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04.02.17

The Litigation Lobby is Causing Chaos in Patent Offices, Still in a Coordinated Effort to Convert Patents Into Nothing But Legal Chaos That Harms Science

Posted in America, Europe, Patents at 5:57 pm by Dr. Roy Schestowitz

Earlier tonight: Growing Suspicions of Planned Obsolescence at the European Patent Office (replacing examination with prosecution Armageddon)

The litigation lobby
In their newsletter they are even quite blatant about it

Watchtroll great againSummary: Aggressive efforts to cause war and instigate unnecessary conflict at the expense of sharing and collaboration in the world of science, for nothing but the enrichment of (taxing by) the serial litigators such as trolls

IT IS not news to us that the Chamber of Commerce (essentially an influence/pressure group) is with the litigation lobby, as a lot of litigation or threats thereof might come from large companies against their minuscule competitors. CoC — as it’s often referred to (almost derogatorily) — stands for large multinational corporations, so the “commerce” part isn’t exactly frank.

“So the litigation industry wants legal wars.”Now that IAM and Watchtroll are lobbying Trump and trying to overthrow USPTO Director Lee so as to install this crook we should pay careful attention to IAM’s latest issue that promotes discriminatory thickets. “In recent years,” it says, “patent pools have once again become a hot topic, as well as a source of considerable controversy.”

It’s not hard to see why. These pools are designed to exclude small players and support/enforce an oligopoly. Watchtroll, in the meantime, citing the U.S. Chamber of Commerce which attacks India for disallowing patents on software (IAM was a megaphone for the Chamber of Commerce just weeks ago, also in relation to this point), complains about improvements in patent quality in the US (and decreased litigation). Joining him are the usual people, for instance John Harris (of a patent law firm) who said “USA continues to take steps backwards due to variety of self-inflicted wounds in patent system. (Duh.)”

“Cui bono? Certainly not scientists.”So the litigation industry wants legal wars. No surprise there. “That’s actually forward,” Benjamin Henrion corrected him, “depending on which side you are.”

Here in Europe we have similar problem because Battistelli demolishes patent quality whilst EPO management and Team UPC are lobbying aggressively for UPC. Cui bono? Certainly not scientists. They would be the ones to lose money to a bunch of non-producing (or unproductive) parasites.

“There are powerful forces pressuring and sometimes even bribing politicians to turn their back on reason.”“The only interest group in Britain which has any interest in the UK acceding to the UP [Unitary Patent] are law firms,” this new comment says. “British law firms which are just the post office of American and some Asian applicants will be marginalised if they will no be eligible to present before the UPC. Due to the high cost of litigation in the UK and by consequence the low number of court cases they have basically no real court experience and they wont get it before the UPC. To a very small extent Irish firms will take over, and German lawyers take the win. The best thing the British lawyers can hope for is no UPC at all or requalify as plumbers with all the Polish plumbers leaving the Island, this seems a more rewarding career prospect.”

It is important to recognise that progress and innovation (in science and technology in particular) are not on the agenda of every occupation. There are powerful forces pressuring and sometimes even bribing politicians to turn their back on reason. That’s a slap across the face to patent examiners who practice and study science.

Growing Suspicions of Planned Obsolescence at the European Patent Office

Posted in Europe, Patents at 1:45 pm by Dr. Roy Schestowitz

UPC (patent) trolling and EPO (budget) looting in transit

Planned Obsolescence
Reference: Planned Obsolescence (the monopoly the EPO has on granting patent monopolies is part of the problem, with UPC as the new ‘product’ to be sold when the EPO becomes obsolete)

Summary: The EPO is being rendered obsolete by Battistelli, but the eventual vocation remains uncertain, with some suspecting that Battistelli is willing to altogether destroy patent examination and swap that with a lot of litigation, preferably within a framework that’s designed to benefit large (deep-pocketed) multinational corporations

WE GENERALLY do not disclose who we speak to (nationality, gender, affiliation) and how many people we speak to regarding the EPO as that would only help the horrific, Nazi era-esque Investigative Unit (I.U.) [1, 2, 3, 4, 5, 6, 7], which seems to be the only thing that is growing at the EPO.

“Some don’t believe that there is a future to the EPO and Battistelli as an “agent of change” (so-called ‘reforms’) is more like an angel of death.”People whom we speak to have been concerned about the EPO for quite some time. Some don’t believe that there is a future to the EPO and Battistelli as an “agent of change” (so-called ‘reforms’) is more like an angel of death. If his goal is total destruction of the Office and the Organisation too, then he is doing a terrific job. Bravo, Bennie! But such destruction would in no way serve Europe’s interests; instead, it would devastate the continent’s economy for decades to come.

In the last post about the EPO from pseudonym "Merpel" (several different people use this name) it was acknowledged that things had gotten worse. There was a glimmer of optimism over intervention, but as one who covered this closely for nearly 3 years I know that the biggest battle — if battle is a suitable word in this context — is still ahead. Information is crucial in this battle because the EPO lies so routinely that it’s embarrassing to Europe. It’s the standard I expect when traveling somewhere like Turkey (not that I would travel there any longer).

“Information is crucial in this battle because the EPO lies so routinely that it’s embarrassing to Europe”As EPO insiders have already explained, the writings are on the wall and layoffs can be expected as early as next year. Not a few layoffs here and there but a massive avalanche of redundancies. What would then happen to examiners with their highly restrictive contracts? What would happen to EPs? Who would be left to properly examine applications rather than package and dispatch them like hot crème patissière? While calling these ‘products’ and arrival of applications ‘demand’ (as if these are invoiced in some ordinary business or production line)?

