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06.25.17

As Electronic Frontier Foundation (EFF) Ramps Up Its Campaign Against Software Patent Trolls the Patent Microcosm Attacks the Messenger (EFF)

Posted in America, EFF at 1:06 pm by Dr. Roy Schestowitz

A new campaign regarding Alice Corp. v CLS Bank is launched by the EFF, triggering an attack by the lobby that tries to undermine this decision

IP Watchdog and EFF
We saw Watchtroll doing this before

Summary: In an effort to thwart Alice and the EFF (two birds, one stone) the patent microcosm goes behind the scenes and saturates the media with misleading articles, including attacks on the EFF itself

THE EFF, having observed the damage caused by US-granted patents to practicing companies (typically software patents wielded by patent trolls), fights back.

Its latest target is the STRONGER Patents Act, which we covered before. It explains “How the STRONGER Patents Act Would Send Innovation Overseas”, having explained last month that there is “No Evidence that “Stronger” Patents Will Mean More Innovation”. To quote:

Right now, the patent lobby—in the form of the Intellectual Property Owners Association and the American Intellectual Property Law Association—is demanding “stronger” patent laws. They want to undo Alice v. CLS Bank and return us to a world where “do it on a computer” ideas are eligible for a patent. This would help lawyers file more patent applications and patent litigation. But there’s no evidence that such laws would benefit the public or innovation at all.

One of the primary justifications we hear for why patents are social goods is that they encourage innovation. Specifically, the argument goes, patents incentivize companies and individuals to invest in costly research and development that they would not otherwise invest in because they know they will be able to later charge supracompetitive prices and recoup the costs of that development.

This push from the Intellectual Property Owners Association and the American Intellectual Property Law Association was mentioned here last month and we have some detailed articles about that coming soon. We have a lot of material/evidence related to this, so it might take a while to organise and put together.

We are gratified to see that the EFF, Patent Progress and various other groups already wake up and respond to this threat. We are generally very glad to see the EFF, which is well funded, picking up these battle against software patents because it lets us concentrate on the issues in Europe. The EFF’s approach used to be rather weak (squashing one patent at a time). Days ago they started a whole series of articles about Alice — a series which includes stores like this one:

A Startup Runs Into A Patent on Picture Menus

[...]

If you’ve ever seen a picture menu, you’ve seen the supposed ‘invention’ claimed by U.S. Patent 6,585,516. Although it had a complex-sounding title (“Method and system for computerized visual behavior analysis, training, and planning”), the patent simply claimed using picture menus on a computer. Patent troll DietGoal Innovations, LLC, sued over 70 companies for supposedly infringing this ridiculous patent.

“Saved by Alice: How a Key Supreme Court Decision Protects Businesses from Bad Patents” is another new article on the matter and then there’s “Small Business Fights for its Life, Wins with Alice” and “The Patent Troll and the Scavenger Hunt”. To quote a portion:

But Ken’s new business hit a roadblock. On January 6, 2017, a patent troll called Locality Leap, LLC, sued Coopercode alleging that Klikaklu infringed U.S. Patent No. 6,320,495 (the ’495 patent), entitled “Treasure Hunt Game Utilizing GPS Equipped Wireless Communications Devices.” The patent claimed a method of playing a game that involves receiving a message, generating a message, and then having a player move to a location based on those messages. It didn’t involve any new technology. Rather, it suggested using messaging and GPS technology to assist with the age-old pastime of treasure hunts.

Well, IBM and Microsoft lobby against this (Section 101 and Alice), but with heavyweights like the EFF entering the scene we expect the lobby to fall flat on its face. We should not take the opposition for granted, for we already see it coming under attack.

How to attack Supreme Court decision (Alice) against patent maximalists? Simple. Shoot the messenger, or the EFF. Watch what patent maximalists have published (“Alternative Facts on Patent-Eligibility from the Electronic Frontier Foundation”). Quite a few patent maximalists already link to this with glee and it was pushed into other sites (maybe paid-for copies, hosted where Google News will pick this up too). So the approach of patent maximalists when losing their power is to attack the EFF (the messenger). It’s not the first time that they do this. We’ve covered other such attacks before. The problem with these attacks is that they can be effective. Watchtroll, for example, is indexed by Google News and if one searches Google News for anything patents-related, we estimate that about 90% of the results will be pure marketing, not journalism (either articles by the patent ‘industry’ or ones that quote it). They dominate information channels by throwing money at it and they are attempting to impose their world view while technical people — those affected by software patents — are mostly apathetic. They don’t seem to get involved in writing to politicians or writing for Web sites. They’re too busy writing just code.

