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05.22.17

Great News: While IBM et al Try to Undermine Patent Reform the Supreme Court Deepens the Reform in TC Heartland Case

Posted in America, Patents at 4:09 pm by Dr. Roy Schestowitz

The giant corporations that like to bully competitors with their software patents are losing control of the patent system, thanks in part to the Supreme Court (SCOTUS)

TC Heartland LLC v Kraft Foods Group Brands LLC
Reference: Outcome of TC Heartland LLC v Kraft Foods Group Brands LLC

Summary: In a unanimous decision, with the court ruling 8-0 against TC Heartland, the monkey business in East Texas (beneficial to patent trolls and large businesses that leverage software patents) may have just come to an end

TECHRIGHTS was eagerly awaiting the decision on TC Heartland, not knowing when exactly this decision will be delivered. This decision won’t have a profound effect on the USPTO but rather on the courts. Say goodbye to the Eastern District of Texas as a capital of patent trolls and patent aggression. There’s no room for appeals anymore.

Is this the beginning of the end of patent trolls in the US? Well, it most certainly is a massive leap. Without access to my workstation (11,000KM away) it’s hard to know just how many patent-centric sites already cover it (probably spinning it), but here is coverage from TechDirt, whose views are similar to the EFF’s (which did a lot of campaigning regarding this case). To quote:

Another Supreme Court case on patents, and another complete smackdown of the Court of Appeals for the Federal Circuit (CAFC), the court that is supposed to be the “expert” on patent cases. This morning the ruling on the TC Heartland case came out, and it could help put an end to jurisdiction shopping for patent cases. As you’ve probably heard, for years now patent trolls and other aggressive patent litigants have been filing their cases in East Texas, as it’s become a jurisdiction that is ridiculous friendly to patent holders. The towns of Marshall and Tyler, Texas have practically built up industries around the fact that they are “patent friendly” jurisdictions. In the past few years, a second favored jurisdiction has popped up: Delaware, after a few academic studies showed that the courts there may have been even more friendly than East Texas. The TC Heartland case was about a case filed in Delaware, and raised the issue of whether or not this kind of patent forum shopping was okay. CAFC, in its usual CAFC manner, said “sure, that’s great, we love jurisdiction shopping and have since our 1990 ruling in VE Holding v. Johnson Gas. This was kind of ironic, as one of the key justifications given for setting up CAFC in the first place was to put an end to jurisdiction shopping in patent cases.

Either way, CAFC once again blessed the ability of patent holders to sue in plaintiff friendly locations, and the Supreme Court — which has spent the past decade reteaching patent law to CAFC every chance it gets — has done so again. Once again, the decision was unanimous, with the court voting 8 – 0 that trolls can’t just file over and over again in East Texas (Gorsuch, having just joined the court after the case was heard, did not take part). The opinion, written by Justice Thomas, goes through the history of jurisdiction issues related to where one can bring lawsuits, noting that historically, where a company was incorpor

It is worth reminding ourselves that these courts down in Texas were known not just for affinity towards trolls but also software patents. So this is massive! As the above notes, this case does not yet reveal anything about Gorsuch’s stance on patents.

Meanwhile, in the pro-trolls and pro-software patents spheres, there is a push to overturn another SCOTUS case (Alice), led by the likes of IBM and promoted by IAM, Watchtroll and few others.

The other day IAM did a sort of think tank on the matter, writing about what it called: “Superb panel on [Section] 101 looking at some of differences between software community and other IP owning sectors…”

As one can expect, it’s one of those stacked panels that IAM is so renowned (or notorious) for. That’s how IAM pays the bills; follow the money, they sell influence…

Here it is stating that “HP Enterprise’s Marcia Chang – we’ve had a course correction cleaning up some of mess in software patents & that’s a good thing…”

Here’s Google’s stance: “Puneet Sarna of Google – current situation on 101 is where SCOTUS wanted to go with Alice…”

“Sarna – Now patentees and accused infringers have better idea about how 101 should be applied,” IAM added.

Then came Cisco, another giant corporation: “Cisco’s Dan Lang – if you look at recent Fed Circuit decisions i believe theres a strong convergence between Europe and US…”

Where are the small businesses or actual developers? Well, IAM doesn’t really want a real debate. It’s a think tank after all…

Then came this UPC lobbying from IAM and Cisco: “cautious but hopeful that UPC will lead to a balanced system…”

Who said it would happen at all? The tense in “will” suggests inevitability.

IAM later wrote this post about “big software players” (that’s what the headline says). IAM’s loudest software patents proponent wrote it and left no room for objectivity. Here is the part about Google, which is probably the lesser culprit (Michelle Lee came from there):

“It’s a false narrative, it’s not that Silicon Valley hates the patent system,” insisted John La Barre, head of patent transactions at Google. “In my experience at Google we value strong patents, we just have an opinionated sense of what that means. It’s a question of what does a strong patent system look like, not do we think we need a strong patent system.” La Barre added that meant the search giant supported improvements in patent quality and attempts to reduce litigation.

We can expect the latest SCOTUS decisions to be spun, attacked, nitpicked etc. by the patent microcosm in the coming days. IAM will probably fight this decision for years to come (like it does Alice… even 3 years down the line). We’ll take stock of some of the spin some time next month (when I return home).

