Crazy Patent Troll Suing Devs For Posting Apps To Google Play (technobuffalo.com)

Developer Austin Meyer is fighting back patent trolls after he was sued for putting his flight simulator app called X-Plane on Google Play. TechnoBuffalo reports: A few years ago, he uploaded the app to the Google Play Store and was very unexpectedly hit with a lawsuit from Uniloc in 2012. The firm claims it patented the idea behind the app market. That's right, Uniloc isn't going after Meyer for making a flight simulator; it's going after any company that uses Google Play. It's already targeted a bunch of other popular apps, including Minecraft. So Meyer did a bit of digging and discovered a few pretty shocking details. It turns out the judge in that district may have a direct relationship with the prosecuting lawyer in many of these cases. The judge, Leonard Davis, is apparently known for almost never throwing out patent lawsuits. Meyer claims that his son, Bo Davis, is the lawyer representing many of these patent trolls.

Comments

Judge Davis retired last year

[dgatwood]

According to Wikipedia, Judge Davis retired from the eastern district of Texas a year ago. Why is he still hearing cases?

Yes, if true, there's a potential conflict of interest there, and it could explain a lot about why the eastern district of Texas is so amazingly pro-patent-troll, but at this point, it is water under the bridge. It would have been nice to have known that five or ten years ago; there are a number of ways that the problem could have been resolved, up to and including removing the judge in question if he didn't recuse himself from cases tried by his son going forward. But now that he's retired, there's nothing that can be done, and either the problem has been resolved (in which case he was the problem) or it hasn't (in which case he wasn't).

Re:Judge Davis retired last year

[mysidia]

But now that he's retired, there's nothing that can be done, and either the problem has been resolved (in which case he was the problem) or it hasn't (in which case he wasn't).

What do you mean? Retirement does not mean you are no longer subject to the possibility of disciplinary action by the ethics enforcement body.

Also, if they figure out that his son was the prosecution on all these cases, and a clear conflict of interest wasn't even disclosed...:

It can generate a cause for appeal, and possible charges against the former judge.

That might even result in some settlements being cancelled and prior rulings overturned, Although, I doubt one judge and one lawyer were allowed to do THAT much damage...

One of the big company defendants' investigation teams surely would have noticed any pattern like that, right?

Re:Judge Davis retired last year

[MightyMartian]

By which point the victims have spent tens of thousands of dollars. This is a very serious problem, and one that has significant costs for the economy. If there is also corruption involved, then why isn't the judge and his son now being interviewed by state of Federal law enforcement? There's no way any of this ethical, and almost certainly it has to be illegal.

Re:Judge Davis retired last year

[sjames]

This isn't a case of malpractice, it's judicial misconduct.

Re:Judge Davis retired last year

[cdrudge]

No, it's not that there is more than one. It's the same one. Knowledge of the relationship isn't new. It was mentioned in this article from 2012 and specifically points out any case would be assigned to another judge.

Re:Judge Davis retired last year

[ShanghaiBill]

By which point the victims have spent tens of thousands of dollars.

Only the stupid ones. Patent trolls shotgun out thousands and thousands of threatening letters, hoping someone will bite. That is why it is called "trolling". The biggest mistake you can make is to respond to their letter. That marks you as a target. They can't possibly afford to file so many lawsuits, so they only go after the fools. You should never respond to a patent troll until you have been served an actual filing by a legitimate process server.

IANAL, and if I were, I would give you the exact opposite advice: A letter from a patent troll requires a robust and muscular response, and I need a $10k retainer to do that.

Re:Judge Davis retired last year

[Anonymous Coward]

No. That one was served, and failed to show up in court and lost by default. Very different than receiving one of the troll threat letters.

Re: Judge Davis retired last year

[dsgrntlxmply]

Opinion: the population within that district, especially towns like Tyler, tend to be low income, not highly educated, and adhere to religious sects that emphasize personal propensity to sin, unquestioning acceptance of authority, and willingness to punish very harshly an act that has been framed as a moral wrong.

The people want to be and often are personally decent, but scientific rigor and skepticism take a distant second to authority and persuasion. Those are the jurors.

My ancestry is there, and I know the mindset.

Re:Judge Davis retired last year

[ShanghaiBill]

there was commentary in the previous thread to the effect that you can now be served by mail.

Your initial summons cannot be served by mail, unless you agree to be served by mail and voluntarily acknowledge receiving it. The initial filing must be hand delivered, and looks very different from just a letter. If you are a corporation, you cannot avoid service by hiding in the restroom. You must accept service at your registered place of business during regular business hours.

Move along, nothing to see

[cdrudge]

The developer got sued in the Eastern District of Texas, where almost all patent cases are filed. A lawyer that handles some patent cases has a father that is/was a judge in the same district, neither fact would be particularly startling to learn. Dad is stepping down from the bench to go into private practice for patents. No allegations that any case filed by the son was heard by the dad.

Unless there's more here than is being said, there's no story here aside from a stupid patent troll filing a stupid troll case.

