Distraction and diversion phase at the expense of millions of Euros (EPO budget)
Reference: Watergate scandal
Summary: Despite Battistelli being the high-profile employee who ‘sabotaged’ the EPO, Team Battistelli would rather have people question the integrity of staff representatives who speak out about such serious issues
THE EPO has a huge (and growing) PR budget, putting aside all the money it spends ‘buying’ the media. It’s truly despicable. It’s obscene! Battistelli is breaking the piggybank and if external accounting professionals/experts were to visit the Office, who knows what they would find… Christoph Ernst might be in a position to know.
It is not paranoid and it is not unreasable to expect AstroTurfing. I have written about the subject for many years, usually in relation to Microsoft with its extensive network of PR agencies. That’s just how this industry operates. Recall what the EPO's PR agency has already done for fracking companies, i.e. for those who pollute people’s air, water, etc.
The judge whose ‘trial’ took place today (see our latest post for details) was thoroughly demonised by Dutch and German media just weeks after the EPO had signed the FTI Consulting contract (PR deal). They basically defamed him and he might sue. Later this week we shall show how the FTI Consulting arrangement was in fact secretly expanded, specifically in Germany and the Netherlands. They are trying to tame the media, not just plant puff pieces in it. Journalistic misconduct is small potatoes given some of the truly serious abuses that can be attributed to Battistelli and his gang. They hope to cover it all up or drown out the signal with noise (like EIA2016 puff pieces).
Over the past week, especially after IP Kat censorship backfired, we have noticed a rather sharp rise in the number silly and at times immature comments at IP Kat (we go through all the comments via RSS feeds). Responding to provocative comments that blame everything on SUEPO, here is what one person wrote about the demonisation of SUEPO, reinforcing the EPO management’s characterisation of SUEPO as ‘bullies’ (see the bogus ‘trial’ against Hardon):
“Afraid of SUEPO’s bullying”? Seriously? Nah. SUEPO were fairly clownish by union standards,and of course there were a couple of hotheads, but telling them to get lost was inconsequential.
However,and however irritating they could be, they still held the management to account, and it was the management’s fault that they never really engaged with SUEPO.
But SUEPO, and especially some individuals within it, have stepped up to the plate and deserve respect for the way they have behaved in the face of BB’s determined authoritarianism, nepotism,and dismantling of the EPO. And employees support them because of this stand,and the recognition that SUEPO is being targetted because they are tellingthe truth. No bullying required.
Given what SUEPO has gone through and the sheer abuse it has been subjected to (both individually and institutionally), all its leaders have been extremely restrained and kept their composure. To call them bullies is basically a case of projection. It’s not hard to see that the bullies are Battistelli and the thugs who surround him. They have a long track record, not just in Eponia.
“To call them bullies is basically a case of projection. It’s not hard to see that the bullies are Battistelli and the thugs who surround him.”SUEPO does a terrific job looking after staff’s interests and given the dodgy involvement by Wellkom in the OHSRA [1, 2, 3], it’s not hard to see why SUEPO has grown weary and concerned about the motivations of Battistelli, especially after breaking German law to spy on staff and visitors.
The “EPO OHSRA,” according to SUEPO, is “not what it should be” because it resorted to tracking of people who took the survey, it included questions about one’s sex life (good subject for potential blackmail in the future), etc. Here is how SUEPO put it not too long ago:
The staff representation has for years been asking the administration to do an Occupational Health & Safety Risk Assessment (OHSRA) in order to provide the EPO with a rational basis for its Occupational Health Policy. The administration has until recently been dragging its feet, obviously not wanting to know what is wrong in the Office. A survey has now finally been done. But even if we kindly overlook the technical difficulties and the fact that the survey initially contained a series of tracking links, the questionnaire itself was surprising. For those who were invited to take part (and those who did not manage to get to the end of it) we reproduce the questions. There are surprisingly few questions about aspects of the working conditions that are likely to contribute to staff ill health in the EPO. Instead there are many questions about “life-style” and well-being, including five questions asking whether you spend a “significant” amount of money on health-related products, read wellness articles in the press, read health magazines, watch health-related television programs or use the internet to learn about wellness. There are also several very personal questions about issues that should not be of the employers concern such as whether you are satisfied with your family, with your physical appearance, and whether you have sexual problems. We wonder what our management will do with the answers. Offer after-work “well-being” courses and marriage counseling as a means to cope with the stress in the Office?
Notice how they might be trying to blame people’s family for depression and/or health issues, just as they did when people committed suicide and the suicides were either (flabbergastingly) blamed on SUEPO or some external factor, until the brother of one victim told Bavarian television that the last straw was the EPO’s Investigative Unit.
There are a couple of quoteworthy comments today in IP Kat and they appear to have come from the same person. Here it is with some minor spelling corrections:
The EPO was founded many years ago when there was still a sense of moral obligation and integrity even with politicians, managers and corporations. Being sincere and moral this is why those who founded the EPO could not conceive that this could/would change, because for that they would need to think in an immoral way.
Now all those in charge of the EPO care about is how I can I keep my present position, how can I make myself look good and maybe even work my way up the ladder, with no respect for anyone but maybe their betters (at least butt-kiss in public). Any suffering is just collateral damage to the bigger cause. Those disadvantaged shouldn’t take it personally.
Facts are distorted by management saying that their intentions are good. But there is a saying; the way to hell is paved with good intentions. And that is exactly where the EPO is going.
The real issue is acquired rights.
When examiners joined the EPO many years ago they signed a contract. They were given a Codex where the rights and obligations of both parties were fixed. For an examiner this meant working to examine patents with a 40 hr work week. In return for this the examiner was given a certain salary with incremental increases in pay being promised, at least within the grade. Promotion from A1 to A2 to A3 to A4 was not a right but could be expected with reasonable performance. If you performed very well you were promoted faster if you did very badly you could be blocked for promotion. This is the same in National systems.
The reason for this is to try and keep officials happy with a good pay package so as not to be tempted to cede to corruption. With the new system the incremental steps have been unilaterally abolished without agreement with staff representation. The admin council agreed and as such is complicit.
