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It’s being reported that Google is close to reaching a settlement with the Federal Trade Commission (FTC) regarding its long running anti-trust investigation.

Google Agrees To Compromise

Regarding the patent issue, Google may well have decided to compromise with the FTC after realizing that it doesn’t have much of a case to put forward any. The crux of the matter is that Google holds what are known as ‘standard essential patents’, used by the software industry to protect technical standards’ technology. One example of this would be a patent that allows one wireless phone brand to connect to another, says Reuters.

Whilst Google has used standard essential patents in a number of international legal disputes with its rivals, it’s unlikely that it will be able to do so at home, following a federal judge’s ruling that they cannot be used to win injunctions. This comes after previous rulings from FTC commissioners that using such patents could also be considered anti-competitive.

As such, Google is now thought to be nearing a deal in which it will only request an injunction against companies using its patents if they refuse to license them. Reuters says that such a deal could be concluded as early as this week.

No Resolution in Search Bias Case

How the more pertinent aspect of Google’s battle with the FTC will be resolved remains anybody’s guess meanwhile. Google has been accused of tweaking its search engine so that it displays results from its own websites and products ahead of rival companies in a variety of lucrative niches, a practice that numerous travel and shopping websites have described as unfair.

One possible course of action by the FTC might be to just dump the problem in the hands of the European Commission, which has mounted its own investigation into Google’s alleged unfair practices. Separately, Reuters claims that a number of Google’s competitors ready to take the case to the US Justice Department should any decision go against them.

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Microsoft Patent Case Draws Strange Alliances

A patent challenge that almost forced Microsoft Word off the market is going to court, and experts say its outcome could have a significant impact on the way patents are awarded.

Illustration: Lou BeachThe U.S. Supreme Court will start to consider on Monday the challenge of a technology patent assigned to i4i, which lower courts said Microsoft infringed in its flagship Word software.

Currently, when a patent holder accuses someone of infringing a patent, the burden is on the infringer to prove with “clear and convincing evidence” that the patent is invalid, said Sarah Columbia, head of the intellectual-property litigation practice group at McDermott Will & Emery LLP.

In hearing this case, the Supreme Court could decide to lower that standard of proof, she said.

Bolster a Patent?

While arguing against the validity of the i4i patent, Microsoft presented new evidence that had not been considered by the U.S. Patent & Trademark Office when it granted the patent. Microsoft argues that with the new evidence, the burden of proof should be lowered to “a preponderance of the evidence,” rather than the stricter clear and convincing evidence, Columbia said.

She envisions three possible outcomes from the Supreme Court. At one extreme, it could lower the standard of proof for patents so that accused infringers have only to prove by a preponderance of the evidence that a patent is invalid.

Alternatively, the court could lower the standard of proof only in situations where an infringer presents new evidence that the patent office has not already considered, as Microsoft has done.

A third option is to leave the current required standard of proof unchanged.

If the court does lower the standard, it would become easier to invalidate patents, Columbia said. “Over time, if the burden of proof is lowered to prove invalidity, you’ll find more cases where patents are found to be invalid,” she said.

She and others describe other potential consequences.

“There is already enormous pressure for patent attorneys to file every piece of prior art they can think of. If you create this double standard, where art that’s not before the patent office somehow weakens the patent, there’s even more pressure to [file every piece of prior art],” she said. “We already have a situation where the examiners are fairly overwhelmed with the volume of work. I think we’re going to make it worse” if the Supreme Court sides with Microsoft.

Challenger: Innovation at Stake

I4i paints a more dire picture. “The implications are gargantuan,” said Loudon Owen, chairman of i4i. “The whole system for innovation in this country is predicated on the patent system. If patent rights are eroded to where there’s no point in having a patent because you can’t enforce it, that will disrupt policy and the practice of disclosure.”

The resulting uncertainty could cause some inventors to decide against patenting their technology, which would mean others couldn’t license the technology to build on top of, he said.

Microsoft countered that “questionable patents that should never have been issued” stifle innovation.

“Responding in litigation to these bad patents imposes a tax on all innovative companies and ultimately on the consuming public,” Andy Culbert, Microsoft associate general counsel, said in an e-mailed statement.

The company argues that i4i should never have been granted its patent in the first place. “Microsoft’s solution to prevent this type of abuse is to have the courts apply the burden that generally applies in all civil cases – the ‘preponderance of evidence’ standard — to prove a patent invalid,” Culbert said.

Industry Chooses Sides

A wide range of companies have lined up on each side of the case. Some make unusual bedfellows. Supporting Microsoft are Apple, Google, and the Electronic Frontier Foundation.

Supporting i4i is a longer list, including 3M, Bayer, 19 venture capital firms, the U.S. government, and six former commissioners or directors of the patent office.