“You bet the EPO is heading for the closure of its expertise as we know it,” the following comment noted as the weekend kicked in. We thought it’s worth reproducing below because it looks like an insider wrote it:

Running out of work
Just follow the management decisions since the last 5 years and try to explain what they are up to:
- remove almost all extra-activities, projects from examiners.
- remove all time budget for medical visits.
- reduce holidays.
- pressure increase on sick workers.
- reduce time budget for classification, second examiner and chairman duties.
- remove the time budget for industry visits.
- reduce the time budget for learning and development.
- limiting the part-time workers by forbidding it or penalising the worker.
- forbidding all sort of leaves, even unpaid leaves.
- recruiting in large numbers creating an over-capacity.
all of these to increase the number of hours man-power,
and,
- pushing into a higher productivity, results in:
increased number of man-power and increased productivity equals a great increase of Production.
Now, after this tremendous call for the “war front line” , when we have almost all man-power devoted to the core-business, what does the management decide?
- the management decided to refund 75% of the fee for examination if the applicant withdraws the request. the management is even considering refunding 100% of the fee.
- let me remind all that we are running out of files/work!
Can anyone find an explanation?
Would a car factory wanting to stay in business refund the money for ordered cars? Do you believe that the stakeholders of this factory would be happy to return the money even though the factory C.E.O. argued that there was/is a backlog? Wouldn’t you as a stakeholder investigate what’s happening? Wouldn’t a worker question what the hell is going on? … and if something is really “going on” wouldn’t the C.E.O. do anything possible to quiet all contradicting voices?
You bet the EPO is heading for the closure of its expertise as we know it. Now, if examiners are digging their own grave, isn’t the whole IP world just washing their hands? perhaps in a couple of years the EPO won’t be around and there won’t be Search reports and examinations by this office. My question is: does this suit the european industry? Is it fine with the attorneys with the EQE? Are the countries happy with this? You see, examiners do digg their own graves, but we are so used to make a good job and wish to keep always the inventors happy, that if you want to give as a hand, just stand quiet and watch us go down.
Just food for a though!

This provocative long comment attracted quite a few responses, including one that asked, is the “EPO on the path to become the EU WIPO?”

Running out of work

you write : My question is: does this suit the european industry? Is it fine with the attorneys with the EQE? Are the countries happy with this?

well the answer is obviously a YES since they are all aware and do nothing

The EPO on the path to become the EU WIPO ?

Maybe SIPO Europe is a better analogy. Or another INPI, where examination is barely in the lexicon. It’s almost mortifying to see what the EPO has become. As a software professional I worry that the EPO is granting software patents by the thousands each year and when/if the EPO goes under, the trolls will cross the Atlantic ‘bridge’ and come knocking on our doors, with or without a UPC-like regime. It is a real possibility — one that we have warned about for a decade.

“As EPO insiders have already explained, the writings are on the wall and layoffs can be expected as early as next year.”Another new comment was posted to that effect. “Running out of work” is the heading/signature and it says that “the title on this post aptly says: “it’s curtain time. The new structure that replaces Minnoye will sweep the floor for the big change which is planned for 2018.”

Staff representatives have already explained that it's against the EPC, but who is going to enforce the EPC? Certainly not this chinchilla of a man.

“As a software professional I worry that the EPO is granting software patents by the thousands each year and when/if the EPO goes under, the trolls will cross the Atlantic ‘bridge’ and come knocking on our doors, with or without a UPC-like regime.”Well, the latest comments suggest that several EPO workers certainly know that EPO is collapsing and believe it’s all intentional, or simply planned. “That is precisely what I told 5 years ago,” an EPO insider wrote, “but back then nobody believed me…”

“Weekend call,” one of the commenters joked about Battistelli's extravagant habitat by saying: “Yesterday security was called in for the 10th floor Isar, apparently a pair of BB’s shoes went missing. Were the royal suits burglared?”

Well, security was sent to chase away a bailiff, so the above sounds almost believable.

“This gross kind of abuse can happen because nobody is left to supervise Battistelli and his clique.”Commenting on Battistelli's latest money grab, this latest comment jokes about embrace of a new ‘calender’ — one with which to help Battistelli and his cronies loot the EPO even faster. “Since this month of March,” the commenter joked, “the EPO introduced a new (and inventive) Calendar. No, no! EPO does not follow the Gregorian Calendar , and the Julian Calendar is old news; The EPO implemented the Benotian Calendar, this is one calendar with 14 months and it goes like this: Janvier, Fevrier, Mars, Benier, Batisttil, Avril, Mai, Juin….., corresponds to 2 extra salaries, but Benier and Batisttil applies only for certain managers and it only works in French.”

This gross kind of abuse can happen because nobody is left to supervise Battistelli and his clique. 0% of stakeholders support Battistelli, yet somehow — miraculously — he keeps his job.

Speaking to some EPO insiders, we must conclude that at least some of them seem to believe that Battistelli won’t necessarily leave his job but instead he will bury the office under him (in his seventies), or sink with the ship that he is actively sinking. It’s quite scary a thought. It’s like a movie plot about a Mafia. The EPO is embroiled in many legal disputes and in many of them the EPO simply disregards the rulings of judges (ILO for example), then lies about it.

