VirnetX sues Apple again after winning $368M patent trial verdict

"VirnetX is looking to force a preliminary injunction against the alleged infringing Apple devices as well as damages related to their sale."

Ouch, where's that "It's not about money it's about sending a message" Joker image when you need it.

Ouch, something smells like patent troll here... "keep sueing as long as you're winning".

1. Is this the same IP that MS paid $200m for?
2. They have the same lawyer firm that Apple used for their IPO

So, this company doesn't have a single shipping product, yet Apple was ordered to pay $368million for allegedly infringing on patents that this company is trolling? 

Oh, and what a disgusting logo. You can always tell which are the scam companies by the piece of shit logos that would be embarrassing if they cost even $10. 

If you cannot prove your using it you should loose it (the patent)

The Judge here should throw out these holding company cases as they are an insult to developers who take their idea and make it real. 

Theory is cheap but to R&D a theory and make it real costs. 

Perhaps Apple should counter claim with the costs of the R&D that took their so called theory and made it reality.

You should at least go through and read up on it prior to making such a conclusion. It's difficult for me to believe that none of these methods of VPN access existed prior to this patent filing in the late '90s, but these have already been tested in court. Microsoft also fought them and lost. As much as I typically abhor software patents, there may have been some real R&D here. VPNs obviously existed prior to that. Given their victories, I suspect there's a lot of detail to research. I also hate some of the obvious crap Apple tries to patent (not all of which is granted).

 

It's at least the same company.

I thought that patents were to protect one's product from being copied by another product - so that one can benefit from the unimpeded sale of one's product. If a company has no shipping product, how is it possible that its sales can be affected? 

I support some sort of fair payment to recognise prior development - based on and reflecting the original costs of development; but punitive payments, or payments based on Apple's sales, are outrageous and do not reflect proportion or fairness. In this instance Apple's use of the technology did not in any way affect the sales of any product of VirnetX using that technology.

In other words (again), if Apple didn't use the technology VirnetX wouldn't earn any more money from protected sales of their own product - because they have no product.  

 

Is it known whether Apple offered to make a payment of some sort reflecting costs of development - and not based on volumes or revenues of Apple's products, real products that people buy? 

Apple has sued Samsung over design patents that they themselves don't use for a shipping product. According to you that's unfair?

Edited by Gatorguy - 11/10/12 at 5:07am

Keep in mind that we were giddy when a jury found Samsung guilty of patent infringement. Now a jury has found Apple guilty and we're incensed. I'm just saying.

Might Apple be better off making a "strategic acquisition"? After all, it appears that this company's IP lawsuits stick, if Microsoft also had to pay up.

No, the U.S. patent system isn't broken at all!

Speaking of trolls, how about the people who don't have any concept of how patent law works who keep making up arguments against "patent trolls".

This has been discussed ad nauseam previously. There is absolutely nothing in US Patent law which requires the inventor to exercise their patent in order to protect it. If there were, small inventors would be out of the game. There are many, many inventions which it would be impossible for a small inventor to practice - so you'd essentially make it impossible for many inventors to profit from their inventions.

Same as a factory owner. If I own a factory that makes widgets and decide not to manufacture widgets for some reason, is it OK for GM or Ford or GE to move into the factory and start making widgets because I'm not using it? Of course not. So why should intellectual property be any different?

Start by learning about patent law. Patents are not about protecting unimpeded sale of a product. Patents are an exclusive right to exercise the invention. If I invent something and then patent it, no one else has the right to use that invention without a license from me. It has absolutely nothing to do with whether I am selling a competing product or not.

Let me get this straight, Apple had lawsuits against Samsung for patents that Apple never used in a shipping product at some point? Or are you suggesting that if Samsung et al. copies a previous generation design of an Apple product, regardless of how close it is, that it should be allowed because it's no longer a currently shipping product?

Correct. Find where Apple says they're practicing the community design they claimed against Samsung in the UK or Germany or ever used it for an actual product. Same question for the US design patents they claimed Samsung to infringe on smartphones and tablets.

