07.10.17
Posted in Europe, Patents at 7:38 pm by Dr. Roy Schestowitz
Summary: How a popular strike against the management of the EPO got spun as improvement in the social climate
THE EPO was on strike a week ago, after nearly 90% of staff had voted for a strike (among the ~40% of staff which was brave enough and informed enough to go vote on it).
After human rights violations by Battistelli, including persistent attacks on staff representatives, abolishment of the rights of staff/strikers etc. we see them do this obligatory but unprecedented strike-shaming (warning: epo.org link). “A low rate of participation by staff was registered,” it says.
Someone told us in the comments that about 20% were on strike, but the EPO, as usual, found its “alternative facts”.
It’s worth noting that the EPO’s managers and communications people hadn’t even mentioned anything about the strikes anywhere (barely even internally) until they found a strike-shaming angle/spin. Disgusting and insulting, not just to those who participated.
As can be seen above, the subliminal message is, workers are now happy and it’s business as usual. The subtext is gross as it’s another spit in the face of EPO staff.
Looking at some new anonymous comments, people are certainly not happy. “Given that the administrative council appears to be solidly backing Battistelli, it does seem that he [Battistelli] is not the only problem,” one person wrote.
Another person said: “Given that the national representatives are clearly listed on EPO site, and I’m sure there are commentards from each European nation represented in EPO – it’s not really that difficult to send an email to your national EPO rep and ask what the hell is going on!”
The next comment said: “If they can’t even fire a dictator in a European-run company, how the heck are we supposed to deal with dictators of countries??”
That’s a typical argument that’s often heard from/used by Eurosceptics.
“I know he’s claiming that as it’s an international organisation,” said the next comment, “they’re immune from local laws, but that’s bollocks right? Surely any organisation has to adhere to the labour laws of the country they’re employing people in? I suppose they can just refuse to pay up even if an employment tribunal finds them guilty of (eg) withholding pay.”
Well, they already withhold pay in some cases and even threaten to take away people’s pensions. They use these threats to blackmail people.
“I doubt things will improve with a new president,” the next comment said. Here it is in full:
The EPO is a bit of a weird one in that all countries participating agreed that it would remain outside the jurisdiction of one specific country, lest it give the country the EPO settled in some form of legislative control over the organisation, possibly forcing it to rule in it’s favour. This means the EPO staff does not fall under Dutch labour laws. This has already been tested in court.
Given the support Batistelli seems to have in the higher levels of management (these latest approved “reforms” are again a blatant power grab and method to silence critics) I doubt things will improve with a new president. The only way they are ever going to fix this is for the new president to immediately throw out all this bullshit Batistelli put in place and put some proper independent oversight comittees in place. Otherwise they’ll just be swapping “Great Leader” for “Dear Leader”.
More on the immunity:
It would be nice to think so, but the European Institutions have effective and legal immunity from such mundane things as local laws.
In Luxembourg, there are many EU Institutions and many, many eurocrats working in them. I will not go into listing the various advantages these people have (special tax-free supermarkets, no income tax, . . .), but a few years ago there was a review of hiring policy and now EU Institutions in Luxembourg are offering new entry-level positions at less than than the Luxembourg Minimum Wage index.
Nothing can be done against that by the Luxembourg government.
Anon for obvious reasons.
Oddly enough, IPO was then brought up:
I’m not going to defend the European Institutions laws / staff rules – I will remark though that all of these Institutions mandates are created and approved by each of the Member States Governments – its therefore also a national responsibility to correct things if they are not fit for purpose! In the case of ridding the IPO, which is not an EU Institution, of its leader it seems the same is true. With the exception of a few honorable exceptions the responsible administrations are not living up what I would expect their electorates to demand from them.
Also its incorrect to say that EU bureaucrats don’t pay tax – they don’t pay tax in the Member State they work in but they do pay an EU income tax – http://ec.europa.eu/civil_service/job/official/index_en.htm. However, in the case of the IPO which is not an EU entity, it may be that no income tax is paid.
“It’s like FIFA,” said the next comment, where people got “bribed and threatened into compliance with the President’s agenda.”
