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| Denies IPR in Apple v Fintiv | #iphone | #ios | #cybersecurity | #informationsecurity

Source: National Cyber Security – Produced By Gregory Evans

The Patent Trial and Appeal Board’s (“PTAB”) institution rate for inter partes reviews (“IPRs”) has fallen virtually every year.  In its recent decision in Apple, Inc. v. Fintiv, Inc. issued on May 13, 2020, the PTAB denied institution of Apple’s petition for IPR and set forth a new test for determining whether to institute an IPR based on the status of the underlying district court proceedings, which suggests that institution rates may continue to fall.

Ever since inception of the AIA, the institution rate of IPRs has declined significantly almost every year.  According to published PTAB statistics, the institution rate has fallen from a high of over 87% in 2013 to a low of 63% in 2019 and is only 55% so far in 2020.[1]  An analysis of the data reveals that the driving force behind the falling IPR rate appears to be the recent and dramatic increase in the rate of discretionary denials under 35 U.S.C. §314(a).  Under that statute, an IPR may not be instituted unless there is a “reasonable likelihood that the petitioner would prevail” on at least one patent claim challenged in the petition.[2]  Over the past four years, discretionary denials have increased from only 5 petitions denied under §314(a) in 2016 to 75 petitions denied under §314(a) in 2019.[3]  That number is expected to more than double in 2020.[4]

A recent decision by the PTAB is a good illustration of the PTAB’s exercise of its broad discretion to deny institution under §314(a) in view of the advanced stage of the underlying district court proceeding.

In a landmark decision designated as precedential or binding, the PTAB recently exercised its discretion under §314(a) to deny institution of an IPR petition filed by Apple against Fintiv, Inc., a company that develops mobile commerce platforms to support mobile marketing and mobile payments.[5]  In Apple, the PTAB announced and applied a new six-factor test to be used in determining whether to deny institution based on the advanced status of the underlying district court case.  Technically, the six factors were articulated in the PTAB’s order authorizing supplemental briefing on whether to grant a discretionary denial a couple months earlier,[6] and a different list of non-exclusive factors was set forth in General Plastic Co., Ltd. v. Canon Kabushiki Kaisha,[7] but the present six-factor test was not designated as precedential until the PTAB’s May 13, 2020 decision.  In any event, the parties’ dispute began when Fintiv filed suit against Apple for patent infringement in the Western District of Texas.[8]  Apple filed its IPR petition ten months later, and the parties were in the relatively early stages of discovery when the PTAB issued its decision.  In denying institution, the PTAB announced and considered the following six factors: (1) whether the District Court had granted a stay or evidence exists that the Court would grant a stay if the IPR were instituted; (2) the proximity of the court’s trial date to the PTAB’s expected deadline for a final decision in the IPR proceeding; (3) the investment by the parties and the court in the district court proceedings; (4) the degree of overlap between the issues raised in the IPR and the district court case; (5) whether the parties in the two proceedings are the same; and (6) any other factors that might affect the Board’s discretion, including the merits of the IPR petition.[9]

First, the PTAB observed that neither party had requested a stay pending the IPR and “declined to infer” whether a stay would be granted if the IPR were instituted, which did not weigh for or against institution.  Second, the PTAB noted that trial in the district court was expected to occur two months before the Board’s deadline for a final decision in the IPR proceeding, which weighed in favor of a discretionary denial.[10]  Third, even though fact discovery was only “in its early stages, with document production ongoing and depositions just getting underway,” the PTAB noted that the district court had issued a Markman ruling, and the parties had exchanged their final infringement and invalidity contentions.[11]  Based on the parties’ investment in the district court case, the PTAB considered this factor to weigh “somewhat in favor” of a discretionary denial.[12]  Fourth, although Apple had raised additional invalidity contentions in the district court case that were not at issue in the IPR, the PTAB reasoned that the assertion of additional invalidity contentions in the District Court is “not relevant to the question of the degree of overlap.”  Instead, because the identical patent claims were challenged in both proceedings, and because “same [prior] art” was presented in both proceedings, this factor weighed in favor of discretionary denial.[13]  Fifth, because Apple and Fintiv were parties in both proceedings, this factor also weighed against institution.  Finally, the PTAB’s “initial inspection” of Apple’s petition revealed “certain weaknesses,” such as where the prior art disclosed certain steps and other claimed features.  In conclusion, the PTAB determined that the balance of factors weighed in favor of discretionary denial and that “efficiency is best served by denying institution.”[14]

