07.23.17
Posted in Europe, Fraud, Patents at 6:39 am by Dr. Roy Schestowitz
[DE] STRASBOURG: Vertreter der Lufthansa wegen Korruption angeklagt
Topić and Matijević
Summary: According to some international sources, it was on account of the corrupt and criminal tendencies with which he has been endowed by nature and which he used to assist international corporations in protecting dubious patents in the Republic of Croatia that Željko Topić was rewarded with a position at the EPO in Munich, although his skills and mindset indicate that he does not belong there. This is also indicated by the fact that this complex-ridden individual recently changed his place of residence in Zagreb.
On 20 July 2017 an action was submitted to the European Court in Strasbourg against the representative of the international airline, or more precisely against its legal representative in the Republic of Croatia, the lawyer Andrej Matijević. The complaint was dispatched by post, from a small town on the island of Korcula from where Ruža Tomašić, a Croatian MEP in Brussels, comes.
The complaint relates to a series of corrupt actions allegedly committed by the lawyer Andrej Matijević, together with the responsible official of the State Intellectual Property Office (DZIV), the former Director Željko Topić who is now a Vice-President of the EPO in Munich. Because of the lack of legal certainty and due to the ineffectiveness and corruption of the Croatian legal system, especially on the part of the Public Prosecutor (DORH) and the Office for the Suppression of Organized Crime and Corruption (USKOK), after more than 9 years of obstruction of the investigation the plaintiff in the proceedings has now decided to seek legal protection on an international level at the European Court in Strasbourg.
The most bizarre fact in the whole investigation procedure which has been going on for many years in Croatia is that apparently neither the representative of Lufthansa nor the former Director of the DZIV, Željko Topić, were ever summoned to an interview with the police or with the Croatian Public Prosecutor. Perhaps not without reason Croatia has been reported as one of the most corrupt states, according to the latest research from Transparency International.
Sources from the European Court of Human Rights Strasbourg indicate that at least four proceedings relating to corruption and discrimination are pending against the EPO Vice-President Željko Topić. The extent of the high level corruption alleged against the Vice-President of EPO is indicated by the claim that he was able to bribe a well-known Croatian investigative journalist. When this journalist was exposed, he terminated his membership in HND (the Croatian Journalists’ Association) of his own motion because he was afraid of Croatian and international journalists’ associations. For the moment, one small detail remains unknown, that is whether or not the accused journalist received the “black” money personally from Željko Topić or whether he received it from the “caisse noire” of the EPO. The sum is estimated to be of the order of several thousand Euros.
After the legal representative of Lufthansa in Croatia did not succeed in lawfully purchasing the internationally protected Air Plus brand, which had been used in an illegal manner for many years by the Lufthansa subsidiary AirPlus Servicekarten GmbH, a ruthless operation of unlawful expropriation of the trademark proprietor from Zagreb (in plain language: theft) was started by the allegedly corrupt Željko Topić who, as Director of the DZIV, responded to the accused lawyer Matijević and by administrative means attempted to illegally delete the protected trademark from the official database the of Croatian DZIV.
Although this pair of criminal “Siamese twins” were exposed, they were never subjected to any sanctions. In fact, according to some international sources, it was on account of the corrupt and criminal tendencies with which he is endowed by nature and which he used to assist international corporations to protect dubious patents in the Republic of Croatia that Željko Topić was rewarded with a position at the EPO in Munich, although his skills and mindset indicate that he does not belong there.
This is also supported by the fact that this complex-ridden individual recently changed his place of residence in Zagreb. He has moved from the slums of the Croatian metropolis to No. 23 Zamenhofova Street and has now become a member of the recently formed and phony “nouveau riche” class.
The true identity of Mr. Željko Topić is perhaps revealed in the two texts below, which were published in the Croatian media [1, 2]. The reports are titled “Sjedi li u EPO krivi čovjek?” [Translation: Is the "wrong man" sitting at the EPO] and “Hrvatski patent za autorska prava” [Translation: The Croatian patent on copyright].
