Cisco Can't Shield Customers From Patent Suits, Court Rules 111
netbuzz writes "A federal appeals court in California has upheld a lower court ruling that Cisco lacks the necessary standing to seek dismissal of patent infringement lawsuits against some of its biggest customers – wireless network providers and enterprises – being brought by TR Labs, a Canadian research consortium. The appeals court agreed with TR Labs' that its patent infringement claims are rightfully against the users of telecommunications equipment – be it made by Cisco, Juniper, Ciena or others – and not the manufacturers. 'In fact, all of the claims and all of the patents are directed at a communications network, not the particular switching nodes that are manufactured by Cisco and the other companies that are subject of our claims,' an attorney for TR Labs told the court. The court made no judgment relative to the patents themselves or the infringement claims."
Re:I don't understand (Score:5, Informative)
The problem here is that the IP owners get to sue people with no knowledge or patents to fight back with. If Cisco gets sued, they have their own patents that they can use to fight back with. But, when a customer gets sued, they have to either settle, invalidate the patents or face losing the case.
This seems like bullshit to me as Cisco would be the ones actually infringing on the patents, assuming they are infringing, rather than the companies that bought Cisco equipment.
judges said Cisco products don't infringe (Score:5, Informative)
The multiple levels of judges have agreed Cisco's gear does not infringe. It can be used to infringe, or used in ways that don't infringe.
According to the rulings, suing Cisco would be like suing Xerox for copyright infringement. Just because a copy machine CAN be used by an infringer doesn'tmake Xerox liable.
I do wonder if Cisco products are DESIGNED to be used in the way that plaintiff claims is infringement. Cisco seems to be suggesting that.
The headline is misleading about the actual ruling (Score:5, Informative)
The headline is misleading about the actual ruling; here it is:
"TR Labs’ concession that it is willing to grant Cisco an unqualified covenant not to sue, TR Labs’ concession that it has no basis for asserting direct or indirect infringement claims against Cisco, including the parties’ agreement that Cisco’s products have substantial non-infringing uses, and Cisco’s failure to identify any obligation to indemnify or defend its customers distinguish this action from others in which this Court has found declaratory judgment jurisdiction and support the district court’s finding that it lacked the same. We therefore affirm the district court ruling."
http://www.finnegan.com/files/Publication/810cf458-9bde-4f9b-a98f-d5293cafbaad/Presentation/PublicationAttachment/11d7000f-5c7b-47ae-ad7a-db503720b379/12-1687%208-29-13.pdf [finnegan.com]
So because Cisco has no contractual obligation to indemnify their customers, and TR Labs is willing to give an unqualified covenant not to sue Cisco for direct or indirect infringement by Cisco's customers, and it's in the outside realm of possibility that all customers are using Cisco products in a non-failover configuration (the subject of the patents is failover) because they're stupid and fail to follow best common industry practice, Cisco is not a party to the suits against the customers.
Cisco could have taken this bullet if it had been willing to indemnify their customers via an amended terms and conditions on the Cisco OS software on the devices; it chose not to do so.
Re:I don't understand (Score:4, Informative)
"In fact, all of the claims and all of the patents are directed at a communications network, not the particular switching nodes that are manufactured by Cisco and the other companies that are subject of our claims,"
If you read that as is without any a deeper explanation I get the idea that TR Labs can sue anyone who has a communications network.
Again from TFA:
The patents TR Labs is asserting are U.S. Patent Numbers 4,956,835; 5,850,505; 6,377,543; 6,404,734; 6,421,349; 6,654,379; 6,914,880; and 7,260,059.
Am I going to look at those patent numbers? No ! I don't want to get get a migraine headache since many modern IT patents are written in "legalese" such that someone with a Professional Engineering (yes a real one) background who is actually conversant with the field has a hard time understanding the words. Of course the opposite applies since most legal people can understand the words but not the context.
Ok I did look at patent 4,956,835 and it was just like I thought it would be which is basically an implementation and still requires hardware which manufacturers like Cisco provide. The following is an intro:
The present invention relates, in general, to a method and apparatus for rapidly effecting, in a communications network, the restoration of communications between nodes whose interconnecting spans have failed for one reason or another.
