Back in March, we reported on a campaign in Japan seeking to raise awareness about the extreme copyright provisions in TPP. Of course, making copyright even more unbalanced is just one of many problems with TPP, and arguably not even the worst. Now activists in the country have launched a much broader attack on the whole agreement by filing a lawsuit against the Japanese government in an attempt to halt its involvement in the talks. As Mainichi reports:
A total of 1,063 plaintiffs, including eight lawmakers, claimed in the case brought to the Tokyo District Court that the Trans-Pacific Partnership pact would undermine their basic human rights such as the right to live and know that are guaranteed under the Constitution.
The envisaged pact would not only benefit big corporations but jeopardize the country’s food safety and medical systems and destroy the domestic farm sector, according to their written complaint.
As well as oft-voiced concerns that Japan’s key agricultural sector would be harmed, the plaintiffs are also worried that TPP will push up drug prices — something that is a big issue for other nations participating in the negotiations. The new group rightly points out that corporate sovereignty jeopardizes the independence of Japan’s judicial system, and said that the secrecy surrounding the talks:
violates the people’s right to know as the document is confidential and the negotiating process will be kept undisclosed for four years after the agreement takes effect.
Although it is hard to judge how much of a threat this move represents to Japan’s continuing participation in TPP, the legal firepower behind it is certainly impressive: according to the Mainichi story, there are 157 people on the legal team. At the very least, it shows that resistance to TPP and its one-sided proposals is growing — and not just in the US. But you can’t help thinking it would have been a good idea for concerned Japanese citizens to have made this move earlier, rather than leaving it to the eleventh hour, with TPP close to the finishing line.
Category: Patents
A Trade Deal Read In Secret By Only A Few (Or Maybe None)
Senate leaders were all smiles Wednesday after they broke a 24-hour impasse and announced they had reached a deal on how to move forward on a fast-track trade negotiating bill. That legislation would give the president expedited authority to enter into a trade agreement with Pacific Rim countries, otherwise known as the Trans-Pacific Partnership, or TPP.
But how senators will vote on this bill depends largely on how they feel about TPP. And there’s one problem.
“I bet that none of my colleagues have read the entire document. I would bet that most of them haven’t even spent a couple hours looking at it,” said Democratic Sen. Sherrod Brown of Ohio, who has acknowledged he has yet to read every single page of the trade agreement.
Because, as Brown explained, even if a member of Congress were to hunker down and pore over a draft trade agreement hundreds of pages long, filled with technical jargon and confusing cross-references –- what good would it do? Just sitting down and reading the agreement isn’t going to make its content sink in.
For any senator who wants to study the draft TPP language, it has been made available in the basement of the Capitol, inside a secure, soundproof room. There, lawmakers surrender their cellphones and other mobile devices. Any notes taken inside the room must be left in the room.
Only aides with high-level security clearances can accompany lawmakers. Members of Congress can’t ask outside industry experts or lawyers to analyze the language. They can’t talk to the public about what they read. And Brown says there’s no computer inside the secret room to look something up when there’s confusion. You just consult the USTR official.
“There is more access in most cases to CIA and Defense Department and Iran sanctions documents — better access to congressional staff and others — than for this trade agreement,” said Brown.
“You Can Read My Notes? Not on Your Life!”: Top Democratic Senator Blasts Obama’s TPP Secrecy
Sen. Barbara Boxer, D-Calif., today blasted the secrecy shrouding the ongoing Trans-Pacific Partnership negotiations.
“They said, well, it’s very transparent. Go down and look at it,” said Boxer on the floor of the Senate. “Let me tell you what you have to do to read this agreement. Follow this: you can only take a few of your staffers who happen to have a security clearance — because, God knows why, this is secure, this is classified. It has nothing to do with defense. It has nothing to do with going after ISIS.”
Boxer, who has served in the House and Senate for 33 years, then described the restrictions under which members of Congress can look at the current TPP text.
“The guard says, ‘you can’t take notes.’ I said, ‘I can’t take notes?’” Boxer recalled. “‘Well, you can take notes, but have to give them back to me, and I’ll put them in a file.’ So I said: ‘Wait a minute. I’m going to take notes and then you’re going to take my notes away from me and then you’re going to have them in a file, and you can read my notes? Not on your life.’”
You Can’t Read the TPP, But These Huge Corporations Can
The Senate today is holding a key procedural vote that would allow the Trans-Pacific Partnership to be “fast-tracked.”
So who can read the text of the TPP? Not you, it’s classified. Even members of Congress can only look at it one section at a time in the Capitol’s basement, without most of their staff or the ability to keep notes.
But there’s an exception: if you’re part of one of 28 U.S. government-appointed trade advisory committees providing advice to the U.S. negotiators. The committees with the most access to what’s going on in the negotiations are 16 “Industry Trade Advisory Committees,” whose members include AT&T, General Electric, Apple, Dow Chemical, Nike, Walmart and the American Petroleum Institute.