Remember what Battistelli did. Here is the comment in full:
It’s like FIFA. There are a large number of member states which can be (and were) bribed and threatened into compliance with the President’s agenda. Yes, a few member states may have objected but they are vastly outnumbered by the others. FIFA wrongdoing was eventually exposed because football is interesting to the press. International civil servants are not, and are often caricatured as “privileged”. Yes, they are well paid, but many politicians, academics, consultant physicians, business people, lawyers, etc etc are paid even better (even after tax), can live in their home countries and enjoy the protection of their laws and of human rights treaties to which their country is a signatory. No-one would suggest that at a certain level of pay they have been bought out of the protection of the law, would they? But this is implicit in many comments about the plight of employees of the EPO and other IOs.
In our assessment, the EPO has become not only crooked but also corrupt. Those who dare protest against it have their action spun as some kind of “social democracy” (the right to strike) and are used as ‘proof’ that dissent comes from a “vocal minority” (see the EPO’s misleading statement at the top). █
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Posted in America, Deception, Patents at 1:50 am by Dr. Roy Schestowitz
They want software patents back and they work hard to mislead politicians on it, sometimes under the guise/pretense of “academia”
Echo chamber-like panels (“stacked” by their own admission) designed to talk about how wonderful software patents are
Summary: Using paid-for lobbyists and influence that’s up for sale, companies such as IBM set up events and initiatives to compel politicians to change Section 101, gut patent progress, and basically give patent aggressors a free rein
THE one article we were extremely eager to publish (for over a month now) pertains to the efforts to overturn Alice or at least compel the US patent office to ignore it.
A lot has happened since we intended to publish this (pending some more fact-checking and research), including the pushing forth of a bill. Watchtroll, for example, has moved on to other matters and it’s almost as though the lobbying effort completely lost steam by now. Nevertheless, we want to keep documented what happened around the month of May (and to a lesser degree June). There are malicious forces at play and they desperately try to undo all the patent progress, having already chased away the Director of the USPTO. Will they be back at it? We certainly think so.
“There are malicious forces at play and they desperately try to undo all the patent progress, having already chased away the Director of the USPTO.”IP Kat used to be a good blog, but we hardly cite it anymore. It has become terrible. It’s used for marketing and agenda-pushing. It plays a role in some of the most regressive activities. A longtime proponent of software patents (not that she ever wrote any software), Annsley Merelle Ward from Bristows, attacked the US patent system over Section 101 — essentially the means for invalidating software patents these days. She piggybacked a bunch of people who lobby against Section 101 (or lobby to water it down). “His heightened sense of alarm stems from a concern that America’s patent system has been going in the wrong direction while other patent systems have been improving,” she wrote. Pure nonsense. If anything, the US patent system is improving! Quality is up, lawsuits are down.
IP Kat, now effectively run by Bristows’ liars as far as patent coverage is concerned, goes further by calling AIPLA (pressure group of the patent microcosm) something that it’s not, in order to give its ‘views’ (financial agenda) legitimacy. There were many examples of this back in June, e.g. [1, 2, 3]. Is this what IP Kat boils down to now? A mouthpiece for AIPPI/AIPLA? Thrice in June alone (so far, based on a quick ‘literature’ survey) Bristows exploited the blog for marketing or lobbying by patent maximalists. This may sound benign, but considering what AIPLA has been up to recently, it’s anything but benign. The US Supreme Court is under attacks from these think tanks and pressure groups (like AIPLA), primarily for stopping software patents with Alice (2014). See this article titled “AIPLA releases Section 101 legislative proposal” (one among several such reports). AIPLA, a pressure group, along with IBM and some other patent vultures, try to undermine the law itself. As United for Patent Reform put it at the time, “Steven Anderson of @culvers tells @HouseJudiciary that to lose #Alice “would be extremely disappointing and costly” to #smallbiz” (obviously).
“IP Kat, now effectively run by Bristows’ liars as far as patent coverage is concerned, goes further by calling AIPLA (pressure group of the patent microcosm) something that it’s not, in order to give its ‘views’ (financial agenda) legitimacy.”People start to worry that the lobbying might actually work and Section 101 (in its current form) will be thwarted. Under Trump it will probably be easier to bribe politicians to ‘buy’ USPTO policies in defiance of SCOTUS. As The National Law Journal put it at the time (in its headline), “After SCOTUS Shake-Up, Lawmakers Plot Next Steps on Patent Reform” (we now know the resultant bill, which seeks to gut PTAB as well).
As is usual from IP Kat these days, comments are a lot better than the ‘articles’ (lobbying/advertising). Someone pointed out that Annsley Merelle Ward “lacks a grasp of what the subject matter in each STILL means.” Well, exactly the opposite of what she said (AIPPI/AIPLA propaganda) is true. To quote the comment:
I must take issue with the statement of:
“The incredible developments in technology – how information is created, by what technological process, how information is accessed and where it is used – means the subject matter once the purvey of the patent world has crossed into the copyright realm.”
It is not only incorrect, but troubling so, to think that that a person charted with writing on the subject does not understand that the subject matter of what patents protect and what copyright protects has “crossed into.”
The subject matter remains clearly different between the different areas of Intellectual Property protection.
What perhaps has “crossed into” (and certainly, this crossing has been going on now for many decades) is that a particular manufacture of the hand of man (as those terms are understood in the various Intellectual Property legal terrains), has multiple aspects, each of which may earn protections in the different IP areas.
This is most definitely NOT a matter of “subject matter” crossing from one IP terrain into another.
Patents still protect that which patents protect.
Copyrights still protects that which copyrights protect.
It is decidedly unhelpful to contribute to the view that somehow “subject matter” is “crossing into” one IP arena from another IP arena – and shows that the author lacks a grasp of what the subject matter in each STILL means.
Watch how Annsley Merelle Ward gets completely skewered in the comments in another one of her posts (again for distorting facts):
Terrible proposal. Assessing patent eligibilty without regard to sections 102, 103, and 112 is absurd. This allows completely ineligible subject-matter to become patentable simply by including a conventional and known piece of apparatus e.g. a computer doing something that can be performed solely in the human mind. It should be the new and non-obvious subject-matter that is assessed for patent eligibility.
And here is another:
Your post contains so many legal (and factual) errors that I scarcely know where to begin.
First, subject matter eligibility and patentability are separate concepts.
Second, the US law – as established by the Act of 1952 broke apart 101 and the other sections of law (102/103/112) for a reason. That reason is exactly the same reason that the current legislative suggestions are coming forth.
Third, eligibility remains something determined for a claim as a whole, so the notion that ineligible subject-matter now “becomes eligible” has nothing to do with the legislative changes – your “concern” already IS the law in the US. The easiest example of this is the Diehr case, where everything in that case was old, except for the use of a computerized math equation. The important aspect was that the math equation was there in the sense of applied math. Your over-stated concern of “a computer doing something” is exactly the type of thing that patent law was meant to protect. It was, is, and will remain a question (for eligiblity) as to WHAT the “doing” is, and whether that “doing” falls into the realm of patent protection of the Useful Arts.
Fourth, your position denigrates the factual situation that the known and conventional piece of apparatus is in fact improved. US patent law allows for improvement patents. In fact, a very large percentage of patents are of the improvement patent type. Your view exhibits the fallacy known in the US as the House/Morse fallacy. A television show called House has a protagonist that believed that only the first computer should have been patentable and that all improvements (via software) belonged to that first inventor. This though is the opposite of the US case of Morse which held that all future improvements were NOT captured by a first (grand) invention.
Fifth, your view ignores the actual factual state of what software is. Software is a manufacture (in the legal sense, as it is a fabrication by the hand of man intended to be a machine component). That is the nature of what software is, and always has been. It is a “ware” that is soft, or easily modified, changed, reconfigured, and the like. In the patent sense, this “ware” is every bit a patent-equivalent to other “wares” i.e., hard and firm “wares.” There is nothing that can be claimed as a software invention that also could not be set completely in hardware.
Sixth, you conflate 102/103 with 101, and this conflation evidences an attempt to apply 101 on some per element basis. This gets each and every section of US law wrong.
I could continue, but I hope that you see the error in your views by now.