“If you look at the group that filed amicus briefs, you can see pretty clearly the companies that filed on Microsoft’s side tend to be companies who get a lot of lawsuits against them on patents, and in particular a lot of lawsuits against them by what we call nonpracticing entities,” Columbia said. Often called “patent trolls,” these companies buy up patents and then seek infringers they can pursue for royalties.

While big companies like Microsoft have their own patents to defend, they also get sued frequently, often by patent trolls. “They must be thinking they would rather have the standard lowered for these nonpracticing-entity cases,” she said.

Pharmaceutical companies, such as Bayer, are hit less by nonpracticing entities and are more likely to assert their own patents, she said. “Big pharma really uses patents to keep away the [generic brands] so they don’t want the standards lowered,” she said.

The case dates back to 2007, when i4i sued Microsoft for allegedly infringing a patent covering a technology that lets users manipulate the architecture and content of a document. It said Microsoft infringed the patent by allowing Word users to create custom XML documents. In 2009, the U.S. District Court for the Eastern District of Texas found in i4i’s favor and ordered Microsoft to stop selling Word products in the U.S. in their current form. Microsoft eventually removed the feature in order to continue selling the product.

Eu Market Tests Settlement Proposed By Apple And Publishers In Ebook Price Fixing Case

Following a federal judge’s decision to approve settlements with three publishers and the Federal Communications Commission in the United States, the Apple/Amazon eBook price-fixing case is taking a different turn in the European Union with officials prepared to market test settlements put forward by Apple and the majority of publishers involved. In the EU, Apple appears to be proposing a settlement similar to the one it is fighting in the U.S. (and expected to appeal), allowing retailers to freely set prices for the next two years. The EU’s European Commission issued a press release earlier today (via Cnet):

Antitrust: Commission market tests commitments proposed by Simon & Schuster, Harper Collins, Hachette, Holtzbrinck and Apple for the sale of e-books

The Commission considers at this stage that these companies may have breached EU antitrust rules that prohibit cartels and restrictive practices by jointly switching the sale of e-books from a wholesale model to agency contracts containing the same key terms (in particular an unusual so-called “Most Favoured Nation” – MFN – clause for retail prices). The agency model allows more control by publishers over retail prices. The Commission has concerns that this switch may have been the result of collusion between competing publishers, with the help of Apple, and may have aimed at raising retail prices of e-books in the EEA or preventing the emergence of lower prices.

In the proposed commitments, the five companies offer to terminate existing agency agreements and refrain from adopting price MFN clauses for five years. In case any of the four publishers would enter into new agency agreements, retailers would be free to set the retail price of e-books during a two-year period, provided the aggregate value of price discounts granted by retailers does not exceed the total annual amount of the commissions that the retailer receives from the publisher.

Background

Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the EEA Agreement prohibit agreements and concerted practices which may affect trade and prevent or restrict competition.

After unannounced inspections in March 2011 (see MEMO/11/126), the Commission opened proceedings in December 2011 against Simon & Schuster, Harper Collins, Hachette, Holtzbrinck, Penguin and Apple (see IP/11/1509). Following discussions with the Commission, four of these publishers and Apple offered commitments with a view to seeking an early resolution of the case. Penguin (Pearson group, United Kingdom) has not offered any commitments and the investigation into their conduct is on-going.

If the market test indicates that the commitments are a satisfactory solution to the Commission’s competition concerns, the Commission may adopt a decision under Article 9 of the EU’s antitrust Regulation 1/2003, to make them legally binding on Simon & Schuster, Harper Collins, Hachette, Holtzbrinck and Apple. Such an Article 9 decision does not conclude that there is an infringement of EU antitrust rules but legally binds the companies concerned to respect the commitments offered. If a company breaks such commitments, the Commission can impose a fine of up to 10% of its annual worldwide turnover, without having to find an infringement of the antitrust rules.

Google Search Patent Update – December 18, 2023

Welcome back to another week for the geeks.

The last few weeks were a bit uneventful, but I did come up with a few that really are worth a read.

As always, patents take some time to get into, but the more of them you read, the easier it gets.

It can only make you a better SEO.

Also, my first post of 2023 will be a round-up of all the Google search-related patents that I collected over the year that was 2023. Be sure to stay tuned for that.

Filed: April 26, 2023

Awarded: Nov 10, 2023

Abstract

“Example aspects of the present disclosure are directed to systems and methods that employ a machine-learned opinion classification model to classify portions (e.g., sentences, phrases, paragraphs, etc.) of documents (e.g., news articles, web pages, etc.) as being opinions or not opinions. Further, in some implementations, portions classified as opinions can be considered for inclusion in an informational display. For example, document portions can be ranked according to importance and selected for inclusion in an informational display based on their ranking. “

Dave’s Notes

This one, as with most patents, can be adapted and used in a variety of ways, it does seem that a lot of the original impetus is towards news, (or potentially blogs).

