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The Courts Patents

East Texas Judge Throws Out 168 Patent Cases 153

Earthquake Retrofit writes: Ars Technica is reporting that an East Texas judge has thrown out 168 patent cases in one fell swoop. The judge's order puts the most litigious patent troll of 2014, eDekka LLC, out of business. The ruling comes from a surprising source: U.S. District Judge Rodney Gilstrap, the East Texas judge who has been criticized for making life extra-difficult for patent defendants. Gilstrap, who hears more patent cases than any other U.S. judge, will eliminate about 10 percent of his entire patent docket by wiping out the eDekka cases.
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East Texas Judge Throws Out 168 Patent Cases

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  • by Ol Olsoc ( 1175323 ) on Thursday October 01, 2015 @07:21PM (#50640479)
    I'm raising a glass of Resin as I write this.
    • Great decision, but it won't have much of an effect unless someone also throws out the approx. 100,000 to 1,000,000 remaining bogus patents on prior art, general math or totally obvious and trivial processes.

      • Gotta start somewhere. If trolls get the idea they no longer have a viable business model, when the courts have become part of that model, the patent troll industry will fall apart. Gotta take those victories as you find them.

        I have no doubt that judges have spent some time discussing this issue, and probably become a little pissed as they realized they were an integral part of that business model. Where it was heading was a world where extortion was the final goal, for every activity in life. Patent trol

    • I'm raising a glass of Resin as I write this.

      https://www.google.com/patents... [google.com]
      "Random access information retrieval utilizing user-defined labels"
      with reference to tape cartridges and Faxes...
      Seems to be another patent based on class notes and white board disclosure.
      This seems less inventive than a multi sided needle card sort.

  • Woops (Score:5, Insightful)

    by Anonymous Coward on Thursday October 01, 2015 @07:24PM (#50640503)

    Someone's bribe check bounced

  • Just maybe (Score:5, Insightful)

    by Ol Olsoc ( 1175323 ) on Thursday October 01, 2015 @07:25PM (#50640509)
    He figured out that the parasite school of economics wasn't going to work in the long run.
    • Re:Just maybe (Score:5, Insightful)

      by MyAlternateID ( 4240189 ) on Thursday October 01, 2015 @08:40PM (#50640949) Homepage

      He figured out that the parasite school of economics wasn't going to work in the long run.

      Yeah, suddenly authority figures are considering the importance of economic sustainability? That's a very nice fantasy. If we manage to improve the way the world works, then who knows? It could even happen.

    • Re:Just maybe (Score:5, Insightful)

      by amiga3D ( 567632 ) on Thursday October 01, 2015 @09:25PM (#50641221)

      eDekka's patents had to be seriously deffective to get tossed in East Texas. I doubt seriously that the judge actually wised up but more likely the case was so weak even he couldn't justify it.

      • The patent in question was one of the "XYZ well-known business process ON A COMPUTER" variety.

        They've always been widely regarded as tenuous - and in this case the company appears to be the creation of the lawyer representing them in court.

        Can anyone say "Prenda Law"?

    • Naw, they probably didn't do enough dinners at Jakes (county or downtown's only good food, upscale).
  • by Sheik Yerbouti ( 96423 ) on Thursday October 01, 2015 @07:27PM (#50640527) Homepage

    Looks like someones check didn't clear

  • Just one patent (Score:5, Informative)

    by tomhath ( 637240 ) on Thursday October 01, 2015 @07:40PM (#50640615)
    All the cases were related to the same patent, which the judge ruled was too vague. Clearly the right decision but there's still a long way to go.
    • Re:Just one patent (Score:4, Insightful)

      by Anonymous Coward on Thursday October 01, 2015 @08:16PM (#50640811)

      Imagine how long it would take to reign in Intellectual Ventures, owned by the biggest patent troll of all (Nathan Myhrvold)? Intellectual Ventures holds 30,000 patents. Revoking at a rate of two per day would take five lifetimes.