“Speaking to some EPO insiders, we must conclude that at least some of them seem to believe that Battistelli won’t necessarily leave his job but instead he will bury the office under him (in his seventies), or sink with the ship that he is actively sinking.”“I have spoken with my lawyer about the issue of going public,” one reader once told us. “In principle he agrees we might go public, but he begged to avoid it now right in these days: we actually start to get [to] actively pushing on them and they are going defensive. So when things are to go public we would like to have it going big — an embarrassment that they cannot patch up.”

That’s just one case of many we are aware of. We have a lot of documents and sooner or later all that ‘dirty laundry’ of the EPO is bound to be smelled. But will there be any EPO left by then? Something to actually salvage?

Quite a few people out there wish to go public with their cases, but seeing how Battistelli gets away with anything, they are reluctant. “Doing it now,” one person once told us, even “in a still rather limited section of the public, will surely irritate them but it will push EPO into some kind of (hysteric) reaction, irrational and typically self-indulgent yet enough to mess about and give us additional trouble, something we don’t need right now.”

“We have a lot of documents and sooner or later all that ‘dirty laundry’ of the EPO is bound to be smelled.”It’s no secret that Battistelli holds as ransom/hostage people’s pensions, so even employees who are unjustly dismissed are afraid to talk. That’s the strategy of tyrants, along with collective accountability, collective punishment, harassment of spouses (yes, Battistelli’s office has done that too), and so much more.

The reason protections (such as ILO) exist in the first place is prevention of such scenarios, which allow a tyrant to simply 'take over' (entryism or coup) in a destructive and irreversible fashion. But these protections too are being abolished, ignored, etc.

One day, perhaps after the regime of Battistelli is toppled, a lot of shocking stories are likely to come out. Given the nature of the regime at the moment (like the Battle of Berlin) we reluctantly agree that the time is not right for publishing any of the personal accounts (unless anonymity can be preserved). I keep my complete notes on various cases for some form of publication in the future, as soon as it seems safe enough a thing to do.

“Is Battistelli willing to totally crash the EPO in order to make the UPC a reality? We certainly think so.”Many people think that big changes may be coming to the EPO (like dismissals of managements), but UPC progress — if any is made — may help determine the outcome. If Battistelli fails to deliver the UPC this year (even with the UK excluded, necessitating a massive rewrite), then his big business buddies (almost like bosses) will be upset and he will have lost popularity in these circles too. The only reason we believe Battistelli can survive right now is a bunch of low-profile billionaires who view Battistelli as the man to forcibly feed Europe the UPC, granting them all sorts of powers to bully their competitors (something like a ‘micro’ ISDS, wherein companies are collectively sued instead of states).

Is Battistelli willing to totally crash the EPO in order to make the UPC a reality? We certainly think so. The goal is to ‘manufacture’ as many patents as possible while preparing for mass litigation, fermenting a war on Europe from the outside (including from China, which already does this strategically in East Texas).

Team UPC ‘Took Over’ IP Kat, Readers Don’t Believe What It Says

Posted in Deception, Europe, Patents at 9:03 am by Dr. Roy Schestowitz

Unified around the idea that UPC is desirable and inevitable (it's neither)

UPC KatSummary: Outline of responses to two promotional articles about the UPC, courtesy of staff from firms that are propelling the UPC for self gain

“MERPEL” (a pseudonym of various people at IP Kat) no longer covers EPO scandals, which leaves more room for Team UPC to push its agenda that worryingly enough overlaps Battistelli’s agenda. It’s sad to see, but that’s what IP Kat recently became.

“For those who have not been paying attention, following the Article 50 news IP Kat published not one but two puff pieces about the UPC.”Yesterday we wrote about Bristows' latest nonsense about the UPC and MIP's latest 'marathon' of UPC reports which are all hinged on 4 words from an alleged (unnamed) “spokesperson” for UK-IPO. IP Kat readers are not stupid and ‘awkward’ questions like this one are being asked: “Would you mind letting the readers know the exact source of these “news”? Is the above based on an official statement by the UK IPO and if so, where can this be found?”

For those who have not been paying attention, following the Article 50 news IP Kat published not one but two puff pieces about the UPC. The articles attracted over a dozen comments and all the comments are negative, disagreeing as usual with the original posts. And rightly so. We have, for quite some time, complained about this and we happen to know that even some former ‘Kats’ are not entirely happy with this bias.

“In this post we wish to focus on rational responses rather than pure marketing from Team UPC.”What has the IP Kat been reduced to?

In this post we wish to focus on rational responses rather than pure marketing from Team UPC. Typically, in most sites, articles are a lot saner than the comments, but in IP Kat — at least as far as UPC goes — it’s exactly the opposite.

“The UPC is nothing more than a Trojan Horse coming to put European industry under pressure,” said this comment. Here is the full comment:

Who is taking whom for a ride?
If UK wants to kill the UPC, this is the best way to behave.
One thing is clear: the lobbying of some circles, not to say U.K. law firms shows that what reasonable people consider stupid and foolish, might nevertheless become true.
Which reasonable legal adviser can suggest to his client to go for the UP, when it is not sure what will be the fate of the UPC.
I am still waiting for somebody to explain in a clear and concise matter how UK can stay in the UP after Brexit, and how enforcement will take place in the U.K. or in the other states for a decision taken by a local court or the section of the central court in UK.
The UPC is nothing more than a Trojan Horse coming to put European industry under pressure. Remember the proportion of applications coming from EU member states at the EPO? At best a third! And how many SMEs among those?
It is time to stop the ongoing hypocrisy.

