially, they are arguing that no patents should be enforceable on
anything that is useful enough to become ubiquitous.

I don't think so. They just state the end result of current patent law and they
say this is way too many lawsuits.

There are several ways to reach the same end result. For example they may be way
too many *invalid* or *overasserted* patents on things useful enough to be
ubiquitous. Then the cure is not a broad unenforceability of patents on
ubiquitous technology. It is to curb attempts to overassert narrow or invalid

Another problem may be clearance of rights. Normally the maker of things should
clear all patent rights and the user is OK because of patent exhaustion. Then
one shouldn't be sued on usage of ubiquitous technology because all rights have
been cleared. Barnes and Noble acts as an aggregator of existing technology when
they make the Nook. They should benefit from exhaustion. They say they don't.
Then we need an examination of why this happens. It it that the makers of
ubiquitous technology don't clear all rights to it? Or is it that the trolls
sued based on exhausted rights? Or is it that trolls have valid rights but to go
to the original maker?

[ Reply to This | Parent | # ]

B & N Stands On Solid Ground,
Authored by: albert on Thursday, April 25 2013 @ 12:18 PM EDT
by virtue of the many cases they won, against bogo-patents which should not have
been granted in the first place.

GP computers allow a user to install, run, or delete programs. They are
'reprogrammable'. The user can run new, unique programs that have never existed
before. That's we we have them. Embedded systems don't have this capability.
They are purpose built.

A patent was granted for a box that sends a fax when you triggered an input, yet
what patents were granted for a GP computer that does the same thing? Weren't
fax machines already patented?

Nothing you can do with a computer should be patentable.
Process or method patents should be permanently divorced from computers.

[ Reply to This | Parent | # ]

Authored by: Anonymous on Thursday, April 25 2013 @ 04:00 PM EDT
First, you are presuming that the patents actually describe an invention.
They do not. Most of these stupid patent use functional claiming to
claim ownership of, for instance, any sending of data by radio or some
equally stupid "invention." Read patents. The number that actually
describe true inventionsis essentially zero.

[ Reply to This | Parent | # ]

Authored by: Anonymous on Thursday, April 25 2013 @ 05:35 PM EDT
WiFi, MP3, 3G... ?

Those are not hardware.

[ Reply to This | Parent | # ]

  • Hardware? - Authored by: Anonymous on Thursday, April 25 2013 @ 09:12 PM EDT
The key point is "Anyone Using.."
Authored by: Anonymous on Thursday, April 25 2013 @ 06:57 PM EDT
If you have a valid patent that reads on WiFi, the place to take it is Broadcom,
Atheros, Intel etc. It is not appropriate to take it to simple users. They don't
make WiFi equipment. And, if it is valid, you'll get your license fees.

If it's a joke, you'll get your backside handed to you, as it should be.

[ Reply to This | Parent | # ]

I think they are out of their league
Authored by: Anonymous on Sunday, April 28 2013 @ 10:53 PM EDT
This reminds me of that company trying to sue anyone using a
scan-to-email functionality. Basically, you practice the
patented invention when you scan-to-email, but the printer
manufacturer doesn't infringe because they don't include the
computer network required to email...
Now I vehemently disagree with those lawsuits, but I think
that end users should be protected against lawsuits from
such companies.

IMO there should be a law something like:
1) A device which by itself does not technically infringe a
patent, but when assembled/installed/set up according to its
intent/instructions/affordances does infringe, is considered
-- That is, a company that sells a device that infringes
upon some patent only once the device is set up, the device
is infringing.

2) If a consumer purchases a product and uses it for the
intended purpose, the consumer is not infringing a patent.
-- This is to protect companies large and small from getting
in to patent lawsuits inadvertently; they have the
expectation that they can use the product they purchased
free from harassment.

[ Reply to This | Parent | # ]

Proof of non-obviousness
Authored by: ghopper on Tuesday, April 30 2013 @ 02:09 PM EDT
Essentially, they are arguing that no patents should be enforceable on anything that is useful enough to become ubiquitous.
I would say it this way: a patent should not be granted that would obviously become ubiquitous.

An obvious patent is contrary to the non-obviousness requirement of a patent. I like their suggestion of "Clear proof of non-obviousness". Here is a simple test: without being too specific about the patent, ask a group of high- school students to discuss the area of technology in question. If the discussion includes the technology in the patent, then those parts of the patents are obvious, and should not be patent-able.

If a patent examiner simply applied this test as a mental exercise, that would reduce the number of troll patents granted. However, even this high- school test is too low of a bar. The patent statue says something about obvious to a practitioner of the art. A practitioner means someone who is actively working in the field where the technology applies.

[ Reply to This | Parent | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )