It’s like another FIFA but in slow(er) motion
Summary: The patent office which was once known for being the best bar none is rotting under the Frenchman Benoît Battistelli, who made himself and his friends the main clients of the Office
THE European Patent Office (EPO) is trying to distract us all (staff and media) with the Italian earthquake (warning:
epo.org links can be tracked by the EPO), but otherwise it has been largely silent for weeks. It just selfishly tries to maintain that sense of fear and emergency, especially when there are mass shootings (not just in Europe).
Recently, the local media (Süddeutsche Zeitung) published “Paris, London, Haar” which is an article about the EPO for which we need translation/s. Techrights is mentioned in this paragraph which says: “Innerhalb der Behörde wird jedenfalls schon heiß diskutiert, was solch ein Umzug an den Stadtrand mit sich bringen würde. In dem Internet-Blog Techrights lassen sich Mitarbeiter darüber aus, ob in Haar überhaupt die Hotels vorhanden sein würden, um die ausländischen Gäste passend unterzubringen. Über Sicherheitsfragen wird geredet und nicht zuletzt darüber, wie man ins Büro im Münchner Osten kommen kann, das mancher aus Versehen in der Gemeinde Vaterstetten ansiedelt. Mancher aus der betroffenen Abteilung sieht sich gar ins “Exil” nach Haar abgeschoben. Hintergrund ist ein seit Längerem schwelender Machtkampf mit dem Präsidenten des Patentamts, Benoît Battistelli.”
“The EPO’s reputation is so damaged right now (squarely the fault of Team Battistelli) that not much more damage can be done.”It has been said for quite some time that Benoît Battistelli might try to ‘gift’ Paris with some UPC court/s (or Administration). If true, it wouldn’t be the first time he did something nefarious like that. The EPO’s reputation is so damaged right now (squarely the fault of Team Battistelli) that not much more damage can be done. There’s already a crisis and talented people are leaving.
SUEPO mentioned the above in its public pages and so did a comment in IP Kat, which took note of another article shared by SUEPO. Coming from the Journal of Intellectual Property Law and Practice (and composed by Darren Smyth from IP Kat), the article says this:
Recently, the EPO has been beset by problems. A programme of reform has been pushed through which has led to widespread industrial unrest amongst the workforce, and distrust between the examiners and senior management. The problems have been exacerbated by the fact that the only legal recourse for aggrieved EPO employees is the International Labour Organisation, which has an immense backlog (partly caused by the number of EPO grievances) leading to a delay of many years before cases are decided. While there was little dispute that some reform was needed, the pace and character of the reforms, as well as their style of introduction, created a toxic atmosphere, the scale and causes of which were denied by the management, and relatively unrecognized outside of the EPO itself. The relatively generous salaries of EPO examiners led to a lack of sympathy in some quarters. The wider world only noticed the increasingly troubled situation at the EPO when a member of the Boards of Appeal of the EPO was suspended by the President without the prior sanction of the AC, an action that appeared to compromise the judicial independence of the Boards of Appeal. This occurred shortly after a seminal decision of the Enlarged Board of Appeal (EBA), which upheld an objection of suspicion of partiality against its Chairman, on the sole basis of his dual administrative role within the management of the Office. The response of the President, transferring some administrative powers from the EBA Chairman to himself, seemed to make the problem worse rather than better.
The judicial independence of the Boards of Appeal is crucial to the finality of their decisions. If the Boards are not accepted as a judicial instance, a national court could decline to give effect to their judgments on the basis of lack of compliance with European legal norms such as those embodied in Article 6 ECHR (right to fair trial). Before recent events, although national courts had always accepted the judicial character of the Boards, Board members took the view, supported by some commentators, that more autonomy was desirable. However, a proposal to increase the autonomy of the Boards had been shelved by the current administration.
It was clear that action needed to be taken, but new proposals from the President to modify the administrative structure of the Boards seemed to conflate independence with efficiency, and also addressed other matters, such as the management of possible conflicts of interest of Board members, which had never in reality seemed to be a problem. There was more concern with the appearance of independence, such as the physical location of the Boards, than independence itself.
“In the last issue of the Journal of Intellectual Property Law and Practice an editorial has been published under the title Something is rotten in the state of the EPO,” one comment noted. “Eerie, this silence,” one person wrote, “probably there is a lot going on behind the screen?”
One person responded with: “Or the French are on holiday?”