Later on the same person expanded a little further. Added elsewhere was this comment which said, “who will be the beneficiary of the UPC: the US, Japanese and Chinese companies.”

And patent trolls in particular. To quote:

One of the comments above made it clear who will be the beneficiary of the UPC: the US, Japanese and Chinese companies. Where is the benefit for European industries and especially European SMEs? Being generous, may be a good third comes from Europe. And where does the rest come from?
The problem with the judges is not only of procedural nature. Interpreting the EPC is also at stake. When one sees that how decisions of the the boards of appeal are superbly ignored by national courts (and vice versa), why should this change under the UPC? Remember that in the big countries there will be two national judges in a panel, hence conclusions are easy to draw. Any idea how to resolve the necessarily upcoming of conflicting case law between the BA and the UPC? May be by not just sending the BA to Haar, but in orbit, as once Mr Pedrick suggested to do for the search documentation…..
As for Max Drei, what he says is exactly confirming what I have just said. Let’s do it the British way, which is the only right one! And that should represent a unified legal system? Please do not abuse the credulity of the reader. And on top of it there are so many unresolved legal issues following the Brexit, that any legal adviser suggesting his client not to opt out should be struck of the list of qualified representatives be it before the EPO or the UPC. The only thing such a representative does is to insure that his purse is well filled and that is it.
Hypocrisy has to stop. The UPC is so laden with errors of conception, that the Brexit is the opportunity to see how thing could be made better, and really to the benefit of European industry and SMEs. Already now the share value of companies depends on the litigation started. Do we really want this in Europe?

The following person (probably an attorney) responds to the above allegation about “US, Japanese and Chinese companies.”

Observer, you suggest that pan-European benefits litigants from outside Europe more than domestic industry. The EU Registered Design Right was also supposed to help domestic industry against competitors from outside Europe. You know: nobody ever files for design registration outside their home country, that logic.

Yet my feeling is that EU Design Registrations are mainly used by non-European claimants against European defendants.

Here we go again?

Compare jurisdictions outside Europe: US, JP, CN. Who can deny that litigants in those jurisdictions go on enjoying huge “home advantage” by playing at home, in their own courts?

But this is why I cherish my European heritage. More fairness, and less nationalism and protectionism than in other jurisdictions. At least, in the recent past that is.
Saturday, 1 April 2017 at 17:

Then they spoke about Battistelli, hypothesising that we may “have here the secret agenda of the president of the EPO. Let everything go down the drain, so that the only place to litigate will be the UPC.” Rumours used to say that Battistelli would attempt to spearhead the UPC, too. A king for a decade? Two decades? More? Here is the comment:

When one sees the sudden increase of grants, but without loss of quality…., and the way the boards of appeal are ill treated, with the fees having to go up, and the posts being only sparingly filled, one wonders if we do not have here the secret agenda of the president of the EPO. Let everything go down the drain, so that the only place to litigate will be the UPC. And this is a good forum for companies having deep pockets. But no it is just for the SMEs. Convenient, n’est-ce pas?

The following comment explains that the UPC “was a bad idea from the start, irrespective of Brexit. Pushed for by the litigation community…”

It was a bad idea from the start, irrespective of Brexit. Pushed for by the litigation community in complete ignorance of the realities of the industries they purport to represent. Further evidence, if it were ever needed, of the self-serving bubble of ignorance and incompetence in which such lawyers reside.

Seeing the original delusions from Bristows, one person rightly or justifiably joked: “This is an April Fool’s, surely…..?”

Well, Bristows is lying, not joking. There is a profound difference between those two actions.

Another person said:

The UK is busy gathering cards to play in its negotiations with the 27. Hinting at weakened co-operation on security against terrorism is just one dirty example. Ratifying the UPC is just another card in the hand.

The UK should oppose swallowing the UPC as British businesses certainly do not want the UPC. It would only harm them. As one EPO insider put it the other day, “IPKat becoming a mouthpiece of the UPC lobbying clique? Jeremy we miss you!”

“Smyth wants us to wrongly assume that the UPC is about to start irrespective of the UK.”Well, even some former ‘Kats’ miss him. He used to actually antagonise Battistelli. Look what his blog became after he had left, habitually deleting my comments. The UPC boosters, especially after he had left, used the blog for shameless self-promotion. It’s not just Bristows but Darren Smyth also. He wrote: “There will be likely at least a year of uncertainty between the UPC opening, and the question of the continuing participation of the UK being resolved. If there are no enough users of the system, it may not be financially viable and then again its future would be open to doubt. Here again, readers will doubtless have their views.”

That’s a very loaded statement which doesn’t really belong at IP Kat. Smyth wants us to wrongly assume that the UPC is about to start irrespective of the UK. Nothing is true about certainty at all (even outside the UK) and pretending that it’s inevitable is part of the brainwash we’ve repeatedly complained about.

“They’re like a political party, the “UPC Party”.”Remember MIP’s UPC lobbying events — the ones without any critics of the UPC in them? Darren Smyth personally participates in such events, in his capacity at a law firm; no actual producers are invited, attending etc. (it’s super expensive and designed to exclude some views, just like RNC and DNC). They’re like a political party, the “UPC Party”.

