10.13.15
Posted in Europe, Patents at 5:36 pm by Dr. Roy Schestowitz
Shooting the messengers again
Recall the lessons of an antiwar protest at Kent State University
© 1970 Valley News-Dispatch
Summary: The smaller demonstration in The Hague is estimated to have had about 400 participants, but the big protest will take place tomorrow in Munich and it is already being forcibly removed out of EPO buildings, allegedly for ‘security reasons’ because of VP4 (Željko Topić)
EXCITING TIMES? Not if you work at the management of the EPO, which is about to come under a lot of attacks (negative publicity) in English-speaking media, including media which targets patent lawyers (i.e. clients of the EPO, which oddly enough warped into a business with 'favourite' customers that enter or hop onto a V.I.P. queue). We have just learned that this scheme is already “a permanent fixture”, so don’t accept all sorts of excuses from the EPO, or any attempts to belittle this scandal. Watch the ‘damage control’ and see the update at Heise (with over 60 comments now, as the EPO can’t just ignore this scandal or even simply stay silent). Today was the first time the EPO (through its official Twitter account) chose to engage with me (indirectly, in response to something a patent lawyer wrote). I never even tried to engage with them before. They blocked my site (gagged me), as a matter of unprecedented policy which precludes even common sense. It’s personal. To them it’s personal. For posting what they themselves wrote (verbatim) I had the EPO saying I was “wrong”. The evidence speaks for itself though (a legitimate leak), does it not? If anyone is wrong here, it’s the EPO. They were wrong to even attempt this utterly ludicrous scheme, which has become permanent (they might, due to pressure from the media and the public, choose to change/rewrite history and pretend it never was).
Ad Hominem? That’s the EPO’s Spiel
The EPO is desperate now. It doesn’t know exactly what to say to the media (journalists are inquiring) and people at the managerial tier certainty cannot take the blame. Union-busting and protest-crushing doesn’t seem to have worked; it only caused backlash or blowback (to use the term infamously coined by the CIA, which also likes to ‘interrogate’ innocent people* and has just been belatedly sued for it, as reported earlier today[1, 2]). The EPO is misleading and misdirecting right now. It just looks at who to blame other than itself. Right now they are witch-hunting Elizabeth Hardon, whose name was made public by Florian Müller just over a month ago. Alluding to an issue that we covered last week in Techrights, IP Kat finally tackled the horrible personal attacks on Hardon.
“Merpel has hitherto been reluctant to identify individuals involved in disputes with the EPO,” she wrote, “but now that one of them has been named in other media sources, she need not in this instance concern herself with discretion: the EPO administration is singling out for special treatment Elizabeth Hardon, who is Chair of SUEPO Munich and also Chair of the Local Staff Committee in Munich. Ms Hardon has already been demoted for alleged “harassment”, but Merpel understands that the act complained of was a single sentence written in her official capacity, and that the person purporting to be harassed by this was a senior member of the EPO administration. This does not correspond to any understanding of harassment that Merpel has encountered before.
“Now, in an escalation of action, Ms Hardon was summoned to a disciplinary hearing on 10 September 2015 relating to allegations of harassment, but the nature of these allegations was not specified. The summons was however published on the Techrights blog and elsewhere. This apparently being contrary to the requirement to maintain confidentiality in the case of disciplinary investigations, Ms Hardon was then requested by the EPO’s Principal Director Human Resources to name all persons to whom the summons had been disclosed, as reported on the FOSS Patents blog. Ms Hardon’s lawyer responded by challenging the legitimacy of requiring the accused employee to keep the fact of the investigation secret, as well as other aspects of the investigation process. This letter can be seen on the SUEPO website here, at 21/09/2015. The same lawyer has since written to the Administrative Council and to the President of the EPO, complaining of institutional harassment of Ms Hardon, and the letter has been posted and reported on the FOSS Patents blog. It remains to be seen whether any of these pleas will have any effect.”
Notice the comments posted there. Some are directed personally at Ms Hardon. She must be untoucable now because if the EPO does anything to her, then many resignation letters and a massive brain drain (already a serious issue) are to be expected. This is what solidarity is about. Will people march for Hardon and her SUEPO colleagues? The bigger the march, the stronger the pressure on EPO management, not on SUEPO. It’s not an overly simplistic “either you are with us” situation; a showing of solidarity helps send out the message that the staff is loyal to those who protect staff, not the management (which is mostly preoccupied attacking the staff when Battistelli looks over their shoulder). The staff needs to make it clear who’s in charge or at least who deserves some respect. The EPO’s talent (or “asset”) is the doctors and professors who objectively assess patent applications. A “lunatic tyrant” management model (reign by fear of irrational outbursts) shouldn’t be tolerated anymore.
Quoting Merpel again: “The SUEPO website reports (see item of 09/10/15) that further demonstrations will continue at the EPO. A demonstration in Munich on 14 October 2015 will focus on the issue of institutional harassment of EPO staff.”