In Sandoz v Amgen, the Federal Circuit is Again Found to Have Delivered Patent Injustice

Posted in America, Courtroom, Patents at 12:46 pm by Dr. Roy Schestowitz

The Supreme Courts of the United States (SCOTUS) makes the Federal Circuit (CAFC) look like the very opposite (or antithesis) of justice

The opposite of justice

Summary: SCOTUS continues to disagree with CAFC on everything that it decides to reconsider, even the very latest decision (formally delivered earlier this month)

THE Supreme Courts of the United States (SCOTUS) is looking into all sorts of patent cases these days. Thankfully, as we have been noting for years, none of these cases involves software patents and therefore there is no risk that Alice will be overridden by a newer decision (similar to overturning it).

“It has very little relevance to the sorts of patents we scrutinise, but it once again shows SCOTUS skewering CAFC. What does that tell us about CAFC?”Recently, following two decisions in which SCOTUS had overturned decisions of the Court of Appeals for the Federal Circuit (CAFC), it also ruled in Sandoz v Amgen. We have not written about it yet. It has very little relevance to the sorts of patents we scrutinise, but it once again shows SCOTUS skewering CAFC. What does that tell us about CAFC?

The decision was covered here by Managing IP, which said: “The Supreme Court has ruled on the process for approving biosimilars under the Biologics Price Competition and Innovation Act (BPCIA) for the first time, mostly siding with Sandoz in its dispute with Sandoz.”

It was covered also in this article from Managing IP. To quote Natalie Rahhal: “The US Supreme Court in Sandoz v Amgen remanded the question of whether an injunction is available to Amgen under state unfair competition laws.”

“As expected, the potty mouth of the patent maximalists’ world (or alternate universe) quotes only one side of the argument.”So CAFC is truly, really, very bad. SCOTUS finds it wrong on patents all the time. As expected, the potty mouth of the patent maximalists’ world (or alternate universe) quotes only one side of the argument.

Yes, Watchtroll is at it again. We might revisit this soon, especially if time permits or if something unusual turns up.

Suffice to say, the above is very damaging to CAFC’s reputation. How can anyone take it seriously when SCOTUS disagrees with it virtually all the time?

Here is one patent maximalist stating that “Inventors’ Group Petitions the CAFC, Arguing the RecogniCorp 101/Alice Decision Endangers Many Patents: https://dlbjbjzgnk95t.cloudfront.net/0934000/934659/document%20(47).pdf …”

“Suffice to say, the above is very damaging to CAFC’s reputation.”Well, so be it… the one good thing about CAFC is, it’s no longer friendly towards software patents (unlike district courts).

Here is another patent maximalist claiming that “Federal Circuit Cases Clarify What Makes A Valid Software Patent” (loaded statement). As if such exceptions really exist; some recent rulings from CAFC clearly ruled out ALL software patents. This is the one thing we care about dearly because our top priority is to keep software patents away. No appeal to SCOTUS is going to change this any time soon.

The Supreme Court Can Reassert the Legitimacy of the Patent Trial and Appeal Board (PTAB) Later This Year or Next Year

Posted in America, Courtroom, Law, Patents at 12:39 pm by Dr. Roy Schestowitz

Making Patent Quality Great Again

PTAB

Summary: What lawyers-centric media characterises as a risk to PTAB may actually be an opportunity to silence critics of PTAB and help it carry on squashing bogus patents

THE Patent Trial and Appeal Board (PTAB) is one of the best aspects of AIA, which the current chief of the US patent system played a role in.

We wrote about the Court of Appeals for the Federal Circuit (CAFC) just earlier today (a couple of hours ago), noting the rather bad CAFC record on justice. When it comes to patents, it almost always gets it wrong, judging at least by cases that SCOTUS grabs to reassess. As a reminder to readers who don’t know this yet or simply forgot, CAFC is responsible for the introduction of software patents in the US, whereas SCOTUS is responsible for the elimination of software patents with its 2014 decision on Alice. CAFC and SCOTUS are often opposites when it comes to patents.

“…CAFC is responsible for the introduction of software patents in the US, whereas SCOTUS is responsible for the elimination of software patents with its 2014 decision on Alice.”What about PTAB and CAFC? Well, statistics from this year and last year suggest an 80% rate of concurrence, i.e. cases where both PTAB and CAFC agree on the in/validity of patents. As for some newer statistics, shared recently by Managing IP: “Patent Trial and Appeal Board filing in May was below average for the year, but included a record amount of PGR petitions.”