Smyth wrote: “This is the crux of the matter. At an event on Brexit and IP convened by IPAN, there was some doubt about the attractiveness of a new patent and litigation system whose membership was, from the very beginning, in doubt. Those interested in the effect of Brexit on IP should look out for IPAN’s forthcoming report: “IP, Brexit and beyond – a blue-print for action in IP”, which will be based on the event. Similar concerns were voiced at the MIP International Patent Forum.”

Here again is that same old UPC promotion. Echo chamber, courtesy of IP Kat. So from being a Battistelli antagonist the site has turned into a weapon of Battistelli’s agenda. How sad…

Thankfully, the responses are all pretty much dissenting, in the sense that they don’t share the same optimism as the original writers’ (as is common in IP Kat these days). Bristows' views in particular received a lot of flak.

One person wrote:

I remember 1978 when the PCT and EPC got started. Applicants were very cautious, but the economics of filing PCT/EPC were so much more attractive than continuing to file national. The EPO did nothing to dent confidence in its procedures or in the way it examined substantive patentability. So then, after a few years of caution, and of keenly monitoring EPO performance on thousands of cases, everybody simply piled in.

That was the level of cautiousness then. I cannot imagine it is much different today.

But think about when the deciders ask: Unitary patent? Why should I?

Is there any persuasive answer why they should? we are always being told that industry hates uncertainty. Is saving on annuities enough of a reason to switch to unitary? In Big Pharma, who is going to volunteer to go first?

Here is more:

“If the UK is peripheral to the operations of a company….”

Here’s the rub.

For most major patent filers, and thus most major litigants, and thus most of the (potential) major users of the court, the UK is indeed peripheral to the operations of the company (emphasis on company).

However, for the patent litigation system, both: (i) as it stands at the moment; and (ii) as projected under the UPC, the UK is a very important component. The UK has been a significant contributor to the design of the UPC system, and is also significant in terms of the contributions from judges, the patent jurisprudence, and (to be honest) the lawyers.

How is the circle going to be squared?

Then:

Comment #2 [above] asks how the circle will be squared.

It seems to me that England is an extremely important jurisdiction for high value patent litigation where fact-finding is key to the outcome. Mainland Europe doesn’t understand equity, disclosure, cross-examination. Time and again, business people in civil law jurisdictions get burned by English law fact-finding. The arrogant assertion “That’s for me to know, and you to find out” doesn’t end the matter if you litigate in England (or the USA).

So unitary patent or not, I see England having on ongoing important role to play, when patents get litigated in Europe.

“I can’t imagine anyone in their right mind who would put their Crown Jewels into the Unitary Patent system,” said the following comment:

I can’t imagine anyone in their right mind who would put their Crown Jewels into the Unitary Patent system.

The UPC is a different question entirely. However, it will be several years before those who can afford to opt their cases out take a look at whether they should revisit their decision.

With all “important” cases opted out by all those with deep pockets, what will there be left for the UPC to work with in the early years? There will of course be some cases where the proprietors can afford to lose their patent. But there will not be too many of those. There is only one group of operators for whom the UPC will be very attractive from the off: non-practising entities.

So, the UPC will be a troll’s paradise. With not many cases to go around, what is the betting that the various local divisions will end up “competing” against one another for the biggest source of “work”? And so what is to stop the UPC creating a European outpost of the Eastern District of Texas?

It’s not looking good. The only crumb of comfort that I can cling on to is that the Unitary Patent Package appears to contravene general principles of EU law, and so there is a faint chance that it could end up being struck down by the CJEU.

With “UPC,” one person asked, “what happens to the supremacy of the ECJ over UK law in this so bright and rosy independent future?”

Well, the British government intends to maintain legal supremacy, which means that the UPC remains untenable. David Davis is mentioned again in the following comment:

I still fail to understand how the UK government, while trumpeting loudly about being freed from the shackles of the ECJ, can boldy come along and ratify a treaty of which it knows full well it will be stepping out in 2 years time…could someone please explain the rationale behind this, other than some cynical attempt to gain negociating points with regard to the EU – after all, if the UK does ratify, and the whole thing kicks off, how long is the UK going to hold the system in a suspended state of animation pending negotiation of some kind of acceptable exit deal ? Listening to Theresa May in parliament at PMQs on March 29th, and David Davis yesterday, one gets the impression the UK government is going to do what it jolly well pleases legislatively as and when the time comes. Irrespective of the legal arguments presented in support of a Brexited-UK still being able to be a member of the UPC, what happens to the supremacy of the ECJ over UK law in this so bright and rosy independent future ?

Now that decline in EP quality (low quality in processes and grants) is no longer a secret, people rightly express concerns about what a UPC-like regime would mean. We suppose there will be an EPO rule of thumb some time in the future, something alone the lines of “EPs from number x upwards (or year y onward) are dubious and should be taken with a grain of salt.” The Battistelli era has been thoroughly damaging to the reputation of EPs, not just the reputation of the EPO, and the “number of NPE cases in Germany is rising steeply and the NPEs more and more tend to litigate outside of the USA,” said the following comment:

Proof of th epudding is very sceptical about the success of the UPC. Where I can understand that from a European point of view, things are regarded differently at the other side of the ocean(s). For non-Europeans the scattering in Europe (the capital of Denmark is Amsterdam, right? And something terrible is happening in Sweden. Sweden, by all means!) is gruesome and should be ended as soon as possible.
I thus expect that many American, Japanese and Chinese companies would welcome this one court fits all principle.

