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04.30.17

High Courts in the United States Still Neither Grappling/Interfering With PTAB Nor Overturning Alice

Posted in America, Courtroom, Patents at 7:12 am by Dr. Roy Schestowitz

In spite of massive efforts and relentless lobbying by the patent microcosm, things remain as they are

Dennis Crouch at the University of Houston Law Center
Photo credit: University of Houston Law Center

Summary: In spite of unprecedented pressure from Watchtroll, Dennis Crouch (above) and other prominent elements of the patent microcosm in the United States, software patents continue to enjoy no backing from the courts while the Patent Trial and Appeal Board (PTAB) accelerates its crackdown on such patents

WHEN it comes to software patents, the US is no longer the place to be. China might be it and as the EPO mimics China — as disturbing as that may be also in the human rights aspect — patent law firms now openly say that it’s easier to get (and/or defend) software patents in Europe than it is in the US.

“…patent law firms now openly say that it’s easier to get (and/or defend) software patents in Europe than it is in the US.”Over the past 3 years we have been writing a lot about Alice — the Supreme Court (SCOTUS) decision that ended a lot of software patents in the US. For software patents to withstand a court’s scrutiny (the higher, the harder) has become the exception rather than the norm. The Court of Appeals for the Federal Circuit (CAFC) has just reaffirmed this position (late on Friday). There is still no sign — however remote — that SCOTUS will revisit a case like Alice, but sites like Watchtroll work hard lobbying for such a thing to happen. We last gave an example of that approximately one week ago. Just escalated up to SCOTUS were a bunch of cases that involve no software patents at all; there was also Sandoz v Amgen. Managing IP wrote that “[o]n April 26, the US Supreme Court got its first chance to hear arguments over the biosimilars patent dance.”

“Over the past 3 years we have been writing a lot about Alice — the Supreme Court (SCOTUS) decision that ended a lot of software patents in the US.”This case is important, but it doesn’t concern us because we tend to focus on abstract patents.

Meanwhile, at CAFC, it has become “more difficult for a patentee to obtain injunctive relief even after winning its infringement lawsuit,” Patently-O asserts. To quote:

The court here appears to shift this from a four-factor test to a four-element test. The result of this decision is that it becomes incrementally even more difficult for a patentee to obtain injunctive relief even after winning its infringement lawsuit and defending against validity challenges. I also expect that any analysis of the historical equitable factors (the approach suggested by eBay) will recognize that this holding is incorrect.

When it comes to CAFC, Patently-O‘s founder (Crouch) is still eager to slow things down. That’s just regressive. He does not like PTAB, as it eliminates many bogus patents that he and the microcosm make a living from. Patently-O recently found another way to waste time of CAFC and PTAB, exploiting a misleading headline and cherry-picking of cases (the headline is factually incorrect). “In this nonprecedential decision by Judge Chen,” Crouch wrote, “the Federal Circuit has partially-vacated and remanded – finding that the Board (PTAB) had failed to explain its obviousness decision.”

“When it comes to CAFC, Patently-O‘s founder (Crouch) is still eager to slow things down.”But this is the exception, not the norm. Crouch should amend his headline and ‘remand’… ;-)

Meanwhile, the Supreme Court gets mentioned by Patently-O in relation to CAFC’s dismissal of appeals. Parasites that can’t stop throwing crappy software patents at the system (even after Alice) are wasting everybody’s time and Patently-O continues to object by saying:

Certainly, if the PTAB had issued its judgment without opinion, the Federal Circuit would have immediately vacated that decision. However, the appellate court suggests that the rules of opinion writing should not be self applied.

The Federal Circuit (CAFC) has very limited resources, so dealing with thousands of appeals in an exhaustive fashion, e.g. with written determinations, would be impractical. There were some reports last year which said that CAFC had been flooded with a PTAB ‘scatterback’; not everything merits an opinion, especially when utterly dumb patents are subjected to scrutiny without the profit motive of the USPTO.