The Inside Story About the Demonstrations
We wish to say more about these demonstrations, which are about to receive some press coverage even in English-speaking media. This quite seldom happens because German-speaking and Dutch-speaking articles are a lot more commonplace. They barely inspire British authors and journalists who cannot even comprehend the language. World IP Review told us they’re “aiming to publish a couple of reports tomorrow” (Wednesday), so we want to share more of what we know. For those who still are not aware of the demonstration tomorrow (staged by EPO employees in Munich, where the biggest office is based), the SUEPO Web site (SUEPO.org) is a good place to start. The EPO is not professional and it habitually lies. It also breaks the rules, so don’t trust a single word that comes out of its representatives’ mouths. All they do is propaganda of the crudest kind.
Staff of the EPO has chosen to “put together some information regarding the latest (sad) development in the EPO Saga.”
To paraphrase a little, the “good” news spread by the EPO President during the Management Meeting in Munich and The Hague, the large PR exercise which took place 2 weeks ago, is that the patent office is in peace. Yes, you heard that right. Lying right through his teeth!
According to Battistelli, there is “no social tension” as “there has been no strike this year” (who crushed it and how?). Based on the text below, Željko Topić is already engaging in tactics designed (and quickly refined or perfected) to discourage attendance/participation in protests. Did Topić bring these tactics from the Balkans or is he just inspired by China?
Battistelli claims that only a “small hardcore” troop of unionist are engineering a “negative media campaign very damaging for the EPO reputation” (nonsense because the protests precede by a huge gap any media coverage regarding these issues).
Notice how this parallels or mirrors the dismissive tone of TPP proponents. They ridicule and belittle their vast opposition.
“The disconnect with reality,” said one person, “may be obvious for any reader who knows the spirit in the machine rooms; But considering the utter silence with which these statements have been received during this expensive “Grand Messe”, the disconnect seems also shared by assembled loyal EPO line-managers. It is expected that the same story will be told to the Council Delegations who are meeting [...] in Munich for the 14th AC session.”
Considering how Battistelli gamed and even bribed the media in exchange for positive coverage, one should be prepared for the spin. Journalists should not believe a single word that comes out from Battistelli’s mouth (and his loyal ilk, which is more like family). Maybe they actually believe their own lies. “And if they do not read any newspaper nor publication,” said one person, “[especially] from staff on the subject, they may even believe it [their lies].”
“Instead of peace,” alleged another person who attended today’s protest, here is what the reality of social “peace” looks like:
A demo has taken place today, Tuesday 12.10 in The Hague, with buses starting from the EPO premises aiming at the building of the Ministry of Social Affairs and Employment, Social Affairs Inspectorate. The Dutch MP, John Kerstens joined the well-attended Demo (ca. 400 participants) and the small delegation that met a Dutch Official in the Ministries premises.
A further demo will take place tomorrow, Wednesday 13.10 in Munich in front of the ISAR to express their discontent to the assembled delegations. Allegedly for security reasons, the “announced demonstration cannot take place in the EPO premises, nor on the EPO grounds” (VP4).
General assembly will take place in Berlin in the Halle West on Friday, 16.10, from 12.00 to 14.00, to inform about the possible implications for the Berlin side of general developments in the EPO.
The staff is experiencing further drastic cuts of their working conditions:
- the official staff “consultation” body known as GCC took place last week in the usual new EPO management style, introducing amongst others new rules of procedure allowing the management to write unilaterally the minutes and hence decide what has been discussed.
[...]
For the outside world, the EPO used to be a Model Organisation. Now, the EPO is becoming a laughing stock:
According to news blogs, the EPO has a new policy meant to handle our major “customers“ (my apologies to sensitive readers, but this is new EPO jargon for applicants and public)
Please stay tuned as there is a lot more coming, including media coverage for the rest of this week (some in English). █
_____
* Mental torture is also a form of torture, albeit nonviolent, depending on the definition of violence.
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Posted in Asia, Europe, Free/Libre Software, Patents at 3:46 pm by Dr. Roy Schestowitz
More profit for the Office, so what’s not to like?
Summary: A short notice regarding the EPO’s verboten involvement in European politics and European policy-making; comparing the situation in Europe (with the EPO) to that of India, where highly discreet and notoriously intensive lobbying by foreign corporations led to the apparently-irrevocable phasing in of software patents, to the detriment of locals
THERE is a very clear and widely-recognised reason why the EPO must stay out of patentability criteria debates, especially now that the EPO operates like a business whose sole (or at least primary) goal seems to be maximising profit, not encouraging/fostering innovation. The fox must not be left to guard the hen house. Nevertheless, as we showed just one day ago, the EPO is intervening politically in UPC-related debates. This is just wrong. It should not ever be done, but then again, for the EPO to step out of line with the law would not be unprecedented. The EPO enjoys impunity (no clear jurisdiction due to ambiguity) and immunity from European laws. It’s like a cancer at the very heart of Europe (hence the photo signifying a potential tumour above), always seeking to expand its sphere of influence and power, even if by expanding patent scope beyond what’s necessary and tactful (not a facts-based analysis), lowering the patent bar (e.g. by rushing examiners whose goal is to identify duplicates), and raising fees by asserting that applicability — border-wide — is further broadened for injunctions/embargoes/sanctions, higher damages, and so on. One can easily see how this relates to TPP, especially if one is already familiar with TPP (and/or the likes of it).