Well, we have a lot of material we intend to publish this autumn. In the mean time, if someone can produce a translation of the Süddeutsche Zeitung article for us, this would be greatly appreciated (and of course published for the record). █
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A reminder of why the EPO‘s boards of appeal should be broadened, not squashed/scuttled/exiled
Summary: With help from the Patent Trial and Appeal Board (PTAB) — not just patent courts — software patents drop like flies by the thousands
TECHRIGHTS is gratified to see a decade of activism and long-sought reforms coming to fruition. A decade ago we could probably be called “crazy” for suggesting that software patents would one day be kaput even at the USPTO. But it’s actually happening and proponents of software patents are panicking (even writing “ALICE” in all CAPS or resorting to very old articles that are somehow supportive of their argument). No longer can they make a living by taxing software developers like yours truly and millions of people all around the world. Whatever one’s opinion might be on software patents, statistics show very clearly that the overwhelming majority of software developers reject them outright.
“Whatever one’s opinion might be on software patents, statistics show very clearly that the overwhelming majority of software developers reject them outright.”“Reading the Federal Circuit’s tea leaves on software patentability” is a new article whose summary introduces Alice: “In June 2014, the U.S. Supreme Court issued its Alice Corp. v. CLS Bank decision, finding that a computer-implemented, electronic escrow service was a non-patentable abstract idea.”
From the body of the article: “Until two years ago, software was generally patentable in the United States. Section 101 of the Patent Act governs what subject matter is patent eligible, excluding among other things abstract ideas from being patented.
“But in June 2014, the U.S. Supreme Court issued its Alice Corp. v. CLS Bank decision, finding that a computer-implemented, electronic escrow service was a non-patentable abstract idea. The Court held that that merely requiring “generic computer implementation” failed to transform an otherwise abstract idea into a patent-eligible invention.”
“We previously wrote about several Android applications that got axed (wiped off the face of the Earth) because of software patents.”Well, the Court of Appeals for the Federal Circuit (CAFC) has had to obey what the highest possible court said, even begrudgingly. That’s good for software developers, not necessarily FOSS developers but all developers in every country. “If you’re curious,” wrote a person on this new article about FOSS in Android, for lack of features “the reason is software patents.”
We previously wrote about several Android applications that got axed (wiped off the face of the Earth) because of software patents. Once they received a lawsuit threat, developers chose an immediate retreat. How does that promote/advance science and technology? It actually accomplishes the very opposite.
Deciding on matters like software patentability without even knowing how programming works and how computers work is outrageous, but it happens all the time. It has in fact become the norm. The following new article, which is behind a paywall, is titled “Patent Judges Should Be Scientists, Too” (Wall Street Journal). It says: “Patents are the lifeblood of biotechnology, the force that motivates companies to develop innovative medical treatments and bring them to market. The trouble is that these patents must be enforced in a court system that isn’t set up to adjudicate highly technical matters—resulting in rulings that seem arbitrary or even scientifically suspect.”
“They can discern or tell apart innovation from junk.”That is often true and applicable when it comes to copyrights in relation to code (see for example Oracle’s case against Google). At PTAB, by contrast, the chiefs are scientists, so no wonder they toss patents in the trash all the time. They can discern or tell apart innovation from junk.
MIP has a new article about PTAB’s chief judge Ruschke. Here is the part which is not behind a paywall:
In a call with reporters, the Patent Trial and Appeal Board chief judge said the number of judges now is enough, praised the impact of submitting expert declarations with preliminary responses, and said the Board was open to going beyond the 12-month statutory deadline for issuing final written decisions
David Ruschke, who took over as chief judge of the Patent Trial and Appeal Board (PTAB) in May, is satisfied with both the number of quality of judges he has at the Board. Ruschke previously managed the intellectual property portfolio of Medtronic’s CSH unit.
“The number of our judges that we have now at 270 is essentially where we are going to be at going forward,” he told reporters on a conference call. “That groups of judges is going to be providing I think a wonderful basis for the PTAB going forward.”
PTAB has been a leading enforcer of Alice (it’s a lot quicker than clueless, technology-illiterate courts) and patent lawyers hate it. They call it a “death squad”. Here is a patent lawyers’ advocacy site, IAM, saying what most recently happened at PTAB: “For the third time in as many post-grant reviews decided by the Patent Trial and Appeal Board (PTAB), the PTAB has declared a patent to be invalid based on the legal framework established in the 2014 Supreme Court decision in Alice Corporation Pty Ltd v CLS Bank International.”
Looking at another patent lawyers’ site, people are visibly upset at Alice. One of them wrote:
You must live in a different universe. The Supreme Court has been down right hostile to the CAFC.