“The Federal Circuit (CAFC) has very limited resources, so dealing with thousands of appeals in an exhaustive fashion, e.g. with written determinations, would be impractical.”CAFC has far more important matters to look after. For instance, here is a new “report” from IAM that deals with the famous MedCo v Mylan case:

The Federal Circuit has reversed a decision that Mylan Inc’s proposed generic version of a drug infringed one of two patents owned by the Medicines Company (MedCo v Mylan, Fed Cir 2017). In doing so, it revised the district court’s claim construction to import a non-limiting example from the specification to define the pivotal term – ‘efficient mixing’ – based on its determination that the example provided the “only clear delineation” of the “scope of the term”.

In this case, what’s at stake is a large lawsuit that impacts lives (generics), not just reassessment by PTAB. It makes sense for PTAB to focus on cases such as these.

“Perhaps the moral of this whole story is that we need to protect PTAB’s functionality and allow CAFC to deal with oppositions quickly enough, typically reaffirming PTAB’s decision to invalidate (about 80% of the time, based on last year’s and this year’s statistics).”Another new IAM “report”, this one about the Canadian Supreme Court and Canada’s CIPO, says that the Canadian “Patent Office instructs examiners to disregard Supreme Court precedent…”

So it’s more or less like the USPTO, which continues to grant some software patents in spite of Alice, necessitating further scrutiny by PTAB or the courts (which typically invalidate these pretty quickly).

Perhaps the moral of this whole story is that we need to protect PTAB’s functionality and allow CAFC to deal with oppositions quickly enough, typically reaffirming PTAB’s decision to invalidate (about 80% of the time, based on last year’s and this year’s statistics).

“The demise of software patents is essential for the wellbeing of the US software industry, the businesses which actually employ programmers (except those who just prey on successful companies by suing them with software patents, e.g. IBM and Microsoft).”It’s not hard to understand why Patently-O keeps meddling and interfering in these processes. Just look who’s running the blog. It’s not an entirely objective person (far from it, yet he called his blog “the nation’s leading patent law blog”). The articles are vastly dominated by authors with law degrees and no industrial experience.

Citing the America Invents Act (AIA, which brought PTAB), here is Patently-O bemoaning CBM (covered business method) reviews. Just because patents on business methods are coming under growing scrutiny in the United States doesn’t mean there’s some injustice; quite the contrary. The US is finally — if not belatedly — cracking down on overpatenting (the same thing which happens at the EPO under Battistelli right now). Apparently the EFF has already weighed in as follows:

Two additional amicus briefs have also been filed supporting the petition. EFF argues (1) that the panel decision contorts the statutory text; and (2) ignored the consideration of deference to an agency’s interpretation of its governing statute. Clearing House Payments Company and Financial Services Roundtable joined together and argue (1) CBM institution rates are alredy down; and (2) the case allows artful claim drafting to effectively avoid CBM. (The artful drafting issue is largely moot since CBM will sunset in September 2020).

The key here is interpretation of Section 18(d)(1) of the America Invents Act that limits the scope of Covered Business Method Reviews to patents “that claim[] a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service.” Does the statute require that the claim include the financial product or service use? Note here that the argument is not based upon a statute codified in the United States Code since it is only a temporary provision that will sunset after three more years.

2020 is the year of the next US election. We certainly hope that under Trump there will be no challenge made to Alice or a case like it (or Section 101). The demise of software patents is essential for the wellbeing of the US software industry, the businesses which actually employ programmers (except those who just prey on successful companies by suing them with software patents, e.g. IBM and Microsoft).

Hailo and Qualcomm Both Want to Profit From Software Patents Rather Than Actual Products

Posted in America, Apple, EFF, Patents at 5:55 am by Dr. Roy Schestowitz

Hailo lawsuits guaranteed

Hailo lawsuits

Summary: The (mis)use of software patents for “easy money” is being challenged and it does not look particularly encouraging to those who rely on such patents in 2017

THE resurgence of software patents in Europe, due to the EPO‘s abhorrent attitude (the management not obeying the law), is a very serious issue, but it’s one that we regularly cover. In the US, for example, the sheer abundance of software patents (granted before Alice) continues to feed patent trolls and other parasites. It’s destroying the industry.

