back to article Fairytale for 2019: GNOME to battle a patent troll in court

The GNOME Foundation, maker of the eponymous Linux desktop, has been hit with a sueball over how its Shotwell photo manager, er, manages photos. The plaintiff, Rothschild Patent Imaging LLC, has alleged in a complaint filed at the United States District Court Northern California that defendant, GNOME Foundation, has infringed …

  1. b0llchit
    Facepalm

    2+2=5

    That is, for large values of two.

    The US patent system in a nutshell: How persistent must a patent applicant be before the patent examiner gives up/gives in and grants a patent, regardless the contents of the patent.

    1. TheVogon Silver badge

      Re: 2+2=5

      At least as per "TC HEARTLAND LLC v. KRAFT FOODS GROUP BRANDS LLC" the trolls can no longer choose sympathetic venues in the US.

  2. Alister Silver badge

    It is my understanding that the USPTO are happy to grant Patents without much checking, and rely on subsequent litigation to clarify the veracity and validity of the claim.

    Let's hope in this case the Patent is struck down.

    1. sbt Silver badge
      Holmes

      Subsequent litigation.

      Now why would a government bureaucracy be operated so as to maximise the amount of litigation generated?

      Could it be due to the legal profession being such a dominant source of members and senators?

      https://www.nytimes.com/interactive/2019/01/26/opinion/sunday/paths-to-congress.html

      1. Dog11
        Holmes

        Re: Subsequent litigation.

        Perhaps because that government bureaucracy makes much of its funding from fees charged to patent and trademark applicants, so it has an incentive to maximize the number of patents issued. The subsequent litigation is just collateral damage.

        1. sbt Silver badge
          Meh

          Re: Subsequent litigation.

          I'd have expected the bureaucrats get paid whether they accept or reject applications. There's no commissions or incentive scheme, surely? It's not piece work?

          In any case, I figured the application/processing fees were peanuts compared to what the lawyers are making.

          1. Mage Silver badge
            Unhappy

            Re: Subsequent litigation.

            They make far more income from accepting applications than rejection, also the idea is to not waste money checking, the people with prior art or money to prove it's not a patent anyway can easily take it to court, saving USPTO loads of expenses.

            Patents good.

            Copyright that expires in a timely fashion good.

            Software patents bad. USPTO useless. DRM Evil. DMCA evil.

            1. sbt Silver badge
              Go

              Assume a spherical patent office

              I'm not convinced in this era of "software defined x" where x is anything from network switches to radios that software is exceptional and shouldn't be patentable. Patents are a useful way to incentivise invention without reliance on secrecy, including closed source in the case of software; surely a good thing. The issues with software patents seem more to do with:

              * Awarding patents for trivialities and failing to research/disclose prior art;

              * Incorporating patented IP into global standards, hampering adoption (it's tricky to require free rather than FRAND licencing if you still want inventors to contribute their latest and best ideas to standards bodies); and

              * reliance on expensive legal processes to settle disputes

              All of which defects could apply to patents in general to a greater or lesser extent.

              Would you still object to software patents if the above problems were solved?

              I agree copyright with shorter terms would be better (but for performed compositions and hybrid works - e.g audio visual media, the multiple licencing parties is too complex. Maybe a back-to-back arrangement; i.e. broadcaster pays performer, performer passes some portion of the royalty to composer.

              Misuse of the DMCA and Google's holding copyright violation detection hostage to lousy license terms is a scandal.

            2. Richard Plinston Silver badge

              Re: Subsequent litigation.

              > They make far more income from accepting applications than rejection,

              Also, if an agent rejects a patent application, they have to write a report explaining why. If they accept it nothing is required.

              If an organization challenges a patent asking for a review, then they get to pay for that too.

        2. Marco van de Voort

          Re: Subsequent litigation.

          and proper scrutiny also costs money. It is the result of a small government principle.

      2. Nick Kew

        Re: Subsequent litigation.

