Smartphones Patented — Just About Everyone Sued 1 Minute Later

This week the US Patent and Trademark Office issued a surprisingly (although I guess it shouldn't be) broad patent for a "mobile entertainment and communication device". Upon closer inspection you may notice that it pretty much outlines the ubiquitous smartphone concept. "It's a patent for a mobile phone with removable storage, an internet connection, a camera and the ability to download audio or video files. The patent holding firm who has the rights to this patent wasted no time at all. At 12:01am Tuesday morning, it filed three separate lawsuits against just about everyone you can think of, including Apple, Nokia, RIM, Sprint, ATT, HP, Motorola, Helio, HTC, Sony Ericsson, UTStarcomm, Samsung and a bunch of others. Amusingly, the company actually first filed the lawsuits on Monday, but realized it was jumping the gun and pulled them, only to refile just past the stroke of midnight. "

If I had invented the smartphone...

[by Anonymous Coward]

I would be pissed that all these tech companies rake in the money by ripping off my invention. Good thing the patent system protects our geniuses from intellectual property theft.

Re:If I had invented the smartphone...

[SEAL (88488)]

I would be pissed that all these tech companies rake in the money by ripping off my invention.

Odds are:

a) by the time the patent application was filed, it was already obvious
b) they didn't invent it, or they acquired the patent from someone else
c) they have made no effort whatsoever to put the invention into production

Re:If I had invented the smartphone...

[ObsessiveMathsFreak (773371)]

While your points are solid, here at the USPTO we pride ourselves in granting patents regardless of originality, gross obviousness and indeed, patentability itself.

We like to think of ourselves as a progressive institution.

not very smrt

[brian1078 (230523)]

no "smartphone" required. my 2 year old Verizon LG VX8300 is a "... mobile phone with removable storage, an internet connection, a camera and the ability to download audio or video files ..."

Re:not very smrt

[gravesb (967413)]

A quick glance at the patent shows a priority date of 1997. I'm not sure what all's covered by the initial application they filed in '97, but prior art references will have to be from 1996 to be iron tight.

Re:not very smrt

[stinerman (812158)]

The main problem here is "continuation filings". Using these, you can take longer and longer to amend your patent. Of course, that means that you can amend your patent to cover things that are already in the market. So file in '97 and file enough continuations until 2000 or so and you've just retroactively patented 3 years worth of progress.

What needs to happen is that if you file a continuation, the clock gets reset to that continuation. So file in '97 and file a continuation in 2000 means that anything in '98 and '99 now counts as prior art.

Re:not very smrt

[gravesb (967413)]

If you add new matter, its prior art date is of the continuation in part that you filed to add the new matter. Otherwise, all of the adjustments must have support in the original filing. Essentially, what you propose is the way the system works now.

Re:not very smrt

[reiisi (1211052)]

Could we say that's the way the system _is_ _supposed_ to work now?

Evidently, it doesn't.

Re:not very smrt

[stinerman (812158)]

At the very least, you can be extremely vague in the original filing, and then go "oh, yeah that's what I meant" a few years later.

"what needs to happen"

[Animaether (411575)]

what needs to happen is that they demonstrate, from the get-go, a device that does exactly what the patent describes. Enough of these theoretical patents already - describe, and demonstrate, an actual implementation of the thing and demonstrate how the implementation is non-trivial (+ the usual prior art discovery, etc.)

Re:"what needs to happen"

[the eric conspiracy (20178)]

The small inventor gets absolutely nothing if he 'locks up' the idea and nobody builds it. The incentive is clearly there for him to see the invention realized.

There are abuses in the system w.r.t. submarine patents like this one. Most of these occur because some parts of patent law are not properly interpreted or need reform. A ten+ year lag between initial filing and granting the patent is crazy.

But requiring the inventor to build the invention breaks all sorts of very productive business models. University research, small research companies, individual inventors, etc. etc. are a very productive part of the true innovative landscape that would be hurt badly by your proposal. Throwing the baby out with the bath water is not acceptable.

Good luck

[Weaselmancer (533834)]

These guys will be smashed into paste by hordes of the highest paid lawyers on planet Earth first thing Monday morning.

By Lawyers? Why not by an actual lynch mob?