The momentum against software patents may have been lost (albeit courts continue to squash these) and sometimes we see both software patents and patent trolls tackled at the same time. “Stupid Patents of the Month,” for instance, are now these patents which the EFF mentions as follows:

With all the attention ride-sharing has been getting lately, some might think Uber and Lyft were highly inventive apps. But according to at least one company, the apps are just highly infringing. Who’s right? Probably neither.

Hailo Technologies, LLC (“Hailo”) has recently sued both Uber and Lyft, alleging they infringed Hailo’s taxi dispatch patent, U.S. Patent No. 5,973,619 (“the ’619 patent”). The patent claims a method for a “computer system” that: (1) displays a list of transportation options; (2) asks the customer for a number of passengers; (3) shows destinations graphically; (4) displays the approximate fare; (5) calls a selected taxi company up for a ride; and (6) gives an estimated arrival time. A few months ago, Hailo also sued a few other companies for infringing a different patent, U.S. Patent No. 6,756,913 (“the ’913 patent”), which claims a method for keeping track of available taxis on the road. More specifically, it claims a method where a computer (1) determines if a taxi is free (i.e. currently has no rider); and if free (2) sends the current location of the taxi to the taxi dispatch server.

We looked up details about Hailo Technologies and found nothing except the above lawsuit and prior ones. As it turns out, Hailo has been around for a number of years (there are even puff pieces about it) and “Hailo Technologies” is its trolling alter-ego. The patent goes back to 1999 and is a software patent that’s not just obvious (see the EFF’s explanation) but is also meritless after Alice. The EFF says the patent is on “a method where a computer (1) determines if a taxi is free (i.e. currently has no rider); and if free (2) sends the current location of the taxi to the taxi dispatch server.”

This is the same thing taxi companies already did with or without a computer prior to the patent. Nothing innovative here…

We feel pretty safe to guess that Hailo walks on broken glass here. We predict these patents will be invalidated soon.

Qualcomm’s Glasses Shattered

The following chart is almost self explanatory. As soon as Apple said it would stop paying Qualcomm the following thing happened.

Hailo lawsuits

Notice the volume in this chart. There’s a massive panic.

Expect more of the above from Qualcomm, which is seeing erosion in 'protection' money. It’s already way below its 52-week high. Apple has apparently stopped paying, sending Qualcomm’s stock into a tailspin on Friday (down almost 5% in just one hour). Having sent Florian Müller a couple of links about it (also included in our daily links), yesterday he published “Qualcomm reduces quarterly forecast by $500 million as Apple stops license fee payments” and said:

Bloomberg reports that Apple confirms having “suspended [license fee] payments [via its contract manufacturers in China to Qualcomm] until the correct [fair, reasonable and non-discriminatory = FRAND] amount can be determined by the court” and that Qualcomm therefore has reduced its revenue forecast for the quarter ending June by $500 million. Given that the spring quarter is not the strongest one for mobile phones (the closest the next iPhone model is, the more customers wait until they buy), this indicates more than a $2 billion impact on Qualcomm’s annual revenue and profit.

Just like the analyst quoted by Bloomberg, I’ve previously described patent disputes as an “all-out war,” but I try to use the term sparingly. I’m not saying that’s not what it is. I just want to wait and see how the dispute unfolds. There can be no doubt, however, that the stakes are high.

The $500 million figure for a quarter that is not the strongest one of the year is not really inconsistent with what I recently estimated to be Qualcomm’s royalty demands.

Qualcomm is a parasite which we hope will lose even if we don’t generally support Apple. What’s at stake here is FRAND with software patents. Qualcomm needs to justify its existence by making actual products, not just taxing products.

“Spectator” and “The Patent Scam” (New Site/Movie) Tackle the Patent Trolls Epidemic

Posted in America, Asia, Patents at 5:11 am by Dr. Roy Schestowitz

The Patent Scam

Summary: The mainstream criticism of patent trolls, culminating even in movies like “The Patent Scam” and others, might be enough to sway public opinion on the subject

FOR a number of months, especially since last year, we have mentioned that Singapore was already attracting a lot of patent trolls. One example was Creative, which made and sold products in the distant past and is now trying to convert almost-expired patents into cash. According to IAM, the Singaporean patent office (IPOS) wants more of the same, as one might expect from an office which wants to justify its operations and is apathetic towards industry (like the EPO, which took this to a whole new level, just like SIPO in China).