The TPP is an international trade agreement currently being negotiated between the US and 11 other countries, including Japan, Australia, Chile, Singapore and Malaysia. Among other things, it could could strengthen copyright laws, limit efforts at food safety reform and allow domestic policies to be contested by corporations in an international court. Its impact is expected to be sweeping, yet venues for public input hardly exist.
Industry Trade Advisory Committees, or ITACs, are cousins to Federal Advisory Committees like the National Petroleum Council that I wrote about recently. However, ITACs are functionally exempt from many of the transparency rules that generally govern Federal Advisory Committees, and their communications are largely shielded from FOIA in order to protect “third party commercial and/or financial information from disclosure.” And even if for some reason they wanted to tell someone what they’re doing, members must sign non-disclosure agreements so they can’t “compromise” government negotiating goals. Finally, they also escape requirements to balance their industry members with representatives from public interest groups.
The result is that the Energy and Energy Services committee includes the National Mining Association and America’s Natural Gas Alliance but only one representative from a company dedicated to less-polluting wind and solar energy.
The Information and Communications Technologies, Services, and Electronic Commerce committee includes representatives from Verizon and AT&T Services Inc. (a subsidiary of AT&T), which domestically are still pushing hard against new net neutrality rules that stop internet providers from creating more expensive online fast-lanes.
And the Intellectual Property Rights committee includes the Recording Industry Association of America, the Pharmaceutical Research and Manufacturers of America, Apple, Johnson and Johnson and Yahoo, rather than groups like the Electronic Frontier Foundation, which shares the industry’s expertise in intellectual property policy but has an agenda less aligned with business.
US judge lobs antivirus patents back to Hell
A US district court has torn the heart out of two patents wielded by Intellectual Ventures against two antivirus makers.
In a judgment this week, Chief Judge Leonard Stark ruled that Intellectual Ventures’ US patents 6,460,050 and 6,073,142 were “ineligible,” meaning they are too vague and the technologies they described unpatentable.
The ‘142 and ‘050 patents described email filters designed to catch spam and malware. A third Intellectual Ventures patent, 5,987,610, which described “computer virus screening methods and systems”, was upheld by the judge.
The three patents were brought before the Delaware district court for scrutiny by Symantec and Trend Micro after they were sued by Intellectual Ventures for alleged patent infringement. The antivirus pair wanted the patents torn up so they could undo Intellectual Ventures’ case against them.
“Trend has firmly believed that Intellectual Ventures’ case has been based on over-broad construction of invalid patents since it was targeted by IV in 2010, and we are appreciative of today’s vindication on the validity issue,” Trend Micro’s general counsel Felix Sterling said in a statement passed to El Reg.
In a Thursday court filing, Intellectual Ventures agreed to abandon its legal action against Trend, though the two sides were at odds over how their court costs should be split.
As for Symantec, Intellectual Ventures has already won a $17m patent-infringement judgment against the California-based biz: $9m of of that was down to the ‘142 patent.
The ruling may be welcome news for those seeking patent reform and the elimination of “patent trolls” that acquire patents and sue companies for alleged violations. Groups such as the EFF have condemned Intellectual Ventures as one of the worst patent troll offenders. Even populist TV funnyman John Oliver has taken a pop at patents…
East Texas judge who oversaw 1,700 patent cases joins biggest IP law firm
US District Judge Leonard Davis said this week he’s going to leave the bench to join Fish & Richardson, a large law firm focused on intellectual property.
Davis, who has presided in the Eastern District of Texas since 2002, has one of the most active patent dockets in the nation and has presided over some of the biggest technology lawsuits of the past decade. Corporate Counsel magazine reported this week that he has handled more than 1,700 individual IP cases as a judge. Before becoming a judge, he worked for 23 years in private practice.Statistics for 2013 showed 263 new patent cases being assigned to Davis, about one-sixth of the 1,700 patent cases that were filed in the district, the busiest in the nation. Only four other judges, three in Delaware and one in East Texas, had more patent cases assigned to them.
“Shopping cart” patent troll shamelessly keeps litigating, and losing
Soverain Software, a “patent troll” with no significant revenue aside from patent lawsuits, made millions suing dozens of online retailers over a group of e-commerce patents, including one that essentially claimed an online shopping cart. Soverain’s money train got stopped cold when Newegg destroyed its patents on appeal in 2013.
Soverain, its lawyers, and its anonymous owners have had an extremely hard time realizing they lost. First, the company litigated for another seven months over, essentially, a typo in the Newegg ruling. The company asked for the US Court of Appeals for the Federal Circuit to reconsider its case en banc, but to no avail. Then it hired expensive Supreme Court specialists to write its petition to be heard by the high court, but that went nowhere, as well.