In any case the company AirPlus Servicekarten GmbH (www.airplus.com), headquartered in Neu-Isenburg, Germany, had an impressive turnover of EUR 14 billion in 2016, while at the same time serving a customer base of 49000 exclusively business class passengers, that is to say, passengers with very high purchasing power.
Therefore, it would hardly be surprising if Lufthansa had decided to take such corrupt step assisted by a dubious lawyer and corrupt banana republic officials such as Željko Topić, and attempted to illegally acquire the protected trade mark instead of purchasing it via civilised business practices according to which it should pay at least 2% of the annual turnover of its subsidiary which had been making unlawful use of a foreign trade mark for almost 20 years. In the end it is a question of large sums of money. According to unofficial information of the German lawyer representing the plaintiff in the proceedings, Mr. Constantin Mascher, it involves a claim for damages of at least 30 million Euros. Furthermore, in order to make things even more interesting, reports have appeared in the Croatia media according to which Lufthansa is rumoured to be a hidden owner of Croatia Airlines. █
Constantin Mascher
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Posted in America, IBM, Law, Microsoft at 5:28 am by Dr. Roy Schestowitz
Summary: A look at who keeps lobbying against Alice and where/how; also our assessment of why such lobbying won’t be getting them anywhere any time soon
AS PROMISED in our previous long post, here are some details about the lobby against Alice (i.e. for software patenting). The USPTO continues granting such patents, but in our previous post we showed that almost none of these can “survive” the courts. In other words, there’s a great disparity between granting and assertion in this domain. Certainty is extremely low for software patents.
“So he basically frames the rejection of software patents as “discrimination”. Amazing.”IBM and Watchtroll are probably the worst culprits when it comes to the lobbying; even more so than Microsoft. Here is IBM’s Manny Schecter citing Watchtroll/Gene Quinn (quite frequent an occurrence and Schecter also habitually writes for Watchtroll). “The patent system should not discriminate against certain technologies,” he wrote.
So he basically frames the rejection of software patents as “discrimination”. Amazing.
Watchtroll said: “Alice Who? Over Half the U.S. Utility Patents Issued Annually are Software Related!”
“Software is everywhere. But that does not mean that everywhere technology is used it boils down to software.”Terms like “software related” are nonsensical. Benjamin Henrion already responded to them with , “you mean it does not fit some technologies?”
Software is everywhere. But that does not mean that everywhere technology is used it boils down to software. Yet that’s the kind of ‘logic’ software patents proponents are attempting to leverage. The underlying article IBM links to is from a patent attorney, i.e. part of the patent microcosm.
“Microsoft too is among those trying to change the law in the US, in order to allow software patents chaos to resume (Microsoft’s blackmail relies on that).”“It is time to define the term ‘Abstract Idea’,” Watchtroll added. It couldn’t get any more obvious; they want Alice struck down under the guise of “clarity” that IBM pays David Kappos to play with.
It’s despicable. Microsoft too is among those trying to change the law in the US, in order to allow software patents chaos to resume (Microsoft’s blackmail relies on that). As this recent report put it: “The issue’s importance to biopharmaceutical companies was illustrated March 15 by an unlikely source—an executive from the software industry–which often has been at odds with the biopharma sector on Section 101. Speaking on the topic, Microsoft Corp.’s David Jones said, “The people having the hardest time, as much as we complain about software, are the ones with gene patents.””
Further down it refers to the IBM-led IPO initiative by stating: “The IPO proposed three new parts of Section 101. Section 101(a) would read: “Whoever invents or discovers and claims as an invention any useful process, machine, manufacture, composition of matter, or any useful improvement thereto, shall be entitled to a patent for a claimed invention thereof, subject only to the exceptions, conditions and requirements set forth in this Title.””
“Will all that lobbying manage to warp the debate though?”So it is crystal clear that they are still attempting to resurrect abstract patents, including software patents. Having said that, a lot of the above is from May and June (John T. Aquino’s article is from May) and things have been quiet since then. Back in May there were many articles like “IPO, AIPLA and ABA IP Section Propose Legislative Fixes for Section 101″, “AIPLA offers proposals to alter section 101″ and “AIPLA On Board with Statutory Reform of 101″. A month later there was almost nothing about it and in July there was nothing at all. It’s like they vanished. We should not, however, assume that they stopped trying. Arguably, what they worked on at the time (and to a certain degree did accomplish) is this notorious bill, the “STRONGER Patents Act” which is going nowhere (not even patent extremists like IAM believe it will ever materialise).