Edited by Gatorguy - 11/10/12 at 6:55am

I'm concerned about these VPN patents but many for Cisco. They haven't been sued yet and they are one of the largest distributors of VPN software and hardware. I can't imagine that Cisco wouldn't be able to invalidate these patents. Maybe that's why they haven't been sued. Once they try, Cisco will take them down but not before Virnetx collects a lot of money.

As far as Samsung's abusing of Apple patents, they knew they were using them. If you read some of the Virnetx patents, they start out by saying, "A tremendous variety of methods have been proposed and implemented to provide security and anonymity for communications over the Internet." I agree so what makes your version patentable? Their first claim starts with, "A method of transparently creating a virtual private network (VPN) between a client computer and a target computer, ..." That's how VPN works and I'm confident Virnetx didn't "invent" VPN or we wouldn't be having these lawsuits. Apple has been using VPN software for years, why wasn't this lawsuit brought earlier.

Ugh, Apple really needs a page where they list each product. Click it and it shows you a linked list of all the patents it uses. 

 

That would really clean up a lot of these claims, both in invalidating some and making it easier for others to say, "Hey, this patent of Apple's is just like ours that we're pretending we got earlier. Let's sue."

 

Maybe some third party has compiled a list of (assumed) per-device patents.

New law. You create a patent, it just be used in a working product made by you (or a hardware partner) within 3-5 years. If you can't do it, it is automatically licensed at a fair rate (I don't know what fair would be).

 

Hmm. With the "or a hardware partner" and "is licensed" parts, that's much better than many people's "solution" to the patent troll problem.

Is it even called Macintosh any more? I mean, officially? I haven't heard that used since before the iMac was unveiled over a decade before, and Steve scrapped the older product line.

That's pretty much the letter of the law in Australia. Unfortunately other laws make it's enforcement a problem.

I think it was filling in East Texas that tipped that. ET is very plaintiff happy. Like 99.9%. The only way to defend in ET is to have proof of clear and clad exhaustion.

Honestly I expect Apple to get an appeal and there's a strong shot of an overturn.

This illustrates one of my issues with the patent system. Cases should have to be filed in the jurisdiction where at least one party does business. And courts that have clear records of bias need to be sanctioned on it.

Some smart companies won't admit they look at it TS. That would open them to willful infringement claims if it could be shown they were aware of them even tho they didn't think they were infringing.

http://www.mmmlaw.com/assets/files/article_234.pdf

Edited by Gatorguy - 11/10/12 at 8:07am

Patents aren't about product sales. They are about the protection of ideas and the limited right exclusively profit from them. And frankly that should never change or folks will stop thinking up ideas.

What needs to change is things like being able to pick a jurisdiction that will find in your favor, and the existence of such districts. And allowing folks to wait for years while a patent is being violated for the group to get rich and these. You do that with a trademark and too damn bad. It should be that way with patents. If you don't protect your patent from the start (with a reasonable time for you to analyze if they actually are in violation) too bad.

I've never given up on coming up with new ideas, at least new for me, with no worries about whether I might be able to patents the methods (I can't patent the ideas). My incentive? To make money, the same incentive that Apple or Cisco or Joe's plumbing has. Without software patents the incentives for new ideas would still be there.

really, PEMBROKE has a good point about patents... so GATORGUY where is your good point?...
hmm your don't have one ... THUS,

the second quote is a TROLL statement if their every was one..
state facts... not just the magically wonderful words of GATORGUY echo...echo,..echo...

are you kidding???... do you really think that the courts are going to allow a case that incvolves the non-use of a patent???.


im sorry gatorguy, but troll is what troll does!...
so why is it when a person tlies on the "stand" in court, that lawyers are allowed to assume that everything else after that can be thought of as a lie until proven a truth?...
?
so just the facts!!!

FOR EXAMPLE : to quote jragosta...
this is a good example to counter PEMBROKE's statement.
Edited by haar - 11/10/12 at 8:26am

Speaking of trolls, how about the trolls who don't have any concept of how trolling works who keep making up arguments against "patent trolls".

 

I'll get ahead of where this comment string seems to be going and reply with, "Trolling troll trolls, troll troll-oll troll trolls troll trolln't troll trolly troll troll troll trolling tro—" this is actually harder than it seems…. 