By understanding the tenor/opinion of a document it can be ranked accordingly.

As stated in the patent, “a portion of the document that has been classified as opinion and/or ranked as having high importance.” One could also imply that it further limits the user’s exposure to new information by showing highly ranked information that reinforces their own perceived opinions on a topic (query).

From the Patent

“Understanding of content (e.g., textual content) contained in a document by a computing system is a challenging problem. Even in the professional news journalism space, where articles are typically written in high quality language and syntax, computing systems are currently able to understand only very little about the actual content of news articles. Furthermore, determining how a given article compares to other, related news articles written by other journalists is an even more challenging task.”

“Example aspects of the present disclosure are directed to systems and methods that employ a machine-learned opinion classification model to classify portions (e.g., sentences, phrases, paragraphs, etc.) of documents (e.g., news articles, web pages, etc.) as being opinions or not opinions. Further, in some implementations, portions classified as opinions can be considered for inclusion in an informational display. For example, document portions can be ranked according to importance and selected for inclusion in an informational display based on their ranking. “

Filed: March 27, 2023

Awarded: Dec 1, 2023

Dave’s Take

As I was digging this patent (on personalization) it discusses (in part) the PageRank/Random Surfer approach. And the limitations therein.

For those not all that intimate with it, that’s the core element of links, which is an obviously important area.

They seek to adapt this by a more personalized approach and a “profile rank” to better tailor the existing (PageRank created) search results… Anyway, interesting stuff.

From the Patent

“In reality, a user like the random surfer never exists. Every user has his own preferences when he submits a query to a search engine. The quality of the search results returned by the engine has to be evaluated by its users’ satisfaction. When a user’s preferences can be well defined by the query itself, or when the user’s preference is similar to the random surfer’s preference with respect to a specific query, the user is more likely to be satisfied with the search results. However, if the user’s preference is significantly biased by some personal factors that are not clearly reflected in a search query itself, or if the user’s preference is quite different from the random user’s preference, the search results from the same search engine may be less useful to the user, if not useless.”

Filed: May 23, 2023

Awarded: Dec 15, 2023

Abstract

“From the content of a document, a factual entity that relates to the content of the document is determined. Content for a knowledge panel is requested. A knowledge panel is a user interface element that provides a collection of content related to the factual entity. The contents of the knowledge panel is received for contemporaneous display on the user device with the content of the document.”

Dave’s Notes

Interestingly this one doesn’t really have a ton of new elements we’d not be familiar with when it comes to knowledge panels, but I’ve actually not seen a ton of descriptive patents on them. So, it’s worth inclusion here today.

For example, if you’re not familiar with what an entity is fully, they do describe them as, “Entities can include, but are not limited to, a person, place, country, landmark, animal, historical event, organization, business, sports team, sporting event, movie, song, album, game, work of art, or any other appropriate entity.”

From the Patent

“However, when developing search queries to submit to the search engine, the user often needs to provide contextual information of the document in the query. For example, a user may be authoring a document to describe bears in the Smokey Mountains. The query the user will need to formulate will need to express this informational need.”

“In some implementations, a knowledge panel provides a summary of information for the entity. For example, a knowledge panel for a singer may include the name of the singer, an image of the singer, a description of the singer, one or more facts about the singer, and content that identifies songs and albums recorded by the singer.”

“In some implementations, a knowledge panel can provide more granular information. For example, if a document section is about the singer’s childhood, the knowledge panel can provide information regarding the school the singer attended, a snippet about the town the singer grew up in, and the singer’s recollections of growing up there.”

That’s about it for this week folks. If there’s a specific area of search that you’d be interested in reading up on, feel free to get in touch with me.

I am always happy to help.

See you next week!

More Resources:

Google Responds To Microsoft’S Gotcha Moment In Patent War Situation

Google Responds to Microsoft’s Gotcha Moment in Patent War Situation [UPDATE: Microsoft Responds Again]

Just yesterday there was a rather interesting announcement made by mister David Drummond, Senior Vice President and Chief Legal Officer for Google which noted how Microsoft and Apple had joined forces to purchase patents then used to stop the progress of Android via amounts of cash required to be payed per Android-toting device manufactured. This original announcement was responded to by Microsoft who then noted that they’d offered to have Google join in on their bids for the patent collection they’re now using, now Google has responded back. Sort of like a high school message board, wouldn’t you say?

Drummond’s response to the email which Microsoft presented showing irrefutable evidence that Google was indeed invited to join in on the bid for the collection of patents now in question was made a short while ago today. Drummond notes that Google does not find it surprising that Microsoft would want to “divert attention” away from the subject at hand with “a false gotcha!” while continuing to “fail to address the substance of the issue” the group had raised.

