back to article Apple engineers 'pay no attention to anyone's patents', court told

Apple must pay software biz VirnetX $368m after a court ruled FaceTime video calls infringed VirnetX's patents. The fruity firm was on the hook for as much as $900m, but a jury awarded a lower payout during a Texas court hearing yesterday evening, according to VirnetX's lawyers McKool Smith. The jury, which had sat through …

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  1. NoneSuch Silver badge
    Thumb Up

    "The case got so much attention that the judge had to order the two companies to stop their investors from calling the court, saying his office was getting at least ten calls a day. "

    Set up a pay-to-call line and make a few bucks to balance the courts books.

    If you think Apple is right Press 1.*

    If you think Apple is wrong Press 2.*

    * - Each call charged £4.99

    Works for Simon Cowell

    1. Shagbag

      Apple hoisted on their own petard

      serves 'em right, the Patent Jihadis.

      But will Tim Cock and the rest of the Apple board get 72 virgins when they go? 72 virgin donkeys perhaps?

  2. Destroy All Monsters Silver badge

    There is no reaction image for this

    Apple gets hit, but ... a patent on VPN setup? A patent on "security problems in DNS"? Really? Babby's first inventions?

    As for "not paying attention to patents", AFAIK, you MUST NOT pay attention to patents because if it comes to a lawsuit and it turns out the infringed patent was known about, it's "double damages" for you.

    1. Anonymous Coward
      Anonymous Coward

      Re: There is no reaction image for this

      Yes, I'm sure there is no way to setup a VPN which is innovative or to solve security problems in DNS which is non-obvious.

      Sheesh, it's not like they're trying to patent a Trashcan or overlapping Windows.

      1. Destroy All Monsters Silver badge

        Re: There is no reaction image for this

        Yeah yeah, it's probably just been done a few hundred times before.

      2. Eddie Edwards
        Linux

        Re: There is no reaction image for this

        I'm with the sentiment behind your post, however, it does seem that if Apple genuinely came up with the same ideas on their own, then the inventions probably are fairly obvious to one skilled in the art. If it's deserving of a patent, it should be fairly unlikely that someone else would come up with the exact same thing independently.

        I mean, sometimes you look at a patent and you think, "Wow, it would never have occurred to me to take this approach." The Autotune patent springs to mind - it is truly an inventive way to put together known components to solve a previously unsolved problem.

        But mostly, you don't think that.

        So while these patents may have innovative elements, I suspect that the parts Apple are infringing are not those elements. Unless they *did* refer to the patents and simply copied lock, stock and barrel. Which is of course possible too.

        1. Anonymous Coward
          Anonymous Coward

          Re: There is no reaction image for this

          @Eddie: I disagree, it's entirely possible that people could independently come up with the same idea, obvious or not, particularly if you're working on the same problems.

          1. Anonymous Coward
            Stop

            Re: There is no reaction image for this

            > I disagree, it's entirely possible that people could independently come up with the same idea, obvious or not, particularly if you're working on the same problems.

            That's pretty much a contradiction I'm afraid.

            If the likelihood is high that someone skilled in the art could come up with the same solution at the same time, then it is not innovative or non-obvious, it is evolutionary.

            So many "breakthroughs" down history have landed people with patents not because they are revolutionary but because they were first. The light bulb, photography, the moving image projector and many others were developments that were ripe at the time because that was the state of technology.

            There is very little that is truly innovative. For me, the barrier should be set high indeed. If you are the only one, then it is probably innovative. If there are a number on the verge of the invention, then it is not a proper subject for patent.

            1. stuff and nonesense

              Re: There is no reaction image for this

              "If the likelihood is high that someone skilled in the art could come up with the same solution at the same time, then it is not innovative or non-obvious, it is evolutionary." -

              Not so, as an earlier poster said, If they are working on the same problems a similar solution will be developed.

              Most patented designs/products are developments of prior art, the patents and previous designs are listed in the patent references. The Latest and greatest adds some new twist of the previous offerings.