 

Anyway, what of ghostface's idea about patent protection? I'd like to see some other feedback on that. 

It might help address a segment of the complaints. I imagine some folk here would then complain about the compulsory licensing aspect of it. After all what percentage of even Apple-granted patents are put to use within 3 years? You think Apple would be willing to give them up since they haven't yet made it to a shipping product?  Doubtful.

 

As I mentioned earlier, that's supposedly the way Australian patent law is meant to work. In actual practice it doesn't seem to be as easy to apply.

That's not completely unreasonable for some industries (like computers), but is VERY unreasonable for others. For example, it can take more than 10 years for a pharmaceutical product to come to market. So, if your rule became law, there would be no pharmaceutical patents.

There's another problem with your rule. If you invent something that's a modest improvement over existing products and is based on well-established technology, it's not hard to bring it to market in 3-5 years. OTOH, truly revolutionary products can take a lot more than that. Someone who makes a major breakthrough which opens up lots of opportunities can easily spend 5 years (or more) to bring it to market.

Another problem involves limited markets. What if you invent something that's only useful to one (or a very small number) of companies? They can simply refuse to talk to you, knowing that in 3-5 years, they can use the technology whether you want them to or not.

Finally, there's the simple justice issue. Under US law (and most country's laws), a patent is treated as personal property. You invent something and you own the invention - and are free to do whatever you want with it. Let's say that you invent something and then decide that you can't live with the moral implications and therefore decide not to sell it. Your rule basically says that personal property is only yours until the government wants to give it to someone else.

It's a good thought, and some of those problems could be resolved, but patent issues are very complex and not likely to have simple solutions.

So why not abolish all patents? After all, there's still an incentive to invent stuff, according to you.

The problem is that your incentive to invent stuff is immensely reduced if people can copy it without permission. Let's take two companies of similar size and similar operations.

Company A sells $100 M of product at 40% gross margin, leaving $60 M in margin. They have operating expenses (sales, marketing, admin, etc) of $50 M. Their net income is $10 M. They don't do R&D because they simply copy whatever Company B does.

Company B sells $100 M of product at 40% gross margin, leaving $60 M in margin. They have operating expenses (sales, marketing, admin, etc) of $50 M. However, Company B also invests heavily in R&D and spends about 3% of revenues on R&D. That leaves them with net income of only $7 M.

So, in your scenario, the company which invents things earns less than the company which simply copies. So where's the incentive?

I guess that explains why you're such a big Samsung fan.

What have I written that indicates I'm a Samsung fan, and why would it matter to the discussion? That's called a red herring sir.

 

US software patents are only permitted because the embodiment is described as a functioning machine or component thereof, a little sleight of hand. In other words the computer (or other hardware) using that particular method becomes the patentable subject, not the method itself. Need proof? Read the claims of any software patent.

 

What some smart attorneys did was find a way to take the intangible (software) which cannot be protected by property laws and thus by patents, one of the cornerstones of your argument, and combine it with a tangible element creating patentable property. It was a stretch of US patent law to allow software patents in the first place. If a software method had to stand on it's own without a tangible component I don't believe patent protection could be extended to by any legal argument.  

 

Software, essentially an abstract product of mathematics, shouldn't be patentable to begin with IMHO. Copyrights would serve better and more fairly, avoiding the problem of overly broad patent claims that are written vaguely enough to attempt application to any conceivable use of the method in any operating system or hardware component whether thought of at the time of application or not.

 

No matter tho as under current US patent law they've found a way to allow it, so the point is moot for now. The law is what it is.

 

As for incentives, if software patents are what drives invention in the tech sector and without them there would be no incentives to innovate it should be easy to find and link evidence of it for us, correct? I'm anxious to see all the proof you have to offer. I'm willing to be convinced if you have studies that plainly show I'm wrong on what drives innovation. 

Edited by Gatorguy - 11/10/12 at 11:01am

Making money is not the same as making sales. If you come up with an idea that doesn't work with your products you still have a right to profit from that idea. Particularly if that idea is a unique implementation of some broad stroke. That should never change. Only the broadest of ideas should be left as free game for all to have at.

What needs to change is being able to wait while someone is making money off your idea for them to make scads more. You should have to stop them right off nd make your money from their proper license etc.