Will all that lobbying manage to warp the debate though?
“More reports that Examiners in 3600 are being instructed to conduct less stringent Alice analyses,” Patent Buddy wrote. Have they ‘scandalised’ Alice enough to have it de-emphasised? Well, maybe only at the patent office, but not the courts. The USPTO does not decide what patents will be upheld by judges. Back in May, patent attorney Mark Summerfield wrote about the subject and regarding a particular case, J Nicholas Gross (also patent microcosm) said: “In contrast to PTO, Fed judges continue to rely on principle of “no preemption” to deem patents eligible under 101…”
“The patent microcosm is focusing on exceptions to the norm, i.e. cases where software patents are miraculously upheld (even if by a low court).”Well, they actually do their job correctly. Even if examiners continue to grant software patents, judge will throw these away, merely reducing confidence in US patents and damaging the credibility of the US patent office.
The case at hand is Tecsec Inc. v Adobe Inc. and Mercedes Meyer wrote about it that “EDVA [Eastern District of Virginia] DENIES 12(B)(6) ELIGIBILITY MOTION – claims on 4 patents do not preempt and are inventive; Tecsec Inc. v. Adobe Inc. (5/23/17)…”
So it’s yet another one of many cases where software patents are ruled invalid.
Regarding another Tecsec case, Tecsec Inc. v International Business Machines Corporation (IBM), Docket Report wrote this: “The court denied defendant’s motion for summary judgment on the ground that plaintiff’s encryption patents encompassed unpatentable subject matter because the asserted claims were not directed toward an abstract idea.”
As noted in our previous report, this was the sole case (which we are aware of so far this summer) where software patents were tolerated, and these were only tolerated by a low court. The patent microcosm is focusing on exceptions to the norm, i.e. cases where software patents are miraculously upheld (even if by a low court).
“It seems clear that their last remaining hopes are on this piece of legislation that is already being opposed and condemned even by large corporations…”Is there much of a future (or any) to software patents? Well, that “STRONGER Patents Act” (misleading name) is dead in the water and we expect the momentum of the above lobby to have already been lost in the midst of SCOTUS rulings. We oughtn’t, however, lose sight of the lobbyists. The last thing they want is visibility (when they do their dirty deeds). A vocal software patents ‘lobbyist’, Steve Lundberg, is going mental over the demise of “medical”-washed software patents and other vocal ‘lobbyists’ seem equally perturbed. They can’t seem to get their way. Steve Lundberg is starting to sound like Bill Lumbergh with: “If you could grant me a software patent, That Would Be Great!”
Here is what he wrote:
One of the most disturbing stats related to medical software innovation. Inexplicably, it has been targeted as constituting largely only “abstract ideas” not worthy of patenting. This is another strong indication that the U.S. patent system is sorely in need of a legislative solution to the Section 101 problem that is now a runaway train on course to do major damage to the U.S. patent system and U.S. competitiveness in the technical software arts.
A couple of months later the Bill Lumbergh-like Steve Lundberg wrote in favour of stuff like “STRONGER Patents Act” (promoted also by Bastian Best).
It seems clear that their last remaining hopes are on this piece of legislation that is already being opposed and condemned even by large corporations (except the likes of IBM and Microsoft, which like to shake down companies and extort them for ‘protection’ money). █
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Posted in America, Courtroom, Patents at 4:32 am by Dr. Roy Schestowitz
The US Supreme Court has meanwhile moved on to tackling patent trolls and won’t revisit patentability of software
Summary: A look back at this summer’s patent cases where software patents are consistently (almost without exception) invalidated by courts, owing to § 101 (U.S.C./SCOTUS/Supreme Court)
THE past few months brought a lot of good news from the US. Not only did the US Supreme Court rule to narrow patent scope; US courts also invalidated quite a few software patents; appeal boards did the same (at record numbers). Patent trolls’ fate seems gloomy, more so after TC Heartland. Even if the USPTO continues to grant dubious patents, the ability to enforce these is vastly reduced now.