The new system pitches one examiner against another for production. Only the best get promoted. Although this sounds reasonable, it is not. There are ways to rig the system to make you look good. In effect promotion or a step increase is basically a bonus for being a high producer (considering quality is in the eye of the beholder). Look what bonuses did for the banking system. Is this really what the Admin Council want for the EPO?
Also employees were forced on signing their contract to agree to a pay into the system of social security and invalidity, with the promise of certain rights. The EPO has unilaterally reduced or scrapped certain benefits, basically retroactively changing the contract, without agreement from the staff and without any compensation. At the same time they have changed the internal medical systems, which has even had the gall to question external doctors certificates. The office has given itself the right to check whether you are really sick. To this end during your whole period of illness you are obliged to stay at home at certain times (which can be counterproductive to improving health. But who cares.)
The only reason that the EPO can do this is because management is not checked by the Admin Council. For whatever reason. The admin council lets itself be bamboozled by BB stating that they believe that this is legal, and then to go along with it.
Does the admin council forget that there are nationals of their own countries working at the EPO, who as citizens of their respective countries are used to certain human rights which they are denied, by virtue of having joined an organization serving their respective countries by examining patents and protecting the European public from undeserved monopolies.
And how are they rewarded? ……
Thank you very much Admin council.
Please take your respective responsibility and do what is right and not what is in your own interest. Treat us as human beings and not cash cows.
If you have bothered to read this far thank you for your attention.
Disillusioned but stupidly still hopeful me
The bottom line is that the Administration Council must not fall for the illusion that SUEPO is the problem, that staff is aggressive, that depression is not the fault of the management and so on. These seem to be, potentially, PR tactics. Battistelli needs to be sacked this month, but it’s not unthinkable that FTI Consulting would resort to AstroTurfing if not appalling puff pieces to convince delegates that everything is alright (this is why other people need to contact the delegates). That’s the type of things these PR agents are paid millions of Euros (of EPO budget) for. Don’t underestimate their behind-the-scenes impact. █
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Fair trial at the EPO is an oxymoron under Battistelli's regime
Summary: The widely-defamed (but unnamed in public) judge is off the hook again and Team Battistelli managed to suppress public participation which is passive (observers) by locking everyone out at the last minute
WHEN we wrote about today’s ‘trial’ as early as last night we could mostly speculate about what would happen, based on information available to us last night. This morning and this afternoon we released some actual information from the inside and now there’s a report from IP Kat, which probably needs to be careful with its words because of the recent warning shot from the EPO‘s management. We now have available to us some more details and background from Merpel. Everything she wrote was pretty much in alignment with/concurring with what we had published, including this bit:
Clearly, then, the EBA had decided to make the Oral Proceedings public. Merpel can only surmise that this must have been with the agreement of the Board of Appeal member concerned.
Now, Merpel has heard a couple of reports of what happened today. Apparently, despite the notices, in fact for the beginning of the hearing the the public was in fact excluded. Merpel understands that the reason was that the President had written to the Enlarged Board in an attempt to stop them from making the proceedings public. Merpel is then told that the proceedings continued in public – the EBA stated that they had received a threatening letter from a non-party to the procedure (presumably the President), and asked the “the petitioner in its quality of the members’ appointing authority to distance itself from the threats in that letter” (see comment here at 17:54 today). Merpel understands this to mean that the EBA was asking the employees of the EPO presenting the disciplinary case, acting not in their usual capacity as agents of their own appointing authority, the President, but in their specific capacity in the present proceedings as agents of the Administrative Council, the appointing authority of Board of Appeal members (and the petitioner in the present case), to distance themselves from the President’s letter. This the employees presenting the disciplinary case failed to do to the EBA’s satisfaction.
Merpel then understands that the EBA considered that it could not continue under these circumstances and closed the case without proposing removal from office of the Board member concerned.
Will this be the end of the disciplinary case? Merpel does not know. She presumes that any semblance of due process does not allow an unlimited number of attempts to prosecute the same matter, and three seems quite a lot. But as ever in the EPO at the moment, who can say?
“Further rumor has it that the EBA has forwarded the president’s threat to the chairman of the Administrative Council,” one comment added. This is actually a confirmed fact.
“We tend to hear from people who spoke to other people, who earlier spoke to other people.”We have some further information and corrections to IP Kat. Not many people are aware of what happened because not many people were actually there and word of mouth is not sufficiently reliable. We tend to hear from people who spoke to other people, who earlier spoke to other people. Sometimes we hear similar and overlapping stories from multiple sources, which helps contribute to confidence and assure relative accuracy. Below is a summary that’s based on various sources (second hand).
One who was actually at the ‘trial’ called it a “crazy day”. The public was only allowed in for the first two minutes (at 09:00) and the last five minutes (at 17:10). One could certainly get the impression that it was a final decision, as many people definitely seemed to think that. Everyone was then thrown out and then costs (presumably) were discussed. Someone actually heard people mentioning that they all had to sign in (list of names, signatures) and there was a piece of paper to go through; they all had to write their names and then sign to confirm/promise they wouldn’t record the session, so someone must have read Techrights.
“Someone actually heard people mentioning that they all had to sign in (list of names, signatures) and there was a piece of paper to go through; they all had to write their names and then sign to confirm/promise they wouldn’t record the session, so someone must have read Techrights.”We heard that a couple of bits are wrong in the IP Kat article, namely that the EBoA actually said that they did not recommend the removal of the judge, which is, in reality, much stronger than how it is stated in the IP Kat article. Additionally, it wasn’t the “employees of the EPO” who presented the case, but the Administrative Council itself. They were the “petitioner”. Put another way, they were represented by the employees. One can sort of see what Merpel is saying, but it is a bit confusing as it stands.
The important thing, which is missed out in the article, is that the Administrative Council itself, in the form of Kongstad was contacted twice today, in order to clarify whether they would distance themselves from the President’s letter. His answers were apparently so wishy-washy that the EBoA were not reassured that their independence was protected. Hence they could not continue because of the “threat” to their independence. The word “threat” was actually used.
We hope that people generally find this information useful. Having watched and assessed these things very closely today, we believe it’s an accurate representation of what happened.
