

Kaspersky Lab Defeats Patent Troll   - techinsidr
http://www.securityweek.com/kaspersky-lab-celebrates-15-years-win-against-patent-troll

======
tzs
The story is missing a key detail: HOW did they win in court?

There are a couple of ways a plaintiff can lose. (1) the court finds that the
defendant did not do anything that is covered by any of the valid patent
claims. (2) the court finds that the patent should not have issued in the
first place, due to a problem such as prior art making it not non-obvious, the
patentee not being the inventor, and so on.

Knowing this is important because it determines who this case affects those
who are not Kaspersky. If Kaspersky won because they simply did not do
anything that is covered by the patent, but the patent is valid, then everyone
else still has to worry about that patent.

If Kaspersky won because the court found that the patent is invalid, then we
can all scratch this patent off our lists of patents we have to worry about.

(And all of this, of course, depends on what happens in the appeals court if
the plaintiff appeals).

~~~
shepik
Troll's claims were "dismissed with prejudice", according to Kaspersky's
personal blog. So, i suppose, this means that effectively the patent is
invalid.

<http://eugenekaspersky.files.wordpress.com/2012/06/dec.png>

[http://translate.google.com/translate?sl=ru&tl=en&js...](http://translate.google.com/translate?sl=ru&tl=en&js=n&prev=_t&hl=en&ie=UTF-8&layout=2&eotf=1&u=http%3A%2F%2Feugene.kaspersky.ru%2F2012%2F06%2F26%2Fkill-
the-troll%2F)

upd: court order: [http://www.scribd.com/doc/98161737/Https-Ecf-txed-
Uscourts-g...](http://www.scribd.com/doc/98161737/Https-Ecf-txed-Uscourts-gov-
Cgi-bin-Show-Temp-pl-File-7587570-0-27765)

[http://www.scribd.com/doc/98161154/Https-Ecf-txed-
Uscourts-g...](http://www.scribd.com/doc/98161154/Https-Ecf-txed-Uscourts-gov-
Cgi-bin-Show-Temp-pl-File-7750520-0-27466)

~~~
lrs
The Order indicates that Kaspersky won summary judgment on noninfringement
grounds, not invalidity grounds.

e: Not sure about this, but the Order also suggests that some of the Troll's
claims survived summary judgment and are proceeding to trial, so it's not
clear to me how complete of a victory this is. I'll check the underlying order
(this ruling was on a motion for reconsideration) and the PACER docket and see
what I can figure out.

~~~
lrs
The public documents in this case are heavily redacted, because the relevant
underlying facts involve confidential or sensitive information about licensing
agreements. That, plus my unfamiliarity with the underlying technology, makes
it tough for me to put together a complete picture of how this litigation
actually unfolded. But, as best as I can tell from a brief initial review of
the papers:

The Troll was alleging many different "flavors" of infringement that broadly
fall into two categories: direct and indirect. Direct infringement would be if
Kaspersky itself were violating the patent, for example by using patented
software itself. Indirect infringement would be if Kaspersky were inducing
others to violate the patent, for example by selling patented software to
customers.

Kaspersky moved for summary judgment, which is essentially asking the Court to
rule in your favor without a trial because the evidence is so overwhelmingly
in your favor that no reasonable jury could find against you and a trial would
just be a waste of time.

Kaspersky successfully argued that it wasn't directly infringing on the
patents because the patents described a method for having a computer carry out
some process, and in order to infringe, Kaspersky would have had to actually
carry out that process, rather than selling software that carried out that
process.

Kaspersky successfully argued that it wasn't indirectly infringing on the
patent because all of its customers were covered by preexisting license
agreements. Unfortunately, the key facts on this claim are redacted.

The Court granted summary judgment to Kaspersky on these grounds on most of
the Troll's claims, but there were a few remaining claims that fell outside of
Kaspersky's arguments. (These seemingly related to specific manipulations of
computer hardware? Not really sure, don't understand the technology and don't
want to learn it, already wasting too much time on this LOL)

After the Court granted summary judgment, the Federal Circuit handed down some
new case law that was directly on-point. This new law made it clear that
Kaspersky was going to win on those few claims that survived through summary
judgment.

Kaspersky moved for reconsideration, essentially asking the Court to consider
this new case and revise the original summary judgment order to dispose of the
rest of the claims as well. Unfortunately, there are some fairly strict timing
rules involved in moving for reconsideration and Kaspersky didn't comply with
them, so it wasn't able to win this motion.

However, the writing was on the wall at this point, and the Troll apparently
realized there was no way it could win at trial. On June 15, the Troll
voluntarily dismissed the rest of the claims, effectively giving up and going
home.

Congrats on reading this far. Happy to try to answer questions if you have
any. Others who might know more about the case should jump in and supplement
or correct me if I missed or misunderstood anything.

e: Responsive to the original parent comment in this thread:

1\. Given that the Troll voluntarily dismissed its claims - essentially
conceding defeat - I would be surprised if the Troll appealed. However, there
might be some grounds for appeal in earlier nondispositive motions relating to
interpretation of the patent claims.

2\. Kaspersky won on noninfringement grounds, but they structured their
noninfringement argument in a very elegant and powerful way that essentially
renders the patent-in-suit toothless while still technically valid. This isn't
legal advice and everyone knows it would be idiotic to rely on a HN posting in
making any decisions with potential legal consequences, but I personally would
go ahead and "scratch this patent off our lists." One down, several hundred
thousand to go...

