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07.17.17

Anti-Patent Trolls Reform in the US Evolves Nicely and Rogue Judges Get Named, Shamed

Posted in America, Patents at 2:53 pm by Dr. Roy Schestowitz

Bob Goodlatte
Reference: Bob Goodlatte, a US politician who works towards positive reform

Summary: A quick look at today’s coverage regarding the battle against patent trolls in the US, as well as the patent microcosm’s war on the Patent Trial and Appeal Board (PTAB)

TECHRIGHTS published many articles about the USPTO over the weekend; there is plenty more on the way. The only good news (and reason for happiness amid EPO disasters) seems to come from judgments of the courts there, especially the higher courts. The US is gradually changing for the better, having previously become one of the world’s worst (China may soon inherit this title and maybe Europe, even though the UPC isn’t getting anywhere).

“Expect patent parasites to butt heads with technology companies, sometimes via front groups.”Managing IP, a site for patent maximalists, recently organised a PTAB event for the patent microcosm. It wrote about it today. PTAB, as we noted several times over the weekend, is an essential part of patent reform in the US. The patent maximalists attack it viciously, whereas practicing companies defend it. Expect patent parasites to butt heads with technology companies, sometimes via front groups.

Josh Landau, who works for the Computer and Communications Industry Association (CCIA), basically fronts for various large technology companies. Today (just hours ago) he published this very long article about “bad patents” and here is what’s said regarding PTAB:

The existence of an IPR doesn’t eliminate the ability of a patent owner to request one of these proceedings. If a request for one of these existing reexamination avenues comes in while an IPR is pending, then the PTO “may determine the manner in which the inter partes review or other proceeding or matter may proceed, including providing for stay, transfer, consolidation, or termination of any such matter or proceeding”. This authority is exactly what the PTAB uses when they combine multiple IPR petitions into a single proceeding. If a patent owner were to, for example, tell the PTAB that it would prefer to cancel its existing claims as unpatentable and proceed with reexamination on new claims, then the PTAB already has the ability to stay the IPR pending the reexamination, or even to terminate the IPR.

Thankfully, notable figures in US politics (prominent politicians in this domain) are quickly accepting that quality of patents — not number of patents — is what matters. They too have begun speaking about “bad patents” (such as software patents) and Managing IP — being the front that it tends to be — wrote this several hours ago:

US Representatives Darrell Issa and Bob Goodlatte have accused Judge Gilstrap of re-interpreting the law and the TC Heartland decision to keep as many patent cases as possible in his district. But one Eastern District of Texas lawyer told Managing IP this criticism is unfair and says Gilstrap’s recent four-factor test for determining regular and established place of business represents “outstanding judicial management”

So politicians have finally said the truth about this troll-feeding man. We mentioned him many times not because we’re obsessed with him but because he’s responsible for a vast number of troll “wins”. Yesterday, Dennis Crouch wrote about Genband v Metaswitch, a case of a patent troll against a British company. As we noted here before [1, 2], Rodney Gilstrap presided over this case in the Eastern District of Texas and now the case is at the Federal Circuit. Here is what Crouch wrote:

In what the court is calling Apple II, Federal Circuit wrote that the irreparable harm calculus can be met when “a sufficiently strong casual nexus relates the alleged harm to the alleged infringement.” In Apple III and Apple IV, the court further developed its statement, requiring “some causal nexus between [defendant’s] infringing conduct and [patentee’s] alleged harm” and “a causal nexus linking the harm and the infringing acts” respectively. Here however Federal Circuit suggests that the District Court may have applied to stringent of a nexus requirement when it demanded proof that “the patented features drive demand for the product” before finding irreparable harm. In particular, the appellate court suggested that a patentee need not prove its features are “the driver” of demand but instead may rely upon evidence of being “a driver”. The appellate court also re-oriented the focus of inquiry toward ensuring that the allegedly irreparable injury is being caused by use of the infringing features. This is obviously tricky in a multi-component situation.

As we noted last week, Gilstrap’s judgments tend to get overturned quite a lot by the Federal Circuit and this is why trolls want to go to the Eastern District of Texas. An advertisement would likely say “mistrial guaranteed” or “bring us all your trolls! We love trolls!”

“…Gilstrap’s judgments tend to get overturned quite a lot by the Federal Circuit and this is why trolls want to go to the Eastern District of Texas.”Meanwhile, worth noting is this blog post where IAM admits that Jack Ellis has left IAM (the fewer writers they have, the better). It turns out that a few weeks ago Apple bought some US patents from a troll. To quote, “Apple has acquired a group of 11 patents from Korean NPE Goldpeak, according to USPTO assignment records dated 29th June. The transaction, which was completed on 22nd May, involved assets originally owned by Pantech, which was once Korea’s second largest smartphone manufacturer, but filed for bankruptcy in 2014. The transaction was revealed by IAM’s former roving editor Jack Ellis, who left us a couple of months ago but is still keeping his IP eye in.”

It isn’t entirely clear if IAM is collapsing or something else is happening, but departures do happen and we mostly find IAM useful in tracking the behaviour of patent trolls (which IAM adores and accepts money from).