        It's primarily an instrument of economic imperialism. Grant lots of patents, and use them to block foreign companies competing with US companies, imposing patents via WIPO and via straightforward piracy (the latter as in NTP vs RIM).

        It's not entirely coincidental that US companies were (are) way ahead of the rest of the world first in spamming patents whose 'invention' would be laughed out of court by a reasonable person, and then in making a business of using lawyers to ambush people who innovate in the real world.

    2. Doctor Syntax Silver badge

      "grant Patents without much checking, and rely on subsequent litigation to clarify the veracity and validity of the claim."

      This should be OK providing they are liable for all the costs of successful challenges.

  3. Brian Miller

    Gnome vs troll, Alice in courtland

    Let me see: snap a bunch of pics, sort them into a pile, fling them across a room, do it on a computer.

    Mayhaps that what has really happened at the USPTO is the all the "Reject" stamps have been stolen by the trolls. Thus, the examiners simply must pass them on. (Unless, of course, you are Gilbert Hyatt.)

  4. Anonymous Coward
    Anonymous Coward

    Are they sueing WhatsApp etc then?

    1. Brad Ackerman
      Terminator

      Even the dullest and laziest patent troll knows that Facebook has more money than some countries. The subject of this article, however, appears to have not known that a decent number of IBM employees are paid to contribute to GNOME.

      The black gate of Armonk may be about to open.

      1. Zippy´s Sausage Factory
        Devil

        "The black gate of Armonk may be about to open."

        Yes please.

        (opens popcorn)

        1. Tom 7 Silver badge

          I've patented eating popcorn during interesting times. You owe me a tenner.

          1. BebopWeBop Silver badge
            Trollface

            We patented patenting that idea - that will be $150 please (or your firstborn).

            1. jelabarre59 Silver badge

              Someone needs to patent "patent trolling".

      2. Anonymous Coward
        Anonymous Coward

        The black gate of Armonk may be about to open.

        Yeah, but that's the one they boot "resourced" employees out of.

  5. earl grey Silver badge
    Mushroom

    trolls

    hopefully they can sue them back under the bridge where they belong (and then flood the river).

    1. big_D Silver badge

      Re: trolls

      Or the sun will shine in Texas and they will turn to stone.

      1. BebopWeBop Silver badge

        Re: trolls

        Texas trolls have evolved to be sunlight immune.

  6. IGotOut

    Am I missing something in that Patent...

    Or are they just describing broadcasting in general?

  7. TrevorH

    How can they have a patent dated 2018 about this. Surely there is prior art and history showing it's already been done.

    1. Oengus Silver badge

      I wonder which version of this software introduced the "infringement"... maybe the version history can demonstrate prior art as the software has been around and actively updated for years. There have only been a few updates since this patent was filed.

    2. Flocke Kroes Silver badge

      Prior art not that important

      What matters is whether there is an existing patent. For example you cannot patent the wheel because a patent for that was granted in 2001. Prior art may limit the amount of protection money you can extort from a patent as you can only target businesses with insufficient cash to defend themselves.

      1. Michael H.F. Wilkinson Silver badge

        Re: Prior art not that important

        Prior art actually should be a reason, and is certainly a reason here in Europe. In fact, anything that is obvious to a skilled practitioner in the field should not be patentable. This is why any scientific paper produced within most collaborative consortia our university has with industry is first checked to see if there is anything which might be patentable. You must always first apply for a patent, and only then publish. A patent as broad as this, and for something which clearly seems to be prior art (I have been transmitting photos wirelessly from my camera to my phone from the moment I got a DSLR that supported it) would stand little chance under the European patent system.

        A key problem seems to be the fact that AFAIK the current funding of the USPTO is based on the number of patents awarded, not the number of applications processed. This produces a very unhealthy incentive to pass anything that seems remotely patentable, and let the lawyers sort it out later in court.