      The only solution is shocking the patent system to its core, disallowing *all* software patents and financially penalizing examiners that let "swinging on a swing" type patents get through (http://www.google.com/patents/US6368227).

      Not holding my breath.

      • Your math is off by about an order of magnitude. 30000 days is about 1 lifetime (82.2 years); at two patents per day it would take half as long. Still a damn long time, though.

        • Your math is off by about an order of magnitude. 30000 days is about 1 lifetime (82.2 years); at two patents per day it would take half as long. Still a damn long time, though.

          Yeah, how many judges are going to work for 82.2 years straight without taking a single weekend, holiday or vacation? If you fugue in a five day work week, three weeks of vacation and a dozen state/federal holidays, you're looking at 131.6 years. That's without sick days or personal time.

          If you also figure in that no one is born a judge, and have to go through law school and probably some time as a lawyer, five lifetimes sounds about right to me.

      • by raymorris ( 2726007 ) on Thursday October 01, 2015 @09:39PM (#50641317) Journal

        This particular judge invited defendants to file to have the troll pay their fees. That puts this troll, who is 10% of the problem, out of business.

        It wouldn't take too many cases in which Intellectual Ventures has to pay the people they sue before IV would run out of money and be gone. They are responsible for around 30% of the trolling.

        Four companies file 90% of the patent cases. Of the remaining 10%, many are legitimate disputes, so well over 90% of the trolling is those four entities. Put those four out of business and you've pretty much solved the problem of patent trolls. (And by making it costly for those four, others will be discouraged from attempting it).

        • Put those four out of business and you've pretty much solved the problem of patent trolls.

          Put those four out of business, and all you do is postpone fixing our clearly broken patent system. You want to solve patent trolling, stop the patent office from rubber-stamping the stupidest most general patents.

          • Once the Judicial system starts routinely tossing out the stupidest most general patents, there will be a precedent by which patents are measured, no matter how many wallpaper patents are issued. Eventually, people paying the fees to be issued patents will wise up and demand that the Patent Office stop milling patents to collect fees from them.

            At least that's the best case scenario I can dream up. It neuters the out of control Patent Office without any messy 'Patent Reform' needed.

            • For the courts to chuck something out, it has to first get to court. Of course, it only takes one person to force the issue, but most people will be essentially forced into settling because they can't afford to fight the case.

              • This in spades.

                The USA has no "loser pays winners court fees" model, so the trolls can afford to keep banging away.

                This model may change with a recent Supreme Court decision relating to patent trolls. Expect to see more orders for costs when they lose.

        • If the system had an escalating charge system like: first suit every month is free, second one you pay, third one you pay double, etc. it could make life more difficult for single entities... they'd have to fragment their identity to make the trolling cost-effective. Then you have to place a suitable cost on fragmenting of identities, which is another thing we've needed for a long time (the cost of creating a shell corporation is just too damn low.)

        • Put them out of business and somebody will buy their patents from the bankruptcy estate and start the process all over again. This will only work if a technology company that actually makes stuff purchases the bankruptcy assets.
      • Revoking zero a day, it would only tzake about 20 years for them to haave no more IP.

        And you only have to revoke ones they sue with for the rest ot be invalid.

        But also, I thought Intellectual Ventures had inventors that developed physical products.

  • I don't think Intellectual Monopoly should exist at all. But since it does there is no reason to call someone a troll. If ideas are treated like property there is nothing wrong just sitting on it until it's valuable.

    • I don't think Intellectual Monopoly should exist at all. But since it does there is no reason to call someone a troll. If ideas are treated like property there is nothing wrong just sitting on it until it's valuable.

      There is, it holds back progress. The point of patents is supposed to be to accelerate it. That's why, whatever else happens, their duration should be reduced.

      • There is, it holds back progress.

