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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 the …

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"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

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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?

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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.

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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.

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Re: There is no reaction image for this

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

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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.

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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.

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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.

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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.

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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.

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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

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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

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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...

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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.

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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.

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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

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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

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Holmes

Quelle surprise...

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

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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!

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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.

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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.

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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...

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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.

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Coat

Re: Quelle surprise...

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

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Alert

Hole patent??

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

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Anonymous Coward

Re: Hole patent??

Depends if he has a mirror!

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>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'.

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Bod
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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.

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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.

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"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.

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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.

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Love these lawyers

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

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Re: Love these lawyers

You could consider Wright Hassell LLP (in Leamington Spa)

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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.

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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...

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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....

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Re: Love these lawyers

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

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Re: Love these lawyers

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

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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.

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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...

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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

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Anonymous Coward

Re: Phew!

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

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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.

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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?

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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...

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

No, prey seems right...

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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...

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See the above post

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

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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.

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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.

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