We have decided to catalog or document some of the recent news that we previously lacked time to cover. These are clustered by topic/theme below.
Patent Law Firms’ Faked Optimism
Nicola Borthwick from Charles Russell Speechlys recently wrote about “[t]he term “as such” [which] has the effect that an invention is not necessarily excluded from patent protection” (for example in the EPO). Here is what she said:
The term “as such” has the effect that an invention is not necessarily excluded from patent protection just because it contains an element which cannot be patented. So, for example, if the application of the software contains a technical feature which provides a technical solution to a technical problem, then it may be patentable. Likewise, a technical invention which results in an improvement in business efficacy will not necessarily be excluded as a business method.
These are just the classic loopholes we have seen in Europe, India, and New Zealand. In the US too, more so after Alice, applicants will resort to such loopholes. But will these help when judges and technical expert witnesses come forth? We don’t think so.
The matter of fact is, legal firms try to reassure clients that they can still pursue software patents, even if the resultant patents are weak and likely bunk (easily-invalidated).
We have written a lot about this before. Any advice from such firms should be taken with a barrel of salt (if taken at all). Their interest lies in patent maximalism, not potency. They profit either way; even if the patents get invalidated in court proceedings…
In a sense, weak patents are good for patent law firms and especially for prosecutors because those are the patents which would be challenged (by the defendant) in a court, necessitating heavy legal fees (their toll).
Courts in the US Invalidate Software Patents
As noted above, once properly challenged (the higher the court or the greater the number of appeals, the better) software patents are rarely upheld. Even in the US, the original home of software patents.
It’s rather amusing to see how patent lawyers’ sites try to twist or spin stories; Take this new one for example. The headline says “Judge Kills Electrical Monitoring Patents Under Alice,” but judges don’t kill, they simply check the law and say that these software patents are bunk. The patent microcosm has long attempted to associate justice with killing, death, and assassination (even calling PTAB a “death squad”). We responded to these gross mischaracterisations many times before.
Here is what the body of the report says:
A California federal judge has ruled parts of four Power Analytics Corp. patents covering software for monitoring electrical systems are invalid under the Supreme Court’s Alice test, resolving part of a patent infringement and antitrust case it brought against competitors.
In a decision Thursday, U.S. District Judge John A. Kronstadt granted a motion from Operation Technology Inc., which does business as ETAP, and Schneider Electric USA Inc., finding the asserted claims of four Power Analytics patents were invalid.
No loaded language there like “kills”, so why the dramatic headline? As we shall show later, there’s a theme here; they try to discredit judges who simply do the right thing, equating their ethics to ethics of assassins.
Misuse of language by the patent microcosm is a subject that merits broader debates; the military industry does similar things, especially at times of war, in order to ‘perfume’ the act of murder (with words like “defense”, “stability” and so on). A lot of that is very subtle and it has become so banal that people fail to see through the perception management tactics.
How about this report from 4 days ago? It speaks of “inefficient industry of patent development and focus on building products…”
What do they mean by “patent development”? They mean writing. There is no development of patents per se. There’s development; then there may be an application for a patent pertaining to that development.
How about this recent report about Tesla, which was openwashing using patents 3 years ago? It says this:
The strategy adopted by Tesla was to release all their cutting-edge software patents to the public domain…
It says software patents; Tesla did this around the same time of Alice (summer of 2014), so these patents were probably worthless or close to worthless anyway…
Going back to the “kill” theme, watch Patent Buddy (of the patent microcosm) carry on with his typical tweeting. As noted in the latest tweets from him (he blocked me for merely criticising software patents), software patents are generally “dying” (his term). Here is one example where he says: “US Pat 7988046, Vehicle violation enforcement system; Killed by Alice…”
“Invalidated” is the right term.
This is the new norm.
