04.13.17
Posted in Antitrust, Apple, Asia, Microsoft, Patents, RAND, Samsung at 12:49 pm by Dr. Roy Schestowitz
A company stuck in the past with nothing but a pile of patents (like Nokia)
Summary: The days of Qualcomm’s cash cow (a bunch of standard essential patents) may be numbered, as US, EU and Korean authorities belatedly look at the company’s practices and Qualcomm already caves
Qualcomm’s de facto monopoly (in the patents sense), as we’ve covered here before [1, 2], means that people pay Qualcomm a lot of money even when they buy nothing from Qualcomm. In some sense, Qualcomm does in chipsets what Microsoft does in software. It demands ‘protection’ money from just about everyone and it also has patent trolls to help punish for ‘noncompliance’ with unreasonable demands.
Qualcomm Lies
“It demands ‘protection’ money from just about everyone and it also has patent trolls to help punish for ‘noncompliance’ with unreasonable demands.”Not too long ago Qualcomm came under fire from Apple, even though it had abused many other companies. Florian Müller had a peek at the latest documents and found Qualcomm claiming “credit for enabling Pokémon GO,” which is of course nonsense. To quote Müller:
As the number of pages (the original complaint was approx. 100 pages, now the answer and the counterclaims fill 140 pages) shows, this is a huge commercial litigation and threatens to turn into a battle of materiel. Both parties have enlisted multiple major law firms. The first surprise here is that Quinn Emanuel is among the three firms representing Qualcomm, given that Qualcomm’s filing (in paragraph 192 of the counterclaims part) accuses Samsung–another company QE is defending against Apple–of sharing (with Apple) “a common interest in diminishing Qualcomm’s ability to obtain fair value for its innovations” and trying “to avoid paying fair value for Qualcomm’s intellectual property and to impede Qualcomm’s licensing program.” I wonder how Samsung feels about its own lawyers not distancing themselves from such allegations…
Is Qualcomm trying to suck up to the Japanese and Korean regulators with this “Pokémon GO” fairy tale? As one Android-centric site put it, Qualcomm has “Big Trouble in Little Korea” and an Apple-centric site said that “[i]n a 134-page filing with the U.S. District Court for the Southern District of California, Qualcomm provides a point-by-point rundown of Apple’s January lawsuit, denying a total of 389 allegations.”
“Is Qualcomm trying to suck up to the Japanese and Korean regulators with this “Pokémon GO” fairy tale?”What we have here are two patent bullies fighting one another and it’s clear that only law firms are guaranteed to win, as usual (parasites can’t lose).
Qualcomm to Pay BlackBerry
Meanwhile, as emerged in the news last night [1, 2, 3], Qualcomm will need to shell out a lot of money. BlackBerry, which has itself become akin to a patent troll (both directly and indirectly), expects to receive nearly a billion dollars from Qualcomm. “BlackBerry awarded $815 million in arbitration case against Qualcomm,” says a headline one reader sent to us about it. Might Qualcomm need to refund even greater amounts of money to other firms?
Qualcomm’s Abuses
Florian Müller published another article earlier today, having watched this case rather closely. “Qualcomm does not want European and Korean antitrust proceedings to impact its FTC litigation,” says the headline. Like Intel and Microsoft, Qualcomm has come under incredible scrutiny in several continents and the effect can be devastating to a company that depends so much on patents rather than actual products. To quote Müller:
Qualcomm, which would have us believe we couldn’t even play Pokémon GO if not for its wireless technologies, is fighting a global, multi-front war against regulators, industry players and consumers (who are piggybacking on the FTC case in Northern California).
On one of those fronts, BlackBerry just won an arbitration award over $815 million. Unfortunately, arbitration is opaque, so the legal basis for this is unclear, other than BlackBerry having claimed to have paid too much in license fees during an unspecified past period. The kind of wrongdoing here is totally unclear, and we also don’t know what an appeals court would have decided. Still, the $815 million award, which is final and binding, has made BlackBerry’s share price soar by 12%. For the Canadian company, it’s a huge amount of money. For Qualcomm, it’s also a very significant amount, but the bigger problem is that every independent finding of Qualcomm having overcharged someone makes it harder for Qualcomm to convince the courts of law and the court of public opinion that it’s just being bullied by the likes of Apple and Samsung and that all those antitrust enforcers have all just been misled by sore losers in the marketplace and by evil companies denying Qualcomm a fair compensation for its innovations.
This concern is real. A joint case management statement filed yesterday by the FTC and Qualcomm–”joint” in terms of being a single document despite virtually zero convergence on substantive questions–in the Northern District of California shows that Qualcomm is indeed concerned about how the various parallel proceedings could influence each other.