I particularly like fig 1c which basically a stylised drawing of the USA (well worth the LOL look) - see here [google.com] and click on fig "1c" of Images which is the second image from the left.
Re:judges said Cisco products don't infringe (Score:5, Informative)
Xerox copiers would probably be used to infringe on copyrights, not patents, but ignoring that diffrerence, you can have two situations. In the first situation, the rights owner says that you are infringing by copying a particular book. In the second, the rights owner insists that the act of using a Xerox copier is infringing all by itself regardless of what you want to copy with it.
It would make sense that Xerox lacks standing in the first case, but it would make much less sense that Xerox lacks standing in the second.
According to the article, the company suing claims that Cisco's gear has substantial non-infringing uses and that it will not claim Cisco is a contributory infringer, which brings it a lot closer to the first case than to the second. It really would not make sense for Xerox to be able to intervene if some company is claiming that copying only one particular book is prohibited and other people could use Xerox copiers for other books without getting into trouble at all.
Furthermore, as other posts have pointed out, the custoimers that are being sued are organizations such as AT&T, Verizon, and Comcast, organizations that can easily afford lawyers to fight back, so this is not the situation where a big company sues some guy who uses a Cisco router in his home because he is poorer and makes an easier target than suing Cisco. Of course the Slashdot headline is misleading in this regard.
So there's really nothing to get upset about here.
Tactical Change (Score:5, Informative)
This decision is a 180 degree turn in logic from other court decisions on IP infringement. One example: file sharing sites being found guilty of providing platforms for illegal file sharing. But that's because RIAA and MPAA were in those cases specifically suing the creators of the platform, while at the same time pursuing other tactics against the users (file sharing individuals like Jammie Thomas).
TR Labs doesn't want to take on Cisco because Cisco is their cash cow. As long as Cisco keeps on selling products that infringe, TR Labs can sue customers that build networks offering services on those products. TR has no obvious business need to shut down Cisco. And TR probably considers their patents at risk if they sue Cisco directly, or they would have sued Cisco for very large amounts of money already. If Cisco thought their products infringed, they would certainly have spent some time negotiating and perhaps worked out a license. This route is lower risk for TR's alleged IP.
Re:I don't understand (Score:4, Informative)
Right. Except that computers have a single purpose...they do math.
This is not a new use of a known process.
You mention vulcanizing rubber. Furnaces have a single purpose - they heat things. Therefore, vulcanizing rubber isn't a new use of a known process?
Also, "doing math" isn't what's claimed, but rather specific operations that haven't been done before. They are, by definition, new uses of the older technologies.
This is saying "you're not allowed to write a computer program that does something in a certain instance". The courts are (again) failing to grasp the way that computers function. Vulcanization (of rubber) is a process. A computer program is an algorithm...math.
You're apparently not a physicist. Vulcanization of rubber is an algorithm... math. Gear ratios are algorithms... math. Every process or machine in the physical universe can be described mathematically. But that doesn't mean that a patent on an engine is attempting to claim all math, any more than a patent on a software method is attempting to claim all math.
The fact that you can control computer hardware (like a network connection) with software is about as far from non-obvious and new as you can get.
Good thing no one writes a patent claim that says "A method, comprising controlling computer hardware, period, the end" then, eh?
But really, this shows that your understanding of the issues is confused. Patent eligibility under 35 USC 101 is different from novelty under 35 USC 102 or obviousness under 35 USC 103. They're three different, independent requirements. You're trying to claim that all software should be exempt from patent eligibility under 35 USC 101... because it's all obvious under 35 USC 103? That simply mixes up two different statutes, two different bodies of case law, two different logical tests, etc.
Here's a simple question - imagine the most novel, non-obvious bit of software ever. Like, some brand new algorithm that can losslessly compress even random data by 99%. Go nuts with imagining the details - point is, it's a revolutionary bit of code that no one has ever thought of, and it wins billions of awards and the keys to the city. Should it still be unpatentable, merely because it's software? That's the issue about patent eligibility under 35 USC 101: should software, as an industry, be ineligible for patentability, regardless of how innovative or inventive something is.