Takeaways:  Discretionary denials under §314(a) are increasing.  Patent owners seeking to defeat institution of IPR petitions may wish to emphasize the weaknesses in the merits of the IPR petition and argue that the denial of institution will save judicial and party resources.  On the other hand, IPR petitioners may wish to file their petitions sooner and not wait the full twelve-month statutory period allowed before filing their IPR petition in order to give the district court proceedings less time to reach an advanced state.  Additionally, petitioners may wish to challenge more or different patent claims in the IPR than challenged in the district court case to reduce the degree of overlap between the IPR and district court proceedings.  For the same reason, petitioners seeking institution may also wish to assert additional or other invalidity contentions, prior art or prior art combinations in the IPR petition in order to reduce the degree of overlap between the IPR and district court proceedings.


FOOTNOTES

[1] https://www.uspto.gov/sites/default/files/documents/trial_statistics_20200331.pdf.

[2] 35 U.S.C. §314(a).

[3] https://www.unifiedpatents.com/insights/2020/5/13/ptab-procedural-denial-and-the-rise-of-314?utm_source=Unified+Patents+Newsletter&utm_campaign=ca8294e39b-EMAIL_CAMPAIGN_2019_10_02_08_16_COPY_01&utm_medium=email&utm_term=0_5140119467-ca8294e39b-124506621

[4] Id.

[5] Apple, Inc. v. Fintiv, Inc., IPR2020-00019, Paper 15 (PTAB May 13, 2020).

[6] Apple, Inc. v. Fintiv, Inc., IPR2020-00019, Paper 11 at 5 (PTAB March 20, 2020).

[7] IPR2016-01357, Paper 19 at 15-16 (precedential) (PTAB Sep. 6, 2017).

[8] Id. at 8.

[9] Id. at 7-8.

[10] Id. at 13.

[11] Id. at 14.

[12] Id.

[13] Id. at 15.

[14] Id. at 17.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.

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#deepweb | Apple’s COVID-19 Response – Apple

Source: National Cyber Security – Produced By Gregory Evans

In Our Offices and Stores

First, I want to recognize Apple’s family in Greater China. Though the rate of infections has dramatically declined, we know COVID-19’s effects are still being strongly felt. I want to express my deep gratitude to our team in China for their determination and spirit. As of today, all of our stores in Greater China have reopened. I also want to thank our operations team and partners for their remarkable efforts to restore our supply chain. What we’ve learned together has helped us all develop the best practices that are assisting enormously in our global response.

One of those lessons is that the most effective way to minimize risk of the virus’s transmission is to reduce density and maximize social distance. As rates of new infections continue to grow in other places, we’re taking additional steps to protect our team members and customers.

We will be closing all of our retail stores outside of Greater China until March 27. We are committed to providing exceptional service to our customers. Our online stores are open at www.apple.com, or you can download the Apple Store app on the App Store. For service and support, customers can visit support.apple.com. I want to thank our extraordinary Retail teams for their dedication to enriching our customers’ lives. We are all so grateful to you.

In all of our offices, we are moving to flexible work arrangements worldwide outside of Greater China. That means team members should work remotely if their job allows, and those whose work requires them to be on site should follow guidance to maximize interpersonal space. Extensive, deep cleaning will continue at all sites. In all our offices, we are rolling out new health screenings and temperature checks.

All of our hourly workers will continue to receive pay in alignment with business as usual operations. We have expanded our leave policies to accommodate personal or family health circumstances created by COVID-19 — including recovering from an illness, caring for a sick loved one, mandatory quarantining, or childcare challenges due to school closures.

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#deepweb | HMS and Huawei app store target Google, Apple: When it all changed

Source: National Cyber Security – Produced By Gregory Evans

The year 2020 will prove to the world just how ready Huawei is to live in a world without Google on Android. Huawei was blocked last year from working with Google directly, leading them to seek an alternative to GMS: Google Mobile Services, aka official license from Google to include Google apps and the Google Play digital content store on Android devices. Here in 2020, Huawei’s about to release their first phone with both the Huawei app store and HMS: Huawei Mobile Services, and it won’t be the last.

The launch

Honor President Zhao Ming spoke in an interview with WEMP/ Tencent Deep Web via author Ma Guanxia, confirming the release of the Honor V30 for an event in Barcelona “next week.” That’ll probably be on or after the 24th of February, 2020. At that time, though MWC 2020 was cancelled due to NCoV-2019 (novel coronavirus), local European Huawei/Honor employees will take up the mantle and hold a Huawei conference / press event via the web.

