11.27.16

Director Lee’s USPTO Managed to Drain the Swamp Filled by David Kappos and His Colleagues, But Trump Will Likely Dismiss Her Soon

Posted in America, Patents at 6:06 pm by Dr. Roy Schestowitz

Progress can be halted and regression soon follow for oligarchy’s sake

David Kappos as lobbyist
Source: David Kappos interview with Intellectual Property Magazine (2010), modified by us

Summary: Just as the USPTO begins to get its act together and limit patent scope based on reasonably liberal SCOTUS Justices there are many reports suggesting that the Director of the USPTO will be driven out, courtesy of the Trump presidency that will also perturb SCTOUS

THE USPTO has a longstanding patent quality problem, albeit with Alice and few other top-level decisions (Mayo for instance) things are improving somewhat.

The other day we found Jaguar Land Rover pursuing patents on facial recognition, which basically means software patents. I have peer-reviewed papers for international journals about this subject; no doubt this is about software patents — possibly a thing that UK-IPO would reject outright. Here is what Britain’s worst paper wrote about it:

Motorists could soon unlock the doors of their car simply by walking up to it and taking a selfie.

Jaguar Land Rover is developing technology that uses facial recognition and gait analysis to detect when owners of its vehicles approach, to open the doors for them.

Details have been revealed in a recently published patent application by Jaguar Land Rover, but it is unclear when the technology might become available.

Nothing innovative here and also it’s about software. Shouldn’t the post-Alice guidelines* at the USPTO disqualify this? How about this other new patent application? It’s one which TechDirt introduced the other day with the headline “Sony Wants To Patent A System For Scoring Journalists’ ‘Veracity’,” noting that it’s too obvious for a patent. To quote directly: “Like anyone wouldn’t have come up with such a system if there wasn’t patent protections?”

“Nothing innovative here and also it’s about software.”Let’s face it, David Kappos has made more of a farce out of this system, having worked for IBM, a big proponent of software patents. Is the leadership of the USPTO ‘on loan’ (to large corporations)? Kappos now works as a software patents lobbyist and IBM is one of his clients. It disgraces the whole patent office on ethical grounds and nobody seems to mind.

Looking at some scholarly figures from Patently-O (published this past week, probably for some paper of his), it seems evident that Kappos did a lot of damage to patent quality. As Patently-O put it: “You’ll note the discontinuous nature of the average-PTA chart. The break-point in early 2010 shows the impact of the Federal Circuit’s Wyeth decision holding that the PTO had been under-calculating the adjustment.”

That’s also the Kappos impact. Here is another new graph. This graph, in our assessment, may simply mean that patent law firms broaden their applications’ “template” (notably with citations) in order to patent some more junk and make it seem credible, well-researched. To quote: “The number of references cited per patent continues to rise, albeit more slowly in recent years. For patents issued in 2016, the average patent includes more than 50 cited references. In my view – this is great, although it would certainly help if the examiner was given some clue as to why the reference is deemed relevant or what portion of the reference is relevant. (If an examiner has a question, they can ask the applicant). A not-surprising facet of the growth in references-cited is that almost all of the growth is in applicant-cited. Compared with 10 years ago, applicants cite 26 more references per patent (on average) while examiners cite only 1.5 more per patent. As you might also note from the difference between median and average – the citation distribution is highly skewed. Example: If we take the top-5% of patents from 2016 (those with the most references cited) – they include 35% of all of the cited references. My experience with this skew is that patent applicants considered more valuable by their owners are more likely to submit more prior art references.”

“Let’s face it, David Kappos has made more of a farce out of this system, having worked for IBM, a big proponent of software patents.”There is another new graph at Patently-O and the way we interpret it is quite simple: Quality of patents at the USPTO (or complexity of patents) is declining. Patent examiners don’t seem to mind. The more, the merrier.

One last post from Patently-O alludes to Donald Trump and notes that the majority of patents in the US are not even from the US. The part about ITC (where the I should stand for US, not “international”) says: “In an email, Prof. Mark Lemley suggests that we should look for “a rise in the importance of the ITC as we focus on blocking imports.” The ITC’s primary goal is to protect U.S. industries against unfair international trade. Lemley writes: “One interesting question is whether Trump will move the ITC’s jurisdiction back to its roots by insisting on a real domestic industry requirement.” Additional ITC movement could push-back against U.S. patents that are owned by foreign nations or unduly subsidized by a foreign nation.”