“Patent trolls have troubled just about everyone except the patent microcosm, as the patent microcosm profits from them. Team UPC, for example, happily promotes patent trolls. So do publishers like IAM, who even receive cash from patent trolls and organise whitewashing events for them.”Under its current leadership, the USPTO has managed to drive many patent trolls out of business. It’s not a coincidence; the epidemic of patent trolls visibly troubled Director Lee. She spoke about it. No wonder industry supports her, unlike the patent microcosm.

Patent trolls have troubled just about everyone except the patent microcosm, as the patent microcosm profits from them. Team UPC, for example, happily promotes patent trolls. So do publishers like IAM, who even receive cash from patent trolls and organise whitewashing events for them.

Spectator, which is widely read, published the article “Patent Trolls Don’t Care About the Law” a few days ago. This article was promoted by the publisher and by United for Patent Reform [1, 2, 3]. “An ugly cynicism underrides their bottom-feeding efforts to claim patent infringement,” the publisher said in the summary and a comparison is made to scum-sucking fish. See the accompanying photo. Here is a portion from this article:

Defense of today’s patent system can be a difficult job. At its best, the system can encourage innovation, protect the sacred rights of inventors, and do it highly effectively. At its worst, it falls prey to loopholes and day-to-day issues that make it fertile ground for abuse and negligence. Not to mention, it arguably is reliant on one of the least competent regulatory agencies in the entire federal bureaucracy and sometimes seems to provide more protection to trial lawyers, university administrators, and other infamous sucklers at the rent-seeking teat than it does to actual inventors.

Small wonder, then, that those trying to defend the system in an unreconstructed form usually resort to accusing their opponents (falsely) of being against patents, or even intellectual property altogether, as if this is a debate over first principles, rather than what sort of system can best serve those first principles, and how to tweak the current one in pursuit of that.

However, say this for the patent system’s most strident defenders: A good number of them do seem to care deeply about the first principles in law and policy they purport to champion. Sadly, this often fails to ennoble them, rather reducing them to unwitting apologists for people who share none of their deeply held moral, legal, or political views.

Why? Because the people who benefit most unjustly from the present patent system lack principles entirely. I refer to non-practicing entities (NPEs), known colloquially as patent trolls, a group of firms that exist purely to register patents and then accuse actual inventors of violating them, all while demanding that people who actually invented the things they claim to have patented should pay them for the privilege of doing what they were unable or unwilling to do. In other words, this is an industry that makes its money through the sleaziest mix of nuisance lawsuits, legal intimidation, and pervasive disingenuousness.

Patent trolls have thankfully become a widely-recognised issue, but the only downside is that many people lost sight of the problem which is software patents (that trolls tend to rely on).

“Patent trolls have thankfully become a widely-recognised issue, but the only downside is that many people lost sight of the problem which is software patents (that trolls tend to rely on).”There is a new site/movie called “The Patent Scam”. “Come watch a screening of the patent scam and join a policy discussion on patent trolls,” said a promotion from Engine, “hosted by Julie Samuels.” (its President; slightly modified quote).

Unified Patent Propaganda Courtesy of a Cabal of Firms That Constructed the UPC

Posted in Deception, Europe, Patents at 3:57 am by Dr. Roy Schestowitz

From IAM’s Web site, which promotes the UPC

IAM events

Summary: The Unified Patent Court (UPC), a proposed patent litigation system which would harm European industry for the benefit of law firms and their largest clients (abroad), is only being boosted by few selfish and patently dishonest stakeholders, including/enjoying the EPO's massive PR/lobbying budget (FTI Consulting)

THE UPC is not happening. It’s definitely not happening in the UK, which means that the whole thing as it stands cannot become a reality (Germany won't ratify). But with lobbying muscle, Team UPC believes, anything can be accomplished, even the impossible. By lying to politicians or intentionally misleading them about the law, Team UPC hopes they can be compelled to sign truly ridiculous things. Defiance of the law can be tolerated when the ends supposedly justify the means?