This would probably be excusable as gullibility if the author hadn’t spent years gleefully promoting software patents. The matter of fact is, all the above is pure lobbying and it’s happening right here in the UK.
Over in the US, things are just as bad because the patent microcosm (Jeff Lindsay in this case) resorts to alarmist tone: “Many patents being allowed in Europe &China are rejected as ineligible in US, a sign of trouble in USPTO & SCOTUS.…”
So?
That’s a good thing, no?
“This would probably be excusable as gullibility if the author hadn’t spent years gleefully promoting software patents.”Well, not for a “patent agent” like Mr. Lindsay. High patent quality is not “trouble” and Watchtroll promoting a right wing corporate think tank is hardly shocking (that’s what Mr. Lindsay links to). The latest among all those think tanks involves Adam Mossoff, a pro-trolls academic who spoke of “Dave Kappos @ IIPCC conf on patents & innovation: the 101 situation is not improving, it has at best only stabilized in a terrible space” (yes, he calls David Kappos “Dave” as if this lobbyist is a buddy of his).
As can be expected, the company that hires these lobbyists, IBM, was there too. Mossoff wrote that “@MannySchecter @ IIPCC conf on patents & innovation: legal uncertainty is enemy of R&D & #innovation, & massive legal uncertainty today” (Schecter is IBM’s patent chief). Nice lobbying platform you got there. IAM helped with this article:
US businesses deal with devastating effects of SCOTUS decisions; support grows for subject matter reform bill
[...]
In March, a paper by Adam Mossoff and Kevin Madigan from George Mason law school analysed a dataset of 1,400 patent applications, finding marked differences between patent eligibility in the US compared with Europe and China.
By their own admission, this is a “stacked” panel (lacking anyone from the other side of the argument). To quote, “@JackBarufka of @pillsburylaw moderating the stacked Section 101 panel #GWIP pic.twitter.com/kt1hAO65IM”
“Watchtroll and IP Kat are symptoms of a problem. They are figureheads in the fight against Section 101.”As a reminder, the Intellectual Property Owners Association (IPO), the American Bar Association’s (ABA) IP section and the American Intellectual Property Law Association (AIPLA) play a big role in this, aided by Adam Mossoff and Kevin Madigan in “scholar” clothing. IPO and IBM even created a “task force” for this. They actively support sites like Watchtroll.
Watchtroll and IP Kat are symptoms of a problem. They are figureheads in the fight against Section 101. They are not only smearing SCOTUS (Watchtroll and his sidekicks) but are also insulting their own country. “America’s patent system favors low tech, not groundbreaking innovation,” said one recent headline from Watchtroll. So says a man who doesn’t invent anything and just attacks anyone (even judges) who applies patent law and issues a judgment based on the rules. Here is another example of Watchtroll posts. It says that “patent analytics software can be utilized to assess the corporate patent portfolio on an asset-by-asset basis, by technology or product focus, and within the context of a broader IP landscape.” Seriously? Letting some machine do an in-depth analysis of the underlying concepts? Pure science fiction. Like that stuff Battistelli tends to fall for…
“It’s not clear if all that lobbying will lead them anywhere, but unless their actions are properly scrutinised and the culprits get named and shamed, they might actually make headway for their own selfish interests (disguised as “innovation” or whatever).”Here is Watchtroll using terms like “piracy” and “patent owner” to further perturb the debate.
It’s not clear if all that lobbying will lead them anywhere, but unless their actions are properly scrutinised and the culprits get named and shamed, they might actually make headway for their own selfish interests (disguised as “innovation” or whatever). █
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Posted in America, Apple, Google, Microsoft, Patents at 12:30 am by Dr. Roy Schestowitz
This is no “David versus Goliath” myth but a case of parasites versus companies that actually produce stuff
Summary: A condensed summary of cases and news coverage pertaining to patent trolls in the United States
“TROLL” is a derogatory term. So is the term “shark”, as in “patent shark”. But considering what patent trolls are doing, derogatory terms are very much deserved and justified. I occasionally hear from victims of trolls and they are too afraid to speak about their experiences publicly. It ruins their lives, not just their businesses, their projects (sometimes hobbies) etc. Today we summarise some of the recent troll cases that we have not found time to cover. All of them rely on patents granted by the USPTO, notably software patents.
