Stupid Patent of the Month: Using A Computer To Count Calories (Electronic Frontier Foundation)

This month’s stupid patent, like many stupid patents before it, simply claims the idea of using a computer for basic calculations. U.S. Patent No. 6,817,863 (the ’863 patent) is titled “Computer program, method, and system for monitoring nutrition content of consumables and for facilitating menu planning.” It claims the process of using a computer to track nutrition information like calorie or vitamin intake. It is difficult to think of a more basic and trivial use for a computer.

The ’863 patent is owned by a patent troll called Dynamic Nutrition Information, LLC. Dynamic Nutrition filed a lawsuit this month in the Eastern District of Texas accusing Australian company Fatsecret of infringing the ’863 patent. Dynamic Nutrition had filed four other lawsuits. Consistent with a pattern of nuisance litigation, each of those earlier suits settled very quickly.

What “invention” does the ’863 patent purport to cover? Claim 1 of the patent is reproduced in full below (with comments in brackets):

A computer program comprising a combination of code segments stored in a computer-readable memory and executable by a processor to provide nutrition content information related to consumables, the computer program comprising:

a code segment operable to receive and store an input related to consumption of consumables, and to associate the input with a calender [sic] date [i.e. program a computer to track daily food intake]; and

a code segment operable to generate an interactive display screen, wherein the interactive display screen includes— [i.e. include some kind of user interface]

one or more lists of consumables and related nutrition content information, and [i.e. list food options and nutrition information]

a summary section of past consumption of consumables. [i.e. list past food intake]

In other words, program a computer to help people keep track of meals and calorie or vitamin intake.

The application for Dynamic Nutrition’s patent was filed on June 11, 2001. By that time, computers had been around for decades and there was nothing remotely surprising or innovative about programing a computer to keep track of data—whether it be nutrition data or units shipped or accounts receivable or whatever. Nevertheless, the Patent Office takes an extremely rigid approach to whether or not a patent application is obvious. This means that companies often get patents on common sense ideas (like taking photos against white background or filming a yoga class). 

Even leaving aside the issue of obviousness, the claims of the ’863 patent are invalid under the Supreme Court’s Alice v. CLS Bank decision (which struck down patents that merely claim the use of conventional computers to implement an abstract idea). Indeed, the first company to be sued by Dynamic Nutrition, Under Armour, filed a motion to dismiss the case under Alice. Under Armour pointed out that the ’863 patent itself repeatedly emphasizes that its methods can be implemented using any conventional computer or programming language. Given the strength of this argument, it is unsurprising that the litigation settled before Dynamic Nutrition even filed a response.

Dynamic Nutrition’s patent is not even the only patent that claims using a computer for routine meal planning. A patent troll called DietGoal sued dozens of companies with a meal planning patent. A court invalidated DietGoal’s patent under Alice because it claimed nothing more than the “conventional and quotidian tasks” of selecting meals. The Federal Circuit affirmed that ruling. The logic of this decision applies straightforwardly to Dynamic Nutrition’s patent claims.

We recently launched our Saved By Alice project where we are highlighting cases where companies attacked by stupid software patents were able to use the Alice decision to defend themselves against weak patent suits. The Dynamic Nutrition litigation is yet another example of why the Alice ruling is important and how it can protect productive companies from patent trolls.

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Internet, Activate! Stand Up for Net Neutrality on July 12 (Electronic Frontier Foundation)

Two months ago, FCC Chairman Ajit Pai announced his plan to abandon the agency’s commitment to protecting net neutrality. On July 12, let’s give the world a preview of what the Internet will look like if the FCC goes forward with its plan to dismantle open Internet protections.

EFF is joining a huge coalition of nonprofits and companies in a day of action standing up for net neutrality.

One simple way that organizations, companies, and even individuals can participate is to install our widget. If you’ve installed the widget on your website, then on July 12, visitors will be greeted with an alarming message:

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This widget will send a clear message to your site’s visitors: giving up protections for net neutrality will give ISPs a frightening amount of control over your Internet experience.

All of the instructions for installing our widget are available on GitHub. For more information on the day of action, visit the Battle for the Net website.

If you’re worried about large ISPs deciding how you use the Internet, tell the FCC.

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STAND UP FOR NET NEUTRALITY

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Californians: Demand a Vote on Your Broadband Privacy Before the Telecom Lobby Runs Out the Clock (Electronic Frontier Foundation)

What do they do when they can’t win the vote? Try to Stop a Vote.

Right now, politicians in Sacramento are holding up a bill that would restore your broadband privacy rights and directly reject Congress and the Trump Administration’s decision to side with Comcast, AT&T, and Verizon.

It is in fact the first bill ready to be enacted into California law that would be a direct response the latest string of efforts in Washington DC to curb consumer protections in broadband access. A.B. 375 (Chau) would ensure your broadband provider must secure your permission first before selling your personal information to third parties.

However, it has been stalled in the Senate Rules Committee – likely due to opposition from major cable and telephone companies. If they are successful at keeping the bill stalled until July 18th, then the bill is dead for the rest of this year.