        Whats to prevent large corporations coming in and copying innovative work of startups then giving away products at a lower cost that they subsidize by higher profits in other divisions (putting the innovative startup out of business)? That's basically how it works now but they end up paying millions by buying out the smaller companies. Why not just copy?

        • Oh no! Companies selling thing for low profit margins? How terrible!

          • by gnupun ( 752725 )

            Yes, terrible!
            1) The large, non-innovative company simply steals the work of another company expending neither effort, nor time, nor money, nor creativity.
            2) Other startups refuse wasting time and money building new products.
            3) Customer lives with the same crap product for decades.

            • by turbidostato ( 878842 ) on Thursday October 01, 2015 @08:57PM (#50641053)

              "Yes, terrible!
              1) The large, non-innovative company simply steals the work of another company expending neither effort, nor time, nor money, nor creativity.
              2) Other startups refuse wasting time and money building new products.
              3) Customer lives with the same crap product for decades."

              Sensible rationale. It makes sense.

              But real world seems to probe it doesn't work that way: software development, for instance, has flourished without the need of a strong patent chest. Neither Microsoft, nor Oracle, nor Google, nor Facebook, nor Twitter, nor SAP, nor Red Hat, etc. made their way into big companies thanks to strong patent protection for their innovations, but by being innovative, fast to implement and with good business acumen. It's arguable, though, that they acquired a strong patent portfolio once they were big as a war chest against other big companies also with large patent portfolios and to increase the entry barrier for new competitors.

              • But real world seems to probe it doesn't work that way: software development, for instance, has flourished without the need of a strong patent chest. Neither Microsoft, nor Oracle, nor Google, nor Facebook, nor Twitter, nor SAP, nor Red Hat, etc. made their way into big companies thanks to strong patent protection for their innovations, but by being innovative, fast to implement and with good business acumen. It's arguable, though, that they acquired a strong patent portfolio once they were big as a war chest against other big companies also with large patent portfolios and to increase the entry barrier for new competitors.

                Just my humble $0.02 ... it's not often that someone puts forth a position and then, in the same "breath", considers the limitations of their position and/or the arguments that might be perceived as contrary to their own position. I wish that happened more often. It's refreshing. Thank you for doing that.

              • by dbIII ( 701233 )

                software development, for instance, has flourished

                Have you SEEN the shit we are using and how little it has progressed since the 1990s? Even the iPhone only got multi-tasking a couple of years ago.

                • What do you mean 'even the iPhone'?

                  Apple with their desktop OS were very very late in having anything but a joke of a multitasking system. They had to buy in an OS from outside the company to get real preemptive multitasking. The old Mac-OS was a joke. It isn't in their culture at Apple to do that kind of stuff.

                  • by dbIII ( 701233 )
                    Yes, that too. The hardware has progressed at a fantastic rate but we still have plenty of software with interfaces that confuse people and plenty of software that is needlessly slow or otherwise not taking advantage of the hardware. Most developers seem to have got the idea of 64 bit by now (only three decades late), but the concepts of being on a network, having multiple cpus and possibly multiple users seem to have still escaped them. The MSDOS mindset still thrives and the vast amount of malware infe
                    • Keeping most things single threaded is good though, it keeps the system much more stable and responsive.
                    • by dbIII ( 701233 )
                      Yes it is more difficult but why did you bother to go to school or otherwise learn how to do your job if not to be able to do more than the uneducated and inexperienced? Sometimes, especially with embarassingly parallel things like processing multiple images, it pays off many times over and in those situations there are depressingly few applications that take advantage of extra CPUs that have typically been in PCs for well over a decade. Even the original Nintendo DS has two cores.
                • by Dog-Cow ( 21281 )

                  The absolute best thing that could happen to mankind at this moment is for your death to be painful, immediate and extremely messy.

