Insanity Rules In East Texas: Jury Finds Newegg Infringes On Ridiculous Encryption Patent
from the why-trolls-love-east-texas dept
There's a reason why patent trolls love east Texas -- and big part of that is that the juries there have a long history of favoring patent holders, no matter how ridiculous or how trollish. That was on display last night, when the jury in Marshall, Texas sided with patent troll Erich Spangenberg and his TQP shell company over Newegg. As we've been describing, Newegg brought out the big guns to prove pretty damn thoroughly that this guy Mike Jones and his encryption patent were both not new at the time the patent was granted and, more importantly, totally unrelated to the encryption that Newegg and other ecommerce providers rely on. Having Whit Diffie (who invented public key cryptography) and Ron Rivest (who basically made it practical in real life) present on your behalf, showing that they did everything prior to Jones' patent, while further showing that what Newegg was doing relied on their work, not Jones', should have ended the case.But, apparently TQP's lawyers' technique of attacking Diffie's credibility somehow worked. The jury said both that the patent was valid and that Newegg infringed -- and they awarded TQP $2.3 million -- a little less than half of what TQP wanted, but still a lot more than TQP settled with many other companies (including those with much bigger ecommerce operations than Newegg). In other words, yet another travesty of justice from a jury in east Texas. Newegg will appeal, as it did in its last big patent troll lawsuit (which was much bigger), against Soverain Software. Again, Newegg had lost in East Texas, but prevailed big time on appeal. Hopefully history repeats itself.
Joe Mullin's coverage (linked above) has a bunch of little tidbits about how everyone responded to the verdict, but I think Diffie's response is the most honest. Asked how he was feeling:
"Distressed," he said. "I was hoping to be rid of this business."Yeah, he's not the only one. The sheer ridiculousness of a jury simply not believing the very people who created the very building blocks of modern encryption, and instead buying the story of someone who did nothing special either with the concept behind his patent or with that patent once it existed, is just distressing. It shows how arbitrary jury trials can be, especially when you have jurors who simply don't understand the technology or the history at play. Blech. I think I may have to go buy an anti-patent troll t-shirt from Newegg.
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Filed Under: cryptography, east texas, erich spangenberg, marshall texas, patents, whitfield diffie
Companies: ip nav, newegg, tqp
Reader Comments
The First Word
“Re: Support Newegg
Sir--I have just the thing for you...http://www.newegg.com/Product/Product.aspx?Item=N82E16800996219
Litigation is like wine--the early result is often bitter, but if you let the wine mature, it often is something that can be savored.
Thank you for your support.
Lee
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Crazy, but expected
I think the following, from the source article, sums it up fairly nicely actually:
The Newegg team was obviously crestfallen. But Newegg Chief Legal Officer Lee Cheng—who has said he will appeal any loss at this trial—made a point of congratulating the inventor after the verdict. "Congratulations Mr. Jones," he said. Cheng then added with a smile: "Get your money up front."
That to me is the 'congratulations' of a man who knows he will have no problem mopping the floor with his opponent in any court that's actually balanced and fair.
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Re: Crazy, but expected
So what? They got three strikes at most. Finding a court that's actually balanced and fair with that is quite a gamble in the U.S.A.
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Re: Re: Crazy, but expected
There's a reason so many patent trolls do everything they can to have cases ruled on in that area, and it's because it's very friendly to patent holders, troll or not.
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Re: Re: Re: Crazy, but expected
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Re: Crazy, but expected
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Re: Crazy, but expected
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Actually it was invented by James Ellis and made practical by Clifford Cocks and Malcolm Williamson several years earlier. Unfortunately the secrecy policies of GCHQ prevented them from either exploiting it or receiving the credit.
Whitfield Diffie heard a rumour(about this), probably from the NSA, and travelled to see James Ellis. The two men talked about a range of subjects until, at the end, Diffie asked Ellis "Tell me how you invented public-key cryptography".
However I am sure that Ellis Cocks and Williamson would (have) agree(d) with Diffie on this issue.
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Re:
If Diffie managed to come up with the same idea without any knowledge whatsoever of Ellis, Cocks, and Williamson's work, well then Diffie still invented it. Independently.
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Independent Invention
Also, indepdent invention puts paid to the "sole owner" concept in "intellectual property". If someone else can (and often does) independently invent something, how can we award sole ownership to any single entity?
If we depart from granting temporary state-enforced monopolies on ideas (copyrights and patents) in order to increae the public domain of ideas, then independent invention has to be taken into account. If we give ownership to someone because of the Sacred Act of Invention, we need to give at least part ownership to everyone else we can identify that has also invented (or re-invented) some idea. In fact, I propose that we proportion ownership to the independent inventors based on how much of a Protean Act of Invention they had. That is, someone inventing something documentably ex nihilo should get a larger proportion than an expert in the field, who is merely incrementally building on the ideas floating around in the field at the time.