        1. spodula

          Re: Prior art not that important

          Yeah, but in the US they have granted patents on perpetual motion machines.. so i don't think a great deal of checking goes into these.

          1. Cuddles Silver badge

            Re: Prior art not that important

            "Yeah, but in the US they have granted patents on perpetual motion machines.. so i don't think a great deal of checking goes into these."

            Have you actually seen any patents granted for one? Perpetual motion machines are actually an interesting exception in US patents, because they're considered so self-evidently stupid that they're the only claim requiring an actual working model be presented before a patent is granted (mainly due to a flood of such applications at one point). No other claim has any requirement to be physically possible, let alone to provide evidence you've actually done it. There are still plenty of crackpot patent applications that are effectively claiming to produce free energy, cold fusion being a common favourite, but they're always very careful to never say anything about perpetual motion or free energy because that would guarantee they'd be immediately thrown out.

            1. ATeal

              Re: Prior art not that important

              I have seen one claiming to (LOSSLESS-ly) compress ANY AND ALL data by at least something - note the impossibility there.

              I remember reading about how it wasn't exempt like the other impossibility you mentioned is (perpetual motion) and that being the point of the thing I was reading.

              ---------------------------------------------------SPOILER----------------------------------------------

              SHORT FORM:

              something I can't be bothered to write about bijectivity here as those who know the word know the proof already.

              VERBOSE FORM:

              Think about it: if you compressed 2 bits, which could be 00, 01, 10 or 11 into 1 bit (thus there is SOME compression) - then you only have two outcomes, 0 and 1.

              The decompresser needs to map that one bit back to the two it came from, but as the inputs to the decompresser are only "0" and "1" - we can only get 2 outputs from it, not 4 - unless it's randomly having a go or something.

              Inductively now we have 3 bits, that's 4 outcomes for each 2 of the bits, times 2 with the third bit (so x00, x01, x10, x11 where x is the 3rd bit, we get 8 things), if this is compressed the tiniest amount we can call "compression" by 1 bit, we have 2 bits output. Now we have 8 things mapping to 4, that's okay. we can do that.

              The decompresser cannot take those 4 back into 8 distinct things! It can only take it to at most 4 distinct things!

              The gist here is that any LOSSLESS "compression" can only compress SOME stuff, it MUST make some other stuff bigger. We do well by hoping that the bigger cases don't happen. Or adding an extra bit (flag in practice) that if the compressed version was bigger is set to 1, indicating "don't bother "decompressing", we stored it as is"

              LOSSFUL compression is fine, as look at the 3 bits to 2 bits, we discarded some information and can only describe 4 out of the original 8 cases - you can never recover and will always be missing at least 4 output cases when you decompress your compressed 8 cases.

            2. Brad Ackerman
              Mushroom

              Re: Prior art not that important

              At least cold fusion could theoretically bear some vague resemblance to a method that could conceivably exist. The working-model requirement needs to be a lot broader, to encompass e.g. US6025810A, which purports to describe a superluminal communications device. It doesn't exactly take a rocket scientist to realize that this is causality violation and therefore just as impossible as a PMM.

      2. LDS Silver badge

        Re: Prior art not that important

        Are you sure?

        https://www.epo.org/learning-events/materials/inventors-handbook/novelty.html

    3. choleric

      If the patent was only granted in 2018 then Shotwell itself is prior art.

      1. Richard Plinston Silver badge

        > Shotwell itself is prior art.

        USPTO changed to a 'first to file' system which means that prior art is irrelevant.

        https://www.nolo.com/legal-encyclopedia/what-does-the-first-to-file-rule-mean-for-my-patent-application.html

        1. ATeal

          Pretty sure that'd be INTENT to patent surely? Otherwise that'd be a really bad (mix of land grab and hell)

          Lab books and stuff used to be legal documents so if you write in your lab book "Today I wrote a for loop with a non-trivial iterate part, I added 2!" or something then you can use that when someone tries to patent it tomorrow going "here's the ground work, we were going that way" when you couldn't get a provision/pending thing.