And they shouldn't be forced into such a time table anymore than they should be forced to licensed or even give away popular non standard essential patents just because Google etc think such a thing as a defacto standard exists.

Even that could create an issue you wouldn't like.

 

By your reasoning Apple should have brought suit against Google themselves five years ago when they first believed Android to be infringing on Apple IP. By your reasoning Microsoft should have sued Motorola over five years ago for the FAT patent claims they're just now asserting against them. Should both Apple and Microsoft now lose the opportunity to complain since they've waited years to do so?

Please detail that patent because I've seen plenty of side-by-side images of design patents that Samsung has used and that we're part of the US court case.

Have no idea what you're asking Soli. The patent claims are easily found. Just follow the solid lines and ignore the dashed ones. Then find where Apple claims any product of theirs uses it, now or in the past.

 

To the very best of my knowledge Apple has brought suit only over the drawings embodied in the design patents but not claiming they apply to any actual Apple product, thus infringing on one. When Apple says "Samsung copied our designs" they literally mean their line drawings, not a physical Apple product. If you disagree simply find where Apple claims the court-asserted design patents are those for a shipped or shipping Apple product.

You don't really have to go past the fact that the suit was filed in the eastern district of Texas. That is the patent troll world headquarters. It has been so abused that it is surprising something hasn't been done to shut it down or clean house. On the other hand maybe it (eastern district of Texas) continues to be egregious in its decisions leading to a complete overhaul (or shutdown of business method and software patents) of the patent system before all implementation of innovative ideas moves out of the US to avoid the quagmire we have created in the past few decades.

 

Exactly.  Apple is currently suing Samsung, using patents for pen-based operating systems that are over 15 years old.  Apple has no current pen based operating system.

 

And, just like VirnetX, Apple is constantly tacking newer Samsung devices onto their lawsuits.

 

VirnetX is a holding company now, but they did a lot of the research themselves, so they're not quite like the non-inventive patent trolls out there.

I wondered the exact same thing a couple months ago and looked it up in Apple's legal documents. Although there is almost no mention of Macintosh on the Apple site, in their Trademarks section there is this:

 

1. You may not use the Mac trademark standing alone except to denote or refer to the Apple Macintosh product line.

 

http://www.apple.com/legal/trademark/guidelinesfor3rdparties.html

 

Also :

In addition to the Mac OS X built-in security features, the  Macintosh Products Guide  contains offerings from third-party providers that could help to increase the security of your system in particular situations.

 

And this:

 

Apple Certified Macintosh Technician (ACMT) Certification

 

http://training.apple.com/certification/acmt

 

 

Purchases of an Apple Macintosh computer and a qualifying printer must be made at the U.S. Apple Online Store, an Apple Retail Store located in the U.S...

 

http://www.apple.com/promo/pdf/L376656M_PrinterPro_PC20_Web_v1.pdf

Edited by mstone - 11/10/12 at 1:51pm

I thought the to patent something you had to have very specific details included in the application - not just some vague notion. 

 

But I guess gone are the days when a court decides that BIOS can be reversed engineer provided no one on the reverse engineering team had access to the original designs that created the product which was reverse engineered. 

 

I have no problem with a patent being granted for an idea - but if someone else comes up with an entirely different solution to a problem that appears to be very similar than I don't think that is infringement. 

 

Samsung style copying of an interface element or design is one thing - but in my mind - "establishing a secure connection between one electronic device and another" is not a patentable idea. A specific implementation of that idea should be protected. 

 

I have no idea how many "mouse trap" patents there are (hundreds? thousands?) but "a device used to trap mice" is not the basis for a patent. A specific manner in which a device traps a rodent should be protected - even if that device as described is impossible or prohibitively costly to build and never sees the light of day. I believe there have been patent lawsuits over the type of spring use in a mouse trap as that is what made it unique. And even Thomas Edison was smart enough to patent not the "light bulb" but a particular screw base which made replacing a light bulb simply and effective. 

 

Not sure how much of that applies in software patent suits but it does seem that basis on which patent infringement is determined varies from cases to case and being a highly subjective matter means that such cases aren't going away anytime soon.