It's only fair.
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Re: Independent Invention
It's not that surprising when you understand that it's often not the idea that's new but the ability to implement it. As new technologies enables things that were previously impractical or simply couldn't be done, ideas that have been sitting in the back of people's heads maybe for years can be implemented. If the enabling technology becomes available to many people at the same time, chances are that multiple people will give it a go.
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Re: Re: Independent Invention
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Re: Re:
Not trying to take anything away from Diffie - just trying to ensure that Ellis, Cocks and Williamson get the credit due to them. In fact Ellis agreed with that too since he acknowledged that Diffie et al had made much more of it than they were able to. Too bad that GCHQ politics stopped them from exploiting it.
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Re:
Either way, Diffie-Hellman most certainly invented it totally independently, and between Diffie and Rivest, they were the ones who actually made it useful.
GCHQ had no idea what they had on their hands and ignored it.
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Re: Re:
I 'd like to see the evidence that Diffie had it first. The timeline that I'm aware of has Williamson predating Diffie by a few months at least. Certainly Williamson invented it independently of Diffie - although his work depended on what Ellis and Cocks had already done.
GCHQ had no idea what they had on their hands and ignored it
No I disagree with that. I think GCHQ knew exactly what they had on their hands and suppressed it.
However the main point I think we all agree on here is that independent invention is more or less universal. No one is really clever enough to be the only one who has an idea - and most ideas lie dormant for years or even centuries - waiting for an enabling technology as another commenter said.
One only has to think about the question "why didn't the Romans have bicycles".
Successful implementation is another matter - but often success is the consequence of geo-economic factors (which often favour the US) and good fortune rather than merit or hard work.
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Re: Re: Re:
Where is the evidence that Diffie had the solution before January 1974?
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Typo
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And I'm sure warlords and emperors like Genghis Khan wouldn't mind retroactively paying a small royalty on all the loot their empire stole.
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Support Newegg
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Re: Support Newegg
http://www.newegg.com/Product/Product.aspx?Item=N82E16800996221
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Re: Re: Support Newegg
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Re: Support Newegg
http://www.newegg.com/Product/Product.aspx?Item=N82E16800996219
Litigation is like wine--the early result is often bitter, but if you let the wine mature, it often is something that can be savored.
Thank you for your support.
Lee
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Re: Re: Support Newegg
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Re: Re: Support Newegg
Either way, T-shirt bought.
I also snuck a Samsung 840 EVO into the cart. I was having trouble justifying buying a new SSD, but it's obviously for the greater good.
Thank you for fighting these trolls. Or if you are just some other Lee, thanks for giving me an excuse to buy an SSD.
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Re: Re: Support Newegg
I need to see about getting a SSD for an older laptop that uses PATA drives, and I'll make sure I buy it from NE.
Again, hats off!
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Bravo America. You've screwed the pooch, yet again.
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Re: Patents
The difference here is that it's a field where most of us have some experience, and thus perspective, unlike mechanical jelly mashers or automatic udder cleaners.
Just as Copyright has become a mockery of itself with its infinite duration and automatic application to all new works, the problems with Patents are now visible for all to see.
Abolish Patents entirely.
I cannot recommend Boldrin and Levin's "Against Intellectual Monopoly" highly enough.
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Re:
If you're something like an engineer, or an occupation that's viewed as requiring you to be a genius, your chances of being selected to serve on a jury are very low.
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Re: Re:
The sad thing is they don't particularly like lawyers on juries either. As an engineer, I am usually the first person off the jury. even though I usually can render a fair and impartial judgment. But in at least two jury selections I sat near a lawyer who was removed before I was. I told one of the lawyers that I was surprised he was removed before I was, and he told me he was always the first off the jury.
So I think it is more "The system is built by lawyers, for stupid people."
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Re: Re: Re:
I think the main reason that lawyers are dismissed early is because attorneys on both sides and the judge do not want someone on the jury who can act as an expert on law and sway other jurors contrary to only the presented evidence or to the judges precise instructions.
