Posts Tagged: "Apple"

Last week, the Patent Trial and Appeal Board (PTAB) issued 51 institution decisions, with denials narrowly edging out institutions by a 26-25 margin. In a decision on six Apple petitions, the PTAB terminated the consumer electronics giant’s challenges as time-barred; Apple had sought joinder to an already-terminated proceeding brought by Samsung. Elsewhere, Apple did successfully team up with Samsung and LG Electronics to challenge two patents owned by non-practicing entity Uniloc. Comcast had five petitions challenging a Rovi patent denied, but succeeded on one petition, which included seven obviousness challenges on that same Rovi patent. Expedia and various Internet travel booking websites lost out on a challenge to an IBM patent based on arguments already considered by the PTAB. Peloton Interactive also faces the potential invalidation of claims of three patents after a trio of successful institutions for Flywheel Sports.

After three hearings and 45 witnesses, there were few new fundamental arguments advanced for or against reforming patent eligibility law at today’s final Senate IP Subcommittee hearing on the topic, but several key—and some alarming—messages were underscored. A few takeaways off the bat: there are going to be considerable changes to the working draft. In particular, there were four issues that Senator Thom Tillis (R-NC) noted were raised repeatedly. First, both sides agreed the new proposed definition of “utility,” which requires “sufficient and practical utility in any field of technology through human intervention” needs to be further defined; those for reform felt that the language could be too narrowly interpreted, while those against feared it was not definite enough. “Clearly, those terms need better definition or more meat on the bones,” Tillis said. Secondly, everyone was concerned with Section 112(f). Tillis pointed to the practical argument made by inventor Paul Morinville about the impossibility of meeting that requirement in the context of software coding language, for example, while Tillis said the tech companies were afraid the language wasn’t strong enough to weed out overbroad software and business method claims that most agree should not be patent eligible.

Last week at the Patent Trial and Appeal Board (PTAB), 23 institution decisions were issued based on petitions to challenge the validity of patents via inter partes review (IPR) proceedings. Only four petitions were denied institution last week, while four petitions that were instituted were joined to other IPR proceedings already ongoing at the PTAB. Qualcomm faced two institution decisions, adding to the legal troubles the company has faced in recent years in enforcing its intellectual property. Apple secured three successful decisions to institute, including two IPRs that are joined to other proceedings brought by HTC Corporation. Visa, Netflix and Guest Tek Interactive Entertainment also saw successes with their IPR petitions, while ResMed had two petitions instituted and two denied by the PTAB. 

If a judge ever botched an antitrust case involving patents, the prize may go to federal district Judge Lucy Koh for her ruling in favor of the Federal Trade Commission (FTC) in its antitrust action against Qualcomm. The intersection of intellectual property and antitrust is riddled with land mines and booby traps. The danger of getting an IP issue in this vicinity wrong becomes all the more likely after the Koh ruling and, thus, all the more dangerous and far-reaching. Judge Koh managed to step on several trip wires in her decision for the FTC in a case that should never have been brought, never tried, and should have been withdrawn or dropped. The damage from this ruling will reverberate far beyond the global leader in wireless connectivity technology the FTC unfairly hammered in this case. “Patents are a form of property,” Assistant Attorney General for Antitrust Makan Delrahim has said, “and the right to exclude is one of the most fundamental bargaining rights a property owner possesses. Rules that deprive a patent holder from exercising this right . . . undermine the incentive to innovate.” Basic principles like property rights, exclusivity, dynamic competition and the incentive to innovate escaped Judge Koh’s grasp.

This week in Other Barks & Bites: the Senate IP Subcommittee announces its roster of panels for its first two of three hearings on patent eligibility in America; the U.S. International Trade Commission institutes a Section 337 investigation of lithium ion batteries over trade secret claims; reports indicate that Amazon could buy Boost Mobile; Poland files a formal complaint over the European Union’s new copyright rules; Time settlement leaves open question of copyright infringement for photos embedded on social media posts; Finjan Holdings loses patent infringement claims against Juniper; VoIP-Pal.com announces positive results at the PTAB and U.S. district court; Japan’s IP court hands win to Nintendo in Mario Kart trademark case; and the Federal Circuit vacates district court over failure to consider joining relevant patentee.