Huawei will reveal the Huawei V30 series smartphone line as well as at least one new Huawei smartwatch and Huawei notebook / laptop computer. This will be the first time a smartphone is released anywhere in the world with HMS, Huawei Mobile Services, the Huawei-made alternative to GMS, Google Mobile Services, on Android OS.

Development and growth

“Our solid hardware capabilities and distributed operating system capabilities, as well as our ability to share future-oriented industry development with the industry, will help the rapid development of the entire Huawei Mobile Services,” said Zhao Ming [roughly translated]. “Because of this,” said Zhao Ming, “[HMS deployment] may exceed many original pre-judgments and expectations.”

Zhao Ming went on to state that at some point in the future, Huawei expects HMS to have one massive set of their own apps that exist within their own app store, or “app gallery” as he put it. “The app gallery will be the third largest application platform,” said Zhao Ming, “after Apple and GMS.”

Ditching Google or not

At the end of January, 2020, Huawei leadership had some differing opinions – or some messaging that ended up a bit lost in translation. A report in Der Standard suggested that a Huawei official* stated they’d no longer be working with Google services.

“Even if the United States trade ban were cancelled, Huawei will no longer return to Google-Diensten (Google services), the company stressed when asked by Der Standard,” wrote Andreas Proschofsky for Der Standard. “The reason for this is simple: After all, one can not rely on the possibility that a new ban will not be enacted soon afterwards. We want to get rid of this dependence on US politics.”

*UPDATE: The official’s name: Fred Wangfei, Huawei Country Manager for Austria.

Huawei Germany went on to make a statement with the publication T3N. “An open Android system and ecosystem are still Huawei’s first choice,” said a Huawei Germany representative. “However, if we are prevented from using it, we will be able to develop our own operating and ecosystem.”

At the same time, journalist Arnoud Wokke of the publication Tweakers spoke with a Huawei Netherlands general manager, who said that Huawei would go back to using Google Services saying, “Google has been a partner for many years and is a priority for us. We believe in choice for consumers in services on their devices.”

Added once other statements were made, Proschofsky wrote the following: “Just as a note for others who read this. There was no wiggle room in what Huawei told me, I asked them several times (as I was rather surprised myself) and they insisted on not going back to Google – even if the US ban falls.”

Clear as mud

One way or the other, events that took place in 2019 between Huawei and the United States government affected the course of the entire mobile smart device industry from this point forward. We’ll get our next big update on how this is all going to play out next week, as Huawei reveals their hand in Barcelona.

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#infosec | Apple Dropped iCloud Encryption Plans After FBI Complaint: Report

Source: National Cyber Security – Produced By Gregory Evans

Apple dropped plans to offer end-to-end encrypted cloud back-ups to its global customer base after the FBI complained, a new report has claimed.

Citing six sources “familiar with the matter,” Reuters claimed that Apple changed its mind over the plans for iCloud two years ago after the Feds argued in private it would seriously hinder investigations.

The revelations put a new spin on the often combative relationship between the law enforcement agency and one of the world’s biggest tech companies.

The two famously clashed in 2016 when Apple refused to engineer backdoors in its products that would enable officers to unlock the phone of a gunman responsible for a mass shooting in San Bernardino.

Since then, both FBI boss Christopher Wray, attorney general William Barr and most recently Donald Trump have taken Apple and the wider tech community to task for failing to budge on end-to-end encryption.

Silicon Valley argues that it’s impossible to provide law enforcers with access to encrypted data in a way which wouldn’t undermine security for hundreds of millions of law-abiding customers around the world.

They are backed by world-leading encryption experts, while on the other side, lawmakers and enforcers have offered no solutions of their own to the problem.

Apple’s decision not to encrypt iCloud back-ups means it can provide officers with access to target’s accounts. According to the report, full device backups and other iCloud content was handed over to the US authorities in 1568 cases in the first half of 2019, covering around 6000 accounts.

Apple is also said to have handed the Feds the iCloud backups of the Pensacola shooter, whose case sparked another round of calls for encryption backdoors from Trump and others.

It’s not 100% clear if Apple dropped its encryption plan because of the FBI complaint, or if it was down to more mundane usability issues. Android users are said to be able to back-up to the cloud without Google accessing their accounts.