              Sometimes a *NEW* product is developed, that is becoming more difficult as so much has been done already

            2. Matt Hawkins

              Re: There is no reaction image for this

              "There is very little that is truly innovative. For me, the barrier should be set high indeed. If you are the only one, then it is probably innovative. If there are a number on the verge of the invention, then it is not a proper subject for patent."

              Completely agree. Rounding the corners on a tablet is a good example.

              Good to see Apple taking what they love dishing out. Patents should be for proper inventions. Not ideas someone can come up with in 3 seconds while standing at a urinal. Swipe to unlock etc etc etc

        2. toadwarrior

          Re: There is no reaction image for this

          My guess is that is fairly obvious because not only did apple come up with a similar idea but so did microsoft and the others they have cases against.

          1. Ben Tasker Silver badge

            Re: There is no reaction image for this

            @toadwarrior I like the idea of that as a defence:

            Your honour the slimy buggers have sued 4 compan!ies for independently developing a similar solution. Therefore it must be obvious to someone skilled in the art!

            Not that it works like that sadly

      3. CheesyTheClown
        Facepalm

        Re: There is no reaction image for this

        I read both patents and as a developer of similar technology at companies like Cisco and Opera, I can only say this. I would implement infringing technology without knowledge of the patent because it was just common sense.

        1. Mark 65 Silver badge

          Re: There is no reaction image for this

          Another reason software patents need to go. Sooner or later America's share of the global market will decline to a point whereby to be extremely successful you won't need to deal with them at all. At that point they can shove their patent law up their arse.

    2. Anonymous Coward
      Devil

      Willful infringement damages scale up to triple

      So yes, standard advice for corporate developers seems to be "don't look for patents, don't look for prior art, especially don't go googling about it from work, if you have a concern go and SPEAK to your law goons, nothing over electronic media, not even phone" All rather sad but that way you have plausible innocence and can claim it was developed in a clean(ish) room.

      1. Anonymous Coward
        Anonymous Coward

        Re: Willful infringement damages scale up to triple

        > standard advice for corporate developers seems to be "don't look for patents"

        Yes, I've been given that advice as "the company has a patents department to handle that". And any issues of concern go via a lawyer since client confidentiality means what you say to them can't be used in court. Also, having seen engineers in another company have all their log books seized and photocopied during a patent spat they were involved you also need to be careful on what you write down

    3. Blitterbug
      Happy

      Re: you MUST NOT pay attention to patents

      Sadly not true, DaM; there's this thing called 'due diligence', I think you'll find...

  3. Steve Renouf
    Holmes

    Quelle surprise...

    "Apple developers testified that they didn’t pay any attention to anyone’s patents when developing their system.”

    1. DJV Silver badge
      Meh

      Re: Quelle surprise...

      Yes but with the American patent system you'd spend all the time sifting through tons of "obvious-should-never-have-been-awarded-patents" instead of actually developing anything!

    2. Anonymous Coward
      Anonymous Coward

      Re: Quelle surprise...

      Patents apparently are required to be written in such a way that they are incomprehensible to developers anyway, there is no plain English or logic rule. I'm sure most developers would testify to the same, its not an Apple thing.

    3. Argh

      Re: Quelle surprise...

      This is very standard. It prevents claims of "wilful infringement" as well as saving a lot of time.

      I'm pretty sure that I remember reading that Linux developers are also urged to not check to see if anything is patented either, a long time ago.

    4. Ye Gads
      WTF?

      Re: Quelle surprise...

      Yes, because most developers read the documentation first before they do anything. Developers love reading and writing documentation, it's far more fun than coding and

      <BANG>

      Oops, there goes the reality distortion field...

    5. Ru
      Facepalm

      Re: Quelle surprise...

      The US Patent system doesn't even pay attention to anyone's patents either. The whole sorry mess is set up so that the validity of a patent or the non-infringingness of any particular thing is left to the courts to decide.