Even then, Soverain didn’t seem to understand that it wouldn’t be able to collect its nearly $18 million jury verdict against Avon and Victoria’s Secret, even though that case was based on the exact same patent claims as the Newegg case. Soverain went ahead and fought the appeal, despite really having nothing new to say.
“Soverain has not identified any significant new arguments that were not in fact raised in the earlier appeal,” a panel of appeals judges wrote in February, handing Soverain yet another loss.
One last try, in a familiar court
Soverain had a long list of retailers it intended to get royalty payments from after Newegg and filed one last wave of lawsuits in March 2012. However, those cases were put on “hold” once Newegg beat the patents on appeal, while Soverain pulled out all the stops trying to revive them.
This week’s ruling marks the end of the cases that were filed in March 2012. Of the many defendants, only Macy’s and eBay “fought” to the end.
Its appetite for courtroom losses apparently still not satiated, Soverain decided to press ahead against those last two. It told US District Judge Leonard Davis that it “no longer asserts” 27 out of the 33 patent claims it had initially brought, but insisted that those last six patent claims were “not affected by the Newegg decision.”
Perhaps Soverain thought it stood a chance, since Davis’ court is where it won its initial jury victories years ago. Davis, whose East Texas court has been one of the most popular in the country for patent owners, was the judge who allowed the “shopping cart” patent to go to a jury in the first place.
However, if Soverain wanted to indulge the fantasy that its last six claims held some kind of magical hidden breakthrough, Davis declined to participate. The judge invalidated the claims in an order issued earlier this week.
All six claims were “dependent” claims, relying on either claim 34 or claim 39 of patent number 5,715,314—both of which had been found obvious by the Federal Circuit.
The last six claims add tiny limitations to the already-invalidated patent claims. Two claims, for instance, talked about a system in which the “shopping cart computer” would send a “payment message” after the “buyer computer” told it to do so.
“[T]his Court must accept, and the parties do not dispute, the Federal Circuit’s determination that Soverain’s previously asserted claims are invalid,” Davis wrote.
Soverain wanted the case to at least go through a claim construction proceeding, but Davis found there was no reason for that to happen, and such a proceeding would “waste party and judicial resources.”
No matter how the last six claims are looked at, “it is clear that they do not add meaningful limitations that distinguish them from claims previously held invalid as a matter of law,” he wrote.
A Soverain spokesperson didn’t respond to Ars’ request for comment.
“We are pleased to have vindicated another innocent retailer targeted by Soverain and its invalid patents,” said Macy’s lawyer Kent Baldauf, who also represented Newegg at trial. “It took courage for Macy’s to stand up to a baseless case and defend itself to the end.”
Stupid Patent of the Month: GPS Tracking, or Something
GPS technology has been around for a while. Wikipedia puts the start of development at 1973. But it wasn’t until the 1990s that it became available for consumer use. And even then, it took some time before the government removed restrictions on accuracy that it had on its use by civilians. (The government had added an intentional error to the signal that made GPS variably inaccurate up to 50 meters.)
With the loosening of restrictions on GPS came furious development in consumer applications—and a flurry of patents.
Which brings us to this month’s Stupid Patent of the Month. The dubious honor goes to U.S. Patent No. 6,442,485, “Method and apparatus for an automatic vehicle location, collision notification, and synthetic voice,” filed in 1999. The “Background of the Invention” talks about a need for an automatic voice systems that could speak for a driver involved in a collision and transmit location details to 911. For example, the patent says that “[i]t would be desirable to have an automatic vehicle location and collision notification system that would ascertain if a vehicular collision had occurred and communicate directly with an emergency facility.”
But after this background, the patent devolves into a wilderness of made-up words and technobabble. The patent includes fabricated phrases such as “Location Comparator-Indicator Module” and “Automatic Speed Controlled Location Detection Module.” (Google searches of these phrases turns up nothing other than results related to the patent.) Reading the patent to try to figure out what it means becomes an exercise in cross-referencing and guesswork. Even worse, key terms in the claims (this is the part of the patent that is supposed to clearly explain what that patent covers) don’t even appear in the description of the purported invention. This means that it is very difficult, if not impossible, to understand what the claims mean and to guess how a court might interpret them.
This sort of made-up gobbledygook is likely what has allowed NovelPoint Tracking LLP, the owner of this month’s Stupid Patent, to sue over 90 companies for infringement. The latest round of lawsuits, filed on March 27, 2015, includes companies such as Subway (the sandwich artists, not a company related to transportation), McDonald’s, and Burger King.
And what do these fast food franchises have to do with vehicle location, collisions, and synthetic voices? With respect to Subway, NovelPoint claims that Subway’s Windows phone mobile application infringes NovelPoint’s patent.