In a 233-page Order issued yesterday, Judge Lucy Koh of the United States Federal District Court for the Northern District of California handed Qualcomm a stinging defeat in the case brought by the Federal Trade Commission (FTC) alleging that Qualcomm engaged in unlawful licensing practices. It was just three weeks ago that Apple and Qualcomm entered into a peace treaty. The revelations about Apple’s coordinated efforts to manipulate the licensing market by shrewdly challenging inferior patents to beat down prices should have led to the FTC dropping its pursuit of Qualcomm. It is no secret that Apple has urged regulators all over the world to chase Qualcomm for alleged anticompetitive licensing practices, but it has now come out in federal court proceedings that Apple just didn’t like the rate it agreed to pay Qualcomm and decided to manipulate the marketplace and then use that manipulation to pull the wool over the eyes of regulators, including the FTC, in an attempt to leverage a better deal with Qualcomm.Apple succeeded in achieving peace with Qualcomm, although the company has been badly beaten by Apple in near collusion with regulators all over the world. So why would the FTC continue to persecute Qualcomm given the revelations in the Apple/Qualcomm litigation that demonstrate that Qualcomm did not seek an unreasonably high licensing rate?

This week in Other Barks & Bites: Chinese state political advisors suggest changes to the country’s copyright law, including stronger punitive measures for infringement; President Donald Trump bans Huawei telecommunications equipment from use on U.S. networks; Korean IP offices get ready to study inter-Korean IP cooperation; Huawei and Samsung reach a conclusion to their worldwide patent litigation; AbbVie okays a generic Humira treatment in 2023; Disney escapes Pirates of the Caribbean copyright suit unscathed; Guns N’ Roses files a trademark suit over a beer; Qualcomm enters into another worldwide patent license for 5G technology; and Procter & Gamble unveils its largest research and development center after $400 million upgrade to Ohio facility.

I am Emil Malak, CEO of VoIP-Pal.com Inc., and a named inventor on two U.S. patents–Mobile Gateway: US 8,630,234 & Electrostatic Desalinization and Water Purification: US 8,016,993. To date, our company owns 22 issued and or allowed patents, which we developed over the past 15 years. Against all odds, we have been 100% successful in defending eight Inter Partes Reviews (IPRs): four from Apple, three from AT&T, and one from Unified Patents. We are presently in litigation against Apple, Verizon, AT&T, Twitter and Amazon. My experience with Voip-Pal has made it painfully clear that the deck has been stacked against companies who own IP being used without license by large tech companies. The America Invents Act (AIA), orchestrated by Silicon Valley, was designed to destroy the very ladder they climbed to ascend to their lofty perch, and make certain that they could not be challenged.

In our first article examining the 2018 patent market, we provided an overview of the data and found that prices were stabilizing across listings, buying and selling programs were becoming more streamlined, and there were more transactions overall. This trend extends to “patent packages” as well. At 591 packages (502 last year), listings have increased by 17.7%. The only year in which we saw more listings was the 2016 market. If the assets from Provenance Asset Group were included in these numbers, the numbers would show an all-time high. The number of total assets and of U.S.-issued patents also increased (see Table 2). We have benchmarked our deal flow with that of other large corporations and defensive aggregators and have found that the number of brokered packages we received is generally similar, so we are confident that our numbers reflect the market. Compared to prior years, the total number of U.S.-issued assets listed in packages increased twice as fast as the number of packages listed. Notably though, the total number of assets listed increased even more than the U.S.-issued assets. This signifies the continued importance of international assets and an elevated level of focus on elements of a package other than U.S.-issued assets. But, U.S.-issued assets are still the focus in most listings (see Figure 4). While we limit the types of package included in this dataset to the more common types (e.g. quasi-public/brokered packages containing 200 or fewer assets), we also track larger bulk deals and private deals.