The above already mentions the news about BlackBerry, which is important. Is Qualcomm on the run from regulators?
Unfair and Unreasonable
“Apple’s challenge to Qualcomm is already having a positive impact, which is why we said we would support Apple right from the start (in this case alone).”So-called standard essential patents (SEPs) or RAND or FRAND are a subject we’ve covered here many times before. Last night IP Kat said that “It ha[d] been a busy couple of weeks for standard essential patents (SEPs)… and now we have the European Commission’s roadmap on SEPs.”
“FRAND is already in DSM,” Benjamin Henrion explained, “don´t know what is the status of this directive…”
Well, if SEPs like Qualcomm’s lose their legitimacy, the effects would be enormous and also impact software companies. In China, based on what IAM said earlier today, the subject of SEPs and patent trolls that wield them (like Ericsson in Europe) is being brought up and scrutinised. To quote:
We’ve seen a major patent pool introduce a new royalty rate structure aimed at enticing more developing-market implementers to get involved, the first foreign NPE officially enter China through a joint venture agreement, and Apple directly challenging the licensing terms Qualcomm agreed on with Chinese regulators. And, of course, the Beijing IP Court issued the country’s first SEP-based injunction against Sony.
Apple’s challenge to Qualcomm is already having a positive impact, which is why we said we would support Apple right from the start (in this case alone). Companies like Qualcomm offer far too little to society but more importantly, they set a dangerous precedent to be exploited by all sorts of other companies and harm productive companies. █
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Posted in America, Patents at 12:12 pm by Dr. Roy Schestowitz
Good news and real progress for everyone except the litigation lobby that endlessly attacks her and attempts to oust her
Those who are making money from human suffering (death, being sued into bankruptcy etc.) suffer a setback
Summary: Michelle Lee, the Director of the world’s leading patent office, shows a positive legacy, but at what cost considering the predators who took over and occupied this system for their endless profit (like the “Military-Industrial Complex” which Dwight Eisenhower warned about 56 years ago) that necessitates legal mayhem?
THE USPTO, unlike the EPO (see our latest article), is improving patent quality, as part of a long-needed reform which harms nobody and helps everyone except patent radicals.
“Putting aside the courts, PTAB is invalidating patents at record levels (higher rates than courts)…”Litigation is declining (lawsuits over patents) and even sites of patent maximalists acknowledge this trend by stating (last night) that “district court filing lagging previous years” and “[f]irst-quarter patent infringement lawsuit filing in US courts was essentially the same as 2016’s first quarter [far below the prior year].”
Putting aside the courts, PTAB is invalidating patents at record levels (higher rates than courts), rather than facilitating abusive litigation (instead undermining it or thwarting it before it can even happen at great cost/expense to the accused/defendant). It’s working out pretty well as it not only invalidates a lot of patents but also reduces confidence in many patents like these (to the point where fewer people would bother risking a lot by initiating litigation at district courts).
“Lives will be saved as a result and millionaires who are shareholders will have to worry just a little about their already-fat earnings, which depend on people dying (or almost dying and going bankrupt to avoid death).”“Generics Successful at Invalidating Novartis Gilenya Patent,” said this headline from yesterday, courtesy of a PTAB foe. To quote: “At the conclusion of its Inter Partes Review (IPR) Trial, the Patent Trial & Appeal Board (PTAB) found all claims of Novartis U.S. Patent No. 8,324,283 invalid as obvious. The PTAB had allowed Novartis to include substitute claims as well, but found those also unpatentable as obvious. On appeal here, the Federal Circuit affirms.”
Lives will be saved as a result and millionaires who are shareholders will have to worry just a little about their already-fat earnings, which depend on people dying (or almost dying and going bankrupt to avoid death).
Be aware and rest assured that the patent maximalists will fight back and try to reverse all the above, as it makes them obsolete.
“These events are business-oriented and steered by what Florian Müller called last week “patent extremists and fundamentalists,” saying that they “continue to get their way.” Unless we stand in their way…”Here, for example, we have new promotion by Annsley Merelle Ward from the Litigation Lobby/Team UPC. She pretends that the Fordham IP conference is something to be celebrated (by litigation zealots it is). It’s acting as a think tank sponsored by patent bullies like Microsoft; yes, Microsoft is a speaker again (“Brad Smith, President and Chief Legal Officer, Microsoft Corporation, Redmond”). Remember that Fordham IP promoted software patents in Europe, it does UPC lobbying, and it gives a platform to software patents lobbyists such as David Kappos (sponsored by Microsoft, IBM and other patent bullies). It’s no better than those UPC lobbyists’ events, which are supported by the EPO’s management and sponsored by its PR agency.
