
Apple loses patent retrial to the litigious VirnetX, ordered to pay $300M - dustinmoris
https://techcrunch.com/2016/10/01/apple-loses-patent-retrial-to-the-litigious-virnetx-ordered-to-pay-302-4m/
======
alricb
It should be noted that the patents in that case have already been invalidated
by the Patent Office:

"The U.S. Patent and Trademark Office conducted parallel reviews of the four
patents and on Sept. 9 said none covered new inventions." [1]

So now it's up to the Federal Circuit to determine whether the Patent Office's
ruling is right.

[1]: [http://www.bloomberg.com/news/articles/2016-10-01/virnetx-
wi...](http://www.bloomberg.com/news/articles/2016-10-01/virnetx-
wins-302-4-million-trial-against-apple-in-texas)

~~~
laurencei
...so how can Apple lose the case, if the patent itself is not valid? I'm
confused?

~~~
alricb
The patents _may_ be invalid; Mangrove Partners filed a petition with the
Patent Office to have them declared invalid, and the Patent and Trial Appeals
Board agreed. But VirnetX has appealed the declaration to the Federal Circuit,
which could find the patents valid.

If the Federal Circuit does find the patents invalid, the trial will have been
for nought.

(You could argue that it would have been better to wait for the validity to be
determined before proceeding with the trial, and indeed I think Apple did, but
East Texas being East Texas the judge went ahead with the trial anyway)

~~~
paulddraper
I'm unfamiliar with East Texas.

What exactly is is reputation?

~~~
geofft
[https://www.eff.org/deeplinks/2014/07/why-do-patent-
trolls-g...](https://www.eff.org/deeplinks/2014/07/why-do-patent-trolls-go-
texas-its-not-bbq)

> _Last year, there were just over 6,000 patent suits filed in federal courts
> around the country. One in four of those cases (24.54% to be exact) were
> filed in the Eastern District of Texas. But why do patent plaintiffs,
> especially trolls, see it as such a favorable forum? Partly, the district 's
> relatively rapid litigation timetable can put pressure on defendants to
> settle. But other local practices in the Eastern District also favor
> patentees. And, in our view, they do so in a way that is inconsistent with
> the governing Federal Rules, and work to mask the consistent refusal by the
> courts in the Eastern District to end meritless cases before trial._

It has a reputation for being so favorable to software patents that it's worth
setting up an office in the district just so you can have that judge decide
your cases.

~~~
skuhn
It's gotten even worse since then. A quick trip down memory lane:

    
    
      2003: 14 cases
      2004: 59 cases
      2006: 236 cases
      2013: 1386 cases (24.5% of federal patent cases)
      2015: 2540 cases (43.6% of federal patent cases)
    

The majority of those cases in 2015 were assigned to a single judge, despite
the fact that there are 5 active judges, 3 senior judges and 3 vacanies in the
district. Two of the vacanies have been unfilled for over a year.

Whether or not the Eastern District (and specifically Judge Gilstrap) are
actually more favorable to patent suit plaintiffs, this is straight up abuse
of venue and that causes it's own issues. The cost to a defendant to litigate
their case in Tyler, TX is an unnecessary burden.

------
josho
I don't understand why Apple, ms, Cisco, etc don't just set up a shell company
that works to invalidate patents owned by these companies.

For example, set up an EFF like non-profit whose mission is to invalidate bad
patents. Then these tech. companies can just throw money at the non-profit as
a preventive strike against patent trolls working in their solution space.

~~~
NetStrikeForce
Or maybe US citizens could vote for someone that invalidates software patents.
They're not valid in other parts of the world.

~~~
jwatte
If you believe that patents, in general, are more good than bad, because they
coax trade secrets out into the open after an amount of time, then they are
just as valid for inventive software as for i inventive
hardware/chemistry/biology/mechanics.

The problem comes when the bar for "inventive" and "novel" and "non-obvious"
is too low, and a guy or girl in a garage facing the problem to be solved is
just as likely to reinvent the solution independently. Often, it's the problem
that shapes the solution, rather than any particular inventiveness.

It turns out, other engineering disciplines also have this problem, but
because their times to market are much longer and more expensive, and their
times of prior art are much longer (and thus the foundations are more well
known/documented) it doesn't quite rise to the immediate existential threat
that it does for independent software developers.

~~~
AnthonyMouse
> If you believe that patents, in general, are more good than bad, because
> they coax trade secrets out into the open after an amount of time, then they
> are just as valid for inventive software as for i inventive
> hardware/chemistry/biology/mechanics.

There are important ways that software is different.

One is that software is inherently abstract. If you're making a battery or a
machine or a drug, it matters what materials you use, what the temperature is
at different points, how long the product lasts, how much it costs per unit to
manufacture, etc. In software there is none of that. But without any of those
constraints the inherent result is unreasonably broad patents.

This combines on the other end with the fact that software has effectively
zero reproduction cost, so there is trivial cost for adding support for
things. Which means combinatorial explosion. "You asked for a banana but what
you got was a gorilla holding a banana and the entire jungle." If you're
making batteries and you use A, B and C then it doesn't affect you if someone
else has a patent on the combination of D, E and F. If you're making software
there is no unit cost to adding support for everything from A to Z, so you do.
But then it doesn't matter which combination of things someone patents, you
end up unwittingly infringing it because you support everything and the patent
covers some subset of everything.