On October 11, the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA) was enacted into law after passing both the U.S. Senate and House of Representatives. The bill was drafted in order to modernize U.S. copyright law as it relates to the licensing of copyright protected music for use in digital streaming services such as Spotify or Apple Music. Such digital service providers (DSPs) may obtain a new kind of license created by the law, known as a blanket license, which covers the distribution of all musical works available for compulsory licensing. DSPs may then make these works available to consumers through covered activities, such as delivering digital phonorecords of musical works available in the form of a permanent download, a limited download or as an interactive stream.In short, the blanket license under the MMA allows Spotify and others to offer streaming music services without having to negotiate licenses with copyright-owning entities, including recording studios and songwriters. Instead, these streaming services would obtain a blanket license from the Mechanical Licensing Collective (MLC), another new feature of the MMA. The MLC is a non-profit entity responsible for administering blanket licenses to DSPs, collecting and distributing royalties, enabling copyright owners to claim ownership of musical works and administering a process by which royalties for works with unidentified owners are equitably distributed to known copyright owners. The statutory language of the MMA directs the Register of Copyrights to designate the membership of the MLC within 270 days of enactment of the law. Given the date on which the MMA was enacted, this would indicate that July 8 of this year is the deadline for Register of Copyrights Karyn Temple to designate the MLC that would start administering blanket licenses at the beginning of 2021. There are two groups that have proposed their own membership of the MLC to the Copyright Office: a coalition of major publishers from the music industry, including the National Music Publishers Association (NMPA), Songwriters of North America (SONA) and Nashville Songwriters Association International (NSAI); and the American Music Licensing Collective (AMLC), a collection of songwriters, musicians, tech developers and executives from smaller rights organizations and publishers within the music industry.

This week in IP news: the CASE Act, which would create a small claims system for copyright claims, is reintroduced in both houses of Congress; Qualcomm earns a massive $4.5 billion payment from its settlement with Apple; the U.S. Supreme Court seeks input from the Solicitor General on Oracle v. Google; and China amends its trademark law, increases copyright actions, and earns more than one-third of all 5G SEPs.

Now that Apple and Qualcomm have made peace it would be easy to allow the case and the issues to recede into the background. That is likely what Apple would prefer, and almost certainly why Apple made the decision to settle with Qualcomm rather than proceed with trial. The case presented an existential threat for Qualcomm, which would have required the San Diego tech company to fight as if the company depended on victory–because it did.  What is most shocking is how successful Apple was in its coordinated effort to manipulate the licensing market and effectively extinguish any reasonable notion of a fair, reasonable, and non-discriminatory rate (FRAND) in the process. Meanwhile, fabricated licensing rates wholly unrelated to the Qualcomm portfolio were used by Apple to dupe regulators into chasing Qualcomm across the world for committing phantom antitrust violations.

This morning’s edition of the Wall Street Journal carried a front-page article describing how the once mighty and untouchable online-advertising operation at Google has begun to struggle thanks to increased competition. With a disappointing revenue report that shows Google ad revenue slowing, and an inability or refusal to answer questions yesterday on the earnings call, Alphabet stock is currently heading for its worst trading day. Google accounts for over 99.5% of Alphabet revenue, so a slowdown in advertising revenue should be and is alarming. Online advertising revenue is where Google, and therefore Alphabet, derives its revenue.

As was recently reported by IPWatchdog Founder Gene Quinn, it has come to light that information made public by the California State Bar shows that Matthew Robert Clements, formerly an administrative patent judge (APJ) at the Patent Trial and Appeal Board (PTAB) has been hired as an attorney by consumer tech giant Apple Inc. Prior to his work as a PTAB APJ, Clements was a patent attorney at Ropes & Gray and he represented Apple as counsel in patent infringement matters, where Apple was a defendant. While at the PTAB, Clements served on APJ panels in a few dozen cases brought by Apple, a situation that raises questions of ethics and that brought to light other matters, such as a lack of any code of judicial conduct for PTAB APJs despite their importance in adjudicating U.S. property rights, which can be worth billions of dollars. We’ve previously reported on statistics showing the outcome of PTAB trials petitioned by Apple where Clements served as an APJ, noting that the mixture of those ingredients resulted in nothing short of a lethal cocktail for patents and their owners. With Clements’ departure from the PTAB now upon us, we wanted to revisit his career statistics at the PTAB using Lex Machina’s data analytics tools to see how the new Apple hire ruled in cases involving his current employer.

The Framework rolled out by Congress last week to fix Section 101 law in the United States will not improve the current 101 disaster. It codifies current exceptions and even adds an entirely new exception specifically intended to protect big tech monopolies. Congress is pitifully unserious about restoring our innovation engine. For more than 200 years, the U.S. patent system was the primary engine propelling the United States to lead the world in virtually every new technology. But over the last 15 years, activists in Congress, the courts and the administration pulverized this engine to benefit a few huge multinationals in exchange for political donations and favors. Today, the patent system is a complete failure causing technologies critical to our economy, job creation, global technological lead, and national security to flee the U.S. and go to China. In a brutal political irony, the Communist Chinese have a better property rights system than we do here in the U.S.