
Patent troll asks judge to turn off FaceTime and iMessages - doctorshady
http://arstechnica.com/tech-policy/2016/05/patent-troll-that-beat-apple-now-wants-judge-to-block-facetime-imessages/
======
dctoedt
> _' Apple "argued that VirnetX is improperly trying to secure an overly broad
> injunction so that it can be used to extract a massive licensing fee,"
> Law360 reported.'_

That's the usual dance. Normally, a non-practicing patent owner such as
VirnetX would FAR prefer to have the infringement continue, and thus get a
bigger payday, than to have the court order the defendant (Apple) to stop the
infringement. So, the patent owner pushes hard for just such a shut-down
order, to try to bulldoze the defendant into settling. Outside observers would
be forgiven for thinking that there's a certain element of "playing chicken"
involved. To a first approximation, this seems to be pretty much what happened
in the _NTP v. Blackberry_ case ten years ago. [0] [1]

[0]
[http://money.cnn.com/2006/02/24/technology/blackberry/](http://money.cnn.com/2006/02/24/technology/blackberry/)

[1]
[http://money.cnn.com/2006/03/03/technology/rimm_ntp/](http://money.cnn.com/2006/03/03/technology/rimm_ntp/)

~~~
oddevan
And now I'm wondering what the repercussions of Apple actually shutting down
FaceTime and iMessage with a notice saying "This feature is unavailable due to
a lawsuit filed by VirnetX, Inc."

I don't think they'd actually do it. It would probably be kinda stupid to do.
But it's fun to imagine.

~~~
cordite
Could VirnetX sue for defamation if Apple specifically said that?

~~~
thomasmeeks
You can sue for anything, so yes, but in this thought experiment they would
lose the lawsuit. In order for a defamation/libel lawsuit to be successful,
the statement must be untrue.

~~~
dnautics
Further, if it was found that they were executing this suit vexactiously, they
might be liable for anti-SLAPP damages.

------
caycep
The even shadier part of this is that VirnetX comes out of SAIC - shady US
govt. contractor (with a healthy private military contractor arm...). The tech
was probably funded out of taxpayer dollars, that they are using to (arguably
already) unethically profit off of.

------
51Cards
Maybe OT but I found this blog post by VirnetX while reading further into this
issue:

[https://www.virnetx.com/patent-trolls-ask-jason-
bourne/](https://www.virnetx.com/patent-trolls-ask-jason-bourne/)

~~~
kneel
VirnetX's version of 'imessage' was released May 2015.

Apple's imessage was released October 2011.

Yet they're suing because Apple infringed on their vague communication
encryption patents from the early 2000s.

There should be massive fines for patent trolls to deter this kind of
behavior. Patenting abstract ideas with no viable product should not be
allowed.

~~~
monochromatic
Haven't you heard? Abstract ideas aren't patentable--the Supreme Court cleared
everything up in the Alice decision!

/sarcasm

~~~
wsinks
Thank you for the sarcasm tag! I honestly use that on the internet lately
because 63% of everything is sarcasm and then it's just a whole ridiculous
mess of misunderstanding.

------
zaroth
I don't see any chance at all that a company could actually get an injunction
against iMessage based on a few patents like this. The judge will expect the
parties to negotiate in good faith and come to a settlement. Apple will have
to pay "a lot of money".

Could Apple not find prior art and invalidate the patent? Apparently not.

I assume a software patent in particular does not give VirnetX an absolute
right to shut down a product for which it is just a small component.

I do think patent awards for component functionality do not get adjusted
downward enough based on the relatively small weight of the subject matter on
the overall product. When one piece of software can be covered by thousands of
parents, violating a single parent should, most of the time, cost less than a
small fraction of the overall value of the product.

~~~
neurotech1
I wonder how patents like this are even valid.

IMHO The patent laws should be amended to require entities to both "articulate
a solution" and "add value" to make the patent valid.