                • That's a misleading way to put it. The OS supported multitasking, but due to a conscious decision, it wasn't exposed to the apps. Meanwhile, the system was running various background executables.
              • by gnupun ( 752725 )

                Neither Microsoft, ... made their way into big companies thanks to strong patent protection for their innovations, but by being innovative, fast to implement and with good business acumen

                Microsoft has tons of patents. Excel would not have existed if Microsoft had not cloned it from Lotus 1-2-3. Visual Studio was largely copied from the Turbo Pascal IDE, IE killing Netscape Navigator, etc. These are prime examples of innovators getting stomped by predatory, copycat companies.

                • Excel is not a Lotus 1-2-3 clone. There were numerous Lotus clones on the market. I owned the one called 'Twin' for awhile. Excel was a complete new spreadsheet.

                  Incidentally, Visicalc was what everybody copied. That was the first spreadsheet.

                  IE was initially based on licensed code from NCSA Mosaic. Netscape is the company that 'hired away' the developers of Mosaic from their publicly funded jobs at NCSA (an academic institution) and privatized Mosaic.

                  Visual Studio was a continuation and adaptation of Vi

                • "Microsoft has tons of patents. Excel would not have existed if Microsoft had not cloned it from Lotus 1-2-3."

                  Was Microsoft a big company back when it "cloned" Lotus 1-2-3? (even if it had cloned it, which it didn't). No, it wasn't: therefore it is not an example of a big company eating the lunch of a little one because of patents.

                  Did Microsoft relied on patents for the success of Excel back then? Also no, and despite of that, IBM (the big fish in the pond, back then) didn't eat its lunch either, therefore

            • by trout007 ( 975317 ) on Thursday October 01, 2015 @09:44PM (#50641341)

              Sorry but customers are fickle. Look at the industries without IP like restaurants and fashion. Lots of innovation and competition. What will happen is instead of taking a long time and lots of resources to get a patent companies will push every upgrade to market as fast as possible to get the first movers advantage.

              • by Anonymous Coward

                First mover advantage.
                Production differentiation.
                Market segmentation.
                Branding. ...

                There are thousands of these mechanisms, some well studied, others which are unknown or otherwise unstudied phenomena. People who ask, "but where's the profit motive for capital investment in the presence of free riders", clearly don't understand business very well. Or are lazy or just disingenuous. They're begging the question of whether there's even a free-riding situation. They don't establish how often it's actually the ca

              • Look at the industries without IP like restaurants and fashion.

                Not really comparable. Restaurants have limited capacity and automation, so McDonald's cannot be 10 times cheaper than Papa Joe's Fries, so no winner-takes-it-all problem there. Fashion-aware people don't want to be seen in the same clothes as everybody else. In IT you do want to use whatever everybody else uses, it makes your life easier.

                • by Holi ( 250190 )
                  Fashion has no IP?? That's news to me. I am pretty sure every piece of clothing you see on the catwalk is protected by a design patent.
                  • Nope. The only monopolies the fashion industry has is their Trademark. This is why many brands include their trademark in the design. You can make an exact copy of a Nike sneaker with the exception of their Logo.

                    • Nope. The only monopolies the fashion industry has is their Trademark. This is why many brands include their trademark in the design. You can make an exact copy of a Nike sneaker with the exception of their Logo.

                      That's probably news to Nike. [google.com]

              • by gnupun ( 752725 )

                Look at the industries without IP like restaurants and fashion. Lots of innovation and competition.

                If I give you a dish, can you replicate it exactly? Even with tons of reverse engineering, it's tough.

                As for fashion, clones of designer stuff appear everywhere, so IP protection is needed and provided by the govt. You can't have innovation without some form of IP protection. Otherwise, one company will design the clothes and another will sell cheap knockoffs made using slave-labor in China.

                What will happen i

        • by Anonymous Coward

          As far as I know, no one is bitching about patents being used in this manner... or rather to prevent this. If a little startup invents some hot new product, patents should protect them and allow them to make money for their efforts, safe from copy-cats.