      The sheer volume of obfuscated dross is impossible for anyone to get a handle on.

    6. Lars Silver badge
      Coat

      Re: Quelle surprise...

      The hole patent system has gone crazy, just kill it.

      1. Marshalltown
        Alert

        Hole patent??

        Surely a hole would be obvious prior art even to a patent examiner?

        1. Anonymous Coward
          Anonymous Coward

          Re: Hole patent??

          Depends if he has a mirror!

  4. Dave 126 Silver badge

    >But Apple developers testified that they didn't pay any attention to anyone’s patents when developing their system.

    I dunno, but as a rough simplification, I'd expect it to be the engineers' job to create a solution by whatever means, and the job of management and legal to procure the rights to use those means. Otherwise, the engineers would have to get skilled up in law and corporate negotiation- areas outside their 'core competency'.

    1. Bod

      Devs

      Usually you're under pressure to "just get it done" no matter what.

      Not that a dev is a lawyer or has the time to plough through patent databases before writing each line of code. I was never taught to look at patents in my entire career as a software developer. Though it's an obvious thing to consider as part of the project as a whole it was also originally the case that patents were just for crazy haired inventors building something physical and solid in their shed and needed to protect their idea.

    2. Psyx
      Thumb Up

      Yup: Engineer designs a thingy. Lawyers then check for patents and go back to engineering department.

      Engineer's boss then looks at if it is easier and cheaper to do it the way the engineers first wanted and pay licensing costs, or dream up another way around that doesn't infringe.

      That's how it should really work, to my mind.

      1. loopy lou

        "Does" not "Should"

        The way it should work is:

        1) engineer does something which takes weeks or few months. Because they just came up with it in the course of their work, they assume thousands of other engineers could have done the same and therefore that its not patentable. No problem, business goes on as usual.

        2) engineer comes across tough problem thats likely to be very long and costly to solve, and may even demand exceptional inventive steps that they can't be sure of getting. Hunts around to see if anyone else has solved it already and published a patent. Business chooses whether to license existing IP or invest heavily in generating their own alternative IP.

      2. Anonymous Coward
        Anonymous Coward

        @Psyx - Add to this the fact that

        software patents are written in such a way that it is far from obvious to decide if you infringe or not. Neither lawyers or engineers can be of much help here, you still have to go to court. One thing that has to be considered here is the extremely low barrier of entry for starting a patent lawsuit. The plaintiff or (even better) the patent troll risks mostly nothing to file a lawsuit while for the target, especially rich ones, it becomes a nightmare.

  5. Tom7
    Thumb Up

    Love these lawyers

    McKool Smith??? How could you hire anyone else?

    1. mrfill

      Re: Love these lawyers

      You could consider Wright Hassell LLP (in Leamington Spa)

      1. Anonymous Coward
        Anonymous Coward

        Re: Love these lawyers

        According to their website Wright Hassell are offering a "Shareholder protection seminar" in Leamington this Friday including free lunch.

        1. Ted Treen
          Happy

          Re: Love these lawyers

          During the early '80s, I installed WP equipment there, and I recall the Partner/Manager with whom I dealt was one Tony Payne.

          Yup, I had to send letters to A Payne, of Wright Hassell.

          You couldn't make it up...

          1. Thorne

            Re: Love these lawyers

            A law firm not far from me. Vile, Vile and Vile

            1. Werner McGoole

              Re: Love these lawyers

              I had a solicitor once who initialled stuff B.A.D.

              1. Amonynous

                Re: Love these lawyers

                How about Morrison Foerster, commonly referred to in the trade as MoFo, which they so joyously embraced as befitting their self-image as a badass big law firm that their domain name is www.mofo.com.

        2. Steve Knox
          Joke

          Re: Love these lawyers

          "Shareholder protection seminar"?

          My, you all seem to have stock in some wonderful companies. Be a shame if something were to happen to them....

  6. mrfill
    Go

    Phew!

