Summary: The patents gold rush sees another company joining the ‘fun’, albeit this company should campaign hard against software patents rather than pursue any
After all that openwashing (or “open” marketing) by MapR, today we were greeted by headlines such as “MapR claims open source big data victory with patent award” and “MapR Nabs a Patent for its Converged Data Platform” (that’s software). CBR says the patent “covers key components such as protection for file, table and stream processing for technology advances such as convergence, fast processing with low latency, high availability and Strong consistency, and security.”
“If MapR intends to join the patents gold rush, then it is not a serious cooperative participant in the Hadoop community.”We can’t quite see a cause for celebration here because any new (additional) software patent is a case of adding fire to the fire, no matter who pursues and gets granted such a patent. There are no “good” software patents; there are benign ones, like those which got invalidated and can therefore not be sold, either (e.g. Red Hat getting liquidated and having its patents sold to trolls, or acquired in a potentially hostile takeover by a patent aggressor).
We recently noted that Blockstream had no patents yet oddly enough pledged not to sue using patents (which we therefore assume it was pursuing). We more recently wrote about the patent menace around Blockchain [1, 2] and now there is this new article about it:
Banks, Startups and Trolls to Duke Over Blockchain?
Reports came out during the holiday season last year of banks quietly stocking up on blockchain patents. Banks will compete with startups making the same moves. They will also compete for patents with trolls who suppress innovation.
The future of blockchain innovation depends on who exactly holds the keys to blockchain technology.
Bloomberg reported that Goldman Sachs, Bank of America, and Mastercard have all submitted requests for and hold patents for blockchain technologies.
The Economist reported that “startups, including Coinbase, Chain and 21 Inc, have been busy, too.”
If MapR intends to join the patents gold rush, then it is not a serious cooperative participant in the Hadoop community. It needs to rethink its strategy, wherever it got it from (probably some self-serving law firm/s), then focus on development and dissemination of code, not patents. █
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Law is very slow to evolve, but under Lee (on the left below) it has evolved nicely
Summary: The future of patent reform, i.e. tackling overpatenting and patent trolls, looks somewhat more promising with today’s confirmation of Lee’s ‘extended tenure’ at the Office
THE USPTO remains in fairly safe hands with Michelle Lee in charge. Despite some worrisome reports of rumours that she was leaving earlier today IAM wrote: “BREAKING NEWS – IAM understands an announcement could be made today that Michelle Lee will remain as USPTO Director in Trump administration.”
Shortly thereafter it published an article about it and it says the following:
Michelle Lee set to remain as Director of the US Patent and Trademark Office under the Trump administration
Well-placed sources have told IAM that the USPTO could announce as early as today that Michelle Lee will continue as the agency’s director under the Trump administration when the new President takes office following his inauguration tomorrow. If confirmed, the reappointment would not be subject to approval from the Senate.
Lee has helped make the USPTO “Great Again” by improving patent quality and tightening scope, unlike David Kappos, her predecessor who now receives money from big corporations to lobby for the USPTO to get worse again. Shame on him. Never again!
In the mean time, the Wall Street media says that infringement litigation figures — not just over patents but also over copyrights — are down sharply. The gist of it:
Intellectual property infringement complaints in U.S. federal courts dropped in 2016 from a year ago, driven by declines in patent and copyright infringement claims, Bloomberg Law data shows.
Patent infringement filings totaled 4,624 complaints in 2016. That represented a 22 percent drop from a year earlier, as recent case law and regulation have made it tougher for patent licensing companies, also called non-practicing entities (NPEs), to mount and win legal fights. Patent infringement complaint filings rose steadily starting in 2010 and peaked in 2013, when 6,314 cases were filed in federal courts.
We pessimistically thought that Trump would make the patent litigation mess "Great Again" (he still can, but with Lee in charge even after his inauguration it remains to be seen). We don’t know who was behind the decision to keep Lee in charge and whether that can change after Trump’s inauguration (we hope not). These are somewhat political appointments and today is the Democrats’ last day in charge.
Speaking of litigation numbers going down (under Lee’s watch), the trolls’ business is declining and Detkin’s move away (partly away) from Intellectual Ventures is certainly a good sign. Even a trolls-funded ‘news’ site, which habitually grooms Intellectual Ventures, tacitly that admits patent trolling is an iffy/dying business. See this week’s article:
But it was Detkin’s move that looked particularly significant. It’s not an exaggeration to say that the IV co-founder and Rivette are two legends of the patent transactions and strategy world. As our story made clear, the pair estimated that they have been behind around $5 billion-worth of IP-related deals. Having scaled back his IV workload in late 2014, Detkin will continue to spend 50% of his time working for the patent giant, while joining forces with Rivette will enable him to focus more on advising larger companies on their IP strategies.