These events are business-oriented and steered by what Florian Müller called last week “patent extremists and fundamentalists,” saying that they “continue to get their way.” Unless we stand in their way… █
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Posted in Europe, Patents at 11:20 am by Dr. Roy Schestowitz
The mainstream media is finally talking about it
Summary: The sharp decline in quality of EPs is being noticed by EPO insiders, EPO stakeholders (attorneys, applicants etc.) and even the media, which tells the wider public about it
TECHRIGHTS has already spent years writing about declining quality of patents granted by the EPO, usually but not always based on words from the inside (insiders do express great concern about it, only to face threatening words from Team Battistelli if they do so publicly rather than privately).
As recently became apparent, outsiders too are noticing and Thorsten Bausch (Hoffmann Eitle) did a whole series about it. Not only he is complaining; watch the comments on his posts (mostly from other patent practitioners) and recall this recent poll from Juve, which showed that patent practitioners are getting fed up with the EPO. So do their clients. In other words, nobody at all seems to be happy and nobody is gaining from this. Maybe some patent trolls overseas are already licking their lips over the potential to sue a lot of European businesses they previously could not sue. Look what happens in Germany, which is quickly morphing into a hub for patent trolls. At whose expense would they gain if the UPC became a reality in Germany? Has Germany learned nothing from the errors of the USPTO?
“Usually the more you speak about something,” someone wrote today. “the less you practice it. Let’s us try with Quality at EPO, article over 2 pages…”
This refers to this morning’s article from The Register, which is based on our posts and posts from Thorsten Bausch. To quote the opening portion alone (it’s a long article):
When he’s not ignoring national laws and threatening employees, the president of the European Patent Office (EPO), Benoit Battistelli, is on a crusade to make things work faster.
Against an ever-more unhappy background of EPO staff and patent examiners, Battistelli has for several years put forward the same defence: he is making things run more efficiently.
Last month, as some countries called for his ousting, Battistelli presented figures and later gave a press conference focused on one thing: the EPO has granted more patents faster than ever before. And it has done so, he claims, with rising quality.
“The first of these is a key result,” he wrote in a subsequent blog post. “The number of patents granted has risen by 40 per cent, with the total reaching 96,000. It indicated that we’re processing more patents, more efficiently and with the minimum of delay. This achievement is not because there has been a significant rise in the granting rate. It is the result of the consistent application of a quality and efficiency policy and the reforms that we have made.”
A very similar philosophical thread was pushed by Battistelli last year as well. That time it was a pre-occupation with “early certainty” – which means an early indication to someone applying for a patent whether they are likely to have it approved or not.
Battistelli pushed the exact same points: greater speed while retaining quality. This is his overarching vision and the justification behind his campaign of intimidation against staff, as well as his rewriting of the rules of every part of the EPO that has resisted – even for a second – his reform ideas.
As usual, nobody disagrees with the author in the comments. The first comment says:
How long can it be before Battistelli’s Reality Distortion Field finally gives up on him?
The sooner the better I say….
“What makes you think He’ll relinquish his position in 2018,” one person asked about Battistelli. “The way he’s re-writing the the organisations remit, I wouldn’t be surprised if the necessary ‘hooks’ were already in place to ensure permanent control.”
We wrote quite a lot about that lately.
“A cynic might question whether this is partly because there’s less time to bill hours,” another person said. “It would be interesting to see whether, despite being busier, lawyers are billing less time against each patent.”
The situation may be good for Team UPC, which is now pushing Battistelli’s agenda, including at IP Kat sometimes. These are people who would profit if there was chaotic patent litigation all across Europe. They don’t care at whose expense…
“No doubt some companies like long processing times (likely phrarma who patent a lot),” said another person. “I seriously doubt most small companies do though: the last patent I got through took five years! What odds your company’s inventor works for you anymore by the time you know if spending R&D for v2.0 is financially viable?”
Another wrote: “Would somebody like to tell the US Patent Office? Where the practice is that not even a superficial examination is performed with just a rubber stamping and adding to statistics to prove how innovative US business are. All that then happens is that patent validity is considered “somebody else’s problem”, much to the delight of the US legal system.”
Actually, the EPO has sunk below the quality of the USPTO in many ways. Patents that the USPTO is denying are now being welcomed by the EPO. The EPO is trying to outSIPO SIPO or simply become another SIPO. It would be highly destructive if it was allowed to go on.