As this article from the end of May put it, “at the end of the day the validity of a lot of patents is questionable, especially software patents…”
Obviously.
Here is another one from Patent Buddy: “US Pat 7950570, Parking environment management system; Killed by Alice…”
Again that word: “killed…”
These are very bad times for software patents in the US, irrespective of USPTO grants.
Here is another recent example:
Patents Claiming Method for Parking Violation Enforcement Via Self-Release Booting System Invalid Under 35 U.S.C. § 101
The court granted plaintiffs’ motion to dismiss because the asserted claims of defendant’s parking enforcement patents encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea.
Spot the pattern? We aren’t even ignoring cases that are contrary to this; they’re just so rare…
The US Supreme Court won’t be overturning or challenging Alice any time soon, i.e. software patent remain dead in the water for now. It’s a dark territory for a patent holder to explore.
Here is Patent Buddy again: “The S.Ct. [US Supreme Court] Refused to Hear the Broadband iTV Case Seeking a Definition of “Abstract Idea”: https://dlbjbjzgnk95t.cloudfront.net/0926000/926683/052217zor_4gd5.pdf”
Well, it seems safe to say that such cases are only ever upheld in rare circumstances/occasions; it would be a waste of the Supreme Court’s time to reassess them.
Another new example:
Federal Circuit Finds Claims Directed to Encoding and Decoding Image Data Patent-Ineligible
The Federal Circuit recently held in RecogniCorp, LLC v. Nintendo Co., Ltd. (Fed. Cir. 2016) that claims directed to encoding and decoding image data were not patent-eligible under 35 U.S.C. § 101. This ruling further highlights the evolving analysis of patent eligibility in the post-Alice era. This ruling may further provide guidance regarding the impact of patent claims and the specification when distinguishing between patent-eligible improvements to a computer and patent-ineligible abstract ideas under Section 101.
So why even bother with such patents?
Any news about software patents “surviving” (their term) a high court is put on a golden platter/pedestal by the patent microcosm; that has not happened in a long time.
Patent Law Firms Pay to Dominate the media
In some rare cases (very rare) the appeals staff (PTAB/appeal boards or appeals for short) overturn examiners’ decision to invalidate/reject software patents and watch how the patent microcosm ‘spams’ the media about it. It first pushed it as a paid press release in May and later. In July it did this yet again, spreading the same message as though it was shouting from the rooftops. The title was always the same and it was self-promotional (“Ex Parte Hafner Provides Clarity in Assessing Patent Subject Matter Eligibility for Software Patents”). It was posted again in July, for the third time, this time adding the text “Note: an Addendum has been added to this previously published article.”
“In Ex Parte Hafner,” it says, “the U.S. Patent and Trademark Office Patent Trial and Appeal Board (the “Board”) reversed the Examiner’s rejection that claims directed to an energy transaction plan were subject-matter ineligible.”
Did they really have to pollute the media for 2 months, with about 5 identical press releases (that we found in news feeds), just to say this? Such is the nature of the patent microcosm.
Back to Alice
As we said above, many software patents are being invalidated these days. Patently-O, a proponent of software patents, rarely writes about those, but here is an exception from May. “In this case,” it said, “the appellate court affirmed summary judgment that all of the asserted claims of five EasyWeb patents are ineligible under the Mayo/Alice interpretation of 35 U.S.C. 101 and therefore invalid.”
Well, good. The Mayo/Alice interpretation (or Section 101) has become so scary to these people that they lobby with full force against it (we’ll cover that in a separate post). Thugs, trolls and liars try to undermine a Supreme Court’s decision in order to bring software patents back and some sites go as far as stating “Alice Under Threat” in the headline.
We don’t think Alice is under real threat. Sure, there are attempts to rub if off from history and as the article notes, IBM plays a major role in this. To quote:
Claiming that patents promote innovation, he calls for legislation to deal with the issue, claiming that patents.
It is worth recalling that when IBM was belatedly granted a patent recently on an “innovation” that was by no means new when the application was made and is now entirely mundane, a system for out of office notification via email, it disclaimed the patent. Discarding Alice would re-open the door to such absurd anomalies and give a field day to patent trolls.