          Not even /they/ are /that/ stupid. If we include such a broad action on the stupidity scale then it'd be a 10 and the previous most stupid thing would be like a 1.5, a 2 tops. This is an extraordinary "not even they're /that/ stupid"

    4. LDS Silver badge

      With Canon WFT wifi transmitters you could *select* which images to upload to a FTP server since 2008 at least. Other cameras can have had similar functions even before.

      As usual the issue is USPO.

  8. big_D Silver badge
    Facepalm

    Wirelessly?

    I've been sending images wirelessly from one device to another for nearly 20 years now, and I usually filter the images beforehand, so I claim prior art!

    1. Siberian Hamster

      Re: Wirelessly?

      Wirelessly?

      I've been sending images wirelessly from one device to another for over 20 years now, and I typically filter and crop the images beforehand, so I claim prior art to your prior art!

      1. STOP_FORTH

        Re: Wirelessly?

        Developing contact prints, selecting the non-duff ones and sticking them in a photo album involves no wires at all!

        1. LDS Silver badge
          Happy

          "involves no wires at all!"

          Well, where do you attach them to dry?

          1. matt 83

            Re: "involves no wires at all!"

            On a piece of string?

            1. STOP_FORTH
              Happy

              Re: "involves no wires at all!"

              Yep, piece of string in the bathroom/darkroom. Mind you, this was a long time ago, before this patent was granted.

              I believe the Ancient Egyptions also had wireless technology, as no wires were found in any of the pyramids.

              Later on, the Danes had Bluetooth of course.

              Wisdom of the ancients, man.

  9. James Anderson Silver badge

    Prior art

    They should summons Voyager 2 as a witness.

    It’s been sending selected images wirelessly for 50 years now.

    Mind you it would take 30 plus years to get to NoCal, but it would be worth it to stitch up the patent trolls with the travel expenses.

    1. big_D Silver badge

      Re: Prior art

      "Landing" Hubble on their office might also help, it would be a bit quicker than getting Voyager 2 back.

      1. jelabarre59 Silver badge

        Re: Prior art

        "Landing" Hubble on their office might also help,

        Ah, something like this then.

    2. LDS Silver badge

      Re: Prior art

      Voyagers have been not sending images for a long time - just some sensor data.

      But I can think about patenting a special probe for patent trolls...

  10. Pascal Monett Silver badge

    I have said it before

    and I will say it again : the only way to neuter patent trolls is to tie the amount of damages to the amount of money the patent troll is making with his patent.

    In other words : if you're just sitting on your patent and not producing anything of value with it, then you get no money for someone else actually producing goods with it (or something similar).

    That will sort the wheat from the chaff.

    1. big_D Silver badge

      Re: I have said it before

      Or the US needs to be sensible, like Europe. They looked at software patents and decided you can't patent software, as it is already adequately covered by copyright.

      1. H in The Hague Silver badge

        Re: I have said it before

        "... Europe. They looked at software patents and decided you can't patent software, as it is already adequately covered by copyright."

        Don't think that's correct. I deal with lots of software patents (usually cast in the form of 'a computer with a program to do xyz'.) Just point your browser at

        https://worldwide.espacenet.com/beta/search

        enter the name of your favourite software slinger and you'll see lots of European patents (EP).

        Example: EP0667573A1 - Incorporation of services written in one operating system environment into another operating system environment. That sounds rather softwary. (Note: does not relate to any of my clients.)

        1. big_D Silver badge

          Re: I have said it before

          As of 14.09.2019, António Campinos (EPO president), along with Bristows, Managing IP and others were still lobbying for software patents, in violation of EPC rules.

          http://techrights.org/2019/09/14/team-upc-boosters-and-swpats/

          His writing is hardly unbiased, but it was the first link I got when searching for Europe Software Patents.