“It should not ever be done, but then again, for the EPO to step out of line with the law would not be unprecedented.”The “EPO admits,” said the FFII’s President this morning that “[t]he Unitary Patent is about software patents after all” (as he warned all along). IP Magazine is quoted by him as saying that the EPO’s “G[rant] Philpott [said] UPC to provide strong harmonisation in ICT applications that will play a dominant role in patent world” (remember what ICT means). Guess whose system they hope to integrate with, eventually? Also recall that TPP pushes for software patents, requiring signatories to phase them in, in due course. It means software patents in Europe. According to this page about CeBIT 2016, Grant Philpott (shown to the right) is “Principal Director of the main ICT area at the European Patent Office, managing the EPO’s operational areas of Computers and Telecommunications and responsible for nearly 700 examiners in The Hague and Munich.”
It sounds like he is highly regarded, but remember that his systems are also blocking Techrights. Too gory a Web site? Gross censorship is what this really is. Techrights is safe for work (SFW) and it provides plenty of references to support its allegations. Techrights was never censored before; not until it covered the EPO affairs. This culture of censorship and self-censorship at EPO has truly become a disease, as we last explained about 6 weeks ago. Then there is mass surveillance (the perfect blunt instrument for inducing self-censorship) just as well — a topic we remarked on in posts such as the following:
Philpott’s computer systems should focus on helping to grant well-earned patents, not replicate the Stasi in a ‘public’ building in Munich (further enhanced with keyloggers and remote screen grabbers).
India Too Experiences Assaults on Software Patents Exclusion
Watch out as not only Europe is having software patents injected into it, using all sorts of secret treaties like TPP and the UPC. Recall the recent efforts to officially introduce software patents in India, after giant corporations (like those which Modi recently visited aplenty in the US) lobbied the Indian government, as always beforehand. There has been a very strong push from the likes of Microsoft and even IBM to do so.
There is now a response to all this, composed by Mishi Choudhary, a famous Free software proponent from India and Director of International Programs at the Software Freedom Law Center (SFLC). She says that “Section 3(k) of the Patents Act, 1970 excludes mathematical methods, business methods,” but she also reminds readers of what gave Indian startups their edge. It’s the lack of software patents, not saturation of them, contrary to what some lobbyists are misleadingly claiming right now (we named some of them last week and they include IAM 'magazine'). Choudhary says that “[e]very city or town, big or small, is seeing a spurt of startups that do path-breaking work in the areas of software products, mobile apps and embedded products. However, these firms could soon be threatened by the dark clouds looming large over the technology horizon of India in the form of software patents.”
The same goes for European software firms, irrespective of their licensing method/s, be it proprietary-leaning or Free software (copyleft). There is a coordinated attack by software conglomerates against any challenge from small firms anywhere in the world. It’s protectionism for the already-affluent and it shouldn’t be tolerated by the public. People should protest; the more vocal and the louder the public becomes, the harder it will get for politicians to sign such atrocious deals (or new laws) in secret, usually at the behest of their shady corporate masters. █
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Posted in Europe, Patents at 10:31 am by Dr. Roy Schestowitz
Someone is going ballistic
Summary: New information surfaces regarding communication between the Administrative Council (AC) and Mr. Battistelli, who wishes to crush anyone whom he views (or is merely perceived) as a threat to his totalitarian reign
THE revolt of Benoît Battistelli has gone out of control. He is very angry at the institution he purports to be managing. The Stalinist fashion in which he 'disappears' his opposition and the North Korean fashion in which he pretends everyone is happy despite everyone being upset and depressed (not to mention repressed) is quite telling. The anger of Battistelli is revealing.
According to Merpel from IP Kat, Battistelli has truly gone bonkers. Napoleonic complex perhaps? He now goes after the Enlarged Board of Appeal (EBoA), not just any board, having already crushed some independent boards and Directorates-General (as we showed yesterday). To quote Merpel: “In the lead-up to this week’s European Patent Office EPO) Administrative Council (AC) meeting, the AC delegates have received an extraordinary communication from the EPO President, Benoit Battistelli. In it, he asks the AC to disregard a key provision of the European Patent Convention, and to bypass the Enlarged Board of Appeal (EBA) which he accuses of not properly carrying out its duty.”
“The AC may be prevented by law from dismissing the Board member concerned, but no such legal obstacle appears to prevent them sacking the President.”
–AnonymousMerpel’s long article uses a humourous tone, but this is no humourous matter because people’s jobs are at stake; these are honest, hard-working, well-educated people. “Merpel suggests the AC ought to politely thank the President,” she wrote about Battistelli’s memorandum, “and place it to one side, perhaps weighing it down and covering it with a copy of the EPC for emphasis. Then the AC should await the Enlarged Board’s written reasons, and if it wishes to refer the matter again it can do so, avoiding whatever defects caused the inadmissibility of the initial request. If the EBA ultimately proposes dismissal, then the Board member will go; if not, then that’s the outcome of the due process and so be it. In the meantime, Mr Battistelli might usefully be urged to return to the Office with a directive to spend more time building bridges and less time wiring them with dynamite.”
There is clearly a cycle of muzzling and gagging here; it is enabled by evidently corrupt appointments that can encircle (outnumber) or corner any sign of possible dissent, even at the highest of levels and in principle independent, e.g. Chairman of the Enlarged Board of Appeal who is suspiciously absent after reportedly being dismissive of Battistelli's gross behaviour.
