Unitary Patent may already be dead, but Team UPC and the EPO won’t tell us that
Summary: Now that Jo Johnson, Boris Johnson’s brother, is officially declared the new minister for intellectual property in the UK everything that Lucy Neville-Rolfe wrote is as solid as paper bag on a rainy London day
PUTTING aside the patent microcosm (including scholarly sites like Patently-O), Team UPC, and the EPO, rational and objective people seem to know that Brexit is the death knell to the UPC as we know it. We wrote about it when/after Lucy had joined Battistelli, only to be sacked (or leave) weeks later, under still-unknown circumstances.
Confirmed by UK-IPO on Wednesday afternoon, just before we published what we knew about it, “Jo Johnson [is] chosen as new UK IP minister”:
Jo Johnson chosen as new UK IP minister
The UK government has chosen Jo Johnson, a member of parliament (MP) and the current innovation minister, as the new minister for intellectual property.
Johnson, MP for Orpington, Bromley, takes over from Baroness Neville-Rolfe.
The UK Intellectual Property Office confirmed the news on its Twitter page.
Johnson is the brother of Boris Johnson, the UK’s foreign secretary. Both are members of the Conservative party, led by Prime Minister Theresa May.
Jo Johnson will remain as minister of state for universities, science, research and innovation, a position he was appointed to in July 2016. He was elected as an MP in May 2010 and was re-elected in 2015.
Jo’s brother was a big proponent of Brexit, even if he fooled a lot of people into voting that way (like empty promises about the NHS).
Well, no word about the UPC has been said by Johnson, the above report from WIPR or UK-IPO, so one can only guess what will happen next.
There is a new UPC paper (English version
[PDF]) composed by Dr. Ingve Björn Stjerna from Düsseldorf (Germany has the most to gain from the UPC). Here is the outline:
Allegedly for an independent assessment of “Brexit” vote implications for a potential ratification of the Agreement on a Unified Patent Court (“UPCA”) by the UK, three associations interested in this ratification commissioned the barristers Gordon and Pascoe to prepare a legal opinion on several related questions. The Opinion, which widely appears to develop legally far-fetched results in support of desired results, assumes almost self-evidently that the Unified Patent Court is not a court common to the Contracting Member States of the UPCA. Since the political approach for ensuring the UPCA’s compatibility with Union law after Opinion 1/09 was always based on the opposite understanding, it supports the voices arguing that the Agreement violates Union law and demanding it to be submitted to CJEU scrutiny as to create legal certainty for the users. Such scrutiny could be initiated in the German ratification proceedings.
Judging by recent events, especially the removal of Lucy (in favour of Jo Johnson), the UPC’s future looks anything but bright; it looks virtually non-existent and bleak. That’s just what many patent practitioners from London expected all along, even if some were in convenient denial over it, especially after the nonsense from Lucy. █
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Summary: Software patents armament from a British company, charted concentration of the patent microcosm in the United States, and US-leaning patent trolls that prey on China
“CloudTrade Awarded US Patent for Its Proprietary Document Data Extraction Software,” says a press release that was widely circulated yesterday [1, 2, 3]. CloudTrade is British and is not a patent troll, but it sounds as though it has nothing to brag about except crappy (and creepy) software patents — those that PTAB and patent courts would likely trash immediately (if a petition or lawsuit gets filed).
Why is a British company pursuing software patents in the US? Has it not heard yet about the futility of such as exercise? Did it receive bad advice from patent practitioners? Previously, the firm bragged about “patented e-invoicing technology” and “patent-pending technology”. They went as far as Australia for software patents. Unless they intend to start suing competitors (sometimes threaten to sue unless competitive products are removed from the market or settlement money is paid out of court), we fail to see what CloudTrade is thinking here. Maybe too much Kool-Aid from the patent microcosm…
Published hours ago was also this analysis by Jason Rantanen, who put together some data to find out which places in the US have a disproportionate number of patent practitioners (lawyers, attorneys etc.) and it was preceded by the following text. It emphasises that it’s about utility patents, not software patents:
A question from two economist friends, Nicholas Ziebarth and Michael Andrews, got me interested in the geographic distribution of patent practitioners in the U.S. and any correlations with issued utility patents and populations. Using the January 8, 2017 list of patent practitioners from the USPTO, the PTO’s data on utility patents issued to inventors by state, and population estimations for 2016 (wikipedia), I put together the following figures. They show what one might expect: patents, population and patent attorneys exhibit high degrees of correlation, although there is some interesting variation. All the linear regressions are highly significant (p<0.001).
It would be interesting to see these methods applied to software patents. It is widely known by now that patent trolls are highly dependent on such patents and it would be interesting to see where Texas fits in an analogous chart (or set of charts).