Hopefully, one day patent trolls will cease to be a problem simply because they will cease to exist.

Software Patents Lobbying at IAM Strives to Reinforce the Positions of Patent Maximalists

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

Summary: The latest push for software patents in the software powerhouse which is India and rants about the EPO’s admission about overpatenting, only after pressure from the European Commission

IAM’s persistent push for software patents in India has been documented by us over the past few months. In the year 2017 alone there’s this:

  1. China Adopts Software Patents and IAM ‘Magazine’ (Lobbyists) Continues to Shame India Into It
  2. IAM Just Can’t Stop Pushing for Software Patents in India
  3. IAM ‘Magazine’ as Megaphone for Chamber of Corporates (CoC), Which Tries Shaming India Into Software Patenting
  4. IAM Helps Enemies of India’s Interests Lobby for Software Patents in the Country
  5. IAM ‘Magazine’ in a Campaign to Destroy India’s IT Industry and Help Patent Trolls There
  6. IAM is a Think Tank for Patent Trolls, Software Patents, the EPO, Microsoft, and Whoever Else is Willing to Pay
  7. The Patent Microcosm’s Failed Push for Software Patents Resurgence in the US and Similar Attempts in India and China

Today, yet again, India was brought up by IAM, which continues to do ‘copypasta’ for patent law firms that want software patents in India (for obvious reasons, for themselves). “Detailed analysis of India’s new CII patent exam guidelines,” IAM added in Twitter, with “some good news for SEP owners, but confusion reigns.”

IAM may never stop harassing and shaming India until or unless it welcomes software patents wholeheartedly.

Such is the nature of “media” which merely acts as a front group for interests of patent trolls, law firms and so on.

Speaking of which, watch today’s response to belated EPO changes. Patent law firms, i.e. a bunch of self-serving and greedy patent maximalists, rant about the elimination of some patents on life. “In late 2016,” it recalls, “an Interpretive Notice by the European Commission stated that products produced by essentially biological processes should not be patentable.”

We covered that at the time and it was made official at the very end of last month.

Patent quality is not a bad thing. Quality is essential. Watch this comments thread in IP Kat (not the article from CIPA in 'Kat' clothing). It’s quite long and there have been many comments today about the EPO in relation to examination, the BoA, and UPC. Quality of examination is discussed as well.

UPC Puff Piece in the Scottish Media is Just an Advertisement by Marks & Clerk

Posted in Deception, Europe, Patents at 5:42 am by Dr. Roy Schestowitz

When moneyed interests dominate the media

Marks & Clerk

Summary: Advertising in the form of an ‘article’ (complete with self-serving bias and falsehoods) in The Scotsman today, courtesy of Team UPC

Marks & Clerk is a large firm, apparently large enough to also occupy the media. Over the years we have shown how the EPO corrupted the media (paying it money) and noted that patent law firms totally dominated coverage about patents, either directly (as authors) or indirectly (quoted extensively by authors, usually to the exclusion of those actually impacted). It’s the same problem in the US media, where the patent office gradually improves.

“It’s hard not to get bitter when stuff like this is done so routinely, basically routing around the public.”Not much can be done about this except openly complain about it. This morning (or last night), filed under “opinion”, the Scottish media published pure spam, not journalism, attempting to sell services rather than inform the public. It’s marketing packaged up as “news” and the promotional final words of this ‘article’ say: “If the UK was to end up outside of the Unitary Patent regime, Marks & Clerk LLP would still be able to apply for Unitary Patents for its clients via its offices in Europe.”

Is this what major news [sic] papers have sunk to? Even national press, not just local media? Suffice to say, being an ‘article’ (informecial) from Marks & Clerk, it paints UPC as desirable in spite of opposition from British software firms. It’s hard not to get bitter when stuff like this is done so routinely, basically routing around the public.

‘David Moreland is a Chartered (UK) and European Patent Attorney for Marks & Clerk,” it says. They are proponents of software patents, which isn’t at all surprising (all of Team UPC is promoting these too and the UPC is a Trojan horse for this agenda).

Here are some excepts:

Will our relationship with the EPO change when we’re no longer part of the EU? Contrary to misconceptions, the EPO is not an EU institution. It has EU members amongst its signatory countries, but there are non-members too – Switzerland, for example.

Companies which have patents granted by the EPO then need to have those patents validated in each country in which they want protection.

[...]

But now there is a new spanner in the works. An anonymous party has recently filed a case with the German Constitutional Court which essentially suggests ratifying the agreement would be against the German constitution. The German Constitutional Court has determined that on the face of it, the challenge is not entirely without merit, and asked the German President to delay signing the implementing legislation for the Unified Patent Court and Unitary Patent court. This ensures that ratification does not take place before a full determination of the constitutionality of the legislation has been made. Whether the complaint is upheld remains to be seen; however any attempt to block the legislation will, at the very least, delay it.

They keep using the word “delay” as if, without even knowing the nature of the complaint and where it came from, they are already certain about the outcome. That’s what Team UPC just keeps doing to bias the outcome.

When will we finally see some real journalism about the UPC? We last wrote about utter lack of it in British media only about 24 hours ago.

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