What we have here is a classic Streisand Effect recipe. It is being patiently cooked by Chef Battistelli and it won’t help well, at least if the theory/premise of the Streisand Effect holds true. One anonymous comment in IP Kat says: “All the legitimacy of the EPO (office and organization) rests on the EPC. I hope the AC understands that following the proposed course denies this legitimation. There are two complaints before the Bundesverfassungsgericht on the alleged independence of the boards. How will the judges there see this proposal?”
Another anonymous comment in IP Kat speaks of dismissal of Battistelli himself: “The AC may be prevented by law from dismissing the Board member concerned, but no such legal obstacle appears to prevent them sacking the President. The reason for his dismissal has just been delivered by him to the AC, being an exhortation to break the law. Dismissing the President would legantly get the AC of a tricky situation (and any threats the President may have made to keep them in line would evaporate the moment he’s been dismissed).”
“We still scrape the bottom of a very large iceberg such as the UPC and TPP etc.”As SUEPO’s site puts it today, “the Administrative Council (AC) delegates have received an extraordinary communication from Mr Battistelli. In it, he asks the AC to disregard a key provision of the European Patent Convention (EPC), and to bypass the Enlarged Board of Appeal (EBA) which he accuses of not properly carrying out its duty in a disciplinary case against a Board member. Mr Battistelli even recommends to go beyond the recommendation of the Disciplinary Committee and to reduce the pension of the soon-to-be-ex-Board member by one-third.”
Stay tuned as we have plenty more to show. Tomorrow will be the second day of protests at the EPO and also the second day of the Administrative Council’s gathering. This is a fight between a populist core of EPO workers (scientists) and EPO bureaucrats, who are clearly out of control (and fronting for large corporations, unlike honest public servants). See our Wiki for a detailed chronology of this long saga. We still scrape the bottom of a very large iceberg such as the UPC and TPP etc. Billionaires’ interests are at stake here. █
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Posted in America, Europe, Patents at 9:44 am by Dr. Roy Schestowitz
Patent trolls are increasingly appearing and litigating in Europe, too
Summary: An outline of recent developments in the US and even in Europe, focused entirely on patent trolls, patent parasites, and actions against them
“Out of the 47 patent lawsuits filed today,” wrote United for Patent Reform earlier last week, “42 of them were filed by patent trolls.”
“In 2000,” it continued, “East Texas ranked 35th for patent cases; it’s been 1st for the past 9 years as trolls take advantage of the friendly venue.”
“Another course of action is elimination of software patents because an overwhelming majority of troll lawsuits involve software patents, based on statistics gathered some years ago.”It is abundantly clear that the US has a serious problem with patent trolls, who are most typically (albeit not always) using software patents to launch legal assaults (or threats thereof, in hope of settlement) against a large number of practising companies. The defendants are sometimes large corporations, but such corporations — unlike small companies (such as startups) — neither have paranoia over it nor an existential risk as they have dedicated lawyers and much money in their coffers. European institutions like the EPO are still, increasingly, allowing this plague to enter Europe. We must stop this.
In this post we gather several weeks’ worth of news, mostly in sincere hope of shedding light on just how big a headache patent trolling can be. It should be avoided at all costs and one way to tackle this problem (although it is suppressed in the corporate media) is reduction of cross-border action (compartmentalisation) — something which the UPC (more like globalisation) seeks to promote in Europe, thereby inviting patent trolls, much like in the US where separate state are not legally separable. Another course of action is elimination of software patents because an overwhelming majority of troll lawsuits involve software patents, based on statistics gathered some years ago.
Biases in the Patent Trolls Debate
The Internet says a great deal about patent trolls, unlike software patents (the latter debate has been abandoned, perhaps at the behest of large stakeholders who also influence and sometimes own the media). One recent headline said that a “Stanford Professor [Stephen Haber] Insists Consumers Are Helped By Patent Trolls”. Here is a portion of the counter-argument from Mike Masnick: “Actual research shows that the leading reasons for innovating have absolutely nothing to do with patents. Rather, people and companies tend to innovate because (1) they need something themselves or (2) they see a need in the market. And the “ensure they are paid for their invention” makes no sense. If they have an invention people want, then they can sell that product and make money that way. You don’t need patents for that. Yes, some others may enter the market as well, but that’s called competition, and that’s a good thing.” The case that Stephen Haber alludes to will be discussed later on, in the section about Unwired Planet, which attacks Android/Linux.
Patent trolls are a parasitic element. Claiming them to have had a contribution is akin to claiming that diseases are good because they help depopulate and thus keep the human population ‘in check’. The aforementioned professor was mentioned here before (a few times earlier this year) for other, similarly pro-trolls, views. He has a conflict of interests, as his very own bio serves to demonstrate. See Masnick’s articles for further details.
Here we have the patent maximalists of IAM glorifying trolls. As Benjamin Henrion put it, “IAM just published a hate list of the best patent trolls and other patent bullies” (IAM responded to him dismissively).
In a sense, patent lawyers stand to gain from patent trolling, even in Europe (where IAM’s writers are based). We should always take their views with a barrel of salt and perform some cui bono analysis.
