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05.31.16

Patents Roundup: When the Patent Systems Turn Against People and Adjust According to Patent Lawyers and Their Largest Clients

Posted in America, Asia, Europe, Patents at 5:47 am by Dr. Roy Schestowitz

Reform jokeSummary: A look at the Singaporean, US, and Chinese patent systems, which are all becoming more aggressive and more disconnected from public interests, in favour of large multinational corporations

THE following article is an outline of various bits of patent news that are too short to merit an article of their own.

Singapore as Hub for Patent Trolls

We recently wrote about Creative (what’s left of it) staging a patent war against Android and by extension against Linux [1, 2]. What was interesting about it might be the role of Singapore, not Texas. Singapore is increasingly becoming a venue of patent trolls, not just notorious tyrants, tax evaders, and exploited labour from south Asia (I know about this having studied the country for about 4 years and visited the country as well). Based on IAM, a proponent of patent trolls, Singapore’s role as a litigation and/or trolling hub is on the rise. Here is the part about Creative:

There are, though, exceptions to this broad trend. Creative Technology is one clear example. The company was a pathfinder in the field of MP3 and audio products, and as its device business has declined, it has turned to its patent portfolio to shore up its balance sheet. In March it launched US patent litigation against Samsung, LG, Lenovo and others over an MP3 player patent that has previously yielded a $100 million settlement with Apple. Nevertheless, the amount of legal and transactional IP expertise in Singapore probably exceeds the ability of local companies to put it to use.

Appeals

Putting aside various pieces that are less relevant to us, Lexology published “Pending Patent Trial and Appeal Board’s (PTAB) Final Written Decision Does Not Require Stay and Does Not Justify Rule 60 Relief: WesternGeco LLC v. ION Geophysical Corp.”

“This is basically about tilting the system against defendants/challengers and in favour of patenters (as usual), by giving them an opportunity to change their patent (or application) after it had been granted.”PTAB increasingly creeps in or enters the debate because it helps demolish software patents, albeit not at a pace high enough to undo the USPTO's terrible work (not doing quality assessment or prior art search, just granting almost everything that arrives as an application, sooner or later).

Writing about Inter Partes Reviews at PTAB, Patently-O recently noted that: “In a short opinion, the Federal Circuit has reaffirmed the USPTO’s tightly restrictive approach to amendment practice in Inter Partes Review (IPR) proceedings. Under the rules, a patentee has one opportunity to propose amendments or substitute claims. However, the motion to amend will only be granted if the patentee also demonstrates in the motion that the proposed amendments would make the claims patentable over the known prior art. See Idle Free Sys., Inc. v. Bergstrom, Inc., IPR2012–00027, 2013 WL 5947697 (PTAB June 11, 2013).”

This is basically about tilting the system against defendants/challengers and in favour of patenters (as usual), by giving them an opportunity to change their patent (or application) after it had been granted. Are any rules at all capable of passing which seek to restore sanity and fix this system, except when Congress or the Supreme Court get involved (the former gave us PTAB and the latter gave us Alice)? Shearman & Sterling LLP writes in favour of secrecy in “The Patent Agent Privilege” (more on secrecy later) and judging by some of the upcoming major patent cases, claim construction at the PTAB may be under attack already (as part of Cuozzo Speed v Lee, which we wrote about before).

“When will patent applications not be presumed eligible by default, even when challenged by PTAB (whereupon the patenter gets a rather bizarre right to alter the patent)?”Speaking of Congress, remember that PTAB only came after the America Invents Act (AIA) and some patent lawyers treat it as an obstacle which they want to get rid of rather than respect or honour (the same goes for Alice). A guest post in Patently-O, composed by a person who “received a (gratis) copy of this text” to write a review about it, isn’t particularly positive about it. Jason Rantanen says about this book, “Patents After the AIA,” that “the authors were under significant time pressure in getting this project out the door” and he points out many problems with the book. Well, this is what one ought to expect from political and self-serving ‘books’.

How far will this terrible system go? When will patent applications not be presumed eligible by default, even when challenged by PTAB (whereupon the patenter gets a rather bizarre right to alter the patent)?

First They Went After Your Software (Abstract), Now After Your Life

Any patents on life at the USPTO should be seriously considered the pinnacle of institutional failure. Some companies now claim to ‘own’ the food chain (usually through GMO monopolies) and some claim to ‘own’ health treatment, DNA/genome, etc. Such privatisation or looting of the Commons is turning what’s public (and abundant in nature) into private property of few who are extremely affluent.