It is also widely known and recognised that many patent trolls work at the behest of some large, practicing companies. By using a troll for litigation they don’t risk the defendant following suit with a reactionary lawsuit. IAM has a new example of this. It speaks of some entity called Via Licensing (Web site indicates it’s just a troll) and reveals who it’s working for, much like MPEG-LA. To quote:
Dolby-backed patent pool operator Via Licensing has announced some high profile new licensing agreements in Greater China over the past month, with Lenovo and Xiaomi having joined the pool covering AAC technology. A big factor in this apparent momentum is the fact that the pool has introduced a new alternative rate structure which codifies a discount for devices sold in developing markets. This effort to accommodate local market realities in countries like China also adds a welcome dose of transparency to the licensing market.
Terms like “licensing market” are misleading. Intermediaries or satellites or proxies are hardly a “market”. They are a parasite which mostly serves to exclude small players and emergent technologies (competition). █
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Summary: The latest examples of discussions about patent scope, courtesy of those looking to benefit financially by pushing such monopolies to the max
PATENT scope is key to success of a nation’s economy. Unrestricted scope is a recipe for disaster everywhere and it makes an economy less competitive at the international context/stage. One cautionary tale is the Eastern District of Texas, which we shall deal with separately when we write about patent trolls. After Alice (and possibly quite soon TC Heartland LLC) at SCOTUS a lot has changed for the better in the US. But it should not be taken for granted. Some people are trying to undo progress.
Joseph A. Capraro Jr., a Partner at Proskauer (the misleading cherry-pickers), is going to speak for patent maximalism at this upcoming event whose synopsis says: “Since the 2014 US Supreme Court decision on Alice Corp. v. CLS Bank, the U.S. Patent and Trademark Office (USPTO) has become much more strict when evaluating patent eligibility for certain types of computer-implemented inventions. The Alice decision severely affected software patent applications, such that the USPTO began issuing Section 101 rejections based upon Alice where no previous subject matter eligibility rejection had been raised–and the USPTO even withdrew allowances for some applications. The Alice decision created an alarming landscape for the larger patent world as well, calling into question the validity of many existing software-based patents.”
Patent law firms just can’t help promoting software patents. To them it’s just business, irrespective of the effect on sellers and buyers (of actual goods, not patents). At IAM, for example, the patent microcosm of India now bemoans the exclusion of patents on “computer-related inventions” — whatever that actually means. Software patents are not permitted in India and as the microcosm puts it:
The first step has clearly been borrowed from the first two steps established in the UK Aerotel v Macrossan case. Further, if the term ‘only’ is to be read as ‘solely’, the second step can be said to be based on step three of that case. However, step four of the Aerotel test was not considered; rather an entirely different step three pertaining solely to computer programs has been prescribed. This third step focuses only on “a contribution” made by novel hardware, without specifying the nature of the contribution expected.
Nothing associated with “computer programs” is patentable in India (nor should it be). This is what makes India’s patent system more effective and more in harmony with the local economy, which thrives in software development. Consider this new short post from Patently-O, which basically parrots a new paper about strength of patent systems. “G.Dolin is correct in many ways,” Patently-O says. “The major problem with his analysis is the way that he focuses solely on the patent system motivating individual inventors. Although such motivation exists, in the US and around the world, the patent system is primarily used by corporate entities with few inventors receiving substantial upside value of their inventions. Rather, as in Russia, invention is part of the job description of many engineers and those engineers usually receive only a token for their successes rather than a share of the resulting profits.”
Like those who are using "China" and "Russia" to make their case for patent maximalism, here we have those who conveniently treat “Russia” (or “USSR”) as a model failure, then deduce from that all sorts of nonsense. Right now in China, which traditionally was quite lenient, the patent system is becoming overly aggressive and strict in the litigation sense while granting patents on everything under the sun. That itself is a recipe for disaster and it would quite likely damage the Chinese economy. It’s surprising that their economists fail to foresee the effect of all the patent trolls they have begun to attract.
Using “Russia” or “China” to make a case for patent maximalism is misleading. Likewise, telling India to adopt Westernised patent law is asking India to shoot itself in the foot. Patent systems are not constructed purely for the purpose of “creating jobs” like patent lawyers and judges. They are, at the core, intended to foster innovation and progress. Its sad to see Dennis Crouch, a Law Professor at the University of Missouri, resorting to that kind of stuff. █
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While the corporate media celebrates IBM as though it’s some kind of ‘champion’ for hoarding patents that it then uses to attack companies which actually grow
Summary: Patent aggression and patent lobbying from IBM is a growing problem, especially now that patent lawsuits are on the decline and software patents are going away
Thomas F. Cotter, a Briggs and Morgan Professor of Law (from the University of Minnesota Law School) wrote about Mexico’s patent law, invoking some drool-dripping ‘IP’ academics (Mike Schuster in this case) who say that in “Mexico, patent damages must be 40% of public selling price of infringing products…”
“Under the new CEO, or so it would seem, IBM is back to the days of suing companies like Sun.”IBM’s patent chief, who keeps plotting and scheming to blackmail the whole industry using software patents, cited the above ‘IP’ academics and noted that: “Patent damages would seem to be (potentially) quite high…”
Remember that IBM is now suing various companies and shaking them down for patent payments. Under the new CEO, or so it would seem, IBM is back to the days of suing companies like Sun (Florian Müller once called them “International Bullying Machines”).