These moves come at a time when we’re seeing a huge shakeout in the licensing industry. Over the last few years large numbers of senior executives, some with very respectable track records have been on the move, in many cases not of their own volition as assertion strategies have struggled. With that in mind a comment last week from Rivette stood out in particular. “It’s not just about focusing on monetisation anymore,” he remarked. “Instead it is a lot more nuanced than can we sue or sell.”
Trolls are more reluctant to sue after Alice. See what recently happened to Intellectual Ventures at the Court of Appeals for the Federal Circuit (CAFC). It lost so badly that judge Mayer eliminated not only Intellectual Ventures’ software patents but also — by extrapolation/extension — almost all software patents out there. █
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This is what the EPO said in 2015 (every year the UPC is “ready” or “about to start”)…
Summary: The nonstop lies or the fake news about the UPC starting “real soon now” don’t quite pass a reality check or a basic assessment based on fundamental concepts, such as the UPC’s facilitation of subordination (to Europe) in the United Kingdom
THERESA May may indeed have just killed the UPC, based on her historic speech which was delivered earlier this week. We already published a couple of articles about it and this one person drew our attention to a a new article by Peter Leung from Bloomberg BNA. “U.K.’s ‘Hard Brexit’ Plans May Undermine Patent Court” says the headline and here is the opening part with a succinct explanation:
The U.K.’s plan to join the proposed Europe-wide patent court could run into conflict with Prime Minister Theresa May’s desire to leave the jurisdiction of the European Union’s highest court.
May’s Jan. 17 speech promised to “bring an end to the jurisdiction of the European Court of Justice in Britain.”
However, decisions by the Court of Justice of the EU (CJEU) will be binding on the Unified Patent Court (UPC).
May’s speech highlights the fact that the fate of the UPC is closely intertwined with the complex negotiations over the U.K.’s withdrawal from the EU.
In November, the U.K. announced that it would ratify the UPC agreement even though it will leave the EU. The new patent court is expected to start operations in 2017 and will have jurisdiction over a new unified patent right to have effect in most of Europe.
“The decision to proceed with ratification should not be seen as pre-empting the U.K.’s objectives or position in the forthcoming negotiations with the EU,” the U.K. Intellectual Property Office told Bloomberg BNA in an emailed statement.
The above, for a change, involved some fact-checking. Many publications these days, especially in the area of patents (or IP, which would mean also trademarks, copyrights etc.), are used/exploited/hijacked by Team UPC and/or the patent microcosm to promote the UPC based on jingoistic lies. They do the same thing to high-profile blogs. We have grown tired of that and recently adopted the label “fake news” in rebutting that noise.
“We need a strike in the UK against the Unitary Patent,” Benjamin Henrion wrote this week, as there is threat of “software patents via the backdoor” (as we covered here before).
“Shall the need arise,” I told him, we can set up a petition and call for protests, but “for now they’re just waffling over a dead UPC…”
There are attempts to fool or to shame the system into the will of UPC hopefuls. Those who are sober realists are being painted as having embraced a more extreme view. Take this new blog post for instance. “Ultimately,” it says, “whether the argument is accepted by the government and argued for strongly will depend not on its detailed, technical merits but whether it is acceptable to enough Tory MPs and right-wing newspapers. There are plenty of other areas of international trade where similar arguments are being raised. For example, representatives of the Law Society and English Bar made similar points about the mutual recognition of court judgments in the UK and EU, post-Brexit, when they gave oral evidence to the House of Lords’ Justice Sub-Committee recently.”
The matter of fact is, businesses in the UK — or Europe as a whole for that matter — do not want the UPC (they're being talked about — not for — by the patent microcosm). Most of them don’t even know what the heck it stands for and what on Earth the UPC is or does. Those who think they know what the UPC would do often base it on misinformation, as they have been lied to by the patent microcosm (see this week's example of fake news in ‘Financial Director’).
The “Unitary Patent,” says Gérald Sédrati-Dinet this week, “after 6 years, arguments I’ve raised on http://unitary-patent.eu are still valid” (links to some other fake news).
Remember he was threatened by the EPO, just like us. These people are bullying dissenting voices; they want to silence UPC antagonists.