GPNE
The trolls-friendly IAM, citing the GPNE troll, says that China is quickly becoming attractive to patent trolls, just like we expected. China is nowadays mimicking or copying the worst elements of the US patent system and is sometimes dragging companies to courts in Texas. We say “China” because some of these companies are government-connected.
IAM, as usual, calls patent-trolling “monetisation”. “Given the tough monetisation climate,” it says, “particularly in the US,” some of these parasitic companies go elsewhere.
Well, we certainly hope that they’ll stay out of Europe and preferably out of business altogether.
Patent Trolls in the Mainstream
Not only sites that primarily cover patents write about trolls. “Why we stepped up to the patent troll problem,” for example, is a press article that surfaced quite recently. As trolls are the source of most software patents litigation, some would rather speak about the plaintiff, not the patent/s. “Entrepreneurs don’t pour all their energy into building startups just to have a patent assertion entity (PAE, or patent troll) attack them with patents of questionable quality,” it says. “That is, unfortunately, a very common patent troll story. The PAE problem is big and growing, posing a threat to startups and established companies alike, costing companies millions in defensive litigation fees and diverting money that would be better spent on innovation.”
There is a part there about OIN as well: “Open Invention Network (OIN) is another solution. Members agree not to sue other members for patent infringement on Linux (though they can still engage in patent litigation with other OIN members for infringement for things built on Linux). In exchange, members get the same promise from other members and a license to OINs portfolio of 100s of patents. Along with LOT, membership in these networks is not only good for individual companies, but also for the tech industry as a whole.”
The article comes from Michael Meehan, a director of IP at Uber, and may be a copy of an article elsewhere.
Also worth highlighting is Zoho’s blog post titled “Supreme Court Ruling Bolsters Zoho’s Stand Against Patent Trolls” — an article which celebrated TC Heartland and said:
Yesterday, the Supreme Court dealt a major blow to patent trolls all across the U.S. For decades, technology companies have been an easy target for frivolous patent suits. Arguing that most judges don’t have the technical expertise to preside over most software patent cases, predatory litigants have managed to shift more and more cases to a single federal court system: the Eastern District of Texas. As a measure of how skewed IP litigation has become, this rural court, seen by many as “friendly” to plaintiffs, presided over 44% of all patent disputes in 2015.
We wrote about TC Heartland yesterday, hopefully for the last time.
Codec FUD
Going almost a couple of months back, BAMTech’s CTO said something quite odd. He, like Steve Jobs, was relaying patent trolls’ FUD. He wants us to think that paying a cartel or patent trolls is safer than Free software.
According to the report, “Inzerillo said open-source codecs are “really tough” because on one hand, they’re royalty-free, but on the other, none have been tested, meaning they could result in a lawsuit if they’re eventually found to infringe. He added that becoming embroiled in a lawsuit could be more expensive than licensing a codec like HEVC.”
Well, how often have such lawsuits actually happened?
Blackbird Technologies
One patent troll that emerged again this summer was Blackbird Technologies, which we wrote about back in May. “The Patent Troll’s New Clothes” was one among many articles about it, noting that “Blackbird was formed in 2014 by attorneys” and that it had nothing to do with invention, just extortion with software patents. As this one article from someone who knows them personally put it:
Blackbird was formed in 2014 by attorneys who worked for two major law firms. Everyone involved in Blackbird used to work on the defensive side of patent litigation; often, they were defending their clients against trolls. (A disclaimer: I used to work with some of the Blackbird attorneys, and I think well of them personally, despite their descent under the bridge.)
A new puff piece about this troll was published yesterday in the US media and said this:
So Freeman and Verlander founded Blackbird Technologies. The lyrics of the iconic Beatles song suggested rebirth to them, and they hoped to resurrect lifeless patents. (Also, every conceivable spelling of “phoenix” was taken.) Unlike a traditional law firm, Blackbird is structured as a limited liability company, not a partnership, and it has no clients. Instead, it acquires patents from inventors or small businesses. Blackbird then sues companies for patent infringement on its own behalf, and it shares an unspecified percentage of any settlement or judgment with the original patent owner.
