Producing nothing, insulting everybody
Summary: A look at some of the latest spin and the latest shaming courtesy of the patent microcosm, which behaves so poorly that one has to wonder if its objective is to alienate everyone
THE patent reform in the US (AIA, especially after Alice) brought us the blessing known as PTAB, which is responsible for the immediate and permanent elimination of many software patents and the reduction in litigation. It lowered confidence in even more of these software patents (potentially hundreds of thousands of patents).
“”Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too?”PTAB continues to scare people who made a living from software patents (not software, just patents). With his habitual insults directed at PTAB, Gene Quinn (Watchtroll) continues to fling criticisms at PTAB, bemoaning the latest decision which he summarises with the word “idiotic” in the image (and IBM’s patent chief actually boosts these people, who also attack judges! See the image at the top!).
“Idiotic”, “impotence”… what next? Will Watchtroll accuse judges and PTAB of rape and pedophilia too? Frankly, these people are a lot more rude than anything we have ever seen and some of those people actually advertise themselves as professionals. “If a machine is patent ineligible bc it is an abstract idea,” Watchtroll wrote in Twitter, “no point in keeping powder dry. The 101 fight is now.”
He wants a “fight”.
“Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works.”Well, the Section 101 fight is over. The patent microcosm lost. Most software patents are dying and this is good because, as Benjamin Henrion put it in his reply, “patents also destroyed software development.”
Telling Watchtroll about software development is an exercise in futility; he doesn’t even know how software works. I debated this in length with him and then he chickened out, blocking me in Twitter.
Watchtroll (a front for the patent microcosm, not just one person) is now lobbying Trump to makes Patent Chaos Again (as expected, with lots more of this lobbying to come).
“These have included enabling the PTO to attack patent validity in a second window,” says the article, “attacking classes of inventions such as software and medical diagnostics…”
“PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.”Nobody is “attacking” and there is no “fight”. As we pointed out here before, the attorney known as Patent Buddy uses words like “survive”, “kill” etc. rather than use terms that don’t pertain to war. The people actually call PTAB a “death squad!” Picture that for a connotation.
Here is Patent Buddy saying about the above case: “In the MRI-101 Invalidation Decision, the PTAB Reversed the Examiner finding eligibility under 103, but not 101.”
Examiners at USPTO have historically been rewarded to just award lots of patents, irrespective of quality or prior art (which can take a long time to assemble and study). PTAB is a lot more professional because these financial incentives hardly exist, which makes their staff more objective.
Earlier this week we found this lawyers’ site claiming that “[t]he tide may be turning in the Section 101 landscape and it is making waves in the patent practice area.” No, it’s not. The patent microcosm lives in wonderland and only pays attention to a few CAFC decisions that suit their agenda. The article says that CAFC’s “latest rulings on the issue—Enfish v. Microsoft Corp., BASCOM Global Internet Services v. AT&T Mobility, and McRO v. Bandai Namco Games America—possibly signal a new direction for patent eligibility in a post-Alice era. On the damages front, the U.S. Supreme Court grabbed headlines with its highly anticipated ruling in Samsung Electronics v. Apple, the first design patent case to be examined by the Court in over a century. Our panel of experts discussed these issues as well as patent trends on the horizon in 2017.”
“There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”.”We actually debunked this just recently (December 27th), in relation to similar claims about CAFC cases. Less than a handful of cases (less than one hand’s fingers) don’t change years of patent invalidations, including by Judge Mayer, whom Watchtroll is insulting (see above again).
CAFC is soon going to decide whether challenging low-quality USPTO patents (through PTAB) is acceptable, says MIP, noting about a particular case that CAFC “has granted en banc rehearing in Wi-Fi One v Broadcom. The court will consider whether judicial review is available for a patent owner to challenge the USPTO’s determination that the petitioner satisfied the timeliness requirement governing the filing of IPR petitions” (these are the petitions that typically initiate invalidation by PTAB).
Regarding this new article from lawyers’ media, one person wrote, “CAFC vs. PTAB decision discrepancies: Who wins?”
There’s no “win”, it’s not a game. It’s also not a “war” or a “fight”. In fact, most of the time CAFC agrees with PTAB, so the framing of infighting is simply incorrect and inappropriate. To quote the actual article:
Apple Inc. has won at least a moral victory in a fight with the U.S. Patent and Trademark Office over touchscreen technology.
The U.S. Court of Appeals for the Federal Circuit agreed with Apple on Tuesday that the patent office failed to sufficiently explain why Apple’s method for reconfiguring touchscreen icons is unpatentable due to obviousness.
Apple applied for a patent in 2009 on its method of using a sustained touch to activate an icon, which then allows a person to drag the icon to a new location on the screen. A patent examiner found the claim obvious in light of separate prior inventions on sustained touch and dragging. Combining the two inventions “would be an intuitive way” to rearrange touchscreen icons, the examiner concluded and the Patent Trial and Appeal Board affirmed.