“By lying to politicians or intentionally misleading them about the law, Team UPC hopes they can be compelled to sign truly ridiculous things.”The “UPC [is] Delayed”, wrote the patent microcosm in Cologne, Germany. But why just “delayed”? For the time being it’s dead and there is no redemption. If the “unitary” effect (or patent) cannot happen in the UK, then they need to rewrite the whole thing, maybe even abandon it altogether. Team UPC knows that it needs to be rewritten, then rebranded. It’s already working on it. To be fair, the claim comes from “IP Fridays” which titled its latest episode “Interview with Jeannie Hill – SEO For Brand Owners – UPC Delayed – Important FCJ Decision Regarding Nullity Actions” and not too shockingly the claims of “delay” come from the patent microcosm. They still try hard to maintain the illusion of inevitability. There are deep vested interests.

“It’s like those apathetic politicians who outright dismissed the possibility of Brexit back in 2015.”Kingsley Egbuonu, writing for Managing IP from London, maintains the “progress report” headline in his periodic writings about the UPC. To him (like others inside the echo chamber), the very concept of UPC failing is unthinkable. It’s like those apathetic politicians who outright dismissed the possibility of Brexit back in 2015. Their assumptions say a lot about their smugness and confidence. This led them and many others to a total catastrophe.

The other day Managing IP mentioned the petition against UPC in the UK, whereupon I challenged their ridiculing tone. “We’re publicising the petition,” they told me. “And we’re not linked to Battistelli or lobbyists for UPC.” Well, they did a lot of puff pieces for and about Battistelli; they also helped organise many UPC echo chambers (we wrote about these many times). “Your coverage of the UPC never really explained the pitfalls of it,” I told them. “Never that I can recall…”

“Previously, UPC events from IAM were funded by the EPO’s PR firm and supported explicitly by the EPO.”They gave a list of articles from 2011 and 2014 that mentioned issues with the UPC. I then asked them: “What happened after that? Not seen any recently. All the recent ones are more like cheerleading dressed up as journalism. Not even the BoA/AMBA was allowed to speak about these matters; only Battistelli — repeatedly even.”

“Once UPC was agreed,” they responded. “we made a decision to focus on looking at practical issues, rather than re-hashing old arguments about its merits…”

I clarified that UPC was “agreed among few special interests in echo chamber-like events, not the public…”

“However,” they added, “we have also given space to voices critical of UPC & Unitary Patent, eg in Spain & Poland http://www.managingip.com/Article/3501282/Unitary-Patent-and-UPC-the-state-of-play.html …”

“We worry that a lot of the pro-UPC voices these days are disguised as journalists (or as “bloggers”) but are actually little more than self-serving lobbyists.”“It’s true that we have sought interviews with AMBA (not specifically on UPC),” they then said, “and permission was refused by the EPO president.” We have highlighted this separately because we deemed it very important. It’s rather troubling that Battistelli is now controlling the media like this. It serves to also demonstrate that Battistelli lies when he claims that BoA (or AMBA) have independence. He wants them redundant and muzzled at the same time.

“Well,” Managing IP concluded, “we do what we think is most appropriate & useful for our readers. Can’t speak for others.”

Well, the readers are the patent microcosm, so it’s not particularly shocking that there is pro-UPC bias there.

“Just because some false reports (factually incorrect) about it have emerged there recently (citing/quoting Team UPC) doesn’t mean it will become true…”Meanwhile, over at IAM (EPO-connected), it is made apparent that UPC jingoism continues to spread. “Another major development that could alter the risk landscape for Korean companies,” they wrote, is “the Unitary Patent and UPC system in Europe #IPBCKorea pic.twitter.com/epvcuMyzh1″ (that’s a photo right there).

The UPC isn’t happening as they claimed in this IAM event in Korea (Team Battistelli recently lied about it in Korea). Previously, UPC events from IAM were funded by the EPO's PR firm and supported explicitly by the EPO.

We worry that a lot of the pro-UPC voices these days are disguised as journalists (or as "bloggers") but are actually little more than self-serving lobbyists. It leads to somewhat of a bubble. A couple of days ago someone wrote: “Let’s hope that the CJEU does not act like this in references from the UPC. ”

“UPC is disturbing not just because of its intended effects on the economy but also its corrupting effect on media, politicians, and so on.”But the UPC isn’t happening, partly because of the CJEU. What’s so hard to grasp here? Here is Team UPC trying to shift attention from the deal-breaking UK and instead focus on the Isle of Man again, citing the same erroneous ‘report’ as before. Just because some false reports (factually incorrect) about it have emerged there recently (citing/quoting Team UPC) doesn’t mean it will become true, as we noted the other day. It’s self-referential.