Someone wrote about us as though we have a record of inaccuracy, even though we have historically gotten the facts right. It says:
According to a source cited by Techrights – always to be taken with a pinch of salt, still Techrights was the first to disclose the threats of Battistelli to the EBA:
“inside sources say that Mr. Battistelli sent a threatening message to the Enlarged Board of Appeal dealing with the case, to the effect that they should not let the public be present during the hearing. The EBA is said to take this very seriously and to have forwarded the president’s threat to the chairman of the Administrative Council.”
Here is another comment on this subject:
At the end of today´s public oral proceedings in relation to a petition by the AC of the EPO to the Enlarged Board of Appeal to remove a judge from office, the EBA announced
1. that its members had received a threatening letter from “an authority which is not a party to the procedure”
2. that it had requested the petitioner in its quality of the members´ appointing authority to distance itself from the threats in that letter
3. that in its response the petitioner did not adequately distance itself from the received letter
4. that the EBK could not in the circumstances pursue the procedure, which accordingly was terminated without the EBA proposing removal from office of the respondent.
“Finally,” replied one person, “Battistelli is showing to everybody his true face.” That’s what we wrote this morning. It is important to give outsiders an accurate account of this whole embarrassing display of megalomania (if not paranoia) from Battistelli. █
Update: Kongstad’s role is now reaffirmed by a new comment that says: “As I understand the information given, the Enlarged Board contacted Mr. Kongstad, the Chairman of the Administrative Council, and asked whether the Council distanced itself from the allegedly threatening letter. Since the answer received was not considered satisfactory, the Enlarged Board decided that they could not continue with the case and did not propose removal of the member from Office.”
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Waving EPO budget, but at whose expense?
Summary: Gifts from EPO (money) offered conditionally (under review) days before countries send their delegates to potentially fire Battistelli, as they most certainly should, and updates from today’s ‘trial’ of a judge suggest that Battistelli is determined to destroy the boards with help from these delegates
THIS morning we wrote about the latest threats from Battistelli. The EPO is a battle zone because of Battistelli and his atrocious behaviour. It’s painful to watch.
Words “from an unconfirmed source,” one person said, is that the “EBA [Enlarged Board of Appeal] has decided it cannot continue and will not recommend dismissal [of the truth-telling judge] because the plaintiff did not distance itself from the president’s letter [...] The board had no choice, but the president provoked and in wanted this.”
“The EPO is a battle zone because of Battistelli and his atrocious behaviour. It’s painful to watch.”Regarding “Battistelli’s plot to destroy the boards,” continued this source: “Find someone who has something that clearly requires dismissal. If needed, make it up. Mess up procedure so, board cannot possible recommend dismissal.”
Referring to it as the “BoA trial” (Board of Appeal), the source said: “Make sure it is messy and annoying for long time. [it has already gone on for a year and a half] Argue at the Administrative Council meeting by the end of June that boards must be made under control.”
Well, this brings us to the Administrative Council whose delegates Battistelli is either intimidating and punishing or rewarding. He controls them using EPO budget, as some people explained before. Battistelli already resorts to all sorts of truly nefarious tricks to ensure he doesn’t get sacked; details were covered here several times last month.
Watch UK-IPO sucking up to Battistelli today. His UPC mates in London help promote Battistelli and Thursday’s lobbying and PR stunt, soon to be retweeted by the EPO’s Twitter account. The person from UK-IPO wrote: “The President of the EPO, Benoit Battistelli, made a good speech.”
He never makes a good speech. He just reads some text while looking awkward and totally unnatural. Watch how Battistelli sucked up to Portugal: “Portugal was historically famous for its explorers and, Mr. Battistelli pointed out that it was appropriate to be celebrating this year’s Awards in Lisbon because inventors are the explorers of the modern world.”
If it sounds like Battistelli is about to ‘buy’ some more nations’ representatives before the AC meeting, then it’s probably indeed the case. To quote this new tweet: “The EPO will meet most of its member states in Tirana on 16-17 June to review the co-operation roadmap. Updates to follow.”
“Battistelli already resorts to all sorts of truly nefarious tricks to ensure he doesn’t get sacked; details were covered here several times last month.”Talk about timing! Battistelli is distributing other people’s money, so who will be ‘brave’ enough to put at risk this money (and risk losing the delegation position)? Some rumours from last month suggested that Battistelli had lobbied countries to remove delegates not supportive of him.
These tricks are causing serious reputation issues for the Office (even a "crisis"), epecially if they allow him to stay for longer and deepen the impact of his damage. █
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The problem is the tactic or the weapon, not the size of the plaintiff…
Summary: A roundup of news about software patents-wielding patent trolls, including some of the latest publicity about (and against) them
THE LENIENCE at the USPTO has given rise to patent trolls, which barely exist in Europe because software patents are not legal here (loopholes aside). Here is a new article about Europe and patent trolls:
Does Europe Have Patent Trolls?
They study all patent suits filed from 2000-2008 in Germany’s three busiest courts and most cases filed from 2000-2013 in the UK. They find that PAEs (including failed product companies) account for about 9% of these suits and that NPEs (PAEs plus universities, pre-product startups, individuals, industry consortiums, and IP subsidiaries of product companies) account for about 19%. These are small numbers by U.S. standards, but still significant. Most European PAE suits involve computer and telecom technologies. Compared with the United States, more PAE suits are initiated by the alleged infringer, fewer suits involve validity challenges, fewer suits settle, and more suits involve patentee wins.
In the previous post we reminded readers that software patents are a dying business (or dying breed) in the US, no matter what patent lawyers say. However, when patent trolls target small entities, will the patents go to court at all and get invalidated there? The process can be hugely expensive, time-consuming, and there is no absolute assurance of invalidation.
When patent lawyers say the truth about patents and what they have become we learn quite a lot right from the horse’s mouth. “Former patent lawyer speaks out against trolls,” explains this one person about Ira Blumberg (writing at AOL), who “explains why Congress must fix patents” (they mean stop trolls).