It has been announced that the court will have experienced judges: most of the leading patent jaudges in the UK, Germany, France and The Netherlands will appear as UPC-judges. Thus, quality of teh court will not be a problem.
A problem in the first years of the existence of the court will be the harmonisation of the procedures, where local habits may tend to be persistent.

The fear for NPEs as mentioned by Proof seems to be justified. At this moment already the number of NPE cases in Germany is rising steeply and the NPEs more and more tend to litigate outside of the USA (and thus in Europe). On the other hand: is the attitude of NPEs objectionable? I do not see that you should be a producer yourself in order to be allowed to stop others producing.

So, I do not share the bleak view of Proof of the Pudding and I share Max Drei’s comparison with the start of the PCT and EPC: in the long run (which hopefully may not be that long) the UP and UPC will be a success.

Finally we see better and broader realisation of the trolls problem in Germany. People are catching up with the latest. These trolls are already coming to the UK, too. Cautionary tale about the UPC? Only lawyers in London would profit from this.

“I say that the UPC will be a troll’s paradise because of two main factors,” said the following comment. To quote:

I do not object to NPEs. I object to “trolls”. There is a subtle difference between the two. A troll engages in abusive (threats of) litigation in order to extract income from a patent of highly dubious validity (or from patent claims that cannot validly be “stretched” to cover the activities complained of).

I say that the UPC will be a troll’s paradise because of two main factors. Firstly, the ridiculously high fee for filing a counterclaim for revocation. For the victim of abusive litigation, that’s effectively a tax on defending yourself. Secondly, there is still no functioning market for (patent) litigation insurance. This will leave SMEs in Europe as “easy pickings” for trolls… no doubt heavily backed by investment groups that will view all of this as a wonderful wheeze.

Going back to the above-mentioned possibility of patent trolls coming from abroad (including China and the US), the following comment says this:

Upon reflection, I take issue with your assertion that you would “expect that many American, Japanese and Chinese companies would welcome this one court fits all principle”.

The problem that I have with your assertion is not that such companies won’t perceive the potential advantages to the UPC. Of course they will. Instead, my issue is that all such companies will surely have European advisors… who will no doubt be pointing out to them that it is a complete no-brainer to opt out all of their important patents and applications (at least for the time being). And if their European advisors are not doing that, then I would question why not.

On a totally separate theme, Max is of course correct to point out that users were initially hesitant to utilise the EPO. No doubt the same theme will play out with the UPC. However, there is a crucial difference between the EPC and the UPCA. For the former, it has taken over 40 years for fundamental flaws in the governance structure set out in the EPC to be exposed (by a ruthless and self-serving borderline psychopath). For the latter, anyone who cares to consider in detail how unitary patents and the UPC can be made to work will realise that the system is already horribly broken before it has even started… not to mention that is also has similar flaws as the EPC in terms of governance.

I should point out that I am all for a well-designed, fully functional “unitary” patent system for Europe. I just haven’t seen one yet.

A response to the above said: “How convenient it was for the EPO President (on secondment from Paris) to skewer the EPO’s patent law-making” (as is usual from Battistelli). To quote:

Just one observation on that last posting by Pudding and his use of the term “self-serving”:

How convenient it was for the EPO President (on secondment from Paris) to skewer the EPO’s patent law-making Appeals Directorate DG3. Not only did it wreak revenge on his troublesome judges in Munich, but it has also helped the Paris Seat of the UPC to get up and running with an enhanced flow of pan-European patent disputes.

The CJEU always did have French as its working language so the “seat” of pan-European patent law in Munich always was an affront to La Grande Nation. Till now, that is.

We are sad to say that inside the comments there is a lot more factual information than in the so-called ‘articles’, which are actually like advertisements rather than reporting. If this is what IP Kat has been reduced to, then we have no choice but to carry on rebutting that UPC lobbying. Not because it’s IP Kat but because it is not correct.

Software Patents Under Unprecedented Invalidations Pace, Patent Maximalists Scramble to Reverse This Trend or Perception Thereof

Posted in America, Patents at 7:49 am by Dr. Roy Schestowitz

Related: The Patent Trial and Appeal Board Breaks Its All-Time Records, Revealing Continued Improvement of Patent Quality

False coverage rate
Reference: False coverage rate (the patent microcosm uses a statistically-misleading subset of cases or compares non-overlapping months to belittle the progress made and the low likelihood of software patents withstanding/surviving scrutiny)

Summary: Misleading narratives, plaintiff-friendly courts, efforts to oust USPTO leadership etc. have all been attempted in the face of system-wide amelioration of an otherwise abusers-friendly system; we present some examples of selective new coverage from the patent microcosm

SOFTWARE patents are the biggest problem for GNU/Linux right now. A lot of people don’t know it because patents don’t have any physical presence and they are typically silent in the background, e.g. back room deals and settlements. Trolls like to work in the dark, keeping their victims isolated and helpless.