Let’s have some common sense when it comes to patents so that we can avoid litigation.
We intend to cover this lobbying separately as there is plenty that we have to show and say. We don’t think this lobbying will get them anywhere; even patent extremists like IAM don’t think so. They’ll carry on trying nevertheless.
“Patent-Eligible Software Under ‘Alice’” was the title of this recent article from lawyers’ media. It’s paywalled, so most people can only read the title. The title itself (alone) can almost qualify as “fake news” because it biases readers’ perception. That’s like saying “edible air”. Alice makes software patents ineligible, not eligible. This title is akin to “man bites dog”.
Pressing on, a proponent of sofwtare patents (not developer but attorney) says “patent eligibility nightmare under Alice continues…”
Nightmare?
No.
PTAB continues throwing out/yanking away software patents (which should never have been granted after Alice) and sites of the patent microcosm say this:
The PTAB held that the claims in Ex parte Quimby, Appeal No. 2016-004681 (June 2, 2017) were directed toward unpatentable subject matter. Of particular interest given the claim language, the Appellant was unsuccessful with arguments that 1) the claims do not disproportionately tie up the use of any underlying idea, 2) the claim provides an improvement in the technological field of mass spectrometry, and, 3) with respect to dependent claim 3, that the claims tied the mathematical formula with technological field of mass spectrometry analyte detection. (citing Research Corporation Technologies Inc. v. Microsoft Corp., 627 F.3d 859 (Fed. Cir. 2010)).
So that’s another “dead” (or “killed” by their language) software patent. PTAB did the “killing” this time. According to these new figures presented by IAM, large corporations too are enjoying the service of PTAB. To quote:
With almost 100 more reviews filed than its closest rivals, Apple clearly seems to be playing a numbers game – looking to see what it can make stick at the PTAB. It is possible to look at this data and wonder why some of these players, which have the deepest pockets and some of the largest legal teams in corporate America, aren’t performing even better. If the PTAB was simply about eradicating bad patents then perhaps they would as they might more carefully pick the patents they challenged. But as the IPR process has become ever more popular it has become a part of the market maxim that a bad patent is simply one being asserted against you.
CAFC opponent Professor Dennis Crouch belittles all this and when PTAB (together with CAFC for affirmation) ‘junks’ a patent he calls it “precedential, but low quality opinion.”
So CAFC is throwing away utterly rubbish software patents; Crouch continues to whine, as usual, being the patent maximalist that he is; he just hates such rulings and preaches to the choir of patent maximalists.
Crouch, on another occasion earlier this month wrote this: “The Federal Circuit has denied OptumInsight’s petition for writ of mandamus on privilege waiver.”
He is generally focusing (more so nowadays) on the shaming of CAFC into patent maximalism. We therefore need to keep an eye on what he’s writing.
Now watch this recent report that says:
On May 23, 2017, the District Court for the Eastern District of Virginia (“District Court”) denied a motion for summary judgment that the patent claims asserted in a lawsuit brought by TecSec, Inc. (“TecSec”) are invalid under 35 U.S.C. § 101.[1]
District court are generally (statistically) quite software patents-friendly and the patent at hand — a patent on encryption — is definitely a software patent. § 101 should be able to invalidate it so it would not “survive” (as the biased language in the headline puts it) upon appeal to CAFC; judges higher up would almost definitely look deeper into it and quite likely toss this software patent in the trash (not just because of its high rejection rates for such patents).
Patent-ineligible software patents (under Alice/Section 101) are becoming so banal that many don’t bother reporting on them anymore. Instead, sites associated with (or controlled by) law firms prefer to focus on more ‘convenient’ cases.
Looking at PatentDocs, a loud proponent of software patents, here is coverage of Credit Acceptance Corp. v Westlake Services (a new CAFC case). Basically, yet another software patent has been declared invalid upon closer examination and it’s a precedential opinion. To quote:
In a precedential opinion, the Federal Circuit affirmed a final written decision of the Patent Trial and Appeal Board (“Board”) in a Covered Business Method (“CBM”) review proceeding in which claims were held to be directed to patent-ineligible subject matter under 35 U.S.C. § 101.