Read the following article from start to end. Here are some highlights:
Why patent trolls won’t give up
Luckily for me, this didn’t apply to the patent world. I spent seven years on the “dark side” working for patent trolls before coming back to the light. Patent trolls are companies that derive all or almost all of their revenue by asserting patents against other companies.
My experiences while on the “dark side” profoundly shaped my view on the role that Patent Assertion Entities (PAEs), or patent trolls, play in the tech industry. The struggle between PAEs and companies that produce and sell products is not as stark or binary as “light and dark,” or “good and evil,” but the fact remains that PAE litigation does more harm than good.
The tech industry is fertile ground for PAE litigation, with its many patents, plentiful companies and an increasing global reliance on technology. PAEs have no incentive to stop unless we in tech work together to stand up against them.
Lenovo believes strongly in protecting innovation, and having seen the real threats that trolls can pose, I pushed to join LOT Network, a non-profit community of companies that work together to minimize their exposure to patents owned by trolls. With fellow members like Red Hat, Canon, Logitech and Subaru, we’re making a real dent in the pool of patents that would be useful to PAEs. At last count, nearly half a million patent assets were protected from being used as weapons in PAE litigation against members of LOT Network.
As someone who has spent time on both sides, I feel a call to speak out against frivolous and overpriced patent litigation. The work I did for both PAEs and corporations was certainly legal, but not the same: While I was always on the right side of the law, I prefer being on the right side of innovation.
Companies want to create technologies that matter five years from now and beyond, so patents continue to matter. Frivolous lawsuits and those demanding damages far in excess of the value of the allegedly infringed patent detract from our ability to push innovation and better products forward. I hope that many more voices in tech will join mine in decrying the harmful effects of needless patent litigation — our future depends on it.
“Former Patent Troll Admits That Patent Trolls Are Bad For Business And Innovation” is how TechDirt summarised the above article, noting: “I’ve spoken to a few patent attorneys who have fought against patent trolls who have admitted to me that, at times, it’s quite tempting to give up and join the other side, since patent trolling is fairly easy and incredibly lucrative. You just have to sell your soul and give up the idea that you’re doing anything productive or good in the world, and instead become a pure bottom feeder. Someone who did exactly that is apparently Ira Blumberg, who is now speaking out about his experiences working on “the dark side” of patent trolling. Blumberg didn’t end up going to one of those tiny patent trolls, but rather left a job at Intel to go work for Rambus, a company not everyone considers to be a patent troll, but which certainly has a history of being an aggressive patent litigant. From Rambus, Blumberg then joined the world’s largest patent troll, Intellectual Ventures. He eventually left IV and is now at Lenovo. So he’s been actively on both sides of the patent troll situation — as an active participant in suing operating companies while working for companies that did nothing but license, and at companies that are relentlessly pursued by patent trolls.”
There are other new data points regarding patent trolls. As United for Patent Reform put it, “HarvardHBS study finds patent trolls prey on businesses with new cash flows” and here is the accompanying page which says: “The study, “Patent Trolls: Evidence from Targeted Firms,” examines the rise of patent lawsuits driven by nonpracticing entities (NPEs), or firms that hold on to patents for the sake of enforcing their IP rights rather than using them to innovate and produce products that benefit consumers. The authors — Lauren Cohen at Harvard Business School and the National Bureau of Economic Research, Umit G. Gurun at the University of Texas at Dallas, and Scott Duke Kominers at Harvard University — find that NPEs behave like “opportunistic patent trolls,” targeting vulnerable companies with frivolous lawsuits. They also conclude that these activities have a “real negative impact on innovation,” causing companies to reduce their innovative activity after coming in contact with NPEs — whether through settlements or after losing to one in court — and crowd out some companies that would otherwise create products that benefit society.”
“There are other new data points regarding patent trolls.”“Patent trolls are targeting developers & could potentially sue anyone who uses the Play Store or App Store,” United for Patent Reform added, linking to this article about a story that became very hot last week. Uniloc, a patent troll which we have written about for years, attacks Android developers right now. Here is some background: “Austin Meyer is the developer behind X-Plane. A few years ago, he uploaded the app to the Google Play Store and was very unexpectedly hit with a lawsuit from Uniloc in 2012. The firm claims it patented the idea behind the app market. That’s right, Uniloc isn’t going after the Meyer for making a flight simulator; it’s going after any company that uses Google Play. It’s already targeted a bunch of other popular apps, including Minecraft.”
Another article explained that “Austin Meyer is the developer behind X-Plane. A few years ago, he uploaded the app to the Google Play Store and was it with a lawsuit from Uniloc. Uniloc claims it patented the idea behind the app market and it wants a share of the profits. It has already targeted a bunch of other popular apps, including Minecraft.”
“The story told by Austin Meyer is similar to the story of many other developers.”Promoting VENUE Act as the solution, United for Patent Reform wrote: “This patent troll claims it invented mobile app market & is suing developers in EDTX courts” (Eastern District of Texas).
Here is the corresponding video. “The empty patent troll offices in Eastern District Texas,” Benjamin Henrion called it.
United for Patent Reform linked to this original video and said: “”I am being sued in East TX for using Google.” Austin Meyer speaks out against the patent trolls threatening his app” (Android app). To quote the video’s summary, it only says: “I am being sued for using the Google Play Store. Others have been sued for using WIFI and scanners. It takes years, and about THREE MILLION DOLLARS, to defend yourself…”
Here is the video embedded:
The story told by Austin Meyer is similar to the story of many other developers.
To make matters worse, as this one person put it, there is a “spoiler: plaintiff’s attorney is judge’s son” (not so unusual when it comes to the patent system in the US. There are more stories like this in the corrupt patent system in Texas and EPO with Bergot).
Sadly, patent trolls now overwhelm the US system. They are sometimes fed by large corporations. “Of 22 patent suits filed today,” United for Patent Reform wrote some days ago, “19 were filed by patent trolls — 86%. It’s time Congress took action to #fixpatents!”
