GNOME fires back at patent troll

Originally published at: https://boingboing.net/2019/10/22/gnome-fires-back-at-patent-tro.html

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While I am surprised GNOME is a going concern, I donated money to them out of a generalised spiteful wish that this guy end up financially ruined.

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FTFY

For clarity, I consider patent trolls to be several levels below ambulance chasers in terms of ethics and honorable ness.

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GNOME has grown and matured greatly in the last few years. I use it as my primary desktop, and it’s a joy to use. You might consider giving it a test drive. I use Ubuntu, but there are many great Linux distributions that employ GNOME as a desktop.

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I remeber GNOME as mature and with a massive userbase. Then they released GNOME3…

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Yeah, the initial release of Gnome3 was basically the entire gnome foundation pulling a Pottering - incomplete, full of bugs they refused to acknowledge or admit were bugs, missing most of the features from the previous releases that people actually wanted/used/needed, and pushed out on people with a battle cry of “WHY DO YOU HATE PROGRESS! GO BACK TO YOUR CAVE YOU LUDDITE!”. Any attempts at criticism of the problems with what they were doing was converted into a religious jihad against the complainant. That’s what spawned the dozen or so replacement desktop shells that people flocked to because Gnome3 was an unusable sack of burning crap.

Fortunately, they seem to have actually grown up and fixed most of the bugs, and put back the features people were upset about losing, so it’s actually usable again.

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Wow, this suit is a stretch, as in ‘entirely baseless, even given the patent as written.’

Not a lawyer, much less a patent lawyer, but I’ve been around the block a few times. Let’s see if I’m thinking like a patent lawyer here:

Both independent claims (1 and 4) specify an ‘image-capturing mobile device’.

Direct infringement is out of the question. Shotwell is not a mobile device. It is a piece of software. The developers of Shotwell do not market nor manufacture an ‘image-capturing mobile device.’ (Caveat: The patent specification does not actually offer a definition of ‘mobile device,’ so the court’s interpretation of the term may be far from what the common language would understand. It is not out of the question that a judge or jury would call a modern desktop or laptop computer a ‘mobile device’ because you can pick it up and carry it, and plug a Wi-Fi dongle into the desktop.)

Moreover, even a claim of contributory infringement strains credibility. Shotwell is primarily intended as a desktop application. It’s no doubt possible to configure it to run on some sort of tablet or smartphone, but that is surely not its primary use. Given its open-source nature, it would not even be technically feasible to exclude the putatively infringing secondary use. Shotwell is ordinarily unaware of the provenance of the images it manages. They could have been transmitted wirelessly from a mobile device, moved on a memory card, scanned from a film camera, or synthesized out of whole cloth by an application such as Blender. It is likewise unaware of the ultimate use of the images that it manages. Surely, they can be stored in a form that will ultimately be accessible from a mobile device, but there is no feasible way to exclude such eventual use: they are simply images stored in a file system with associated metadata.

This complaint is an attempt to isolate a single claim element ‘filter the plurality of photographic images using a transfer criteria’ and argue that any implementation of that element, lacking the other elements of the independent claim, is an infringement. That appropriation of a domain beyond the stated claim is impermissible.

I would have to see the file wrapper for the prosecution history, but both independent claims read as if there were once considerably broader independent claims, and the language of dependent claims were grafted onto them in order to narrow the claims sufficiently for a grant of patent. Note that for an application to be infringing, it must practice every element of the independent claim - if it is missing even one, the application is noninfringing. It does not suffice for a claim of contributory infringement to state that an object may be used as a component of the infringing system: it must also be proven that the object was actively marketed for the infringing use, or that it lacks a substantial noninfringing use. I cannot see where the complaint plausibly makes this argument, even construing all language in the form most favourable to plaintiff.

No doubt GMOME will want multiple strings to its bow, but the difficult-to-prove contention that the patent is invalid need not even be reached if all goes well. Shotwell, under any reasonble reading of the claims, simply does not infringe.

Arguably, and I’m sure that this must be an element of GNOME’s counterclaims, Rothschild’s reading of claims 1 and 4 goes so far beyond any reasonable interpretation as to constitute vexatious litigation. This suit is merely an attempt to extort a settlement, and GNOME deserves to be made whole from the extortion, not merely to have the suit dismissed.

(Of course, there will be the usual round of Rothschild being allowed to attempt to cure the deficiency by amending its complaint, but I don’t see how it can make a silk purse out of this particular sow’s ear of a patent.)

I’m making popcorn. Maybe the Rothschild debacle will arise to the level of drama that was exhibited by Prenda Law. We’ll see.

(And no, I’m not a GNOME fan, I’m a dinosaur that uses XFCE.)

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I really hate the conceit that a “mobile device” is something other than a general-purpose computer with a touchscreen. No, doing something on a mobile device isn’t any more patent-worthy than doing it on a desktop computer - and just doing something on a computer shouldn’t be patent-worthy in the first place.

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“The court finds it unnecessary to reach the patentability of the subject matter.” I simply didn’t get that far. The complaint is ridiculous on its face, even presuming the validity of the patent. Invalidating a patent is rough going - there’s a strong presumption that the USPTO knew what it was doing. Tossing out a meritless complaint is a lot easier, and this one is egregious enough that the plaintiff deserves to be sanctioned.

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