    Well, it was half a billion less than projected and they probably made well in excess of $368m selling the infringing gadgets so...

    Carry on chaps...

    1. Big_Ted
      Facepalm

      Re: Phew!

      I think its safe to say they made more than £368m on the sales of Mac computers, iPhones, iPods and iPads.

      Then again its the profits from around a couple of million sales if I remember the cost to make v sales price of an ipad

    2. Anonymous Coward
      Anonymous Coward

      Re: Phew!

      Getting $368m for this seems 'expensive' - makes $1bn for ripping off the iPad look too cheap.

  7. Steve Todd

    They're stretching the definition of a VPN to breaking point

    They appear to be trying to claim ownership of SSL connections (used by just about everything, web browsers included) rather than the more commonly held definition of local networks bridged by a secure connection over the public Internet.

    1. Steve Todd

      Re: They're stretching the definition of a VPN to breaking point

      Here's a link to the patent for anyone who wants it.

      http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%252Fnetahtml%252FPTO%252Fsrchnum.htm&r=1&f=G&l=50&s1=6502135.PN.&OS=PN/6502135&RS=PN/6502135

      How does this apply to video conferencing prey tel?

      1. Ted Treen
        Headmaster

        Re: They're stretching the definition of a VPN to breaking point

        I think using "prey" instead of "pray" when commenting on a case involving Patent Lawyers would count as the granddaddy of all Freudian slips...

        1. Thorne

          Re: They're stretching the definition of a VPN to breaking point

          No, prey seems right...

  8. Anonymous Coward
    Anonymous Coward

    All I can say is thank FUCK the early days of the internet were developed in an open manner with RFC's etc before the current patent madness infected modern society. Otherwise imagine what a clusterfuck of patents sending an email, or visiting a website, would be...

    1. Steve Todd

      See the above post

      SSL was RFC'd and everything. Now VirnetX want cash from anyone who uses it.

  9. richyoung

    If they do not, then they are negligent

    Any engineer who does not pay attention to patents is going to get into the situation Apple is currently in. If you do not search to verify you are not infringing on an existing patent before deploying what you think is new or even obvious (read as many of Apple's patents) then you are asking for litigation issue.

    1. Anonymous Coward
      Anonymous Coward

      Re: If they do not, then they are negligent

      Not quite right!. A complex product as an intelligent phone or a tablet is impacted by thousands of what they call patents. Put aside the time it takes to thoroughly research each and every of them, there will be at least a hundred cases where, after doing the research assisted by your lawyers, you are convinced you are not infringing while the patent owner disagrees and would like to see you in court. Here your lawyers will have to convince a jury who is totally outside of this field that you are not an IP thief robbing poor inventors of the fruits of their hard labor. Let me know if you have a replacement for the word nightmare here.

    2. Marshalltown
      Thumb Down

      Re: If they do not, then they are negligent

      Written like a patent lawyer, or someone who thinks their ideas are unique and important because they occurred in close physical association with their personal cerumen. The fact is, not chasing down someone-else's delusions of intellectual grandeur on file at the patent office bolsters the legal argument that the solution was obvious. That can then be hauled out when some troll tries to pirate the work based upon the obscure language of a patent.

  10. This post has been deleted by its author

  11. Ted Treen
    Flame

    It appears...

    ...that without joining the brouhaha over what is and what isn't a valid patent, that not only is the US patent system intrinsically broken, but US patent attorneys have all the morals of hyenas, and the Texas Patent Courts seem to exist in some peculiar little space warp of their own, frequently making decisions which completely fly in the face of logic and rational thought.

    I recall Goldman Sachs being described in Rolling Stone as "...a great vampire squid wrapped around the face of humanity, relentlessly jamming its blood funnel into anything that smells like money."

    They must be related to Patent Lawyers - the resemblance is unmistakeable.

  12. JaitcH
    Thumb Up

    Apple needs new legal talent

    Apple's lawyers seem to be on a losing streak.

    How many other patents are out there that have been stolen by Apple, along with the company name and logo?