“This patent troll targets companies that track packages,” United for Patent Reform writes about another high-profile patent troll. “If Your Company Ever Tracks Packages, Beware of Lawsuit from Alleged “Patent Troll”,” says the accompanying article, which also mentioned the EFF as follows: “No way would Cugle pay the $25,000. He refused and sought out help from the Electronic Frontier Foundation (EFF), which sued Shipping and Transit in the U.S. District Court for the Southern District of Florida on May 31 for filing a frivolous patent claim against Cugle.”
“Sadly, patent trolls now overwhelm the US system.”The EFF is doing some good work here and it also takes note of “the story of how one company has filed 91 lawsuits over a patent developed with government” (subsidies to help tax the public).
The story was covered by NPR, which had already done some good reports about the patent system. As NPR put it: “What makes this beef between bodybuilders stand out is where the patent comes from: a prestigious research university. A scientist was looking into whether arginine could help fight heart disease. He got a patent on what he found. But his research hit a dead end, and, through a complicated series of events, his noble patent got caught up in a fracas between two bodybuilders and their lawyers. Naturally, we dove in.”
What we have here is corporate welfare (money from government) being used to tax the public, which is of course outrageous. And speaking of welfare, mind this new article (behind paywall) titled “Patents Can Be Dangerous to Inventors’ Welfare”
“Many inventors have gone astray defending patent rights,” the summary says. “Elon Musk and Tesla blaze a different path.”
Actually, Musk is a famous example of someone who made a fortune from government subsidies. For Musk to give away patents should be seen as an obligation, not goodwill. “Innovation” is increasingly just a buzzword/byword for patents; it’s all about business (income) for patent lawyers and protectionism for large corporations that they work for. Small businesses need not apply; they’re left to suffer. Here is the latest example of mutual patent protection among giants in Asia. IAM says that “[i]t looks as though Nissan has become the latest member of the License On Transfer (LOT) Network.” This isn’t exactly useful for anyone other than giant companies like Toyota.
“”Innovation” is increasingly just a buzzword/byword for patents; it’s all about business (income) for patent lawyers and protectionism for large corporations that they work for.”Here is another new example of patents being used for protectionism rather than innovation. As a trolls expert put it the other week: “Global Archery, an Indiana company that licenses its own foam arrows for archery games, sued Gwyther back in October. Global Archery founder John Jackson said that the foam-tipped arrows sold by Gwyther violated a patent he owns, and that Gwyther’s marketing on search engines infringes his trademark rights.
“Earlier this year, Gwyther took his fight public with a fundraising campaign, and published a video in which he implored his customers and fans to “Save LARP Archery!” That led to Global Archery asking for a gag order to stop Gwyther from speaking about the case.”
TechDirt later added that: “Global Archery claims that those arrows infringed on a patent it owns and that LARPing.org’s use of Google Ad-Words infringed on its trademarks. While both of those charges seemed destined for loserdom, as the German company would be the patent infringers and the Google Ad-Words thing almost never works, the fact that Global Archery was relatively big and LARPing.org is tiny meant that perhaps that would be enough to tip the scales. With that in mind, Newegg’s Lee Cheng jumped into the fray, helping to back LARPing.org’s legal efforts in defending itself.”
“Newegg can afford to spend millions on dollars in the courts (and sometimes manage to convince the judges to provide legal costs reparations).”Newegg actually uses its fights against patent trolls for marketing, not that it necessarily makes these battles tasteless (just self-serving). Newegg can afford to spend millions on dollars in the courts (and sometimes manage to convince the judges to provide legal costs reparations). But where does that leave the rest of us, who haven’t the deep pockets or the coffers Newegg enjoys? Where does it leave people like Austin Meyer?
Sadly, in spite of media’s growing realisation that patent trolls are a problem, the real solution would come from invalidation of all software patents, rendering software developers about as free as they tend to be in Europe (as long as they don’t distribute software in the United States or fold too quickly [1, 2, 3]). █
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Much ado about [En]fish…
Summary: A roundup of news about software patents in the United States and why the media’s narrative (dominated by patent lawyers) clouds a rather grim reality for software patents, even after the Enfish v Microsoft case
THE USPTO continues to grant software patents, but relying on Alice at the US Supreme Court (SCOTUS), reassessments by courts or panels typically invalidate these.
SCOTUS and Halo v Pulse
“The USPTO continues to grant software patents, but relying on Alice at the US Supreme Court (SCOTUS), reassessments by courts or panels typically invalidate these.”Based on this new tweet, SCOTUS now recognises the patent trolls issue and even names it as such. This commentary on trolls ought to take into account the strong correlation between patent trolling and software patents (which trolls typically use). Here is what Patently-O wrote about SCOTUS just now: “The Supreme Court today issued an important unanimous decision in Halo v. Pulse – vacating the Federal Circuit’s rigid limits to enhanced damages in patent cases. The decision rejects the dual objective/subjective test of Seagate as “inconsistent” with the statutory language of 35 U.S.C. §284.”
The problem is, irrespective of damage limitations, patent trolls (which may be the spilling of a company’s patent portfolio acting as satellites) can just attack many thousands of firms or people, taxing each in turn. So loopholes remain in tact and overall it’s pretty ugly.
Court of Appeals for the Federal Circuit (CAFC)
It is worth noting that there’s an ever-growing gap between the judgment of USPTO examination — as per the management’s guidelines — and what US courts actually say, even corrupt courts like the Court of Appeals for the Federal Circuit (CAFC). Remember that it was CAFC which started software patenting in the first place and recently ruled in favour of Enfish, getting software patents proponents/maximalists (such as patent lawyers) all giddy and jubilant as though software patents are back with vengeance (they’re not).
“It is worth noting that there’s an ever-growing gap between the judgment of USPTO examination — as per the management’s guidelines — and what US courts actually say, even corrupt courts like the Court of Appeals for the Federal Circuit (CAFC).”Software patents are problematic to software developers, no matter if they develop Free software or proprietary software. It’s probably a bit more of a problem for Free software developers because in order to freely distribute copies of their software they must not be coerced into making patent payments to anyone. “Patents and the open-source community” is a new article from LWN which deals with the topic. It is a very long article about a panel in which Professor “Moglen advised separating the past from the future when discussing tactics. For the future, he said, “we should prevent people from getting patents.” But, in the past, the problem is old patents “rising up and smiting” projects, harming innovation. The work that Choudhary does trying to abolish patents, he said, covered how to protect people in the future—and he fully expects SFLC to continue that work, arguing in front of the Supreme Court about the “design patent” case between Apple and Samsung. Furthermore, he said, “open-source software is an immense repository of prior art. Free software can help by educating people on all that we’ve invented and that you therefore cannot reinvent and patent.””