Here’s the description of Subway’s app from Microsoft’s website:
Don’t know where to find a local Subway? We’re here to help. This app will display a list of local Subway locations along with the ability to get directions and let your friends know where to meet you.
We don’t know what, exactly, NovelPoint thinks it owns, but it looks like it is accusing Subway of infringing because it has an app that shows a map with directions. And given the incomprehensibility of its patent, it can get away with this, at least enough to secure a quick settlement and get out before a court rules that no, in fact, it doesn’t own a map with directions.
And indeed that is what appears to have happened. Of the almost 100 cases NovelPoint has filed, exactly none of the cases has had a decision on the merits of NovelPoint’s claims. From what we can see, all of the cases have settled very quickly, most likely for small nuisance sums.
Patent owners shouldn’t be able to get away with this. Patents should be clear and understandable. If new words are used, they should be defined. And if words already exist in the relevant art, they should be used. NovelPoint’s patent is a great example of how using fake terms can be used to obfuscate what the patent actually claims, and then used to claim infringement by something no one would have considered the patent owner to have invented. We have laws that should prevent this sort of gaming. The Patent Office and courts need to start actually enforcing them.
Stupid Patent of the Month: Attorney “Inventor” Games the System
The worst patent trolls bring weak cases and use the cost of defending a lawsuit as leverage to force settlements. A company called Joao Bock Transaction Systems LLC (“JBTS”) has elevated this business model to an art form. The company is associated with patent attorney and prolific “inventor” Raymond Joao. Apparently not content with drafting patents on behalf of others, Joao began to file his own patents. His companies have since launched dozens of lawsuits against technology ranging from streaming video to financial transactions. Of course, if you talk to the people who actually pioneered real-world technology, they’ve never heard of Joao or his companies. From all indications, Joao is solely in business of filing paper patents and forming companies to sue.
While all of Joao’s patents are contenders, we’ve chosen US Patent No. 7,096,003 (the ’003 patent), titled “Transaction Security Apparatus,” as our Stupid Patent of the Month. This patent, part of a family that includes US Patent No. 6,529,725 (the ’725 patent), relates to electronic financial transactions. The patent purports to describe a new system for secure transactions that includes a step of obtaining authorization from the account owner. The claims are drafted in vague, functional terms with language like “a processing device” that “processes information regarding a banking transaction” and “generates a signal containing information for authorizing or disallowing the transaction.” JBTS has been asserting the patent against dozens of banks and financial services companies, essentially saying that the patent covers any electronic transaction with a confirmation step.
What makes Joao’s patent extra special, however, is the staggering number of patent claims. All patents end with at least one claim (the claims are the part of the patent that are supposed to alert the public to the boundaries of the invention). The average number of claims per patent is around 20. The ’003 patent, however, has an astonishing 424 claims: a seemingly endless list of small, indeed mostly trivial, variations on the same idea. The related ‘725 patent has another 340 claims, bringing the total to over 750 claims all based off the same application.
We do not believe there is any legitimate reason for Joao to include so many claims in his patent applications. In fact, it appears this is done solely to allow him to game the system. First, it allows him to raise the cost of defending a lawsuit—for example, in its complaints, JBTS doesn’t identify a single claim that’s allegedly infringed, likely to prevent a motion to dismiss. More disturbingly, JBTS has used the duplicative claims to continue asserting the patents despite multiple defeats in court. Each time the company loses, it picks out some new claims and asserts those, even though they are largely identical to claims already thrown out.
AT&T Patents “Fast Lane” For File-Sharing Traffic
Despite the growing availability of legal services, unauthorized file-sharing continues to generate thousands of petabytes of traffic each month.
This massive network use has caused concern among many Internet providers over the years, some of which decided to throttle BitTorrent transfers. Interestingly, AT&T believes the problem can also be dealt with in a more positive way.
A new patent awarded to the Intellectual Property division of the Texas-based ISP describes a ‘fast lane’ for BitTorrent and other P2P traffic.
Titled “System and Method to Guide Active Participation in Peer-to-Peer Systems with Passive Monitoring Environment,” one of the patent’s main goals is to speed up P2P transfers while reducing network costs.
While acknowledging the benefits of file-sharing networks, the ISP notes that they can take up a lot of resources.
“P2P networks can be useful for sharing content files containing audio, video, or other data in digital format. It is estimated that P2P file sharing, such as BitTorrent, represents greater than 20% of all broadband traffic on the Internet,” AT&T writes.
To limit the impact on its network resources, AT&T proposes several technologies to serve content locally. This can be done by prioritizing local traffic and caching files from its own servers.
“The local peer server may provide the content to peers within the same subnet more efficiently than can a peer in another subnet,” the patent reads.
“As such, providing the content on the local peer server can reduce network usage and decrease the time required for the peer to download the content.”