UPC is disturbing not just because of its intended effects on the economy but also its corrupting effect on media, politicians, and so on. Firms like Bristows, for instance, seem to be manufacturing/relaying non-existent quotes and based on this new report from Managing IP, lies pay off because “UK IP firm Bristows has hired a team of nine IP practitioners from London rival Berwin Leighton Paisner.”

“…when it comes to UPC, we have learned, lies pay.”Do these new employees understand that their new employer is full of liars? They’re antidemocratic. They mislead. They cheat. How can they get away with it?

Well, when it comes to UPC, we have learned, lies pay. Aeschylus, the father of tragedy, said: “In war, truth is the first casualty.”

We’re here to correct that as no matter how many times Team UPC is told that it’s wrong, it will nonchalantly continue with the same lies, e.g. about SMEs.

Twitter Shadowbans Critics of the EPO Now?

Posted in Europe, Patents at 2:51 am by Dr. Roy Schestowitz

Erdoğan and EPO

Summary: Criticise the EPO’s European Inventor Award 2017 (in a way that becomes visible), get shadowbanned by Twitter (rendering this criticism invisible)

THE EPO has long been censoring people. The EPO cannot tolerate criticism. It has been blocking Techrights for a number of years, it blocked IP Kat for criticism of the EPO (whereupon the criticism ended), it muzzled staff representatives many times, quarantined/deleted E-mails from the unions, sent me threatening letters (apparently it did this to others too), and as we showed yesterday, it also spiked a press interview with AMBA. How far does this censorship regime extend? It’s hard to tell. We suspect that censorship of media (like TV) has become routine, which makes the EPO a lot like Erdoğan, who is making headlines this weekend for even banning Wikipedia. Not a single reason is specified for this, so people can only speculate (maybe the Armenian genocide, unflattering information about Erdoğan and so on).

“How far does this censorship regime extend?”For a number of months I have been trying to figure out (it’s like reverse-engineering) what causes/entails a Twitter shadowban and at what point exactly. I wrote about it several times in my personal blog [1, 2, 3] and unwillingly I have become an ‘expert’ at Twitter shadowbans, which are mysterious because Twitter does not comment on the practice. We once explained/demonstrated the concept of shadowbans in relation to Reddit.

I only know two accounts in Twitter that belong to EPO staff and both, by their own admission, suffered shadowbans and openly complained about it. Some EPO observers said publicly last year (several times in fact) that I had been shadowbanned (I hadn’t even noticed myself at the time).

“Some EPO observers said publicly last year (several times in fact) that I had been shadowbanned (I hadn’t even noticed myself at the time).”Twitter had not done that to me for a while, but it did this to me 2 days ago when EIA 2017 was mentioned, shadowbanning me for 24 hours. So I wanted to assure myself it was definitely what triggered it; I tried again this morning. These two tweets got me shadowbanned by Twitter (for sure) [1, 2]. This is what I had to say for censorship to kick in and make everything I say (or said) invisible for at least 24 hours (that’s over a third of a million tweets gone!). I didn’t say anything extreme, but immediately afterwards I was shadowbanned. What can I conclude from this? I was able to reproduce the same thing which happened 2 days ago. Whether there is something going on behind the scenes or perhaps an algorithm alone invoked the ban it’s impossible to know. It’s widely known that Twitter neither explains nor acknowledges its shadowbanning practices/policy. In fact, it doesn’t want “users” (whom it uses) to even know about this silent censorship strategy.

What Twitter may or may not realise is that in this case it gags voices critical of human rights abuses. What does that say about Twitter? This is not obscenity or trolls or “hate speech” of however they wish to justify these things. It’s purely irrational censorship.