Samsung and Apple
Speaking of this (above-mentioned) “design patent” case between Apple and Samsung — a case which we last wrote about in the weekend — Florian Müller who dislikes Moglen (he once again told off the SFLC a few days ago) has “all the documents and the key points”. To quote his blog: “There never was any doubt that the question of whether the infringement of a single design patent by a complex, multifunctional product warrants an unapportioned disgorgement of profits would be an extraordinarily important one. Previous rounds of amicus curiae briefs already demonstrated broadbased support. But the level of support the petition has just received at this decisive stage exceeds my expectations.”
Days ago we explained why this is relevant and important to Free software. Previously we also explained why design patents are often similar if not indistinguishable from software patents (UI+callback function/s).
Patent Lawyers Upset
“There never was any doubt that the question of whether the infringement of a single design patent by a complex, multifunctional product warrants an unapportioned disgorgement of profits would be an extraordinarily important one.”
–Florian MüllerSuffice to say, patent lawyers almost always support claimants (never mind justice or innovation). They want a lot of money to swap hands because it’s their source of revenue, other than/aside from obscenely high hourly charges. “How the United States Patent Office Became the Place Where Patents Go To Die” is an example of a new article which bemoans quality control and it is promoted by the usual suspects. It's not exactly surprising that the bubble is now imploding. Patent quality became a joke and over-evaluation of patents ensued. Opponents of the Alice decision continue to cheer for software patents (“Uber files patent on hyperlocal internet search” in this case), but sadly for them, the boat is leaving and software patents are now weaker (in the US) than they have ever been since their introduction by CAFC. “Recall that Enfish comes from a single CAFC panel,” IBM’s Manny Schecter wrote the other day, “when the CAFC ruled en banc in Alice it was splintered” (as a reminder, Schecter is a proponent of software patents not only in the US).
Reality Check From Software Patents Proponents
“I am thus concerned that Enfish will not be as useful as hoped in overcoming §101 Alice rejections.”
–IP WatchdogWe were rather amused to find the most pro-software patents site out there publishing “Is Enfish Much Ado About Nothing?” The gist of it is that the Enfish decision hardly changed anything at all. To quote the key part: “I am thus concerned that Enfish will not be as useful as hoped in overcoming §101 Alice rejections. The patents at stake in Enfish appear to have been written with a confident view of the prior art and of the invention. So, if a specification does not confidently emphasize the “invention,” its “benefits over” conventional prior art, and “disparage” the prior art, will examiners and judges continue Step 1 characterizations at “such a high level of abstraction”? Is Enfish merely much ado about nothing?”
Yes, it is. Patent lawyers tried to over-emphasise it in order to change public opinion and influence policy-making people. The patent salespeople, on the other hand (in the same site), hope that this one single case will save software patents, not just at the USPTO but also at the courts. They are not paying attention to any case other than the Enfish v Microsoft case. How convenient…
Software Patents Proponents in Denial
Almost a month later (after the decision) Baker Botts LLP is still cherry-picking cases in an effort — however shallow — to shore up software patents. Banana IP (Banana Republic?) does the same kind of lobbying. We have already covered dozens of examples like these. These helped show how the media, especially lawyers’ media, continues to simply ignore every single case that’s ruled against software patents and lean on the rare exceptions instead. Edward Bray (of Marks & Clerk) is now cross-posting his ‘analysis’ in favour of software patents — an ‘article’ (lobbying/marketing) which we mentioned the other day. It just never stops, does it? Even a month later.
“Is Enfish merely much ado about nothing?”
–IP WatchdogThe USPTO is doing the same thing, as we noted last month on a couple of occasions. Here is an explanation of how it goes: “Abstract idea – #USPTO memo on how the #CAFC Enfish patentability decision obstructed Alice http://www.uspto.gov/sites/default/files/documents/ieg-may-2016_enfish_memo.pdf … #swpat”
The patent office too is latching onto a single case when it serves to ‘sell’ more patents for more revenue. No separation between examination and policy?
Evidence serves to suggest that no matter what USPTO greed does, the courts continue to crush software patents, even after the Enfish decision. “Patents Directed to Electronic Delivery of Messages Found Ineligible in AZ in GoDaddy v. RPost,” Patent Buddy wrote the other day, linking to http://assets.law360news.com/0805000/805041/2016-06-07%20(doc%20344)%20order%20granting%20godaddy_s%20motion%20summary%20judgment%20and%20vacating%20trial%20dmwest_14483743(1).pdf (Alice is mentioned dozens of times in this decision’s PDF).
Many software patents have just died not only in the courts but also at PTAB, so how can patent lawyers argue with a straight face that a lot has changed? “Fatal Flaws of Subjective Alice/Mayo 101 Test [Are] Now Becoming Evident in Contradictory Findings Across Dist. Courts,” Patent Buddy wrote, but why is that test “subjective”? Because patent attorneys and lawyers don’t like it? Because it threatens their profit/income?
The matter of fact is that some courts get it right (they can see that algorithms are abstract), whereas some are still rather clueless (or bad lawyers for the defendant) if not corruptible, as was the case at CAFC before. Microsoft had a lot to gain from losing that case, as we explained last month.
“LinkedIn will soon be owned by Microsoft, which is itself a leading proponent of software patents.”Here is a case of software patents being used against Facebook, which has been stockpiling patents on software. To quote Patently-O: “Indacon’s U.S. Patent No. 6,834,276 covers an improved database system that adds “custom links” so that instances of a “link term” would point to a particular file in the database. Thus, applying this in LinkedIn, you might find that references to “Dennis Crouch” point to my LinkedIn profile. Of course, the way that Facebook & LinkedIn operate does not create the pointer-link for all occurrences of the term.”