It turns out that there is yet another barrier to the UPC, other than Brexit and Spain’s persistent refusal to accept the UPC. According to this tweet, which links to a new article in Polish, “Poland [is] yet not ready to join European Unitary Patent System | WTS Rzecznicy Patentowi @MSZ_RP @PremierRP http://wtspatent.pl/aktualnosci/patent-europejski-ze-skutkiem-jednolitym/”
“And if not dead,” asks the following comment, “is the UPP mortally wounded?”
Well it is dead unless it somehow gets resurrected, which is almost an impossibility in nature, unless one has strong religious beliefs (like a lot of the UPC echo chamber, where people just preach to their choir and say to each other what they want to hear). The UPC is dead/dying. But nobody wants to say it. Here is the full comment:
TM has now ruled out the CJEU having “direct” legal authority in the UK. Does this mean that the unitary patent project has just been killed (despite the UK, rather bizarrely, having previously indicated its willingness to proceed)?
And if not dead, is the UPP mortally wounded? It is now crystal-clear that the UK will no longer be an EU Member State, most likely by 2019. But the current wording of the UPC Agreement and the UP Regulations rather heavily rely upon all “Participating” Member States being EU Members. This affects pretty much every founding principle of the UPP, including issues such as unitary effect / character, legal personality of the UPC and scope / enforcement of decisions of the UPC… and there are no signs yet of any plans to “fix” those problems.
Based upon current signs, it seems that the political will is to press on regardless. But placing such a huge gamble on the system being able to survive Brexit seems absurd. The UK may feel that it will gain influence by getting the UPC up and running before Brexit… but it will then become a hostage to fortune with regard to the inevitable challenge at the CJEU, alleging non-compliance of the UPP with EU law. At that point, the UK will have no representation at the CJEU. So what will the UK then do if the EU Member States decide to kick out the non-EU country in order to preserve the system?
Here is another (longer) comment on the subject, latched just yesterday onto an article from 3 years ago:
Darren: I have an off-the-wall question for you. Can a “unitary” European Patent have unitary effect in a “Participating Member State” (PMS) that has not ratified the UPCA?
I had always presumed that the answer is a clear “no”. However, the rather loose wording used in Reg. 1257/2012 has given me pause for thought. Let me explain why.
Art. 2(a) of Reg. 1257/2012 defines a “PMS” essentially as an EU MS that participates in Enhanced Cooperation under Decision 2011/167/EU (or subsequent decision) in connection with unitary patents. That definition of PMSs clearly includes countries that have not ratified the UPCA.
So this begs the question of whether Reg. 1257/2012 limits the unitary effect of an EPUE to only certain PMSs.
Art. 5(2) is one example of a provision of Reg. 1257/2012 that refers to PMSs in which an EPUE has unitary effect. This of course implies that there can be PMSs in which the EPUE does not have unitary effect… a concept that is confirmed by the 2nd paragraph of Art. 18(2).
However, what is meant in Art. 18(2) by “participating Member States in which the Unified Patent Court has exclusive jurisdiction with regard to European patents with unitary effect”? The UPCA does not talk about “exclusive jurisdiction”, but rather “exclusive competence”. Further, the “exclusive competence”, as defined in Art. 32 UPCA does not have any geographical limits. (The opposite is true for the territorial scope of the decisions of the UPC, as defined by Art. 34 UPCA… but the question of where a decision has effect is completely separate from the question of where a patent has effect.)
Of course, this is where Art. 17(2) or Art. 18(5) of Reg. 1257/2012 could help. Those provisions require PMSs to update the Commission with progress made in updating national laws to ensure no “double” (unitary / national) protection. That is, those countries that do not notify the Commission under Art. 17(2) or 18(5) might be deemed to be PMSs in which there can be no unitary effect.
However, it seems absurd to interpret the territorial effect of an EU Regulation (which, of course, has direct effect regardless of national implementation) by reference to actions taken, or not taken, under national law.
Indeed, if ratification of the UPCA were a prerequisite to an EPUE having unitary effect in a PMS, then why does Reg. 1257/2012 not explicitly say so? After all, ratification progress is mentioned in Art. 18(3)… but with no apparent connection to Art. 18(2).
Also, what are we to make of the mis-match between “exclusive jurisdiction” in Reg. 1257/2012 and “exclusive competence” in the UPCA (bearing in mind the small areas of retained competence of the national courts, as well as the shared competence during the transitional period)?