“He’ll turn the USPTO into a Great Swamp Again.”We criticised the ITC many times. It’s just an apparatus of US protectionism, so the I in the acronym is not suitable, like the W in WTO. Another article about Trump’s impact, this time from MIP, says: “A panel on the US election at the IP Dealmakers Forum speculated that the Trump administration may take a long time to appoint a USPTO director and the Republican leadership that worked on patent bills in the previous Congress will again push for reform” (we already noted that USPTO Director Lee may be on her way out).

We expect Trump to make the US patent system even worse, as corporate interests tend to be prioritised over people, based on his recent appointments. He’ll turn the USPTO into a Great Swamp Again. As for SCOTUS, expect more Conservative Justices there (not just a Scalia replacement), complete with preference for large corporations like Trump’s.
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* According to this new placement in IAM, the “USPTO seeks public comment regarding subject-matter eligibility” (covered here before). To quote: “On October 17 2016 the US Patent and Trademark Office (USPTO) announced that two roundtables will be held in the coming months to discuss patentable subject matter eligibility under 35 USC § 101. The roundtables have been set up to facilitate public comment and discussion regarding the USPTO’s current guidance on subject-matter eligibility as well as case law arising from interpretation of the requirements under 35 USC § 101.”

Danger of Letting a Bunch of Patent Law Firms Attempt to Hijack the European Patent System With UPC

Posted in Deception, Europe, Patents at 5:11 pm by Dr. Roy Schestowitz

Battistelli digs his own UPC grave

Summary: Team UPC, a collective of self-serving patent lawyers who produce nothing of substance, hopes that some time tomorrow the UPC will miraculously be revived in Britain even though it’s extremely unlikely

THE Unitary Patent (or UPC) will quite likely have its death reaffirmed tomorrow. Don’t expect Team UPC to admit this though. The UPC-centric bloggers from Bristows will carry on (now there’s “EQE roundup”) and so will the bloggers at Kluwer Patent Blog. We kindly remind readers that these people have a track record of even advertising false jobs, so don’t believe Team UPC and the EPO (chronic liars). It’s their wallet/agenda that speaks.

Thankfully for us, Battistelli cannot quite ‘buy’ the vote (or bribe) the UK for UPC ratification (it would require too big a gift), so the UPC is going nowhere here. Kluwer Patent Blog, a huge proponent of the UPC, cited Bristows (an integral British part of Team UPC) to come up with a bizarre headline that says “Announcement expected about participation UK in Unitary Patent and Unified Patent Court” (as if they already know in advance what will happen). To quote:

According to a Bristows report, ‘the UK Minister of State for Energy and Intellectual Property, Baroness Neville-Rolfe, will state how the UK intends to proceed regarding its participation (or not) in the system’.

Since the Brexit vote, the future of the UP system has been clouded in uncertainty. Ratification by the UK of the UPC Agreement is mandatory for the launch of the system, but after the Brexit vote it seemed this requirement could kill the UP, as it wasn’t sure at all the UK would still be prepared to remain in the new patent system.

There are no signs that Lucy Neville-Rolfe will override British democracy, so we don’t expect much to happen. As for Kluwer Patent Blog, watch the headline it produced two days earlier (merely a quote), seemingly giving instructions from self-serving firms in Italy so as to save the UPC.

Truth be said, the UPC is in a limbo or in a death spiral/crawl. As we saw in TTIP and TPP, nobody in the “inner circles” wants to admit the death until it’s finalised and truly irreversible. Unless it’s redesigned completely, it has no chance. “EU Software Patents future will be decided tomorrow,” Benjamin Henrion wrote, “in the EU Council with the fate of the Unitary Patent,” but nothing will change. The UPC (as we know it, after several other names) is dead and endless lobbying by Team UPC has changed nothing at all, it just exposed Team UPC’s crudeness and disdain for democracy.

“More Brexit foot shooting,” one person wrote, “as UK now excludes itself from EU wide patent court due to start work in London. Bad news for patent lawyers…”

Henrion asked, “any link to an official source?”