For ARM (described in other posts as a NPE) their patent licenses are bundled
with a low-power processor core design that provides a solution to licensees
requirements. The core design adds value to the basic technology covered by
the patent.

The VirnetX patents shouldn't be valid as they merely describe an element of a
design, and not a particular means of implementation. This may fall under Sec.
112(f) "Means-plus-function" [0], but getting the patents invalidated is not
easy.

The EFF have tried to bust "stupid patents" [1] somewhat successfully. Please
donate to support this worthy cause.

[0]
[http://www.uspto.gov/web/offices/pac/mpep/s2181.html](http://www.uspto.gov/web/offices/pac/mpep/s2181.html)

[1] [https://www.eff.org/about/staff/daniel-
nazer](https://www.eff.org/about/staff/daniel-nazer)

------
vonklaus
Here is how we can start killing patent trolls vernetx stock is trading at
4.89 and has a total marketcap of $252M[0]. When the list a massive portfolio
(e.g. a huge weapons cache which is then publicly purchaseable) all major
companies and a fund set up by the ETF or a responsible steward, buy enough to
control the company. This would technically fund a patent troll, however, you
could limit the attack vector to a payout less than even a single win in court
would be given the apple lawsuit was >600M minus all the law fees.

There is conceiveably at least 1 other company with comprable shitty patents
that is public, so a bidding war race to the bottom would incentize prices
down instead of up if possible.

It could also be possible (in a much more gray possibly worse) way, actively
drum up interest for a patent trolls IPO from the alliance funds, and then not
invest in the fund, but release open source patents sourced from a different
provier inavlidating there ability to sue in the market, with the alliance
fund promising anyone using [ rediculously standard tech ] would have their
full support in leveraging the open source patents and fighting legal fees
associated with someone trying to invalidate the open source patents. this
could disincentize bad behaviour.

It is pretty rediculous a company that is less than 2 years old can win a
settlement for fucking twice it's market cap. I don';t think the market/law
could limit age/market cap as startups would get killed if bigger people poach
there stuff, but maybe some requirement to file suit of needing a working
product or service using the technology and maybe some combo of years in the
market / market cap, plus (which I think is critical) the public company must
be owned by some reasonably large but not insane number. e.g. if you quietly
ipo your shell and then you and your horrible 10-20 stakeholders foot the
legal bill, then you shouldn't be allowed to sue, but if hundreds/thousands ++
are buying it, then it is likely actually a real or semi legit company.

[0][https://www.google.com/finance?cid=663422](https://www.google.com/finance?cid=663422)

~~~
nickpsecurity
It's actually a good idea if they get a foundational patent on something with
no other alternative and fees higher than the troll is worth. In this case,
they've... probably for buddies at DOD/NSA that fund them... created patents
on encrypted messaging that they're using to sue everyone in a way that
weakens security if dodged and still legal in U.S.. Plus the judgments cost a
fortune.

I recommend big companies buy out the firms with foundational patents like
this from back in the day. They already do in big-company acquisitions with
patent portfolio being a big reason. Just an extension of that. Any other
patent trolls they should squash. Plus these wherever they can. Buying is last
resort.

~~~
sangnoir
> I recommend big companies buy out the firms with foundational patents like
> this from back in the day.

Would that be Nortel / Rockster Consortium approach? Sadly, big companies will
be tempted to 'monetize' the patents and/or use them as a competitive
advantage: and both are enforced via litigation. I supposed being sued by a
big tech company rather than a patent troll is better?

The worst case is when a tech company buys patents, sells them to an NPE and
then sics it on competitors, it's a good thing that'll _never_ happen.

~~~
nickpsecurity
The ones being sued were deploying end-to-end secure messaging in widespread
use. It would indeed be better if they had the patents and only sued other big
players.

------
api
What are the actual patents? I never see them explicitly listed anywhere.