So PTAB is still doing OK. Earlier this year it peaked, which was indicative of growing demand for reassessment of patents through petitions (IPRs).

One patent maximalist clings onto the exceptions, noting a “small ray hope 4 #patent practitioners PTAB judge says “significant, important invention” that helps people read is NOT “abstract idea”” (but how often does this happen really? See image in tweet).

“So PTAB is still doing OK. Earlier this year it peaked, which was indicative of growing demand for reassessment of patents through petitions (IPRs).”PTAB, for the uninitiated, is consistently reviled by patent maximalists. They’re terrified of it. Some of them openly insult it (or the judges). IAM, for example, has just called PTAB judges “death squads” in an effort to demonise those who apply Alice (§101) and invalidate software patents. To quote: “With the PTAB’s forthcoming anniversary in mind, the data analytics team at Lex Machina crunched the numbers and this morning released a comprehensive five-year report which digs down into topics like the most common resolutions of board trials, the top petitioners, most targeted patent owners and the leading law firms.”

Lex Machina’s numbers are often the ones Managing IP — not just IAM — goes by. It’s a good service which is provided by a trolls-hostile academic (who is behind Lex Machina). Writing about pharmaceutical aspects of PTAB, IAM just ranted again, whereas Patent Progress was optimistic. “The differences,” it said, “continue after institution. When you look at the final written decisions, there are significant differences between IPRs as a whole and drug patent IPRs.”

In simple terms, the ability to invalidate patents at PTAB (through IPR/s) varies across sectors. When it comes to software patents, PTAB can seem merciless. An IPR alone can herald the death knell of a patent.

Written some days ago by the above patent maximalist was this tweet: “PTAB says @uspto §101 guidelines r NOT RELEVANT 4 determining patentability https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005945-06-20-2017-1 … use when Examiner cites only guidelines?”

“…the ability to invalidate patents at PTAB (through IPR/s) varies across sectors.”Well, §101 and Alice are not exactly the same thing. They are only related and a powerful lobby is attempting to change §101 rather than the SCOTUS decision (Alice), which is final and immutable.

There is a growing danger, however, that not only §101 will be changed but also PTAB itself. PTAB’s decision on some patents (but not software patents on the face of it) will go to SCOTUS for consideration quite soon. There have been many articles about this so far. This one from Managing IP has a very misleading headline, suggestive of existential threat to PTAB. Here is a more balanced article from Managing IP, another one from Patently-O, and an even better one from Joe Mullin, who wrote: “The US Supreme Court will soon weigh the constitutionality of “inter partes reviews,” a procedure that has been hailed by many in the tech sector as one of the most effective ways of weeding out bad patents.”

“There is a growing danger, however, that not only §101 will be changed but also PTAB itself.”Even the more mainstream media wrote about it some days ago. To quote: “From the start, some patent-holders have questioned the constitutionality of these new ways to invalidate patents. Now the Supreme Court has finally agreed to hear a case that addresses this question. In Oil States Energy Services LLC v. Greene’s Energy Group LLC, Greene’s Energy used one of these procedures to challenge the Oil States patent on a lockdown mechanism for equipment used in the oil industry. In 2015, the PTAB struck many of Oil States’ claims, and in 2016, the Federal Circuit Court of Appeals affirmed the decision. At the Supreme Court, Oil States is arguing that this is wrong. Oil States says that its patent is private property (like a land grant), which, once granted, can be revoked only through a decision of a court, where the patent-holder basically has a right to a jury. Greene’s Energy, on the other hand, would classify patents as essentially public rights, like rules of the road. As such, it claims that Congress was within its authority when it established these procedures and allowed the PTO to revisit the merits of the Oil States patent.”

Patently-O‘s Dennis Crouch (who worked hard to delegitimise PTAB or CAFC's handling of PTAB appeals) took a closer look and Managing IP published a third article to say: “The Supreme Court has granted cert to Oil States Energy Services v Green’s Energy Group to assess whether inter partes review violates the Constitution by not providing a jury trial. It is the third PTAB case the court will hear…”

Well, herein we have an important case which is going to look into an essential tool for crushing bogus software patents. Even though the patent in question is not a software patent, the authority is being questioned. To put it more gently, it is being reconsidered and PTAB can, as a result, be sort of enshrined into law if Justices are on its side. So it can be seen as an opportunity for legitimacy.

“…herein we have an important case which is going to look into an essential tool for crushing bogus software patents.”“Supreme Court agrees to hear constitutional challenge to the PTAB, against wishes of Trump administration,” said this headline from IAM.

Finally, another new article from Managing IP spoke of institution rates at PTAB, based on a study from a generic company.

