The story is missing a key detail: HOW did they win in court?
There are a couple of ways a plaintiff can lose. (1) the court finds that the defendant did not do anything that is covered by any of the valid patent claims. (2) the court finds that the patent should not have issued in the first place, due to a problem such as prior art making it not non-obvious, the patentee not being the inventor, and so on.
Knowing this is important because it determines who this case affects those who are not Kaspersky. If Kaspersky won because they simply did not do anything that is covered by the patent, but the patent is valid, then everyone else still has to worry about that patent.
If Kaspersky won because the court found that the patent is invalid, then we can all scratch this patent off our lists of patents we have to worry about.
(And all of this, of course, depends on what happens in the appeals court if the plaintiff appeals).
Troll's claims were "dismissed with prejudice", according to Kaspersky's personal blog. So, i suppose, this means that effectively the patent is invalid.
The Order indicates that Kaspersky won summary judgment on noninfringement grounds, not invalidity grounds.
e: Not sure about this, but the Order also suggests that some of the Troll's claims survived summary judgment and are proceeding to trial, so it's not clear to me how complete of a victory this is. I'll check the underlying order (this ruling was on a motion for reconsideration) and the PACER docket and see what I can figure out.
The public documents in this case are heavily redacted, because the relevant underlying facts involve confidential or sensitive information about licensing agreements. That, plus my unfamiliarity with the underlying technology, makes it tough for me to put together a complete picture of how this litigation actually unfolded. But, as best as I can tell from a brief initial review of the papers:
The Troll was alleging many different "flavors" of infringement that broadly fall into two categories: direct and indirect. Direct infringement would be if Kaspersky itself were violating the patent, for example by using patented software itself. Indirect infringement would be if Kaspersky were inducing others to violate the patent, for example by selling patented software to customers.
Kaspersky moved for summary judgment, which is essentially asking the Court to rule in your favor without a trial because the evidence is so overwhelmingly in your favor that no reasonable jury could find against you and a trial would just be a waste of time.
Kaspersky successfully argued that it wasn't directly infringing on the patents because the patents described a method for having a computer carry out some process, and in order to infringe, Kaspersky would have had to actually carry out that process, rather than selling software that carried out that process.
Kaspersky successfully argued that it wasn't indirectly infringing on the patent because all of its customers were covered by preexisting license agreements. Unfortunately, the key facts on this claim are redacted.
The Court granted summary judgment to Kaspersky on these grounds on most of the Troll's claims, but there were a few remaining claims that fell outside of Kaspersky's arguments. (These seemingly related to specific manipulations of computer hardware? Not really sure, don't understand the technology and don't want to learn it, already wasting too much time on this LOL)
After the Court granted summary judgment, the Federal Circuit handed down some new case law that was directly on-point. This new law made it clear that Kaspersky was going to win on those few claims that survived through summary judgment.
Kaspersky moved for reconsideration, essentially asking the Court to consider this new case and revise the original summary judgment order to dispose of the rest of the claims as well. Unfortunately, there are some fairly strict timing rules involved in moving for reconsideration and Kaspersky didn't comply with them, so it wasn't able to win this motion.
However, the writing was on the wall at this point, and the Troll apparently realized there was no way it could win at trial. On June 15, the Troll voluntarily dismissed the rest of the claims, effectively giving up and going home.
Congrats on reading this far. Happy to try to answer questions if you have any. Others who might know more about the case should jump in and supplement or correct me if I missed or misunderstood anything.
e: Responsive to the original parent comment in this thread:
1. Given that the Troll voluntarily dismissed its claims - essentially conceding defeat - I would be surprised if the Troll appealed. However, there might be some grounds for appeal in earlier nondispositive motions relating to interpretation of the patent claims.
2. Kaspersky won on noninfringement grounds, but they structured their noninfringement argument in a very elegant and powerful way that essentially renders the patent-in-suit toothless while still technically valid. This isn't legal advice and everyone knows it would be idiotic to rely on a HN posting in making any decisions with potential legal consequences, but I personally would go ahead and "scratch this patent off our lists." One down, several hundred thousand to go...
"plus my unfamiliarity with the underlying technology, makes it tough for me to put together a complete picture of how this litigation actually unfolded."
If you can't get the big picture, what chance does a lay jury have?
Isn't it time the US moved to a specialised patent court, as is found in many other jurisdictions?
I think a good trial lawyer would probably be able to get a jury to a level of at least rudimentary understanding of the technology over the course of a multi-day trial. But I agree with the spirit of what you're saying. Reliance on trial by lay jury is just one of the many, many ways the American patent system is broken.
Kaspersky won on noninfringement grounds, but they structured their noninfringement argument in a very elegant and powerful way that essentially renders the patent-in-suit toothless while still technically valid.
Can you expound upon this point a bit? Does that mean that they were able to argue for a favorable claim construction, or was it something else?
I didn't look at the claim construction order so I don't know if anything particularly remarkable happened at that stage, but based solely on the SJ order, it looks like they did get a very favorable construction in light of Ricoh v. Quantas. They were able to get all of the claims construed in such a way that their own behavior wasn't covered.
This then allowed them to deploy a very elegant (IMO) "fork" tactic. Having established, in light of the the claims and the Ricoh case, that they couldn't possibly be direct infringers, they were also able to make winning arguments based on an RPX license (unfortunately redacted) that established that none of their users could possibly be infringers.