Blackbird filed 107 lawsuits between September 2014 and May, including against Amazon, Fitbit, Netflix and kCura, a Chicago company that makes software used by law firms. It has settled with Amazon; the kCura case has moved to private mediation. The cases against Fitbit and Netflix are ongoing.
We first wrote about this troll in relation to one particular lawsuit, but it’s actually going after quite a few companies. Patently-O wrote about it back in May, calling these patent trolls “Patent Assertion Entities” and noting that “there are other entities like this, but if so they haven’t made the boom that this one has. Blackbird Technologies was founded by former big-firm (WilmerHale, Kirkland Ellis) patent litigators. It buys (or somehow obtains rights to assert) patents and asserts them with its own in-house staff of litigators. Its “news” page reports a number of suits — at least 100 in its short life — and reports that it settled many.”
We hope that the underlying patents will be quashed. In some of the Blackbird Technologies cases there are already motions to that effect.
ContentGuard
Last year when we mentioned ContentGuard we did not delve into the details, albeit Patent Progress ran a long series about it last month [1, 2, 3, 4]. The site “went through the history of the ContentGuard v. Apple and ContentGuard v. Google cases [and] talked briefly about the Markman process [going] into more detail on what Markman is, how it works, how Markman affected the ContentGuard cases, and why it’s such an important issue in patent litigation in general.”
These cases are relevant due to reaching the Court of Appeals for the Federal Circuit (CAFC), so we shall keep an eye on these.
ContentGuard was first mentioned here about 8 years in relation to Microsoft.
Uniloc
Uniloc is so prolific a patent troll (best known for its cases against Microsoft) that we have a Wiki page about it and dozens of articles.
Having already got money out of Microsoft, this troll “is scrambling to keep Google and other big tech defendants in East Texas federal courts,” says this report. “Uniloc filed a brand-new complaint (PDF) last week, which spends twice as much time describing Google’s ties to Texas as it does explaining how Google supposedly infringes two Uniloc patents, numbered 8,995,433 and 7,535,890. The patents, entitled “System and Method for VoIP messaging,” describe sending instant messages and voice messages over the Internet.”
This could become trickier after TC Heartland. Uniloc is also going after Apple as “Uniloc alleges that Apple infringes upon its patents with AirPlay, autodial, and battery charging,” said a recent report from a Mac-oriented news site. Patent Progress wrote about this as well. To quote: “Uniloc filed a set of lawsuits against Google based on a set of VoIP patents back in March in the Eastern District. After TC Heartland, however, their original complaint would have been totally deficient—there simply wasn’t any information in it that would support venue being proper in the Eastern District.”
Yes, this may be a good example of TC Heartland at work. In July, or at the very end of June, Mac-oriented news sites were still writing about it. These software patents generally affect phones, too, including Android devices, and there are many lawsuits. Uniloc targeted Google directly and the filings (as PDF) got mentioned quite a while back. To quote a patent maximalist: “Next battleground for #patents, venue: https://www.patentprogress.org/wp-content/uploads/2017/06/Uniloc-v.-Google-Complaint.pdf … IMO ecommerce cos have regular/established place of biz: each user browser”
“Microsoft used that trick against TomTom to be able to litigate where they wanted,” Benjamin Henrion responded to him. The EFF too is watching this case. As the EFF’s Nazer put it at the time, “Uniloc sued Google in EDTX yesterday. The patent troll tries, very very hard, to allege venue under TC Heartland…”
We’ll keep en eye on that case.
Universal Secure Registry
Here’s a new name: Universal Secure Registry.
We never wrote about it. New patent troll on the block?
Well, back in May it went after Apple, as reported by Apple-centric sites, corporate media and even this press release. This case too we intend to keep an eye on.
The bottom line is, the terrain is becoming tougher for patent trolls, but they are still active. When we’re not busy writing about the EPO we’ll definitely report about patent trolls. They ought to go extinct because they’re an anathema (or antithetical) to the patent system as it was first envisioned. █
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