There is a lot at stake in this case, for various sectors other than software in fact. Will SCOTUS defend PTAB? We believe that it will. As we shall show in our next post, SCOTUS has just reversed yet another CAFC decision (Sandoz v Amgen).

Speaking of PTAB, it is worth taking note of this case where “PTAB in Fujifilm Corp. v. Sony Corp. (IPR 2017-01267 & 2017-01268) granted permission to the patentee to file a motion to disqualify an expert for the petitioner. APJ Kokoski, after a teleconference, granted permission to file the motion.”

Whatever removes or discredits allegations of foul play or mistrial will serve PTAB better in the long run.

The US Patent Office (USPTO) Should Now be Headed by Drew Hirshfeld, a Patent Examiner Who Rose to the Top, Not a Lawyer Like Joseph Matal

Posted in America, Patents at 10:52 am by Dr. Roy Schestowitz

Drew Hirshfeld
Reference: Drew Hirshfeld at USPTO

Summary: Donald Trump’s Secretary of Commerce, Wilbur Ross, pushes to the top the patent microcosm rather than technical people who are equipped with the knowledge and experience to run the Office as well as Michelle Lee did

WE were sad to learn about Michelle Lee leaving (she was likely pushed out), but her initial successor — even if only temporary — was somewhat of a relief to us given some of the potential candidates. Drew Hirshfeld, given or based on his official biography, looked like a decent person and a scientist without any obvious conflict of interest. We may be wrong (something may be conveniently omitted from the public record), but he deserves the benefit of the doubt. Sadly, however, that did not last long. Apparently he wasn’t enough of a “swamp” material for Trump’s administration.

“Drew Hirshfeld, given or based on his official biography, looked like a decent person and a scientist without any obvious conflict of interest.”Looking back at the past 3 weeks’ information, having taken stock of some of the press coverage and specialised blogs like Patently-O, we would like to report as succinctly as possible about the situation at the USPTO, which sets the pace for patenting in the world (more so than the EPO, even before Battistelli ruined it).

“The former Google lawyer with a reputation for fighting ‘patent trolls’ resigned as head of US Patent office,” said this report in its headline. We agree with this description of hers. We wrote over a dozen articles about her amid the witch-hunt and we are grateful for what she has done in the Office. She will be widely regarded among industry (maybe not the patent ‘industry’) as a good Director. Kudos for that!

“Apparently he wasn’t enough of a “swamp” material for Trump’s administration.”TechDirt too wrote about her departure, calling it “Unfortunate” (in the headline). To quote the relevant bit: “She seemed to be doing a great job all around — though patent trolls and the group of patent lawyers who love the trolls were campaigning about her — and it appeared she would stick around. That would be a good thing. For all the craziness going on in the government right now, having competent leadership at the USPTO would be one less thing to worry about. But… now it’s being reported that Lee has suddenly resigned and sent a goodbye email to staff. That’s bad news on the patent front.”

TechDirt then adds something about Trump: “As I type this, of the 559 key positions requiring Senate confirmation, Trump hasn’t even named a nominee for 431 of them. That number rises to 456 if you include nominees who have been announced but not formally submitted. And that doesn’t even get to the 63 nominations that haven’t yet been confirmed. Adding the new USPTO director to that pile may mean no new USPTO director for…. who the hell knows how long.”

So much for making things “Great” again…

“Coalition of Chaos” is what Brits might dub this.

“So much for making things “Great” again…”As Patently-O reminded us last month, there are ongoing cases involving Lee, e.g. Shore v Lee. Well, there’s also SAS Institute Inc. v Lee, which goes to the US Supreme Court (SCOTUS) — a subject we shall leave aside until another day or a later opportunity (it’s would be a distraction to delve into it if USPTO leadership is our main focus right now).

There were also these “Remarks By Director Michelle K. Lee at the George Washington University School of Law”. Here are the remarks on the Patent Trial and Appeal Board (PTAB): “What work lies ahead? Our top priority today is to make sure the Patent Trial and Appeal Board’s AIA proceedings are as effective and as fair as possible–within our Congressional mandate.”

“Watchtroll is the leading source of personal attacks on Lee, including innuendo that she was corrupt in some ways.”AIA and PTAB have been very good. Industry generally loves both. Not the patent ‘industry’ but the real industry. Watchtroll is already attacking PTAB (personal attacks) again, as many times before. It spend a lot of time, space, energy etc. also attacking Lee. We’ll never forget what it did. It’s quite a vandalistic site, seeking to enrich the patent ‘industry’ (like patent trolls) at the expense of everyone else and at the expense of science, technology, medicine etc.