One only has to read the fractured In re Alice decision (prior to the Supreme Court rewriting of law), to see what a mess the Supreme Court has made in its pursuit of power.
These are “captive patent courts,” Benjamin Henrion responded. Here is another comment:
The following link also supports the idea of tensions between the Supreme Court and Federal Circuit: http://www.abajournal.com/magazine/article/tug_of_war_over_interpretations_of_patent_law_continues_between_federal
They seem to be begging for some scandal that can somehow bring software patents back to life. Here is what Patently-O wrote about CAFC a few days ago: “Earlier this year, the Federal Circuit in a 2-1 panel decision in In re Queen’s University held there was a privilege over communications between a patent agent and client with respect to patent prosecution. That decision is here. I gave a talk earlier this year about how I think this case creates some risks even if it is followed, and the powerpoint for that talk is here.”
“In the above cases, the Federal Circuit does not deal with software patents, but when/if it does, then over 90% of the time it will throw them away.”PowerPoint is Microsoft lock-in, but in another new Patently-O post CAFC got mentioned in relation to OtterBox. To quote: “A substantial portion of the Federal Circuit’s appellate involve customs disputes stemming from the Court of International Trade (CIT). [...] In interpreting the statute, the Federal Circuit has taken the approach of construing HTSUS terms according to “common and commercial meanings, which we presume are the same.” Although not required by the statute, the court has also taken to relying upon the explanatory notes in the World Customs Organization tariff schedule to aid its interpretation. [...] In siding with OtterBox, the federal circuit stepped through Heading 4202 and found, inter alia, that the OtterBox cases would only fit as “similar containers,” but that they were not really similar. The important distinction is that OtterBox cases are designed so that the device is fully functional while in the case – that is not true for any of the cases listed in the heading.”
In the above cases, the Federal Circuit does not deal with software patents, but when/if it does, then over 90% of the time it will throw them away. This clearly bothers the software patents proponents, who as usual resort to BASCOM and Enfish (the few and rare exceptions]. Alluding to BASCOM and Section 101, Watchtroll writes somewhat of a rant. It starts innocently enough. “Last week the Patent Public Advisory Committee (PPAC) held its quarterly meeting at the United States Patent and Trademark Office (USPTO). These quarterly meetings give those on PPAC an opportunity to be brought up to speed about what is going on inside the USPTO, and to ask questions of various senior officials,” Watchtroll writes. But then, this Watchtroll who stoops very low in his attacks on PTAB ended up concluding with: “Could the Patent Office address this differently? Yes. Is the way Patent Office senior officials are addressing 101 in the guidance incorrect or outside of the envelope of reasonableness? No. Is the way examiners are applying 101 in keeping with the guidance? Absolutely not. Is this one big mess? You bet!”
“Software patents are a dying breed of patents.”So, doing the right thing is “one big mess”. Right…
The patent microcosm (mostly lawyers) just keeps lobbying the USPTO in order to make it their eternal vassal on matters such as patent scope. They just try to undermine Alice rather than accept the decision and move on. They even got Kappos in lobbying mode, utilising his connections (he is the former Director of the USPTO) to throw away Alice and attempt to restore software patenting. Another new example of this reluctance to accept the new formality can be seen in this tweet that says “Drafting claims: preambles? Dangerous. Just analyzed BASCOM: preamble may establish what a claim is “directed to” (abstract idea) for Alice.”
No matter how artful they try to be in interpreting Alice, the statistics speak for themselves, both at PTAB and at CAFC. Software patents are a dying breed of patents. Sooner or later, once challenged sufficiently, all ‘pure’ software patents turn out to be abstract. █
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Has the U.S. International Trade Commission finally become less trigged-happy when it comes to embargoes?
By Source (WP:NFCC#4), Fair use of copyrighted material in the context of Sound Blaster
Summary: Some good news from the U.S. International Trade Commission (ITC), which may have put an end to Creative’s new war on Android (using old patents)
OVER THE years we have not had much (or anything) good to say about the ITC. It seemed nationalistic and unreasonable. Based on allegation or suspicion alone it could suspend operations or businesses in the United States, especially when these were foreign (non-US).
Earlier this summer we wrote about Creative Technology, based in Singapore, going after Android OEMs with massive patent demands, having been ‘endorsed’ by Apple payments. Well, it turns out Apple should never have paid them in the first place. Their patents are junk.
“When once-famous brands like Creative and BlackBerry become nothing but a pile of patents there’s a lot of trouble for FOSS such as Android, which is built on top of Linux. ““First spotted by Law360,” an Apple advocacy site wrote, “Administrative Law Judge David Shaw of the U.S. Patent and Trade Office (USPTO) has ruled that Creative Technology’s patent that addresses music library navigation and sorting in the iPod, and now iOS overall, was too abstract to be eligible for a patent.”