Re:Move along, nothing to see

[cdrudge]

After watching video, the developer doesn't seem to understand how patents, lawsuits, or the whole process works.

He thinks he's committed a crime. He hasn't. At worst, he's committed patent infringement, a civil matter.

He thinks that if a company wasn't involved in the implementation of his game or the Google Play store that they don't have a right to claim a patent violation.

He thinks that it's suspicious that a judge in the most patent friendly district doesn't toss out patent cases. Shocker.

He thinks the father-son team are in cahoots because there's a financial incentive for dad to hear the cases and the son to file them. Never mind that the same logic would apply to any type of law. (e.g. A prosecuting son would file criminal charges, and a father judge would hear criminal cases but not necessarily the son's). Or that the son would take up the family business specializing in an field that the locality is known for.

Re:Move along, nothing to see

[rahvin112]

It's a clear judicial ethics violation for a judge to hear a case in which one of his relatives (out to the 3rd degree) is a participant in the case in ANY fashion no matter how minuscule. An direct investment of a $100 by a cousin in a company disqualifies a judge from hearing a suit with that company. This is appealable if the Judge refuses to recuse themselves.

Suing Minecraft?

[Registered Coward v2]

Given MS owns it and has a one or two lawyers, patents, and a little available cash to defend itself that seems to be an odd target to pick. Given MS also has an app store I would think they will fight this to protect their interests; a win would be good for everyone. MS and good, two things you never thought you'd hear together on /.

Re:Suing Minecraft?

[Jason Levine]

Not just Microsoft, but I would think Google would get involved with this. I can understand why the patent troll would go after the app developers instead of Google (take on the small fish and hope they're intimidated enough to give you money instead of challenging the giant shark to a biting contest). That said, Google should want to protect their developers from lawsuits like this. At the very least, they should want to make sure that no legal precedent was set saying that this patent troll "patented app stores."

Let's get Apple in on this too. They have an app store also. Unite Apple, Google, and Microsoft to take the patent troll down. I'd pay to see that happen!

Re:Suing Minecraft?

[pr0fessor]

We have seen this before with the printer scam, they were suing small companies that owned certain printers for infringing patents dealing with printers but not the manufacture. Now they have a patent that describes a service and again they are going after the business consumer and not the provider, it is a scam and should be treated as such.

Re:Suing Minecraft?

[redshirt]

Microsoft has previous history with Uniloc over Windows XP activation - and settled for an undisclosed amount after a $300 million judgement was thrown out. So, don't count on Microsoft being heroic in this action.

Re:Suing Minecraft?

[Zontar_Thing_From_Ve]

Given MS owns it and has a one or two lawyers, patents, and a little available cash to defend itself that seems to be an odd target to pick. Given MS also has an app store I would think they will fight this to protect their interests; a win would be good for everyone. MS and good, two things you never thought you'd hear together on /.

My best friend is a lawyer and we've known each other since college, so I know way more about how the US legal system really works than most posters here. Anything and I do mean anything can happen in a court case, whether heard by a jury or a judge. You can ask RIM about that. They got a settlement offer over a patent suit from a troll and they thought the case was frivolous so the went to court and had to pay over a billion dollars in damages after losing. The settlement wanted half or less of that. So the troll here may be quite willing to gamble that Microsoft could lose and have to pay them a fortune or they'll just settle it to avoid the hassle and either way the troll wins big time. Worst case for them is some lost money for lawyers fees but if they have their own lawyer on staff, that's a sunk cost anyway. One of the downsides of having a friend who is a lawyer is that you come to understand that all lawyers believe the current US legal system is working perfectly as is and they don't see any problem with people like Austin Meyer having to spend a fortune just to defend themselves. They don't see it as wasted money just to get back to square one because even is Austin "wins" in court, he'll be out big time lawyer fees to do so and he won't actually make any money himself from "winning". Lawyers have zero problems with this. To them, even if Austin is financially destroyed by legal fees and he wins, then it was all worthwhile.

Why doesn't Google help defend the victims?

[ChesterRafoon]

Google has more money and lawyers than just about anyone and it is their app store that is at the center of the whole dispute. Why don't they grow a pair and help defend the app developers who use their store and have been sued? Nice business partner their Google ...

Re:Why doesn't Google help defend the victims?

[DamonHD]

The little matter of whether they have legal standing to get involved...

Rgds

Damon

Re:Why doesn't Google help defend the victims?

[ukoda]

Surely there is no legal reason why Google can not provide support for a developer being attacked for using Google services, and every commercial reason to support the developer. If I was running Google I would be putting some of my best lawyers at the developers disposal at no cost to the developer. If the troll wins against this developer then I assume they would then go after every successful app at Play Store which would have a follow on effect on Play Store in general.

Prior Art

[AaronW]

When GRiD Systems released their first laptop, the Compass 1101, in 1981 it had a built-in 1200 baud modem. It ran GRiD OS, a multi-tasking operating system. They also had the concept of an app store, where a user could purchase apps and the laptop would connect to a central server and download the apps. I'm sure their patents have expired.

Note: I worked at GRiD while in college.