“Don’t foolishly look away or naively expect it to always remain just a US problem, however, as we increasingly hear about trolling in Europe.”Days ago the plutocrat’s media, Fortune, published an article titled “Are patent trolls taking over the fashion industry?”
To quote bits of interest, “Shar Simantob and his Los Angeles-based textile company, United Fabric International, are used to following trends in the fashion industry. The company works as a middleman between mills and labels to develop fabrics and prints in line with what tastemakers say will be hot in the coming seasons. [...] According to figures sourced from Bloomberg Law, Doniger/Burroughs has filed more than 700 copyright infringement cases over the past five years, including more than 30 since August 1. Most of the complaints are filed in Southern California, which is now home to more than twice as many fashion, textile, and wholesale jobs as New York City, as well as $18 billion in revenue for fashion companies based in the region, according to a 2014 report sponsored by CIT Group for the California Fashion Association.”
For the time being this is a US problem. Don’t foolishly look away or naively expect it to always remain just a US problem, however, as we increasingly hear about trolling in Europe. It’s trendy and it’s expanding.
This time, for a change, a Stanford Professor actually opposes trolls. “Prof. Goldstein quoted on rising trend of patent trolls in fashion industry,” wrote Stanford Law. He is quoted as saying: “There is this gap that puts all citizens at a disadvantage. Anybody can sue anybody over anything. You are out of pocket and inconvenienced until you get back attorney fees. That is one of the prices you pay for living in a society under the rule of law.”
Looking at Wharton’s site (another academic source), they now have an article there titled “Why Investment-friendly Patents Spell Trouble for Trolls”. They refer to trolls using a euphemism, “NPEs”. To quote some bits from it: “There is little doubt that the world of patent monetization is dominated by patent trolls. A troika of favorable patent assertion fora, contingency-fee based legal services, and a proliferation of patent ownership structures that stand divorced from commercialized inventions has produced breathtaking return multiples for so-called non-practicing entities (NPEs, which are organizations that own patents but do not commercialize them). The currency of this assertion market is the vast arbitrage exploited by the NPEs. Several factors account for this – including the lack of any acceptable, up-front methodology for valuing patent as assets per se, the significant legal expense defendants face from such assertions, and the costly and post-facto timing of court-ruled infringement determinations. All these work to dislocate the patent market from the commercial market in which patents are used in the real economy.”
“Patent derivatives,” as Henrion calls them, are “the next bubble” (yet to have burst like the bubble of software patents in the US).
So-called ‘Reform’ Focused on Patent Trolls Only
Once upon a time patent reform focused on various aspects like patent scope, i.e. which domains should be excluded from patentability criteria (software for instance). Nowadays all the bills which are tabled regarding “reform” deal almost exclusively with “trolls” and get watered down by large corporations (some of them behaving just like trolls), to the point of being worse than useless. We wrote literally dozens of articles about it.
Watch how GOP-leaning sites come out for and against patent reform, still. To quote one of them: “Trial lawyers, for instance, hate patent reform because it will deprive them of an easy cash cow. In fact, it was their opposition that drove Harry Reid to kill patent reform in the last Congress. Needless to say, the interests of the trial bar are not something a Republican Speaker has any reason to lose sleep over.”
This is actually a correct observation. It’s one that we alluded to above, specifically in relation to IAM, whose biases we shall deal with again later on.
Here is the large corporations-funded site Patent Progress remarking on patent reform in relation to the corporations-leaning (and corporations-shaped) PATENT Act [1, 2, 3, 4, 5, 6, 7, 8].
To quote Patent Progress: “Whether we on the pro-reform side agree with the complaints isn’t relevant here. The reality is that some compromise is necessary to get the changes we need to deal with patent trolls. The PATENT Act left the Judiciary Committee containing unacceptable language on how to handle amendments during IPR and a promise to keep working on it. And the Senate Judiciary Committee staff came up with a creative solution.”
The Apps Alliance, which is obsessed only with patent trolls and not patent scope (as it represents mostly victims of trolling), wrote: “How will the STRONG Act help small businesses? Looks like a handout to trolls.”
Whatever reform one looks at these days, it’s rather useless or worse than useless. See the AOL article titled “Patent Reform Tries Again”. It wrongly frames big companies as the victims when it says: “Technology companies and their lobbyists in the software and high-tech industries that have been victimized by PAE lawsuits in the past, such as Overstock.com and The Software & Information Industry Association, have applauded the legislation.”
This misses the fact that many of those same technology companies (Microsoft and Apple for instance) are themselves patent aggressors and the most important victims of patent trolling are actually small companies. Some of them get crushed out of existence, whereas for companies like Microsoft and Apple trolling often means reduced profits (imagine the wrath of millionaire shareholders!). Don’t expect corporate media like AOL to get this story straight though. This is not what AOL does and since it bought Tech Crunch we haven’t seen much worthwhile reporting over there. Once upon a time, some time around 2007 (before the AOL takeover), Tech Crunch informed myself and my colleagues that we were about to get laid off (before our software-centric employer said so, having been forced to do so by such independent media).
“SCOTUS has NPEs on the mind,” wrote some patent boosters, “see J Kennedy’s dicta on NPEs in Commil which involved no NPEs” (recall that SCOTUS already helped tackle software patents in the US, quite effectively in fact).