“I can’t wait for the EPO to become a proper EU institution like so many others,” wrote another person. “Answerable to normal procedures (and ultimately to Parliament), normal laws, normal operating frameworks that can be amended if needed and people that can be fired if they don’t perform. These fiefdoms don’t benefit innovation.”
The way things are going, there might soon be no EPO left. UPC is an EU thing (hence Britain cannot participate) and EU-IPO seems to be getting close enough to the EPO to make a merger feasible.
Here is a comment relating to a subject we covered earlier this week:
“From 54 per cent unhappiness to 7.7 per cent by, um, deciding that everyone that didn’t answer failed to do so because they were 100 per cent happy with the EPO.”
And even then it doesn’t really help their case. 7.7% isn’t “close” to 4%, it’s close to double that number. Even after all those contortions, they still end up claiming that their policies have resulted in a 100% increase in unhappiness among their customers. That’s well past the point where a normal business would be asking serious questions about what’s gone so horribly wrong, and even if they try to spin it to not look so bad to the outside world they certainly wouldn’t be crowing about it in internal communications. I’ve mainly viewed Battistelli as your run-of-the-mill power-mad dictator, but it’s seeming more and more as though the entire management team has completely lost contact with reality. We’ve gone from regular Soviet-style propaganda to all out “Kim-Jong Benoit was born on a unicorn and invented rainbows”.
A suitable/apt response to that was:
As the old saying goes – Lies, damn lies and statistics.
If you take the figures in the story and change the spin to the opposite direction:
14.28% response rate because every one else is unhappy but don’t see any benefit in responding either because it will impact on any future applications, or because they think it won’t make a difference. This means 144 non-respondents with the 13 who did and weren’t happy is 157 of the 168 sample.
Or tp put it another way 93.45% of are unhappy. As is often the case with these things the actual figure will be somewhere between but just as a purely speculative number for take it half of non-respondents were happy and half weren’t. The satisfaction rate would then be 72 no response plus 13 who did = 85 of 168 = 50.59%
Seems to me that is still a much bigger unhappiness level than there was.
None of this would be complete with some quotes from concerned patent practitioners. One of them focused merely on the pace of granting rather than the quality. It’s about a controversial pilot programme we leaked in 2015, whereupon (after a huge amount of negative publicity) the EPO made it available to everyone and changed history (revisionism). To quote:
I fully understand and approve the comment.
One size fits all is not what applicants/user of the EP system need.
The present rush for quick grant (of easy files) is nothing else than applying the PACE procedure indistinctly.
The number of PACE application, has been, beside certain applicants, never been very high in the past. The reasons are obvious: it is when the validation start that it becomes expensive for the applicant/proprietor.
Why then get a patent quickly? There are no reasons to get a patent as quickly as possible for an applicant, unless specific reasons are present.
The only parties interesting in a quick grant are actually the member states. After grant, the annual fee go to the member states, and only 50% of the annual fees are for the EPO. Before grant, if grant takes more than 3 years, 100% of the annual fee goes to the EPO, and 0% to the member states.
How to get a “positive” vote from member states? Simply allow them to cash in very rapidly annual fees, or to “enhance” cooperation, in other send money from the EPO to the member states (or certain member states which are “worth it “.
Then one should not wonder why certain decisions are issued by the Administrative Council of the EPO. Tactically very clever.
The question is thus: is the primary aim of the EPO or the EPC to help member states or to help the users of the EPO/EPC system?
I think the answer is pretty obvious…..
Another person from that profession wrote:
Thorsten it is my understanding that the “early certainty” from search was intended for the public as much as the Applicant. I mean, when you review emerging A (and WO) publications, you want to do a clearance study. For that you need the prior art. Ideal then would be an A publication, supplemented by a perfect search report and perfect analysis of the adverse effects on patentability, and a law on “added matter” that excludes any improvement in Applicant’s position after filing. That’s as close to a “certain” clearance as you can reasonably get.
After that, it doesn’t matter so much to the public, if Applicant has divisionals pending till the end of the 20 year term, or if nothing at all issues till near the end of the 20 year patent term.
Is the EPO to be commended then, for giving more deference, these days, to the needs of the public, the same degree of deference in fact, as it gives to the needs of the Applicant community?
The original author, Thorsten Bausch, then wrote:
I am not sure whether the EPO management introduced this program in order to satisfy a heretofore unmet need of the public for earlier certainty, which I personally fail to recognize. Other motives suggested by some of the responders appear to me much more plausible. Add to this the quantity-quality fallacy, i.e. the wrong (in my view) belief that high production numbers are always good and a sign of efficient management. In the end, however, it is quality that matters.