“Such privatisation or looting of the Commons is turning what’s public (and abundant in nature) into private property of few who are extremely affluent.”Nevertheless, ethics thrown aside, patent lawyers love these; the more, the merrier (more income). “Elena S. Polovnikova is an attorney with Kilpatrick Townsend & Stockton LLP,” says her biography, and here she is promoting patents on life at the site which is most notorious for software patents advocacy. Patents on life now exist at EPO (most controversial such patents) and at the USPTO. Companies like Monsanto want to own everything in nature using patents, which they themselves ‘interject’ into fields by what many call GMO ‘contamination’. Watch IAM ([1] below) playing a role in pressuring India, a large victim of Monsanto (where many farmers commit suicide due to it), into this massive scam which is patents on life/biology. Watch IAM running sponsored ‘analyses’ (paid-for ads) [1, 2] to that effect. Shame on IAM. There’s an evil aspect to it and it is now a wholly parasitic business (associated with bureaucracy around this). No wonder groups march to the EPO sites to protest such patents. It’s just about as unethical as it can get, probably even worse than software patents.

Openwashing the USPTO

Speaking of IAM with its endless propaganda, watch it serving as the USPTO’s megaphone (de facto marketing) while the USPTO itself is openwashing (with “Open Data”) the whole operation (“Patent and Trademark Office Uses Open Data to Bring Patent Info to the Masses”).

“When will sanity be restored and when will the USPTO recognise that its role should be to promote innovation, not grant and promote monopolies?”Bringing monopolies to “the masses” is more like inducing willful patent infringement, thereby making “the masses” more legally liable and thus indebted. When will sanity be restored and when will the USPTO recognise that its role should be to promote innovation, not grant and promote monopolies?

China and SEPs

The USPTO, as we explained earlier this month, had amended its guidelines in lieu with a pro-software patents decision (involving Microsoft, which seems rather happy about it). The SIPO in China did something similar before that. The USITO woke up to it a long time later and wrote:

The guidelines for infringement have two major changes:
1) It deleted the clause about standard-essential patents (SEPs)
2) It deleted the clause about joint infringement

These “standard-essential patents” are basically a weapon against FOSS, very much like FRAND. These are patent thickets which deny entrance by FOSS contenders — the same sorts of thickets which IAM keeps promoting (it's all about patent conglomerates that use patents to perpetuate and guard their dominance).

Secrecy in the Eastern District of Texas

In other news of interest, the EFF recently managed, after a huge endevaour and some repeated failures, to unseal details of a patent case. Watch how Blue Spike, a parasite which we covered here before [1, 2] (it had won the EFF's Stupid Patent Of The Month award two years ago), sought to keep itself immune/safe from criticism:

In a victory for the First Amendment and public access to court proceedings, a magistrate judge ruled in favor of EFF’s motion to unseal documents in a patent case in the Eastern District of Texas. This means that the patent owner in that case, Blue Spike, will no longer be able to shield from the public its arguments about how the defendant infringes its patents. Also, the court has indicated that it will publish public versions of important rulings that, until now, had been completely hidden from the public.

[...]

In its response, Blue Spike did not dispute that the First Amendment applied. Instead, it argued that because EFF wanted to write more blog posts about Blue Spike—posts Blue Spike felt were disparaging—the public should not be allowed to examine Blue Spike’s claims of infringement. In other words, because Blue Spike does not agree with EFF’s commentary about its litigation, it contends that we (and the public at large) should not see the relevant court records at all.

We are not hoping to abolish the patent system but to see a system which actually promotes innovation, transparency, sharing of information and so on, not extortion, secrecy, protectionism, and deception.

Related/contextual items from the news:

  1. Political pressure on examiners is no way to reform India’s patent system

    The battle over the Indian patent sought by Gilead Sciences for its Hepatitis C drug Sofosbuvir (branded Sovaldi) seemingly came to a conclusion last week when the country’s patent office reversed course to grant the US drug maker protection for the compound. It’s another reminder that while India is well-known to be a difficult jurisdiction for pharmaceutical innovators, things don’t always play out according to that script. But last week also saw the public airing of troubling accusations of political pressure brought to bear on patent examiners in this high profile case. As the country mulls reforms to its IP system, it’s important that these questions be addressed.

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