Credit Acceptance Corp. (“CAC”) is the assignee of U.S. Patent No. 6,950,807, which includes both system and method claims directed to providing financing for allowing a customer to purchase a product selected from an inventory of products maintained by a dealer. In one embodiment, the products are vehicles for sale at a car dealership. The invention involves maintaining a database of the dealer’s inventory, gathering financing information from the customer, and presenting a financing package to the dealer for each individual product in the dealer’s inventory.
Given all the above, examiners at the USPTO definitely need to start scrutinising all software patent applications, potentially rejecting every single one of them.
Robert Sachs, software patents profiteer (and casual lobbyist for these), actively tries to discourage USPTO workers from doing their job as per Supreme Court instructions. Watch him have a go:
After Alice, the USPTO’s various guidance memoranda included references to non-precedential Federal Circuit decisions, particularly Smartgene, Cyberfone, and Planet Bingo, as examples of patent-ineligible subject matter. Naturally, examiners cited these decisions in support of their Section 101 rejections.
He also wrote this piece about “surviving” [sic] Alice”, as if the Supreme Court is some kind of “killer”.
Such is the bias of the microcosm…
Covered Business Method (CBM) Also in Danger
Going back to Dennis Crouch, not too long ago he wrote about CBM (business methods), which should also be rejected (under Alice).
Andrews Kurth Kenyon LLP republished [1, 2] its piece about business methods, stating that: “Despite finding a range of business methods and software patents eligible for CBM review during the program’s early existence, the PTAB subsequently took conflicting approaches to assessing eligibility.”
Alice is Safe, Supreme Court Now Focused on Other Patent Aspects
A lot of the debate has already shifted to other cases, notably those pertaining to patent trolls and the “cheap handle, expensive blades” business strategy (using patents). Corporate media still occasionally writes about those cases. Here is one example:
The case has ominous implications for every business model that relies on selling cheap products but expensive supplies. As the Electronic Frontier Foundation points out, many manufacturers of gaming consoles depend on customers buying games from them and them alone, forever and ever. Many connected household products (the “internet of things”) function only if the consumer purchases a subscription from the manufacturer. Such loss-leader pricing strategies may no longer be viable after the Lexmark decision.
Don’t expect Alice to be overturned. Don’t expect software patents to suddenly become “great again” in the US. The Supreme Court isn’t even interested in revisiting the matter and the lobby against Alice is virtually gone from the news (since June).
In the mean time, don’t waste of money on software patents. They’re a lost cause after Alice.
This fairly new ‘advice’ speaks of “Software-related [patents],” adding that “Computer software has its own patent category.”
But what good are those patents?
The conclusion says this: “To understand how much does a patent cost, it’s important to know how the process operates. The patent system is set up to fuel innovation while protecting inventors from theft of their ideas. By following the proper steps and consulting with an attorney, you can protect your ideas with the appropriate patent. Just make sure to cover all of your bases when filing a patent, and spend the necessary money to file as strong a patent as possible.”
Well, guess who wrote this article… █
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Posted in Apple, Microsoft, Patents at 2:52 am by Dr. Roy Schestowitz
Summary: Some of the very latest reports about patents in the US and how these impact the market (costs, availability, and viability of Free/Libre Open Source software)
THE patent landscape in the US is changing. It’s changing for the better (for inventors/creators, not for lawyers who prey on them). Today we’d like to share a few of the latest headlines, then go a little further back in time and document the improvements as noted so far this summer.
Cisco and Arista
CRN has just published this article about the latest twist in a case that was mentioned here the other day (we had been covering it for much longer than that [1, 2, 3, 4]).
When patents reduce the choice that exists for people to choose from in the supposedly free market, what does that tell us about those patents? We have long argued that this case demonstrates the pitfalls of the ITC and this article explains why:
The contentious legal battle between networking rivals Cisco and Arista Networks continues to rage on as the International Trade Commission (ITC) Thursday upheld its decision to ban the importation and sale of some of Arista’s networking products into the United States.