Let’s look at some recent story involving particular patent trolls, some being more famous (or conversely, infamous) than others.
MPHJ Technology Investments
We previously wrote about Mac Rust, a notorious patent troll who made a splash and received a lot of publicity by suing a lot of companies. Thankfully, Rust is now losing it all. As a trolls expert put it: “One of the most maligned patent trolls, MPHJ Technology Investments, will have to face claims in state court that it violated Vermont’s consumer protection laws.
“MPHJ and its owner, Texas attorney Mac Rust, gained national attention after sending tens of thousands of letters out to small and medium-sized businesses stating that any business using scan-to-e-mail technology owed MPHJ around $1,000 per worker for patent infringement.”
Let’s hope that we never hear of MPHJ ever again. Somehow we doubt it’s the end of all that because this troll bet his entire farm on litigation and extortion. There are no products to offer or actual business to revert back to.
Kyle Bass
Earlier this year, at the end of summer or thereabouts, Kyle Bass made it into a lot of news headlines because of his dirty tricks with patents. It’s like a new kind of patent extortion (or trolling), but not the conventional type.
Bass is “exploiting [a] weakness in [the] system,” say his victims to the corporate media and lawyers/bloggers continue writing about it. To quote IP Kat: “So why is Bass making these challenges? The America Invents Act allows for reviews of poor quality patents by using an Inter Partes Review Procedure (usually referred to as an IPR) and the hedge fund managers have seized an opportunity to use the new relatively low-cost system to their advantage. Reviewing a patent is likely to affect share prices, making companies attractive for the short selling market while stock prices fall. Shire’s price fell after the decision.
“Drug companies have asked the USPTO to stop what they see as an abuse of the review process by hedge fund managers, but this recent decision which broadens the “real party in-interest” definition looks like that will not succeed. The phenomenon of reverse trolling hedge fund trolls is going to be a tricky issue to handle politically. Lobby groups and technology companies see the advantage of challenging the hold they perceive that large corporations have on controlling markets, especially in the biotech and software areas. These lobby groups often have the ears of the politicians and high drug prices, especially in the US is a thorny issue: see the views of presidential candidate Hillary Clinton.”
It will be interesting to see to what degree — if any — the USPTO will ever bother responding to this. Issuing bogus patents and later invalidating them is sound business for both patent lawyers and those who issue patents.
Acacia
Techrights wrote a lot about Acacia after it had taken staff from Microsoft and then started to sue Linux companies. There is a setback at Acacia right now because, according to this new report: “The nation’s top patent court has given its seal of approval to a hefty $1.4 million award of legal fees against the largest publicly traded “non-practicing entity,” Acacia Research Corporation.
“The award was granted one year ago by US District Judge Gregory Sleet, and it was one of the first to be decided under the new Octane Fitness caselaw, which makes it easier for defendants to get their legal fees in baseless patent suits. On Friday, the US Court of Appeals for the Federal Circuit upheld (PDF) Sleet’s decision without further comment.”
Acacia is not the only Microsoft-connected troll that attacks Linux. Remember Intellectual Ventures.
Intellectual Ventures
IAM’s patent maximalists give a platform by which to glamourise giant trolls like Intellectual Ventures right now. “Last week we ran a story on a surge in speculation that Intellectual Ventures is up for sale,” the author said. “IV strongly denied that it was on the block and in discussions with a Chinese buyer, and we were happy to print what the firm had to say.”
This increasingly-defunct troll (with layoffs and everything) will hopefully vanish sooner rather than later because as we mentioned here quite recently, it’s connected to attacks on Android/Linux. This patent troll is connected to Microsoft through Intellectual Ventures and it attacks Linux devices other than Android, by the millions.
Unwired Planet
Speaking of attacks on Linux and Android (which is based on or built on top of Linux), the patent boosters have this new article titled “Unwired Planet v Huawei: FRAND showdown begins in UK court”.
As we stated last week, patent trolls have come to the UK (and hence, by extension, Europe) to attack Linux/Android. “Some of android’s biggest players prepared for battle this week,” wrote the patent boosters, “after Unwired Planet’s patent infringement suit trial against Google, Samsung and Huawei began in the UK.”
This is a great example of the grave dangers of allowing patent trolls to enter Europe.
Core Wireless
“Patent Troll based in Luxembourg wants to redefine the meaning of an integer,” Henrion wrote, alluding to the Luxembourg-based (part of Europe) trolls that just like MOSAID (with patents from Nokia) received their patents from Nokia. To quote the alarming EFF message, titled “Our Broken Patent System at Work: Patent Owner Insists the “Integers” Do Not Include the Number One”:
Patent trolls are a tax on innovation. The classic troll model doesn’t include transferring technology to create new products. Rather, trolls identify operating companies and demand payment for what companies are already doing. Data from Unified Patents shows that, for the first half of this year, patent trolls filed 90% of the patent cases against companies in the high-tech sector.
Core Wireless Licensing S.A.R.L. is one of the patent trolls attacking the high-tech sector. Core Wireless is incorporated in Luxemburg, and is a subsidiary of an even larger troll, Canada-based Conversant. It owns a number of patents that were originally filed by Nokia. It has been asserting some of these patents in the Eastern District of Texas. In one case, a jury recently found that Apple did not infringe six of Core Wireless’s patents. In another case, it is asserting sixteen patents against LG. One of its arguments in the LG case came to our attention as an example of what patent trolls think they can get away with.