Patently-O was actually quite disturbed by Watchtroll’s style and wrote that “Mr. Quinn goes on at length about alleged personal unethical conduct, and makes some sharp accusations and personal attacks that I don’t want to leave any impression that I agree with.”

Watchtroll is the leading source of personal attacks on Lee, including innuendo that she was corrupt in some ways. We are deeply disgusted to see IBM, for example, aligning with this terrible site. It says a lot about IBM…

As for IAM, it is making no pretenses about its motivations in the above case. Yes, the trolls’ voice wants SCOTUS to rule for patent maximalism (which it probably won’t). Lee won’t be around to see the outcome (not at a professional capacity), but at least we now know who took/inherited her place, at least on a temporary basis (interim if not permanent upon confirmation).

“Lee won’t be around to see the outcome (not at a professional capacity), but at least we now know who took/inherited her place, at least on a temporary basis (interim if not permanent upon confirmation). “Patently-O initially wrote, some time earlier this month: “There has been no word from the White House or Commerce Department on a successor. It is unclear to me at this point whether Tony Scardino (current acting deputy director) or Drew Hirshfeld (current Commissioner of Patents) will be tapped as Acting Director.”

It then clarified by stating that Drew Hirshfeld is now the Acting Director of the USPTO. This sounded reassuring at the time, but then came some update from IAM and from Patently-O, saying (based on Trump’s Secretary of Commerce Wilbur Ross) that Joe Matal is the USPTO Director in the meantime (interim).

“They should choose technical people (like Lee or Hirshfeld), not the likes of Battistelli.”Lloyd, the software patents booster and pro-patent trolls spinner from IAM, bemoaned this (apparently a lack of ‘sufficient’ deform at the Office) and Patently-O soon clarified that it’s a patent lawyer, not an examiner who is technical. It said. “join me in welcoming a lawyer into the PTO senior management.”

This is bad. They should choose technical people (like Lee or Hirshfeld), not the likes of Battistelli. Enough of those lawyers!

Here is what Patently-O wrote:

But the skirting of guidance leading to Mr. Matal’s appointment isn’t one of those legal problems. I hope the Patent Bar will join me in welcoming a lawyer into the PTO senior management. Mr. Matal is a lawyer with recent stand-up court experience. I hope that he will translate his experience into infusing the PTO with an appreciation for the importance of procedure, and respect for rule of law, to fair and accurate decisionmaking.

He previously worked with the notorious Senator Jeff Sessions (AG under Trump), but he also was, according to his USPTO profile, “principal staff drafter and negotiator of legislation that became the Leahy-Smith America Invents Act.”

His only academic background is a law degree. Not a good sign.

After Latest Supreme Court Rulings on Patents, Including Impression v Lexmark, the Federal Circuit is Left Disgraced

Posted in America, Patents at 9:55 am by Dr. Roy Schestowitz

Court of Appeals for the Federal Circuit
The Court of Appeals for the Federal Circuit (CAFC) in 2016

Summary: Hostility towards the patent microcosm’s patent maximalism, as witnessed at the US Supreme Court (SCOTUS), culminated in another decision and will soon result in yet more decisions, as SCOTUS has since then picked more patent cases to look at

THE Court of Appeals for the Federal Circuit (CAFC) has a sore eye. The most powerful court (perhaps in the whole world, not just the US), whose panel of Justices has a profound effect on international law (by extension), keeps refuting it. In other words, CAFC is found to have given an erroneous judgment. Every time SCOTUS looks into it…

Remember Alice? Why does everyone keep mentioning it (millions of citations) 3 years down the line? That’s SCOTUS power.

Well, CAFC has been a disgrace over the years. It used to have among its ranks some truly corrupt people. As for its technical record? As this recent post put it, “Supreme Court: 5; Federal Circuit: 0. What’s Behind the Score?”

Here is the outline: “In the past six months, the Supreme Court has reversed the Federal Circuit in five patent cases. Most recently, it held that a patent owner’s domestic restricted and foreign sales of a product exhausted patent rights. Make sure you have a firm command of these important decisions, as well as ongoing developments in other areas such as inter partes review, obviousness and case law on “abstract ideas.” Attend the August 2017 Chisum Patent Academy seminars in Seattle! (Details at the end of this comment.)”

This is quite revealing, is it not? As noted above, there more patent cases. They are coming to SCOTUS soon (we shall cover these separately another day, having accumulated many notes and references on the subject).