If we can answer all of the above points, then I suspect that the answer to your original question will also emerge. Indeed, there will likely be a way found for the UPC and national courts to clearly distinguish between EPC Contracting States that are “ratified” PMSs, “non-ratified” PMSs, non-PMS EU MSs and non-EU MSs. But whether that distinction will survive Brexit is another question entirely…
People who are actually in this profession know deep inside that the UPC is unlikely to happen (certainty true in the UK). But what they say publicly is just a futile attempt to persuade young and inexperienced (especially in this area) politicians like Jo Johnson. We oughtn’t let them get away with the spreading of falsehoods. █
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‘Mole’ or ‘rat’ a more derogatory way to put it in such scenarios…
Summary: The latest cluster of lies from the President of the European Patent Office (EPO) and direct refutation of false claims of independence for the Boards of Appeal, where the former Vice-Presidents can flock, just like the Mini Minion (Minnoye) of Battistelli
Pinocchio Battistelli, after a month of almost complete silence (the longest he has managed to go on without lying to the public), resumed his lying today. He speaks (warning:
epo.org link) of “further improvements” in his so-called ‘blog’, but actually patent quality declined sharply, a lot of experienced examiners are leaving, and the EPO has become a laughing stock not just in Europe but in the whole world.
Battistelli, who is known for his fantasy world (either living in extreme denial or just lying habitually and also knowingly) boasts “best value for all our stakeholders” and “high quality”. This new caricature of EPO workers calling out "Bullshit!" comes to mind. Here is the complete paragraph from Pinocchio Battistelli: “It is clear from our preliminary results that filings have continued to rise during 2016. As an administering organisation, it is our job – no matter what the figures – to ensure that we are delivering the very best value for all our stakeholders; to our users, high quality, competitive services; for our member states, a modern international organisation that supports the European economy and its inventors; and, to our staff, an organisation that prepares its future on solid ground through investments and that appropriately rewards their achievements.”
It’s not hard to see that the above paragraph is full of lies. Battistelli is also lying about the UPC today, pretending that it’s coming this year (he says so every year and it’s always turning out to have been a lie). Here is the full paragraph: “The potential arrival of the unitary patent is set to be one of the most significant developments this year. 2016 was a mixed year for the UPP, with further UPC ratifications and a Brexit vote that caused speculation on its future. Now, following the UK’s decision to continue with ratification of the UPC, 2017 may well be the year in which the EPO administers the very first unitary patent. While the UPC is set to bring greater legal certainty to the European patent system, there will also be judicial developments at the EPO itself. The reform of the boards of appeal, adopted last year, is set to enhance perceptions of independence and managerial efficiency. This spring will see the start of the mandate of the new President of the BoA and the BoA unit is scheduled to relocate to a specific building this summer.”
That last part is one among many misleading claims (we don’t have time to rebut them all, including parts of about the UPC, which will be the subject of our next post), but when Pinocchio speaks of “perceptions of independence” he is talking out of his back hole again.
Based on some of the latest comments in IP Kat, for instance, not only Battistelli's ‘pet chinchilla’ Patricia García-Escudero is in the supposedly independent management. See this comment:
What a pity VP1 lacked examination experience.
Otherwise he could have continued service in the ranks of the examiners.
Just like VP3 who following his departure as Vice-President is now a common or garden legal member of the Enlarged Board of Appeal …
“Sorry to hear about VP1,” another person responded. “He hasn’t been as fortunate as the former VP3 who apparently continues in service as a normal legal member of the Boards of Appeal.”
“Apparently,” said the above person. “the Kat is intent on censoring my comments referring to the fact that the a former Vice_President remains in service as a legal member of the Boards of Appeal.” This person later retracted this claim and wrote: “I take it all back. The Kat has apparently managed to extract my previous comments from its fluffball spam-filter…”
We wrote about censorship of comments over there at IP Kat several times before, even when these comments were very much needed (and polite).
Either way, the above continued with: “It means that he is a (legal) member (but not chairman!) of the Enlarged Board of Appeal rather than of a simple Board of Appeal.”
Finally came a clearer explanation with a reference:
Not just the Enlarged Board of Appeal.
He is a member of the Legal Board.
Check the business distribution for the Technical Boards.
He is assigned as a legal member to Boards 3.2.04 and 3.4.03.
So then… how much of an independence will these boards have? In some sense, the EPO continues to get worse than ever and the management sets itself up for more scandals.
As mentioned in this post yesterday, there is a new article in French about the EPO and someone noticed it, then wrote: “Article today in Le Canard Enchainé with a very pertinent cartoon !”
Here is the cartoon in question (below). Not to worry; we’ll end this secrecy. █
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