~~~
janpieterz
As listed in the article:

[https://www.google.com/patents/US6502135](https://www.google.com/patents/US6502135)

[https://www.google.com/patents/US7418504](https://www.google.com/patents/US7418504)

[https://www.google.com/patents/US7490151](https://www.google.com/patents/US7490151)

[https://www.google.com/patents/US7921211](https://www.google.com/patents/US7921211)

~~~
bmuon
Could someone who knows about network engineering give a quick summary on
whether the claims make any sense? I do mostly front-end and to me they look
like "that's just how the Internet works".

~~~
api
It almost looks like DNSSEC is patented here... :P

~~~
nickpsecurity
Good call. It's broad enough to catch DNSSEC in a suit. I double up on claim
to buy this company given its patents are on Internet foundations. Too risky
to leave to trolling.

------
sndean
Maybe I'm really uninformed or haven't been paying attention, but I was really
surprised to see that a patent troll is traded on the NYSE:
[https://www.nyse.com/quote/XASE:VHC/company](https://www.nyse.com/quote/XASE:VHC/company)

Is that normal?

~~~
jb613
What is a patent troll really? In VirnetX's case, last time I checked most
(all?) of their patents were created in house.

There are numerous publicly traded stocks of companies that are mainly patent
holding entities: Acacia (ACTG), Finjan (FNJN), Inventergy (INVT), MARA, Wi-
lan (WILN), Hopto (HPTO), etc...

But where does the whole troll definition end - many mid-large corporations
have patents that they do not practice or not embodied in any product - so
aren't they trolls too? even if they haven't explicitly threatened legal
action with those patents - competitors view those patents as implicit
threats. So why not label them as trolls too? At the end of the day, every
patent holder can be considered a troll in some way - so the definition of a
troll really comes down to: patent troll = patent holder.

~~~
ksowocki
straw man argument is made of straw.

------
musesum
There is a really simple solution to patent trolls: make every patent follow
the guidelines for "Petition to Make Special". In other words: "use it or lose
it". PTMS was created to expedite patents based on the assumption that it
would be too costly to make an invention without patent protection.

For example is my patent:
[https://patents.google.com/patent/US5341429A/en?q=transforma...](https://patents.google.com/patent/US5341429A/en?q=transformation&q=ephemeral+material)
which has about 500+ citations. After the dot bomb, the company went out of
business. That patent was not picked up by a troll. Why? Not sure, but perhaps
the PTMS made it less useful for litigation.

------
MerlinDE
Why not just revolutionize patent laws? Make it only applicable if the patent
is used for a real product available on the market. That would make patent
trolling unattractive.

------
JustSomeNobody
As many people as there are who use these services, I wonder if it would cause
such a public outrage if they were turned off that congress would actually do
something about the broken patent system in the U.S.

------
makecheck
At this point the patent troll problem is so severe that I think any new law
needs to not only fix the problem, but _retroactively_ assess punitive damages
to all patent troll companies. It should be relatively easy to prove which
companies were created only to litigate (e.g. they have few employees and
produce no products related to the patents that they own). The fines should be
absolutely massive; to hell with these people.

~~~
Karunamon
You want to be careful with the "produce no products" bit - you'd stomp on
entities like ARM that don't actually fabricate chips, but create and license
designs.

Problem is, coming up with a definition of "patent troll" that's 100%
objective and can reliably differentiate between a benevolent NPE like ARM and
a group of snakes like VirnetX is tricky. Too strict and you'll have some
awful false positives. Too vague and you're reduced to arguing it in court,
something prohibitively expensive.

~~~
jb613
> Problem is, coming up with a definition of "patent troll" that's 100%
> objective and can reliably differentiate between a benevolent NPE like ARM

From what I can tell, ARM started 30+ years ago and sold physical chips. I am
missing when they morphed into mainly selling chip designs - and how were they
able to make such a transition without the publicity of lawsuits.