Today (or this weekend) we would like to focus on the latest judgment. We wrote about it very quickly after we had already published many posts about the case. It’s the Impression v Lexmark case, which in almost no way relates to software patents (unlike TC Heartland, which we will revisit separately).

We have, over the past month or so, taken stock of various news and views. We cannot deal with all of them because there are so many (as is typical after SCOTUS decisions). Here is one by Jason Rantanen, a Professor at the University of Iowa College of Law. Here is Professor Sarah R. Wasserman Rajec. Related to this is also a report from The Economist titled “New technology is eroding your right to tinker with things you own”. Those interpretations should be decent enough to be worth reading. A month later (after the decision) the patent microcosm is still up in arms over this ruling because the ruling is viewed as continuation of SCOTUS hostility towards patent maximalism. See Watchtroll’s take or others in the patent microcosm, unlike for example IP Watch [1, 2]. One’s understanding of the decision depends on the views of the writers or the financial interests of the writers. Managing IP wrote about this news and then let Mayer Brown’s Andrew Pincus spout out ‘damage control’ or marketing in “interview” form (classic PR methodology). Speaking to patent law firms (maximalists) about a SCOTUS ruling is bound to lead to bias.

As a printing magazine put it (the case is about printers), the outcome of the case is good for the printing industry, not for the printers industry. The summary says: “The largest of the most recent patent troll cases against the printing industry and its OEMs was dismissed.”

British media covered this by stating:

The US Supreme Court ruled by 10 votes to two that the current model shared by a number of companies of selling low-priced hardware and profiting through the exorbitant price of supplies was unlawful.

10 votes to two is a big gap, almost as big as the gap in TC Heartland.

Joe Mullin, one of our favourite writers about that subject, said this:

In Impression Products v. Lexmark International, the justices’ opinion (PDF) made crystal clear that once a patented item has been sold once, the patent is “exhausted” and can no longer be enforced. That’s true even if the sale happened abroad and the item was later imported. Lexmark had two different strategies for trying to control how its cartridges get re-used; the high court struck down both of them and paid scant regard to various industry briefs pleading to maintain the pricing structures used by Lexmark and others to maintain profits.

Another good source is TechDirt, whose headline said this:

Strike Three: Lexmark Can’t Use Patents, Trademarks Or Copyright To Block Third Party Ink Cartridges

[...]

But CAFC twisted itself in knots to argue that this case was different, saying that Quanta was only about blocking sales, and this case — titled Lexmark v. Impression Products at CAFC and now Impression Products v. Lexmark at SCOTUS — was different because it involved a “limited license” rather than a direct sale. That is, Lexmark basically sold its products with a license agreement, saying “hey, don’t use third party cartridges, and if you do, we effectively are pulling our patent license and will sue you for infringement.”

They rightly point out CAFC’s utter failure.

Florian Müller has meanwhile explained the relevance of this case to a case he has watched closely. To quote the relevant parts: “Lexmark tried to leverage its patents on toner cartridges against various so-called remanufacturers (companies that buy up empty toner cartridges, refill them, and then sell the refilled cartridges). Impression Products was the last man standing at some point and took this to the Supreme Court after the Federal Circuit had decided completely in–surprise, surprise–the patent holder’s favor. Of the three different levels of the federal court system, the Supreme Court took the strongest and clearest position against overleveraging/overcompensation of patents; the Federal Circuit took the very opposite position; and the district court (Southern District of Ohio) had agreed with Lexmark that exhaustion didn’t apply to cartridges sold in other countries, but had sided with Impression at least with respect to cartridges Lexmark sold in the U.S. and on which it sought to impose certain restrictions.”

Further down Müller says that “[p]atent exhaustion as a concept has been strengthened today, and its profile in certain other cases will likely be even higher now. While Apple takes certain positions when it enforces its own patents (and would rather avoid Supreme Court review of a highly controversial Federal Circuit decision in its favor), exhaustion is not an issue in Apple v. Samsung but it does play a role in Apple v. Qualcomm: Count XXIII of Apple’s antitrust complaint against Qualcomm is a request for judicial “declaration of unenforceability [of Qualcomm's patents in certain contexts] due to exhaustion.” Apple alleged in its January complaint that “Qualcomm has sought, and continues to seek, separate patent license fees from Apple’s [contract manufacturers] for patents embodied in the chipsets Qualcomm sells to Apple’s CMs, a practice that is prohibited under the patent exhaustion doctrine.” In the past, Apple had to pay those license fees indirectly (via its contract manufacturers), which it is no longer prepared to do, and that’s why Qualcomm is now suing four Apple contract manufacturers and seeking a preliminary injunction against them.”