We will surely hear more about this in the future. This is yet another example of patent trolls entering Europe.
Vringo
IAM’s patent maximalists still like to defend patent trolls, saying that the matter (regarding trolls) is “less black and white than they [EFF] like to pretend” (as if there is such a thing as “good” trolls).
“You have got to admire Mark Cuban’s chutzpah,” they said, “if nothing else. As a self-proclaimed enemy of patent trolls, a vocal advocate for fundamental change to the US patent system and the funder of the EFF’s Mark Cuban Chair to Eliminate Stupid Patents, Cuban has long been a darling of the patent-sceptic side of the US reform debate. Never mind that back in 2012 he became a major investor in Vringo, Cuban is on the side of the angels.”
We already mentioned Vringo’s actions and Cuban’s support of them. As IAM puts it: “As part of that redemption process, Cuban might want to sit down with the EFF and other anti-patent groups to explain that perhaps this whole troll thing is much less black and white than they like to pretend, that SMEs and lone inventors often need third party support to enforce their rights and that backing legislation which makes it even more expensive and even riskier to assert patents is going to make securing such support even harder than it is now.”
Well, Cuban’s involvement in the EFF (by paying the EFF to hire some lawyers) has been repeatedly criticised here because they now try to crack down on “bad” patents rather than software patents and we often find the EFF’s Cuban-funded campaigns rather useless, even though Cuban himself once slammed software patents, explicitly. Now we see that proponents of many patents (including software patents) use Cuban to discredit the EFF and the EFF’s message overall against trolls. Great move, eh? The patent maximalists of IAM aren’t too stupid, just selfish (for profit), and they are quick to exploit what’s rightly perceived as hypocrisy. The other day IAM wrote that the US “Supreme Court has said No to Vringo’s appeal against CAFC decision in IP Engine case. No surprise, but frightening” (frightening to lawyers who profit from litigation and trolling, that’s for sure).
Unified Patents
Henrion, who had led the fight against software patents in Europe for quite a few years, took Unified Patents to task over this charade. To quote a lawyers’ news site: “Unified Patents, the San Jose-based provider of consulting services to help businesses deter lawsuits filed by nonpracticing entities (NPEs), has launched two new programs designed to help start-ups avoid the threat of frivolous litigation.
“The first, called Secured by Unified, enables members to include a logo on their homepage indicating they are members of the group. This would signal to abusive NPEs, also known as patent trolls, that attempts to extort money by threatening litigation will not work.”
Henrion sarcastically says that patent “trolls will be scared by a logo on a website? How many of those failed strategies are we gonna see?”
Unified Patents said that it “Launches Program to Help Startups Avoid Troll Litigation,” but we too are sceptical. It’s not going to lead to a solution. It’s probably just a waste of focus, time, and effort.
In the coming weeks we are going to write a lot more about patent trolls and about the situation in Europe. It’s not just about software patents anymore. It’s a global disease, so universal vaccination is very urgent a matter. █
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Posted in Europe, Patents at 6:21 am by Dr. Roy Schestowitz
Everyone is happy because the supreme leader says so
Summary: The Benoît Battistelli-led institution is so misguided so as to actually expect people to believe that EPO staff feels happy, despite increased awareness of staff suicides, protests, lawsuits, etc.
BE PREPARED and brace yourselves for another charm offensive from the ever-so-charming (but highly offensive) Benoît Battistelli, who paid the French media for puff pieces about him and his notorious EPO reign.
According to our sources, there is nasty propaganda in the making. We don’t know when it will come out and when Benoît Battistelli et al intend to foist it upon the media, but here is what we do know. To quote one who is familiar with this matter:
Operation “Le Bilan”
Mr Battistelli obviously has a very high view of his own performance and does not cease to tell the world. It is clear that his “efficiency scenario”, the combination of cost-cutting, pressurizing staff and prioritizing the easier files in DG1, has produced the desired results: by the end of July the result of the operation budget (= the real money, as opposed to IFRS) was EUR 245m and ”grants (10% over the already very ambitious plan) by first examiner” were up with 29% with respect to 2014. With that the Council is happy. The applicants may be happy (time will tell). Staff clearly is not, but that is being tackled. As briefly mentioned elsewhere, Mr Battistelli has ordered a communication campaign aimed at convincing EPO staff of his great achievements and the benefits to staff. It will include a series of interviews with carefully selected “volunteers” who have the right positive opinions. The call for candidates and the list of the topics can be found [online]. [One can] hear that finding such volunteers has been difficult and that some have been told to volunteer “or else”.