[weston (16146)]

Seriously. I'm not at all sure that having their patent case demolished is good enough.

This kind of blood-sucking behavior is so transparently in bad-faith, so anti-productive, and so greedy, that it ought to carry criminal penalties.

Like the people who throw in clauses that trigger penalties and ridiculous interest rates for early payoff on loans, these are not the kind of people who cooperate in a society, they're psychopathic parasites.

But for whatever reason, right now we live in a society that rewards them instead of punishing them.

What I don't Get...

[SerpentMage (13390)]

I just roll my eyes and think is the USPO as dumb as the Fed?

http://en.wikipedia.org/wiki/Smartphone [wikipedia.org]

The first smart phone was developed way back when. But let's consider a more recent example:

The Nokia Communicator line was the first of Nokia's smartphones starting with the Nokia 9000, released in 1996.

The earlier chained patents was 1997. So I really wonder what pot, and I do mean pot, the people in the patent office are smoking.

Re:What I don't Get...

[cromar (1103585)]

I doubt it's pot. If they were smoking a bunch of weed, they probably would be too stoned to go through the applications without laughing their asses off.

Payola

[Weaselmancer (533834)]

I'd just look for a patent clerk driving a Lamborghini. Why look to stupidity when we have other equally icky human motivations for this?

I'm serious.

This almost has to be the work of bribery. How the hell could anyone not know that people have been putting video on cellphones already? How could you possibly claim that you haven't seen this before? Either it's bribery, or there's a patent clerk out there somewhere who doesn't own a TV and is communicating solely by carrier pigeon.

Re:Good luck

[Marcion (876801)]

how do they expect to fight a war on 10 different fronts...

... I hear Darl McBride will be available on the job market very soon...

Re:Good luck

[shmlco (594907)]

Just just be nine different fronts. Apple should file for summary judgement and immediately sue them for filing a frivolous lawsuit. The iPhone doesn't have "removable storage".

I have a question, your honour

[by Anonymous Coward]

Can you hear me now?

abusive behaviour

[Atreide (16473)]

putting abusive people in jail would make them think twice

they cost money to other companies, but also to state and law
how can tribunal tolerate such behaviour and not fine a big toll ?

apply the corporate death penalty, too

[Reality Master 201 (578873)]

Companies that do this kind of bullshit should not only have their officers face legal action, but their corporate charter revoked and their assets liquidated.

A hardship for the shareholders? Maybe, but also, too fucking bad.

Seriously

[spun (1352)]

Do this a few times and shareholders will be electing boards with actual morals and ethics beyond "How hard can we screw them." Corporations are a privilege created by the people, for the benefit of the people. If it isn't working out that way, we need to kill them.

Mod Parent Way The Hell Up...

[Penguinisto (415985)]

Seriously - I'd love to see a clause put into any patent (and copyright) based lawsuit filing, signed by the CEO himself, that says:

"I hereby swear under penalty of perjury that I am filing this lawsuit in good faith. Furthermore, if my lawsuit is found to be without merit, and is dismissed with prejudice, then my corporate charter shall be dissolved, and my corporation's holdings shall be split and sold to the highest bidder at public auction. Furthermore, my corporate officers, who are members of my corporation's board at time of filing, shall be individually levied personal fines of 3x their individual annual personal income (consisting of, but not limited to: salary, bonuses, incentives, and all other forms of income), as calculated on the year this lawsuit was filed. My corporation furthermore cannot be sold, merged, transferred, or acquired by any other entity until the lawsuit is concluded, nor can board members be replaced except in the event of death or permanent incapacitation. My corporation furthermore cannot issue any further financial instruments during this time period, until the lawsuit is concluded (instruments include but are not limited to: stock issues, bond issues, or any other forms of publicly traded debt)."

That would simultaneously wipe out the RIAA, the MPAA, and damned near every real patent troll on the planet...

...or at least make the fsckers think real hard before they do it.

/P

(PS: if you can improve on it or correct dumb mistakes that I was bound to include inadvertently, please, go for it).

Re:Mod Parent Way The Hell Up...