    1. dssf

      Re: Apple needs new legal talent... how many more losses...

      Before more bites are part of Apple's logo?

    2. cyke1
      FAIL

      Re: Apple needs new legal talent

      Anyone that thinks apple comes up with everything themselves and never steals idea's you are a complete idiot. "Good artists copy great artists steal. - Steve Jobs" Quote from Steve Job's, its pretty self explanatory.

      1. Ben Tasker Silver badge
        Happy

        Re: Apple needs new legal talent

        IIRC (in a bar in Barcelona so not wasting time looking it up) that quote wasn't even original! Someone else said it first

        1. Nick L

          Re: Apple needs new legal talent

          I think that's sort of the point... Picasso/Banksy...

          http://beinglorious.files.wordpress.com/2011/03/artists-jpg.gif?w=500&h=449

        2. Anonymous Coward
          Anonymous Coward

          Re: Apple needs new legal talent

          "Someone else said it first"

          But Steve Jobs acknowledged this and applied it to Apple ... the full quote is:

          “Picasso had a saying - 'good artists copy, great artists steal' - and we have always been shameless about stealing great ideas.”

  13. peter 45
    Trollface

    yeh but

    These were for patents for making things work, and are therefore worthless. Now if they were patents for makings pretty, that would be different.

  14. Anonymous Coward
    Anonymous Coward

    The problem is Apple is such a big and rich target for patent trolls.

    1. Anonymous Coward
      Anonymous Coward

      The problem is Apple is such a big and rich target for patent troll.

      Fixed it for you

      1. Anonymous Coward
        Anonymous Coward

        @AC 15:31GMT - Actually Apple is both at the same time.

        And they are not alone.

  15. Anonymous Coward
    Anonymous Coward

    difference between Infringed and Willingly Infringed

    If a real big some when it comes to damages.

    some 30+ years ago I had a patent granted to me. I was told by the Patent Lawyers in no uncertain terms NOT to go looking for Prior Art of is what I was proposing was already covered by someone else's patent. If I did do this and found some prior art and then went ahead and udsed the design in a product we would have been guilty of willingly infringing the patents. That would have meant far higher damages.

    btw, I never got any royalties from the patent, technoloty moved on and what it covered was obsolete not long after the patent was granted.

    1. Yet Another Anonymous coward Silver badge

      Re: difference between Infringed and Willingly Infringed

      Then you were badly advised.

      When you submit a patent you swear that it doesn't violate any other patent that you know of.

      Trying to claim in court that you didn't know it violated a patent because you deliberately didn't search is like a doctor claiming they knew of no side effects to a drug because they deliberately didn't read the label.

      Good luck with that one.

      Engineers being told not to read patents is the exact opposite argument. They aren't expected to be experts in the field of the invention and what is prior art - but you are.

      1. Ben Tasker Silver badge
        Joke

        Re: difference between Infringed and Willingly Infringed

        What about there was no prior art because it wouldn't run on the CPU I'm using and so wasn't interchangeable

  16. Anonymous Coward
    Anonymous Coward

    Nobody should ever pay any attention to any patents, why limit your creativity and potential?

    It's not the job of a designer or engineer to worry about such things. Let the lawyers and management worry about that.

    1. dssf

      But, what if one is an independent inventor or artist,

      And cannot afford a lawyer or team? With the existence of "free online patents" or the like, there is NO excuse to fal to make cursory searches and at least document them. Then, work likehel to design AROUND the cockblocking patent, just to ensure trolls cannot feed, and legit patents do not obstruct tech inovation.

      That a risk of finding of willful infringement can treble the cost of damages does not change that you can design around assholic companies and win if your target audience is not theirs, or if you can render their patent obsolete or even invalid simply by actively searching for prior art.

      Failing to search for prior art is like refusing to accept that one's design may be flawed, and is like wilfully tapdancing in a minefield, or like sleeping in a snakepit outside of instead of inside a glass cage.