Müller later mentioned this in relation to another case he is familiar with. He wrote that “Apple would like to avoid Supreme Court review and just get the most favorable outcome. In some cases, what’s good for Apple is also good for the industry at large. Not so here. If the Supreme Court granted Samsung’s petition from writ of certiorari, the outcome could have similarly positive effects as the recent Lexmark decision. (In the long run, that would also benefit Apple, which is a defendant in the vast majority of patent cases that it’s a party to.)”

In light of this ruling the EFF not only wrote a detailed post (which we cited last month) but also chose a “Stupid Patent of the Month” accordingly:

The Supreme Court’s recent decision in Impression Products v. Lexmark International was a big win for individuals’ right to repair and modify the products they own. While we’re delighted by this decision, we expect manufacturers to attempt other methods of controlling the market for resale and repair. That’s one reason we’re giving this month’s Stupid Patent of the Month award to Ford’s patent on a vehicle windshield design.

We are very gratified to see all these recent rulings from SCOTUS and we remain committed to guarding them from various ongoing ‘attacks’ from the patent microcosm. Some of these attacks we shall shed light on later today or in the coming days/weeks (we prioritise articles about the EPO).

IBM, Apple and Facebook Pursue Software Patents in India in Defiance of the Ban

Posted in Apple, Asia, IBM, Patents at 8:58 am by Dr. Roy Schestowitz

India is a software powerhouse. Let’s keep it that way.

Malviya Bridge
Malviya Bridge, inaugurated in 1887, is a double decker bridge over the Ganges at Varanasi.

Summary: Multinationals from the United States, or digital colonisers with ambitions to spy on and control finance, continue to behave as though Indian law is not applicable to their operations in India and repeatedly attempt to patent software anyway

INDIA, by some criteria, grew to the point of having the world’s largest software industry. There are also lawyers in India who are hoping to prey on the software industry by imposing a patent tax on all software.

“There are also lawyers in India who are hoping to prey on the software industry by imposing a patent tax on all software.”LexOrbis promotes software patents in India without even understanding these. Also in spite of India banning these. Now comes this self-promotional puff piece. What gives? When will they understand or accept that Indians simply do not want (or need) software patents? When is enough “enough!”?

“Infosys, an Indian giant, already spoke out against software patents and virtually stopped pursuing them.”Watch IBM’s Manny Schecter (he is their patent chief) along with his ilk still promoting software patents in India, not only behind the scenes but also publicly. A few weeks ago he wrote: “Great that India is promoting #IP education, but #India must also recognize a broader scope of #patent eligible subject matter…”

He was alluding to software patents, as usual. Meanwhile, the English-speaking news in India (several articles such as this one, found via numerous accounts) says that patent aggressor Facebook is pursing patents that are not allowed in India. This is a software patent:

Facebook has sought an Indian patent for its electronic payment system enabled through messaging.

Apparently, based on this other report, both Apple and Facebook ignore patent law in India and pursue such patents. To quote, “Apple and Facebook’s move to apply for patents relating to digital payments comes despite India’s stand on not allowing patents on software, unless paired with hardware in an innovative way.”

“Patent maximalism would impress nobody but the likes of Microsoft, which is close to TCS and Wipro.”Infosys, an Indian giant, already spoke out against software patents and virtually stopped pursuing them. According to this new report, TCS and Wipro (the other Indian giants) still “seek more patents”. Patent maximalism would impress nobody but the likes of Microsoft, which is close to TCS and Wipro. Here is the part about Infosys:

Infosys has embraced open source technologies, also joining the Open Invention Network (OIN) to share IP on Linux programs and support “patent non-aggression”. This will also reduce research costs and focus on building technologies with community participation and strengthen its offerings.

We wrote about this 3 months ago.

We strongly encourage all Indians to get involved and organise against software patents in order to guard their best industry.

Wouter Pors Under Fire for Lying or Manipulating in the Name of the Unitary Patent (UPC)

Posted in Deception, Europe, Patents at 8:09 am by Dr. Roy Schestowitz

Team UPC knows no other way…

Wouter Pors

Summary: The argument between Team UPC and other patent professionals (without a lot of eggs in the UPC basket) heats up as Wouter Pors resorts to desperate measures and Bristows belatedly admits constitutional problems in the UK

Wouter Pors from Bird & Bird is not an unknown character. He is one of the main cheerleaders or perpetrators of the UPC (he would profit from it) and he habitually gets slammed for promoting it using comments outside his employer’s (or Kluwer) site, where comment sections either don’t exist or are closely guarded (from criticism). In Kluwer, for example, two Bristows authors have been caught (and called out on) censoring comments they did not like, e.g. 1, 2, 3]. To some degree, these Bristows employees also had UPC-hostile comments rubbed out of existence in IP Kat. There’s a systematic campaign of censorship and propaganda and it has always been less effective in comment sections where the moderator is not with Team UPC. When Bristows writes something in IP Kat (notably about the UPC) it’s always lies and self-promotional pipe dreams; accordingly, virtually all the comments are negative. The readers are not as dumb as Bristows wants them to be and Bristows is impressing nobody but EPO management like Battistelli.