We remind readers that today’s IBM is nothing like the IBM of 5 or 10 years ago. The company is still manipulating the media and lobbying for software patents, much to the detriment of just about every software company. “A large % of US companies are software companies,” wrote this patent attorney the other day. “Their patent applications are being inordinately rejected at the USPTO.”
I told him that software patents are being used against the vast majority of software companies (small ones), basically destroying them. This is the kind of thing that IBM and other patent maximalists are promoting. They worry that their plot is coming to an end, especially due to Alice and PTAB. The number of patent cases in the US courts has gone down sharply (as of 2016′s end) and MIP puts it all in a table, explaining the numbers as follows:
A total of 4,580 district court cases were filed in 2016, down from 5,775 in 2015.
This is the lowest number of district court patent cases since 2011, when 3,899 cases were filed, according to Docket Navigator figures. That year was the last before the American Invents Act came into effect.
The average monthly number of cases in 2016 was 382, down from 481 in 2015, 418 in 2014, 508 in 2013 and 455 in 2012.
The fourth quarter of the year saw 1,170 cases filed, up from the 1,138 cases filed…
Looking at utility patents alone (not software patents), Patently-O gives an impression of growth, even charting the numbers along with faces of USPTO Directors. To quote Patently-O: “The chart below shows the number of utility patents granted each year for the past few decades. I have included images of PTO chiefs as well. Although only small view of PTO work-product, the dramatic shifts in the number of grants (all occurring while facing a large backlog of cases) helps highlight the importance of the role of PTO Director. You’ll note that more utility patents were issued in 2016 than any prior calendar year – 303,000. However, the rate-of-increase seen under Dir. Kappos is clearly gone.”
David Kappos, ‘formerly’ IBM (still paid by them, now paid to lobby for software patents), has been a terrible Director whose lobbying at the moment puts the patent office at the bottom of ethical standards and brings it into disrepute. The graph mentioned above (with animation) serves to show just how terrible Kappos was in the quality control sense. For IBM to still be paying him, especially for something as notorious as software patents and lobbying, is a terrible idea. █
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Jo Johnson rumoured to be the next IP minister
Summary: Rumours about Britain’s head of patents (and copyrights etc.) being the brother of the Brexit campaigner and Foreign Minister; meanwhile, on the other side of the Atlantic, rumours suggest that the corrupt judge Rader might be the next head of patents in the United States
“Hold onto your hats,” IAM wrote yesterday, “we have just heard that Jo Johnson – brother of UK foreign secretary Boris Johnson – is to become the UK’s IP minister. […] Jo Johnson was on other side to his brother in EU referendum – he supported the Remain side. Some claim Boris may have done, too – secretly.”
Is he really the one to replace Lucy, whose departure was quietly confirmed? And if so, what does that say about the state of British politics? Is it the ‘Trump effect’ or the ‘Bergot effect’? [1, 2, 3, 4]
Jo “Johnson joined the Financial Times in 1997,” according to Wikipedia. That’s the ‘news’ paper that the EPO bribed in exchange for puff pieces and apparently also for the pro-UPC propaganda.
What would Johnson do about UPC ratification at times of Brexit, which his brother is still advocating? We don’t even know for sure yet if there’s anything to the rumour.
“Is it the ‘Trump effect’ or the ‘Bergot effect’?”Dr. Luke McDonagh, an academic from London who insists that UPC and Brexit are hardly compatible, says he “will be speaking at Oxford University on IP Litigation post-Brexit on 26th Jan” and here is the outline of what’s at stake:
Each year the OIPRC hosts a number of leading academics from around the world as part of its Invited Speaker Series. These events typically run from 5:15-6:45pm on Thursday evenings at St. Peter’s College; if the venue or time is different, it will be noted on the Events calendar. The Speaker Series consists of a presentation of about 45 minutes, followed by a Q&A session with the assembled group of academic staff, students (both undergraduate and graduate), researchers, and interested members of the public. Discussion is informal and includes participants from several disciplines, with a wide range of prior knowledge.
Meanwhile, over in the United States, USPTO Director Lee is rumoured to be on her way out and some people, as we noted here before, say that the corrupt Rader (raider) might be her successor. Benjamin Henrion wrote about it, as did other opposers of software patents. Rader is a man of serious ethical breaches, not only software patenting (patent maximalism) and patent trolling. Now that Trump is expressing intent to put reckless people in charge of everything (foxes guarding the hen house) Rader would be more of the same. █
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