“Should listen to this Episode BEFORE signing @TheLOTNET Targeted by patent trolls,” says this new tweet about a new podcast from IP Wire — an episode that touches OIN and Microsoft. We recently wrote about software patents aspects of OIN and inability to do anything about Microsoft’s trolls who are the company’s latest patent strategy against GNU/Linux [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]. Sadly, though many Free software proponents prefer to overlook the problem, patent blackmail persists and it harms the ability to freely distribute Free software such as GNU/Linux.

“Sadly, though many Free software proponents prefer to overlook the problem, patent blackmail persists and it harms the ability to freely distribute Free software such as GNU/Linux.”Thankfully, the US has been cracking down on software patents — a development we are profoundly thankful for. The Court of Appeals for the Federal Circuit (CAFC), together with PTAB, is smashing a lot of software patents to pieces. Patent maximalists like Crouch are trying to use CAFC to slow PTAB down, but they have not been successful. They also try to cause a stir for the removal of the Director of the USPTO, who has been partly responsible for various key reforms.

Not too long ago in Smartflash, LLC v Apple Inc. yet another software patent got invalidated/struck down by CAFC, as these lawyers have only just noticed:

More Patent Invalidated as Abstract Ideas

[..].

The case is Smartflash, LLC v. Apple Inc., decided by the Federal Circuit Court of Appeals on March 1, 2017. Smartflash owned three patents for technology that limited Internet access to data (video, audio, text, and software) to users who had paid for access. In 2013, Smartflash sued Apple in a Texas district court for infringement of the three patents. In 2015, the jury returned a verdict of infringement against Apple, finding Apple liable to Smartflash for $533 million in damages.

Suffice to say, law firms are not particularly happy about it. Some of them try to figure out ways around CAFC and writing to other law firms (behind paywall) they say: “Several recent decisions by the U.S. Court of Appeals for the Federal Circuit have untangled crucial uncertainties plaguing software patent applicants following the outcome of Alice Corp. v. CLS Bank International, 134 S. Ct. 2347, 2355 (2014).” (the headline is somewhat misleading and gives unnecessary optimism with, “Federal Circuit Cases Clarify What Makes a Valid Software Patent”).

“Sites like these tend the cherry-pick the minority (20% or so) of cases where CAFC and PTAB are not in agreement.”In other news about PTAB/CAFC team-ups against software patents, here is the National Law Review saying that a “determination by the PTAB [...] asserted claims were directed to patent-ineligible subject matter under § 101…”

Sites like these tend the cherry-pick the minority (20% or so) of cases where CAFC and PTAB are not in agreement. Here is the ‘beef’ of the article:

After the US Court of Appeals for the Federal Circuit addressed the very same issue and patent, the Patent Trial and Appeal Board (PTAB) reached a split decision, finding the claims to be patent eligible under § 101 despite new characterizations of the abstract idea and new arguments from the patent owner. IBG LLC v. Trading Techs. Int’l., Inc., Case No. CBM2015-00182 (PTAB, Feb. 28, 2017) (Plenzler, APJ) (Petravick, APJ, dissenting in part).

The patent at issue is directed to a user interface for an electronic trading system that allows a remote trader to view trends for an item. The patent owner asserted this patent against several defendants, who in turn sought covered business method (CBM) patent reviews in America Invents Act proceedings at the PTAB. One of the earlier cases resulted in a determination by the PTAB that the asserted claims were directed to patent-ineligible subject matter under § 101. On appeal of that earlier case, the Federal Circuit reversed and issued a non-precedential decision finding the claims patent eligible. In view of the Federal Circuit’s decision, the PTAB in the instant case allowed further briefing on the impact the Federal Circuit’s decision.

Another CAFC case was covered in lawyers’ media a short while ago. In it, patent law firms latched onto the edge cases (as usual) where patents were tolerated by CAFC, unlike PTAB. They try to accentuate the supposed ‘rift’ between the two, even though both PTAB and CAFC eliminate software patents most of the time and are also in agreement with one another (also on the issue of business method patents). To quote some portions from the microcosm:

Addressing issues of obviousness and anticipation in the context of an inter partes review, the US Court of Appeals for the Federal Circuit issued two decisions with respect to the same patent, vacating and remanding the Patent Trial and Appeal Board’s (PTAB’s) decision finding the claims invalid as obvious in the first case, and affirming the PTAB’s finding that the claims were not anticipated in the second case. Los Angeles Biomedical Research Institute at Harbor-UCLA Medical Center v. Eli Lilly and Co., Case No. 16-1518 (Fed. Cir., Feb. 28, 2017) (Bryson, J) (Newman, J, concurring in part, dissenting from the judgment); Eli Lilly and Co. v. Los Angeles Biomedical Research Institute at Harbor-UCLA Medical Center, Case No. 16-1547 (Fed. Cir., Feb. 28, 2017) (Bryson, J).

[...]

The Federal Circuit agreed with LAB’s contention that the PTAB’s findings were insufficient to establish obviousness under the correct claim construction. Specifically, the Court found that, while the PTAB concluded that the prior art references rendered obvious the treatment of erectile dysfunction via the claimed method, it did not make factual findings to determine whether those references showed it would have been obvious to use long-term continuous treatment with a PDE5 inhibitor to treat individuals with penile fibrosis and to achieve the arrest or regression of that condition. The Court noted that the correct construction of the pertinent claim language required more than simply treating erectile dysfunction. The Court also noted that the PTAB failed to consider the possibility that, even if the combination of prior art references taught long-term treatment with a PDE inhibitor of individuals with some forms of erectile dysfunction, a person of skill in the art may not have been motivated to combine those same references to treat individuals with fibrosis-related erectile dysfunction, for whom, LAB argued, the results would have been expected to be detrimental.