A potential juror who has expertise in a field applicable to the trial will probably be dismissed because they are less malleable to presented evidence. Worse, they may influence other jurors who may look to them as an unofficial expert witness. I am a software engineer but it was my knowledge and my other degree in psychobiology which led to my dismissal as a juror in that recent 1st degree murder trial. A few years back, I had watched videos comprising many hours of lectures by one of the scheduled expert witnesses, Robert Sapolski. The defendant was 17 at the time he stabbed someone in front of many witnesses. (after I was dismissed I read the appeals court decision which overturned his previous conviction based on the fact that the judge did not allow the jury to properly consider the defense testimony from a psychologist.) I pretty much knew what Sapolski's testimony would be and I knew his personal opinions based on what he said in this interview in the NYT about being an expert witness and how the legal system always lags behind the advances of science and technology:
http://www.nytimes.com/2007/03/11/magazine/11Neurolaw.t.html?pagewanted=all&_r=0
The most important issue to me involved studies that showed that the development of the human brain's pre-frontal cortex is not complete until around the age of 25. The result is that the amygdala tends to dominate and young people end up being more impulsive without thinking through and weighing consequences. No big surprise here except for the fact that brain maturation completes at a later stage than most people think and the cause is organic. This was the main rationale behind the Roper V. Simmons Supreme Court decision in 2005 that eliminated the death penalty for those who committed crimes while 16 or 17.
I talked about this in a very vague way so as not to sway other jurors before any expert testimony. I even mentioned Roper V. Simmons while explaining how I could not disregard my own knowledge. A juror isn't supposed to consider potential penalties but my knowledge, outside of expert witness testimony, would have influenced my decision to convict for either 2nd degree murder or manslaughter. This isn't absolute as Sapolski himself has noted that criminal behavior can be the result of a "broken machine", with no chance of resolving itself.
I was not terribly interested in serving on a jury for 2 months but I was also being very honest. If I had really wanted to serve on the jury I wouldn't have mentioned any of this. The prosecutor stopped calling on me after that including questions made to the entire group of prospective jurors. I was absolutely the first one dismissed out of that group and left the courtroom, relieved, but also deeply disillusioned about the jury system. I am still disillusioned and the decision for this patent case only reinforces that.
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Re: Re: Re: Re:
I think you're right, but it doesn't make the sting any better when I get dismissed as an engineer/computer scientist. I've been called almost every year to sit through the process, and I'd really like to participate in the entire process of being a juror. But no matter how many times I sit through the process of jury selection (which is probably close to 30 times now,) I always get dismissed (except the one time I got in as an alternate, and then excused and the other time I got to be a juror, and the defense took a plea and the jury was dismissed.)
What bothers me most is for a system set up to find fair and impartial jurors, they seem to get rid of an awful lot of people based merely on their occupation. In our state, it is a single day/single trial system for jury pools, but if you don't serve on a jury, you remain eligible to be called in again while if you sit on a jury, you are ineligible for three years. It seems like I get called in every year (and I've been called in twice in one year on several occasions.) If you've been called in five times and dismissed five times, you should no longer be eligible for jury duty. Once they kill off their pool of those who want to serve, but can't because of their occupation, they might have to start thinking reasonably.
Until that happens, they are just jerking us engineers around.
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Re:
Would you be OK if in a copyright infringement case* the jury was composed entirely of copyright executives? After all, they ARE experts in the field of copyright infringement.
Likewise, in this case, why not stack the jury with patent experts? I believe Intellectual Ventures would be wiling to help. I hear the have a HUGE patent portfolio, so it stands to reason that they are experts in the area.
But, seriously, your proposal is both moronic and self-serving. The jury is supposed to be impartial. Your proposal would taint the jury and stack it against one side or the other, thoroughly perverting the purpose of a jury.
* no idea if they are supposed to have juries, but bear with me on this one
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Re: Re:
"Experts skilled in the art" refers to people with expertise in the domain of the invention, not experts in the domain of patent law. In this case, we needed a jury with people sufficiently experienced in cryptography so that they could see whether the "invention" was novel or not.
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Absolutely, I am in favor of stacking the odds in favor of the party that should rightly win, in favor of stacking the odds in favor of the truth and in what promotes the progress. If some trolls want to file a bogus stupid patent that experts in the field would consider bogus, obvious, and not novel then the odds should be stacked against their favor in favor of the party being trolled. But our legal system is backwards stacking the odds in favor of whoever provides politicians with campaign contributions and revolving door favors and does whatever else they can to get a desired outcome through manipulating the system politically instead of through the merit of their efforts. Look, for instance, at copy'right' lengths and public domain theft (ie: retroactive extensions). Govt. established taxi cab monopolies. The corrupt FDA. Well, the list goes on and on and on.
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Re: Re: Re:
* facepalm *
What you are proposing is a system where you (or a chosen elite) gets to decide from the start who is right, and then you have a sham trial just so you can put a tick in a checkbox that says "had a 'fair' trial".
That's not how things work in a Democracy. At least, not in the kind of Democracy where I would like to live.
