Can U.S. Customs Police Patent Infringement?

The U.S. Bureau of Customs and Border Protection fails to appropriately police imports for patent infringement, according to a recent lawsuit by Microsoft Corp. The company alleges that the agency is allowing Motorola Mobility Inc. to import devices that infringe certain Microsoft patents violation of an order from the U.S. International Trade Commission.

Pursuant to a May 2012 ITC order, Motorola Mobility, now owned by Google, infringed a Microsoft patent for generating and synchronizing calendar items. The order also banned any infringing device from entering the United States.

However, according to Microsoft’s complaint, the U.S. Bureau of Customs and Border Protection (CBP) continues to allow infringing devices into the country. “The CBP has allowed the important of infringing devices based on claims that Microsoft made on an ex parte basis, and that CBP has accepted without providing Microsoft with notice of those claims, much less an opportunity to address them,” the complaint alleges.

“Most egregiously, CBP has allowed Motorola to relitigate—in secret—issues that Motorola lost before the Commission, and has granted Motorola precisely the relief that the Commission expressly refused to grant after full, fair, and open litigation,” Microsoft further argues. Meanwhile, Google maintains that Microsoft is seeking to impermissibly expand the scope of the ITC order.

While Microsoft’s allegations against the CBP must be decided in court, the case raises the larger question of whether the agency is equipped to deal with the recent influx of patent infringement cases. As former ITC chairman, Deanna Tanner Okun, told Reuters, the customs bureau may lack the expertise to enforce the orders. “Problems have increased. The system is outdated,” she said. “They’re using practices and procedures that are 20 years old.”

How Can I Help?

If you, or someone you know, need any help with Intellectual Property issues, from filing a patent, trademark or copyright, or just need advice regarding how best to protect your inventions, ideas or your brand, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Microsoft supports End Anonymous Patents Act

In a strange twist, Microsoft has thrown its support for a recently introduced bill titled “End Anonymous Patents Act,” introduced by House of Representatives member Ted Deutch (D-Fla.)

The act, if passed, would supposedly solve a problem regarding the recordation of patents in the U.S. Patent and Trademark Office.  Currently, recording the owner of a patent is voluntary.

Microsoft’s general counsel stated that:

Some patent owners take advantage of this obscurity to try to hide what they own for tactical advantage in licensing negotiations or to avoid complying with patent licensing commitments.

This is rather ironic considering that Microsoft has used anonymous patents for years to threaten both the Open Source community and now anyone producing an Android device.

To show it is serious, Microsoft launched its own web based Patent Tracker that allows anyone to quickly view and search through all of the patents that the company currently holds.

However, Microsoft has refused to divulge what patents it owns that “scare” handset makers in to licensing Microsoft’s portfolio, or those patents that it has licensed to other companies.

Currently, Microsoft makes more money from patent licenses on Android phones that it has made in total for its own brand of phones.  They are in fact becoming one of the world’s largest patent licensing entities, and in many cases, a non-practicing entity (or patent troll by some definitions).

This apparent transparency about face, is nothing more that smoke and mirrors, and is not the solution to the problem.

In fact, Microsoft can easily skirt the new bill by transferring their patents to patent assertion entities (i.e trolls) to attack their competitors.

Microsoft has strong ties with Intellectual Ventures, Rockstar and MOSAID, three of the world’s largest patent trolls.  When Microsoft transfers its patents to these trolls, Microsoft is no longer identified as the  “owner” of the patent.  So the recordation required by the new law does nothing to protect other companies from a shakedown and does not list Microsoft as the recorded owner.  Very convenient.

For example, Microsoft transferred more than 2,000 wireless patents from Nokia to MOSAID in 2011. Microsoft’s new “transparent” patent trackinging software will not show these patents because they don’t technically own the patents or control MOSAID.  However, Microsoft will benefit from the transfer because they and Nokia still maintain the ability to reclaim control over the patents transferred if MOSAID fails to satisfy preset revenue targets.

But don’t think Microsoft is alone in this endeavor.  In a similar fashion, Rockstar Consortium, Inc,formed by Microsoft, Apple, Ericsson and others, is now one of the largest patent trolls in the world, with more than 4,000 patents acquired the collapse and bankruptcy of Nortel.

A better bill to put before Congress would require companies to disclosure not only patent ownership, but patent royalties recieved from a particular patent (i.e. A companies patent “interest”) and a stiff penalties to companies that participate in patent privateering.  But with all the large companies that have become patent trolls themselves (while crying about the bad effects that patent trolls have on the economy), there isn’t any real change on the horizon.

How Can I Help?

If you need help to patent an idea, or protect  yourself from a claim of patent infringement, or know someone that can use my help, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California. As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

End of the App Lock-In?

As I was perusing my favorite technology blogs regarding, various smartphones, I was interested in the new Windows Phone 7 (WP7) Nokia Lumia 900 reviews.  I noticed that every article mentioned how fast it was on a single core device.  The constant reference to the single core brought out the attorney in me, so I did a little investigating.  It seems that there is no multitasking for applications in WP7.  Not a terrible limitation by any means.  However, I personally have looked at the Nokia and other WP7 phones along with Windows 8 and have no desire to have a Duplo/Lego phone that does more to annoy me than accomplish my work.  Your mileage and preferences may vary so don’t hate me because I don’t like your phone.

That being said, it dawned on me that if the new processors in phone and tablets were powerful enough, there is the opportunity to provide virtualization.  Virtualization on a phone or tablet would allow you to run multiple operating systems.  With the right set of hardware and software, a smartphone or tablet could run all the different segregated Apps.  This would mean a user would be able to run iOS , Android, Blackberry, WP7 apps on a single platform.

Just think one OS to rule all them all.

Is this the wave of the future, buy one, run all?  Or is this just a pipe dream.  Cast your vote in my poll.

If you have any software, hardware or Internet questions, please contact me for a free consultation.