LinkedIn will soon be owned by Microsoft, which is itself a leading proponent of software patents. What will this mean? Remember that the Enfish decision too involved Microsoft and people from Microsoft were pleased with the outcome. Speaking of Microsoft, the company is now hoarding software patents on quantum computing, based on this new listing. “Note that the USPTO also has a search engine for patent applications that are not yet granted,” wrote the author. “I am not listing those here. You can use that search engine yourself if you also want to see “Previews of the Coming Attractions”…”
Microsoft is by far the biggest threat to Free software when it comes to patent aggression.
Patents on Genome
“Indacon’s U.S. Patent No. 6,834,276 covers an improved database system that adds “custom links” so that instances of a “link term” would point to a particular file in the database.”
–Patently-OThe Alice/Mayo test applies to more than just software. Bristows lawyers (i.e. patent profiteers who promote software patents) show no concerns about patent scope expansions. Based on this article from MIP, they aren’t going to say that patents on human genome are insane. Instead there’s promotion of that. As per the summary: “Genomic technology has rapidly created a multi-billion dollar growth industry. With life sciences companies scrambling in US and European courts for a share of the lucrative market, in-house IP counsel should start preparing for the next wave of IP litigation, explain Dominic Adair and Annsley Merelle Ward” (from Bristows).
Unless the USPTO gets a grip and stops granting patents on everything in nature, the valuation of patents and the confidence in the patent office will further erode, leaving patent lawyers reliant on illusions, lying to their potential customers, and overselling the prospects of patent litigation. How long can this madness last? It’s a bubble. █
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Summary: New examples of software patents that simply cannot withstand or survive scrutiny, either at the appeal panels or at the court (where there’s no incentive to approve nearly everything, unlike the USPTO)
THE USPTO wishes to grant more and more patents for increasing revenue and growing influence. This is why it ended up with so many patents, perhaps the majority of which are bogus (based on prior art, abstractness etc.) and the bubble has begun imploding.
Making money by invalidating bad patents sounds like a good thing, but based on this new report from MIP, this business opportunity is being exploited by thugs and con men like Kyle Bass and Erich Spangenberg (we wrote about both of them in prior years). To quote MIP:
The Patent Trial and Appeal Board’s institution decisions on all 35 of the inter partes review petitions filed by Kyle Bass and Erich Spangenberg are now in
The Patent Trial and Appeal Board (PTAB) has issued institution decisions on all the inter partes review (IPR) petitions that involve hedge fund manager Kyle Bass.
As a recap, Spangenberg is one of the biggest patent trolls out there. Kyle Bass comes from a highly ruinous meta-industry and he destroys companies by going after key patents of theirs. Another new article about PTAB (also from MIP) says: “The Patent Trial and Appeal Board has invalidated two livestock valuation patents in the first PGR final written decisions. Only one of the 28 PGR petitions filed so far has been denied institution, with two settled and 11 waiting an institution verdict” (progress).
“We are hoping to see more such cases where software patents are identified by determining the reducibility of the operation to pen-and-paper analysis.”If you see “livestock” in patents, then you immediately know something is amiss, either because the patent pertains to life or to software/mathematics in this case. Many of the patents which PTAB invalidates these days are software patents.
Speaking of software patents, mind this new decision [via] and blog post titled “Computer Memory Testing Patents Invalid Under 35 U.S.C. § 101″ (Alice likely). To quote the summary, action in this case can be “performed by humans without computers [and this] confirms [...] asserted claims are directed to patent-ineligible abstract ideas.”
We are hoping to see more such cases where software patents are identified by determining the reducibility of the operation to pen-and-paper analysis. This patent sounds rather similar to the Bilski one, which the US Supreme Court was not too enthusiastic about. █
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Michael Fröhlich does Battistelli’s bidding, meddling with public policy
Photo credit: Nordic Patent
Summary: The takeover of media and public events (or panels) for the promotion of UPC and EPO reputation laundering should strike a nerve, for it shows the persistence of Battistelli’s arrogance (he believes he is above the law and has a blank cheque)
THE EPO makes the USPTO look very good because unlike the EPO, the USPTO does not buy the media and lobby the government, at least not until after service in Office (recall what David Kappos is doing nowadays).
“Journalistic misconduct for the sake of profit seems to have become acceptable.”Last week we wrote more than half a dozen articles about the EPO’s distortion of European media, and to some degree even US media, Indian media and so on. Journalistic misconduct for the sake of profit seems to have become acceptable. This morning the EPO was linking to puff pieces which cost millions of Euros to generate (total waste of budget), such as this article from Germany and shallow pieces, including from French government and French media, some of which was “media partner” of the EPO (it produced puff pieces this year, having self-censored last year). Perhaps when hiring PR agencies to lean on the media isn’t enough one just attempts to almost literally buy the media. There’s nothing in EPO ServRegs against that.
Based on the EPO’s Twitter activity this morning, the EPO is still lobbying for the UPC. No separation between policy and examination? To quote NPI (Nordic Patent): “Michael Fröhlich from EPO discussing some of the practical details of the UPC at PatTech” (last year Grant Philpott was doing something similar).
“Based on the EPO’s Twitter activity this morning, the EPO is still lobbying for the UPC.”The EPO’s mouthpiece, IAM, also joins the lobbying effort. Joff Wild has just said: “From an IP perspective, the immediate consequences of a Leave vote will be on the future of the Unified Patent Court and unitary patent project. Effectively, it kills this off until the UK formally departs from the EU. At IPBC Global last week there was some talk of the UK ratifying the agreement even after having voted to quit, on the basis that it is an inter-governmental treaty not an EU one; the thinking being that once the UK was in ways would be found to keep it there – a classic Euro-fudge, in other words. The more I think about that, though, the less likely a scenario it seems.”
The article is another example of preaching from IAM. Titled “It’s time for IP owners to start giving serious consideration to the possibility of Brexit,” it sounds more like instructions than reporting. One new comment in IP Kat speaks of the misconception that the EPO is an EU body:
Most of European citizens take distance with European organisations/institutions.
Not long ago, we saw a negative vote in The Netherlands.