This seems to contradict the optimism from Bristows, who have spread falsehoods (attempting to spread self-fulfilling prophecies) for at least a year. “A big day for the European patent systems,” wrote an anonymous EPO observer, but as we wrote over the weekend, we expect nothing substantial to change. The “UK [is] set to announce its UPC position tomorrow,” IAM (presumably Joff Wild) wrote. “We have worked through a few scenarios…”

“It seems that the future of the #upc #unitarypatent will be decided on Monday,” another person wrote, but IAM responded with: “This is most likely, but don’t rule out a delayed ratification after safeguards are established for UK’s post-Brexit position.”

Don’t trust IAM so much. Remember it organised pro-UPC propaganda events (even abroad) with support from the EPO and funding from the EPO's PR firm. Also, IAM is still not good at disclosures* and there is another such event coming soon.

Shooting down the UPC is not “foot shooting” as the above put it, unless of course the British economy boils down to just a handful of greedy patent lawyers seeking to maximise profit by patent battles. Right now, as before, some patent law firms in Italy hope to snatch this business and according to this, “A. M. Pizzoli [was] talking about #UnitaryPatent at #FICPI Sweden meeting: Swedes still optimistic in spite of Brexit-related issues” (by “Swedes” he means some Swedish patent lawyers, not Swedes at large).

The UPC would obviously sacrifice patent quality, bring patent trolls from the US patent system, and probably serve as a weapon against the EPO‘s Boards of Appeal, especially judges. No doubt they're essential, but they are crushed by Battistelli. There were a couple of articles from patent law firms in the media this past week, both of which spoke about the Boards of Appeal of the EPO. Here they are:

1. Exceptions to reformatio in peius at the EPO

In T 2129/14, the EPO Boards of Appeal applied the exception to the prohibition of reformatio in peius established in G 1/99 to allow the patentee, as respondent, to make an amendment which extended the scope of protection of the patent in question compared to the scope of protection maintained by the Opposition Division.

The prohibition of reformatio in peius set out in G 9/92 is the principle that in appeal proceedings a decision must not be reached which puts a sole appellant in a worse position than if they had not appealed. Thus, where a patent is maintained in amended form by an Opposition Division and only the opponent appeals the decision, the patentee, as respondent, cannot amend the claims such that the scope of the patent after appeal proceedings is broader than after opposition proceedings.

2. Admissibility at the EPO’s Boards of Appeal – a change in practice?

The practice of the Boards of Appeal of the European Patent Office (EPO) in recent years (following decision T 1067/08 (High-activity phytase/BASF); and discussed in detail in the Case Law of the Boards of Appeal, 7th Edition IV.C.1.3.3) has been not to review discretionary decisions made during first-instance proceedings. By way of example, if an Opposition Division has taken a decision not to admit a document (eg new evidence or a new claim request), the Board of Appeal will generally not overrule that decision if it concludes that the Opposition Division had the right to exercise its discretion.

The following too got published: EPO Practice Infringement of Second Medical Use Claims in Europe

It is possible to obtain a patent from the European Patent Office (EPO) based on a new medical use of a known drug. The claim can be directed to using the drug to treat a different disease, or using the drug in a new method of treatment, such as a new route of administration or a new dosage. The EPO has wellestablished requirements for the patentability of these so-called “second medical use” claims, but it does not consider issues of patent infringement. Infringement in Europe is currently assessed on a country-bycountry basis by individual national courts.

Although these second medical use claims have been available in Europe since the 1980s, until recently it has been unclear how the manufacture and sale of a drug for a patented use can be distinguished in practice from the manufacture and sale of the same drug for a non-patented use. The English Court of Appeal has now clarified how infringement of such second medical use claims should be assessed in the United Kingdom.

Our main concern, as we noted here very recently, is that patent scope and thus patent quality at the EPO is compromised for the sake of patent maximalism — the same kind of thing that Team UPC strives to introduce. One might even dub it patent radicalism, not maximalism.
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* To give one new example of missing disclosures from IAM, watch what it said about patent troll MOSAID, a.k.a. “Conversant” (after the rename that helped dodge negative publicity), just a few days ago. Nowhere does the article mention that Conversant paid IAM. Instead it’s all just promotional language, e.g.: “Conversant IP Management has acquired a patent portfolio from Panasonic, according to an assignment recorded with the USPTO earlier this week. The transfer represents a new foray into the Japanese patent marketplace for the Canadian NPE after its role in managing the Elpida portfolio ceased earlier this year.”

