Tor Devs Say They've Learned Lessons From Carnegie Mellon Attack, But Worries Remain That They're Outgunned And Outmanned

Patent Troll Sues Everyone For Infringing On Encryption-Related Patent By Encrypting Their Websites

Patents

from the um,-we-actually-offer-no-encryption-services-of-our-own.-sorry. dept

Wed, Dec 2nd 2015 10:38am — Tim Cushing

Underdog Texas company takes on corporate giants!

Scores of big brands – from AT&T and Yahoo! to Netflix, GoPro and Macy's – are being sued because their HTTPS websites allegedly infringe an encryption patent.

It appears in May this year CryptoPeak Solutions, based in Longview, Texas, got its hands on US Patent 6,202,150, which describes "auto-escrowable and auto-certifiable cryptosystems."

CryptoPeak reckons TLS-secured websites that use elliptic curve cryptography are infringing the patent – so it's suing owners of HTTPS websites that use ECC. Top tip: loads of websites use ECC these days to securely encrypt their traffic.

CryptoPeak, of course, offers no cryptography products. It does, however, manage a portfolio of 66 lawsuits, all filed in the Texas Eastern District Court, beginning roughly 60 days after it acquired the patent. Among the illustrious names listed as defendants are PNC Financial Services, VUDU, Netflix, State Farm, Allstate, Petco, GoPro, Mary Kay, Target, Groupon, Williams-Sonoma, Etsy, Priceline… well, the list goes on and on and on.

All of these companies produce goods and services. CryptoPeak does not. The only thing it produces are lawsuits. The patent it's using in its litigation doesn't appear to actually cover the allegedly infringing activity it's suing over.

Perhaps crucially, [the patent] describes a means for "generating public keys" and "publishing public keys", and it's certainly true that ECC does involve generating public keys and using them.

But the patent is focused on "a key recovery agent to recover the user's private key or information encrypted under said user's corresponding public key" – which is really not the point of ECC.

Netflix, which has already moved to dismiss the suit against it, doesn't concern itself too much with the patent's supposed function. Instead, it argues the patent (along with the numerous lawsuits) should be invalidated/tossed because of other wording used in the patent paperwork itself.

The invalidity of the claims asserted here is cut and dry. The Asserted Claims recite “a method and apparatus.” Thus, a practitioner cannot know the scope of the Asserted Claims from reading them because they explicitly claim “separate statutory classes of invention,” an act expressly forbidden by the law. For this reason alone, these claims are invalid on their face, and the Court should declare so at this stage.

Netflix then points out the "method and apparatus" wording appears in multiple claims.

All of which should serve to kill the lawsuit and, possibly the patent, no matter how much the troll protests.

The defect in these claims is so glaring that CryptoPeak’s only choice is to request that the Court overlook the express words of the claims, construe the claims to read out certain language, or even correct the claims. CryptoPeak has done just that in its Amended Complaint, alleging that “[n]othwithstanding that [the claims] generically recite the existence of ‘apparatus’ in their preambles, each of the . . . Asserted Claims is a method claim . . . .” (Dkt. No. 21 at 4 (emphasis added).)

This request is improper and should be rejected. The Court must read the claims as written, “not as the patentees wish they [ ] were written.”

Seems like a solid argument, but CryptoPeak didn't file in this particular court just because it coincidentally happened to have rented a mailbox and an empty office in Longview, Texas shortly before filing the lawsuits. It filed in this court because magical things often happen for patent trolls -- wholly unrelated to the validity of their claims and their affected Texan accents. If this wasn't the case, then this particular district wouldn't be the IP shitmagnet that it is. If CryptoPeak can nail down a few settlements and licensing agreements, it makes the hassle and expense of serial filing worthwhile. And isn't that why our patent system was implemented in the first place?