~~~
neurotech1
ARM were not really a chip company. The parent, Acorn Computers, produced the
BBC Micro. They didn't sell the physical chips as a product.

[https://en.wikipedia.org/wiki/Acorn_Computers](https://en.wikipedia.org/wiki/Acorn_Computers)

------
coldcode
This is a public company troll just buy up all their stock and toss them in
the nearest dumpster.

~~~
mwfunk
Wouldn't that be their biggest payday ever? They'd go out with a massive pile
of cash ahead of real patent reform that would otherwise tank their market
cap. I've got to think that that's Plan B for every patent troll, and that it
wouldn't be a disappointing outcome to them.

~~~
bduerst
Yeah, even assuming you bought the majority share and sued the executive team
for mismanaging the company, you'd have to prove they weren't focusing on
profits. Which they essentially are.

------
codedokode
It is actually interesting to see a patent troll suing patent troll.

~~~
piyush_soni
Downvotes? There have been proven incidences where Apple sued other companies
(and even non-competing businesses) offensively for frivolous and ludicrous
patents. Just because it's a loved company here, doesn't negate that fact
(Sure, the degree of 'trolling' differs).

------
bitmapbrother
I would normally have sympathy for Apple due to the voracity of this patent
troll, but Apple once demanded that Samsung pay them a $40+ per phone
licensing fee. Karma sure is a bitch.

------
Steeeve
The term patent troll is used without regard to any facts in the media these
days, and I fear that is doing harm to the patent system.

The patent system was designed to foster innovation. If you invent something,
you get protection for your intellectual property. It's not a requirement that
you produce a product. You could realize that you don't have the resources
right out of the gate and choose to license your invention to someone that
does. The days of submarine patents are over.

There are some entities that actually are patent trolls - companies that
collect patents for litigation purposes - but just because a lawsuit happens
doesn't mean that the plaintiff is a patent troll.

~~~
__jal
1) In what way is it "doing harm" to the patent system? Usually, when people
are vague about a harm, it is either because there is none, or it is some sort
of vague "causing people to not respect [thing]" or some such. I suspect you
mean the latter due to complaining about "the media". I, ahem, have very
little respect for that viewpoint. I do understand the arguments respect for
legal institutions being necessary for them to function, but respect is two-
way - act disrespectfully enough, and nothing is going to save you. Perhaps
more importantly, it is the patent trolls are the ones doing the damage, not
"the media".

2) This patent troll is an NPE, which is usually (along with, you know, suing)
the defining trait of patent trolldom. Why are you reciting grade-school
nostrums about the Noble Idea of IP protection in general when responding to
news about a particular entity in a particular case, who is quite clearly a
troll? If I'm missing something, do clue me in.

3) If I'm misreading you, please do clarify. Being specific about harm, to
whom, exactly, you're referring when bashing "the media", and perhaps why an
extremely simplistic defense of patents seemed needed here would all be
edifying.

~~~
Steeeve
> This patent troll is an NPE, which is usually (along with, you know, suing)
> the defining trait of patent trolldom.

Look at Goodyear. He was an NPE. He invented vulcanized rubber. Never saw a
dime. They even stole his name and built a company around it. He didn't have
the resources to sue.

Look at Robert Kearns. He was an NPE. He sued. It destroyed his life.

There's no special qualification to come up with an idea. Patenting is a
painful process. But it's a way to protect yourself. Just because people are
involved in a lawsuit doesn't say or mean anything.

Regardless, this company is not an NPE. They have a working implementation of
their secure messaging patent that is available on the app store.

> In what way is it "doing harm" to the patent system?

It's doing harm by framing inventors as villains rather than innovators.
You've judged this company based on no other information than that they are
referred to as patent trolls in an online article. If it's that easy for a
large company to quell innovators, then the purpose of patents in the first
place - to foster innovation - is gone.

\--- Regardless the verbiage is frequently inappropriate and certainly in this
instance.