      1. Anonymous Coward
        Anonymous Coward

        @dssf - Re: But, what if one is an independent inventor or artist,

        A patent lawsuit is not about who is right. It is about who has better lawyers and who will have better luck in convincing the jury. Just spend some time reading court documents showing how lawyers from both sides are bringing the patent matter to a jury and see how much is spend on analyzing the patent in question and how much time is spent on collateral fighting.

        Samsung had prepared some examples of prior art to show to the jury but the judge was persuaded by Apple lawyers that this is not appropriate. So searching for prior art does not prevent you from going to the trial and stand there at the mercy of a jury but it gives the plaintiff's lawyer an opportunity to picture you as a villain having no respect for other people work. There's a 50% chance the jury might fall for that and you might have to pay 1 billion.

    2. JEDIDIAH
      Linux

      Corrupted until it's unrecognizable

      The whole point of patents is to improve the state of the arts. The body of patents should be the first thing that practicioners go to to find resuable solutions to hard problems. Instead, the current regime encourages patents to be ignored and to be written in such a way that they are worthless. Patents are supposed to be documentation for other engineers like peer reviewed journals or text books.

      Of course they are nothing of the sort anymore. They have been corrupted to the point where they are completely unrecognizable.

  17. Anonymous Coward
    Anonymous Coward

    BUT

    Who now owns rectangles with rounded edges?

  18. Phil Atkin

    "ignore all patents ... "

    I'd say in my experience that this is absolutely standard practice - engineers are instructed to never attempt to perform any patent prior art research, if an infringement comes up it's the job of legal to sort it out. So Apple are no better or worse than anyone else.

    1. Greg J Preece

      Re: "ignore all patents ... "

      So Apple are no better or worse than anyone else.

      Except for that whole "massive hypocrites" part.

  19. DrXym Silver badge

    PGPfone et al

    Computers have been capable of setting up secure connections between each other from the time networks and encrypted have existed.

    There is nothing novel about this and indeed it has been extended to voice and video calls numerous times. Too numerous to count. For example PGPfone was conceived in 1995 for similar purposes of secure communication. Maybe Apple used some other transport over TCP/IP but as far as I'm concerned that's basically implementation noise - it's been around for a long time.

    It disgusts me that the patent system can be so abused like this. While there is a certain schadenfreud when Apple gets whacked, the reality is these patent trolls are parasites and IP law could be changed to strongly discourage the practice, e.g. limiting damages for submarine patents, providing courts the powers to penalise the trolls by reducing patent lifespans and so on.

  20. Steve I
    Joke

    Don't Samsung...

    pay meticulous attention to Apple's patents and call it R&D?

  21. tom dial Silver badge
    Linux

    Question

    After looking at the patent, I conclude it is mostly a patent on using a DNS server for something else in addtion. And it clearly is a patent on doing something as much as or more than on a method for doing something. I can't decide, however, whether TOR is prior art or infringes it; and similarly for FreeSWAN. Opinions?

  22. Anonymous Coward
    Anonymous Coward

    <rant>Isn't it time to recognise that the whole software patent system is flawed? Abandon the idea that IDEAS can be patented for software and copyright the implementation. Most of these companies haven't actually ever implemented the patents they hold, and many of them are SOOO obvious to everyone except the patent lawyers and the courts (and well picked jurors) that we can all but laugh and say.. "they got a patent for THAT?!?!"

    </rant>

  23. etabeta
    FAIL

    Surely not an Apple fan but.....

    The entire US patent system must be redone, and the first that must go are those software patents. The system must also not leave any space for the trolls.

  24. Bigg Phill

    Software patents have to go

    As a US judge pointed out, patents work in pharmaceuticals when the odds of someone coming up with the same molecular formula are huge.

    However patenting software might as well be patenting maths. It's pointless and does nothing for either the industry or the consumer. It does keep a lot of lawyers in jobs though

  25. takuhii

    That is the best Law Firm name I have ever come across!! "McKool Smith"

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