This is just one of those exceptions where the CAFC does not fully agree with PTAB and wants the judgment reassessed.
The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality. It’s well overdue. Here we have a new case which “focuses primarily on §101 issues.”
“The bottom line is, things are progressing in a positive direction as the US patent system persists in improving patent quality.”To quote: “The oral argument of the week is MACROPOINT, LLC v. FOURKITES, INC., No. 2016-1286 (Fed. Cir. Dec. 8, 2016) decided by a Rule 36 judgment.”
Those who claim that Section 101 is losing its potency or that CAFC is at war with PTAB or anything like that are being extremely dishonest and typically — if not always — they are the ones directly profiting from these misconceptions/distortions.
Watchtroll and its ilk need to go away or not be taken seriously. Time after time we have demonstrated that the site’s purpose is to attack those who don’t agree (even judges!) and sometimes to organise 'echo chamber' events so as/in which to lobby officials.
Watchtroll is to the patent world what Trump is to civilised politics. █
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Reference: Loose Patent Scope Becoming a Publicity Nightmare for the EPO and Battistelli Does a China Outreach (Worst/Most Notorious on Patent Quality)
Summary: In defiance of common sense and everything that public officials or academics keep saying (European, Australian, American), China’s SIPO and Europe’s EPO want us to believe that when it comes to patents it’s “the more, the merrier”
RECENTLY, Australia’s Productivity Commission reiterated its opposition to software patents (as before), only to face protests from the patent microcosm (also as before). The report came out so close to Christmas that not many people covered it. During the holiday TechDirt wrote that:
Back in May we were both surprised and delighted by a thorough and detailed report from the Australian Productivity Commission noting that copyright was broken and harming the public, and that it needed to be fixed — with a core focus on adding fair use (which does not exist in Australia). It similarly found major problems with the patent system. It was a pretty amazing document, full of careful, detailed analysis of the problems of both the copyright and patent systems — the kinds of things we discuss all the time around here.
TechDirt focused on copyright aspects of the output from Australia’s Productivity Commission. We already wrote about half a dozen posts about the patent aspects of the Productivity Commission’s report (May and December). The bottom line is, the Productivity Commission basically bemoans both copyright maximalism* and patent maximalism; it specifically chastises software patents. These are seen as detrimental to Australia (rightly so!).
“The bottom line is, the Productivity Commission basically bemoans both copyright maximalism and patent maximalism; it specifically chastises software patents”Look at China for a cautionary tale. It’s quickly becoming a terrible place for inventors and producers to be in. “Patent inventorship has been disputed in several recent cases in China. Wenhui Zhang reviews four court decisions that provide lessons for inventors,” MIP writes. China’s patent office, SIPO, has become the dumpster of rejected patents — the place where one is guaranteed little scrutiny and lots of cheap patents (expensive in a court where the lawyers can make a killing). The EPO is going down the same route under Battistelli, although this transition is a gradual one.
“Right now it’s risky to even look at successful applications because that leads to higher liability/damages in case of infringement.”In a later post we are going to show just how quickly patent trolls are emerging in China as a result of SIPO’s policies. It’s quite incredible, especially in light of the death of patent trolls in the US (due to patent scope restrictions, among other restrictions).
Remember how the patent system was originally, as per the history books, conceived as a way to reward inventors and for publication of inventions? Not anymore. Right now it’s risky to even look at successful applications because that leads to higher liability/damages in case of infringement. And watch what MIP is currently saying about PCT. “For many patent applicants,” it says, “the primary value of the PCT is as a delaying tactic.”
Great for productivity, eh? Not.
“As a reminder, China is now (officially!) perfectly okay even with patents on software and business methods.”“With prosecution costs being a significant contributor to the total price of obtaining patent protection,” MIP says, “applicants are well advised to make strategic decisions early on in the application process to limit costs further down the line. International (PCT) applications are known by many applicants and IP professionals as a convenient delaying tactic when considering jurisdictions in which to file applications following a first filing.”
More than half a decade ago we wrote many articles about the dangerous vision of a global (or globalised) patent system and what it would entail. Now, imagine those million plus patent applications in China (obviously low quality patents) being pointed at every single country/company in the world. As a reminder, China is now (officially!) perfectly okay even with patents on software and business methods. █
* The misguided idea that copyright scope, rigidness, lifetime etc. should be maximal if not infinite. This tends to promote centralisation of power/ownership, monopolisation, and harm to culture, curation, preservation, free expression, etc.
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Applications that belong in the wastebasket are approved to become European Patents
Summary: The problem associated with Battistelli’s strategy of increasing so-called ‘production’ by granting in haste everything on the shelf is quickly being grasped by patent professionals (outside EPO), not just patent examiners (inside EPO)
THE scandals at the EPO have not been abated, but we took a couple of days off and thus weren’t able to cover these.