          What should NOT happen is a shell company introducing a patent that is intentionally vague, and describes several existing products in so much purple prose that the patent office literally let someone patent the wheel. No seriously, that's a thing that actua

        • by Anonymous Coward

          Your lack of imagination is not a sufficient rationale for a far reaching government regulatory regime.

          There are plenty of extremely profitable industries which lack strong IP protections.

          Take the fashion industry. It's almost entirely bereft of copyright or patent protections, and it's the backbone of many economics and is outsized even in developed economics. You can copy almost everything about a Nike shoe except the Swoosh and the name Nike. Same thing for almost anything else you can wear because of hi

        • If it's not patented, then it's a trade secret or subject to copyright. These have their own sets of rules.

      • Patents were conceived when 17-20 years was a reasonable time to protect something - things were slower to develop and market then.

        In the world of software patents, 17-20 months would be a more reasonable time frame. After which point, I would suggest an escalating "patent protection tax." Say you've patented a profitable idea, and at 18 months you're starting to see revenues build. Is it worth $10,000 to continue patent protection? If yes, pay the tax and get your protection continued, if no, let the i

    • by Garfong ( 1815272 ) on Thursday October 01, 2015 @08:43PM (#50640971)

      You need to look at the rational for granting patents. The original rational was that by providing a monopoly on an invention for a limited period of time, it would encourage inventors to publish new and useful inventions instead of keeping those inventions as trade secrets. So the original inventor would be guaranteed exclusivity for a period of time, and in exchange everyone would benefit after the exclusivity period had expired.

      But now people have started filing for patents which do not describe an invention in a useful manner, and then suing anyone who makes a similar invention. This basically reverses the intended purpose of patents.

      Analogy: patents were intended to protect invention prospectors from claim jumpers, but instead are being used by speculators who see an idea railway going a certain direction and buy up all the mindspace in its way.

      • by Anonymous Coward on Thursday October 01, 2015 @09:48PM (#50641351)

        The original purpose and function of patents was a method of rewarding people the King favored. How it ended up as an institution separate from the King relates more to attempts by the Parliament to limit the King's powers than to reasoned debate about the function of patents.

        The concepts of patents as a method of motivating people to publish trade secrets was an after-the-fact rationalization. Even so, it also helps to realize that for a long time patents were really only limited to methods of manufacture, not usages. It's easy to keeps methods of manufacturing secret.

        Which is why until the mid 20th century in non-Anglophone countries you couldn't, for example, patent a chemical or its use, but only the method of manufacture. This is one reason why the German and French chemical industries were so inventive and competitive compared to American companies in the first half of the 20th century. But then they got greedy and wanted the same protections their American counterparts got.

        The trade secret rationalization doesn't work very well in the modern era. It's much more difficult to keep manufacturing methods secret. And patents are so broad that that for the most part they protect things which aren't even remotely in dangerous of being kept secret.

        Which is why economists today favor return on capital investment as a rationale for the patent system. Like the trade secret rationale it seems logical on its face, but doesn't hold up to empirical data. There's no less innovation in the increasingly small areas where patent protection is non-existent than in patent-protectable areas. There may be more investment, but that's the tail wagging the dog in an analysis. _Output_, not investment money, is the relevant metric.

        People forget that the beauty of a free market system is that with enough wealthy capitalists, the necessary investment tends to happen even without government protections. Indeed, _especially_ without government protections like patents and copyrights. Once you start adding government monopoly rents, the money will chase those protections rather than seeking out truly innovative ideas. Without government protections it's not like capitalists will just sit on their money. Inflation provides all the incentive you need for capitalists to get out their and hustle, looking for profitable opportunities.

        • by Anonymous Coward

          Actually, the first patent-like thing was issued to Brunelleschi, because he came up with a way to move very large blocks of marble. There was no way he could keep this secret (trade secret being the usual scheme in the Renaissance) since it was in plain view, so he got the local government to provide protection against anyone else using it, for a limited time.