The referendum about the “Act of the Association Agreement between the European Union and Ukraine” ended with 61% of voters voting against it and 38.2% of voters voting for it.
The true goal of the Dutch referendum was to attack Europe’s unity.
We have to take in account that the press coverage about the EPO scandal was huge in The Netherlands. A few weeks before the referendum, all Dutch citizens watched on television the EPO vice-president not respecting fundamental rights and denigrating the Dutch justice.
Of course, some experts will explain that the EPO is not a European Institution. But the reality is that 99,99% of the EU citizens believe that the European Patent Office is the second biggest European institution of the European Union.
Now in the UK, we see the EU referendum. Recent polls have indicated that the British public are in favour of a withdrawal.
In France, and in other European countries, the citizens perceive more and more the European organisations/institutions as corrupted, arrogant, above the laws. The European Patent Office is the perfect example of such bad behaviour.
I believe that if we want the EU survive, the European organisations/institutions have to do the first step, improve their own image and behave correctly.
Battistelli is rapidly becoming a threat to European unity as a whole. He discredits the European Establishment.
In relation to another comment, one asking whether it’s possible to remove Battistelli, the following three comments were posted:
No, no limits regarding the ServRegs, if the representatives vote in favour, even if against their national laws and obligations, and possibly against the intrest of their country. ATILO may decide it was illegal, but then the changes have already been implemented for about ten years, and in the meantime possibly even strengthened. And mostly ATILO only decides whether the rule adoption procedure has been followed.
And regarding Battistelli: sure he can be voted out of office. Article 11(4) EPC. Article 19(2) the PPI (Protocol on Provileges and Immunities) lays down the rules when the immunity of the President can be waived by the AC. But as we all know, the AC, most governments (including the host country Netherlands), and especially current top management do not desire to apply the provisions of the PPI, although the PPI is an integral part of the EPC (Articles 8 and 164(1) EPC). As such, the whole EPC should not be implemented without the PPI being implemented, and the PPI includes “the organisation shall co-operate at all times with the competent authorities of the Contradting States in order to [...] ensure the observance of police regulations and regulations concerning health, labour inspection, and to prevent any abuse of the priviledges, immunities and facilities provided for in this protocol” (Art. 20(1)PPI).
With all respect, the EPO does not lack legal brains – including externally recruited lawyers and BoA members. The law just doesn’t exist in the EPO because of immunity and the member states concerns not to infringe it. Rightly or wrongly.
I’m surprised Julian Assange and Osama bin laden didn’t camp out at the EPO with it being so untouchable. All that lovely cheap food, saunas, spas, gymnasiums, polo pitches and horses. Have we finally identified the home of Lord Lucan?
Mr. Assange would never be safe in Eponia as the tyrant in chief would soon frame him “armed Nazi” or something to that effect; it’s easier to tackle truth-tellers that way. █
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Summary: Battistelli tolerates neither truth-tellers nor reporters, based on his latest (rumoured) actions, which should definitely demonstrate that he needs to be sacked a fortnight from now
Battistelli is off the rails again. His defamation campaign against a judge must apparently remain a closely-guarded secret, unless he controls the media and issues defamatory pieces just weeks after signing that infamous (and secret) FTI Consulting contract. We covered that last year.
“News from the disciplinary case,” one source told us, “which started today at the EPO: inside sources say that Mr. Battistelli sent a threatening message to the Enlarged Board of Appeal dealing with the case, to the effect that they should not let the public be present during the hearing. The EBA is said to take this very seriously and to have forwarded the president’s threat to the chairman of the Administrative Council.”
“…Mr. Battistelli sent a threatening message to the Enlarged Board of Appeal dealing with the case, to the effect that they should not let the public be present during the hearing.”
–AnonymousAs we noted last week, a very small room was chosen, presumably by intention (to discourage public participation).
Is this finally (hopefully) the last straw that would lead to the sacking of Battistelli in 2 weeks? Remember how he also bullied delegates (Administrative Council). That was last year. How much more of this can Mr. Kongstad tolerate? As Board 28 put it, there is now a "crisis" and the entire Organisation, not just the Office (both are called EPO), risks collapse.
“As Board 28 put it, there is now a “crisis” and the entire Organisation, not just the Office (both are called EPO), risks collapse.”Earlier today, in the early morning in fact, we got the following tidbits of information about the hearing (or so-called ‘trial’): “EPO Boards of Appeal trial started some +/- 40 minutes ago. Start of proceedings against mr x. In room 109, one of the smaller rooms. [so they shifted to an even smaller room, not Room 131 which had been booked] Space for about twenty people. Apparently no press! One blogger present! Word is the Administrative Council is split into three factions. One around the Swiss delegation that wants to try to amend the proposals to get something acceptable. One (unidentified) that wants to reject outright. And the death eaters. Voldemort will not allow amendment, so there are likely to be two by the end. ‘Boards of Appeal trial’ in Munich against a judge, whose ‘crime’ seems to be saying the truth about the EPO…”
The main question at this stage is, has any of those attending brought a recording device and, if so, will that person share the audio with the press/bloggers? If only one blogger is present, then it’ll be easy to witch-hunt/punish that person. This is probably what Battistelli and his goons want. It’s also quite likely the reason a very small room got allocated at the 90th minute, in spite of Room 131 (which is also not that big) being available/reserved.
Eponia is quite a crazy place and Battistelli wishes to make it even crazier.
“Is AMBA next to receive threatening letters?”“Surely,” wrote one commenter this morning or last night, “there must be some limits to what can be added to the service regulations, prohibiting post-service employment without compensation seems dodgy to me. Surely as well, there must be some way to impeach Battistelli or to lift his immunity.”
“Meanwhile at the EPO,” said another comment, “AMBA have produced another polite but scathing critique: http://amba-epo.org/”
We covered this the other day. Is AMBA next to receive threatening letters? Recall last month's letters. █
Update: “President wrote to the board,” we learned, “and said public should not be allowed. But public are in for the afternoon. Public were excluded for the morning.”
So much for fair ‘trial’ (or hearing). What is Battistelli so afraid of? To most people it’s a rhetorical question.
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