[JesseMcDonald (536341)]

Seriously - I'd love to see a clause put into any patent (and copyright) based lawsuit filing, signed by the CEO himself, that says:

"... if my lawsuit is found to be without merit, and is dismissed with prejudice, then my corporate charter shall be dissolved, and my corporation's holdings shall be split and sold to the highest bidder at public auction. Furthermore, my corporate officers, who are members of my corporation's board at time of filing, shall be individually levied personal fines of 3x their individual annual personal income ..."

Sorry, but the CEO doesn't own the company (the shareholders do) and doesn't have the authority to unilaterally give it way or dissolve its charter. Neither can the CEO levy fines on anyone, any more than you could. He/she could reduce or eliminate their future salary or wages, but then they'd just quit and go somewhere else.

Anyway, your proposal would be truly unfair to those who didn't have anything to do with supporting the decision to file the lawsuit, or who did support it, but in good faith. For the rest the existing penalties are, IMHO, more than sufficient.

Awesome`

[moogied (1175879)]

Finally, a firm got enough balls to blatantly abuse the living crap out of the patent system. Maybe this will start the much needed rework of the patent system.

Good for them!

[nwf (25607)]

I say, "good for them!".

Perhaps this is just what we need to make congress re-think our amazingly incompetent patent office. Clearly, computers can do all of this stuff, and a cell phone / PDA is just a hand-held version of a computer. Nothing really novel, but that never stopped the patent office.

Unfortunately, I missed my chance to patent patent trolling and further patenting the patenting of patent trolling. Etc.

Manufacturers to release hardware fix

[JonTurner (178845)]

Update kit consists of one drop of superglue, which you apply to the flash card. Presto -- no removable storage.
Who's laughing now, Mr. Patent Troll?

Re:Manufacturers to release hardware fix

[trickno (1227142)]

I don't have removable storage for my phone. I have a removable phone for my storage.

Re:Manufacturers to release hardware fix

[nschubach (922175)]

I call mine MemorySkin. It completely covers and protects my memory from harm (me dropping it.) I even found one that covers both my memory and my camera!

Do patent trolls ever win?

[jorghis (1000092)]

I have always wondered what patent troll companies got out of filing for patents that obviously have loads of prior art. Have any of them ever been successful at sueing a big company for an obvious concept that has tons of prior art? I cant imagine that any of the companies listed would want to just give money to the patent troll for fear of attracting more of them.

Yes

[by Anonymous Coward]

Sometimes they do .. for example the RIMM versus a patent holding company called NTP:

http://money.cnn.com/2006/03/03/technology/rimm_ntp/ [cnn.com]

Other situations companies settle such as this one where a company claimed it owned rights to JPEG

http://www.bizjournals.com/austin/stories/2005/02/21/daily14.html [bizjournals.com]

So yeah, patent trolling can be quite lucrative from a financial standpoint .. but I dunno what it does to the conscience.

Re:Three words ... Initial Public Offering

[Marcion (876801)]

Probably lots, I mean you don't have to actually every get to trial, if you have sold the stock then the cash is in the bag (e.g. SCO).

Still not the best example, but:
http://en.wikipedia.org/wiki/Eolas#The_patent [wikipedia.org]

They sued WHO?

[sirwired (27582)]

They do realize that IBM, from it's lofty perch near the top of the Fortune 500, doesn't take too kindly to patent extortion? Especially pathetic ones like this? The same IBM that is a company that does not manufacture phones of any kind, smart or otherwise? The same IBM that has a larger patent portfolio than the next-highest competitor by a substantial margin? The same company that probably has a patent on breathing and a another patent on filing patent lawsuits? The same IBM with a quite famous, take-no-prisoners legal strategy? The same IBM that just spent more in legal fees fighting SCO than the company was worth?

Methinks a couple of those plaintiffs are going to get dropped from the suit, quite quickly. Unless of course IBM wants to make an example of them (not out of the question), in which case they will have their patent forcibly invalidated, with maybe some Sherman Act sprinkled on top for good measure.

SirWired

Re:They sued WHO?

[TheRaven64 (641858)]

The same IBM that has a larger patent portfolio than the next-highest competitor by a substantial margin?

A large patent portfolio is only a threat against companies that actually make something. Standard operating procedure these days is to spin off separate companies to do the patent trolling.