Here is a good talk about the GRiD Compass by Jeff Hawkins, who later founded Palm: https://www.youtube.com/watch?...

Re:Prior Art

[PPH]

Yes, but back in those days, one would dial directly into a BBS or server to download their apps. Those patents may have expired. But all one needs to do is to append the phrase "using the Internet" and refile.

Why do judges allow these lawsuits?

[CanadianMacFan]

I don't understand why these go ahead because in this case the developer is a user of the application store. The lawsuit should be against Google if the patent is for an app market. It would be as if I had a patent on a car engine part and then started filing lawsuits against people who bought cars instead of the car engine manufacturers.

Re:NOOO You don't say!

[fluffernutter]

We should automate them immediately. People say AI is getting pretty good. That's enough.

The Patent In Question

[Jason Levine]

It took some minor Googling, but I found the patent that Uniloc is claiming Austin Meyer violated.

According to this post by Meyer, they first claimed he violated one claim on the patent:

107. Computer code executable on an electronic device to prevent unauthorized access to electronic data stored on the electronic device, the computer code comprising: code for storing license data on a portable licensing medium configured to communicate with the electronic device; code for determining whether to allow access to the electronic data based on the license data; code for verifying the license data stored on the licensing medium by communicating with a registration authority having verification data; and code for providing updated license data received from the registration authority to the licensing medium.

Now, is it just me or could that describe any authorization system? For example, you install some software product, get a license key from the company, and use it to prove to the software that you actually bought it and should be allowed to run it.

So Meyer fought for three years and finally got this claim overturned. The patent office admitted this claim shouldn't have been approved. Victory, right? Nope. Uniloc is now claiming that he's violating:

21. A system according to claim 1, wherein the licensing medium comprises a memory installed in a cellular telephone.
22. A system according to claim 21, wherein the licensing medium is not removable from the cellular telephone.

This patent has 113 claims. Even if he took them out five at a time, at the current rate it would take him 68 YEARS for the patent to be tossed out entirely. Meanwhile, he'll rack up tons of legal fees (not to mention time/stress/life disruption) and Uniloc will just keep playing patent whack-a-mole.

BTW, that "claim 1" that #21 references?

1. A system for preventing unauthorized access to electronic data on an electronic device, the system comprising: a portable licensing medium configured to communicate with the electronic device and to store license data, the license data configured to be used by the electronic device to determine whether to allow access to the electronic data; and a registration authority configured to communicate with the electronic device, the registration authority having verification data for verifying the license data stored on the licensing medium, wherein the registration authority provides updated license data for the licensing medium.

This looks suspiciously like #107. It's like they built in redundancy in their patent trolling. "Take out a couple of our claims. No problem. We've got five more like them in the same patent and ten other patents just like this one waiting in the wings."

Re:The Patent In Question

[Dragonslicer]

Fortunately, if Claim 107 was already ruled invalid, summary judgment for invalidity of Claim 1 should be pretty easy to get. Claim 21 should be easy to kill by obviousness. Claim 22 might be indefinite anyway, since it's hard to define the licensing medium as being both "portable" and "not removable". It would probably also be considered obvious, since the only two possibilities are "removable" and "not removable", and I can't imagine that they'd be able to show that making it not removable was difficult enough to be worth a patent.

Re:Let me double down on what I said yesterday

[cdrudge]

Yesterday's thread attracted a lot of posts in favor of loser pays, which privileges the wealthier litigant unless judges have discretion in charging costs to the losing party.

Loser can be required to pay in the case of contract disputes where both parties previously agreed that prevailing party can recover costs.

Judges already have discretion in awarding fees, sanctions, or worse for frivilous, vexatious, similarly improper lawsuits. Look up Prenda Law (and related names) in the mess that they've gotten themselves into over the years in multiple different states for filing copyright troll lawsuits.

I also think that judges should have discretion to lock out civil plaintiffs who have a filing history that fits the old common-law definition of 'barratry'.

They already have that too. They refer lawyers to bar association review boards for disbarment. And there's also civil and criminal contempt charges if it comes down to it as well.

Lawsuit filed in 2012, last update early 2015

[raymorris]

> According to Wikipedia, Judge Davis retired from the eastern district of Texas a year ago. Why is he still hearing cases?

The suit was originally filed in 2012. The last motion I found was early 2015. So most of this case occurred prior to Judge Davis leaving the bench.

Re:Lawsuit filed in 2012, last update early 2015

[mamono]

I work for one of the District Courts. We have several judges who are "retired" but still working. Sometimes the just go in to senior status, sometimes they are recalled. It depends on the caseload of the court in question.

Re:Really?

[stealth_finger]

I have a patent on first posts. You'll be hearing from my lawyer. See you in Texas!

Retired judges seem to get re-hired

[swb]

Retired judges seem to get hired all the time as "special masters" or other one-time positions they don't want to use regular sitting judges for. It almost seems to be like military officers, they may step down from the bench but they seem to retain their judge credentials somehow, just like officers may retire from the military but can be recalled if they haven't also resigned their commissions.