    2. Jonathon Green
      Trollface

      Re: I have said it before

      That or sell hunting licenses. That should work pretty well in Texas...

    3. Def Silver badge

      Re: I have said it before

      That wouldn't really work when you look at the original point of patents - I.e., a way to protect the inventor *while* they develop a product and bring it to market.

      If a patent holder isn't developing technologies or products from a patent or actively licensing said patent to others, it should be voided. If no such work or licensing has been evidenced within two years of a patent being granted, it should be voided. Voiding should be undertaken automatically by the patent office if the holder does not produce such evidence themselves within the two year limit (and every two years subsequently to prove progress/ongoing work).

      Additionally, patents should only be granted if they do actually bring significant improvement and genuine competitive advantage to a product or service. E.g., I wouldn't buy a phone *just* because it has rounded corners.

    4. Das Schaf

      Re: I have said it before

      Unfortunately that scheme disadvantages small patent holders against large corporation seeking to exploit their technology. The large corp can make billions infringing, then pay back thousands to the patent holder when they are held to account.

    5. TVU

      Re: I have said it before

      "and I will say it again : the only way to neuter patent trolls is to tie the amount of damages to the amount of money the patent troll is making with his patent"

      Regrettably, the USA has become the centre of the burgeoning patent troll industry, this latest nasty example being a case in point. Given that the great majority of such cases are vexatious trying it ons, I'd like to see something like pre-trial screening by judges so that only the valid cases get to go on to a full court case with all the shysters being weeded out.

      This case is particularly malevolent in that they're going after free and open source software - shame on them.

    6. devTrail Bronze badge

      Re: I have said it before

      Your solution doesn't prevent big corporations from filing and obtaining patents as absurd as this one. Did you forget the bounce back patent or the trash bin icon?

      Before proposing any solution we should recognise that the USPTO has become a corrupt tool in the hands of monopolistic companies. These patent trolls are just shell companies designed to shield the real suitors from the bad publicity.

  11. JimPoak

    Patent Trolls

    I'm begging to think they are testing the water, it's like going fishing with had grenades. Gnome and all the other desktops will be nobbled through the all encompassing conditions even though the patent was issued Oct 19, 2017 after the fact. Maybe they should be on the receiving end of a sueball.

    Rothschild Patent Imaging LLC are ordered to Cease and desist the use of the process known as breathing.

    I don't think they will be able to hold their breath for that long before the case can be heard.

    1. STOP_FORTH
      Trollface

      Re: Patent Trolls

      Come to think of it, I had a top on my desk at school. They'd better not be using inkwells or a groove to rest your pens and pencils in.

      On a lighter note, we should be able to settle that perennial pub question - who'd win in a fight a troll or a gnome.

      (Gno gnome icon!)

  12. Dave 15

    I have put in a patent application

    Simple the patent covers anything that does anything possibly using energy from an internal or external source

    Reckon it will sail through

    1. Giovani Tapini Silver badge
      Coat

      Re: I have put in a patent application

      Good idea, as you have covered all living organisms and plants as well as technology there.

      You will have ... er... a "field" day with that one...

  13. Adair

    To hell with Prior Art ...

    I hope the suit fails on the basis of 'Absolute-Mindnumbing-Obviousness' (that is a technical legal term) - with full costs being awarded to the Gnome Foundation, plus a hefty punitive fine to the Trolls for wasting the Court's time.

    Next!

  14. Tom 7 Silver badge

    Patents in the US are socialism for lawyers.

    I couldn't create such a badly organised and unjust system after 20 pints.

    1. Steve Davies 3 Silver badge

      Re: Patents in the US are socialism for lawyers.

      I think I read somewhere that the USA produces more law graduates than engineers.

      There is already far too many lawyers for the amount of available work.

      Then most politicians are lawyers who pass laws for other lawyers to enact and make a living.