The fact that IBM's lawyers are colloquially known as 'Nazgul' should probably be more worrying to them.

HP Omnigo 700lx, circa 1996

[jsimon12 (207119)]

This is one of the best cases for a production phone/pda that is prior to this filing:

HP OmniGo 700LX [daniel-hertrich.de]

Someone Making a Point

[Jedi Holocron (225191)]

I'd wager that this is someone trying to make a point about how broke the patent system is.

Hmmm...maybe it is Vonage!

Wow is this thing broad

[BigGar' (411008)]

It details 125 combinations of things in a hand-held device.

Here's the first the rest are an extensive list of variations on the theme:

1. A mobile entertainment and communication device for communicating with the Internet and remotely located telephones, comprising: a housing of a palm-held size; a cellphone provided in said housing, said cellphone adapted for selectively and wirelessly connecting to the Internet and remotely located telephones and adapted for controlling selection of at least one of (1) downloading data or uploading data from or to the Internet, or (2) downloading data to a computer or other electronic device and said cellphone having at least one of (1) voice controlled dialing, (2) a wireless earphone or (3) a wire connection jack earphone with a microphone for operation of the mobile entertainment and communication device; a memory operatively connected to said cellphone; a microprocessor operatively connected to said memory; said microprocessor adapted for storing data to said memory that is received from the Internet or a remotely located telephone; and a display panel operatively connected to said microprocessor, said display panel adapted for reproducing images or other data from at least one of said memory or the Internet, said other data including at least one of moving images, combined sounds and moving images, or music with or without images.

The whole thing looks like the product of a brainstorming session with everything under the sun included in the list.

The patent was filed on Nov 20, 2003. It lists an inventor but they haven't invented anything as far as I can tell only tried to be the first ones to list these items together in a patent application. In going over the list I doubt there's anything to terribly non-obvious in there. I'd be surprised if this isn't challenged rather than just paid out, but that's just an opinion and IANAL.

Patent Document is a Reqs Doc, Not Design

[GaryPatterson (852699)]

Basically you can gather a list of blue sky requirements, write them up in legalese and then apply for a patent. Easy! Any half-witted project manager can do that in their sleep.

It's trivial to list requirements. Actually solving the many problems in realising the requirements is where all the work is, and applications like this indicate nothing like that.

There is no technical detail here that indicates the patent applicant ever intended to make anything or worse - ever solved any of the problems involved in designing a product like this.

That's where I think the patent system fails - you can essentially patent a requirements document without ever needing to progress further. It's not rewarding an inventor, because an inventor would have either created a prototype or created a design sufficiently detailed to allow a prototype to be built.

Patents like this reward the wrong people.

requirements

[ProfBooty (172603)]

IAPE (I am a patent examiner). I can not discuss the merits of this case, but I can lay out some of the requirements to receive a patent.

The specification is to be in enough detail that one of ordinary skill in the art at the time the invention was made would possess sufficient knowledge to know how to make and use the invention based upon applicants disclosure. This does not mean that gate/circuit level designs are required, nor that enough detail must be present to enable a layman to make and use the invention or that the program code to implement the invention is required.

Examiners can do a 35 USC 101 rejection for enablement/best mode/in possession of the invention etc, if not enough detail is present to detail how to make/use the invention.

patent lawyers

[intthis (525681)]

i've been going through the motions of getting some software patented (using a specialist law firm in chicago) and mid-way through the process, i stopped proceedings to entirely rework / rethink the project, because some troll like this had written a patent for something disturbingly simple, and worded it such that it expanded miles beyond it's scope... to a point that it encroached on... well... everything...

every time i see cases like this, i have to wonder... do i just need shadier patent lawyers? or should i just rely on the people who review these things to be completely blind to all prior art?