Why is there virtually no coverage of the 80% or so cases where CAFC looks into PTAB decisions (upon appeal) and agrees with PTAB? Well, that would simply not serve the “perception management” agenda of patent law firms and maximalists. They’re not being honest; they don’t tell the full story. That’s greed.

All Eyes on the Supreme Court (SCOTUS) Ahead of Decision That Can Weed Out Patent Trolls

Posted in America, Courtroom, Patents at 6:49 am by Dr. Roy Schestowitz

Even Canadian and Chinese companies currently exploit the Eastern District of Texas (East Texas for short) for litigation

Summary: The temporary economic boost in East Texas — a boost that piggybacks an abusive practice sheltered and even encouraged by East Texas — may be about to end when SCOTUS Justices do the right thing and starve crooked courts that advertise plaintiff friendliness

EARLIER this year we wrote numerous posts that mentioned SCOTUS looking into laches [1, 2, 3, 4, 5]. In simple terms, the recent SCOTUS ruling sided with patent trolls in the sense that Justices let them use the clock against their victim/s. There have just been two new examples of analyses from legal firms 1, 2], reaffirming our concern that patent trolls got somewhat of a boost from the ‘Supremes’ (Justices). But having said that, this case is of far lower impact than TC Heartland — another SCOTUS case which will be decided some time soon.

“In simple terms, the recent SCOTUS ruling sided with patent trolls in the sense that Justices let them use the clock against their victim/s.”There is a lot of press coverage about it (in recent days we found [1, 2, 3, 4, 5, 6, 7]), but it’s mostly dominated by patent law firms, i.e. patent microcosm as opposed to industry, academics, journalists etc. We don’t have time to comment on each article individually (we last wrote about the subject a few days ago), but the overall message seems positive. It certainly looks like the end of patent trolls (at least in Texas) is imminent. Based on our readings, the oral arguments (e.g. questions) suggest an inclination to overturn the decision, i.e. ban venue shifting.

“Whenever it’s delivered — no matter if unanimous of not — we certainly hope it will be the end for East Texas as we know it.”One particular article, this one from Orrin Hatch (US Senator for Utah, the Republican party), received a special mention. “Hatch is right,” one person wrote. “Patent trolls are strangling innovators working to improve our society.”

Here are some portions from Wired‘s article, composed by Hatch:

To take TC Heartland as an example, the defendant corporation in the case, an Indiana-based manufacturer of zero-calorie sweeteners, was sued in Delaware even though it has no regular or established place of business in Delaware and is not even registered to do business in the state. Despite the defendant’s lack of connections, the court found that Delaware was a proper venue for the suit because a small percentage of the defendant’s sales—approximately 2 percent—were purchased by a customer in Arkansas and shipped to Delaware.

Savvy plaintiffs know that current rules allow them to bring suits virtually anywhere they want, so they seek out forums where they know judges are likely to give them an easier shake. One federal court in east Texas in particular has become infamous as a magnet for patent litigation because of its plaintiff-friendly rules and sympathetic juries.

In 2015, nearly 45 percent of all patent cases nationwide were filed in that one court. Nearly one-third of all patent cases nationwide were handled by a single judge on that court. This is forum-shopping in the extreme.

We lack the legal experience to estimate/tell when exactly a decision will be handed down, but better right than quickly. Whenever it’s delivered — no matter if unanimous of not — we certainly hope it will be the end for East Texas as we know it.

The UK’s Involvement in a Hypothetical UPC Post-Brexit Far From Certain, Admits Law Firm, Contrary to Those Who Stand to Profit

Posted in Europe, Patents at 6:15 am by Dr. Roy Schestowitz

Perhaps truth simply does not matter when truth is detrimental to one’s wallet?

Upton Sinclair
“It is difficult to get a man to understand something, when his salary depends upon his not understanding it!” ~Upton Sinclair

Summary: The senseless optimism regarding the Unified Patent Court (UPC) comes only from circles that constructed it in an attempt to improve their bottom line

TODAY we would like to tackle some of the latest UPC deception. The EPO has (still is!) been silent since this PR charade, not saying anything about Brexit and the missed deadline for UPC ratification (now they say May, having said March 7th and then just March).

“Even UPC proponents might sometimes admit the truth and openly acknowledge that the UPC can be ignored for now.”A reader drew our attention some days ago to this legal analysis from Dechert LLP, which admits that the “structure of the UPC and the UK’s involvement post-Brexit are far from certain.”

Yes, it is not at all certain that any of this will ever happen. Even UPC proponents might sometimes admit the truth and openly acknowledge that the UPC can be ignored for now.

“One key issue already,” IAM just said, is “the Unified Patent Court Agreement. Government confirmed last November UK would ratify, but CJEU has explicit role.”

“The longer it goes on for, the greater the uncertainty and the deadlock, which can ultimately kill the UPC altogether (not just in the UK but in the entire EU.”Hence it is not compatible and David Davis, as we noted the other day, declared no role for courts like CJEU. Benjamin Henrion told IAM, “that’s why uk is delaying it…”

They can delay it on and on and on. The longer it goes on for, the greater the uncertainty and the deadlock, which can ultimately kill the UPC altogether (not just in the UK but in the entire EU).

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