          Interestingly, the idea didn't work.

        • by caseih ( 160668 )

          Great post.

          People sometimes confuse trade secrets and patents. They often act like once something is patented, it's gone forever (big bad company took invention and patented it so we can never see it again). Yet patents are completely opposite of trade secrets. Trade secrets are, well, secret and hidden by nature. Patents are supposed to be open, and should explain exactly how to do something to someone skilled in the art. In terms of knowledge, patents are much better than trade secrets this way. Tho

          • Patents are supposed to be open, and should explain exactly how to do something to someone skilled in the art. In terms of knowledge, patents are much better than trade secrets this way.

            That's the theory, but it fails on both the openness of patents and the effectiveness of trade secrets. "Best practice" for patent applicants is to do everything you can to ensure that the patent provides insufficient detail to recreate the invention, while still remaining enforceable. In exchange they provide they get a 20-year de jure monopoly, during which time whatever information they deigned to provide cannot be used by anyone else without their permission. By contrast, while the holder of a trade sec

      • One of the nastiest patent abuse stories I read in recent years is the one about asthma inhalers. The government mandated that the propellant that had long been used be replaced with something that was ozone-safe (or something). The drug companies went and put out new versions of their identical medications and were able to re-patent the whole thing. Suddenly, there were no longer generics available for this tried-and-true medications, and the price went through the roof.

        Now, nothing new was invented, so

    • by rtb61 ( 674572 ) on Thursday October 01, 2015 @08:45PM (#50640983) Homepage

      A patent should not be about an idea that can not be produced. So twist enough words around faster than light travel, lock it in place and then keep extending out the patent, which is what in reality does occur in tech space. Ideas are routinely claimed without any ability to apply them and then decades down the track when the ability occurs they refine the patent and extend it on from that period, effectively hugely extended patent life and simultaneously blocking other companies from developing that technology earlier.

      There are many corruptions of patent and copyright law that hugely harm society and whose only purpose is the insane attempt to feed insatiable greed. Your PR stunt of I oppose 'BUT' greed first is pretty lame and disingenuous.

      • Anytime you say how some arbitrary system SHOULD work you leave it up to politics. And you can be 100% certain it will never be used how you think it should be.

  • Nothing to see here. [texasmonthly.com]

    Marshall, Texas. [eff.org]

  • by chromaexcursion ( 2047080 ) on Thursday October 01, 2015 @08:09PM (#50640763)
    The judge in question has learned a lot about patent law (he's only been a district judge for 4 years). He threw out the cases, and invited the defendants to file for attorney fees.
    The threat of having to pay attorney fees if they lose will stop patent trolls dead. Millions for defense, not a penny for tribute will take on a new meaning when you can get the millions back.
  • In other words, eDekka LLC just got tea-bagged.
  • by nerdonamotorcycle ( 710980 ) on Thursday October 01, 2015 @09:09PM (#50641123)
    was the venue of choice for patent trolls for a long time, because they were notoriously friendly to plaintiffs in such cases. Looks like that particular gravy train may have stopped.
    • by halivar ( 535827 )

      The sudden crush of eager plaintiffs may have done it. Judges need to golf, sometime, and this one had a bursting docket.

  • But this is first instance ruling from which the plaintiff can appeal, right? Not the end of the story, unfortunately.
  • by Anonymous Coward

    RTFA! The '168 patent cases' all stem from one patent troll that filed 168 cases over a single patent.

    ONE -- LOUSY -- PATENT

    The article more accurately highlights the litigiousness of patent trolls than a 180 in East Texas against patents.

  • Considering that the judgement brings the demise of a business dedicated to holding back invention from the very people that can make it work my initial reaction to the loss of their business model was:

    ahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahaaha hahahahahahahahahahahahahahahahaha

    Thank you judge!

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