Shares of Arista stock traded down more than 3 percent at $151.81 Friday afternoon after the ITC denied the vendor’s request to lift the ban.
Cisco Senior Vice President, General Counsel Mark Chandler said the ITC send “a strong message to Arista that its corporate culture of copying” must stop.
So they exert financial control/pressure over smaller rivals. Using patents that still aren’t fully tested (the ITC’s scope of assessment is limited). See this financial report titled “Arista Sags: Q3 ‘Uncertainty’ Rises with ITC Setback, Says Wells Fargo” and think what would happen if Cisco’s patents turn out to be invalid or inadequate for justifying such an embargo. Would there be compensation? No.
Consequences of giants like Cisco using patents to embargo their rivals’ products may, in some people’s mind, seem justified. But how about going through a proper process in a court, potentially with appeals, before applying such blanket bans? What is happening to due process in this age of ITC gun-jumping?
MPEG-LA Becoming More Obsolete as MP3 Gets Liberated
MPEG-LA is a subject we last tackled yesterday. Having run out of ‘MP3 tax’, MPEG-LA is currently trying to obtain rights to a tax on life (or genome). In the mean time, MP3′s ‘liberation’ so to speak (from software patents) means that browsers add MP3 support as a matter of standard; even lesser-known browsers:
Chromium, the skeletal open-source browser at the core of Chrome, Opera, Vivaldi, Brave and a few other browsers will receive support for the automatic playback of MP3 files.
“We have approval from legal to go ahead and move mp3 into non-proprietary codecs list,” said a project manager tasked with managing Chromium’s multimedia components.
Until now, Chromium — and indirectly Chrome — has supported various audio formats such as OGG, FLAC, Opus, WAV, PCM, and others.
We previously criticised Mozilla for playing along with MPEG-LA; for video compression formats many of the same problems remain.
The ‘Phone Tax’
According to ip.finance [found via Francisco Moreno/Keith Mallinson], “Apple is paying a total of between $12.50 and $25.00 per iPhone in fees for licensing from all cellular patent licensors. That is equal to between two percent and four percent of iPhone prices. Licensing fees as a percentage of consumers’ total cellular expenditures over a smartphone’s approximate two-year service life, including operator service fees averaging around $40 per connection per month in the US, for example, are considerably lower.”
No wonder such phones have become so grossly overpriced.
We rarely come across these numbers. Various figures from Qualcomm and BlackBerry (to be covered separately later today) shed light on how much patent tax is paid for the hardware alone; Another new report (published this morning) speaks of “when licensors come knocking” and there’s a portion of it that deals with Motorola‘s Microsoft dispute as follows:
The issue of standard patent licensing has been litigated heavily in other sectors, with the most notorious case stemming from Microsoft’s use of a Motorola-owned WiFi standard for use in the Xbox 360 gaming console. Motorola demanded Microsoft pay them 2.25 percent of the $399 retail price of the system, which translated to between $8 and $9 per console sold.
When the parties couldn’t reach an agreement, Microsoft sued Motorola in 2010 for breach of contract tied to the patent under requirement that standard patent holders must negotiate with a fair, reasonable and non-discriminatory pricing for the license. Three years later, a federal judge ruled that Motorola violated the pricing requirement and determined Microsoft pay Motorola 3.471 cents per unit sold. Microsoft sold 84 million Xbox 360s, paying Motorola roughly $2.9 million for the WiFi license, as opposed to the nearly $700 million they would have owed under Motorola’s initial demand. However, the litigation became so nasty, and international, that Microsoft ended up paying $400 million to move a manufacturing facility out of Germany.
We wrote a lot about that at the time. The main concern was, the supposedly reasonable and non-discriminatory (RAND) pricing made Free software inadequate a choice. RAND (or FRAND), unlike with a Z (for zero cost) would be inherently not compatible with the endless, cost-free distribution of software among peers. This is especially a problem when it comes to software because software, unlike hardware (device/gadget), need not involve manufacturing and shipping costs. Thankfully, however, software patents are on the demise in the US — a subject we’ll deal with in our next post. █
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