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#deepweb | Apple reportedly acquires Xnor.ai to boost on-device AI

Source: National Cyber Security – Produced By Gregory Evans Did you know that, according to CEO Tim Cook, Apple acquires a company every two to three weeks?  It’s just added another startup to its long line of AI acquisitions. According to a report by GeekWire, the Cupertino-based company has made a deal with Xnor.ai, an edge-based […] View full post on AmIHackerProof.com

The FBI Wants Apple to Unlock iPhones Again

Source: National Cyber Security – Produced By Gregory Evans

After anxious days awaiting Iran’s response to the US assassination of Qasem Soleimani, the country sent missiles flying at two Iraqi military that housed US troops—who knew about it well in advance, thanks to an early warning system that dates back to the Cold War. In a rare reversal from the norm, Donald Trump followed up by using Twitter to defuse tensions rather than escalate them further. Iran’s still on a path to developing nuclear capabilities, but they won’t get there any time soon.

As far as anyone knows, Iran hasn’t countered the US directly with a cyberattack, but a new report shows that they’ve spent the last year probing US critical infrastructure. All of which is to say, let’s hope both parties stick with deescalation.

On the home front, Amazon swatted at money-saving extension Honey just in time for the holidays, warning users that it was a security risk without specifying how. Google welcomed alleged spy app ToTok back into the Google Pay Store, while the jury’s still out for Apple. And TikTok recently patched bugs that could have let attackers take over a victim’s account. (No, that doesn’t mean it’s spying on you.)

It was an active week for Facebook; the company made its Privacy Checkup feature a wee bit more granular, acknowledged that encrypting Messenger end-to-end by default will take years, and suffered a bug that doxxed the admins of Pages. Otherwise all good, though.

And while you may have heard that Russia disconnected itself from the internet over the holidays, that’s not quite right. But the Kremlin’s efforts to censor the internet are very real, and increasingly broad.

Stop us if you’ve heard this one before: The FBI has asked Apple to unlock the iPhone of a mass shooter. As it did when the agency did the same in the San Bernadino investigation, Apple has declined. The Cupertino company regularly complies with subpoenas for data stored in its cloud, but argues that breaking into a locked iPhone would be require undermining its own encryption, which in turn would make all iPhones less safe. The prolonged fight in 2016 ended in something of a draw, when the FBI found a way to unlock the iPhone on its own. While its request hasn’t escalated to a court fight yet, it’s only a matter of time before it tries for a rematch.

[A Comprehensive Look at How SMS Two-Factor Authentication Gets Abused](https://www.issms2fasecure.com/

)

We’ve written about the risks inherent in using SMS-based two-factor authentication since 2016. Since then, the plague of so-called SIM-swap attacks that it enables have only grown, hitting even Twitter CEO Jack Dorsey. This week, researchers at Princeton University’s Center for Information technology detailed the many, many ways that SMS 2FA can go wrong, including multiple failings on the part of carriers to vet SIM-swap requests. If this doesn’t convince you to switch to an authenticator app, nothing will.

By now it’s no longer surprising that every voice assistant has a small army of human contractors behind it, transcribing recordings to improve accuracy. (Or did, until the public backlash.) Skype, however, reportedly hit an impressive low by not only using contractors in China but letting them listen to recordings through a Chrome web browser, and were encouraged to all long in through the same account and password. In other words, it would have been almost comically easy to compromise the sensitive data. Microsoft told The Guardian that it has since moved its transcription efforts out of China and into “secure facilities.” It’s unclear exactly what that means, but the bar appears to be extremely low.

To continue the theme: In a letter to US senators this week, Ring acknowledged that four employees sought improper access to video taken by its customers’ cameras over the last four years. The company says that of them were fired for violating company policy, and that currently only three employees can access stored customer videos.


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#cybersecurity | #hackerspace | Apple Confirms iPhone Regularly Gathers Location Data, But Says It Doesn’t Leave the Phone

Source: National Cyber Security – Produced By Gregory Evans Apple confirmed that their latest iPhone 11 phones come with a feature that requires regular geolocation checks, but the company said that information doesn’t leave the phone. Security researcher Brian Krebs noticed that the latest iPhone 11 was making geolocation check seven when all apps that […] View full post on AmIHackerProof.com

#iossecurity | #applesecurity | The top 10 books on Apple Books-US

Source: National Cyber Security – Produced By Gregory Evans

Apple Book charts for week ending October 6, 2019: (Rank, Book Title by Author Name, ISBN, Publisher)