The result is unworkable. The system can't function when everything infringes
everything.

------
bbarn
> " VirnetX, a Nevada-based patent licensor, filed suit in an East Texas
> federal court"

Always East Texas. How is that crooked court still operating?

------
tf2manu994
Wasn't this the patent that stopped FaceTime from being an open standard?

Sad.

Damn patent trolls :(

~~~
ianlevesque
Yes, and forced them to move from a P2P architecture to proxying through their
servers instead.

~~~
briankwest
Then why aren't they going after Google for WebRTC? Chrome uses P2P to
accomplish the same thing.

~~~
ferbivore
Give them a moment, would you? We all want justice, but going against _two_
megacorporations at the same time would be sheer folly.

~~~
jwatte
"Justice"

------
ilaksh
Here are some details on part of it:

From
[https://search.rpxcorp.com/litigation_documents/9720690](https://search.rpxcorp.com/litigation_documents/9720690)

> infringe at least system claims 10 and 12 of the ’135 patent

which are:

> 10\. A system that transparently creates a virtual private network (VPN)
> between a client computer and a secure target computer, comprising:

> a DNS proxy server that receives a request from the client computer to look
> up an IP address for a domain name, wherein the DNS proxy server returns the
> IP address for the requested domain name if it is determined that access to
> a non-secure web site has been requested, and wherein the DNS proxy server
> generates a request to create the VPN between the client computer and the
> secure target computer if it is determined that access to a secure web site
> has been requested; and a gatekeeper computer that allocates resources for
> the VPN between the client computer and the secure web computer in response
> to the request by the DNS proxy server. > ...

> 12\. The system of claim 10, wherein the gatekeeper computer determines
> whether the client computer has sufficient security privileges to create the
> VPN and, if the client computer lacks sufficient security privileges,
> rejecting the request to create the VPN.

So basically they are saying if you make a VPN that uses DNS as a trigger for
creating connections and it and does a privilege check then you are infringing
on their patent. Which means you are supposed to get their permission or pay
them or something before you can sell software or services that do that?

To me, using the DNS server as a trigger for creating VPN connections seems
like a good idea. But this in particular or something very similar might
almost might be completely necessary unless you were going to pre-establish
connections or paths between every single user in the network, which is
absolutely infeasible in such potentially large networks.

Its like if someone spent a few minutes thinking about they would like DNS to
work in their VPN, they would come up with this idea, or something similar.

How is it a good idea to give control over this sort of basic research concept
to one company (or two working together)?

Software patents are just dumb.

------
boren_ave11
Good.

IP law is badly broken, and as it happens, those who are most disparately
impacted by its flaws (startups, individuals) are also the least well equipped
to fix it. Nothing will change without pain being felt by those who are
capable of influence.

------
ajmurmann
Is there a way to get judges in East Texas prosecuted?

------
moon_of_moon
Straight out of Jason Bourne. There is a cancer...

------
swayvil
Isn't this the same Apple that patented rounded corners?

Fuck em. Live by the sword etc...

~~~
camillomiller
If you're asking yourself why your comment is being downvoted:

\- no, it's not because you attacked Apple.

\- yes, it's because you wrote a shallow comment that was factually
inaccurate.

~~~
lightedman
Uhh, what part is factually inaccurate? In the 2012 trial against Samsung,
Apple most certainly did point out that a rectangular device with rounded
corners was an essential part of the design patent.

Seems like people voting things down have a very bad memory regarding history.
I suggest they take a trip to 2012 Memory Lane and read up on the entire year.

~~~
glenndebacker
Seems you have a case of a selective memory because the case in question had
some more arguments than round corners. It's intellectual dishonest to reduce
it to only that.

Samsung was being caught having a 155 manual
([http://www.theverge.com/2012/8/8/3227289/samsung-apple-ux-
ui...](http://www.theverge.com/2012/8/8/3227289/samsung-apple-ux-ui-interface-
improvement)) of how to copy the iOS UI. That alone is so clear that it's not
even funny.

That's a fact the iHaters always seem to left out, but the round corners on
the other hand...

I find it very hard to believe they won that case on the pure fact another
device had round corners.

~~~
piyush_soni
I find it hard to believe that they got the patent D670,286 approved in the
first place. The 'some more' arguments you are talking about were equally
insane. Icons arranged in a rectangular grid? How else are you supposed to
arrange them? Flat screen, button at the center? Are these patent-worthy? If
you notice, Apple themselves copied a lot before and after that incident. For
example, camera at the back, browser in a phone, icons you can touch (or
touchscreen itself?), etc. and the list goes on - so it's not that they
started everything from scratch. It's just that there was either no patent at
that time which covered such stupid things, or even if there was, they didn't
want to use them offensively. Yes, they had Samsung's internal document which
talked about copying their elements, but then they should have talked about
only those points. If one of the major (and first) points of argument is that
it had similar rounded rectangles and flat screen, people are definitely going
to mock them, and remember it "selectively".

------
swehner
They call it checks and balances