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Filed Under: encryption, https, patent troll, patents
Companies: at&t, cryptopeak solutions, etsy, gopro, groupon, macy's, netflix, petco, priceline, target, yahoo

15 Comments

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Anonymous Coward, 2 Dec 2015 @ 11:10am

I don't think judge shopping accurately describes how patent trolls are taking advantage of East Texas. I think something more along the lines of Patent Laundering is more appropriate. This should be illegal.
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Phoenix84 (profile), 2 Dec 2015 @ 11:12am

Troll == Underdog?
Since when is a troll an underdog?
Underdogs are who we want to root for to win. This is the opposite.
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Anonymous Coward, 2 Dec 2015 @ 11:19am

I wonder how long until someone sues East Texas
These judges making rulings that go against not only established law, but common sense think they are immune, but international courts do not care about that. Hopefully within a few years these judges are going to be too caught up in defending themselves against billions of dollars of liability to keep making these bad rulings. The fact that companies pretend to base themselves in their district just for the clueless judges that keep ruling in favor of patent holders and ignoring the validity of the entire process not least the patents themselves.
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Anonymous Coward, 2 Dec 2015 @ 11:48am

Re: I wonder how long until someone sues East Texas
What do you mean "clueless judges"? Do you really think these judges have no clue what's going on? That they're completely unaware that all these obscure companies aren't really based in their otherwise technologically quite district? That their "offices" are a sham that haven't seen real work done in them since the last construction worker building them finished their job and left? That they're somehow oblivious to the press coverage of all the cases that go on there, or how their rulings have been reversed at higher levels in some prominent cases?

These judges aren't stupid. They damn well know something sketchy is going on. They just don't care. It doesn't hurt them, and brings some revenue to their town. Probably strokes their egos as well.
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Anonymous Coward, 2 Dec 2015 @ 12:12pm

Re: I wonder how long until someone sues East Texas
Judges have immunity from being sued for what rulings they make on their job. They have it for a reason, so that they don't need to worry about their own potential liability if they rule a certain way when deciding a case.

If a judge is totally corrupt and say accepting cash for making a specific ruling, then that's a different story, and the state can prosecute the judge for bribery/etc.
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ThatDevilTech (profile), 2 Dec 2015 @ 12:17pm

Oh yay....
Not just in Marshall now but the idiots mention the town I'm from. Marshall is bad enough. I'll be glad when something is finally done about what's going on in the Easter District and the idiots have to shop somewhere else, or the doors get shut entirely.
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Anonymous Coward, 2 Dec 2015 @ 2:12pm

If they shut down east Texas's ability for overseeing patent cases. I wonder where they would go next to pay off a judge
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Blackfiredragon13 (profile), 2 Dec 2015 @ 2:54pm

This is just nonsensical,
Because I honestly expect that at the current rate we'll be hearing about patents that cover the entire concept/process of encryption. At which point they'll start by taking every company in Silicon Valley and 95%-99% percent of the internet to court.

Hell while we're at it why stop there? Let's get a ton of patents on gravity and charge everyone and everything in the galaxy for violating patent law! The cases against black holes will be rather interesting.
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Anonymous Coward, 2 Dec 2015 @ 3:52pm

Re:
Johnson County, Texas. The second most corrupt County in Texas.
I know. I have the record to prove it.
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Anonymous Coward, 2 Dec 2015 @ 4:09pm

Why is google missing?
Surely they too use https
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Anonymous Coward, 2 Dec 2015 @ 5:13pm

Re:
They're a patent troll. The idea is to go after relatively small companies, or companies that don't focus on the technology in question, and shake them down for relatively small payments in lieu of the nuisance of a lawsuit.

Going after giant tech companies like Google, or companies that have demonstrated a strong willingness to fight patent threats in court like Newegg, is a great way to get your patent invalided, end up on the hook for a bunch of legal fees, and generally end the extortion money train. They already look like they've bitten off more than they can chew by going after Netflix. Imaging what someone with lots of experience in this area like Google or Newegg would do to them.
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Anonymous Coward, 2 Dec 2015 @ 11:54pm

Re: Troll == Underdog?
sarcasm
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your head
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Anonymous Coward, 3 Dec 2015 @ 1:21am

Re: Troll == Underdog?
No, an underdog is just someone who is less likely to win than the other "dog". If you want to root for the team that's less likely to win, that's your business, it doesn't stop them being the underdog.
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Anonymous Monkey (profile), 3 Dec 2015 @ 12:16pm

Re: Troll == Underdog?
Check your sarcasm meter ... I think it needs adjustment
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Anonymous Coward, 7 Apr 2016 @ 1:46pm

Patent law supports the idea that encryption is generally patentable in the US, provided that the encryption algorithm disclosed is specific enough and more than just an abstract idea, for example merely reciting 'encryption'. Here is a case which discusses when a patent for encryption is considered valid.
http://softwarepatentsconsidered.com/uncategorized/encryption-patentable-in-the-us-is-this-the-rise- of-us-software-patents/
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