So they were able to cement all of the legal bricks together into a solid wall that completely closed off any path to victory the Troll could have taken.
Really wish I could see the redacted language from the license agreements.
From what I understand, if a case is dismissed with prejudice the charges can not be refiled. However, I am not sure if that also means the Plaintiff can not appeal.
Plaintiff can definitely appeal a dismissal with prejudice. In fact, Plaintiff would probably have more trouble appealing a dismissal without prejudice, since the implication in a dismissal without prejudice is that Plaintiff can refile.
Kaspersky is undoubtedly one of most interesting companies in the antivirus space, if not the one. They do a lot of research and they push things forward instead of just scaremongering their userbase into buying annual subscriptions to a bloatware like Symantec does.
That being said, they do ship some really buggy stuff that is an absolute pain to deal with. For a couple of years I had to deal with support of a networking application and every time a new type of bug report cropped up, the first question was "do you have Kaspersky installed" inevitably followed by "yes, we do." I just can't tell how many men-hours were sunk into chasing problems that were ultimately created by bugs in their resident antivirus shields. It was few years ago, perhaps things have changed for the better.
They do a lot of research and they push things forward
Indeed, Kaspersky is superb. And if you're in the US, I have another reason to recommend Kaspersky: It is most unlikely that US law enforcement agencies such as the FBI could convince a Russian AV company to whitelist FBI spyware.
Nor will the Russian government cooperate. Can you imagine the Russian government saying to Kaspersky, "Yeah, sure, ignore the FBI's trojan horse, don't flag it".
Of course the Russian government would have leverage to plant its spyware in Russian-made AV. So you would think that buying Russian vs buying American makes no difference. Not so! Think about motivations: If you're an American, the Russian government doesn't care if you cheated on your tax, if you downloaded Hollywood movies, etc.
Buying your security from a different jurisdiction is a way to minimize risk.
Their competitor, Symantec, just bluescreened a lot of corporate XP machines the other week, so it doesn't take much for Kaspersky to look good in comparison.
What impact, if any, does this have on the companies, such as Microsoft, that previously settled and agreed to pay the licensing fees? Can they ride the coattails of this success?
That's what I was thinking too. It'd be really easy for them to terminate their agreements with the trolls and start using the technology free again. My guess is that at least some of them will take this course of action.
Surely, Kapersky can't be bigger than Microsoft and other companies mentioned in the article? If they can fight it out, why can't the big guys fight it out? If only the big guys took a stance, and fight these trolls, it'll be nice.
It's very expensive. Kaspersky almost certainly paid its lawyers much, much more to take this case through summary judgment and trial prep than Microsoft paid the Troll to go away.
Don't get me wrong, I'm with you. But...it's easy to pontificate on the virtues of taking a principled stand against trolls when you're not responsible to greedy shareholders.
Does anyone know who owns Kaspersky? It would be interesting to note who was on the Board that OK'd the decision to open the company coffers to fund a fight against a patent troll.
What I don't understand is why more companies don't band together to share the cost of fighting against a patent troll. The article lists more than a dozen companies being sued by this patent troll. If they banded together their cost would be a fraction of the cost of a solo fight against a patent troll, while the patent troll would have to bear all the cost of proceeding with the suit.
It seems to me that if more companies did this, it would shift the balance of power away from the patent trolls, and make then think twice before proceeding with a lawsuit, especially if their patent is weak.
It'd be very interesting if legal teams from different companies banded together to fight a common foe. I'm surprised this doesn't happen (or maybe it does and we don't hear about it?)
If I was a defendant along with 10 other companies in a case like this, you can bet I'd be calling them up to start a friendly dialog about sharing resources and discovery results (whether they were competitors or not).
I can imagine that for larger legal teams, like Microsoft probably has, they have very strict procedures dealing with this sort of suit, making collaboration with other teams difficult. I don't know anyone on MS' legal team, so this is speculation ;).
That is exactly why biggies like Microsoft should fight it out, because they have boatload of cash at their disposal. Today they pay one troll. This will set a precedent, and soon they'll end up paying more and more trolls. But, if they fight from the beginning, it might deter other trolls. They should be able to justify the cost to their shareholders. After all, they make wrong acquisitions all the time, they overpay for acquisitions, they pay heavy fines for behaving badly etc. The shareholders are still around, aren't they?
Seems consistent with what we're seeing in this case. Very hard to imagine any VC greenlighting this sort of "it's the principle" litigation; very easy to imagine a founder doing so.
There are a couple of ways a plaintiff can lose. (1) the court finds that the defendant did not do anything that is covered by any of the valid patent claims. (2) the court finds that the patent should not have issued in the first place, due to a problem such as prior art making it not non-obvious, the patentee not being the inventor, and so on.
Knowing this is important because it determines who this case affects those who are not Kaspersky. If Kaspersky won because they simply did not do anything that is covered by the patent, but the patent is valid, then everyone else still has to worry about that patent.
If Kaspersky won because the court found that the patent is invalid, then we can all scratch this patent off our lists of patents we have to worry about.
(And all of this, of course, depends on what happens in the appeals court if the plaintiff appeals).