Links 27/11/2016: Linux 4.8.11, Linux 4.4.35, and Distrowatch Rankings

Posted in News Roundup at 4:08 pm by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

Free Software/Open Source

  • Riot releases end-to-end encryption: get ready to chat securely!

    End-to-end encryption gives users true privacy, preventing anyone else from eavesdropping on conversations — even the very communications services they’re using. This is incredibly important for a decentralised ecosystem like Matrix on which Riot is built, where data can span across many different servers, and users should not have to trust any of those servers.

    End-to-end encryption is also a real differentiating feature from most other popular collaboration apps whose business models fundamentally rely on being able to read, analyse and profile your conversations.

  • Progress update for AtCore.

    A few days ago we hit a milestone in our development of AtCore. We are now able to properly install the libary for general use. Not only is installing a necessary for a libary that you plan to use within other stuff it also means that we can now focus our attention mostly on Atelier. We have now entered that magical time in development when the real world usage begins to drive its development. Thanks to everyone efforts we are almost ready for the next stage. Patrick has been doing reviews on every pull request. While he has been unable to help with as many commits as he would have liked to. His advice and direction in his reviews has been really helpful and has kept our style and code quality at a high level. Tomaz has been busy fixing up AtCore to be a proper KF5 libary with all the cmake deployment parts to go along with it. Most all of the cmake stuff has been written by Tomaz. Lays has been working on Atelier setup and getting all the non AtCore parts working. Thanks to her effort we are now able to use Atcore from Atelier!

    As for me i have been adding stuff to AtCore. Since our last progress update a few new things have been added. Emergency Stop this simply allows you to stop the printer using the emergency stop code.It also cleans up any the command queue. Pause/Resume when paused we store the current location of the head that that way after resume you can move your print head out of the way to access the model.Pause supports a comma seperated string of commands to be sent after pause. For my printer i use “G91,G0 Z1,G90,G1 X0 Y195″ when pause this move my head up 1 mm and then pushes my model out toward the front fo the machine. This is useful if you want to maybe put a nut into printed part or change filament durring print and even to corrrect print defects while printing. We have also started to do lay ground work for more status info being picked out from the serial chatter. Setting of the firmware plugin can be done durring connect to force a specific plugin. A progress bar for printing progress. Some cleanup for autodetection of the plugin. There is still things to add to AtCore but it should provide enough for most use cases already!

  • Web Browsers

    • Mozilla

      • NoScript is multi-process compatible now

        NoScript, the one must have add-on for Firefox if you ask me, has received an update recently that introduces full multi-process compatibility (e10s).

      • Firefox will only support WebExtensions by the end of 2017

        Mozilla announced a far reaching change coming to the organization’s Firefox web browser in late 2017.

        The organization plans to cut support of all extension technologies but the rather new WebExtensions when Firefox 57 Stable is released.

  • Oracle/Java/LibreOffice

  • Funding

    • Money in Open Source, and How Needle & Thread Will Be Profitable

      Money is one of the most difficult subjects to talk about when it comes to open source projects. It’s a basic fundamental truth that all open source projects need money to operate, and while open source software provides a plethora of benefits, I don’t think any reasonable person would tell you that a steady stream of income is one of them. Lots of people and organizations have presented different ideas and undertaken different experiments to try and maximize the amount of money coming in, while at the same time remaining open, fair, and accessible.

  • BSD

    • DragonFlyBSD Works On EFI Runtime ABI Support, But Still Experimental

      The next release of DragonFlyBSD will feature better EFI support.

      DragonFly lead developer Matthew Dillon has landed EFI runtime ABI support that was ported over from the FreeBSD code-base.

      This EFI runtime ABI support allows for querying and setting the time, scanning EFI BIOS variables, and more. This code was ported from FreeBSD but with various changes for DragonFlyBSD’s different kernel interfaces.

  • FSF/FSFE/GNU/SFLC

    • Tear the wrapping paper off the 2016 Ethical Tech Giving Guide

      Electronics are popular gifts for the holidays, but people often overlook the restrictions that manufacturers slip under the wrapping paper. From surveillance to harsh rules about copying and sharing, some gifts take more than they give.

