TELECOM Digest OnLine - Sorted: Re: Judge Hits Vonage With Injuction; Stop Using

Re: Judge Hits Vonage With Injuction; Stop Using

Fred Goldstein (fgoldstein@)
Fri, 30 Mar 2007 23:14:51 -0500

On 29 Mar 2007 13:53:16 -0700, wrote,

> In the Verizon case, no one has presented any suggestion that Verizon
> had not researched the patented articles on its own.

The key here is that the patents should not have been granted, because
they lacked the originality and non-obviousness that are both
requirements of patents. The problem is that the Patent Office
doesn't pay much attention to prior art other than patents or
published journal articles. Common knowledge and usage doesn't count.

> As to criticisms of the jury's work, presumably Vonnage had very well
> paid attorneys working for it who understood the technology. Frankly,
> I had no idea of what Mr. Goldstein was talking about.

That, Lisa, is why civilian juries should not try patent cases.
People like you might be on them. You clearly lack the ability to
handle it.

> If that was Vonage's defense, yes they were sure to fail. A good
> lawyer can explain technical things to a jury in layman's terms and
> the judge can explain patent law, such as what is and what is not
> patentable.

Only if the judge lets them, based on rules that no longer work. I
don't know how good Vonage's lawyers are. Maybe they let this case go
in order to win at appeal, where judges actually judge.

> Let's remember that the jury's job is a "finder of fact". In essence,
> we have "he said/she said". The jury determines who to believe within
> the scope of the law explained by the judge.

> For example, Mr. Goldstein said:

>> the first and second destination address includes a numeric Internet
>> Protocol address; and the second destination address further
>> includes information relating to call routing via a public switched
>> telephone network.

>> No, sirree, that doesn't look at all like DNS or MX records or
>> anything else invented before 1997!

> What is DNS and MX and what does it have to do with the preceding
> statement? Given all these "addresses" floating around, what exactly
> does one do with them? What is Verizon claiming? What is Vonage
> claiming in response?

The first of those paragraphs is a direct quote from the patent (a
claim). The second was my snarky description of prior art. You may
not understand DNS or MX records, but they have been around since the
1980s. In this case, Verizon claims that they have a patent on
translating a name to a number, particularly applicable to the use of
the ENUM standard. MX records, used in DNS to forward mail, have had
multiple choices (first, second) all along. Verizon claimed the idea
as original.

> I am not an expert on patent law, but I understand that an improvement
> to an existing technology is patentable, indeed, a great many patents
> represent just that -- an improvement to an existing condition.

They have to be useful, non-obvious and original. And then only the
improvement is patented, not all applications of the basic technology.

> Per Mr. Goldstein's argument, if he's arguing that some technology
> already existing, I don't think that matters. It appears that Verizon
> claimed it made improvements to that technology. Or, perhaps Verizon
> invented some basic components of VOIP communication.

No, they basically patented the DNS, as well as RADIUS (used to
validate ISP dialups since the early 1990s) and the Home Location
Register (part of cellular standards for some years now).

> Mr. Goldstein concludes by saying:

>> In other words, Verizon is abusing the patent system in order to
>> stamp out competition. What else is new? Liars are liars.

> Frankly, that statement shows a prejudiced hostility toward Verizon.
> Verizon's a "liar"? The court didn't say that at all. Verizon is
> "abusive"? The court didn't say that either.

The court didn't say they were liars. The court was wrong. I say
they're liars. I say they fooled the court. I say you fill the
Digest every issue with drivel where you haven't a klew what you're
talking about, but you worship at the altar of infallible incumbent
LECs. So if you can't quite figure out that I'm saying that the
court was grotesquely in error, and Verizon a bunch of liars for even
filing the patents let alone bringing suit, then your reading skills
are pretty bad.

> I am curious if any reputable trade journals reported on this court
> action with the same passion of Mr. Goldstein and shared his opinion.

I'm being mild about it, compared to a lot of the Internet discussion.
Trade journals nowadays are mostly written by junior journalist
wannabees who believe that you need to report two sides to every story
equally. For example, "There was a massacre in Rwanda, which the
United Nations said was bad, but the Interahamwe said that the Tutsis
deserved it." No, that's not good journalism.

> Another thing that troubled me was that Vonage sought to get off by
> claiming it was in the "public interest". In other words, if I run a
> red light and smash up a Verizon truck, I shouldn't be liable for
> damages because I'm just a little guy and Verizon is this big company?
> It's in the public interest to let me slide?

No, though I have to admit that I'd give extra deference to that
particular case... ;-) but in this case Verizon had submarine patents
that it never intended to use itself, but which it filed when it saw
what its competitors were doing. Filing a patent on a competitor's
business process in order to stop them from competing with your own,
different, process is dishonesty at best.

> No. We have a marketplace now. Ma Bell is long gone.


> (I write this as my neighborhood is being dug up to put in new cable
> TV lines, which, interestingly enough, offer telephone service and
> high speed data flow). If some new company, like Vonage, wants a
> piece of the action, it has to do its own R&D or license patents
> from other people.

The patents were on familiar prior art. Frankly I once submitted a
preliminary patent (requires no examination but sets your filing date
for up to a year before the actual filing) on a method of carrying
VoIP that I thought was really novel, useful and not quite prior art.
After talking to leaders in VoIP gear manufacturing, I stopped work on
it, because they were happy with their existing, if less efficient,
"standards-based" approach. It's hard to find real novelty in
VoIPland (though it does occur, usually in smaller companies).

> Lots of small companies did just that. The companies that initially
> invented ICs were rather small compared to huge RCA and GE yet beat
> them out. Did Vonage make itself 911 compatible yet? Apple Computer
> started out of a garage when IBM and others were huge, and built quite
> a nice empire of its own. It can be done by hard work and creativity.

In today's world, Apple might have been sued out of existence by
patent trolls. Patent law was tighter then. In 1976, I actually
worked for a computer startup that had a novel design that we compared
to the Apple I and brand-new Apple II. But patenting was far from
anyone's mind. The idea was to build and sell product. Of course
that's why prior art is hard to find in patent records. Unlike the
chemical industry, the computer industry doesn't have a history of
patenting everything. (And VoIP folks are more from the computer side
then the phone side.) Ma Bell has a long history of using questionable
patents against competition (after Bell's own patent on Gray's
invention expired, Pupin comes to mind, selling Ma a key patent on
Heavyside's discovery), to be sure, but that's another tale.

> No one in this discussion offered any defense of Vonage's own R&D
> efforts, assuming they even have any. What several people posted
> instead was anti-Verizon feeling. Not liking Verizon is not the
> issue. If Vonage is so damn superior the marketplace will follow.

Vonage doesn't need to do that much R&D. It's not about who does R&D.
Verizon's R&D is pretty slim too nowadays -- they did a little in the
past but like SBC=>fauxATT, they now prefer to depend on suppliers.
What this is about is the use of bad patents as a way to put
competitors out of business. If you can't succeed in the marketplace,
having more lawyers is a bad Plan B. But it's Plan A to the ILECs.

  Fred Goldstein    k1io  fgoldstein "at"
  ionary Consulting

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