~~~
keithpeter
"plus my unfamiliarity with the underlying technology, makes it tough for me
to put together a complete picture of how this litigation actually unfolded."

If you can't get the big picture, what chance does a lay jury have?

Isn't it time the US moved to a specialised patent court, as is found in many
other jurisdictions?

~~~
lrs
I think a good trial lawyer would probably be able to get a jury to a level of
at least rudimentary understanding of the technology over the course of a
multi-day trial. But I agree with the spirit of what you're saying. Reliance
on trial by lay jury is just one of the many, many ways the American patent
system is broken.

------
huhtenberg
Kaspersky is undoubtedly one of most interesting companies in the antivirus
space, if not _the_ one. They do a lot of research and they push things
forward instead of just scaremongering their userbase into buying annual
subscriptions to a bloatware like Symantec does.

That being said, they do ship some really buggy stuff that is an absolute pain
to deal with. For a couple of years I had to deal with support of a networking
application and every time a new type of bug report cropped up, the first
question was "do you have Kaspersky installed" inevitably followed by "yes, we
do." I just can't tell how many men-hours were sunk into chasing problems that
were ultimately created by bugs in their resident antivirus shields. It was
few years ago, perhaps things have changed for the better.

~~~
cantrevealname
_They do a lot of research and they push things forward_

Indeed, Kaspersky is superb. And if you're in the US, I have another reason to
recommend Kaspersky: It is most unlikely that US law enforcement agencies such
as the FBI could convince a _Russian_ AV company to whitelist FBI spyware.

Nor will the Russian government cooperate. Can you imagine the Russian
government saying to Kaspersky, "Yeah, sure, ignore the FBI's trojan horse,
don't flag it".

Of course the Russian government would have leverage to plant _its_ spyware in
Russian-made AV. So you would think that buying Russian vs buying American
makes no difference. Not so! Think about motivations: If you're an American,
the Russian government doesn't care if you cheated on your tax, if you
downloaded Hollywood movies, etc.

Buying your security from a different jurisdiction is a way to minimize risk.

------
nhebb
What impact, if any, does this have on the companies, such as Microsoft, that
previously settled and agreed to pay the licensing fees? Can they ride the
coattails of this success?

~~~
orthecreedence
That's what I was thinking too. It'd be really easy for them to terminate
their agreements with the trolls and start using the technology free again. My
guess is that at least some of them will take this course of action.

------
jack-r-abbit
Awesome. It is refreshing to see companies not only stand up to the trolls but
to actually win. We need more of this.

~~~
techinsidr
Especially a smaller (albeit well-off) company than some of the bigger ones
who caved.

------
vijayr
Surely, Kapersky can't be bigger than Microsoft and other companies mentioned
in the article? If they can fight it out, why can't the big guys fight it out?
If only the big guys took a stance, and fight these trolls, it'll be nice.

~~~
lrs
It's very expensive. Kaspersky almost certainly paid its lawyers much, much
more to take this case through summary judgment and trial prep than Microsoft
paid the Troll to go away.

Don't get me wrong, I'm with you. But...it's easy to pontificate on the
virtues of taking a principled stand against trolls when you're not
responsible to greedy shareholders.

Does anyone know who owns Kaspersky? It would be interesting to note who was
on the Board that OK'd the decision to open the company coffers to fund a
fight against a patent troll.

~~~
krasin
Unofficially, it's believed that Eugene Kaspersky holds the controlling block
of shares.

~~~
lrs
Seems consistent with what we're seeing in this case. Very hard to imagine any
VC greenlighting this sort of "it's the principle" litigation; very easy to
imagine a founder doing so.

