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05.30.17

Another Amazing Bit of News About Patents: Supreme Court Knocks Out Lexmark a Week After TC Heartland

Posted in America, Patents at 4:40 pm by Dr. Roy Schestowitz

The Supremes acknowledge that the culture of patent maximalism needs to be curbed

Summary: Justices of the US Supreme Court have just ruled (yet again) against a culture that created a patent bubble which in no way benefits producing companies (TC Heartland case) or their clients (Lexmark case)

BIG changes are afoot at the US patent system, so it’s certainly not a good time to be away. 3 years after Alice we now have TC Heartland. We called it the news of the year (so far in the patent domain).

Outside the realm of software, in which most patent lawsuits are filed by trolls, there is now a decision on the Lexmark case.

“And AGAIN #SCOTUS tells #CAFC that their patent-friendly decisions are wrong,” Jan Wildeboer from Red Hat wrote. “Will they learn? No.”

Well, we have been writing about it for about a year. To be fair to CAFC, ever since the likes of Randall Rader left there have been some improvements in its approach.

Kit Walsh from the EFF, having written about this case for a while, had this to say some hours ago:

The Supreme Court struck a blow today [PDF] for your right to own the things you buy, reversing a lower court decision that had given patent owners the power to sue customers who paid in full for a patented item but then used it in a way the patent owner didn’t care for. The Court’s reasoning will help us protect your rights from overbroad copyright and other restrictions, like the ones written into “end user license agreements” for software or imposed by technological restrictions given legal teeth by Section 1201 of the DMCA.

Lexmark tried every legal trick in the book to keep you from refilling your own printer cartridges, and had finally found a sympathetic ear at the Federal Circuit, the Federal Court of Appeals with jurisdiction over patent law. The Federal Circuit agreed with Lexmark that a patent owner could write their own rules that customers would have to follow or face liability for patent infringement. Even someone who later acquired a product, like the companies that refill printer cartridges, would have to abide by these restrictions.

Cory Doctorow, who is affiliated with the EFF, then elaborated as follows:

Lexmark has spent nearly 20 years fighting the war on carbon, trying to stop you from refilling your laser printer cartridges. In 2003, they attempted to use the DMCA and DRM to argue that it was an act of piracy (the courts didn’t buy it) and then in 2015, they went all the way to the Supreme Court with the idea that you were violating their patent license terms if you treated the cartridges you purchased as though you owned them.

Today, the Supreme Court told Lexmark it was wrong. Again. Saying that when a patent holder “chooses to sell an item, that product is no longer within the limits of the monopoly and instead becomes the private individual property of the purchaser, with the rights and benefits that come along with ownership.”

Lexmark was trying to use patents to get something that DRM didn’t get them back in the naughties, but they might well take another run at it. Back then, the company lost in part because the very simple software in its printer cartridges (a 12-byte program!) didn’t rise to the level of a copyrightable work. Today, a cartridge might have tens of thousands of lines of code in it — and thanks to dreadful laws like Section 1201 of the DMCA, all Lexmark would have to do is design their cartridges so that refilling them required breaking some kind of DRM, and they’d be able to threaten their competitors with $500,000 fines and 5 year prison sentences (for a first offense) if they helped you refill your cartridge.

We expect these SCOTUS cases (this and TC Heartland) to be discussed for a long time to come, not just in legal blogs but also the corporate media. What’s more important than press coverage (or spin that we expect from the patent law firms) is the decision itself. It cannot be overturned.