It also said: “A patent that Creative Technologies used in the beginning of the century against the iPod forcing a $100 million payout by Apple has been invalidated, saving the rest of the smartphone industry from costly settlements and protracted legal battles.”
According to this, “Apple paid Creative a single license fee of $100 million to use Creative’s software interface patent,” which is certainly a lot of money, probably enough to convince Creative to prey on Android OEMs that can barely afford it (and might prefer to settle out of court). The original report said “U.S. International Trade Commission judge handed smartphone makers a win Friday, ruling that a media player patent that netted a Singapore software company a $100 million settlement with Apple is invalid under Alice, in what appears to be the first time an ITC investigation has been terminated during its early review program.”
This is great news and a huge relief to some Android OEMs. On the face of it, ITC made a determination on another case, as reported by MIP. “In a first for its 100-day pilot programme, the ITC has invalidated a patent involved in a $100m iPod-related settlement a decade ago. In a separate ruling, the commission has ruled that Fitbit did not misappropriate Jawbone’ trade secrets,” says the summary. We wrote a great deal about the latter case too. It’s now a two-way battle. They would both be better off just focusing on development, not bickering over patents. The latter case was also mentioned in corporate media this week (albeit very briefly). To quote CNBC: “A U.S. International Trade Commission ruled Fitbit did not steal rival Jawbone’s trade secrets. Jawbone accused Fitbit of infringing six patents and luring away employees to with confidential data about Jawbone’s business.”
The behaviour of Creative without a doubt was becoming a problem for Android and by extension a threat to Linux, so the former of the two aforementioned cases is important. BlackBerry’s transition into ‘patent troll’ was also mentioned here recently and it’s receiving unwanted media attention from a trolls expert. “BlackBerry’s new round of patent lawsuits targets BLU—and Android,” says the headline. Here is an except:
BlackBerry has filed three patent infringement lawsuits in as many weeks. The struggling phone company’s offensive barrage began with a case filed against IP telephony company Avaya on July 27. Last week, BlackBerry filed two lawsuits against budget cell phone maker BLU’s products, alleging that BLU infringes a whopping 15 patents.
The dual lawsuits against BLU suggest that BlackBerry’s new turn toward patent licensing isn’t going to be a one-off event, but rather a more extended campaign. In a May earnings call, BlackBerry CEO John Chen told investors he’s in a “patent licensing mode” and is hoping to monetize his company’s 38,000 patents.
The new lawsuits also suggest that BlackBerry has patents it believes describe Android features, so don’t be surprised if more Android phones are in the crosshairs soon. One of the two cases filed last week accuses user-interface features that are more about Android than they are about BLU. A small manufacturer like BLU could make for a good “test case” against a maker of Android phones.
When once-famous brands like Creative and BlackBerry become nothing but a pile of patents there’s a lot of trouble for FOSS such as Android, which is built on top of Linux. Software patents need to end and patent sanity assured. Customers only lose when products are intentionally made more primitive due to fear of litigation. A lot of them are incredibly overpriced, too. █
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Summary: A parade of misinformation as seen in Indian (but English-speaking) press this week as questions about patentability of software resurface
FOREIGN giants which operate in India (companies like IBM and Microsoft) just can’t help trying to repeatedly introduce software patents in India, aided by front groups and lawyers of theirs. Why on Earth is NASSCOM, which is connected to Bill Gates [1, 2, 3], participating in a debate in India regarding software patents or even just software? “NEW rules designed to boost India’s software industry will open for public consultation in a matter of days, say sources close to the matter,” said one new article among several this week (e.g. [1, 2). These mentioned software patents as well and some correctly noted that “this opens them [software companies] to patent trolls. Dealing with patent trolls here as India doesn’t have software patents.” The English here is problematic and then it says this: “So the conundrum for startups is whether to stay in India or not.”
“India is constantly being lobbied by big businesses that are not even Indian.”No, startups would be wasting their time pursuing patents on software. In practice, heavy-pocketed corporations from abroad want software patents. Indian startups do not. But don’t count on corporate media like the above to accurately represent the desires and needs of ordinary Indians. Neither should anyone trust NASSCOM, one among several Indian agencies that act like outposts and brought India nothing but EDGI.
India is constantly being lobbied by big businesses that are not even Indian. Watch what Microsoft has done to the Modi government earlier this year and last year. It shot down a Free/Open Source software policy. █
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