Fails several tests for patent validity

[mpoulton (689851)]

First and foremost, the claims of this patent are not innovative or novel. They are merely obvious incremental advances in product complexity. The reason these people were able to list them all in a patent application years before the technology hit the market is simply because there were significant technical barriers preventing manufacturers from making a device with these features at the time. Without the basic technology to actually build the device, it's not possible to adequately describe the implementation for patent purposes. That brings us to the second major issue: Failure to reduce the idea to practice. The claims are stated, but at the time the patent application was filed there were significant technical limitations that prevented such a device from actually being built by anyone - and the application did not provide solutions to those problems. Moreover, the company did not undertake any ongoing research to find a solution to those problems (they just waited 10 years for others to do so). Consequently the application fails to provide enough information for one "skilled in the art" to reproduce the invention. In other words, it's a "flying car patent" - an idea is described that is not technically feasible and no practical implementation is detailed. I doubt the legal eagles will have too much of a problem shooting this one down. I think the interesting part is that it was ever granted in the first place. This is a fairly clear indication that the USPTO is relying on subsequent litigation as part of the review process.

Apple

[mandos (8379)]

So the story says they sued Apple among others. Isn't one of the complaints that some people have against the iPhone that it Doesn't have removable storage? That would seem to exempt them from this patent.

And the other patents held...

[bleh-of-the-huns (17740)]

I goggled the company that is the holder of the patent, apparently they also hold patents on Seat Belts and Air bags...... wtf!! http://www.gigatec.com/index.asp [gigatec.com] is the site that lists the other patents.

Re:Prior art?

[DaveM753 (844913)]

everyone?

Why this invention was not "obvious"

[billstewart (78916)]

One of the requirements for patenting something is that it can't be something obvious to the skilled practitioner. Most of the features he talked about were certainly obvious not only to skilled practitioners in the 1997-2000 timeframe, but to non-technical marketing people, the Nokia smartphone was out, and friends of mine were working on startups in that space, where the major non-obvious detail was "How do we describe this in a way that a VC will give us $4 million after we shake a tree in Menlo Park?", which, alas, we didn't quite find a satisfactory answer to :-)

But these trolls are describing a phone that not only had *each* of the features they claim, but in fact had *all* of them and still fit in a hand-held form factor. I'm pretty skeptical about the ability to fit a GPS device into a phone back in 2000 and still have it be hand-held, though hand-held GPS was certainly available. (I'm even more skeptical about the ability to have a satisfactory battery life if you did.) And I'm even more skeptical about the claim that they actually *did* reduce their concept of these devices to practice.

If you're not required to actually come up with the technology to build the thing, I'm perfectly able to imagine one of these things that fits in your ear canal and runs all year without recharging... So send me my check once you've built the thing.

Re:Prior art?

[zete (767115)]

We should just get the patent office to read some of Tesla's work. This quote illustrates Tesla predicting smart phones more than 100 years ago: As soon as [the Wardenclyffe plant is] completed, it will be possible for a business man in New York to dictate instructions, and have them instantly appear in type at his office in London or elsewhere. He will be able to call up, from his desk, and talk to any telephone subscriber on the globe, without any change whatever in the existing equipment. An inexpensive instrument, not bigger than a watch, will enable its bearer to hear anywhere, on sea or land, music or song, the speech of a political leader, the address of an eminent man of science, or the sermon of an eloquent clergyman, delivered in some other place, however distant. In the same manner any picture, character, drawing, or print can be transferred from one to another place... Nikola Tesla 1901

Re:Prior art?

[Chris Mattern (191822)]

Bueller?

Re:Prior art?

[jonbryce (703250)]

I think the Nokia Communicator 9000 was the first Smartphone, certainly in Europe. It was first introduced in 1996, and presumably in development for some time before that.

Treo 600

[bill_mcgonigle (4333)]

The patent was originally filed on November 30, 2003. Can anyone say for sure there was prior art before this date?

Here's an IT Week Review [itweek.co.uk] of the Treo 600 dated November 6, 2003.

It sounds like they read the review and worked up a patent for it over the Thanksgiving holiday. :)

How about a new standard for patents - that if a patent is filed when a practitioner of the art would ordinarily know the patent to be invalid, and the patent is not withdrawn between the time of filing and the time of issue, that it's a criminal offense?

This is getting out of hand - not the least of which that it's over 4 years since filing for this patent to issue because the system is all gummed up with bogus patents.

Re:They forgot to sue one party

[mrchaotica (681592)]

After all, where would God get a lawyer?

I'd bet he could think of one particular angel that'd be suitable...