They can’t win at the vote given the overwhelming public opposition to repealing our privacy rights in the first place, which is why this is their strategy.

Death by Procedure and Denying the Vote

In California, bills must make it past certain policy committees by specific deadlines, or they are dead for the year. But before a bill can be heard in any policy committee, it must be referred out by the Rules Committee in a fairly routine matter of deciding which committees should review and vote on the bill before presentation to the full Assembly and Senate.

Two weeks ago, AB375 became eligible to be referred out of the Senate Rules Committee. Assuming normal procedures, advocates expected to testify in support of the bill at a July 3rd hearing.  However, the legislation has been mysteriously absent from consideration on the Rules Committee agenda. Two weeks have passed, the Senate Rules Committee has met twice, yet A.B. 375 has not been placed on the agenda, debated, or referred out to any policy committee.

This raises significant questions.

Unless Senate President Pro Tempore Kevin de Leon, who leads the Senate - and chairs the Rule Committee - decides to ignore the pleas of Comcast, AT&T, and Verizon and, instead, follows normal procedural rules and moves the bill forward so it can receive a vote, the telecom lobby will win in arguably the worst way possible - by simply denying your elected representatives from even voting at all.

The Momentum is With Us

California is the 20th state to engage in restoring our broadband privacy rights, but it could be the first state to officially make it law by this year. A vast majority of conservative, liberal, and independent voters opposed Congress repealing our broadband privacy rights and naturally they demanded action. Several print publications in California have written positive reviews about AB 375. And the legislation itself has been thoroughly vetted and is ready for enactment.

We have until July 18th to push AB 375 to the finish line. Pick up the phone ASAP and make your voice heard!

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Don’t Trust in Antitrust Law to Protect Net Neutrality (Electronic Frontier Foundation)

Back in 2014, we considered many possible ways of protecting net neutrality that would not rely on the FCC, including antitrust law. Unfortunately, U.S. antitrust law is not up to the challenge.

Antitrust law is an economic doctrine that gives little if any weight to freedom of expression and other noneconomic values secured by net neutrality. Antitrust law defines harm in terms of higher prices and diminished product quality. If antitrust law deems that a practice is not harmful to competition, it does not matter how much it represses speech, distorts access to knowledge, or intrudes on privacy. Antitrust law has no concept of the "gatekeeper" problem posed by an ISP's control over your conduit to information.

There are other reasons why antitrust isn't an effective tool for net neutrality problems. Antitrust law is fundamentally about protecting competition, but the market for broadband is very different than the theoretical ideal contemplated by antitrust law.

First, there is very little broadband competition to protect. More than 9 out of 10 Americans live in monopoly or duopoly markets for broadband according to the FCC. Even lower-speed wireless service is available from only a handful of carriers in most places, all of which oppose net neutrality and have pushed the boundaries of the existing Open Internet Order with throttling or pay-to-play zero-rating schemes.

Second, broadband service naturally tends towards monopoly. A large incumbent provider that can amass government permissions to use rights-of-way under public streets, on poles and antenna sites, and on the radio spectrum will always be able to offer cheaper service than a new entrant who has to pay to build the infrastructure and obtain new rights-of-way. Combine that with customers' notoriously unreliable access to information about service quality and broadband speeds and the high costs of switching providers, and you have a market that will not be competitive without intervention.

We got a competitive market for dial-up Internet in the 1990s because phone companies were required to allow other service providers to operate using their infrastructure. We could have that kind of competition again if broadband providers were required to grant similar access. But unless that happens, we will not see meaningful competition of the type that antitrust law is designed to protect.

Further, antitrust law has been eviscerated over the past century. Under the new "single entity doctrine," a company can't be accused of illegal collusion with its subsidiary or parent companies, so for example Comcast could make an arrangement to favor NBC-Universal content it owns out much fear from antitrust law. And a pair of Supreme Court decisions in 2004 and 2007 made it much harder to bring antitrust cases against companies in regulated industries, even if the regulations themselves are minimal. The dismal state of competition in broadband should make it obvious that current antitrust law isn't adequate even to protect competition, let alone protecting customers against data discrimination.

There are a few types of non-neutral practices that could also rise to the level of antitrust violations, such as an ISP's accepting payments to block competing websites, (but accepting payments from businesses to block websites that criticize them would likely get a pass).

Title II, the current legal basis for net neutrality protections, is the legal tool that is specifically and narrowly tailored to prevent discrimination by carriers of information. In the past, the FCC has tried to stretch its other authorities to impose net neutrality rules—which alarmed us, since stretching those authorities to achieve something they weren't meant to do would be bad government and accrue too much power to the FCC. Those approaches were defeated in court, while Title II has been upheld. Now, opponents of net neutrality urge a return to those dangerous and ineffective approaches, or to antitrust—another legal doctrine designed to do something entirely different from protecting against data discrimination. It's not the right tool for the job. That tool is Title II, and those who care about net neutrality need to defend it.

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STAND UP FOR NET NEUTRALITY

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