      Isn't that a perpetual motion machine in operation? (sic)

  15. adam payne Silver badge

    Rothschild Patent Imaging LLC, has alleged in a complaint filed at the United States District Court Northern California that defendant, GNOME Foundation, has infringed its patent for a "Wireless image distribution system and method".

    Targetting a non profit, now that's just sleazy.

    The patent is way too broad and should not have been granted.

  16. Rich 2

    Leave the USA?

    Why don't outfits like Gnome (ie, organisations that don't have any premises (I'm assuming they don't) and are basically an international (and usually payroll-free) effort), just make sure they have no legal presence in the US?

    The same goes for the Linux kernel, which has been the subject of several patent threats over the years.

    Then the USPO/courts etc can sue them til the cows come home and they can just ignore it

  17. Alistair Silver badge
    Windows

    I can see in the future:

    Some figurehead from the GNOME foundation in a courtroom in Texas:

    Your Honor, in reference to prior art, I submit for your perousal www.pornhub.com. Please take your time reviewing the site to comprehend the depth and breadth of the prior art. I hope that the judicial wifi is up to the work.

    1. amanfromMars 1 Silver badge

      Re: I can see in the future: ..... Heavenly Delights in Hellish Surprises :-)

      Do you see this too, Alistair .....

      The patent itself is quite the broad beast, comprising hardware and, importantly in the case of GNOME (or rather, Shotwell,) a method that involves capturing a bunch of images, filtering them based on a topic, theme or individual, and wirelessly transmitting the filtered images to another device.

      Are Global Operating Devices for Future Presentations with Virtually Real Promotions such a device, and are they Servered via Alternate Memes with Almighty Means too ‽ .

      And how do you capture all of those plum perousal assignments, Your Honour? Take care there, for there's a heck of a lot to quickly learn rather than be overwhelmed by.

      Being Better than Just Good at what One Loves to Do with Love Plays Wonderfully Well Everywhere there as IT is EMPowering in AI Circles with Virtual Networks Stringing Presentations for Earthed Webs.

      Surely that is the Method for Everything to be Known by Anyone and Everyone, and it has always been the Way Going Deeper Forward and Further AIField in the Minds of Patent Titans.

      And thus another prior art instance of an unknown origin?

  18. Maty

    A possible solution ...

    Okay ... so why not file a patent in the USA for 'A thing that does stuff.' Then allow the patent to be licensed to anyone for 1 cent. After 20 years the patent expires, and anyone who invents things that do stuff can do so freely.

  19. Vector
    Facepalm

    Method?

    I went and looked through the patent linked in the article and, basically, there is no method!

    The flowchart of the "preferred embodiment" pretty much comes down to: Establish a wireless connection between 2 devices, capture an image with one, send it to the other. The authors went through several pages of descriptions of this, that and the other, but never really get beyond the simple steps above.

    Ummm, duh? This is not only obvious to anyone skilled in the art, it's obvious to pretty much anyone with a brain.

  20. Giovani Tapini Silver badge
    Mushroom

    After looking at the source patent abstract..

    It looks like that have re-patented television...

    1. amanfromMars 1 Silver badge

      Re: After looking at the source patent abstract.. there appears a collusion collision/troll crash

      After looking at the source patent abstract..

      It looks like that have re-patented television... ..... Giovani Tapini

      That's exactly what I was asking, GT .....

      Are Global Operating Devices for Future Presentations with Virtually Real Promotions such a device, and are they Servered via Alternate Memes with Almighty Means too ‽ . .... amanfromMars 1

      .... ergo the chance of the probable likelihood of that readily available possible reality is squared. Find another and a few more and very quickly cubed and the exponential rate of such powerful cohesion enters into Almighty Omniscient Territory that Enthrals All with the Antics of the Astutely Autonomous and ACTIvely Anonymous Few.

      Quite perfect for Agile Command, Control and Communication with Systems in Navy, Army and Air Force Institutions.

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