Speculations About Battistelli’s End of Term, Campinos at EUIPO, and Failed UPC Ambitions

Posted in Europe, Patents, Rumour at 2:46 pm by Dr. Roy Schestowitz

Summary: Rumours and speculations surrounding the fate of the EPO’s leadership now that the UPC gravy train is stuck again and Battistelli’s protector, Jesper Kongstad, is about to leave

IN OUR previous post we cited a blog post titled ‘Successor EPO president Benoît Battistelli to be chosen this autumn’ and as we noted towards the end, Martijn van Dam may be gullible if he is so certain that Battistelli is leaving. In Twitter, people of inner circles have begun wondering if “Battistelli’s henchman” will take over, alluding to Mr. Campinos.

“In Twitter, people of inner circles have begun wondering if “Battistelli’s henchman” will take over, alluding to Mr. Campinos.”“Any other candidates?”

Well, someone will replace Mr. Kongstad pretty soon (about 4 months from now). We understand that he basically got sacked by the Danish government (at least removed from DKPTO; he might still serve in the Administrative Council at some capacity).

Inside sources, however, aren’t so certain that Battistelli is leaving next year. His UPC ‘crusade’ is failing pretty badly because the EU is losing Britain, Spain remains defiant, Poland seems sceptical and so on…

“Inside sources, however, aren’t so certain that Battistelli is leaving next year.”Will Battistelli use the failure of the UPC as an excuse for “needing more time” (as in, another term)? Will he spend some additional millions of Euros bribing and manipulating European media in a desperate effort to lie about the UPC and ram it down everyone’s throats, based on misinformation?

According to this new report (behind paywall), the British “Government quizzed over viability of London’s UPC courts after Brexit” and the body speaks of EUIPO, which Campinos is still heading. To quote: “The UK’s future with the European Union Intellectual Property Office (EUIPO) post-Brexit came under the spotlight this week, after a question on EU-jurisdiction drew a carefully-worded answer from the government.”

“Will Battistelli use the failure of the UPC as an excuse for “needing more time” (as in, another term)?”All the things about UPC are behind a paywall, but the headline suggests that UPC is anything but certain, no matter who wins the election next month.

“Cromwell puts forward queries surrounding EUIPO and UPC,” Benjamin Henrion wrote about this, and “questions will form part of EU negotiations says minister…”

Well, the very fact that UPC is brought up in conjunction with EUIPO (which does not deal with patents) is rather curious and it brings back speculations about Campinos, the EU, the UPC, and various other things.

“…it seems like the sky is the limit when it comes to patent scope at the EPO under Battistelli.”We are truly concerned about the vision laid forth by UPC propagandists, for the UPC would usher in all sorts of crazy patents into nations that currently forbid them. For instance, the EPO is granting patents on life (genome) while almost abolishing the appeal boards that can stop this, citing opposition from the EU, the EPC and so on. “CRISPR patents decided, but cases not closed,” said this new headline a few days ago, but given Battistelli’s assault on the appeal boards it seems like the sky is the limit when it comes to patent scope at the EPO under Battistelli. Dangerous times ahead and critical crossroads…

Martijn van Dam is Wrong to Believe That Battistelli’s Abuses Are Somehow Acceptable or Tolerable Because His Term is Possibly Ending

Posted in Europe, Patents at 2:15 pm by Dr. Roy Schestowitz

Will tolerate abuses provided you’re old and almost retired

Partij van de Arbeid
Photo credit: Partij van de Arbeid

Summary: Coverage of Martijn van Dam’s stance (he is the Dutch State Secretary for Economic Affairs) reveals that economic gain trumps ethics and justice, irrespective of what the law says

THE concept of justice at the EPO hardly exists at all. Even outside the EPO, e.g. when ILO deals with appeals, there is no justice, as we last showed yesterday. When people are allowed to get away with abuses — even incredible violations of the law — that reinforces and cements their immunity and impunity. That’s just what happens at the EPO.

“When people are allowed to get away with abuses — even incredible violations of the law — that reinforces and cements their immunity and impunity.”In between all sorts of puff pieces about the EPO (I am not keeping a close eye while on holiday, but some shallow pieces get picked up, e.g. [1, 2]) there is this blog post from Kluwer Patent Blog, which cites/translates something Petra Kramer told us the other day (we wrote about this two nights ago). Now we have some context: “Last week, in a debate on the situation at the EPO in Dutch parliament, secretary of state Martijn van Dam made clear he is very critical of Battistelli as well. But Van Dam thinks implementing changes in the EPO’s regulations is more important than focussing on an early departure of the EPO president, whose term ends in June 2018 anyway. He expects some improvements to be implemented next month. Hereunder a translation of the most relevant statements in the debate.”

“What kind of world are we living in? Where people in international institutions are untouchable and above the law, even in their host countries?”That’s too bizarre a logic. So van Dam clearly understands that Battistelli is abusive, yet he lets him off the hook purely because of timing? The immunity remains? Imagine the outcry if Dominique Strauss-Kahn was allowed to walk away free simply because he’s already old. Or the same for Sepp Blatter. What kind of world are we living in? Where people in international institutions are untouchable and above the law, even in their host countries?

If the Netherlands and politicians like Martijn van Dam wish to maintain (or earn) respect from the international community, then they’ll need to come up with something stronger than that. Aside from that, some EPO insiders believe that Battistelli will seek extension of his term and may even modify the rules (with consent from his ‘chinchillas’) in order to facilitate this never-ending reign of terror. The EPO not only harms Dutch contractors (financial damage) but also harms the image of Holland. The EPO has become nothing but a parasite to the Dutch people.

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