1. Bloody Genius by John Sandford – 9780525536628 – (Penguin Publishing Group)

2. Lethal Agent by Kyle Mills & Vince Flynn – 9781501190643 – (AtriaEmily Bestler Books)

3. The 19th Christmas by James Patterson & Maxine Paetro – 9780316494021 – (Little, Brown and Company)

4. Blowout by Rachel Maddow – 9780525575498 – (CrownArchetype)

5. The Dutch House by Ann Patchett – 9780062963697 – (Harper)

6. White Knight by Meghan March – 9781943796311 – (Red Dress Press)

7. Inside Out by Demi Moore – 9780062049551 – (Harper)

8. The Water Dancer (Oprah’s Book Club) by Ta-Nehisi Coates – 9780399590603 – (Random House Publishing Group)

9. Where the Crawdads Sing by Delia Owens – 9780735219113 – (Penguin Publishing Group)

10. The Institute by Stephen King – 9781982110598 – (Scribner)

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#iossecurity | #applesecurity | China state newspaper criticizes Apple for app use by Hong Kong protesters

Source: National Cyber Security – Produced By Gregory Evans

FILE PHOTO: The logo of Apple is seen at a store in Zurich, Switzerland January 3, 2019. REUTERS/Arnd Wiegmann/File Photo

HONG KONG (Reuters) – The Chinese Communist Party’s official newspaper, the People’s Daily, lashed out on Tuesday at Apple Inc for allowing an app on its app store that tracks the movement of police around Hong Kong and is used by protesters in ongoing and sometimes violent demonstrations.

In a commentary the newspaper did not mention the name of the location app, but it decried what it said was Apple’s complicity in helping the protesters and questioned whether Apple was “thinking clearly”.

One such map that is available on the Apple app store, the HKmap.live app, has become a lightning rod on Twitter for criticism and support of the protests. The developer did not immediately respond to a request for comment. On Saturday in a tweet they said that Apple had “many business considerations” but had “make thing(s) right.”

Apple is the latest foreign company to catch heat in relation to the pro-democracy protests in Hong Kong, which have lasted four months.

The National Basketball Association (NBA) and U.S. sports brand Vans also have become embroiled in controversies over the protests.

The piece on the website of the People’s Daily said Apple did not have a sense of right and wrong, and ignored the truth.

Making the App available on Apple’s Hong Kong app Store at this time was “opening the door” to violent protesters in the former British colony.

“Letting poisonous software have its way is a betrayal of the Chinese people’s feelings,” the paper said.

Apple did not respond to a request for a comment.

Reporting by Twinnie Siu in Hong Kong and Stephen Nellis in San Franisco; Editing by Peter Henderson and David Gregorio

Our Standards:The Thomson Reuters Trust Principles.

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#iossecurity | #applesecurity | Four New Games Were Added To Apple Arcade, Including The Surprise Release Of Pilgrims

Source: National Cyber Security – Produced By Gregory Evans

Surprise! Last night, Apple added four new games to the Apple Arcade service, including the new game, Pilgrims, from Machinarium developer Amanita Design and the early release of The Bradwell Conspiracy.

It seems Pilgrims was a complete surprise, being announced and released all at once. It’s described as a “playful adventure game” where players will have to explore and meet new characters, helping them and learning about their stories. The art style looks lovely. Pilgrims is also now available for PC.

The Bradwell Conspiracy is a first-person puzzle game with a big focus on telling a story. Following a large explosion at the Stonehedge Museum, you are trapped underground in a secret complex. You have to unravel the secrets of this complex and escape with the help of another survivor. This game was planned to release on Oct. 8, but was released a little early on Apple Arcade. It will still be released in a few days for PS4, Xbox One, PC and Switch.

RedOut: Space Assault is a dogfighting game featuring cool-looking spaceships. The game has a full career mode with ship upgrades and various ways to control your starfighter. You can kill the engines to slow your speed, making it easier to navigate a small opening. RedOut: Space Assault is also coming to PC, though no release date is listed on Steam.

Finally, Nightmare Farm is the new game from the developers behind Neko Atsume: Kitty Collector. Nightmare Farm is described as “The story of a painful nightmare spinning in a bright world.” Not entirely sure what that means, but players will have to grow and harvest crops while also preparing meals for visitors to keep them happy.


I’m happy to see Apple adding new games to their service so quickly and these games look good. But I can’t help but feel like this is a terrible way to run a service. The news was buried late Saturday night with no big announcement post, teaser or anything.

Checking out each game’s publishers and developers, only some of them have formally announced the new releases. I assume, over the next few hours and days, more formal announcements and trailers will launch for these games and their Apple Arcade debut. But hopefully, future additions to Apple Arcade will be handled a bit better and not feel so sloppy and poorly done.

 

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