After Pors got massively slammed for his attack on a judge (the messenger) earlier this morning someone refuted him as follows (comment approved).

In order to support “wild_guess”, one could say that Mr Pors has, once again, missed an opportunity to keep quiet.

Now the matter has landed at the German Constitutional Court (BVerG), we should not forget that the BVerG is allowed to examine the matter on its own motion and dig much deeper as to the alleged lack of quorum in both houses of parliament. It is to be hope that it puts a question to the CJEU.

Such a question should have been put to the CJEU before continuing. It would at least have brought certainty, I would even say “early certainty” (any resemblance ……..).

In the blog

http://kluwerpatentblog.com/2017/06/22/challenges-challenging-unified-patent-court-opt-gap-rules/ [alludes to this latest piece of Alan Johnson and Luke Maunder from Bristows]

the authors, from Bristows, have brought out a possible constitutional problem in the UK.

What an irony…..

Well, Bristows knowingly demolished democracy all along. They consistently lied for it too (they still do, as recently as a couple of days ago).

Sadly, most UPC critics prefer to remain anonymous, so we often alone in debunking the lies of Team UPC. More firms and more professionals need to become vocal and truthful; we need to bury the UPC once and for all; it would also help assure restoration of order at the EPO. As various people — including EPO insiders — sometimes point out, the UPC has a lot to do with Battistelli’s utter chaos.

“When asked by Ars, the EPO’s spokesperson mentioned the imminent arrival of the unitary patent system as an important reason for revising the EPO’s internal rules…”

Dr. Glyn Moody

Systemic Injustice at the International Labour Organisation (ILO) Causes Serious Harm to Complainants’ Health, Including EPO Complainants

Posted in Europe, Law, Patents at 7:32 am by Dr. Roy Schestowitz

If the International Labour Organisation (ILO) does not get its act together, it will find itself facing a storm of criticism too

Guy Ryder
Guy Ryder, Director-General of ILO

Summary: The high human cost of ILO’s failure to fulfill its stated mission while pretending that it has things under control (that is clearly no longer the case, especially as far as EPO cases go)

IN only a few days from now ILO will release judgements regarding EPO staff, but as we recently demonstrated, ILO is increasingly complicit [1, 2] and is consistently failing to deliver justice, not even enforce justice. It’s a farce!

“Do Dutch authorities care to realise that ILO is not a recourse to justice?”ILO is, in my personal view (based on a lot of documents seen but not published), defunct. It is in many ways in an implicit allegiance with Team Battistelli. They cover each other’s backs. ILO does absolutely nothing to stop the regime at this stage. If anything, it occasionally compliments this regime. It almost attempts to legitimise the regime. SUEPO attempted to respond to this in a diplomatic fashion (maybe too amicable), but ILO deserves scrutiny if not public shaming.

Over the years I’ve seen (but never published) ILO mistreating complainants. Do Dutch authorities care to realise that ILO is not a recourse to justice? It’s a joke, it’s a placeholder if not mere varnish on a system of systemic injustice — an entrapment to those who work in international organisations. All ILO leads to is drainage of one’s personal savings (on legal fees that are typically paid in vain, characteristically with unemployment in the interim).

“It’s harmful to people’s morale and detrimental to their health.”ILO’s failures have more severe consequences than financial. It’s harmful to people’s morale and detrimental to their health.

A recent diagnostics, explained one reader to us, is “aggravation of my known chronic occupational disease.” By giving the complainant a very short amount of time to respond to a massive document, the complainant suffered a lot, as the following letter explains:

ILO causing health issues

“I did not find a lawyer for my case against the state until now,” we got told, and “unlikely that I will find one still.”

In the meantime, the complainant explained, the “illness worsened during my last 30-days term with the ILOAT” and there has been no reply from the ILOAT until now.

So much for looking after labour…

What is ILO good for anyway?

Apparently, the cryptic rules of the EPO are known to too few lawyers in order for them to help. Can Dutch politicians still pretend that ILO excuses the EPO’s abuses by providing some kind of effective oversight?

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