04.29.17

RecogniCorp v Nintendo is Another Nail in the Coffin of Software Patents in the United States

Posted in America, Patents at 11:25 am by Dr. Roy Schestowitz

Last night’s pleasant surprise came from Nintendo

Nintendo

Summary: A precedential new decision against software patents is terrible news for the patent microcosm — something for them to spin or moan about for a long time to come

LAWSUITS against Nintendo have been covered here for a long time. The company has quite a lot of cash, so it’s an attractive target for opportunists and patent trolls.

“Maybe Watchtroll is trying to come up with a way to insult the judge/s — the same thing he did the last time it happened.”Yesterday, the Court of Appeals for the Federal Circuit (CAFC) did something which will likely to change the debate for months to come, maybe even years. We have made a local copy of this decision [PDF] because it’s likely to be mentioned (cited) a lot in the future and we don’t wish to risk losing easy/free access to it a decade down the line. Here it is as animated GIF:

Opinion on Nintendo

This decision will no doubt annoy the patent maximalists. It’s a catastrophe to them because it’s precedential. Watchtroll does not seem to have said anything about it (not that ignoring it would make it go away) and is instead mocking PTAB as usual or promoting software patents on Blockchain — a subject we explored here many times before, e.g. in [1, 2, 3, 4]. Maybe Watchtroll is trying to come up with a way to insult the judge/s — the same thing he did the last time it happened.

“This is a fantastic way to end the week (this decision was delivered late on a Friday).”Watchtroll could use “weekend” as an excuse, but his buddy, “Patent Buddy”, is visibly concerned with tweets like this: “Fed. Cir. Chips Away at McRO in Precedential Recognicorp v Nintendo”

Or even this: “RecogniCorp v. Nintendo, Decided Today by the Fed. Cir. Can Be Used to Kill Any Software Patent” (the word “kill” is a propaganda term of the patent microcosm, implying that patent invalidation is the moral equivalent of murder).

This is a fantastic way to end the week (this decision was delivered late on a Friday). It’s altogether very good news. CAFC has put out there quite a few precedential decisions against software patents recently. More on SCOTUS and CAFC will be published tomorrow (the less pressing/urgent news).

Battistelli is Busy Securing the Vote of Countries Whose Support and Tickets Are Easy to ‘Buy’

Posted in Europe, Patents at 10:56 am by Dr. Roy Schestowitz

Battistelli spends a lot more time protecting himself (and enriching himself) than the patent office he claims to serve

Monaco and EPO

Summary: Battistelli’s banana republic politics and tricks are viewed as his ticket to endless ‘leadership’ (domination by sheer force) of a sinking patent office, whose rules he repeatedly breaks (including lack of eligibility to run it, for multiple reasons)

FIVE months ago Battistelli made a notable visit which we wrote about in [1, 2]. Monaco is a ‘country’ whose vote is rather cheap to buy. The EPO can control even rich countries, provided they’re small enough (like Monaco). It’s an evident, obvious design flaw when the vote of a country like Germany carries the same weight as Monaco’s.

A couple of days ago the EPO published (caution: link to the EPO’s Web site, which means the EPO can harvest IP addresses) something familiar. The Corsican in Chief can have a little chat in French and then take another photo op for perceived legitimacy. Photo ops of Battistelli with officials of tiny ‘nations’ (whose officials have been easy to ‘buy’ for their vote/support) have become quite a routine modus operandi.

Why does this matter (or does not matter?

As someone pointed out in a comment yesterday:

Did you see the puff piece about the agreement with the Monégasque patent office? Not one patent application was published by Monaco in 2016 and it looks like they average around three per year. Hardly worth the bother travelling to Munich for that but at least the ambassador got to visit the out of bounds floor of the EPO.

Another comment, prior to this, seemed to hint things had been going on which we need leaks about. To quote:

People, do not make yourself too many illusions! Battistelli has already announced that he intends to further prolong his mandate. He has the support of the small contracting states whose votes he buys with plenty of cooperation money (there is no control on this and plenty of money is available).
He will proceed this way: 1) make sure that the post is not timely announced; 2) make the sacrifice and accept to remain at the request of the majority of the small states. A very simple strategy.
The big contracting states will have to accept: France for the pride: UK does not exist; the Germans do not care; the Dutch will have their building; Italy is totally irrelevant etc.
A disaster for the EPO !