The European Patent Convention (EPC), as it was put together with a vision almost half a century ago, has been thoroughly compromised. Respect for the EPC came to an end under Battistelli, who treats the EPC like Donald Trump treats the Constitution. Don’t fall for this latest spin from Battistelli’s PR department. Battistelli, a crooked boss with the temper of Donald Trump and the facial expression of Arsène Wenger, has managed to alienate just about any member of staff. He has also alienated patent attorneys and applicants. He’s now living on borrowed time and the longer he stays, the greater damage he causes.
Recently, the EPO’s legal professionals were publicly admitting the mistake of granting patents on things that European authorities explicitly and repeatedly oppose. The EPO belatedly realised that granting patents on life makes everyone angry, including many examiners. George Lucas from Marks & Clerk wrote about it today and another article on this subject was cross-posted in at least three sites of patent lawyers [1, 2, 3]. To quote the key part: “While the U.S. is still sorting out “natural products” jurisprudence under 35 USC § 101, the European Patent Office (EPO) is wrestling with the patentability of plants and animals, and has announced an immediate stay on all patent examination and opposition proceedings in which the outcome “depends entirely on the patentability of a plant or animal obtained by an essentially biological process.” The stay was prompted by a recent Notice from the European Commission (EC) concerning Directive 98/44/EC on the legal protection of biotechnological inventions. In the Notice, the EC concluded that plants or animals derived from essentially biological processes are not patentable under the Directive. Until the EPO provides further guidance on this issue, applicants should exercise additional care in drafting the description and claims for inventions related to plants and animals.”
Yes, now they pay the price for an awful decision made years ago by the EPO.
In the US there are similarly controversial decisions about patents on nature/medicine (Merck). IP Kat has this new article today about “patents covering… claim the use of this dosage regime.” Citing the FDA, IP Watch wrote:
Biotherapeutic medicines are made out of living organisms and cannot be replicated. No generic medicines, which are exact copies of the reference product, can be made. The generic equivalent of a biotherapeutic would be biosimilars, which are highly similar products. The United States Food and Drug Administration has issued a guide to help producers to prove how close their biosimilars are to the biotherapeutics.
Typically the Boards of Appeal (probably the Enlarged one) would weigh in and make sense of it, but Battistelli’s EPO is marginalising these people. Quality control is a nuisance to one who reduces patent quality in order to reach misguided goals. See “EPO Enlarged Board Of Appeal Finds The Cure For Poisonous Divisionals”, published this week in a couple of sites for lawyers.
Citing this paper from 2015, “Comment on Enhancing Patent Quality”, someone from the EPO sphere urged us to consider the importance of patent quality. Brian J. Love from the Santa Clara University School of Law wrote in his abstract: “This Comment responds to the U.S. Patent and Trademark Office’s Request for Comments on Enhancing Patent Quality, published February 5, 2015. It proceeds in two parts. First, I share two general observations about the PTO’s current slate of New Quality Proposals: specifically, it fails to include any reforms that apply post-issue or any reforms that exercise the PTO’s fee-setting authority. Second, building on these observations and two recent empirical studies of mine, I outline two proposals that I urge the PTO to consider: specifically, an increase in maintenance fees and a decrease in fees for post-issue administrative challenges.”
We don’t expect the EPO to learn from the mistakes made by the USPTO in the past (things are improving now). In fact, things keep getting worse as Battistelli drives away a lot of staff and still expects double-digit growth (percent-wise) in the coming (current) year, as measured by the number of patents (or “products”) dealt with.
Kluwer Patent Blog, typically a mouthpiece for the UPC if not the EPO as well, is obviously aware of the EPO crisis because this year’s leading posts, as judged by number of readers, is topped by EPO (specifically the scandals) and UPC. A reader of ours “found this highly interesting post” which resembles what happened in IAM, as mentioned at the time (before Christmas) and to a lesser degree IP Watch.
It sure looks like concern about the direction the EPO has taken, also on purely technical grounds (not labour law but patent quality), is growing. Readers who didn’t read Techrights during the holiday may wish to revisit the leaked letter to Quality Support (DQS) at the European Patent Office. Now compare this to this latest puff piece from today. It says: “Complaints to the European Patent Office (EPO) are dealt with by a central EPO department known as Directorate Quality Support (DQS), which is also solely responsible for drafting and sending the official EPO response to the complainant. The default position is that both the original complaint and the reply thereto issued by DQS on behalf of the EPO are not made public, but rather are kept in the non-public part of the file to which the complaint pertains. This default position was apparently established by a decision of the President of the EPO in 2007. On the face of it, this would not appear to be a particularly contentious position, and is possibly justified given that complaints could be prejudicial to the legitimate personal or economic interests of third parties. Presumably the EPO would rather not place itself in a position of being a public outlet for any such potentially prejudicial remarks.”
As we showed here during the holiday, Directorate Quality Support (DQS) has itself become a shameful failure and utter mess. Applicants who receive such terrible service even resort to complaining to politicians, only to discover that the EPO is immune to prosecution. █
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