The programme was actually introduced secretly and made available only to few large corporations after Microsoft had asked for it. So it was actually designed with large patent bullies in mind. Not even European companies…
Defending Bausch, another person wrote:
The problem is not to obtain as quickly as reasonably possible a search result and an opinion about the patentability of the claimed invention.
There is nothing to say against this, provided the search is carried out seriously and the opinion is not a collection of standard phrases, which looks like an evaluation, but is often not an evaluation of the true value of the invention.
What the problem is, is the idea of the top management of the EPO to grant an application as quickly as it thinks that it is needed by the applicant.
This is what is criticised, and rightly so, by Mr Bausch. The only beneficiaries of this hurry are the member states, and not necessarily the applicants.
The following comment said “this does not justify the rush to patent everything within 12 months after a shoddy search and a meaningless examination.”
As an applicant I want to keep my options open as long as possible, but as third party, I want to have as early as possible certainty on what I might face.
It appears quite difficult to reconcile both points of view, but this does not justify the rush to patent everything within 12 months after a shoddy search and a meaningless examination.
Early certainty yes, but at reasonable cost and in a way that my patent does not risk being pulled apart at the first occasion, or that the patents of my competitors are so bad, that I cannot decide what they cover.
As things develop presently, we are rather in the position of having early certainty in everything meaning early certainty of nothing…
The last comment about this alluded to Battistelli and “his macho instincts, willy-waving at the Americans. Anything you can do, France can do better.” Here is the comment:
OK. I see in your Part II the “early certainty” mantra extension, from mere “search” now to “examination” and “opposition”. I regret to say that I think it is another manifestation of BB indulging his macho instincts, willy-waving at the Americans. Anything you can do, France can do better.
But I stand by my original point, that not only Applicant but also the patent owner’s competitor would like to have “early certainty” to be delivered by the EPO.
Years ago we hoped that examiners and stakeholders alike would start a debate about the declining quality of patents granted by the EPO. Today, the subject is finally in the mainstream media (Britain’s biggest technology site) and people in Team UPC-affiliated blogs are equally concerned. They must be aware that the EPO’s declining reputation is a threat to their project (and Battistelli’s project), the UPC. That’s now how they foresaw this so-called ‘reform’ (more like a coup in practice). █
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Posted in Europe, Patents at 10:41 am by Dr. Roy Schestowitz
At what cost can politicians turn a blind eye to the destruction of the EPO (some believe to promote/shield the UPC, as Maas certainly does)
Summary: A new parliamentary intervention shows that some — albeit very few — politicians do pay attention or care about the situation at the European Patent Office and they try to do something about it
MARC TARABELLA (S&D) is already familiar with EPO scandals and last year he accused the Commission of being passively complicit in the EPO's abuses.
Tarabella, according to SUEPO, has just brought up “European Patent Office (EPO) and social abuses,” putting forth the following “Question for written answer E-002338/2017 to the European Commission…”
From SUEPO’s English translation, which was published earlier today:
In 2016 The President of the European Patent Office dismissed three elected staff representatives, all of them members of the staff union. Three other staff representatives were aggressively demoted in 2015 and 2016. Over the past four years five staff members of the EPO have committed suicide. Sheltering behind its immunity, the EPO has refused any independent enquiry by the local authorities concerned with regard to the circumstances of these deaths. While it is true that the Supreme Court of the Netherlands has recently upheld the immunity of the EPO, the findings of the Court of Appeal with regard to the violations of fundamental rights remain totally valid. If these events had occurred within European institutions, there can be no doubt that action would have been taken rapidly to determine where responsibility lay and to impose the appropriate penalties, but nothing of that kind has been done with the EPO.
“If these events had occurred within European institutions, there can be no doubt that action would have been taken rapidly to determine where responsibility lay and to impose the appropriate penalties, but nothing of that kind has been done with the EPO.”The EU Commission has entrusted the EPO with producing the Unitary Patent. All of the twenty eight countries of the EU are represented on the Administrate Council of the EPO. The Commission has a seat as an observer, and can therefore make its voice heard. For more than three years, many members of parliament have also been condemning the highly “problematic” social situation at the EPO. Is it not high time that it made its views known, and takes up the position adopted by parliament with regard to the EPO?
What if the official position of the European Commission on these social abuses?
Is it in favour of an independent enquiry?
The EPO’s management is of course trying to ignore all this while pretending to be "with science" (or “with research”). It’s distracting at a huge expense even while is mocks and attacks science (more on that later today). Earlier today the EPO promoted this nonsense again. This publicity stunt, which EPO applicants are paying for against their will, is designed to accomplish nothing but distraction. It’s just something for the EPO’s PR people to link to and say that they “support science” even when they promote lies and human rights abuses. █
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