The Silencing of Critics of the Unified Patent Court (UPC) in Media and in Blogs

Posted in Deception, Europe, Patents at 12:00 am by Dr. Roy Schestowitz

Bristows continues to delete comments critical of/opposing the Unitary Patent (UP) regime, not just in British blogs but also in European blogs like Kluwer Patent Blog

There will be no opposition to UPC if we simply delete all of it

Summary: Team UPC, or few parasitic entities that stand to benefit (profit) from patent trolls (preying on a high-damage court system at the heart of Europe), continues to ‘sanitise’ the Web by removing informed voices that are critical of UPC, often referred to as Unitary Patent

JOINING Brian Cordery (Bristows) with a ‘Stalin Award’ we now have his colleague Annsley Merelle Ward, a UPC and trolls’ ‘mole’ at IP Kat. When resistance cannot be tolerated, well… then maybe you have no compelling argument to begin with. I’ve actually received legal threats (demands of removal of posts) from a law firm which wants the UPC.

Further down in the comments section of an article we cited the other day there are many comments (very critical of the EPO but always polite, perhaps even too polite, maybe because those less polite got silently deleted).

“Being lawyers, they also like to lie about the censorship; nobody should miss the excuses later made by Brian Cordery (after he had been called out on it).”Mind the comment from “SergeAnt” as it suggests that Bristows staff are still (not for the first time) deleting comments they disagree with. It’s rare for evidence of the censorship to become visible because the censors tend to delete not only dissenting voices but also voices that thereafter mention the deletion. The comment mentions this pro-trolls, pro-UPC nonsense from Annsley Merelle Ward (we already responded to that). Only one comment appears there and we assume that others got deleted by Annsley Merelle Ward, who simply could not tolerate opposing views (contradictory to her ‘views’ that are basically how she makes money).

Being lawyers, they also like to lie about the censorship; nobody should miss the excuses later made by Brian Cordery (after he had been called out on it).

“Maybe the nickname “AmeriKat” is suggestive of loyalty for press-gagging leaders and patent trolls from the US…”Why does this matter? Because blogs that write prolifically about UPC actively censor the debate, not just by giving the platform selectively (to pro-UPC people, who would profit from UPC) but also delete responses from readers. What kind of Soviet or Maoist mindset is this? It means that everything we read out there about UPC is doctored at several levels by those who stand to profit from UPC (we know at whose expense). Maybe the nickname “AmeriKat” is suggestive of loyalty for press-gagging leaders and patent trolls from the US…

SAD!

Speaking of censorship, on numerous occasions in the past we wrote about the German government’s attitude towards UPC (Maas is a proponent) and the German’s media complete and utter inability to question the UPC. A reader has just told us about “EPO news coverage in Germany” several things that we have not covered here before (we wrote about a dozen articles about German media’s silence on EPO abuses). To quote:

I would like to bring some light on potentially one of the reasons for the lack of press coverage about EPO scandals. There is another scandal on the German soil and it has to do with the independence of the press and media. The scandal is IMHO as big as the Epo scandal. The non private television is currently controlled by big money ( a yearly budget of about 8 billions EURs) and government. Here is an article in English about the subject. Please note that all those who dare to be against this model of public TV system are labelled “right extremists”. In the German media the only coverage about this opposition is exclusively in relation with right wing extremism. This is again a symptom of the Godwin law. All the people I know that are against such system are rather left….And the very same never covers EPO matters. I remember last year there was a SUEPO demo in front of the Isar building with an attendance of about 1000 persons. On the very same day there was another demo with about 40 participants in front of the same building. They were demonstrating against patents on life. The press coverage was huge for the second demo (TV, papers).

Here is the corresponding article which states: “The far-right Alternative for Germany (AfD) party might best be known for its vocal opposition to the refugees that have flooded into the country and their disdain for the euro. But the party’s deputy chairwoman, Beatrix von Storch, also rails against the country’s decades-old mandatory public broadcasting tax that German households and businesses must pay even if they don’t own a radio or TV.”

“EPO workers and stakeholders must ask themselves why the crackdown on dissent and disagreement to the UPC has gone as far as it has.”Where is criticism of the UPC from state media? Has Germany got so much to gain from it that the state media is now in some sort of implicit collusion with Team UPC?

EPO workers and stakeholders must ask themselves why the crackdown on dissent and disagreement to the UPC has gone as far as it has.

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