What Drummond means and says furthermore is that anyone other than the public domain / open-source community owning said Novell patents would take away any group’s ability to defend themselves against attacks by those who WOULD own said patents. Drummond maintains that it is Microsoft and the rest of Google’s competitors who are aiming to use what they’ve purchased in a “patent war” which would stifle production of devices and stop innovation rather than allowing these patents to stay open and free so that it is features and devices that make a company prosper.

Drummond notes that a joint acquisition of the Nortel patents was an ingenious strategy made by Microsoft and the rest of Google’s partners so that Google would pay for the right to keep and assert these patents to defend Android against those who would, again, use said patents to wage war on those manufacturers without the cash to get in on the deal.

What’s ultimately happened though already is the there U.S. Department of Justice has intervened (this was before this whole new back and forth started) and forced Microsoft to sell the patents it bought and demanded that the winning group (Microsoft, Apple, Oracle, EMC), give a license to the open-source community. The Department of Justic again said that this set of changes was “necessary to protect competition and innovation in the open source software community.” You can read all about that case here.

We’ll continue to cover this massively important cat fight as it plays out into the future.

UPDATE: Frank Shaw, aka who we’ve been referring to as Microsoft on Twitter thus far, has replied again in several Tweets, underwriting the importance of the situation of course. In his series of Tweets, saying that instead of what Drummond says, Google wanted the patents all for themselves so that they could sue others instead. What a silly fight this is turning out to be, yes?

Making The Case For Going Case

I decided to go completely case-less. Most of you guys probably think I already do that, since I never have a case on my devices when I’m filming a new video.

But that, as it turns out, hasn’t been so. I used to only keep my iPhone nude for aesthetic purposes on film. As soon as I hit the shutter release on my camera to stop filming, back in the case she went.

Then I read something that changed my perspective on things. After seeing this post by John Gruber, I started thinking. Why are we so obsessed with encapsulating our devices in protective covering? Aren’t we ridding ourselves of the pleasure of using it as it was intended and designed to be used?

I decided to embark on an experiment. One that could prove costly, but at the same time provide me with a since of liberation. I was going to go case-less…

That was two months ago, and I’ve never looked back. It’s hard for me to imagine ever going back to using a case after using my iPhone 5 without one for the last two months.

I will admit that I have yet to throw caution completely to the wind, not yet at least. I purchased AppleCare+ just in case my phone is cosmetically damaged to the point where it bothers me. I’ve also placed a thin square patch of film on the back on my slate iPhone 5, because the anodized aluminum is so prone to scratches. That being said, it’s barely even there, and it’s certainly not providing me with any real protection in the event of a catastrophic drop.

I’ve received some pretty funny responses from friends, family, and even random strangers upon them seeing my case-less iPhone 5.

“You must be pretty brave to do that,” noted one stranger in a local Starbucks.

“That’s insane!” proclaimed an OtterBox obsessed friend.

Just a few months ago, I would have at least sympathized with them, but now I think they’re downright ridiculous for covering up such a fine piece of hardware. They pay all of this money for a device, and they don’t even get to touch it, can’t even feel it, and can barely see it. It all seems silly to me now.

Of course, going case-less has its downsides. For one, it’s inevitable that you phone will suffer from a few scratches here and there. These scratches are largely unnoticeable without a thorough examination of the device, or without the sun hitting it at just the right angle, but they’re there.

The slate iPhone 5, as you know, is prone to scuffs due to the anodized aluminum coating. I’m a victim of “scuffgate“, and I do notice more than a few areas on my iPhone where the bare metal is showing beneath the coating. Again, it’s not something that’s immediately discernible, but a close up view will reveal the imperfections.

I have to admit, at first, I was kind of annoyed with the hairline scratches on the screen, or the scuffs on the aluminum housing. I began to second guess the rightness of my decision to go without a case. But then I got to thinking, I really use my iPhone. I mean I really use it. As someone who blogs about iOS devices for a living, I put my iPhone through more stress than the average iPhone owner. It truly is a testament to the design of the device, that I only have the few scratches and scuffs that I do.

I’ve dropped my iPhone on a hardwood floor multiple times. I lay it face down or face up on virtually any surface. I’m always placing it in my pocket with keys and other potentially dangerous objects, and yet, it still looks virtually brand new.

All things considered, I do not regret my decision to go case-less one bit; not one iota. It’s such a liberating feeling to be able to directly interface with your device without any barriers. You don’t have to worry about cases interfering with the camera, or being too bulky. You get to truly enjoy an item, which by its very nature, is truly meant to uninhibitedly touched.

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