You remind me of those people that suggest that I run untrusted applications (games, steam, etc) as root when they don't work. Because, you know, throwing away rules and restrictions is clearly the way to go when something doesn't work. What could possibly go wrong (you know, other than my system getting pwned because I was dumb enough to remove the few mechanisms that made it safe).
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If you're the one suing over a ridiculous patent, the more clueless the jury is the better.
If you're defending against a ridiculous patent however, you ideally want a jury that actually has at least a vague idea of the terminology being used.
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The patent system is not for inventors, it is build by lawyers and for lawyers. When you can get thousands of patents on a single smartphone, it is a sign that the demand for invention hight is getting ignored by patent examiners or that they are just unable to see the tricks getting used to get trivialities patented.
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What's with East Texas
What is the reason behind East Texas being so patent holder friendly? Has anyone looked into why juries there so often side with the patent holder, even when, as with this case, its blatantly obvious the patent is invalid? Are there a lot of patent holders who end up on the juries there, so they're pretty obviously going to side with the patent holder (which would seem like a conflict to me)? Is it just a "screw the big guy, save the little guy" mentality? Are we seeing the same handful of people on each jury that sway the rest of the jury (not necessarily saying they're a plant, but if the jury pool is small enough...)? There has to be something special about the people there or the water or something that makes this place such an obvious patent haven that everybody wants to file there, but what is it?
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Re: What's with East Texas
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Re: Re: What's with East Texas
You've flipped cause and effect. The juries aren't sympathetic because the company is local (but not really as you say), the company has set up a local office because they know the juries are historically sympathetic to patent holders.
It seems to me there needs to be a proper investigation into why east Texas patent cases are so must more likely to go in favour of the patent holder that it's worth setting up shell offices locally. I don't know what the cause is but the whole thing seems very unjust, as this case demonstrates.
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Re: Re: What's with East Texas
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Racketeering
How much was the jury paid, I wonder...
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Re: Sole ownership!
I mean, I see my kids talk about how some other group at school "stole their idea" for a science project or a play or something, so maybe this idea of "idea ownership" is a primitive in US society.
On the other hand, how could something that's basically done at a subconscious level make it all the way to an international treaty negotiation, like ACTA or TPP?
Anybody got any more clues for "emergent vs directed"? Because the concept has such dire consequences, I don't even like to contemplate them.
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Re: Re: Sole ownership!
What deranged laws do we have when you can be sued for merely using an idea? Thought crimes indeed.
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Seriously
I hate patent trolls with the fire of a thousand suns. I do not classify them as human beings.
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Or perhaps this is the result of otherwise reasonable and thoughtful people deciding they're too important for jury duty.
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The Nuclear Option
So this is it: We have to change the jury pool -- We have to move to East Texas.
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Re: The Nuclear Option
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Re: Re: The Nuclear Option
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Re: Re: The Nuclear Option
You, sir, owe me a new keyboard.
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Re: Re: The Nuclear Option
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Antintellecualism?
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Re:
Patent appeals go to CAFC, not the circuit appeals court in that circuit.
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Re: Re:
What's your view on how a CAFC appeal of this will turn out? Newegg got at least several independent inventors and previous art implementors to show up and testify.
Can the CAFC blow that testimony off? On what grounds? Or will they just intellectually review the facts and the law and slap the East Texas court around a little?
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What total idiots. Jury of your inferiors in East Texas. My god.
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Effectively forcing the actual inventor to either pony up some money or not be able to use *their invention* in any useful circumstance except on its own.
Oh, how I loathe patents that are "do this existing thing, but online" or, more generically, "combine these two existing things".
It's like a PhD dissertation - sure, you can (and probably will) use and discuss the work of others, but there's got to be some original research in there.
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buy an anti-patent troll t-shirt from Newegg
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Why Was This a Jury Trial?
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Re: Why Was This a Jury Trial?
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lacking
Just because an expert has a name doesn't mean he is 100 percent on the mark in his testimony. The attorney's are the ones that actually write the expert testimony. The expert argues whether or not that testimony will get by the other expert. The experts DO NOT stake their professional reputations on everything in their testimony because the expert testimony never sees the light of day. Again, patent litigation reporters are not capable of understanding that level of technical detail.
More substance is needed to form an adequate opinion about the merits of the verdict. BTW, I do not have a dog in this hunt one way or the other. I have been through this meat grinder so I know about the process.
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Re: lacking
In other words:
The article provided some pretty good links that would have been very useful in answering those very questions.
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The Jury is Not Wholly at Fault
http://arstechnica.com/tech-policy/2013/11/jury-newegg-infringes-spangenberg-p atent-must-pay-2-3-million/?comments=1&post=25764027
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