      The good news is that there are ethical companies making better devices that your loved ones can enjoy with freedom and privacy. Today, we’re launching the 2016 Giving Guide, your key to smarter and more ethical tech gifts.

  • Openness/Sharing/Collaboration

  • Programming/Development

    • [Older] Samsung Joins the Eclipse Foundation

      We are proud to announce that Samsung has joined the Eclipse Foundation. The Eclipse Foundation is the leading open source organization whose projects are focused on building an open development platform comprised of extensible frameworks, tools, and runtimes for building, deploying, and managing software across the lifecycle. In tandem with Eclipse’s mission, Samsung provides an open and interoperable platform for IoT development through the Samsung ARTIK Smart IoT Platform.

    • How To Start Learning A Programming Language

      Have you ever wonder how everything works? From Smartphones Operating Systems to even each and every Linux Distro and every Operating System created by Microsoft and Apple. How does it play my favorite music? How does it save my files to the cloud? How does actually everything works? All this questions are answered with one big bolded and all capital “PROGRAMMING”.

Leftovers

  • Science

    • Mars Ice Deposit Holds as Much Water as Lake Superior

      rozen beneath a region of cracked and pitted plains on Mars lies about as much water as what’s in Lake Superior, largest of the Great Lakes, researchers using NASA’s Mars Reconnaissance Orbiter have determined.

      Scientists examined part of Mars’ Utopia Planitia region, in the mid-northern latitudes, with the orbiter’s ground-penetrating Shallow Radar (SHARAD) instrument. Analyses of data from more than 600 overhead passes with the onboard radar instrument reveal a deposit more extensive in area than the state of New Mexico. The deposit ranges in thickness from about 260 feet (80 meters) to about 560 feet (170 meters), with a composition that’s 50 to 85 percent water ice, mixed with dust or larger rocky particles.

      At the latitude of this deposit — about halfway from the equator to the pole — water ice cannot persist on the surface of Mars today. It sublimes into water vapor in the planet’s thin, dry atmosphere. The Utopia deposit is shielded from the atmosphere by a soil covering estimated to be about 3 to 33 feet (1 to 10 meters) thick.

      “This deposit probably formed as snowfall accumulating into an ice sheet mixed with dust during a period in Mars history when the planet’s axis was more tilted than it is today,” said Cassie Stuurman of the Institute for Geophysics at the University of Texas, Austin. She is the lead author of a report in the journal Geophysical Research Letters.

  • Hardware

    • AMD may launch next-generation Zen processors on January 17

      The latest rumor surrounding AMD’s upcoming and much-hyped Zen architecture has it slated for a launch on January 17. Purportedly the first chips to be released will be high-end desktop components, with their initial unveiling coming a week earlier at the CES event in Las Vegas.

  • Security

    • Azure bug bounty Pwning Red Hat Enterprise Linux

      Acquired administrator level access to all of the Microsoft Azure managed Red Hat Update Infrastructure that supplies all the packages for all Red Hat Enterprise Linux instances booted from the Azure marketplace.

    • pledge(2) … or, how I learned to love web application sandboxing

      I use application-level sandboxing a lot because I make mistakes a lot; and when writing web applications, the price of making mistakes is very dear. In the early 2000s, that meant using systrace(4) on OpenBSD and NetBSD. Then it was seccomp(2) (followed by libseccomp(3)) on Linux. Then there was capsicum(4) on FreeBSD and sandbox_init(3) on Mac OS X.

    • [Older] Why is Apache Vulnerable by Default?

      Apache is the most popular web server on Earth, with a market share of 46.4% — well above Nginx (21.8%) and Microsoft IIS (9.8%). Thanks to Linux package managers like Yum and APT you can install and get it up and running in minutes. The core installation even features powerful modules for URL rewriting, user authentication, and more.

    • [Re]discovering/correcting a ThinkPad supervisor password crack

      Don’t believe it? I didn’t either; it never worked for me. It turns out that’s only because the contemporary instructions for how to do it are wrong, or rather, they’ve mutated into a form that only works on some machines. As originally discovered, the hack reliably unlocks any* ThinkPad up to and including the Ivy Bridge models.

  • Finance

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