The communication campaign is organised by Ms Lefèvre (Head of Ms Bergot’s office + a.i. head of the Conflict Resolution Unit + a.i. director of internal communication + the direct superior of the 100% staff representatives), and Ms Mittermaier (newly recruited director external communication). Both have an impressive track record. Ms Lefèvre in the French army, including service in Bosnia and Afghanistan. Ms Mittermaier’s in a leading function at Transparency International for several years. [People] are surprised and disappointed to learn that both have lend themselves to organizing such a propaganda campaign including interviews with colleagues who have been carefully selected especially in DG1 where Mr Minnoye (VP1) keeps a close eye on who can be interviewed. It cannot have escaped the attention of Ms Lefèvre and Ms Mittermaier that the vast majority of staff is not happy. And it seems disrespectful to presume that a mere communication campaign will fix the outstanding problems. We note that the last time the Office really asked staff for their opinion through an Office-wide staff survey was about 4 years ago. We therefore call upon Ms Lefèvre and Ms Mittermaier to organize a fair and independent staff survey* instead of organizing a propaganda campaign.
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* The last request of the CSC to that effect after a first letter in July 2015 has not even been answered by the administration, which does its best not to address adequately the running of a new Technologia survey Office wide (as the CSC did in 2010 and 2013).
If pointing out this crooked plan helps derail it, then so be it. Staff of the EPO is certainly not happy, not motivated, and not satisfied. A lot of people are depressed, afraid, and overworked. █
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Posted in Europe, Patents at 5:39 am by Dr. Roy Schestowitz
Even the British and English-speaking media started to cover the scandals from Germany and the Netherlands
Summary: The terrible policies and the atrocious behaviour of the EPO’s management is gradually becoming too widespread an issue, leading to a lot more media coverage and with it public scrutiny
THE EPO is in shambles due to EPO abuses. More accurately, it is the management that comes under fire, for coercing smart patent examiners into doing their job improperly while not exercising their very basic rights. The examiners are not tolerating this abuse, which is why there is an EPO staff protest right now (at the very time of writing this), in front of the Dutch Ministry of Social Affairs.
You know something is clearly amiss when most EPO staff (yet to be confirmed) leaves the building to demonstrate against the employer.
There is a mischievous PR effort under way to colour EPO staff “happy”. Not even the most cynical among people would find this funny. This is something that we intend to respond to in our next post. It is rapidly becoming widespread knowledge that EPO is managed by corrupt or corruptible individuals, who prioritise the needs of very large (and mostly foreign) corporations, as a matter of policy. The EPO was supposed to be run in the public’s interest (the European public). Some people compare the EPO to FIFA, but the EPO is in many ways worse than FIFA and a lot more people are involved (or complicit) in the racket. The general public would be a lot more interested in this scandal if it involved soccer/football rather than something ‘geeky’ like science.
“It is rapidly becoming widespread knowledge that EPO is managed by corrupt or corruptible individuals, who prioritise the needs of very large (and mostly foreign) corporations, as a matter of policy.”Yesterday Techrights was mentioned in Germany’s biggest IT news site and this was also mentioned a lot in social media sites (where there are ongoing discussions about it). To quote Stefan Krempl’s report (in German): “Das Blog “Techrights” hat ein internes Memo des Europäischen Patentamts veröffentlicht, wonach das Europäische Patentamt zunächst zehn großen Antragstellern in einem Pilotprojekt einen “besseren Service” bieten will. [...] Dem Techrights-Blogger Roy Schestowitz erscheint das Vorgehen in vielerlei Hinsicht mehr als fragwürdig. Zum einen verhalte sich das EPA mehr und mehr nicht wie eine zwischenstaatliche Behörde, die sich dem öffentlichen Dienst verschrieben hat, sondern wie ein Unternehmen. Zum anderen sei nicht nachvollziehbar, wieso gerade viele außereuropäische Konzerne von der “VIP-Behandlung” profitieren sollten. Eine Stellungnahme der EPA auf Anfrage von heise online steht zur Stunde noch aus.”
“You know something is clearly amiss when most EPO staff (yet to be confirmed) leaves the building to demonstrate against the employer.”There is also coverage in English coming, based on our understanding (reporters who say so). The EPO is already embarrassed in its main headquarter’s country, Germany, but not many people around the world can read German. Florian Müller, who lives neat the EPO, wrote that “Article 7 of the Universal Declaration of Human Rights states the following: “All are equal before the law and are entitled without any discrimination to equal protection of the law.” But the EPO doesn’t believe in human rights and is, as Dr. Schestowitz accurately notes, run like a private, profit-maximizing enterprise as opposed to an honorable institution properly applying the law. I’ve previously likened the EPO to FIFA, but with the latest evidence I almost feel like I have to ask FIFA for an apology for this comparison, given that different standards must be applied to a sports body vs. a government institution in charge of a key area of commercial law. FIFA doesn’t rig soccer matches, at least not the extent the EPO’s leadership compromises the patent granting process.
“The general press should take much more of an interest in the EPO’s corruption. Yesterday I was pleased to see that Heise online, Germany’s leading IT news site, has written about this after reading the TechRights story.”
Müller previously suggested to some EPO staff that if they cannot overthrow — so to speak — the corrupt management, then they should at least consider working elsewhere (committing suicide works to one’s own detriment, obviously). There is already brain drain being reported. █
“What’s this about pay-grade? It’s a military term, often misappropriated by civilians who are avoiding an ethical decision. It’s a good excuse in the military: politicians are accountable for the decision to enter a war, while the military are oath-bound to follow orders at pain of court-martial and possibly execution, and are only accountable for the conduct of the war.”
–Bruce Perens, former Debian leader
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