We are not familiar with evidence showing that “Battistelli has already announced that he intends to further prolong his mandate.” Is this something that someone can leak to us? Apparently, based on the following comment, Board 28 completed its meeting a few days ago. We don’t know what happened there; all we know is that SUEPO wrote a letter to the Members of the Board of the Administrative Council. Here is what the comment said:

So Merpel, not even curious what the B28 decided yesterday about the selection of the new EPO President? Which countries are in the running? Or is it extension time? Chances of a post or pre Brexit UK President?? Timed to encourage signing that UPC document? The possible machinations and plotting could be infinite. Maybe even not an AC member for the first time? An external CEO, but with little or no IP knowledge? Who knows?

Someone ended up responding to it this morning by saying: “Jog my memory if you will … but unless I’m mistaken Alain Pompidou wasn’t an AC member … The smart money is on the head honcho of the EUIPO …”

That’s Antonio Campinos, who some believed would replace Battistelli.

We clearly have some lapse/gap of information here. We would like to know what happened at the meeting of Board 28 and what Battistelli’s position is on the upcoming (one year from now) end of his term. It certainly looks like the Organisation has got an Erdoğan in its hands and unless something is done to stop this, patent applications will continue to diminish, rendering both the Organisation and the Office obsolete, harming all past EPs and harming the European economy. Kongstad, for the record, is very much complicit in this.

Patent Snake Oil From Brunel University London and PatentDive

Posted in Europe, Patents at 10:21 am by Dr. Roy Schestowitz

Things were working more or less fine before Battistelli, who is technologically illiterate, came

EPO Frame Breaking

Summary: The ludicrous notion of replacing patent examiners (or searches by humans) with machines is seriously considered by some who should know better… but don’t

THE EPO under Battistelli strives to replace examiners with machines. Anyone with a clue about science, i.e. not Battistelli, would immediately know that it’s bound to fail and it's already showing. This is what happens when politicians are put in charge of a patent office and anything a company like Google tells them they will swallow whole. They lack sceptical skills; their main skill is lying by omission, cleverly-worded non-denying denials and so on. This is why the EPO is in shambles.

The other day we spotted this snake oil from Brunel, which is advertised by stating: “A new computer tool is being developed by researchers at Brunel University London to help designers generate more innovative design solutions and avoid potential clashes with patent prior art emerging during a product modelling process.”

“This is what happens when politicians are put in charge of a patent office and anything a company like Google tells them they will swallow whole.”This is nonsense. Never mind how nonsensical patents on designs tend to be (just look what happens to Apple’s design patents at the SCOTUS and the EPO). There are many purely technical reasons why this won’t work and those who claim they can achieve this may as well just literally sell snake oil. In order to ‘automatically’ analyse patents one must grasp the semantics, use memory or deep knowledge of existing patents in a certain area, etc. That’s why there’s no substitute to highly experienced patent examiners in their respective fields. The more patents they have seen and become familiar with, the better prior art analysis (and reporting) can be carried out. It makes stakeholders happy. Crucial here is also lack of duplication, e.g. overpatenting. It’s a lot like peer review. A day or so later (after the above snake oil from Brunel) the following self-promotional nonsense got published as well. It says “PatentDive starts with an easy to understand assessment of what kind of patent an entrepreneur may need. Their are two categories, Appearance and Functionality. The platform explains that appearance dictates a design patent to protect the appearance and shape. If it’s functionality the startup is looking to protect, PatentDive points you towards a utility patent.”

“Will there be patents on patenting patent-generating machines? This can get recursive and outright ridiculous.”What we have here is proprietary software that would neither work nor save time. Last year there were many articles (dozens in English) about computer-generated patents and what these would mean (their total number, the assigned inventor and so on). We compared that to financial trading using algorithms — a growing ethical and practical problem in economics.

We worry that those who can fool the Battistellis of the world are so eager to replace people with machines (it’s profitable to the snake oil merchants) that they have completely lost touch with the purpose of patent systems and how these are supposed to function. Will there be patents on systems for filing patents? Or patents on patent-generating machines? Will there be patents on patenting patent-generating machines? This can get recursive and outright ridiculous.

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